An organization or individual entrepreneur can work in Russia only after state registration at the tax authority.

In the process of registering a new business, you need to take into account that some types of work and services require a special permit - a license. How is it drawn up and what types entrepreneurial activity require licensing, we will discuss further.

What works and services need to be licensed?

A license is required for such activities that may damage the legitimate interests and rights, life and health of the population of the Russian Federation, as well as the defense and security of the country, its ecology and cultural heritage.

The list of works and services for which permission is required is quite impressive and changes frequently. It is contained in Art. 12 of the Federal Law of 04.05.2011 No. 99-FZ "On licensing of certain types of activities":

• production of pharmaceuticals;
• transportation of passengers and goods by water, rail or air;
• passengers by road, with a capacity of more than 8 people;
• private security and detective (detective) activities;
• communication services, television and radio broadcasting;

This is an exhaustive list of licensed activities. Works and services not included in this list do not require a special permit.

The law clearly defines the types of activities that require a license.

Which persons are allowed to engage in certain types of activities specified in Law 99-FZ?

Organizations of different types have the right to obtain permission. legal form and individual entrepreneurs. Ordinary citizens are not allowed to perform work and provide services listed in the law. Therefore, without registering an individual entrepreneur or legal entity, a license cannot be issued.

Only individual entrepreneurs and organizations can obtain a license.

Requirements for applicants for a license

Organizations and individual entrepreneurs wishing to obtain a license for any type of activity must meet certain requirements. They are listed in Art. 8 of Law No. 99-FZ:

• the availability of real estate, equipment and technical means necessary to carry out the declared types of activities (owned or leased);
• availability of full-time employees with suitable education, qualifications and work experience in the specialty;
• availability of a production control system at the enterprise;
• compliance of the organizational form of the business with the requirements of the law. This rule is not relevant for all jobs. An example is alcohol production activities that can only be carried out by organizations.

The list of requirements can be expanded, since for each type of work and services its own legislative provision has been developed, which describes the nuances of obtaining a license.

Each licensed type of activity has its own list of requirements.

The procedure for licensing certain types of entrepreneurial activity

The algorithm for obtaining a license can be divided into three main stages:

1. Collection and submission of documents to the licensing authority

To find out where to apply for a license in each specific case, you need to look at the Decree of the Government of the Russian Federation of November 21, 2011 No. 957 "On the organization of licensing of certain types of activities." It lists all instances.

1. Consideration of the application and making a decision

After the transfer of the package of documents to the licensing authority, its employees begin to check the information. The term for consideration of documents depends on the type of license and is usually 45-60 days. If everything complies with the law, a decision is made to issue a license. If there are violations, the license is refused.

1. Applicant notification

In case of a positive decision, a notice is sent to the applicant indicating the account details and the deadline for paying the license fee.

A negative answer is also sent in writing to the applicant. The document states the reasons for the refusal and references to the applicable law.

The licensing authority must notify you in writing of the decision.

The validity period of the permit directly depends on the type of activity for which it is issued. The minimum period is 3 years, unless the applicant has indicated a shorter period. The license is renewed at the request of its owner. Permit document relevant throughout the territory of the Russian Federation.

Documents for licensing certain types of entrepreneurial activity

You will need to collect and submit the following papers to the licensing authority:

• application for a license;
• constituent documents of the organization or certificate of registration of the individual entrepreneur (copies);
• TIN (copy);
• documents confirming your compliance with the requirements of Law No. 99-FZ;
• a receipt for payment of the state duty;
• list of submitted documents;
• power of attorney for a representative, if another person acts on your behalf.

The list of documents depends on the type of licensed activity and can be expanded.

Documents can be submitted in three ways:

1. bring to the licensing authority in person;
2. send by mail by registered mail with a list of attachments and a return receipt;
3. via the Internet - in the format of an electronic document signed by a digital signature.

If the employees of the licensing authority found errors in your application, or you did not attach all the papers, you will be notified of this within 3 days from the date of submission of the documents. It is necessary to eliminate the violation within a month. Remember that with each re-submission of documents, you will have to pay the state fee again.

