The legal definition of entrepreneurial activity is given in Art. 2 of the Civil Code of the Russian Federation.

Entrepreneurial is an independent activity carried out at one's own risk, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law.
Analysis of this definition allows us to identify the following features of entrepreneurial activity.
1. Entrepreneurial activity is characterized independence.
It is conditionally possible to single out the property and organizational independence of the entrepreneur. Property independence is determined by the fact that the entrepreneur has a separate property of his own as the economic base of activity. The volume of property independence depends on the legal title on the basis of which this property belongs to the subject. The greatest autonomy of the owner of the property. Enterprises operating on the right of economic management also have significant property independence, but already limited by law and an agreement with the owner. And finally, ownership of property on the right of operational management gives the least scope for the manifestation of entrepreneurial initiative.
Organizational independence is the ability to make independent decisions in the process of entrepreneurial activity, starting from making a decision to engage in such an activity, choosing its type, organizational and legal form of implementation, the circle of founders, etc. The independence of the entrepreneur is also manifested at the stage of implementation of the results of entrepreneurial activity. Thus, independence, being a strong-willed, subjective sign of the activity of an entrepreneur, manifests itself at all its stages. The entrepreneur acts by his own power and in his own interest, by his actions realizing the rights granted to him by the legislation. Therefore, the legal relationship that develops when an entrepreneur carries out his activities is qualified in the science of business law as absolute - * (source No. 22).
However, entrepreneurial autonomy is not unlimited. Being a social activity, it must obey the social norms that operate in society. Among these norms, legal norms play a leading role, establishing the rules that an entrepreneur should follow in his activities when entering the market.
It is important to say that the sign of independence distinguishes entrepreneurial activity from labor. Having concluded an employment contract, the employee must comply with the internal labor regulations, fulfill the duties assigned to him, and observe labor discipline. The manifestation of initiative in the implementation of labor activity is also possible, but it is obvious that its volume is not comparable with the independence of the entrepreneur.
2. Entrepreneurship involves risk. The risky nature of entrepreneurship fundamentally distinguishes it from the economic activity of the period of the administrative-planned economy, which allowed the existence of obviously unprofitable enterprises, which, in case of poor economic results, could turn to the state for support. In this regard, it is quite understandable that such a purely market institution as the institution of insolvency (bankruptcy) is reborn in our country only with the transition to the market.
Entrepreneurial risk is a powerful incentive for successful work; loss reduction can be achieved by concluding a business risk insurance contract, i.e. the risk of losses from entrepreneurial activities due to violation of their obligations by counterparties or changes in the conditions of this activity due to circumstances beyond the control of the entrepreneur, including the risk of not receiving expected income.
It should be noted that the category of risk has traditionally been the subject of research by economists. Thus, the French economist R. Catillon, who is considered the father of the term "entrepreneur", was one of the first to put forward the concept of risk as a distinctive feature of entrepreneurial activity. A. Smith in his "Research on the Nature and Causes of the Wealth of Nations" characterized the entrepreneur as the owner of capital, taking on the risk of managing. Entrepreneurial profit, according to Smith, is the owner's compensation for risk. The authors of the well-known textbook "Economics" - * (source No. 23) K. McConnell and S. Brew considered entrepreneurship as a special type of activity, which is based on a number of features, among which are the characteristics of an entrepreneur as a person taking risks. An entrepreneur risks not only time, labor, business reputation, but also the invested funds - his own and his partners or shareholders.
In the legal literature, the category of risk is also of great interest; attempts have been repeatedly made to formulate a definition of this concept - * (source No. 24). Not being able to present the entire palette of definitions, we present one of them, proposed by V.S. Belykh, who understands entrepreneurial risk as "the potential possibility (danger) of the occurrence or non-occurrence of an event (a set of events) that entailed adverse property consequences for the entrepreneur's activities" - * (source No. 25).
3. Entrepreneurial activity is aimed at systematic profit. Making a profit, being the main goal of an entrepreneur, gives his activity a commercial character, which is not lost even if the result is not a profit, but a loss. At the same time, if making a profit as a goal is not set initially, the activity cannot be called entrepreneurial, it is not of a commercial nature.
Researchers paid attention to making a profit as the goal of an entrepreneur's activity centuries ago. Thus, the French economist J.B. This, a contemporary of D. Ricardo, defined the entrepreneur as an economic agent that combines factors of production, moves economic resources from the area of ​​low productivity and low incomes to the area of ​​high productivity and profitability - * (source No. 26). R. Catillon identified an incentive motive for entrepreneurial activity - obtaining a higher income as a payment for bearing risk. Consonant with R. Catillon, the statement of A.I. Kaminki, who noted that profit is only an incentive for commercial activity. The purpose of commercial activity is this activity itself, activity that brings profit - * (source No. 27).
From a legal point of view, the concept of "profit" is defined in accounting and tax legislation as the final financial result of the activity of an economic entity. So, in accordance with Art. 247 of the Tax Code of the Russian Federation, income for Russian organizations is recognized as income received, reduced by the amount of expenses incurred, determined in accordance with Art. 247 of the Tax Code of the Russian Federation. At the same time, economic benefit in cash or in kind is recognized as income, taken into account if it is possible to assess it and to the extent that such benefit can be assessed, and determined in accordance with the provisions of the Tax Code of the Russian Federation (Article 41 of the Tax Code of the Russian Federation). Reasonable and documented expenses (and in the cases provided for in Article 265 of the Tax Code of the Russian Federation, losses) incurred (incurred) by the taxpayer (Article 252 of the Tax Code of the Russian Federation) are recognized as expenses. Thus, without setting ourselves the task of a detailed consideration of the issue of the procedure for generating profits, we note that this procedure is defined quite accurately by law. The state tax control is exercised over the reliability of the formation of the financial result of the activities of entrepreneurs. In addition, entrepreneurs can, and in some cases are required to use the services of auditors to confirm the reliability of their financial (accounting) reporting. It is safe to say that the interest in the correct formation of entrepreneurial profits is of a private-public nature.
It should be noted that the purpose of making a profit is the basis for distinguishing organizations into commercial and non-commercial in Art. 50 of the Civil Code of the Russian Federation.
It is impossible not to pay attention to such a qualifying sign of entrepreneurial activity as a systematic approach to making profit.
Unfortunately, clear quantitative criteria for systematicity have not yet been developed by law. It is proposed to fill the legislative gap by including additional qualifying features in the definition of entrepreneurial activity, such as the share of profit from this activity in the total income of a person, the "materiality" of profit, receiving it a certain number of times in a particular reporting period, etc.
It seems that arithmetic categories cannot be applied in this case. It is important that the entrepreneur sets himself the goal of not making a one-time profit, but extracting it as a trade, on an ongoing basis.
Of course, systematic profit cannot be considered as the only goal of entrepreneurial activity. At the same time, the construction proposed in the literature seems to be purely theoretical, which allows the entry into the market of an entrepreneur who does not set himself a strategic goal of making profit as a result of his activities.
