Systematic profit making. When working without registration becomes dangerous. Systematic implementation of activities

V.A. Semeusov
Academic Law Journal N 4, 2002

The problem of the legal status of citizens engaged in entrepreneurial activity is one of the important problems of legal science, and therefore the importance of any research in this area can be justly expressed by the aphorism: there is nothing more practical than a good theory.

At the dawn of the romantic revival of private property and private enterprise in Russia, the liberal idea of entrepreneurial activity... This is any activity aimed at making a profit. This doctrine was set forth in the law, according to which entrepreneurial activity is an initiative, independent activity of citizens and their associations aimed at making a profit (Law of the RSFSR of December 25, 1990 "On Enterprises and Entrepreneurial Activity").

Compilers of the Civil Code Russian Federation(hereinafter - the Civil Code of the Russian Federation) abandoned this legal structure. As noted in the legal literature, there is no legal definition of the concept of an entrepreneur. Therefore, an entrepreneur is by no means a legal category, but economic concept, as long as there is no definition in the law that there is an entrepreneur. Indeed, unfortunately, it must be stated that in the current pseudo market economy Russia has no legal formula for an entrepreneur. Thus, the legitimate grounds for citizens to engage in entrepreneurial activity in this regard are highly questionable, and this, among other things, does not contribute to attracting capital from law-abiding foreign businessmen.

An individual (natural person) in modern Russian law is called differently: citizen, citizen-consumer, citizen-entrepreneur. The latter is sometimes referred to as an individual entrepreneur. And if a citizen (individual) acts as a subject of private law, then an individual entrepreneur is a subject of business law.

What is an entrepreneur? The question is not at all as obvious as it might seem at first glance. The immediate answer - the entrepreneur - says nothing. After all, the concept of entrepreneurial activity has a different economic and legal meaning. IN real life everything is much more complicated, and in the Russian, domestic legal consciousness, an entrepreneur is a pig in a poke, although entrepreneurial activity exists.

Currently, a citizen has the right to engage in entrepreneurial activity and act as prompted common sense and is not prohibited by law. That's about the law, in recent times, and misinterpretations appeared related to the ambiguity generated by legal chaos. First of all, an interesting question is what kind of citizens' activity is recognized as entrepreneurial activity? Answering this question, it must be said that the criteria for entrepreneurial activity are given in the law. This is an independent activity, carried out at its 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 (Article 2 of the Civil Code of the Russian Federation).

The grammatical (literal) interpretation of the text of the stated legal norm may, probably, lead to the conclusion that, according to civil law, the manufacture of products (goods) is not included in the concept of entrepreneurial activity. Indeed, in the above legal provision, entrepreneurial activity includes independent activity citizens for the performance of work, the provision of services, the use of property. And that's all. Accordingly, according to official recognition, in our days, the sphere of entrepreneurial activity includes speculation, usury, trade intermediation, financial games on the stock exchange, the provision of services, etc. Some part of the business, of course, is acceptable, but prevails, if I may say so , the image of an entrepreneur (businessman), whom the law allows to make capital, as it is fashionable to say, in the virtual, and not in the real sector of the economy. A kind of imposing rentiers who, as they say, neither plow nor sow, but have considerable capital.

Apologists for the liberal market economy and private law consider it important to note that every owner of property has the right to freely dispose of it according to his aspiration, for his own good. Thus, a citizen has the right to receive income from the use of his property. That is why the Civil Code of the Russian Federation defines entrepreneurial activity as an economic activity that, under all other circumstances that characterize it, is aimed at making a profit from the use of property. In many cases, the secret of such entrepreneurship is simple: warehouses, premises, buildings were inherited by some privatizers from the sunk into oblivion. Soviet Union... Now there is only one concern, how it is more profitable to lease out huge areas, for example, empty factories, turning them into a bazaar.

At the same time, according to Russian civil law, information, as well as money, do not belong to property. This is a special object of civil law. This means that persons using these things, for example, selling information or money for the purpose of making a profit, cannot be classified as entrepreneurs. Is it fair and right? Probably not.

Meanwhile, priority should be given to economic and entrepreneurial activities for the production of material goods. This is truly the hope of our economy - manufacturing entrepreneurs material values goods.