The size of the state fee for the provision of a license is 7,500 rubles

Reasons for refusal to issue a license

The grounds for refusal to issue a license may be:

• the information specified in the applicant's documents does not correspond to reality;
• the candidate does not meet the requirements of Law No. 99-FZ;
• the previously issued license was revoked (applies to the types of activities listed in paragraph 38 of article 12 of Law No. 99-FZ).

Wrongful refusal can be challenged in court. The same can be done in case of inaction of the licensing authority and the delay in the consideration of the application.

Refusal to issue a license is a reason to go to court.

Responsibility for carrying out entrepreneurial activity without a license

Violators face administrative, tax or criminal sanctions:

1. Administrative responsibility

Carrying out entrepreneurial activity without permission threatens with liability under Art. 14.1 of the Administrative Code of the Russian Federation. The legal entity will have to pay a fine of up to 50 thousand rubles, officials - up to 5 thousand rubles, citizens - up to 2.5 thousand rubles. You may also have manufactured products, tools and raw materials confiscated.

1. Tax liability

Some types of activity are exempt from taxation (Article 149 of the Tax Code of the Russian Federation). If you do them without a license, you will have to pay income tax for all operations.

1. Criminal liability

If work without a license caused major damage to citizens, organizations or the state, or brought you a large income, the punishment will follow under Art. 171 of the Criminal Code of the Russian Federation. The minimum sanction is a fine of up to 300 thousand rubles, the maximum is imprisonment up to 5 years.

For work without a license, you face a fine, and sometimes a prison sentence.

Obtaining a license for any type of entrepreneurial activity is a complex and time-consuming process that requires deep knowledge in the field of legislation. For a successful and quick passage of the procedure, it is better to seek the help of a lawyer.

Introduction

1. The concept of licensing. Licensing criteria and principles

Conclusion

Introduction

Market economy in Russian Federation causes the need for constant improvement and search for new legal means of state regulation of entrepreneurial activity. At the same time, the impact on business entities is implemented in the form mandatory requirements, which are presented to them at different stages of the implementation of certain types of entrepreneurial activity. In a number of such requirements, a requirement has been established that the entrepreneur must obtain a license. Moreover, the regulation of this requirement, both at the level of legislative acts and by-laws adopted in accordance with them, makes it possible to assert that a legal institution for licensing entrepreneurial activity has emerged. Consideration of the problems of licensing entrepreneurial activity is quite relevant, since a significant number of types of entrepreneurial activity are subject to licensing. Among them are such activities as banking, insurance activities, the activities of professional participants in the securities market, appraisal activity, audit activity, etc. And although the quantitative composition of licensed types of entrepreneurial activity has significantly decreased after the entry into force of the Federal Law of August 8, 2001 No. 128-FZ "On licensing certain types of activities", the influence of this institution on the activities of entrepreneurs is undoubtedly great. The relations emerging at the same time require not only adequate regulatory regulation, but also serious theoretical comprehension.

It must be admitted that the existing legal regulation of business licensing is not perfect. The norms of the 2001 Law on Licensing do not fully provide for the regulation of this legal institution, a general list of licensed types of entrepreneurial activity has not been established, for its understanding it is necessary to refer to other legislative acts. For example, the Law of the Russian Federation of November 27, 1992 No. 4015-1 "On the organization of insurance business in the Russian Federation" defines the types of insurance activities and, accordingly, the procedure for granting licenses to carry out such types of activities.

Recently, the legislator has been trying to improve the existing licensing legislation through the adoption of new legislative acts. For example, the adopted Federal Law "On Licensing Certain Types of Activities" No. 128 of 08.08.2001, Decree of the Government of the Russian Federation of 26.01.2006. No. 45 "On the organization of licensing of certain types of activities." In 2005 alone, the following changes were made: from January 1, 2005, Chapter 25.3 of the Tax Code came into force, which establishes the amount and procedure for payment of fees for the issuance of licenses; On July 2, 2005 and December 31, 2005, amendments were made to the Federal Law of 08.08.2001 No. 128-FZ "On licensing of certain types of activities" (Federal Law of 02.07.2005 No. 80-FZ and No. 200-FZ of 31.12.05) ; On July 21, 2005, the Federal Law of July 21, 2005 No. 114-FZ "On fees for the issuance of licenses to carry out activities related to the production and circulation of ethyl alcohol, alcoholic and alcohol-containing products" was issued. Also, Federal Law No. 102-FZ of July 21, 2005 changed the procedure for licensing the production, storage and supply of alcoholic beverages.