4. In accordance with the legal definition of entrepreneurial activity, profit is derived by entities from the use of property, the sale of goods, the performance of work or the provision of services.
This feature seems to be poorly worded. The fact is that entrepreneurial activity is multifaceted and in a market economy its directions cannot be represented by a closed list. Why, for example, is it necessary to talk only about the right to use in relation to property? And if the subject makes a profit in the process of exercising the right to dispose of property? Apparently, it did not make sense to enumerate the possible areas of entrepreneurial activity in the law, since they are determined primarily by the market. It should be noted that in the concept of entrepreneurial activity, which was given in the Law of the RSFSR of December 25, 1990 N 445-I "On enterprises and entrepreneurial activity" - * (source No. 28), this list was absent. This approach seems to be more correct.
5. Finally, as stated in Art. 2 of the Civil Code of the Russian Federation, entrepreneurial activity is carried out by persons registered in this capacity in the manner prescribed by law. A literal interpretation of the legislative norm leads to the conclusion that if the activity is carried out by unregistered persons, it is not entrepreneurial. This conclusion appears to be incorrect. Indeed, how, in such a case, to apply Art. 171 "Illegal entrepreneurship" of the Criminal Code of the Russian Federation, art. 14.1 "Carrying out entrepreneurial activities without state registration or without a special permit (license)" of the Code of Administrative Offenses of the Russian Federation, how to recover in court the income received from such activities to the budget? The imperfection of legal technique leads to the need to use other ways of interpreting this norm: systematic, logical. Such a sign of entrepreneurial activity as its implementation by duly registered persons is a formal sign, i.e. a sign that legalizes this activity, giving it a legal status. Its absence does not lead to the loss of entrepreneurial quality, but makes it illegal. Unlike the analyzed formal feature, the previously considered features of entrepreneurial activity are essential (revealing its essence), and only their totality makes it possible to qualify a person's activity as entrepreneurial. Some researchers of the concept of entrepreneurial activity propose to interpret the obligation of state registration not only as a sign, but also as a condition for proper entrepreneurship, a requirement for the implementation of legal entrepreneurial activity. It seems that such an interpretation of the need for state legitimization of an entrepreneur is appropriate.
It is important to say that in the scientific and educational literature it is proposed to consider other signs of entrepreneurial activity that are not presented in the legislative definition. Let's pay attention to some of them.
Sign of business professionalism. As a sign of entrepreneurial activity, professionalism proposes to single out, in particular, O.M. Oleinik. Expanding the concept of professionalism of an entrepreneur, the author writes that this feature "consists of:
- the conduct of this activity by people who have certain qualifications or information necessary for making and implementing decisions ... As a confirmation of professionalism, the current legislation in some cases recognizes previously received education (for example, legal, economic, medical), and in others requires the entrepreneur to pass relevant examinations (for example, for auditors);
- carrying out entrepreneurial activities according to certain rules and methods...;
- conformity of results of activity to certain requirements...;
- controllability of activities by state bodies...;
- the presence of state guarantees of activity ... "- * (source No. 29).
Without disputing the desirability of the presence of all the above components of professionalism and professionalism as such in the activities of an entrepreneur, confirming the presence of professionalism as a condition for successful, competitive activity, we note that in practice entrepreneurial activity is not always carried out professionally. However, this does not deprive the activity of qualification as entrepreneurial. This feature appears to be necessary only for some activities. For example, as licensing requirements and conditions, the availability of special knowledge, experience, education, which is confirmed by the necessary documents, is provided for most licensed activities. For many other types of entrepreneurial activity, professionalism is not put forward as a mandatory characteristic. Therefore, it seems more accurate to consider the sign of professionalism of entrepreneurial activity not as a mandatory, but as an optional feature.
Among the optional features of entrepreneurial activity, one should also consider its innovative, innovative nature. The creator of the theory of the entrepreneur-innovator is the economist J. Schumpeter, who considered the entrepreneur as "an agent that implements more and more combinations of factors of production (by updating commercial products, searching for new markets, etc.)" - * (source No. 30) . J. Schumpeter formulated the following functions of entrepreneurial activity:
- production of a new material good, still unfamiliar to the consumer, or the former good, but with a new quality;
- the introduction of new production methods that were not used in it before;
- development of new economic markets or wide and deep use of the former ones;
- development of new sources and types of raw materials;
- Implementation of a new organization of production and marketing. It is impossible not to notice that the signs put forward by J. Schumpeter are currently reflected in the emerging legislation on innovation activity.
Among the signs of entrepreneurial activity, the RSFSR Law of December 25, 1990 N 445-I "On Enterprises and Entrepreneurial Activity" pointed to the property liability of the entrepreneur. In the modern legal definition, this feature has not been fixed. At the same time, as rightly noted in the literature, this "does not mean the absence of legal responsibility itself" - this feature is inherent in entrepreneurial activity. The basis and procedure for bringing to responsibility of business entities are determined by the current legislation. Moreover, art. 401 of the Civil Code of the Russian Federation, defining the grounds for liability for violations of obligations, provides for increased liability of the entrepreneur: "Unless otherwise provided by law or contract, a person who has not fulfilled or improperly fulfilled an obligation in the course of entrepreneurial activity shall be liable, unless he proves that proper fulfillment turned out to be impossible due to force majeure, i.e. extraordinary and unavoidable circumstances under the given conditions. Such circumstances do not include, in particular, a breach of obligations on the part of the debtor's counterparties, the absence on the market of the goods necessary for execution, the debtor's lack of the necessary funds."
Having considered the signs of entrepreneurial activity, it is possible to classify them. It seems that all signs of entrepreneurial activity can be classified:
- to those specified in the legislative definition of entrepreneurial activity (legal) and additionally offered in the literature;
- essential, characterizing the essence of entrepreneurial activity, and formal, characterizing its form;
- mandatory, the totality of which is necessary and sufficient to qualify the activity as a legitimate business, and optional, the presence of which is desirable, but not mandatory.
In addition, in the scientific literature, among the signs of entrepreneurial activity, there are generic ones inherent in any economic activity (independence, risk) and specific (systematic profit making). The advancement of generic and specific characteristics leads us to the need to determine the relationship between entrepreneurial activity and such types of social activity as economic, economic, commercial (trading). The concept of "economic activity" seems to be the broadest. Economic activity can be defined as a reproductive activity that combines such stages as production, distribution, exchange, consumption.
Economic activity, being a type of economic activity, is defined as the procedure for its organization, management and direct implementation.
The concept of entrepreneurial activity was discussed earlier. Note that entrepreneurial activity is a kind of economic economic activity, having such a generic feature as a focus on making a profit. As V.K. Mamutov, the concept of economic activity includes entrepreneurship, but is not limited to it - * (source No. 34).
Commercial, or trading, activity is a set of actions to promote goods from manufacturers to consumers. Commercial activity is a kind of economic economic entrepreneurial activity - * (source No. 35).