Among the signs of entrepreneurial activity according to the Civil Code of the Russian Federation is an indication not that this activity is carried out for the purpose of making a profit. But you can not get acquainted with political economy, with the economic teachings of Adam Smith, in order to understand that an entrepreneur at a loss, a commercial, as well as a non-profit structure, cannot work in a market economy. (True, in Russia, contrary to all the arguments of science, they work, judging by the declaration of income and reports to the tax office. This story is mysterious to the point of absurdity). In a word, it is clearer than clear - making a profit is the goal of entrepreneurial activity. Perhaps, in the time when the ancient Greeks, loitering under the shade of olives, invented the word "economy", this idea still had some novelty, but not in the 21st century. Sometimes it turns out that the Civil Code of the Russian Federation, in contrast to the previously existing law on enterprises and entrepreneurial activity, introduced a sign of systematic profit making. It is noteworthy that the key word "systematism" has recently appeared in the definition of entrepreneurship. Of course, the choice of one word or another is a matter of the author's personal linguistic taste. However, it can also be noted that this does not change the essence of the matter, if we are talking about literary opuses, but not about legal terms and legal categories, which, as it should be assumed, are the subject of scientific legal research. So, to express the essence or nature of the socio-economic category, which is entrepreneurial activity, the law uses a phraseological expression - "systematic profit".

But further - a dead end. In the science of civil, criminal, tax, labor, administrative law, for example, the concept of "systematic" nature of acts is interpreted differently. In a different sense, this concept fits the action at least "twice", in the other - "as more than two times", in the third - "as more than three times." In our opinion, it would seem clear that from a philological and philosophical point of view, this is one, two times is a repetition, and three times is a system of actions. This means that under the systematic receipt of profit should be understood repeated, that is, more than twice the commission by a person of acts in order to extract income in the form of fishing.

However, it is unclear during what period of time these acts must be committed - within a month, a year or another period of time in order to ascertain the emergence of entrepreneurial activity. For example, in Soviet labor law, a systematic violation of labor discipline was understood as a repeated commission of disciplinary offenses during calendar year.

The question is real: a citizen occasionally extracts income from the provision of services, the performance of work, the manufacture of products, is he obliged to register his activity as an entrepreneurial one, to obtain a license for it? Legal scholars believe that only activities aimed at systematic profit-making are related to entrepreneurial activities. Consequently, if the performance of work, the provision of services is of an episodic nature, such activity cannot be classified as entrepreneurial. This is the meaning of Art. 2 of the Civil Code of the Russian Federation. Therefore, proceeding from the principles of civil law, no one doubts that isolated facts of engaging in entrepreneurial activity of making a profit cannot be qualified as entrepreneurship. In this case, the size of the received profit (income) does not matter. Consequently, a person, for example, who provided services for financial market once a year and did not receive a fabulous income, many times exceeding the budget of some municipalities does not become an entrepreneur. This point of view is expressed in tax practice. Entrepreneurship theorists argue: the logic of entrepreneurship is such that it presupposes on the side of the business entity a desire to extract profit (property benefits) in the form of fishing, i.e. in order to generate permanent income. On this score, it should be noted that among lawyers there are no generally accepted opinions, there are no unrecognized ones either, just this topic was not widely discussed by legal scholars. It seems in vain. And that's why. For example, from the use of a land plot belonging to him on the right of private property, the gardener systematically receives a crop, income (profit). Within the meaning of Art. 2 of the Civil Code of the Russian Federation, it should be classified as an individual entrepreneur. Isn't that absurd? Or another case. A citizen systematically receives profit (income) from property when making a compensated transaction aimed at transferring this property for temporary use to a stranger. For example, a citizen rents out a garage to another citizen or company. Does he need to register as an individual entrepreneur? As you can see, from the point of view of the Civil Code of the Russian Federation, the lease of property must be recognized as an entrepreneurial activity, since it is undoubtedly an independent activity aimed at systematic profit from the use of property. According to the formula of Art. 2 of the Civil Code of the Russian Federation, it turns out that renting out an apartment is also an entrepreneurial activity. But home and life are words of the same root, and therefore it is probably immoral to consider the use of such property as an apartment as an entrepreneurial activity for the survival of any pensioner.

