Commentary to Art. 171 Criminal Code
1. The objective side is characterized by two forms of criminal activity.
2. Carrying out business activities without registration, i.e. when there is no entry in the Unified State Register for legal entities and the Unified State Register for individual entrepreneurs about the creation of such a legal entity or the acquisition by an individual of the status of an individual entrepreneur. Does not require state registration: a) engaging in economic activities prohibited by law (for example, illegal drug trafficking); b) concluding one-time transactions of a civil law nature (for example, occasionally carrying out small works under a contract). Fulfillment of duties under an employment contract (tutors, domestic servants, etc.), activities of members of the bar association, and private notaries are not considered entrepreneurship.
3. Federal Law of May 4, 2011 N 99-FZ “On licensing of certain types of activities” contains a list of types of activities subject to licensing, specifies which of them are licensed at the federal level, which by the executive authorities of the subjects of the federation, and also lists the types activities whose licensing is carried out in accordance with other laws and regulations.
The right to carry out activities for which a special permit (license) is required arises from the moment the permit (license) is received or within the period specified therein and terminates upon expiration of its validity (unless otherwise provided), as well as in cases of suspension or cancellation permits (licenses) (clause 3 of article 49 of the Civil Code of the Russian Federation). If a person, after the expiration of the license or its suspension, continues to engage in entrepreneurial activity, such activity should be considered as carried out without a special permit (license).
4. A necessary condition for bringing criminal liability for illegal business is the infliction of large damage to citizens, organizations or the state, or that the act committed must be associated with the extraction of large income (see note to Article 170.2 of the Criminal Code).
If major damage from carrying out business activities without registration is caused by non-payment of taxes, then liability for such activities arises only under Art. 171 of the Criminal Code and additional qualifications under Art. 198, 199 of the Criminal Code is not required.
Causing harm to health of any severity while carrying out illegal business activities is not covered by Art. 171 of the Criminal Code and requires qualification based on a set of crimes.
5. Income is understood as proceeds from the sale of goods (work, services) during the period of illegal business activity without deducting expenses incurred by the person related to the implementation of illegal business activity.
Verdict Art. 171 Part 2 of the Criminal Code of the Russian Federation
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PR I G O V O R in the name of the Russian Federation <address> May 25, 2011 Gagarinsky District Court <address> composed of the presiding federal judge Motorin A.V., with the participation of the state prosecutor - assistant Gagarin interdistrict prosecutor <address> Sergeeva N.A., defendant FULL NAME8, defense lawyer - lawyer of the bar association "Yurkom" Karetnikov B.V., who presented certificate No. and warrant No. dated 05.05.2011, with the secretary Goloborodko M.S., having examined the materials of the criminal case in open court case regarding FULL NAME8, DD.MM.YYYY year of birth, native <address> SSR, citizen of the Russian Federation, having a higher education, married, having a dependent minor child DD.MM.YYYY of birth, working as the general director <data seized>", permanently registered at the address: <address>, Letunovo village, <address>, actually residing at the address: <address>, <address> prospect, <address>, not previously convicted, accused of the crime provided for in Article 171, Part 2, Clause “b” of the Criminal Code of the Russian Federation, - U S T A N O V I L: Tashchyan A.G. guilty of committing illegal entrepreneurship, that is, carrying out business activities in violation of registration rules, without a license, in cases where such a license is required, associated with the extraction of income on a particularly large scale. The crime was committed under the following circumstances: On-Tashchyan A.G., having intent to carry out business activities in violation of registration rules, without a license, in cases where such a license is required, at a time not established by the investigation, but no later than April 25, 2010, in a place not determined by the investigation, under circumstances not established by the investigation, received free access to the constituent and registration documents, as well as the seal of the Limited Liability Company (hereinafter referred to as LLC) “Vectra” (TIN 7816465300, certificate of state registration series 78 No. dated May 18, 2009, legal address: <address>, <address> , <address>, lit. June 2010, he performed the functions of a manager (a person, on the basis of Article 40 of the Federal Law of 02/08/1998 No. “On Limited Liability Companies” who has the right to act on behalf of a legal entity without a power of attorney) of the above organization, carrying out illegal business activities on its behalf. In continuation of his criminal intent, aimed at carrying out business activities in violation of registration rules, without a license, in cases where such a license is mandatory, associated with the extraction of income on a particularly large scale, he-Tashchyan A.G., after receiving free access to the constituent documents and registration documents, as well