When does the moment come after which working for yourself without registration becomes dangerous?
In general, strictly speaking, a citizen has the right to engage in entrepreneurship only after state registration. Such a requirement is established by Russian legislation (Article 23 of the Civil Code of the Russian Federation).

Note. Own business is great, but own business without registration is already a time bomb. Even if you really don’t want to pay taxes, you will have to go through the registration procedure: otherwise, receiving even the income itself will be regarded as. And then - trouble in the form of responsibility. Administrative, tax and even criminal.

In relation to the activities of citizens entrepreneurial activities will be considered:
- carried out independently;
- which is carried out at your own risk;
- aimed at generating income;
- as a result of which income is obtained systematically.
Thus, if you, a citizen, directly participate in transactions on your own behalf and in your own interests, you yourself bear the risk of losses and, as a result, receive a systematic income, then there is an obligation.
What does "systematic" mean? There is no such definition in civil law, and the definitions given by other branches of law are diverse.
In the Tax Code (Article 120 of the Tax Code of the Russian Federation), regularity means "two or more within one calendar year." The antimonopoly legislation (clause 11, article 4 of the Federal Law of July 26, 2006 N 135-FZ "On Protection of Competition") extends this period to three years.
The Ministry of Finance of Russia believes that systematic means at least once a month (Guidelines for accounting for inventories, approved by Order of the Ministry of Finance of Russia dated December 28, 2001 N 119n).
The lack of a unified approach to the definition gives a chance to a citizen who does not want to become a PBOYuL, since there is no way to say exactly when a citizen's receipt of income from the use of property (sale of goods, performance of work or provision of services) falls under the concept of "systematic receipt of income".
It can be stated with certainty that one-time transactions within the framework of civil law agreements cannot indicate the receipt by an individual of any entrepreneurial income.
However, the regular receipt of income under civil law contracts is not always an entrepreneurial activity.
So, for example, the Moscow tax authorities in the Letter of March 30, 2007 N 28-10 / 28916 in relation to the commission of transactions with real estate by individuals advised their colleagues to take into account the following.
The Tax Code of the Russian Federation does not establish the obligation to register as PBOYuL individuals participating in lease relations and (or) transactions for the sale and purchase of property owned by them.
Income received by individuals from the lease (lease) and (or) sale of movable or immovable property is specified in Art. 208 of the Tax Code of the Russian Federation as an independent type of income subject to personal income tax.

