1. Unlawful refusal of state registration of an individual entrepreneur or legal entity or evasion of their registration, unlawful refusal to issue a special permit (license) to carry out certain activities or evasion of its issuance, restriction of the rights and legitimate interests of an individual entrepreneur or legal entity, depending on organizational and legal form, as well as illegal restriction of independence or other illegal interference in the activities of an individual entrepreneur or legal entity, if these acts were committed by an official using his official position, -
shall be punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years with a fine in the amount of up to eighty thousand rubles, or in the amount of wages or other income of the convicted person for a period of up to six months, or by compulsory work for a period of up to three hundred and sixty hours.
2. The same acts committed in violation of a judicial act that has entered into legal force, as well as causing large-scale damage, -
shall be punishable by deprivation of the right to hold certain positions or engage in certain activities for a period of three to five years with a fine in the amount of up to two hundred and fifty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to one year, or by compulsory labor for a term of up to four hundred and eighty hours. , or forced labor for a term of up to three years, or arrest for a term of up to six months, or imprisonment for a term of up to three years.
Note. In this article, major damage is defined as damage the amount of which exceeds one million five hundred thousand rubles.
- Article 168. Destruction or damage to property due to negligence
- Article 170. Registration of illegal transactions with real estate
Commentary to Art. 169 of the Criminal Code of the Russian Federation
The object of the crime is the established procedure for carrying out business or other activities.
In accordance with Part 1 of Art. 34 of the Constitution of the Russian Federation, everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law.
According to Art. 2 of the Civil Code of the Russian Federation, entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law. Such registration is provided for individual entrepreneurs and legal entities.
An individual entrepreneur is a citizen engaged in entrepreneurial activity without forming a legal entity (Article 23 of the Civil Code of the Russian Federation).
A legal entity is an organization that has separate property in ownership, economic management or operational management and is liable for its obligations with this property, can, in its own name, acquire and exercise property and personal non-property rights, bear responsibilities, be a plaintiff and defendant in court (Art. 48 of the Civil Code of the Russian Federation).
Organizations that pursue profit as the main goal of their activities are called commercial. They can be created in the form of business partnerships and societies, production cooperatives, state and municipal unitary enterprises.
“Other economic activity”, not included in entrepreneurship, is a reasonable activity of a person, not directly aimed at making a profit, but involving the use of his abilities and property to satisfy material needs and interests. For example, such activities may include: charity and patronage of the arts; organization of associations and unions without profit-making purposes.
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Commentary on the Constitution of the Russian Federation / Ed. ed. Yu.V. Kudryavtseva. M., 1996. P. 146.
Organizations that carry out activities not directly aimed at generating profit and do not distribute it among participants are non-profit. According to the Federal Law of January 12, 1996 N 7-FZ “On Non-Profit Organizations”, they are created to achieve social, charitable, cultural, educational, scientific and managerial goals, in order to protect the health of citizens, develop physical culture and sports, satisfy spiritual and other intangible needs of citizens, protection of rights, legitimate interests of citizens and organizations, resolution of disputes and conflicts, provision of legal assistance, as well as for other purposes aimed at achieving public benefits. They can be created in the form of public or religious organizations (associations), non-profit partnerships, institutions, autonomous non-profit organizations, social, charitable and other funds, associations and unions, etc.
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RG. 1996. 24 Jan.
The general procedure and conditions for state registration of legal entities and individual entrepreneurs are established by Federal Law of August 8, 2001 N 129-FZ “On state registration of legal entities and individual entrepreneurs”. This Law defines state registration as acts of an authorized federal executive body, carried out by entering into state registers information on the creation, reorganization and liquidation of legal entities, acquisition by individuals of the status of individual entrepreneur, termination by individuals of activities as individual entrepreneurs, and other information about legal entities and individual entrepreneurs.
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RG. 2001. 10 Aug.