as the seal of Vectra LLC, he, without the knowledge of the ignorant of his criminal intent, who, in accordance with the registration documents, is the general director of the specified organization, that is, the executive body of this company, actually began to perform the functions of the head of the specified organization, while , in violation of Art. 5 of the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs” No. 129-FZ of August 8, 2001, according to which information about the founders, persons who have the right to act on behalf of the legal entity without a power of attorney, is provided within three days to the registration authority at the location legal entity, until June 25, 2010, did not make the necessary changes about the change of the executive body (general director) and the actual director in the legal documents of the said Company, and did not submit them to the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs” No. 129- Federal Law of August 8, 2001, a three-day period to the registration authority at the location of the above-mentioned legal entity, that is, to MIFTS No. at <address>, located at the address: <address>, having violated the rules of state registration of legal entities, at the same time, carried out the completeness of the financial and economic activities of the organization, as its leader: concluded various contracts on behalf of the organization, hired hired employees for the company, paid them wages, accepted proceeds from illegal activities from hired employees, etc. In order to carry out his business activities in violation of the registration rules, without a license, in cases where such a license is required, associated with the extraction of income on a particularly large scale, he-Tashchyan A.G., acting as the de facto head of Vectra LLC, at an unidentified investigation time, but no later than April 25, 2010, in a place not determined by the investigation, after receiving free access to the constituent and registration documents, as well as the seal of Vectra LLC, the general director and founder of which, according to these documents, is A.G. Tashchyan, who is not aware of him . criminal intent, on behalf of Vectra LLC entered into a sublease agreement No. dated 01.02.2010 with Astoria LLC represented by the general director, after which, in accordance with the terms of this agreement, he was able to use the premises No. (rooms No. 79A) and the premises No. (rooms No. 1-6) in the building located at: <address>, to carry out his criminal intent. After receiving the opportunity to use the above premises at the address: <address>, on-Tashchyan A.G., at a time not established by the investigation, but no later than 04/25/2010, placed one hundred and two (102) slot machines with cash winnings in these premises, that is, gaming equipment used for gambling with material winnings, which are determined randomly by a device located inside the housing of the gaming equipment, without the participation of the gambling organizer or its employees located outside the gambling zones, outside the jurisdiction of the gambling zone management body issuing the permit to carry out activities related to the organization and conduct of gambling in the gambling zone, and also hired the appropriate labor personnel, who had previously worked in various gambling establishments <address>, as the head of Vectra LLC, to service these slot machines, after which he carried out both the head of Vectra LLC, entrepreneurial activity in violation of registration rules, without a license (permission to carry out activities for organizing and conducting gambling in the gambling zone), associated with the extraction of income on an especially large scale, which resulted in his committing at the above address in violation of Art. Art. 5, 9, 13 of the Federal Law “On state regulation of activities for organizing and conducting gambling and on introducing amendments to certain legislative acts of the Russian Federation” No. dated December 29, 2006, according to which activities for organizing and conducting gambling can be carried out exclusively by organizers of gambling games, gambling zones are created in the territories of the following constituent entities of the Russian Federation: <address>; <address>; <address>; <address>, permission to carry out activities for organizing and conducting gambling in the gambling zone is issued by the management body of the gambling zone, activities under the guise of distributing lottery tickets on behalf of Vectra LLC, at the same time carried out activities for organizing and conducting gambling using the above gaming equipment, on each of which the cost of one credit (point, point) was indicated on the front panel, amounting to 0.2; 0.5; 1 rubles, the machine’s monitor reflected the visual splash screen of the gaming program installed on the slot machine; in case of a win, the client sees the amount of winnings on the electronic scoreboard, after which a hired employee of Vectra LLC recorded the amount of winnings and gave money to the client, the slot machines used are equipped bill acceptors and allowed players to independently deposit money into the slot machine by placing banknotes of their choice 10; 50; 100; 500; 1000; 5,000 rubles, after which clients could autonomously play on the selected slot machine, controlling it using the control buttons available on each slot machine, increasing the bet amount, and also choosing game options from those installed on the machine, without the knowledge of the person in accordance with with registration documents by his executive body, that is, unaware of his-Tashchyan A.G. criminal intent, actually performing the functions of the head of the