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

An 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 highlight the following features of entrepreneurial activity.
1. Entrepreneurial activity is characterized by independence.
We can conditionally single out the property and organizational independence of the entrepreneur. Property independence is determined by the fact that an entrepreneur has a separate property of his own as an economic base of activity. The scope of property independence depends on the legal title on the basis of which this property belongs to the subject. The greatest independence of the owner of the property. Enterprises operating on the basis of the right of economic management also have significant property independence, but already limited by law and by an agreement with the owner. And finally, the ownership of the property on the right 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 the decision to engage in such activities, the choice of 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 an entrepreneur's activity, manifests itself at all its stages. An entrepreneur acts by his power and in his own interest, by his actions realizing the rights granted to him by law. Therefore, the legal relationship that develops when an entrepreneur carries out his activities, in the science of business law is qualified as absolute - * (source No. 22).
At the same time, the independence of an entrepreneur is not unlimited. As 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 be guided by 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 obey the rules of the internal labor schedule, fulfill the duties assigned to him, and observe labor discipline. The manifestation of initiative in the implementation of labor activity is also possible, however, it is obvious that its volume is incomparable with the independence of an entrepreneur.
2. Entrepreneurship is risky... The risky nature of entrepreneurship fundamentally distinguishes it from the economic activity of the period of the administrative-planned economy, which admitted the existence of unprofitable enterprises, which, with poor economic results, could turn to the state for support. It is quite understandable in this connection that such a purely market institution as the institution of insolvency (bankruptcy) is reviving in our country only with the transition to the market.
Entrepreneurial risk is a powerful incentive to successful work; loss reduction can be achieved by concluding a business risk insurance contract, i.e. the risk of losses from entrepreneurial activity due to violation of their obligations by counterparties or changes in the conditions of this activity due to circumstances beyond the entrepreneur's control, 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 very 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 peoples" characterized the entrepreneur as the owner of capital, taking on the risk of business. Entrepreneurial profit, according to Smith, is the owner's compensation for the risk. The authors of the well-known textbook "Economics" - * (source No. 23) K. McConnell and S. Brue considered entrepreneurship as a special type of activity, which is based on a number of features, among which is the character of an entrepreneur as a person taking risks. An entrepreneur risks not only time, labor, business reputation, but also invested funds - own and their partners or shareholders.
In the legal literature, the category of risk also arouses keen interest; attempts have been 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 (danger) of the onset or non-occurrence of an event (set of events) that entailed unfavorable 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 profit as a goal of an entrepreneur's activity centuries ago. Thus, the French economist J.B. Sey, a contemporary of D. Ricardo, defined the entrepreneur as an economic agent combining factors of production, moving 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 the incentive for entrepreneurial activity - getting a higher income as a payment for bearing risk. The statement of A.I. Fireplaces, who noted that profit is only a stimulus for commercial activity. The purpose of commercial activity is this activity itself, an activity that makes a 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 an economic entity. So, in accordance with Art. 247 of the Tax Code of the Russian Federation with a profit for Russian organizations recognized income received, reduced by the amount of expenses incurred, determined in accordance with Art. 247 of the Tax Code of the Russian Federation. In this case, income is recognized as an economic benefit in cash or in kind, taken into account if it is possible to evaluate it and to the extent that such benefit can be estimated, 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). Expenses are considered reasonable and documented costs (and in the cases stipulated by 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). Thus, without setting ourselves the task of a detailed consideration of the issue of the procedure for generating profit, we note that this procedure is defined quite accurately by legislation. 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 resort to the services of auditors to confirm the accuracy of their financial (accounting) reporting. It is safe to say that the interest in the correct formation of entrepreneurial profit is of a private-public nature.
It should be noted that the goal of making a profit is the basis for the differentiation of 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 feature of entrepreneurial activity as systematicity in making a profit.
Unfortunately, the legislation has not yet developed clear quantitative criteria for systematicity. It is proposed to fill the legislative gap by including additional qualifying features in the definition of entrepreneurial activity, such as the share of profits from this activity in the total income of a person, the "materiality" of profits, receiving it a certain number of times in a specific reporting period, etc.