Note. According to the civil law, movable and immovable property, which is in the personal ownership of an individual, is a material and material value, acting in kind for a long time, and the essence of this value does not change depending on the change in the status of the individual himself.

Article 23 of the Civil Code of the Russian Federation obliges citizens to obtain the status of individual entrepreneurs when doing business. However, the need to register a citizen as an individual entrepreneur is associated not only with the commission of paid transactions, but with the implementation of a special kind of activity.
In other words, the fact that a citizen makes transactions on a reimbursable basis for recognizing him as an entrepreneur is not enough if the transactions he makes do not form an activity.
The tax authorities pointed out that the following facts may indicate the presence in the actions of a citizen of signs of entrepreneurial activity:
- production or acquisition of property for the purpose of subsequent profit from its use or sale. For example: the acquisition of trucks for the provision of cargo transportation services, the acquisition of non-residential premises for subsequent leasing or the acquisition of professional equipment and tools;
- Keeping records of business transactions related to the implementation of transactions. This can be evidenced by documents, contracts, receipts, seized, as a rule, already during a search;
- the interconnectedness of all transactions made by a citizen in a certain period of time, for example, incurring costs for the maintenance of this property;
- regularity of activity, i.e. the presence of stable relationships with sellers, buyers and other partners.
Recall that in accordance with the All-Russian classifier of types of economic activity OK 029-2001 (NACE Rev. 1, approved by the Decree of the State Standard of Russia of November 6, 2001 N 454-st "On the adoption and implementation of OKVED"), economic activity takes place when when resources, equipment, labor, technologies, raw materials, materials, energy (information resources) are combined into a production process aimed at producing products (rendering services). Economic activity is characterized by production costs, the production process and output (services).
Thus, if the lease or lease of property, or the sale and purchase of property is carried out in the presence of signs of economic entrepreneurial activity, then the citizen is obliged to register with the tax authorities as a PBOYUL.
If these transactions do not contain signs of economic entrepreneurial activity, then the citizen has no obligation to register.
A similar point of view was expressed by the Ministry of Finance of Russia (Letter dated September 22, 2006 N 03-05-01-03 / 125).
We believe that such an approach to the entrepreneurial activity of a citizen should be applied not to rent, hire, purchase and sale of real estate, but also to other types of civil law contracts (contract, paid services, rental of a vehicle with a crew).
What are the consequences of not complying with the registration requirements of the law?
So, if a citizen carries out entrepreneurial activities without registering as a PBOYUL, then he is not entitled to refer, in relation to the transactions concluded by him at the same time, to the fact that he is not an entrepreneur. And the court has the right to apply to such transactions the legal norms on obligations related to the implementation of entrepreneurial activities (clause 4, article 23 of the Civil Code of the Russian Federation). A similar rule is provided for in Art. 11 of the Tax Code of the Russian Federation, as well as in Art. 2 of the Federal Law of July 24, 2009 N 212-FZ "On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund".
Now about responsibility.
Neglect of the requirements for state registration of an individual as a PBOYUL may result in administrative responsibility, which can result in a fine of 500 to 2000 rubles. (Clause 1, Article 14.1 of the Code of Administrative Offenses of the Russian Federation).
Separate cases of the sale of goods (performance of work, provision of services) by a person not registered as a PBOYuL do not form part of this administrative offense, provided that:
- quantity of goods;
- its assortment;
- volumes of performed works, rendered services;
- other circumstances -
do not indicate that this activity was aimed at systematic profit making (clause 13 of the Decree of the Plenum of the Supreme Court of the Russian Federation of October 24, 2006 N 18 "On some issues that arise with the courts when applying the Special Part of the Code of the Russian Federation on Administrative Offenses").
What can be evidence confirming the fact that these persons are engaged in activities aimed at systematic profit?
It can be:
- testimonies of persons who paid for goods (works, services);
- receipts for the receipt of funds by a citizen;
- statements from his bank accounts;
- acts of transfer of goods (performance of work, provision of services) -
provided that it follows from the indicated documents that the funds were received for the sale of the indicated goods (performance of work, provision of services).
The evidence will also be:
- placement of advertisements;
- exhibiting samples of goods at points of sale;
- purchase of goods and materials;
- conclusion of lease agreements for premises.
By the way, the lack of profit does not affect the qualification of offenses under Art. 14.1 of the Code of Administrative Offenses of the Russian Federation, since making a profit is the goal of entrepreneurial activity, and not its obligatory result. Lack of income from the implementation of entrepreneurial activities cannot serve as a basis for non-recognition of the ongoing activities as entrepreneurial.
In addition to an administrative fine, a citizen who does not want to register may face tax liability- according to Art. 116 of the Tax Code of the Russian Federation. Tax authorities by virtue of paragraphs. 7 p. 1 art. 31 of the Tax Code of the Russian Federation can charge taxes by calculation. In this case, the amount can be quite impressive. In addition, let's not forget about penalties and a fine under Art. 122 of the Tax Code of the Russian Federation.
So, according to part 1 of Art. 171 of the Criminal Code of the Russian Federation, carrying out entrepreneurial activities without registration, if this act is associated with the extraction of income on a large scale, is punishable by:
- a fine of up to 300,000 rubles. or in the amount of wages or other income of the convicted person for a period of up to two years, or
- compulsory work for a period of 180 to 240 hours, or
- arrest for up to 6 months.
A large amount means income in an amount exceeding 1,500,000 rubles, an especially large amount - 6,000,000 rubles.