Federal laws may establish a special procedure for registering certain types of legal entities. See, for example: Federal Law of November 14, 2002 N 161-FZ “On State and Municipal Unitary Enterprises” // RG. 2002. Dec 3; Federal Law of January 12, 1996 N 7-FZ “On Non-Profit Organizations” // RG. 1996. January 24; Federal Law of December 2, 1990 N 395-1 “On Banks and Banking Activities” // Gazette of the SND of the RSFSR. 1990. N 27. Art. 357.
In accordance with Art. 8 of the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs” the decision on state registration or its refusal must be made within no more than five working days from the date of submission of documents to the registration authority. State registration of an individual entrepreneur is carried out at the place of his residence, and a legal entity - at the location of the permanent executive body indicated by the founders in the application for state registration, in the absence of such an executive body - at the location of another body or person having the right to act on behalf of the legal entity persons without a power of attorney.
Current legislation provides for certain types of activities that can only be carried out on the basis of a special permit (license). A license is a special permit issued by a licensing authority to carry out a specific type of activity, subject to mandatory compliance with licensing requirements and conditions. The right to carry out activities for which it is necessary to obtain a special permit (license) arises from the moment of receipt of the license or within the period specified therein and terminates upon expiration of its validity period, unless otherwise established by law or other legal acts (Part 3 of Article 49 Civil Code of the Russian Federation). One of the main regulations establishing the procedure and types of licensing is the Federal Law of August 8, 2001 “On licensing of certain types of activities”.
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RG. 2001. 10 Aug.
This Law does not apply to the following types of activities, the licensing procedure for which is determined by the relevant legislation: credit organizations, in the field of communications, notary, exchange, insurance, customs, education, etc.
The validity period of the license cannot be less than five years. The licensing authority makes a decision on granting or refusing to grant a license within a period not exceeding forty-five days from the date of receipt of all necessary documents (the provisions on licensing of certain types of activities may provide for a shorter period). This decision is formalized by the relevant act of the licensing authority.
A legal entity may have civil rights corresponding to the goals of its activities provided for in its constituent documents. Restriction of these rights is possible only in cases and in the manner prescribed by law (Part 2 of Article 49 of the Civil Code of the Russian Federation). Such restrictions are usually provided for in laws devoted to specific types of business and other activities. As a rule, this occurs when they violate existing regulations and rules established in their constituent documents, as well as when any emergency circumstances occur.
The objective side of the crime is expressed in actions (inaction): 1) unlawful refusal of state registration of an individual entrepreneur or legal entity; 2) evading their registration; 3) unlawful refusal to issue a special permit (license) to carry out certain activities; 4) evading its issuance; 5) restriction of the rights and legitimate interests of an individual entrepreneur or legal entity depending on the organizational and legal form; 6) illegal restriction of independence; 7) other illegal interference in the activities of an individual entrepreneur or legal entity.
Refusal to state registration of an individual entrepreneur or legal entity is lawful in the cases provided for in Art. 23 of the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs”: 1) if the documents necessary for state registration are not submitted or they are submitted to the wrong registration authority; 2) if the legal entity is in the process of liquidation; 3) if the state registration of an individual as an individual entrepreneur has not expired, or a year has not expired from the date of the court’s decision to declare him insolvent (bankrupt) or a decision to forcibly terminate his activities as an individual entrepreneur, or the period has not expired, for which this person, by a court verdict, is deprived of the right to engage in entrepreneurial activity.
Refusal to issue a license can be lawful only if it is provided for by regulatory legal acts. For example, in accordance with Part 3 of Art. 9 of the Federal Law “On Licensing of Certain Types of Activities” such a refusal is possible if: 1) the documents submitted by the license applicant contain unreliable or distorted information; 2) the license applicant’s non-compliance of the objects owned or used by him with the licensing requirements and conditions.
Refusal of state registration or issuance of a license in cases not specified by current legislation is unlawful. For example, refusal of registration on grounds of inexpediency or refusal to issue a license based on the volume of products planned for production by the license applicant.
Evasion of registration or issuance of a license is the inaction of officials who delay and (or) fail without reason to carry out the relevant actions within the prescribed period - carrying out state registration of legal entities or individual entrepreneurs or providing them with a special permit. For example, the requirement to submit documents not required by law, or illegal extension of registration deadlines.