The purpose of this work is to study the legal institution of licensing entrepreneurial activity on the basis of the theory of business and civil law.

Based on federal legislation, I will reveal such issues as: the concept of licensing, the legal basis for licensing entrepreneurial activities, licensing requirements and conditions, the concept of a license and its content, the procedure for obtaining a license, the procedure for its suspension and cancellation, legal liability and others legal implications violations in the field of licensing.

1. The concept of licensing

The legal term "licensing" is derived from the word "license" (Latin licentia - right, permission). The legal definition of licensing is given in Art. 2 of the Federal Law "On licensing certain types of activities" dated 08.08.2001 No. 128-FZ (hereinafter the Federal Law "On licensing ..."): "licensing - activities related to the granting of licenses, re-issuance of documents confirming the availability of licenses, suspension of licenses in the event administrative suspension of the activities of licensees for violation of licensing requirements and conditions, renewal or termination of licenses, cancellation of licenses, control of licensing authorities over compliance by licensees in the implementation of licensed activities with the relevant licensing requirements and conditions, maintenance of registers of licenses, as well as with the provision of established order to interested parties of information from the registers of licenses and other information on licensing ”. From this definition, the following elements can be distinguished: licensing is the state's activities related directly to its functions - the protection of the interests and rights of citizens; licensed objects - licensed activities. That network is a licensed type of activity - a type of activity for the implementation of which on the territory of the Russian Federation a license is required in accordance with the legislation.

It should be noted that special regulations (regulating the licensing of a specific type of activity) specify and define the immediate objects of licensing. So, for example, the object of licensing the retail trade of alcoholic beverages is retail alcoholic products. Alcoholic beverages include drinking alcohol, vodka, liqueurs, cognacs (brandy), calvados, grape wine, fruit and berry wine and other food products containing ethyl alcohol produced from food raw materials, more than one and a half percent of the volume of a unit of alcoholic beverages.

Then the question arises: which activities are subject to licensing and which are not. The Federal Law "On Licensing ..." in this regard, there are a number of criteria. In accordance with the Law, licensed types of activity include types of activity, the implementation of which may entail damage to the rights, legitimate interests, health of citizens, the defense and security of the state, the cultural heritage of the peoples of the Russian Federation and the regulation of which cannot be carried out by other methods than licensing. ...

Thus, activities subject to licensing are, first of all, such activities that threaten to harm the moral or physical citizens or threaten the security of the state.

When carrying out licensing, the state, represented by the appropriate authorities, is guided by a number of principles:

Protection of freedoms, rights, legitimate interests, morality and health of citizens, ensuring the country's defense and state security;

Ensuring the unity of the economic space on the territory of the Russian Federation;

Establishment of a unified list of licensed types of activities and uniform order licensing on the territory of the Russian Federation;

Publicity and openness of licensing;

Compliance with the law in the implementation of licensing.

Thus, licensing is a tool used by the state, represented by the competent authorities, to directly protect the interests of citizens and the state itself.

Let's now turn to the concept of a license.

The Federal Law "On Licensing ..." defines that a license is a special permit to carry out a specific type of activity subject to mandatory compliance with licensing requirements and conditions, issued by the licensing authority to a legal entity or individual entrepreneur.

In the legal literature, it is noted that in Russian licensing legislation at various stages of its development, a license was considered as:

1) document (clause 1 of the Procedure for conducting licensing activities, approved by the Decree of the Government of the Russian Federation of December 24, 1994 N 1418);

2) law (Article 2 of the Federal Law No. 158 of September 25, 1998 "On licensing certain types of activities");

3) a legal fact in the form of an appropriate decision (part 3 of clause 1 of article 49 of the Civil Code of the Russian Federation dated November 26, 2001 No. 146-FZ (hereinafter referred to as the Civil Code of the Russian Federation)).

