Restrictions and prohibitions on business activities. The right to carry out entrepreneurial activity and methods of its implementation

Administrative suspension of activities consists in the temporary cessation of activities in the event of a threat to the life or health of people, the occurrence of an epidemic, the onset of a radiation accident or a man-made disaster, causing significant damage to the state or quality the environment and so on.
Cases of administrative offenses entailing the suspension of activities are considered by judges of district courts. An administrative suspension of activities is imposed by a judge for up to 90 days.
By a court decision, the following may be suspended:
- entrepreneurial activity in whole or in part. For example, a violation by a legal entity of the rules for the circulation of substances, tools or equipment used for the manufacture of narcotic drugs or psychotropic substances entails either the imposition of a fine with or without confiscation of substances, tools or equipment, or administrative suspension of activities with or without confiscation of this property. In this case, the aim is to suppress the entire chain of illegal activities: production, processing, manufacture, sale, sale, distribution, transportation, transfer, storage, acquisition, use, import, export or destruction of substances, tools, equipment used for the manufacture of narcotic drugs or psychotropic drugs. substances.
Partially entrepreneurial activity legal entity suspended, for example, when branches and other structural units legal entity;

Operation of individual objects (units, buildings, structures).
Suspension of activities is also envisaged. non-profit organizations(for example, educational institutions) in the presence of a corresponding offense.
The right to carry out entrepreneurial activity, being based on the Constitution of the Russian Federation (Articles 8, 34), has constitutional guarantees:
- political. All are equal before the law (Article 19 of the Constitution of the Russian Federation), regardless of beliefs, membership of public associations (for example, political parties). The division of powers (article 10 of the Constitution) into legislative, executive and judicial is designed to guarantee competent regulation of public relations, judicial control over the activities of executive bodies.
Unfortunately, it is important to say that high level corruption in the executive authorities, including in the process of their control over entrepreneurial activity, testifies to the lack of control over the activities of the executive authorities themselves and their officials;
- economic. Entrepreneurs can conduct business based on different forms property, each of which is recognized and protected in the same way (part 2 of article 8 of the Constitution of the Russian Federation). The unity of the economic space, freedom of economic activity, support for competition are guaranteed;
- legal. Everyone is guaranteed the protection of his rights and freedoms, the presumption of innocence of a person brought to criminal responsibility is in effect.
Decisions and actions (or inaction) of public authorities, local governments, officials can be appealed in court (Articles 46, 49 of the Constitution of the Russian Federation).

UDC 347.451.031

OBSTACLES AND THEIR RESTRICTIONS IN BUSINESS

E.V. Babelin

Doctor of Law, Professor of the Department of Civil Law

Saratov State Academy of Law. 410056, Saratov, st. Volskaya, 1

Head of the Sector of Industry Issues

Russian Academy of Sciences, Institute of State and Law. Saratov branch

410028, Saratov, st. Chernyshevsky, 135

E-mail: This address Email protected from spambots. You need JavaScript enabled to view it.

The article deals with the issues of the activities of entrepreneurs and the participation of the state in the regulation of entrepreneurial relations. The issues of obstacles in the exercise of their rights by entrepreneurs are analyzed, their classification is given, specific examples and ways to limit them. Also, some problems of civil liability of the state are considered, requiring their doctrinal and legislative resolution.

Key words: business law; limitation of rights; civil law; exercise of rights; protection of rights; civil liability; violation of the right; compensation

In accordance with paragraph 2 of Art. 1 of the Civil Code of the Russian Federation, civil rights may be limited in cases established by federal law, in order to protect the rights and legitimate interests of others. For example, Art. 37 of the Federal Law of April 24, 1995 No. 52-FZ "On the animal world" established the need to take into account the interests of the local population living in the territories provided for the use of the animal world. Paragraphs 3, 4 and 5 of this article provide for the coordination of the conditions for the provision of these territories and the observance of the interests of the local population.

Obstacles in the process of exercising rights and fulfilling obligations may arise at different stages. First, it was rightly noted that the limits of the exercise of rights in a number of cases are determined by legislative acts containing prohibitive and binding norms. Secondly, the boundaries of the exercise of the right can be established by agreement of the parties. In the doctrine, as rightly noted in the literature, there is a need for a systematic discussion of the issue of obstructing factors: “There has long been a need to develop a theory of obstacles related to the optimization of legal incentives and legal restrictions, with the identification of the most typical and harmful for the legal organization of public relations and interference, with their concept, classification, various manifestations in the legal system modern society» .

In order to improve the mechanism for the implementation of the rights of entrepreneurs and the performance of duties, to get rid of the obstacles that reduce its effectiveness, it is necessary, first of all, to identify and comprehend these obstacles.

A.V. Malko proposed a detailed classification of obstacles in law. The value of this approach is due to the need for systematic identification of various kinds of barriers to the exercise of rights and fulfillment of duties and the formation of a holistic view of the "weak points" of this mechanism. Therefore, the key points of this position deserve special attention.

So, the researcher rightly notes that obstacles can be subdivided into manageable and not amenable... The latter are those that do not depend on the will of man, such as: natural disasters, natural phenomena, climatic conditions, etc. The factors that are somehow connected with the activities of people are amenable to the influence. These include defects in the legal system that can be corrected. For example, at the level of legislation, it is possible to identify inconsistencies between various norms of the Constitution of the Russian Federation. In this regard, the researchers proposed the concept of "pseudo-norms", which meant "what prevents the functioning of this system is a deviation from the norm", in other words, those acts, regulations that contradict the current legislation. An example is the numerous regulations related to the privatization of real estate.