specified organization. Thus, he-Tashchyan A.G., deliberately, in violation of the current legislation, knowingly knowing that the implementation of this business activity is carried out in violation of the registration rules and without a license, is associated with the extraction of income on an especially large scale, carried out illegal business activities on behalf of Vectra LLC and, using the constituent documents and details of the said organization, extracted during the period of this illegal business activity from April 25, 2010 to June 25, 2010, income in the amount of <data taken> rubles, which, in accordance with the note to Art. 169 of the Criminal Code of the Russian Federation is a particularly large size. Defendant Tashchyan A.G. when familiarizing himself with the materials of the criminal case and fulfilling the requirements of Article 217 of the Code of Criminal Procedure of the Russian Federation, as well as in the preparatory stage of the trial in the presence of his defense lawyer - lawyer B.V. Karetnikov, with the consent of the state prosecutor, he declared his agreement with the charges brought against him and received a petition on passing a sentence without a trial, in a special order. At the court hearing, the defendant Tashchyan A.G. he fully admitted his guilt in committing the crime charged to him, indicated in the narrative part, explained that he agreed with the accusation in full, repented of what he had done, showed to the court that he confirmed his stated petition for a verdict without trial, in a special order, he submitted the petition voluntarily and after consultation with his defense attorney, lawyer B.V. Karetnikov, he is fully aware of the consequences of passing a sentence without a trial. Having checked the materials of the criminal case, the court came to the conclusion that the charge brought against the defendant A.G. Tashchyan in the commission of the crime specified in the descriptive part, is reasonably and fully confirmed by the evidence collected in the criminal case. The court qualifies the actions of the defendant Tashchyan A.G. under Article 171, Part 2, Clause “b” of the Criminal Code of the Russian Federation - as illegal entrepreneurship, that is, carrying out business activities in violation of registration rules, without a license, in cases where such a license is required, associated with the extraction of income on an especially large scale. Studying the personality of the defendant A.G. Tashchyan It has been established that he has no previous convictions, is employed by the general director of Astoria LLC, is married, has a dependent minor child born in 1999, and is formally characterized by his place of residence. (vol. 7 case sheets 152-162) To the circumstances mitigating the punishment of the defendant A.G. Tashchyan. the court, in accordance with paragraph “g” of Part 1 of Article 61 of the Criminal Code of the Russian Federation, recognizes the presence of a dependent minor child born in 1999, and also takes into account the admission of guilt and repentance for the crime. The court did not establish circumstances aggravating the punishment of the defendant A.G. Tashchyan. When assigning the defendant Tashchyan A.G. punishment, the court takes into account the nature and degree of public danger of the crime committed, which belongs to the category of crimes of medium gravity, the personality of the defendant A.G. Tashchyan, who has not previously been convicted, the above mitigating circumstances, the impact of the imposed punishment on the correction of the convicted person. When assigning punishment, taking into account the circumstances of the crime committed, the court finds no grounds for applying it to the defendant A.G. Tashchyan. provisions of Articles 64, 73 of the Criminal Code of the Russian Federation, since the court did not establish exceptional circumstances related to the goals and motives of the defendant committing the crime charged to him. The court believes that the punishment applied to the defendant A.G. Tashchyan must be fair and correspond to the nature and degree of social danger of the crime committed, and therefore the court was convinced that the punishment for the defendant A.G. Tashchyan should be imposed exclusively in the form of actual imprisonment, since his correction and re-education is impossible without isolation from society. Taking into account the financial situation of the defendant A.G. Tashchyan and his family, the court considers it necessary to impose on him an additional type of punishment, provided for in the sanction of Article 171, Part 2, paragraph “b” of the Criminal Code of the Russian Federation, in the form of a fine. Considering that the defendant Tashchyan A.G. a crime of average gravity has been committed, the court, on the basis of Article 58, Part 1, Clause “a” of the Criminal Code of the Russian Federation, assigns him a place to serve his sentence in the form of actual imprisonment in a colony-settlement. Based on the foregoing, guided by Article 316 of the Code of Criminal Procedure of the Russian Federation, SENTENCED: FULL NAME8 to be found guilty of committing a crime under Article 171, Part 2, Clause “b” of the Criminal Code of the Russian Federation and sentenced to 2 (two) years of imprisonment, with a fine in the amount of 50,000 (fifty thousand) rubles to the state income, with the sentence being served in a penal colony. The preventive measure, FULL NAME8, shall remain unchanged in the form of a written undertaking not to leave the place and proper behavior until the court verdict enters into legal force. Oblige Tashchyan A.G. appear at the Federal Penitentiary Service of Russia at <address> to receive an order