Licensing as a civil legal institution dates back to "pre-perestroika times", therefore, its stages legal regulation must be considered in historical development.

In Soviet law, licensing mainly performed the function of state control over the export and import of goods and the expenditure of foreign exchange funds. With the beginning of perestroika, the licensing institute reached a qualitatively new level. So, after the adoption of the Law of the RSFSR "On Enterprises and Entrepreneurial Activity", enterprises, regardless of their form of ownership, acquired the right to carry out any activities not prohibited by law in all spheres and industries. National economy... At the same time, certain types of activities of an enterprise could only be carried out on the basis of a special permit (license). Determining the list of activities and the procedure for issuing licenses was attributed to the competence of the Council of Ministers of the RSFSR and the Councils of Ministers of the republics that are part of the RSFSR, or their authorized bodies.

Decree of the Government of the Russian Federation of May 27, 1993 N 492 "On the powers of executive authorities of territories, regions, autonomous formations, cities of federal significance for licensing certain types of activities" approved the Model procedure for licensing certain types of activities in the territories of territories, regions, autonomous formations, cities of federal significance and the List of activities licensed in these territories. By this Resolution, the executive authorities of territories, regions, autonomous regions, autonomous regions, cities of federal significance were granted the right to license certain types of activities in accordance with the established List.

In turn, in pursuance of this Resolution and legal acts of the constituent entities of the Russian Federation, the bodies local government began to actively adopt municipal legal acts regulating relations on the application of licensing in the territories under their jurisdiction. As a result of such active lawmaking, there was a threat of uncontrolled expansion of the list of activities subject to licensing.

After the adoption of the Constitution of the Russian Federation in 1993, the process of streamlining licensing issues proceeded slowly, since a large number of acts that contradicted the adopted fundamental law of Russia had to be subject to examination, cancellation or appeal in court. In addition, the Government of the Russian Federation actively participated in the legal regulation of licensing issues.

One of the main laws that established the fundamental provisions for the application of such a regime as licensing was the Civil Code of the Russian Federation. Clause 1 of Art. 49 of the Civil Code of the Russian Federation, it was established that the list of activities that entrepreneurs can engage in only with a license is determined by federal law.

The result was the adoption of the Federal Law "On Licensing Certain Types of Activities" No. 158 of September 25, 1998, which consolidated the list of activities for which licenses are required.

Currently, the main normative act establishing the list of licensed types of activity and regulating the procedure for granting a license is the Federal Law "On Licensing Certain Types of Activities" dated 08.08.2001 No. 128-FZ.

2. Legal basis for licensing

The main normative act governing the licensing procedure in the Russian Federation is the Federal Law "On Licensing Certain Types of Activities". This Federal Law, in accordance with Article 1, regulates relations arising between federal executive bodies, executive bodies of the constituent entities of the Russian Federation, legal entities and individual entrepreneurs in connection with the implementation of licensing of certain types of activities in accordance with the list provided for by paragraph 1 of Article 17 of this Federal Law. The law does not apply to the following activities: activities credit institutions; activities related to the protection of state secrets; activity in the field of production and circulation of ethyl alcohol, alcoholic and alcohol-containing products; activities in the field of communications; exchange activity; activities in the field of customs; notarial activity; insurance activities, with the exception of pension insurance carried out by non-state pension funds; activities of professional participants in the securities market; implementation of foreign economic operations; implementation of international road transport cargo and passengers; acquisition of weapons and cartridges for it; use of the results of intellectual activity; the use of orbital-frequency resources and radio frequencies for television broadcasting and radio broadcasting (including broadcasting additional information); usage natural resources, including subsoil, forest resources, objects of flora and fauna; activities, works and services in the field of atomic energy use; educational activities.

These types of activities are licensed by special industry legislation. So when obtaining a license for the use of subsoil - the Law of the Russian Federation "On Subsoil" dated February 21, 1992 N 2395-1, when obtaining a license to carry out banking operations - the Law "On Banks and Banking Activities" No. 395-1 dated 02.12.1990 and etc.