In addition, A.V. Malko shares obstacles manifested as lack of conditions necessary for effective management, and obstacles representing the presence of mechanisms competing with management... The second includes offenses that are the result of "shadow management", for example, the production of counterfeit products. The sphere of "shadow government" is the most acute and intractable social problem, since illegal actions in this case are clothed in a pseudo-legal form. The inconsistency (collision, conflict) of legal means is attributed to the factors competing with the authorities. As the first, according to A.V. Malko, the absence of the necessary legal norm, as well as the absence of a decisive legal fact, are argued.

According to the given position, from the point of view of subjects of law, obstacles can come from individual citizens, from legal entities, from state or municipal structures... The latter are everywhere acquiring more and more sophisticated forms. So, either normative or law enforcement acts can act as obstacles.

For example, by decree of the governor Saratov region of September 9, 1998 No. 520 "On the regulation of the export of agricultural products outside the Saratov region", the export from the territory of the region of meat and meat products, animal oil, food grain, flour, cereals, oil and sunflower seeds, sugar was prohibited. The movement of agricultural products could only be carried out by agreement with the ministry. Agriculture Saratov region, provided that rural producers fully fulfill their obligations to the budgets different levels, state extrabudgetary funds and the food corporation of the regional ministry of agriculture. Thus, the economic entities were placed in different economic conditions, the conditions of competition and freedom of entrepreneurial activity, the legal equality of the subjects of (civil) trade were violated. The provisions of this normative act contradicted the Constitution of the Russian Federation (clause 1 of article 8) and the Civil Code of the Russian Federation (clause 3 of article 1), in accordance with which in Russian Federation free movement of goods, works and financial resources, freedom of economic activity are guaranteed.

Another example. On the basis of the order of the head of the Saratov administration dated December 28, 1999 No. 1069-r "On the sale of a leased land plot on the Cosmonauts Embankment", a land plot was privatized located on the Cosmonauts Embankment in front of the river station (in the city center), which belongs to the category land of common use and in accordance with the law is not subject to sale. On November 22, 2003, by the decision of the Volzhsky District Court of Saratov, the order of the mayor of Saratov on the sale of the land plot was justly declared invalid.

The decree of the President of the Russian Federation of May 15, 2008 No. 797 "On urgent measures to eliminate administrative restrictions in the implementation of entrepreneurial activity" became an urgent measure to prevent this type of obstacle in the field of small and medium-sized businesses. The provisions of the Decree rightly give priority to the notification procedure for starting a business activity, in addition, it provides for a reduction in the number of permits required for its implementation. Thus, the number of formal obstacles to the implementation of entrepreneurial activity has been reduced. Significantly reduces the likelihood of abuse by state control bodies of their powers sub. "A" of clause 1 of the said Decree, which prescribes the reduction of planned control measures in respect of one legal entity or individual entrepreneur by each state control body (except for tax control) to once every three years; carrying out unscheduled control measures in relation to small and medium-sized businesses is now allowed only in order to identify violations that pose an immediate threat to the life or health of people, and only in agreement with the prosecutor of the constituent entity of the Russian Federation.

An important step in strengthening the mechanism for the implementation and protection of the rights of entrepreneurs is the adoption of the Federal Law of April 30, 2010 No. 68-FZ "On compensation for violation of the right to legal proceedings within a reasonable time or the right to execute a judicial act within a reasonable time", and accordingly Federal Law of April 30, 2010 No. 69-FZ "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law" On Compensation for Violation of the Right to Judicial Proceedings within a Reasonable Time or the Right to Enforce a Judgment within a Reasonable Time "". The aforementioned regulatory legal acts establish the right to compensation and the very procedure for compensation for violation of the right to legal proceedings within a reasonable time or the right to enforce a judicial act within a reasonable time: the grounds (conditions) for the emergence of the right to compensation, the procedure for filing an application, jurisdiction and jurisdiction over the consideration of cases, the form and the amount of compensation, execution issues judgment on the award of compensation. So, in accordance with paragraph 2 of Art. 2 of the Federal Law “On Compensation for Violation of the Right to Judicial Proceedings within a Reasonable Time or the Right to Execution of a Judicial Act within a Reasonable Time”, the amount of compensation in this category of cases depends on: a) the applicant's claims; b) the circumstances of the case in which the violation was committed; c) the duration of the violation and the significance of its consequences for the applicant; d) the principles of rationality and justice; e) the practice of the European Court of Human Rights. The award of compensation does not depend on the presence or absence of the fault of the court, other state bodies, local self-government bodies and their officials.

In addition, by the nature of the impact, obstacles are divided into illegal incentives and illegal restrictions... Privileges (illegal privileges), bribes act as such incentives, and arbitrary prohibitions, unreasonable duties and punishments are illegal restrictions.

Classification is also possible on other grounds. So, in our opinion, it is advisable to single out formal and factual obstacles.

The first can include all the imperfections (gaps, collisions, "inconsistencies" that have lost their relevance to the prescription) of the legislative framework, the formal level of the legal system.

Thus, there are no rules that clearly define the status of state corporations. In this regard, the question of ownership of property belonging to the state corporation remains unresolved. It should be borne in mind that the ownership of these public law entities is characterized by a complex structure and is temporary in nature. Therefore, as it was rightly noted, the law should contain clear indications of at what point this property right arises and ends, only in this case it can be enforced.