It seems that in this case the arithmetic categories cannot be applied. It is important that the entrepreneur sets himself the goal of not making a one-time profit, but of 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 an entrepreneur to enter the market who does not set himself as a strategic task to extract profit as a result of his activities.
4. In accordance with the legal definition of entrepreneurial activity, profits are obtained by entities from the use of property, the sale of goods, the performance of work or the provision of services.
This feature appears to be very poorly formulated. The fact is that entrepreneurial activity is multifaceted and in a market economy its directions can in no way 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, there was no point in the law to list the possible areas of entrepreneurial activity, 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 number 28), this list was absent. This approach seems to be more correct.
5. Finally, as stated in v. 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. The 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 seems to be incorrect. Indeed, how, in this case, apply Art. 171 "Illegal business" of the Criminal Code of the Russian Federation, art. 14.1 "Carrying out entrepreneurial activity without state registration or without a special permit (license) "of the Code of Administrative Offenses of the Russian Federation, how to collect in court the income received from such activities in the budget revenue? Imperfection of legal technology leads to the need to use other methods of interpreting this norm: systematic, logical. Such a sign of entrepreneurial activity, as its implementation by persons registered in the prescribed manner is a formal sign, i.e. a sign that legalizes this activity, giving it a legal status. Its absence does not lead to a loss of the quality of an entrepreneurial activity, but makes it illegal. the previously considered signs of entrepreneurial activity are essential (revealing its essence), and only their combination makes it possible to qualify a person's activity as entrepreneurial. registration not only as a sign, but also as a condition for proper entrepreneurship, a requirement for the implementation of legitimate business activities. It seems that such an interpretation of the need for state legitimation 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.
A sign of professionalism in entrepreneurial activity. 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 in:
- 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 delivery by an entrepreneur relevant examinations (for example, for auditors);
- carrying out business activities according to certain rules and methods ...;
- compliance of the results of activities with certain requirements ...;
- controllability of activities government bodies...;
- availability of state guarantees of activity ... "- * (source No. 29).
Without disputing the desirability of the presence of all the above components of professionalism and professionalism itself 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 qualifications as entrepreneurial. This feature seems to be necessary only for some types of activities. For example, as licensing requirements and conditions, the presence of special knowledge, experience, education, which is confirmed necessary documents, 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 in 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 (due to renewal marketable products, search for new markets, etc.) "- * (source No. 30). J. Schumpeter formulated the following functions of entrepreneurial activity:
- the production of a new material good, still unfamiliar to the consumer, or the old good, but with a new quality;
- the introduction of new production methods that were not previously used in it;
- development of new economic sales markets or wide and deep use of the old ones;
- development of new sources and types of raw materials;
- implementation new organization production and marketing. It should be noted that the signs put forward by J. Schumpeter are currently reflected in the emerging legislation on innovation activities.
Among the signs of entrepreneurial activity, the Law of the RSFSR of December 25, 1990 N 445-I "On enterprises and entrepreneurial activity" indicated the property liability of an entrepreneur. In the modern legal definition, this feature has not been consolidated. 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 the subjects of entrepreneurial activity are determined by the current legislation. Moreover, Art. 401 of the Civil Code of the Russian Federation, defining the grounds for liability for violation of obligations, provides for increased liability of the entrepreneur: impossible due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions. Such circumstances do not include, in particular, a breach of obligations by the debtor's counterparties, the lack of the necessary goods on the market, the debtor does not have the necessary funds. "
Having considered the signs of entrepreneurial activity, you can 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 proposed in the literature;
- essential, characterizing the essence of entrepreneurial activity, and formal, characterizing its form;
- mandatory, the combination of which is necessary and sufficient to qualify the activity as legal entrepreneurial, and optional, the presence of which is desirable, but not required.
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 ratio of entrepreneurial activity with such types social activities, as economic, economic, commercial (trade). The broadest concept appears to be "economic activity". Economic activity can be defined as reproductive activity, combining stages such as production, distribution, exchange, consumption.
Economic activity, being a type of economic activity, is defined as the order of 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 an orientation toward making a profit. As indicated by V.K. Mamutov, the concept of economic activity includes entrepreneurship, but is not limited to it- * (source no. 34).
Commercial, or trade, activity - a set of actions to promote goods from manufacturers to consumers. commercial activity is a kind of economic economic entrepreneurial activity- * (source No. 35).