Restriction of the rights and legitimate interests of an individual entrepreneur or legal entity is an illegal reduction of the legal capacity of these persons for reasons of their organizational and legal form. For example, refusal to provide government preferential loans to entrepreneurs because they are not registered as a legal entity, or suspension of licenses for all forms of entrepreneurial activity, except open joint-stock companies.
Illegal restriction of the independence of an individual entrepreneur or organization can be expressed in a variety of actions that impede the independent implementation of entrepreneurial and other activities. For example, establishing the need to coordinate the management (financial, economic, etc.) decisions they make or imposing such decisions on them, prohibiting the use of premises and land plots.
Other illegal interference in the activities of an individual entrepreneur or legal entity may be associated with any unlawful influence on them. For example, illegal inspections or seizure of documents.
The interference of state and local government bodies in business and other activities in cases provided for by current legislation will not constitute unlawful obstruction. For example, when monitoring the implementation of environmental, fire, sanitary and epidemiological requirements by individual entrepreneurs and organizations.
The act is completed at the moment of commission of any action (inaction) specified in the disposition of the article.
The corpus delicti is formal.
The subjective side of the crime is characterized by guilt in the form of direct intent. The official realizes that, using his official position, he commits one or more of the specified actions (inaction), and desires this.
Motive and purpose are not necessary signs of a crime. At the same time, they can be the following: revenge, personal hostility, false understanding of the interests of the service, elimination of a competitor by a municipal economic organization, replenishment of the local budget, etc.
A special subject of a crime is an official who uses his official position (see the note to Article 285 of the Criminal Code of the Russian Federation and the commentary thereto) and has reached the age of sixteen years. These may be employees of tax, licensing, law enforcement and other regulatory authorities, other state or municipal officials.
The qualifying features of the crime under consideration are the commission of a crime in violation of a judicial act that has entered into legal force, as well as causing major damage.
A judicial act that has entered into legal force is a court decision recognizing illegal actions (inaction) of an official that violate or limit the rights and legitimate interests of an individual entrepreneur or legal entity. This judicial act may be issued by an arbitration court or a court of general jurisdiction.
In accordance with the note to Art. 169 of the Criminal Code of the Russian Federation under large amount, large damage, income or debt on a large scale in Chapter 22 of the Criminal Code of the Russian Federation (with the exception of Articles 174, 174.1, 178, 185, 185.1, 193, 194, 198, 199 and 199.1) the cost is recognized , damage, income or debt in an amount exceeding two hundred and fifty thousand rubles, especially large - one million rubles.
On the qualitative side, major damage consists of both real property losses and lost profits, i.e. income that an individual entrepreneur or legal entity would have received if their rights had not been violated (Part 2 of Article 15 of the Civil Code of the Russian Federation).
A person who has committed this act if there are signs of bribery is subject to criminal liability under Art. 290 of the Criminal Code of the Russian Federation.
Article 169 of the Criminal Code of the Russian Federation is a special norm in relation to the general norm provided for in Art. 285 of the Criminal Code of the Russian Federation.
Obstruction of legal business or other activities in violation of a judicial act that has entered into legal force (Part 2 of Article 169 of the Criminal Code of the Russian Federation) is also a special norm in relation to failure to execute a court verdict, court decision or other judicial act (Article 315 of the Criminal Code of the Russian Federation).
Obstruction of legitimate business activity in the form of preventing, restricting or eliminating competition, committed by an official using his official position and causing major damage, must be qualified under Part 2 of Art. 178 of the Criminal Code of the Russian Federation.
Commentary to Art. 349 of the Criminal Code
1. The subject of the crime is weapons, ammunition, as they are defined in the Federal Law of December 13, 1996 N 150-FZ “On Weapons”; radioactive materials - substances not related to nuclear materials that emit ionizing radiation; explosives; Other substances and objects that pose an increased danger to others include, for example, various chemical, biological, and highly toxic substances that are not weapons of mass destruction, but pose an increased danger due to their special properties.