Much attention to the elimination of obstacles of the formal (normative and legal) order is given in the Concept for the development of civil legislation of the Russian Federation of October 7, 2009. It was the result of painstaking analytical work on the implementation of doctrinal scientific developments and generalization of a significant array of law enforcement practice, including the elimination of gaps and collisions. current legislation... The elimination of the planned and administrative regulation of property relations from the Civil Code of the Russian Federation did not lead to the formation of a stable legal order, did not ensure the proper development of civilized market relations with the participation of legal entities. According to the authors of the Concept, it is necessary to rethink the role of the state in the development of a market economy. In this regard, in the Concept, the developers paid special attention to the problems of property and the status of legal entities of various types.

First of all, it was proposed to eliminate laws of a general nature on certain types of legal entities as ineffective in practical application. In our opinion, the legislator is following the path of forming a legal mechanism to ensure the implementation of the rights of legal entities. At this stage, a system of norms on the status of a legal entity is being created, general provisions regulating their activities. The next step should be the revision of the standard charters of legal entities, in which the goals and types of their activities, as well as the ratio of these types of activities, should be clearly regulated. This mechanism should include a system of tax rules that provides for significant tax benefits for non-profit organizations conducting entrepreneurial activities, subject to the full compliance of this organization with its intended purpose, fair conduct of business and its transparency. The economic conditions and the responsibility of persons engaged in commercial activities must be subject to the principle of equality of participants in civil law relations. Inequality here is possible only in the area of taxation in relation to non-profit organizations. In this case, the interests of creditors are not affected. The measures proposed in the Concept largely contribute to the formation of such a mechanism.

Taking into account the numerous abuses in the field of activities of legal entities, caused both by the uncertainty of the organizational and legal forms and status of certain types of legal entities, and by the unsettledness of the emerging relations with their participation, measures are outlined to strengthen and increase their civil liability.

It is proposed to detail in the Civil Code of the Russian Federation all types of activities permitted to non-profit organizations. The measure is quite justified, doubts can be raised by the proposed terminology characterizing the entrepreneurial activity of non-profit organizations in areas corresponding to the profile of their main activities. It would be more expedient to call this activity not a terminological new formations ("auxiliary economic activity" or "activity that brings additional income"), but the well-established phrase "entrepreneurial activity" with a well-known explanation - "corresponding to the profile of the main activity" (clause 1.4, part III of the Concept ). This clarification is connected not with the linguistic aspects lying on the surface, but with the essential definition of the activities of non-commercial legal entities. In our opinion, it is advisable to use a unified approach to the type of activity aimed at making a profit. There is no need to complicate the norms of the Civil Code of the Russian Federation with additional provisions characterizing the criteria for activities that generate additional income or auxiliary economic. It is also fair to introduce for non-profit organizations that intend to carry out entrepreneurial activities, the obligation to form the corresponding authorized capital.

It is recommended to introduce the institution of joint and several liability of persons who make up the body of a legal entity (clause 3 of article 53 of the Civil Code of the Russian Federation), the possibility of "removing corporate covers" regardless of the occurrence of insolvency of a legal entity (article 56 of the Civil Code of the Russian Federation), liability of a legal entity for untimely and improper updating data in the Unified Register of Legal Entities. It is proposed to be included in sect. II Civil Code of the Russian Federation, rules on public joint-stock companies, provisions on the possibility and consequences of challenging illegal reorganization of legal entities, the system of norms on uncertified securities, on the pledge of rights under a bank account and deposit agreement, on "metal accounts", etc.

We can give examples of formal obstacles in entrepreneurial activity, which are contained in the provisions on certain types of obligations of the Civil Code of the Russian Federation. So, §3 Ch. 34 of the Civil Code of the Russian Federation outlined two main types of lease of vehicles that exist in practice: with the provision of management services and technical operation(with a crew) and without the provision of management and maintenance services (without a crew). On this basis, the legislator has divided §3 Ch. 34 into two subparagraphs. It should be noted that the indicated main substantive conditions that distinguish the two types of vehicle lease agreements, apparently, can be combined by the parties, based on specific practical feasibility and need. In a vehicle lease agreement with a crew, one can distinguish contracts with the terms of maintenance and contracts without maintenance (only with the provision of management services); similarly in a bareboat vehicle lease agreement - without the provision of maintenance and with the provision of services for maintenance(but without providing management services).

Undoubtedly, the selected subspecies of the considered lease agreements for vehicles with and without a crew require sufficient attention both in theory and in legislation. Their relevance for civil circulation is confirmed not only by practical examples, but also by the presence of previous legal regulation. However, in the practice of using the selected subspecies of the vehicle lease agreement by the parties, the question naturally arises: what provisions, including the Civil Code of the Russian Federation, should be followed in this case? The absence in the Civil Code of the Russian Federation of general norms calculated for any lease agreements for vehicles, and not only for its two types, leads to a certain dilemma, the need to choose between various, usually mutually exclusive and conflicting, options:

1) recognition of the existing normative legal regulation exclusively of the types of contract under consideration in the Civil Code of the Russian Federation as a gap in law in relation to its other varieties. Consequently, when concluding subtypes of a lease agreement for vehicles that are not provided for by the Civil Code of the Russian Federation, it is necessary to apply civil law regulations governing similar relations (analogy of the law);