The law defines systematic profit-making 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 financial results economic activities 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 factors of production for this activity in monetary terms. Usually calculate gross (balance sheet, total) profit and net - remaining after payment of taxes and deductions from gross profit.

In accordance with Art. 247 Tax Code RF is recognized as profit:

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 missions - income received through these permanent missions, reduced by the amount of expenses incurred by these permanent missions, 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.

In this case, we are not talking about the actual receipt of profit, but about the corresponding direction of activity. Consequently, there may be no profit as a result of such activities, but it will be recognized as entrepreneurial.

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

Some authors, however, along with making a profit, also consider the satisfaction of public interests as the goal of entrepreneurial activity. Thus, 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 property belonging to them or by performing other actions in order to achieve any results related to a change in the position of this property, and reimbursement of the costs incurred in connection with this from the income received.

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

4. Methods of making a profit established by law:

• use of property;
• sale of goods;
• performance of work;
• provision of services.

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 entirely 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 this or that type, direction and sphere 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, the production of products is not mentioned, but instead it is said about the use of property and the sale of goods, however, most often it is production activity that brings the main profit.

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

The legal definition of illegal entrepreneurship is formulated by the legislator in part 1 of article 171 of the Criminal Code of the Russian Federation - this is the implementation of entrepreneurial activity without registration or in violation of registration rules, as well as submission to the body that carries out state registration of legal entities and individual entrepreneurs, documents containing deliberately false information, or carrying out entrepreneurial activities without a special permit (license) in cases where such a permit (license) is mandatory, or in violation of licensing requirements and conditions, if this act has caused large damage to citizens, organizations or the state, or is associated with the extraction of income on a large scale.

As can be seen from this legal formulation, its basic category is “carrying out entrepreneurial activity”.

In order to understand what should be understood by illegal entrepreneurship, let us turn to the definition and features of “entrepreneurial activity”.

The legal concept of entrepreneurial activity is enshrined by the legislator in Article 2 of the Civil Code of the Russian Federation. By virtue of this article, entrepreneurial activity is an independent activity carried out at its own risk, aimed at systematic 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 the legal definition allows us to highlight the following features of entrepreneurial activity:

In civil law theory indicate another sign of entrepreneurial activity, “it should be carried out only by individuals or legal entities, registered as entrepreneurs in the manner prescribed by law ", that is, civil lawyers refer to" state registration "(whether entity, or individual entrepreneurship) are mandatory signs of entrepreneurship.

Before moving on to another point of view, we note that in accordance with Federal law dated August 8, 2001 N 129-FZ "On state registration of legal entities and individual entrepreneurs" (as amended on June 23, December 8, 23, 2003, November 2, 2004, July 2, 2005) state registration of legal entities a person and an entrepreneur - acts of the authorized federal body executive power, carried out by entering into state registers information on the creation, reorganization and liquidation of legal entities, the acquisition individuals the status of an individual entrepreneur, the termination of activities by individuals as individual entrepreneurs, other information about legal entities and individual entrepreneurs.

Another opinion is expressed in the theory of criminal law. As noted by I.A. Klepitsky, although Art. 2 of the Civil Code of the Russian Federation and indicates state registration as a sign of entrepreneurial activity, however, this sign is not significant (this is rather one of the signs legal entrepreneurial activity than entrepreneurial activity as such), illegal entrepreneurial activity is possible without registration ... We emphasize that, and the civil legislation does not exclude understanding as an entrepreneurial activity carried out without registration: an entrepreneur "(clause 4 of article 23 of the Civil Code of the Russian Federation). We agree with V.A. Naumov, noting that civil law prohibits such activities, since it introduces confusion in civil law relations in the field of entrepreneurship, but this is not at all a reason for declaring these relations (interests) as a sphere of criminal law .

Thus, the following signs are characteristic of illegal entrepreneurial activity:

1) independence of economic activity and its implementation at your own risk;

2) systematic profit making as the goal of the activity;

3) the use of property, the sale of goods, the performance of work or the provision of services as sources of profit.

At the same time, the signs of entrepreneurial activity must be distinguished from the forms of illegal entrepreneurial activity, enshrined in the disposition of Article 171 of the Criminal Code of the Russian Federation.

Let us consider the above signs in more detail, and also distinguish entrepreneurial activity from other types of activity that are not a form of illegal entrepreneurship.

The first sign is the independence of economic activity and its implementation at one's own risk.

Independence presupposes, first of all, that an individual or legal entity - an entrepreneur participates in civil circulation directly, on his own behalf, by his own will and in his own interest .

Economic activity deprived of independence cannot be regarded as entrepreneurial. Such activity is most often legally mediated by an employment contract, even if it is not properly executed. An employment contract differs from civil law contracts (typical for entrepreneurship) in its subject matter. Subject employment contract is "the worker's living labor itself" ... Accordingly, in labor relations, the employee falls into the subordination of the employer, disciplinary relations arise, the employee's work is organized by the employer, who appropriates the income and bears the commercial risk of losses from entrepreneurial activity.

If the employer does not fulfill its obligations to formalize the employment contract and the functions of a tax agent, this does not turn the employment relationship into entrepreneurship. The procedure for remuneration of the employee is also not of fundamental importance, the employee's salary can be linked to the results of his labor activity and even to the results of the employer's entrepreneurial activity.