Note. A particularly unlucky merchant may be attracted and to criminal liability under Art. 171 of the Criminal Code of the Russian Federation.

If the income from regular activities exceeded 6,000,000 rubles. or the crime is committed by an organized group, then this act, according to Part 2 of Art. 171 of the Criminal Code of the Russian Federation, alternatively punished:
- a fine in the amount of 100,000 to 500,000 rubles. or in the amount of wages or other income of the convicted person for a period of one to three years;
- imprisonment for up to five years with a fine of up to 80,000 rubles. or in the amount of wages or other income of the convicted person for a period of up to six months or without it.

Tax and other regulatory authorities quite often bring certain persons to responsibility for illegal business. Every day there are many convictions for this crime. However, even the courts often have questions related to its legal qualification. Let's try to understand the most important of them.

First of all, let us turn to the definition of entrepreneurial activity. According to civil law, this is "an independent activity carried out at one's own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law" (clause 1, article 2 of the Civil Code RF).

Based on the general rule "Participants in relations regulated by civil law (including business. - Ed.) Are citizens and legal entities" (clause 1, article 2 of the Civil Code of the Russian Federation), they are the subjects of the offense under Art. 171 of the Criminal Code of the Russian Federation. We will not consider the possible participation of public legal entities (for example, the Russian Federation, constituent entities of the Russian Federation and municipalities) in this material.

Citizens and legal entities. Legal capacity

Unlike legal entities, the set of citizens is heterogeneous. It consists of citizens who have:

• only general legal personality;
• both general and special legal personality (that is, entrepreneurs).

According to the Civil Code of the Russian Federation, "a citizen has the right to engage in entrepreneurial activities without forming a legal entity:" (clause 1, article 23 of the Civil Code of the Russian Federation). It is subject to the rules "which regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other legal acts or the essence of the legal relationship" (clause 3, article 23 of the Civil Code of the Russian Federation).

The Code distinguishes several categories of such citizens and, on this basis, connects the moment they acquire special legal personality with the onset of various events:

• general category (entrepreneurs without forming a legal entity) - "from the moment of state registration as an individual entrepreneur" (clause 1, article 23 of the Civil Code of the Russian Federation);
• a special category "the head of a peasant or farm enterprise, carrying out activities without forming a legal entity" - "from the moment of state registration of a peasant (farm) enterprise" (clause 2, article 23 of the Civil Code of the Russian Federation).

The legal capacity and legal capacity of a legal entity arise and terminate simultaneously at the time of its creation and at the time of making an entry on its exclusion from the Unified State Register of Legal Entities (clause 3, article 49 of the Civil Code of the Russian Federation).

The legislator associates the emergence of special legal personality among citizens and legal entities with obtaining a special permit (license). According to civil law, "the right to carry out activities for which a license is required arises from the moment such a license is received or within the period specified in it and terminates upon the expiration of its validity period, unless otherwise provided by law or other legal acts" (paragraph 3 article 49 of the Civil Code of the Russian Federation).

Note that legal entities are also heterogeneous, and according to Art. 50 of the Civil Code of the Russian Federation, they are divided into two large groups: commercial and non-profit organizations. The criterion for such a classification is the purpose of the activity. Commercial organizations are subjects of entrepreneurial activity. The main purpose of their work is to make a profit. At the same time, non-profit organizations are not business entities, since making a profit is not their main goal (clause 1, article 50 of the Civil Code of the Russian Federation). Next, we will talk about how this circumstance shows its positive and negative significance for the criminal law qualification of illegal entrepreneurship.

Objective and subjective sides of the crime

Let us turn to the definition of illegal business, which is given in Art. 171 of the Criminal Code of the Russian Federation. It is understood as "carrying out entrepreneurial activities without registration or in violation of the registration rules, as well as submitting documents containing deliberately false information to the body that carries out state registration of legal entities and individual entrepreneurs, or carrying out entrepreneurial activities without a special permit (license) in cases when such permission (license) is obligatory, or in violation of licensing requirements and conditions, if this act caused major damage to citizens, organizations or the state or is associated with the extraction of income on a large scale" (part 1 of article 171 of the Criminal Code of the Russian Federation) .