2) the inadmissibility of using in practice other options for the lease of vehicles than those that are directly indicated in §3 of Ch. 34 of the Code. This option contradicts common principles and the meaning of civil legislation, in particular the principle of freedom of contract, and, therefore, unacceptable. "The parties can conclude an agreement, both provided for and not provided for by laws or other legal acts" (clause 2 of article 421 of the Civil Code of the Russian Federation);

3) designation in sectoral transport codes and charters of the types of vehicle lease agreements required for application in the relevant field. One of the options that are real and do not contradict the Civil Code of the Russian Federation, but are not implemented in the specified regulatory legal acts: the new Air Code of the Russian Federation, the Charter of Railway Transport of the Russian Federation and the Charter of Road Transport and Urban Land Electric Transport do not contain any rules directly regulating the lease of the corresponding vehicles ;

4) the application of general provisions on the lease. The latter option is preferable to others, since it has a legal basis. Article 625 of the Civil Code of the Russian Federation provides for the application to lease agreements of certain types of property of general provisions on lease (§ 1, Chapter 34 of the Civil Code of the Russian Federation) in the event that otherwise is not established by the rules of the Code on these agreements.

Unfortunately, a similar approach of the legislator can be traced in the provisions of the Merchant Shipping Code of the Russian Federation. The KTM RF provides for two chapters directly devoted to the lease of ships: a contract for chartering a ship for a time (time charter) and a contract for chartering a ship without a crew (bareboat charter).

The asymmetric, polarized approach of the legislator to the regulation of relations between the transfer of vehicles for temporary possession and use, expressed in clearly defined criteria for the presence or absence of a full range of management and maintenance services of the lessor, apparently limits, regulatory narrows the potential combination of the terms of the vehicle lease agreement. means and contradicts the concept of polysystemic development of civil law as a whole.

As you can see, the establishment of legislative limits for the exercise of rights, aimed at the behavior of subjects, does not exhaust all the obstacles that arise on the path of legal enforcement. Often these obstacles are joined by organizational barriers directly related to the very process of exercising rights by entrepreneurs. This type of barriers is actual obstacles... This will include deficiencies in law enforcement, illegal actions (inaction) of citizens and state bodies, a conflict of legitimate interests of the parties, etc., as well as problems of material support for a particular type of activity, in particular, economic insecurity in the execution of acts of judicial and other bodies: lack of debtors of monetary funds and property, which can be foreclosed, or they have only illiquid property.

The most common obstacles are of an organizational nature - violation of legal procedures. They manifest themselves at the stage of legal relations, when the right arose, but the obligation corresponding to this right is not performed or is performed in an inappropriate form. For example, the recoverer organization filed a claim with the arbitration court against the buyer and a specialized organization - the seller of the property for invalidating the public auction for the sale of the real estate object. The court satisfied the claim on the following grounds. The procedure for holding public auctions in the process of enforcement proceedings in this case is governed by Art. 447, 448 of the Civil Code of the Russian Federation. According to paragraph 2 of Art. 448 of the Civil Code of the Russian Federation, the notification must contain information about the time, place and form of the auction, their subject and procedure, including the registration of participation in the auction, the identification of the person who won the auction, as well as information about the initial price. As follows from the materials of the case, the content of the published notice did not meet the requirements of the aforementioned norm of the law, since it did not contain information about the form of the auction and the procedure for registering participation in them.

Violation of these requirements for the bidding procedure is a circumstance sufficient to invalidate the bidding at the claim of the claimant interested in the proper conduct of the public bidding to ensure the competition of buyers and to obtain the highest price for the property being sold. The absence of such information in the information on bidding deprives potential buyers the opportunity to take part in the auction, preventing the realization of the goal of putting the property up for public sale.

Another example. The joint-stock company (the debtor in the enforcement proceedings) applied to the arbitration court with a claim against the organizer of the auction and the organization that won the auction for invalidating the public auction for the sale of the plaintiff's real estate. The court satisfied the claim on the following grounds. The tender was announced by radio. Meanwhile, all the necessary information (a list of real estate objects, their characteristics, data on the initial price, place, time and rules of the auction) - significant in volume, difficult to understand by ear - required a different way of communicating to potential bidders, namely by publishing her in print.

The notice of the bidding is aimed at attracting the greatest number interested parties in order to identify the best offer on the terms of sale (highest price). In the local periodicals, special information publications that publish information on the sale of real estate, announcements of the auction were not published. Information about the ongoing auction in violation of Art. 448 of the Civil Code of the Russian Federation turned out to be practically inaccessible to persons potentially interested in the acquisition of the property being sold. The court found that these actions did not meet the requirements of the law and significantly violated the interests of the applicant.

In another case, the court recognized as an inappropriate way of communicating information about the auction the notification, once broadcast on the local television channel, stating that in this case the possibility of unambiguous perception and unhindered recording of information by potential participants in the auction is not provided. These circumstances negatively affect the attraction of attention to the auction from potential buyers.

The above examples allow us to conclude that: 1) the requirement for the unhindered exercise of rights applies not only to the owner of the right, but also to all participants in the legal relationship; 2) an effective and adequate set of consistent measures must be directed to overcome obstacles.

Thus, the essence of the problem lies not in the foundations of classifications, but in the development of effective measures to remove obstacles at all levels of the legal and social system as a whole.