Let's give an illustrative example from practice:

“According to the verdict, E. for 30 months, in order to generate income, illegally carried out entrepreneurial activity without registration and special permission (license): he provided paid services to OJSC“ Maloarkhangelskiy District Food Processing Plant ”for road transportation of goods, carrying out loading and transport operations under a lease agreement vehicle, as a result of which they received income in the amount of 22.168 rubles. The Judicial Collegium for Criminal Cases of the Regional Court upheld the verdict. In protest, the Deputy Chairman of the Supreme Court of the Russian Federation raised the issue of canceling court decisions and discontinuing the case due to the absence of corpus delicti in E.'s actions. The Presidium of the Regional Court upheld the protest, stating the following.

E.'s activity does not fall under the characteristics of entrepreneurial activity, as defined in Art. 2 of the Civil Code of the Russian Federation, as an independent activity carried out at its own risk, aimed at systematic 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. At the preliminary investigation and in the court session, E. argued that he was not engaged in illegal business, had no intention of doing so, for the period of renting his car he was in labor relations with OJSC “Maloarkhangelsk District Food Processing Plant”. In November 1997. he was invited by the director of the food processing plant G. to work as a driver in his (E.) own car. An employment agreement was drawn up, according to which he worked from November 16 to December 31, 1997, and from January 3, 1998. in agreement with G. wrote an application for employment as a driver. An order was issued, which clarified the working conditions and wages, on January 3, 1998. a car rental agreement was also drawn up, which was signed by E.'s wife. His (E.'s) duties included loading and unloading operations, delivery of goods in a car belonging to him, for which he received a salary subject to income tax. E.'s testimony was corroborated by the testimony of witnesses and the written materials of the case.

The evidence examined by the court testifies to the fact that E.'s activity in the aforementioned JSC was not independent, since he followed the instructions of the plant's management for the transportation of goods. He was not responsible and did not risk in the event of a shortage or damage to the goods (which, as can be seen from the materials of the case, was accountable to other persons during transportation), from his wages the accounting department carried out different kinds withholdings (income tax, contributions to the Pension Fund), a schedule of recording his working hours was kept. Consequently, E.'s actions do not contain any signs of entrepreneurship, therefore, a special permit (license) for the carriage of goods in such circumstances was not required. In accordance with this, the conviction of E. for carrying out entrepreneurial activities associated with the extraction of income on a large scale, without registration and without a special permit (license) in cases where such a permit (license) is mandatory, cannot be recognized as justified " .

The greatest difficulties are associated with the delimitation from entrepreneurship of unregistered or incorrectly executed labor relations if the labor of employees is used to perform one-time work, for example, for the construction or renovation of apartments, offices, etc., and payment for the work is made as it is done. In such a situation, the fact who specifically organizes the performance of work (for example, determines and takes into account work time, makes orders regarding the implementation of specific actions, etc.). It should also take into account the presence of a duly executed contract providing for the contractor's liability for default.

In civil law relations, where the subject of the contract is not labor as such, but its results, the contractor retains his independence and acts at his own risk. It is the entrepreneur who has made a specific independent decision on his own behalf that legitimately creates both potential and real danger in order to make a profit, to achieve another entrepreneurial result that is unattainable using ordinary, risk-free means.

Given the variety of options for organizing work, it should be noted that in some situations, when delimiting entrepreneurship from labor relations, it is impossible to avoid a subjective assessment. Moreover, it is not the nature and degree of social danger of the deed that is assessed (as, for example, when assessing the amount of damage), but the line between socially useful labor activity and crime.

The second sign is the systematic receipt of profit as the goal of the activity.

The law defines systematic profit-making as the goal of entrepreneurial activity. Therefore, the systematic receipt of profit cannot be considered as a mandatory characteristic of the act. In reality, entrepreneurial activity may not bring profit at all, but losses, while it does not lose its entrepreneurial character. The law does not require entrepreneurial activity and systematic execution of transactions.

At the same time, the very understanding of an act as an “activity” presupposes the continued nature of such actions. "Entrepreneurial activity is a system, a set of consistently performed actions aimed at making a profit" ... Moreover, this continued activity should be aimed precisely at the systematic receipt of profit. If a person's actions are aimed at a one-time receipt of even a large income (for example, a real estate transaction), there will be no entrepreneurship. Moreover, according to the position of B.V. Volzhenkin, in a number of cases, even several cases of transactions cannot be attributed to entrepreneurial activity, for example, in the production from case to case of various small works under a work contract for a fee, but at the same time he recognizes as illegal entrepreneurship the execution of one large transaction, the performance of any significant work, the provision of a service, for example, the construction or repair of an object, the manufacture of a large batch of one or another product, in the process of which a system of actions aimed at extracting profits is actually carried out .