to proceed to the place of serving the sentence at the expense of the state independently, in the manner prescribed by parts 1 and 2 of Article 75.1 of the Penal Code of the Russian Federation. The term of punishment for A.G. Tashchyan calculated from the day the convict arrives in the colony-settlement. Take into account the travel time of the convicted Tashchyan A.G. to the place of serving the sentence in accordance with the instructions during the period of imprisonment. Physical evidence: - bank and constituent documents of Vectra LLC - kept in criminal case No.; (v.3 pp. 6; v.4 pp. 165; v.6 pp. 140; v.7 pp. 117-118) - DVRs, system unit and 102 (one hundred and two) electronic boards seized during the inspection of the premises of Vectra LLC at the address: <address>, located in the storage room of the Central Control System at the Internal Affairs Directorate for the South-Western Administrative District <address> - to be destroyed. (vol. 6 case file 202, 126) The verdict can be appealed and protested in cassation to the Moscow City Court through the Gagarinsky District Court <address> within 10 days from the date of its proclamation, and for convicted persons in custody - in the same period from the date of delivery of a copy of the verdict to him. If a cassation appeal is filed, the convicted person has the right to petition for his participation in the consideration of the criminal case by the court of cassation. Judge A.V. Motorin
Judicial practice in cases of bankruptcy and illegal entrepreneurship
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The criminal legal protection of the business carried out by the law firm allowed us to resolve the issues raised: to lift the ban of the regulatory body on the sale of LLC products.
This ban brought the LLC to the brink of bankruptcy: the refusal to grant a deferment of loan payments paralyzed business activity for almost two years. In addition, the management of the LLC was threatened with charges under Article 171 of the Criminal Code of the Russian Federation - illegal entrepreneurship.
The deferment of execution of the decision to recover assets allowed the LLC to fulfill its obligations and resume full-fledged business activities. The Arbitration Court left the plaintiff's application without consideration. The charge of illegal business was dropped as unproven.
The decision of the court of first instance was unequivocal: the overdue debt was collected from the LLC - at the request of the Creditor. In addition, the foreclosure was applied to real estate (non-residential premises owned by the LLC). The sale price of the latter was determined - within the framework of the stated claims.
In addition, the court decision also provided for the foreclosure of the land plot, the initial price of which was also determined.
The representative of the LLC applied to the court with a request to postpone the execution of this decision, motivating the request with the following arguments:
— The LLC has voluntarily fulfilled a number of obligations, and the continuation of professional activities will provide an opportunity to obtain funds to fulfill the rest;
— one of the main reasons for insolvency was the act of the State Veterinary Supervision, as a result of which the enterprise was deprived of the opportunity to sell goods (smoked fish).
At present (meaning the time of consideration of the application), the circumstances that prompted the civil service to adopt this act have been eliminated, and the ban has been lifted. Consequently, the company has the opportunity to carry out several large contracts with counterparties, which will allow it to obtain the necessary funds to pay the Lender.
In accordance with Article 434 of the Code of Civil Procedure, an interested person has the right to appeal to the court hearing the case for granting a deferment. A similar possibility is spelled out in Part 1 of Article 37 of Federal Law-229.
Changing the method and procedure for executing a decision must comply with the principle of fairness. In other words, all significant circumstances in their totality must be taken into account, including: the financial situation of the claimant and the debtor; balance of rights and legitimate interests of interested parties; proportionality of requirements, etc.
The court took into account that the representative of the LLC presented irrefutable evidence that the failure to fulfill (untimely fulfillment) of the obligation to return funds is causally related to serious obstacles encountered by the debtor during the implementation of enforcement actions. Under these conditions, they were temporary and forced.
The arguments presented by LLC allowed us to believe that these obstacles can be eliminated, and newly emerging circumstances will allow us to talk about favorable conditions for fulfilling the obligation.
Having accepted the argumentation of the LLC representative, the court found it possible to grant a deferment of the fulfillment of the main obligation for a period of 1 year.
Based on Articles 203, 224-225 of the Code of Civil Procedure of the Russian Federation, the court issued a ruling in favor of the LLC - granting a deferment in fulfilling the obligation.
Thus, the enterprise avoided bankruptcy proceedings, and based on the results of business activities, the achievement of the planned result was stated. The LLC fully repaid the debt to the Creditor and resumed business activities aimed at making a profit.
Author of the article
Kuznetsov Fedor Nikolaevich
More than 15 years of experience in the legal field; Specialization - resolution of family disputes, inheritance, property transactions, disputes over consumer rights, criminal cases, arbitration processes.