Thus, it can be stated that the most productive changes in domestic legislation are associated with consistent, systemic measures to form mechanisms for exercising the rights of entrepreneurs (real, obligatory, corporate). When the system of norms regulates the verified sequence of actions leading the subject to the actual receipt of the good. This is the task of any developed legal order, associated with colossal intellectual, material, time costs. And if legislative framework, proclaiming broad civil rights and their protection, can be created relatively quickly, referring to the accumulated domestic, foreign and international legal material, then the elements of the mechanism for the implementation of civil rights and the fulfillment of duties can be formed only for a rather long period of painstaking work: scientific, law-making, educational , law enforcement, organizational.

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Currently, these relations are governed by the provisions of paragraph 8 of Art. 27 of the Land Code of the Russian Federation.

The right to carry out entrepreneurial activity is realized in a generally permissible regime on the basis of the principle: everything that is not prohibited by law is allowed.

Prohibitions are formulated directly in the Constitution of the Russian Federation (by virtue of Part 2 of Article 34 of the Constitution, economic activity aimed at monopolization and unfair competition is not allowed) and in other laws. At the same time, the principle of Art. 55 of the Constitution of the Russian Federation: human and civil rights and freedoms can be limited by federal law only to the extent necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the country's defense and state security.

Prohibitions and restrictions for entrepreneurs in order to protect the public interests of the state and society are established by presenting requirements to them * (152).

Prohibitions can be:

1) absolute (entrepreneurial activity is impossible, since it is prohibited by law) and relative (restrictions). In the latter case, it is forbidden to engage in entrepreneurial activity without special permission, state registration, but registration, obtaining a license by any entity that meets the established requirements (for example, licensing requirements and conditions) make it legitimate

An absolute prohibition is, for example, the prohibition of activities aimed at unfair competition (part 2 of article 34 of the Constitution of the Russian Federation), to restrict competition, abuse of a dominant position in the market is prohibited (paragraph 2 of article 10 of the Civil Code of the Russian Federation). In the presence of such prohibitions, the bodies of state executive power do not have the right to authorize such activities, but, on the contrary, are obliged to suppress it.

The right to carry out foreign trade activities may be limited by granting the exclusive right to export and (or) import certain types of goods. Lists of such goods, as well as organizations that have exclusive rights to export and (or) import them, are established by federal laws. For all other business entities that are not granted exclusive rights, there is an absolute prohibition on the export and (or) import of the relevant goods.

A person with the exclusive right to export (import) certain goods acts on the basis of a license. Transactions made without a license to exercise the exclusive right to export and (or) import certain types of goods are null and void (Article 26 of the Federal Law of December 8, 2003 N 164-FZ "On the Basics of State Regulation of Foreign Trade Activity").

Most of the prohibitions in business law are designed as restrictions: you cannot engage in entrepreneurial activity without registration, license, or other permission, but you can, having received the appropriate permission.

Let's also highlight:

Prohibitions on combining various types of activities. For example, the implementation of activities on maintaining the register does not allow its combination with other types of professional activities in the securities market (Article 10 of the Federal Law of April 22, 1996 N 39-FZ "On the Securities Market" * (153)). The types of activities combined with the activities of the stock exchange are indicated in Art. 11 of this Law);

Prohibitions for individual entrepreneurs. Such prohibitions follow from an analysis of the norms that provide for the relevant activities that can only be carried out by legal entities. For example, a credit bureau can only be a commercial organization (clause 6 of article 3 of the Federal Law of December 30, 2004 N 218-ФЗ "On credit histories" * (154)). A stock exchange can only be a legal entity in the form of a non-commercial partnership or a joint stock company (clause 2, article 11 of the Law on the Securities Market);

A ban on combining entrepreneurial and state-power activities (Clause 3, Article 7 of the RSFSR Law "On Competition and Restriction of Monopolistic Activity in Commodity Markets").

2) established by law (for example, you cannot sell goods without a certificate of conformity or a duly registered declaration of conformity of goods with safety requirements provided for by technical regulations) and (or) constituent documents. For example, the founders of a business partnership, society may provide in the constituent documents the possibility of these organizations to engage in strictly defined types of entrepreneurial activity. Consequently, until changes are made to the memorandum of association, the partnership shall only conclude those transactions, engage in those activities that correspond to the instructions in this regard contained in the memorandum of association. All other activities for the partnership are limited by him himself;

3) established in the process of law enforcement by the executive authority (for example, the suspension of a license by the federal executive authority in the field of communications means for an entrepreneur a prohibition to engage in a licensed type of activity for the period of suspension of the license (up to 6 months) or by a court decision.

In connection with the adoption of the Federal Law of May 9, 2005 N 45-FZ "On Amendments to the Code of the Russian Federation on Administrative Offenses and Other Legislative Acts of the Russian Federation, as well as on recognizing as invalid some provisions of legislative acts of the Russian Federation" * (155) changes were made in more than 20 laws, which provided for the possibility of suspending the activities of entrepreneurs on the basis of an act of non-normative nature (prescription). A new measure of responsibility has been introduced into the Code of Administrative Offenses of the Russian Federation - administrative suspension of activities.

Cases of administrative offenses entailing the suspension of activities are considered by judges of district courts. An administrative suspension of activities is imposed by a judge for up to 90 days.

By a court decision, the following may be suspended:

Business activity in whole or in part. For example, a violation by a legal entity of the rules for the circulation of substances, tools or equipment used for the manufacture of narcotic drugs or psychotropic substances entails either the imposition of a fine with or without confiscation of substances, tools or equipment, or administrative suspension of activities with or without confiscation of this property. In this case, the aim is to suppress the entire chain of illegal activities: production, processing, manufacture, sale, sale, distribution, transportation, transfer, storage, acquisition, use, import, export or destruction of substances, tools, equipment used for the manufacture of narcotic drugs or psychotropic drugs. substances.