2. The objective side consists of a violation of special rules for handling the specified items, if this entailed the consequences listed in the law.
The act is completed from the moment the consequences specified in the law occur. The concept of grave harm to human health is defined in Art. 111 of the Criminal Code, the destruction of military equipment is rendering it completely unfit for use for its intended purpose, including through its physical destruction. Other serious consequences may include causing significant material damage, radioactive contamination of the area, pollution of the atmosphere, water, soil, etc.
3. From the subjective side, a crime can only be committed through negligence, in the form of frivolity or negligence.
Judicial practice under Article 169 of the Criminal Code of the Russian Federation
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 12, 2019 N 3-UD19-11
was convicted under Part 1 of Art. 169 of the Criminal Code of the Russian Federation to a fine of 200,000 rubles, with payment of the fine in installments over 10 months in equal installments of 20,000 rubles per month. By the appeal ruling of the Ukhta City Court of the Komi Republic dated May 22, 2021, the verdict against Busyrev A.E. left unchanged.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 20, 2018 N 18-APU18-8
By the resolution of the Deputy Prosecutor General of the Russian Federation dated March 19, 2021, the request of the Prosecutor General’s Office of the Republic of Uzbekistan for the extradition of G.S. Polevoy was satisfied. to bring to criminal liability for robbery with unlawful entry into a home under paragraph “c” of Part 3 of Art. 164 of the Criminal Code of the Republic of Uzbekistan. The same resolution refused to extradite G.S. Polevoy. to bring to criminal liability for theft under paragraph “c” of Part 2 of Art. 169 of the Criminal Code of the Republic of Uzbekistan due to the expiration of the statute of limitations for criminal prosecution.
Resolution of the Presidium of the Supreme Court of the Russian Federation dated July 21, 2021 N 111P21
Losev V.S. acquitted of charges of committing crimes under Part 1 of Art. 318, part 1 art. 169 of the Criminal Code of the Russian Federation, due to the lack of corpus delicti in the act. Preventive measure in the form of detention in relation to Losev V.S. left unchanged. The term of serving the sentence in the form of imprisonment was decided to be calculated from the day the sentence entered into legal force and counted against it in accordance with Part 3 of Art. , clause "a" part 3.1 art. of the Criminal Code of the Russian Federation, the time of detention of Losev V.S. in custody in the period from December 9, 2016 until the sentence enters into legal force at the rate of one day of detention for one day of imprisonment in a high-security correctional colony.
Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 26, 2019 N 1
5) in paragraph 18, replace the words “one million five hundred thousand rubles (note to Article 169 of the Criminal Code of the Russian Federation)” with the words “two million two hundred and fifty thousand rubles (note to Article 170.2 of the Criminal Code of the Russian Federation).” Chairman of the Supreme Court of the Russian Federation
Depraved acts (Article 169 of the Criminal Code). Current issues.
lawyer Moshkin Vitaly Vitalievich +375296252237, December 06, 2019 Telephone: 375296252237
Minsk City Bar Association, Legal Consultation of the Sovetsky District
At first glance it may seem that regarding Art. 169 of the Criminal Code (Depraved acts) everything is more or less clear, and in this regard there are no significant problems, both in terms of what it is, qualifications, and in the means and methods of proving this fact or the opposite. However, this is not the case. According to the disposition of Part 1 of Art. 169 of the Criminal Code, these are indecent acts committed by a person who has reached the age of eighteen, against a person who has obviously not reached the age of sixteen, in the absence of signs of crimes provided for in Articles 166, 167 and 168 of the Criminal Code. The particular relevance of the issue under consideration is given by the fact that, on the one hand, the Belarusian law classifies this crime as a less serious crime, including those falling under the scope of the latest amnesty law in connection with the 75th anniversary of the liberation of the Republic of Belarus from the Nazi invaders (Part 1 Art. 169 of the Criminal Code), and on the other hand, due to the development of information technology, the availability of various mobile devices for accessing the Internet by many under 16 years of age, the methods of committing this crime have expanded significantly. The information that is overloaded on the Internet and the rapid informatization of the population do not help reduce the number of such manifestations. It is also no secret that often, from depraved acts to the commission of any sexual relations, there is a very short step between the one who commits them and the victims.
