TO THE QUESTION OF ADMINISTRATIVE RESPONSIBILITY UNDER PART 1 ARTICLE 14.1 OF THE CODE OF ADMINISTRATIVE OFFENCES OF THE RUSSIAN FEDERATION

ABSTRACT

The article deals with the offense - the implementation of entrepreneurial activities without state registration as an individual entrepreneur or legal entity. Along with this, the administrative responsibility provided for the above offense under Part 1 of Art. 14.1 of the Code of Administrative Offences of the Russian Federation. The motive of this offense is described, the effectiveness of administrative responsibility under Part 1 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation, it is proposed to increase administrative responsibility in order to effectively counteract the motive of the above offense, as well as in order to increase state support for entrepreneurial activity by financing it from the state budget, the main source of replenishment of which is the payment of taxes.

АННОТАЦИЯ

В статье рассматривается правонарушение – осуществление предпринимательской деятельности без государственной регистрации в качестве индивидуального предпринимателя или юридического лица. Описывается мотив данного правонарушения, анализируется эффективность административной ответственности по ч. 1 ст. 14.1 КоАП РФ, предлагается усиление административной ответственности с целью эффективного противодействия рассмотренному правонарушению, а также в целях повышения государственной поддержки предпринимательской деятельности путем ее финансирования из средств государственного бюджета, основным источником пополнения которого является уплата налогов.

Keywords: Entrepreneurship; administrative responsibility; offense; punishment; sanctions restrictions; governmental support; subject.

Ключевые слова: предпринимательство; административная ответственность; административное правонарушение; наказание; санкционные ограничения; государственная поддержка; субъект.

Proceeding from the sense of Article 34 of the Constitution of the Russian Federation, everyone has the right to use their own abilities and means for entrepreneurial or other economic activities, which are not prohibited by Russian legislation [1].

Dwelling on entrepreneurial activity, which is a special type of economic activity, it is important to note that in practice often meetings persons who carry out these activities without state registration as an individual entrepreneur or legal entity. This circumstance in the administrative legislation is qualified as an offence (article 14.1 of the CAO RF) [2].

The disposition of part 1 of article 14.1 of the CAO RF gives an idea only about the objective side - the actions of a person recognized as unlawful and this is the actual actions of a person in the form of entrepreneurial activity without proper state registration or permit (license). The object is public relations in the field of entrepreneurial activity, which are regulated and protected by administrative legislation. The subject is an individual or legal entity, which according to the norms of the CAO RF can bear administrative responsibility (articles 2.3. and 2.10.). Generally, the subjective aspect of an administrative offence manifests itself in the culpable conduct of a subject, expressed in intent and negligence, which is reflected in article 2.2. of the CAO RF. In relation to the considered corpus delicti, guilt is expressed in intentional actions: it is impossible to carry out entrepreneurial activity without state registration or permit (license) by negligence.

As correctly noted by E.A. Chernyshova and I.N. Zaitseva, often the motive of this offense is the desire to avoid paying taxes in order to benefit property[3]. However, it is worth noting that in addition to non-payment of taxes, these subjects avoid planned as well as unplanned inspections of regulatory authorities. This avoids the possibility of detecting violations and, accordingly, any administrative penalties. Of course, the legislative power of the Russian Federation in order to prevent actions or omissions aimed at carrying out illegal business activities, enshrines in the legislation types of legal responsibility for this act. In particular, this responsibility is stipulated in article 14.1 of the CAO RF and article 171 of the Criminal Code of the RF. Let's focus attention on administrative responsibility for illegal entrepreneurship.

According to part 1 of Article 14.1 of the CAO RF, "the conduct of business without state registration as an individual entrepreneur or without state registration as a legal entity, except as provided in part 2 of Article 14.17.1 of the CAO RF shall incur an administrative fine from five hundred to two thousand rubles.

It should be noted that the sanction for this offence in the administrative legislation of Russia is much milder than, for example, in the Republic of Azerbaijan. Considering the administrative responsibility for this offence under the administrative legislation of the Republic of Azerbaijan, one can see that the penalty for this offence is more severe.

Thus, article 398 of the Code of Administrative Offences of the Republic of Azerbaijan provides for punishment in the form of a fine from twice to four times the amount of damage (profit gained) caused as a result of an administrative offence[4]. The issue of punishment for this administrative offence is resolved differently under the administrative legislation of the Republic of Kazakhstan.

It provides for a more severe punishment than in the Russian Federation, but more loyal than in the Republic of Azerbaijan. Thus, in accordance with Article 153 of the Code of Administrative Offences of the Republic of Kazakhstan, this act - shall entail a fine of 30 to 50 percent of the damage caused (profits received)[5] .

From point of view the authors, if we take into account the current situation (international sanctions imposed on the Russian Federation), which has a negative impact on the economic sector of the Russian Federation, it would be appropriate to take measures that would simultaneously aim to develop entrepreneurial activity and simultaneously replenish the state budget in order to further assign funds for the development of the economic sector in the country.