All other types of activities specified in clause 1 of Art. 17 Federal Law "On Licensing ..." are licensed in strict accordance with the provisions of this regulation. The procedure for licensing the types of activities specified in Art. 17 is uniform and cannot be changed at the discretion of any authorities involved in the licensing procedures.

Federal Law of July 2, 2005 No. 80-FZ "On Amendments to the Federal Law" On Licensing Certain Types of Activities ", Federal Law" On the Protection of Rights legal entities and individual entrepreneurs in the course of state control (supervision) and the Code of Administrative Offenses of the Russian Federation "provides for a gradual reduction in the list of activities subject to licensing:

From January 1, 2006, the requirement for a license to carry out such activities as: survey service of sea vessels in seaports was abolished; activities for maintenance and repair of rolling stock at railway transport; activities for the maintenance and repair of technical equipment used in railway transport; appraisal activity; breeding of pedigree animals (unless the specified activity is carried out to meet the own needs of a legal entity or individual entrepreneur); activities for the production and use of pedigree products (material) (except for the case if the specified activity is carried out to meet the own needs of a legal entity or individual entrepreneur); audit activity; activities for the production of elite seeds (seeds of the elite); activities carried out at sea for the acceptance and transportation of catches of aquatic biological resources, including fish, as well as other aquatic animals and plants.

Licensing was terminated from January 1, 2007 the following types activities: tour operator; travel agency; design of buildings and structures, with the exception of seasonal or auxiliary structures; construction of buildings and structures, with the exception of seasonal or auxiliary structures; engineering surveys for the construction of buildings and structures, with the exception of seasonal or auxiliary structures.

The reduction in the types of activities subject to licensing occurs, in my opinion, due to the fact that, firstly, after obtaining a license, there is practically no control over activities. Meanwhile, the main danger to the interests of citizens is precisely the process of carrying out activities. Secondly, the process of obtaining a license for some types of activities has practically been turned into a formal procedure. This happened, first of all, because it is not difficult to comply with the requirements established by the law (availability of premises and qualified employees with education and work experience). As a result, the formal availability of licenses does not save consumers from unscrupulous manufacturers. Therefore, the prevailing trend is to transfer control from licensing to a product (service) quality control system.

The Federal Law "On Licensing ..." also established the competence of the Government of the Russian Federation in matters of licensing.

The Russian government, in order to ensure the unity of the economic space on the territory of the Russian Federation, in accordance with the main directions of the internal policy of the state determined by the President of the Russian Federation, approves the Regulations on the licensing of specific types of activities; determines the federal executive bodies that carry out licensing of specific types of activities; establishes the types of activities licensed by the executive authorities of the constituent entities of the Russian Federation.

Federal executive bodies, by agreement with the executive bodies of the constituent entities of the Russian Federation, may delegate to them the exercise of some of their powers. Thus, licensing can be carried out by federal state authorities, as well as by state authorities of the constituent entities of the Russian Federation in accordance with the Constitution of the Russian Federation and federal laws... Decree of the Government of the Russian Federation "On the organization of licensing of certain types of activities" dated 26.01.2006. No. 45 approved the list of federal executive bodies carrying out licensing; a list of the types of activities licensed by the executive authorities of the constituent entities of the Russian Federation and federal executive authorities developing draft regulations on licensing these types of activities.

Article 7 of the Federal Law "On Licensing ..." also solves the problem of license validity in space. Activities for which a license is granted by a federal executive body or an executive body of a constituent entity of the Russian Federation may be carried out throughout the entire territory of the Russian Federation. Activities for which the license is granted by the licensing authority of a constituent entity of the Russian Federation may be carried out in the territories of other constituent entities of the Russian Federation, subject to notification by the licensee of the licensing authorities to the corresponding constituent entities of the Russian Federation in the manner established by the Government of the Russian Federation. This procedure is established by the Decree of the Government of the Russian Federation of January 26, 2006. No. 45. The list of activities, licensing of which is carried out by the executive authorities of the constituent entities of the Russian Federation, is approved by the same decree. These include:

1) procurement, processing and sale of non-ferrous scrap;

2) procurement, processing and sale of ferrous scrap;

The list of specific executive authorities licensing the relevant types of activities is approved by each constituent entity of the Russian Federation independently. However, draft regulations on licensing specific types of activities carried out by the executive authorities of the constituent entities of the Russian Federation are being developed by the federal executive authorities - the Ministry of Industry and Energy of Russia with the participation of the executive authorities of the constituent entities of the Russian Federation.