Partially, the entrepreneurial activity of a legal entity is suspended, for example, when the activities of branches and other structural divisions of a legal entity are temporarily suspended;

Operation of individual objects (units, buildings, structures).

It also provides for the suspension of the activities of non-profit organizations (for example, educational institutions) in the presence of a corresponding offense.

The right to carry out entrepreneurial activity, being based on the Constitution of the Russian Federation (Articles 8, 34), has constitutional guarantees:

Political. All are equal before the law (Article 19 of the Constitution of the Russian Federation) regardless of beliefs, membership in public associations (for example, political parties). The division of powers (article 10 of the Constitution) into legislative, executive and judicial is designed to guarantee competent regulation of public relations, judicial control over the activities of executive bodies. Unfortunately, it should be noted that the high level of corruption in the executive authorities, including in the process of their control over entrepreneurial activity, testifies to the lack of control over the activities of the executive authorities themselves and their officials;

Economic. Entrepreneurs can operate on the basis of various forms of ownership, each of which is recognized and protected in the same way (part 2 of article 8 of the Constitution of the Russian Federation). The unity of the economic space, freedom of economic activity, support for competition are guaranteed;

Legal. Everyone is guaranteed the protection of his rights and freedoms, the presumption of innocence of a person brought to criminal responsibility is in effect. Decisions and actions (or inaction) of public authorities, local governments, officials can be appealed in court (Articles 46, 49 of the Constitution of the Russian Federation).

A lot of commercial transactions are carried out every day. Providing paid services or making things for a fee at the request of friends is not uncommon for many.

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If this transaction is of a one-time nature, then this is a personal matter of one or several people. But with regular commitments similar actions a commercial scale is acquired and in this case the illegal entrepreneur faces liability.

What is illegal business activity?

Activities prohibited by law. This concept is closely related to licensing. Types of income that may cause harm to human health, rights, laws or state security are considered prohibited. They can only be regulated by licensing.
Business that is not registered in accordance with the procedure established by the state. Not uncommon in modern world when an individual is engaged in entrepreneurial activity, but at the same time is not registered as a private entrepreneur. This is illegal, threatens the emergence of a number legal implications... This includes the resale of things and jewelry, as well as manicure, eyelash extensions, haircuts at home.
Lack of a license when performing licensed activities. When economic activity is carried out without a license, but is subject to licensing, or the conditions of this process are violated for officials, business entities, administrative responsibility is provided for under the Criminal Code.
The work of the company in violation of the statutory provisions (in violation of the registration rules). Entrepreneurial activity that is carried out in violation of the registration rules is illegal, therefore, deliberately false data are provided to specialized bodies.

Which government agencies are responsible for this?

Tax office

Tax inspectors often carry out raid inspections in order to identify persons who carry out entrepreneurial activities without registration or evade taxes. Trade pavilions, retail trade in alcoholic beverages are checked, as well as cash settlements with customers, identifying compliance with legal requirements.

Antimonopoly Committee

The implementation of state control over the observance of antimonopoly legislation is the basic function of the authorities; they consider cases of violations of various types. There is the Antimonopoly Committee, which is guided by its own procedural code. Thanks to this regulation, the procedure for considering cases of violation of the law has been determined.

Consumer market supervisors

The body that prevails in this direction is Rospotrebnadzor. Its functions include the protection of consumer rights. This body has the authority to bring to administrative responsibility. Mainly violations in the sphere of trade are revealed. Offenders and law enforcement agencies are directly linked through this system.

Police

It is a law enforcement agency, the main occupation of which is the detection of an offense, it is also here that applications from citizens are accepted, and cases are initiated on the fact of activities that do not comply with the laws.

Prosecutor's office

Similar in scope to the police, but supervises it. The body is a representative of the state, detects crimes and can even bring to criminal responsibility. The prosecutor's office directly represents those who have applied to the court for considering the unlawful activity of legal entities and entrepreneurs.

Types of income that do not require state registration

Individuals can engage in certain types of work in which there is no mandatory registration as an individual entrepreneur. But nevertheless, it is envisaged to pay certain taxes, namely, the existence of a single tax has not been canceled.

Also, income tax is paid, this is a fixed amount. But it is strictly forbidden to attract other individuals under a labor or civil law contract.

Tutoring, homeschooling

According to the civil code, tutoring is not an entrepreneurial activity, the tax code allows an individual to conduct tutoring on his own. There is no need to register here as an individual entrepreneur. It is not required to register individual entrepreneurship.

Cleaning of living quarters

Cleaning, washing, ironing bed linen is also possible without registering with government agencies. This includes both the territory of private houses and apartments.

Daycare for children

You can take care of children, as well as for the elderly, without hindrance during the day.

Some agricultural services

These services include the cultivation of agricultural products, grain crushing services, and cattle grazing. The presence of a written notice that the person is engaged in one of the the listed types activities in the relevant authority at the place of registration, will make it possible to carry out actions without hindrance. As a single tax, a monthly fee is charged for each employee.

Responsibility in 2017

The current legislation of 2017 prohibits entrepreneurship for the purpose of enrichment without registration with the tax authority at the place of residence.

Systematic profit from any activity is called entrepreneurial activity.