It is preferable to start characterizing this composition from the objective side. First of all, illegal entrepreneurship is always an action. It can be of two types:

• with a defect in the registration of its subject;
• with a defect in the special legal personality of its subject.

Thus, this crime acquires social danger not due to the criminal nature of the subject, that is, the action itself (entrepreneurial activity). The danger arises as a result of the criminally directed intent of the subject to commit actions outwardly absolutely legal, but entailing illegal receipt of income.

Therefore, the Plenum of the Armed Forces of the Russian Federation pointed out that "in cases where a person, with the aim of generating income, is engaged in illegal activities, liability for which is provided for by other articles of the Criminal Code of the Russian Federation (for example, the illegal manufacture of firearms, ammunition, the sale of narcotic drugs, psychotropic substances and their analogues), what he has done does not require additional qualification under Article 171 of the Criminal Code of the Russian Federation" (paragraph 18 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of November 18, 2004 N 23, hereinafter - Resolution N 23).

From the subjective side, this crime is characterized by direct intent and selfish purpose.

Subjects of the crime

Having described illegal entrepreneurship from the objective and subjective sides, let us return to the subjects of this crime, or rather, to the problem of establishing their circle. As noted above, the legislator, in order to qualify the act as illegal entrepreneurship, established two types of vice of the subject:

• in registration, that is, in existence itself;
• in the emergence of special legal personality.

Defect in registration can be expressed in various forms. It can be either a lack of registration or a violation of its rules.

At the same time, "carrying out entrepreneurial activities without registration will take place only in cases where the Unified State Register for Legal Entities and the Unified State Register for Individual Entrepreneurs does not contain an entry on the creation of such a legal entity or the acquisition by an individual of the status of an individual entrepreneur, or contains an entry on liquidation legal entity or termination of the activity of an individual as an individual entrepreneur" (paragraph 3 of Resolution No. 23). Under the implementation of entrepreneurial activities in violation of the rules of registration should be understood as "the conduct of such activities by a business entity, which knowingly knew that violations were committed during registration, giving grounds for declaring the registration invalid (for example, documents were not submitted in full, as well as data or other information necessary for registration, or it was carried out contrary to existing prohibitions" (paragraph 3 of Resolution No. 23).

The Civil Code of the Russian Federation twice allows for the possibility of legally conducting entrepreneurial activities without registration, both for citizens and legal entities. So, in the cases provided for in paragraph 4 of Art. 23 of the Code, "a citizen engaged in entrepreneurial activities without forming a legal entity in violation of the requirements: (on registration. - Auth.) is not entitled to refer to the transactions concluded by him at the same time that he was not an entrepreneur. The court may apply to such transactions rules: (Civil Code of the Russian Federation. - Auth.) on obligations related to the implementation of entrepreneurial activities".

It should be noted that the provision of art. 198 of the Criminal Code of the Russian Federation (it deals with tax evasion from individuals) is formulated on the basis of the same principle, that is, the subsequent legitimization of illegal actions and the application of a special legal regulation regime to the legal relations that have arisen.

Fixing in para. 1 p. 3 art. 49 of the Civil Code of the Russian Federation, the provision on the acquisition by a legal entity of general legal personality in full from the moment of its creation, the legislator admitted the possibility of the existence of "backlash". At least five days must pass from the moment the company is created to the moment of its state registration and making an entry in the Unified State Register of Legal Entities. This is the term for registration of legal entities. This exception cannot be ignored. Illegal business should be really illegal. In addition, exceptions are special rules - both in relation to the rules on state registration of legal entities and IPBOYuL, and in relation to the rules of criminal law (for example, in relation to the rule contained in Article 171 of the Criminal Code of the Russian Federation).

There is one more nuance: the commercial activities of companies that own property on the basis of the right of economic management and operational management, as well as non-profit organizations that do not distribute profits among the participants, but in the course of their activities they extract it with enviable constancy. Both the Criminal Code of the Russian Federation and the Plenum of the Armed Forces of the Russian Federation are silent on this issue. Emphasis with reference to paragraph 1 of Art. 2 of the Civil Code of the Russian Federation on the systematic receipt of profit from activities (clause 1 of Resolution No. 23) does not solve this problem. It remains unclear from what point "systematicity" begins, given that entrepreneurial activity is of a continuing nature.

The defect in the emergence of special legal personality does not raise any special questions. The procedure for issuing a license is quite formalized. Only in a situation where its validity has expired, and the person continues to carry out a licensed type of activity and after some time receives a new license or extends the validity of the previous one, it may be necessary to additionally qualify such an act under Art. 159 of the Criminal Code of the Russian Federation "Fraud".