Thus, the "licensing" legislation of the Russian Federation includes:

Civil Code of the Russian Federation (parts one, three, four)

Federal Law of August 8, 2001 N 128-FZ "On Licensing Certain Types of Activities";

Resolutions of the Government of the Russian Federation on licensing certain types of activities;

legal acts of federal executive bodies carrying out licensing;

legislation of the constituent entities of the Russian Federation;

normative acts of the executive authorities of the constituent entities of the Russian Federation, issued within the framework of their powers.

Licensing legislation is a relatively new developing area of ​​public law in the general system of licensing regulation in the Russian Federation

In the context of new forms of economic (market) relations, the rapid growth of the technogenic industry, environmental threats, the growth of social conflict, the priority task of the state has become the creation of new legal institutions and mechanisms adequate to the public state that ensure the safety of citizens, the legality of public relations and a stable order in the state. And licensing is undoubtedly one of such new legal institutions that meet the modern requirements of public relations in the Russian Federation.

3.1 Subjects of the licensing process

The subjects of the licensing process include licensing authorities, licensee, license applicant

Licensing bodies - federal executive bodies, executive bodies of the constituent entities of the Russian Federation, carrying out licensing in accordance with the Federal Law "On Licensing ...".

In general, the range of bodies performing licensing functions is very wide. The legislator has assigned the corresponding functions and powers to these bodies. So, for example, one of the main functions of licensing authorities, the legislator allocates supervision over compliance by licensees with license requirements and conditions - a system of measures implemented by licensing authorities, state supervisory and control bodies within their competence in order to ensure compliance by licensees in the implementation of licensed activities applicable licensing requirements and conditions. In exercising control, the licensing authorities have the right to request and receive the necessary explanations and documents; draw up reports on the basis of the results of inspections indicating specific violations; make decisions obliging the licensee to eliminate the identified violations, set the deadlines for the elimination of such violations; issue a warning to the licensee. The duties of the licensees correspond to these rights of the licensing authorities.

Licensee - a legal entity or individual entrepreneur licensed to carry out a specific type of activity;

License applicant - a legal entity or individual entrepreneur who applied to the licensing authority with an application for a license to carry out a specific type of activity.

3.2 License restrictions

The validity of the license is limited by the term, territory, entity that received the license, as well as the activity for which the license was obtained.

The license is issued separately for each licensed type of activity.

The license is the basis for the emergence of the legal capacity of the licensee, i.e. the opportunity to engage in certain types of activities, the list of which is determined by law (Article 49 of the Civil Code of the Russian Federation). The legal capacity acquired on the basis of the license determines the “personal” nature of the license, i.e. licensed activity can only be carried out by a specific individual entrepreneur-licensee or legal entity.

The Presidium of the Supreme Arbitration Court of the Russian Federation comes to the same conclusion in the Resolution of August 31, 1999 N 422/99. The case was considered at the suit of the entrepreneur M., a private practitioner, to invalidate the decision of the commission for licensing and certification of medical activities, in accordance with which the plaintiff was deprived of his license to engage in medical activities. The reason that served as the basis for the revocation of the license was the violation by the plaintiff of the conditions of its action, expressed in admission to the implementation of dental medical care another individual. The Presidium of the Supreme Arbitration Court of the Russian Federation ruled that the right to engage in private medical practice is purely individual and the license of a private practitioner cannot be extended to other persons. The admission of another person to such activities is a violation of the terms of the license.

Upon liquidation of a legal entity or the termination of the certificate of state registration of an individual as an individual entrepreneur, the issued license becomes invalid.