For each type of commerce, registration of an individual entrepreneur is required, taxes and fees are also constantly paid. Timely reporting is essential.

If it is illegal to act, then administrative liability or criminal liability is possible. Fines and initiation of criminal cases will not be to anyone's taste.

According to the degree of responsibility, the components are also classified depending on the option of entrepreneurship. What matters here is the amount of turnover and terms of business.

The onset of Criminal liability occurs in the actions of entrepreneurs that cause enormous damage to citizens, firms or the state, as well as in the extraction of income in excess of 1 million 500 thousand rubles.

Administrative (Code of Administrative Offenses)

The remaining cases involve administrative liability. These are all kinds of fines. There are various articles, depending on which the amount of the fine varies, and it can also be mandatory work. An entrepreneur can be arrested for up to 6 months.

There are two options for the development of events when reselling an expensive product, for example, a plot. Thus, the singularity makes it possible to exclude this commercial operation from entrepreneurial activity, but the receipt of large income belongs to illegal entrepreneurship.

Tax (Tax Code)

The Tax Code has two articles to address this issue. You will also have to pay a fine in connection with evading registration with the inspection. The amount of the fine is 10% of the income received, but it cannot be less than 40 thousand rubles. Periodically, inspectors charge additional taxes based on the calculations; they also pay penalties and fines for the fact that taxes were not paid on time.

Administrative liability and fines

Violation of licensing rules. In connection with the type of offense, the guilty person is assigned a certain sanction for violating the licensing rules. Certain conditions apply in order to bring the perpetrator to justice. A certain rule of law must exist, all grounds must be present for the application of responsibility to a person.
Lack of license. When an individual entrepreneur operates without a license, its owners will be punished. As a rule, the penalty is a fine. Sometimes people involved in activities with no license are confiscated. The organization's activities can be suspended for 3 months.
Work without registration. If we talk about work and fines in the absence of registration. The amount of the fine for such an employee varies from 500 rubles to 2000 thousand rubles.

Criminal liability and possible penalties

Provided in the case of systematic recorded activities of illegal entrepreneurial activity. With a systematic violation of the rules, the activity is illegal. You must pay a fine for this. Administrative liability is envisaged.

Occasions:

In the case of receiving income from illegal commercial occupation on an especially large scale. If damage is caused to the state, and an income of more than 1.5 million is obtained during inspections, then the head is responsible for illegal activities. Only citizens who work in the organization and have concluded an employment contract with it are not attracted.
When causing significant damage to citizens of the Russian Federation in the course of illegal business activities, organizations and state interests. If there is an injured party in illegal activities, it must file an individual entrepreneurship or legal entity in court. There is a possibility of receiving compensation for losses and receiving money for moral damage. The magistrate is considering the claim.

Tax liability and penalties

An entrepreneur not registered with the Federal Tax Service. There is an article in the code according to which tax fines are paid. Today, this is the only type of sanctions. A taxpayer can only incur tax liability through fines
Conducting commercial activities without registration for 90 days or more. For doing business without registration for more than 90 days, you must pay 20% of the total profit, but this amount should not be less than 40 thousand rubles.
Penalty for late registration of entrepreneurship with the Federal Tax Service. To date, there are no fines for this parameter, therefore, no fines are levied on entrepreneurs for this act.

How to protect yourself?

How to protect yourself from illegal business activities? This question is asked by every consumer. Banks, joint-stock companies promise to pay a rather large percentage, due to inflation, citizens are investing money here. But the failure of promises is frightening.

The insolvency of organizations is quite common, and the termination of the existence of organizations entails many problems. Criminal cases are being initiated. It is necessary to compensate for the damage to citizens who suffer from dishonest and criminal entrepreneurship.

Since the damage sometimes amounts to huge sums and many of the victims are low-income strata of society, the problem takes on a special social meaning, provokes violent protests, reproaches to the state authorities for their inability to protect the rights and legitimate interests of citizens. The problem is becoming economic.