It is important to note the very timely state support for entrepreneurial activity in July 2022 in the form of administrative incentives for such activity. Thus, on July 14, 2022 Federal Law No. - 290 "On Amendments to the Code of the Russian Federation on Administrative Offenses and Article 1 of the Federal Law "On Amendments to the Code of the Russian Federation on Administrative Offenses" was adopted, under which administrative responsibility for certain offenses is reduced[6].

For example, if the subjects of entrepreneurial activity voluntarily compensated the caused damage, they will pay a minimum administrative fine. Also in the case of primary commission of an offence in the circumstances enshrined in part 2, part 3 of article 3.4 and part 2 of article 4.1.1 of the CAO RF, the administrative penalty in the form of a fine shall be replaced with a warning. Besides, the list of circumstances is expanded, when within 20 days from the date of the decision on the violation, the fine can be paid in half size. These are the offences of unfair competition, illegal actions for receipt or provision of a credit report or information, etc. (enshrined in part 1.3-1 of article 23.2 of the CAO RF).

At the same time, for a number of administrative offences the period of execution of penalties under the relevant decrees has been increased from one month to six months. In particular, these are offenses, for which the execution of a decision on imposing an administrative penalty in the form of administrative detention, deprivation of a special right, compulsory expulsion from the Russian Federation of a foreign citizen or stateless person or in the form of an administrative fine is impossible within the prescribed period.

Undoubtedly, the state policy aimed at administrative stimulation of entrepreneurial activity has a productive impact on the economy in the country. But from point of view the authors, this stimulation can be improved. So, by making responsibility under part 1 of Article 14.1 of the CAO RF more severe, it is possible to more effectively influence the mandatory procedure of state registration of entrepreneurial activity, in the implementation of which there will be replenishment of the state budget (tax payments). This replenishment, in turn, will supplement the funds for state financing of entrepreneurial activity, which will effectively affect the economy of the country.

In addition, the sanction enshrined in part 1 of article 14.1 of CAO RF, does not fulfill all the tasks of this code, which are listed in article 1.2 of CAO RF. So, for example, such a task as "protection of legitimate economic interests of individuals and legal entities, society and the state from administrative offences" is not performed. This is due to the fact that, firstly, carrying out illegal entrepreneurial activity, a person often sells products that do not comply with technical regulations. Secondly, carrying out illegal entrepreneurial activities, a person does not pay taxes, which are the main revenues to the state budget.

The measure of responsibility in the form of a fine from 500 to 2,000 rubles for the offence of part 1 of article 14.1 of the Code on Administrative Offences of the Russian Federation "doing business without state registration as an individual entrepreneur or without forming a legal entity" is unlikely to be effective, since it does not "dampen the desire (motive) to evade taxation. Accordingly, the above tasks under article 1.2 of the CAO RF do not have full prospects for achievement.

It is also important to note that since 22.06.2007, no changes have been made to part 1 of article 14.1 of the CAO RF. In connection with the fact that the economic situation in the country since 2007 has not cardinally changed towards improvement, it would be advisable to make certain amendments. In particular, to strengthen sanctions for the offense provided for by part 1 article 14.1 of the CAO RF, namely to increase the measure of administrative punishment in the form of an administrative fine, that is, to set it at twice the amount of damage (received profit) incurred as a result of administrative misconduct.

This change will achieve the objectives of the CAO RF, as well as prevent offenses under part 1 of article 14.1 of the CAO RF.

References:

1. Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) (with amendments made by the Federal Constitutional Law "On Amendments to the Constitution of the Russian Federation" of December 30, 2008 № 6-FKZ, of December 30, 2008 № 7-FKZ, of February 5, 2014 № 2-FKZ, of July 21, 2014 № 11-FKZ, of March 14, 2020 №1-FKZ) // Rossiyskaya Gazeta. - 1993 - Dec. 25; Collection of Legislation of the Russian Federation. - 2020 - № 11 URL: https://www.consultant.ru/document/cons_doc_LAW_28399/  (accessed 22.02.2023).
2. Code of the Russian Federation about administrative offences from 30.12.2001 N 195-FZ (rev. from 18.03.2023) [Electronic resource] URL: https://www.consultant.ru/document/cons_doc_LAW_34661/  (date of treatment: 20.02.2023).
3. Chernyshova E. A. Implementation of entrepreneurial activity without state registration / E. A. Chernyshova, I. N. Zaytseva. - Text : direct // Young scientist. - 2020. - № 51 (341). - С.307-309.
4. Code of Administrative Offences of the Republic of Azerbaijan [Electronic resource] URL: https://continent-online.com/Document/?doc_id=36865427  (accessed 22.02.2023).
5. Code of the Republic of Kazakhstan on Administrative Offences [Electronic resource] URL: https://online.zakon.kz/Document/?doc_id=31577399 (accessed  22.02.2023).
6. Federal  law "About modification of the Code of the Russian Federation about administrative offences and article 1 Federal law "About modification of the Code of the Russian Federation about administrative offences" from 14.07.2022 N 290-FZ [Electronic resource] URL: https://www.consultant.ru/document/cons_doc_LAW_421890/  (date of treatment: 24.02.2023).