The interpretation by the Plenum of the Supreme Court of the Russian Federation of the legal qualification of the activities of a legal entity with special legal capacity and, therefore, incapable of conducting other activities, except for the one for which it was created, looks very original, as activities without registration or as activities without a license (paragraph 6 of Resolution N 23). Here the Plenum contradicts itself: paragraph 6 of Resolution No. 23 contradicts paragraph 3 of the same resolution, expanding the content of the concepts "activities without registration" and "activities without a license." It seems that in this case the Plenum of the Supreme Court of the Russian Federation should have used the right to interpret the rules of law and give a broad interpretation not to these concepts, but to the concept of "illegal entrepreneurship". The activities of an already established subject of law and entrepreneurial activity outside the limits of exclusive competence cannot be recognized as activities without registration.

Liability: criminal, tax, administrative

If a person conducts entrepreneurial activities without registration (Article 171 of the Criminal Code of the Russian Federation), the state does not have the opportunity to accurately determine the amount of his income - the taxable base and calculate the amount of taxes or fees. Registration is carried out by the Federal Tax Service of the Russian Federation (Article 2 of Federal Law No. 129-FZ of 08.08.2001). The Tax Code of the Russian Federation provides for administrative liability for violation of the deadline for registration with the tax authority (Article 116 of the Tax Code of the Russian Federation) and evasion of such (Article 117 of the Tax Code of the Russian Federation). Article 14.1 of the Code of Administrative Offenses of the Russian Federation, establishing administrative responsibility for conducting entrepreneurial activities without state registration or a special permit (license), duplicates the provisions of the Tax Code of the Russian Federation (in particular, clause 1, article 117 of the Tax Code of the Russian Federation).

At the same time, it should be borne in mind that the Code of Administrative Offenses of the Russian Federation refers to administrative responsibility for carrying out entrepreneurial activities without state registration. The Tax Code of the Russian Federation provides for the onset of administrative responsibility at a later stage, that is, when a person is registered as an organization or individual entrepreneur, but at the same time evades registration with the tax authority as a subject of taxation (taxpayer). This circumstance determines the application of various measures of administrative responsibility in the event that a person commits one or another of the above offenses.

When limiting the scope of the norms of administrative and criminal law, it must be borne in mind that the criminal law norm (Article 171 of the Criminal Code of the Russian Federation) is of a material nature (the material composition of an offense is a crime). A necessary condition for its application is the infliction of damage of a certain amount or illegal extraction of income in a certain amount. The administrative-legal norm is of a formal nature (the formal composition of the offense) and therefore does not require the establishment of the fact of causing damage. A mere formal violation of a legal order is sufficient (clause 13 of the Decree of the Plenum of the Supreme Court of the Russian Federation of October 24, 2006 N 18).

Unfortunately, the Presidium of the Armed Forces of the Russian Federation ignores a problem that is very important for the practical activities of both law enforcement and judicial authorities: the delimitation of the scope of the norms of administrative, criminal and civil law in the implementation of mixed legal regulation of the same legal relations. As a result, the question of the norm of which branch of law to apply to resolve a particular incident is always relevant and insoluble. Therefore, every time it is solved differently. And the meager amount of damage, established as the lowest limit for the application of the norm of criminal law, on the one hand, makes it nominal, and on the other hand, gives wide scope for abuse, creating a situation in which for the same actions one person is brought to administrative and the other to criminal liability. Moreover, for the damage caused in the amount of 250,000 rubles and 1 kopeck, this person does not always receive a punishment in the form of a conditional measure. By the way, a third person can generally get off with a slight fright, having received a court decision on the recovery of some amount from him.

In the topic of "illegal business" there is one more question that needs to be disclosed. Namely - on qualifications under Art. 171 and 199 (198) of the Criminal Code of the Russian Federation. On the one hand, illegal entrepreneurship (Article 171 of the Criminal Code of the Russian Federation) is a general rule in relation to tax evasion from an organization (Article 199 of the Criminal Code of the Russian Federation) or from an individual (Article 198 of the Criminal Code of the Russian Federation). Therefore, when establishing the fact of tax evasion and (or) fees, the actions of a person must be qualified under Art. 198 or Art. 199 of the Code in order to avoid double punishment for the same action.

On the other hand, the content of the norm formulated in Art. 171 of the Criminal Code of the Russian Federation, significantly narrows the scope of the concept of "illegal entrepreneurship". This does not allow defining these compositions as general and special in relation to each other, that is, the volume of one composition does not overlap with the volume of another. In addition, the subject composition of legal relations in these cases differs significantly: in cases of tax evasion and (or) fees, one of the parties to legal relations is the fiscal authorities, and in the case of illegal entrepreneurship - management bodies of special competence that are not related to fiscal, as well as fiscal authority in the implementation of state registration and maintenance of a unified state register. Therefore, if there are signs of corpus delicti in the actions of a person under Art. 171 and 198 (199) of the Criminal Code of the Russian Federation, they should be qualified in aggregate. This is confirmed by paragraph 2 of Resolution No. 23, in which the Plenum of the Supreme Court of the Russian Federation indicates how to qualify the actions of an individual who has acquired property and leases it out without paying taxes.

E.V. Semyanov,
MGKA, Ph.D. Sciences

The concept of entrepreneurial activity is contained in.

Under entrepreneurial activity is understood as an independent activity carried out at one's own risk, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of works or the provision of services by persons registered in the manner prescribed by law.

Highlight some signs entrepreneurial activity.