The right to carry out entrepreneurial activity is realized in a generally permissible regime on the basis of the principle: everything that is not prohibited by law is allowed.
Prohibitions are formulated directly in the Constitution of the Russian Federation (by virtue of Part 2 of Article 34 of the Constitution, economic activity aimed at monopolization and unfair competition is not allowed) and in other laws. At the same time, the principle of Art. 55 of the Constitution of the Russian Federation: human and civil rights and freedoms can be limited by federal law only to the extent necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the country's defense and state security.
Prohibitions and restrictions for entrepreneurs in order to protect the public interests of the state and society are established by presenting requirements to them- * (source No. 152).
Prohibitions can be:
1) absolute (entrepreneurial activity is impossible, since it is prohibited by law) and relative (restrictions). In the latter case, it is forbidden to engage in entrepreneurial activity without special permission, state registration, but registration, obtaining a license by any entity that meets the established requirements (for example, licensing requirements and conditions) make it legitimate
An absolute prohibition is, for example, the prohibition of activities aimed at unfair competition (part 2 of article 34 of the Constitution of the Russian Federation), to restrict competition, abuse of a dominant position in the market is prohibited (paragraph 2 of article 10 of the Civil Code of the Russian Federation). In the presence of such prohibitions, the bodies of state executive power do not have the right to authorize such activities, but, on the contrary, are obliged to suppress it.
The right to carry out foreign trade activities may be limited by granting the exclusive right to export and (or) import certain types of goods. Lists of such goods, as well as organizations that have exclusive rights to export and (or) import them, are established by federal laws. For all other business entities that are not granted exclusive rights, there is an absolute prohibition on the export and (or) import of the relevant goods.
A person with the exclusive right to export (import) certain goods acts on the basis of a license. Transactions made without a license to exercise the exclusive right to export and (or) import certain types of goods are null and void (Article 26 of the Federal Law of December 8, 2003 N 164-FZ "On the Basics of State Regulation of Foreign Trade Activity").
Most of the prohibitions in business law are designed as restrictions: you cannot engage in entrepreneurial activity without registration, license, or other permission, but you can, having received the appropriate permission.
Let's also highlight:
- bans on combining various types of activities. For example, the implementation of activities on maintaining the register does not allow its combination with other types of professional activities in the securities market (Article 10 of the Federal Law of April 22, 1996 N 39-FZ "On the Securities Market" - * (source No. 153)) ... The types of activities combined with the activities of the stock exchange are indicated in Art. 11 of this Law);
- prohibitions established for individual entrepreneurs. Such prohibitions follow from an analysis of the norms that provide for the relevant activities that can only be carried out by legal entities. For example, a credit history bureau can only be a commercial organization (clause 6 of article 3 of the Federal Law of December 30, 2004 N 218-FZ "On credit histories" - * (source number 154)). A stock exchange can only be a legal entity in the form of a non-commercial partnership or a joint stock company (clause 2, article 11 of the Law on the Securities Market);
- a ban on combining entrepreneurial and state-power activities (Clause 3, Article 7 of the RSFSR Law "On Competition and Restriction of Monopolistic Activity in Commodity Markets").
2) established by law (for example, you cannot sell goods without a certificate of conformity or a duly registered declaration of conformity of goods with safety requirements provided for by technical regulations) and (or) constituent documents. For example, the founders of a business partnership, society may provide in the constituent documents the possibility of these organizations to engage in strictly defined types of entrepreneurial activity. Consequently, until changes are made to the memorandum of association, the partnership shall only conclude those transactions, engage in those activities that correspond to the instructions in this regard contained in the memorandum of association. All other activities for the partnership are limited by him himself;
3) established in the process of law enforcement by the executive authority (for example, the suspension of a license by the federal executive authority in the field of communications means for an entrepreneur a prohibition to engage in a licensed type of activity for the period of suspension of the license (up to 6 months) or by a court decision.
In connection with the adoption of the Federal Law of May 9, 2005 N 45-FZ "On Amendments to the Code of the Russian Federation on Administrative Offenses and Other Legislative Acts of the Russian Federation, as well as on invalidating some provisions of legislative acts of the Russian Federation" - * (source No. 155 ) amendments were made to more than 20 laws, which provided for the possibility of suspending the activities of entrepreneurs on the basis of an act of non-normative nature (prescription). A new measure of responsibility has been introduced into the Code of Administrative Offenses of the Russian Federation - administrative suspension of activities.
Administrative suspension of activities consists in the temporary cessation of activities in the event of a threat to the life or health of people, the occurrence of an epidemic, the onset of a radiation accident or a man-made disaster, causing significant harm to the state or quality of the environment, etc.
Cases of administrative offenses entailing the suspension of activities are considered by judges of district courts. An administrative suspension of activities is imposed by a judge for up to 90 days.
By a court decision, the following may be suspended:
- entrepreneurial activity in whole or in part. For example, a violation by a legal entity of the rules for the circulation of substances, tools or equipment used for the manufacture of narcotic drugs or psychotropic substances entails either the imposition of a fine with or without confiscation of substances, tools or equipment, or administrative suspension of activities with or without confiscation of this property. In this case, the aim is to suppress the entire chain of illegal activities: production, processing, manufacture, sale, sale, distribution, transportation, transfer, storage, acquisition, use, import, export or destruction of substances, tools, equipment used for the manufacture of narcotic drugs or psychotropic drugs. substances.
Partially, the entrepreneurial activity of a legal entity is suspended, for example, when the activities of branches and other structural divisions of a legal entity are temporarily suspended;
- operation of individual objects (units, buildings, structures).
It also provides for the suspension of the activities of non-profit organizations (for example, educational institutions) in the presence of a corresponding offense.
The right to carry out entrepreneurial activity, being based on the Constitution of the Russian Federation (Articles 8, 34), has constitutional guarantees:
- political. All are equal before the law (Article 19 of the Constitution of the Russian Federation), regardless of beliefs, membership in public associations (for example, political parties). The division of powers (article 10 of the Constitution) into legislative, executive and judicial is designed to guarantee competent regulation of public relations, judicial control over the activities of executive bodies. Unfortunately, it is important to say that the high level of corruption in the executive authorities, including in the process of their control over entrepreneurial activity, testifies to the lack of control over the activities of the executive authorities themselves and their officials;
- economic. Entrepreneurs can operate on the basis of various forms of ownership, each of which is recognized and protected in the same way (part 2 of article 8 of the Constitution of the Russian Federation). The unity of the economic space, freedom of economic activity, support for competition are guaranteed;
- legal. Everyone is guaranteed the protection of his rights and freedoms, the presumption of innocence of a person brought to criminal responsibility is in effect. Decisions and actions (or inaction) of public authorities, local governments, officials can be appealed in court (Articles 46, 49 of the Constitution of the Russian Federation).

Lecture, abstract. 3.4. Prohibitions and restrictions on the right to engage in entrepreneurial activity - concept and types. Classification, essence and features.

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