In the event of a reorganization of a legal entity in the form of transformation, a change in its name or its location, or a change in the name or place of residence of an individual entrepreneur, as well as in the event of a change in the addresses of places where a legal entity or individual entrepreneur carries out a licensed type of activity, the licensee is a legal entity or an individual entrepreneur or the assignee is obliged to submit an application for renewal of the document confirming the existence of a license within 15 days. Re-issuance of a license is carried out in the same manner as established for obtaining it. Before the license is renewed, the licensee operates on the basis of a previously issued license and a document confirming the submission of an application for renewal of the license, in case of loss of the license - on the basis of a temporary permit issued by the licensing authority.

Territory in which the license can be used.

Activities for which a license is granted by a federal executive body or an executive body of a constituent entity of the Russian Federation may be carried out throughout the entire territory of the Russian Federation. Activities for which the license is granted by the licensing authority of a constituent entity of the Russian Federation may be carried out in the territories of other constituent entities of the Russian Federation, provided that the licensee notifies the licensing authorities of the respective constituent entities of the Russian Federation.

In case of violation of this rule, that is, for carrying out activities on the basis of a license issued by the licensing authority of a constituent entity of the Russian Federation, in the territories of other constituent entities of the Russian Federation without notifying the licensing authorities of these constituent entities of the Russian Federation, the licensee is liable in accordance with the legislation of the Russian Federation.

However, it should be noted that if the licensed type of activity is carried out at several geographically separate facilities, including those located on railway, aviation, sea and river transport, the licensee is issued simultaneously with the license its certified copies for each facility indicating its location. Copies of such a license are registered with the licensing authority. When the list of geographically separate facilities where the licensee operates, additional copies of the license are issued at the request of the licensee with the attachment of documents provided for by the Regulations.

The license is an urgent permit, that is, limited in time.

The term of the license is the period of time from the moment of its issuance, which the licensee can carry out the activities provided for by the license.

The general term of the license is determined in Article 8 of the Federal Law "On Licensing Certain Types of Activities" and cannot be less than five years. The term of validity of the license upon its expiration can be extended at the request of the licensee. Renewal of the license may be refused if violations of license requirements and conditions have been recorded during the license validity period.

The specific term of the license is always set in the regulations on licensing a certain type of activity, approved by the Government of the Russian Federation.

Most often, the RF Government sets a term of 5 years. But there are also exceptions. In particular, the Regulations on Licensing Activities in the Field of Communications in the Russian Federation, approved by Resolution of the Government of the Russian Federation No. 642 of June 5, 1994, a license is issued for a period of 3 to 10 years (excluding licenses for television and radio broadcasting).

Licensing regulations for specific types of activities may provide for an indefinite validity of the license.

The indefinite validity of the licenses is also provided for in the decree of the Government of the Russian Federation of January 26, 2006. No. 45 "Licenses for carrying out the types of activities specified in paragraph 1 of Article 17 of the Federal Law" On Licensing Certain Types of Activities ", issued before the entry into force of the Federal Law of July 2, 2005 No. 80-FZ" On Amendments to the Federal Law " On the licensing of certain types of activities ", the Federal Law" On the Protection of the Rights of Legal Entities and Individual Entrepreneurs during State Control (Supervision) "and the Code of the Russian Federation on Administrative Offenses" are valid until the expiration of the period specified in them or are unlimited (in the case of an unlimited license ) ".

An indefinite validity is provided for some types of activities when the license term is renewed. For example, in the Regulations on Licensing the Activities of Investment Funds, approved by Decree of the Government of the Russian Federation No. 432 of July 14, 2006, the following rule is established: a license to operate investment funds is granted for five years. When renewing the license, it is valid indefinitely or during the period specified in the application for renewing the license.

The extension of the license validity period is carried out in the order of renewal of the document confirming the existence of the license.

At the same time, it is essential for the license renewal procedure to submit the licensee's respective application with all the necessary documents in a timely manner. It is timely to submit an application before the license expires. Otherwise, the renewal of the license will be impossible, since the license itself will already be absent and a legal entity or individual entrepreneur needs to obtain (and not renew) a license in the manner prescribed by Art. 9 of the Federal Law "On Licensing ...".