Thus, the researchers come to the conclusion that entrepreneurial activity is a single (united by the goal) continued activity, respectively, illegal entrepreneurial activity, by its very definition, is a single continued criminal act .

The third sign is the use of property, the sale of goods, the performance of work or the provision of services as sources of profit.

The Civil Code of the Russian Federation indicates that the sources of profit from entrepreneurial activity are the use of property, the sale of goods, the performance of work or the provision of services.

This provision is criticized in civil law as casuistic, it is noted that an entrepreneur can make profit from other sources, for example, from leasing property or under license agreements, granting rights to the results of his or someone else's intellectual activity .

In practice, the delivery of an apartment by a citizen under a commercial lease agreement is not considered as entrepreneurship, the Supreme Court of the Russian Federation in paragraph 2 of the Resolution of the Plenum No. 23 explained on this issue: or other real estate or received it by inheritance or under a gift agreement, but due to the lack of the need to use the property, temporarily rented it out or leased it and as a result of such a civil law transaction received income (including in a large or especially large size), what he has done does not entail responsibility for illegal business. If the specified person evades paying taxes or fees from the income received, his actions, if there are grounds for that, contain signs of corpus delicti under Article 198 of the Criminal Code of the Russian Federation. "

In general, characterizing legal concept entrepreneurial activity and illegal entrepreneurship, it should be noted that these concepts are not strictly defined, some signs for their establishment require a subjective assessment. In civil law, in relation to the needs of which the concept of "entrepreneurial activity" has been developed, this uncertainty is helped to overcome the sign of "state registration", which is unacceptable in criminal law, which has to deal with the implementation of entrepreneurial activity without registration.

Thus, it is necessary to distinguish between such concepts as entrepreneurial activity; legal business activities; illegal business activity. For these categories, the sign of "state registration" is characteristic only of legal entrepreneurial activity. Illegal entrepreneurial activity is made by the absence of formal signs - proper registration and compliance with the licensing procedure .

Illegal business is considered an offense. Depending on the degree of public danger and the amount of damage caused, this offense entails administrative (Article 14.1 of the Administrative Code of the Russian Federation) or criminal liability.

See for example: Comment on Civil Code Russian Federation, part one (edited by T.E. Abova and A.Yu. Kabalkin) - M .: Yurayt-Izdat, 2004.

Klepitsky I.A. The system of economic crimes - M .: Statute. - 2005 .-- p. 144.

A.V. Naumov Practice of application of the Criminal Code of the Russian Federation: commentary judicial practice and doctrinal interpretation. - Walters Clover, 2005

Tikhomirov M.Yu. Individual entrepreneur: legal position and activities. - Ed. Tikhomirova M.Yu., 2005

Gusov K.N., Tolkunova V.I. Labor law Russia. - M .: 2004. - p. 176.

Resolution of the Presidium of the Oryol Regional Court dated April 26, 2001 "The verdict was canceled and the case was dismissed due to the absence of illegal entrepreneurship in the actions of the convicted person" (extract) // Bulletin of the Supreme Court of the Russian Federation. - 2002 - No. 8. Yani P.S. Illegal Business and Legalization of Criminally Acquired Property // Legality. - No. 3.4. - 2005.

How to determine if your activity is entrepreneurial or not? For example, a bum picking up bottles and handing them over to a collection point - does his work show signs of entrepreneurship? And in the work of Petrovich, who made repairs to all the residents of our house and went to conquer the neighboring high-rise buildings? By the way, yesterday I was driving to the village in my car and gave a lift to two fellow travelers, they gave me some money when they left. Now I sit and think: "Maybe, as an honest citizen, I am now obliged to register an individual entrepreneur and hang checkers on the roof?" Let's see what signs characterize the presence of entrepreneurship in your actions. Actually, there are only three of them.

Organizational and property independence

So, the first sign is independence. It has two components: organizational and property.

Organizational component- this is the ability to independently make decisions in the course of their activities. For example, a homeless person decides what time he will go in search of bottles. He also develops his own working route. And if he wants, he will not go anywhere at all - he will make himself a day off. In general, he is independent in making decisions. He has no superiors, because he does not work anywhere. On the contrary, he is his own employer.