The relevance of this issue is given by the fact that, for example, in the Russian Federation, a similar article (Article 135 of the Criminal Code of the Russian Federation) underwent significant changes in 2012, namely, part two was changed, and also parts three, four and five were added. In particular, the commission of indecent acts against two or more persons or by a person previously convicted of indecent acts is already a particularly serious crime. In a number of other countries, such acts are also classified as more serious categories of crimes. Therefore, it is not a fact that over time our legislator will follow the path of tightening responsibility for these acts.
So, first things first. To the problem of qualification of the act. There are two main problems here:
First, did the suspect (accused) know that he was committing these actions against a person KNOWING for him to be under 16 years of age? This is fundamentally important, since the fact of depraved acts in itself does not constitute a crime.
Second – what are indecent acts? And here in practice various problematic issues arise. Thus, some investigators in the decision to charge as an accused indicate such wording as “had a negative impact on the normal moral and physical development of a minor” or “expressed in opposition to his desire to satisfy sexual passion with the moral and physical development (of the victim (him, them)" In fact, this, in my opinion, is not always correct and correct, since Part 1 of Article 169 of the Criminal Code is a formal structure and does not require the occurrence of certain negative consequences.According to paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Republic Belarus dated September 27, 2012 No. 7 “On judicial practice in cases of crimes against sexual integrity or sexual freedom (Articles 166-170 of the Criminal Code), depraved actions (Part 1 of Article 169 of the Criminal Code) should be understood as non-violent, not related with sexual intercourse and other actions of a sexual nature, influence on a person of any sex, who is known to the accused to be under the age of sixteen, aimed at arousing his interest in the sexual aspects of life, sexual desire.
In this regard, the mere fact of whether or not the accused had a negative impact on the normal mental or physical development of a person under 16 years of age, etc., as well as the motive for committing such acts, does not matter for the qualification of the act. It can and should be important only for the measure of responsibility for the act, since this directly depends on the size of the harmful consequences (harm) caused by the crime (clause 4, part 1, article 89 of the Criminal Procedure Code, article 62 of the Criminal Code), and also directly affects the amount of the subject compensation for moral damage, if any is presented to the accused.
On problems of proving or refuting this fact (crimes under Article 169 of the Criminal Code). At first glance, everything seems to be clear here, however, even here questions arise about what can be classified as depraved actions and what is not. In this regard, in various comments to the Criminal Code there are statements that in this regard it is necessary to order a forensic sexological examination. However, it is not. The fact is that such examinations are not carried out in the Republic of Belarus, because The concept of indecent acts refers to issues of legal qualification. An example from my own practice. A man who arrived in Minsk began communicating through social networks with various people on all kinds of intimate topics. Moreover, he did it so openly that it could not raise doubts about what kind of topic it was and what it was aimed at, the communication between him and other persons was so direct and open. The investigator conducted an investigation, considered the guilt of the accused established and sent the case to the prosecutor for sending to court. However, the prosecutor returned the case for additional investigation, considering it necessary to conduct a forensic sexological examination to determine the presence or absence of depraved acts in this communication. As a result, an examination was appointed, its implementation was entrusted to the State Committee for Forensic Expertise, however, according to the conclusion of the forensic expert, its implementation is not within the competence of the forensic expert, because The concept of indecent acts refers to a legal concept. A forensic expert called by the court in the same case explained the same thing to the court. Thus, time is wasted, and most importantly, this imposes a special responsibility on the criminal prosecution body to correctly investigate the case and competently give a legal assessment of such acts, distinguishing depraved actions (if any took place) from those that do not apply to them.
It is also necessary to distinguish depraved acts that can only be committed with direct intent, from various kinds of jokes, banter, etc. aimed at an indefinite number of people.
I am lawyer Vitaly Vitalievich Moshkin.
cont. (Viber) +375296252237 Blog Moshkin Vitaly Vitalievich +375296252237