1. systematic, that is, carrying out business activities for a certain period. However, the legislator does not define clear criteria for systematicity. Therefore, to qualify an activity as an entrepreneurial one, criteria such as:

The share of profit from entrepreneurial activity in the total income of a person;

profit margins;

Getting it a certain number of times for any reporting period, etc.

2. Independence, which includes two components:

a) organizational independence - the ability to independently make decisions in the process of entrepreneurial activity (volitional character);

b) property independence - the entrepreneur has a separate property for the implementation of entrepreneurial activities. Risky nature of entrepreneurial activity. Risk (from lat. risco - "sheer cliff") - the probability of not receiving the planned or expected positive result.

3. Independent property liability of the entrepreneur. The limits of such liability depend on the organizational and legal form of entrepreneurial activity.

4. legalized character. The presence of a special subject(entrepreneur) i.e. a person registered in this capacity in the manner prescribed by law. Entrepreneurial activity can be carried out only by persons registered in the manner prescribed by law. Carrying out entrepreneurial activities without state registration is an offense (Article 14.1 of the Code of Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation); Article 171 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation)).

5. Focus on systematic profit. Profit is understood as income minus expenses. In this case, it is the purpose of the person’s activity that is important, and not the fact of making a profit. Activities aimed at making a profit, but causing losses, are also entrepreneurial.

6. Extraction of income from certain activities: sales of goods, provision of services, performance of work, receipt of income from the use of property (for example, renting out premises) and intellectual property of the entrepreneur.

7.Professionalism- a sign that suggests that the entrepreneur has certain knowledge and skills. At present, such a requirement is fixed in relation to far from all types of entrepreneurial activity (basically, the presence of a certain education is required for the implementation of licensed activities). However, it is indicated as mandatory in the legislation of Germany, France, etc.

Types of entrepreneurial activity are classified:

According to the form of ownership on the basis of which entrepreneurial activity is carried out: private, public, municipal;

By number of participants: individual, collective;

By the nature of the activity: production of goods, provision of services, performance of work and etc.

The law defines the systematic receipt of profit as the goal of entrepreneurial activity. Therefore, the systematic receipt of profit cannot be considered as a mandatory characteristic of this type of activity. Profit should be understood as the excess of income from the sale of goods and services over the costs of production and sale of these goods. This is one of the most important indicators of the financial results of the economic activity of the enterprise and entrepreneurs. Profit is calculated as the difference between the proceeds from the sale of a product of economic activity and the sum of the costs of production factors for this activity in monetary terms. Usually they calculate gross (balance sheet, total) profit and net - remaining after paying taxes and deductions from gross profit.

In accordance with Art. 247 of the Tax Code of the Russian Federation, profit is recognized:

1) for Russian organizations - income received, reduced by the amount of expenses incurred, which are determined in accordance with Chapter 25 of the Tax Code of the Russian Federation;

2) for foreign organizations operating in the Russian Federation through permanent representative offices - income received through these permanent representative offices, reduced by the amount of expenses incurred by these permanent representative offices, which are determined in accordance with Chapter 25 of the Tax Code of the Russian Federation;

3) for other foreign organizations - income received from sources in the Russian Federation. The income of these taxpayers is determined in accordance with Article 309 of the Tax Code of the Russian Federation.

At the same time, we are not talking about the actual receipt of profit, but about the corresponding direction of activity. Therefore, there may not be any profit as a result of such activity, but it will be recognized as entrepreneurial.

A sign of systematicity indicates that this activity is carried out for a certain, in most cases, a long period of time and is characterized by the repetition of actions performed, which are performed purposefully to achieve specific business goals. To define the concept of systematic profit making, it is rather difficult to use quantitative criteria, therefore, qualitative characteristics are most often used, such as “unity, continuity, coverage by one goal”.

Some authors, however, along with making a profit, also consider the satisfaction of public interests as the goal of entrepreneurial activity. So, K. K. Lebedev defines entrepreneurial activity as one of the types of generally useful activities carried out in the economic sphere by any legally capable persons through the exploitation of their property or by performing other actions in order to achieve any results related to a change in the position of this property, and reimbursement of costs incurred in connection with this at the expense of income received.

O. V. Tishanskaya believes that the goal of entrepreneurial activity can be not only profit: in developed countries, state policy is to encourage non-profit entrepreneurship in the fields of ecology, health, culture, and social security.

4. Statutory means of making a profit:

• use of property;
• sale of goods;
• performance of work;
• service.

The list of directions and spheres of entrepreneurial activity is formulated in the Civil Code of the Russian Federation as exhaustive, which does not seem quite correct, since in a market economy the directions and spheres of entrepreneurial activity are determined, first of all, by the needs of the market. The market demand for one or another type, direction and scope of entrepreneurial activity will undoubtedly be realized by the entrepreneur.

In the definition given in Art. 2 of the Civil Code of the Russian Federation does not mention the production of products, but instead refers to the use of property and the sale of goods, however, most often it is production activities that bring the main profit.

In addition, it is noted that this definition is “extremely unsuccessful, also because it does not allow to distinguish between active economic activity (for example, in the production and sale of goods, works, services) and passive (for example, placement of funds in credit institutions, transfer of property for rent, etc.)”.