Property component- This is an independent use of own or borrowed property in work. For example, Petrovich rented a hammer drill and went to drill the walls with it for his client. In fact, the instrument is someone else's, but this does not prevent Petrovich from making money with it. The key factor is not ownership, but the ability to dispose of property as you see fit.

So, if you are independent, then congratulations - this is the first sign of entrepreneurial activity! Go ahead.

Profit orientation

The goal of any business is to make a profit. Ask yourself the question: "Am I doing this to earn something?" If so, then your actions correspond to the second characteristic of entrepreneurial activity. I would like to draw your attention to the following:

It is the focus on making a profit that is important, and not the fact of making it.

Due to various circumstances, you can work at a loss for a whole year. However, this does not mean that your activity is not aimed at making a profit.

For example, the Mega-Loch company sells toilet paper in the center of the capital. They buy goods for 50 kopecks, and sell them for 1 ruble. Is there a focus on making a profit? There is.

However, according to the results of the month, accountant Senya Lopukhov, having calculated all the income and expenses, is surprised to find that the company's activity turned out to be unprofitable - all the profit was "eaten" by the lease of premises.

There is no profit, but there is a focus on obtaining it, and this is precisely the second sign of entrepreneurial activity.

By the way, but in my case with fellow travelers there is no focus on making a profit. I drove to the village, my trip did not provide for the provision of transport services for money. Also, I did not announce any fare for my passengers - they independently decided on the amount of my reward. In general, "checkers" are canceled, gentlemen.

Systematic implementation of activities

You can give a ride to a fellow traveler once and receive a symbolic reward from him, or you can hang up "checkers", set tariffs and "tax" around the city all day long. Do you feel the difference? This is systematicity - the last sign of entrepreneurial activity.

What are the criteria for determining systematicity? If Petrovich consistently repairs three apartments a month - is this already systematic? And if - twenty apartments? And if one? It is clear that one apartment is not much, but if it is done monthly, then there is a regularity. However, you must agree that it is difficult to call a business the monthly execution of one small cosmetic repair. How, then, can one understand whether an activity is systematic or not?

The fact is that the legislation does not define clear criteria for systematicity. Therefore, the final decision depends on the "reviewers" who will analyze your activity for the presence of direct and indirect factors of regularity in it.

Direct factors of systematicity. There are two of them, and they are considered together:

• The frequency of making a profit over a certain period of time. You can calm down to your neighbor for a nominal fee, or you can go to three or four addresses every day. It is clear that in 30 days you will have up to a hundred trips. If you wish, it will not be difficult to prove systematic - just a few testimonials from clients who ordered services from you about the payment of a certain remuneration to you.
• The amount of profit received for a certain period of time. Homeless Grisha can bring glass containers to the reception center twenty times a day. However, his average monthly income is unlikely to attract the attention of a tax inspector. Quite another thing is the modest Isaak Moiseevich, who supplies gold to jewelry workshops only once a month, but in kilograms. As you can see, Isaac rarely works, but accurately - the size of his income is simply impressive.

Indirect factors of systematicity. They do not directly indicate the systematic conduct of activities, but they have all its signs. The following indirect factors are distinguished:

• The presence of advertising in the media and the Internet. If you regularly advertise your products or services, then this says only one thing - you are set to systematically generate income from the advertised activity. By the way, many "tax authorities" use the Internet and advertisements in advertising newspapers to reach persons engaged in illegal business. They just call ads, introduce themselves potential clients and easily fish out all the necessary information.
• Availability of price tags and tariffs. If you ask Petrovich about the cost of his services, you can hear the following: "Window slopes -" x "rubles, whitewashing the ceiling -" y "rubles, plastering walls -" z "rubles." Everything is laid out on the shelves and has its own price. You immediately understand that Petrovich has been doing repairs seriously and not for the first day, which means - systematically.
• A lot of time is devoted to the activity. If the girl Masha spends all her main time on the Moscow highway - St. Petersburg, practicing, then this is a sure sign of the regularity of her occupation. Actually, what was required to be proved.

So, friends, we examined the main features of entrepreneurial activity. By the way, why did we do it? Why do we need to know about them? Most often, these signs are of interest to those who fear accusations of illegal business. Do you know what illegal business is, and what kind of liability is threatened for its conduct? I think it's time.