The expiration of the license term means the termination of the right of the person who received the license to carry out the relevant type of activity. At the same time, the present person loses the status of the licensee, since together with the expiration of the license, the licensing relations between the legal entity or individual entrepreneur and the state are terminated.

3.3 Procedure for obtaining a license

In order to obtain a license, a license applicant submits an application for a license to the appropriate licensing authority, which indicates:

Full and (if any) abbreviated name, including the company name, and the organizational and legal form of the legal entity, its location, addresses of the places of implementation of the licensed type of activity that the applicant intends to carry out, state registration number records on the creation of a legal entity and data of a document confirming the fact of entering information about a legal entity in the unified state register of legal entities - for a legal entity;

Surname, name and (if any) patronymic of an individual entrepreneur, his place of residence, addresses of places of implementation of the licensed type of activity that the applicant intends to carry out, data of his identity document, main state registration number of the record on state registration of an individual entrepreneur and data a document confirming the fact of entering information about an individual entrepreneur in the unified state register of individual entrepreneurs - for an individual entrepreneur;

An identification number the taxpayer and the data of the document on the registration of the license applicant with the tax authority;

Licensed type of activity in accordance with paragraph 1 of Article 17 of the Federal Law "On Licensing ...", which the license applicant intends to carry out.

Attached to the license application are:

Copies of constituent documents (with the presentation of originals if the copies are not certified true to a notary) - for a legal entity;

A document confirming the payment of the state fee for the consideration by the licensing authority of an application for a license.

Depending on the specifics of the activity, the regulation on licensing of a particular type of activity may provide for the submission of other documents confirming the compliance of the license applicant with the established licensing requirements and conditions.

So, for example, to obtain a production license medicines, license applicants, along with the documents provided above, will have to provide the following documents:

List of medicines that the license applicant is ready to manufacture;

Description of the main technological processes ensuring the quality of medicines;

Consent of local authorities to locate drug production in the relevant territory;

Copies of documents certifying that the license applicant (licensee) has the necessary buildings, premises and equipment to carry out licensed activities, owned or otherwise legally owned;

Copies of the sanitary and epidemiological conclusion on the compliance of the production of medicinal products with the requirements of sanitary rules issued in accordance with the established procedure;

Copies of documents confirming the qualifications of specialists responsible for the production, quality and labeling of medicines that meet the licensing requirements and conditions.

But it is not allowed to require the license applicant to submit other documents not provided for by the Federal Law "On Licensing ..." and other federal laws and regulations on licensing specific types of activities.

The application for the grant of a license and the documents attached to it on the day of receipt by the licensing authority are accepted according to the inventory, a copy of which with a note on the date of receipt of the specified application and documents is sent to the license applicant.

The licensing authority checks the completeness and accuracy of the information about the license applicant contained in the application and documents submitted by the license applicant, as well as verifies the possibility of the license applicant fulfilling the license requirements and conditions.

At the stage of consideration of documents on the issuance of a license, licensing control is carried out (Article 12 of the Federal Law "On licensing certain types of activities") in the form of verification:

Completeness and accuracy of information about the license applicant contained in the application and documents submitted by the license applicant;

Opportunities for the license applicant to fulfill the license requirements and conditions in the manner prescribed by the Federal Law.

Until now, the licensing authorities have made a decision to issue a license or refuse to issue it only on the basis of the information provided by the applicant. Verification of the information provided was only the right and not the responsibility of the licensing authorities.

Now verification is carried out by comparing such information with information from a single state register legal entities or the unified state register of individual entrepreneurs. The licensing body receives the relevant information in the manner prescribed by the Government of the Russian Federation from the federal executive body authorized to carry out state registration of legal entities and individual entrepreneurs.

The licensing authority makes a decision on granting or refusing to grant a license within a period not exceeding forty-five days from the date of receipt of the application for the grant of a license and the documents attached thereto. This decision is formalized by the relevant act of the licensing authority.

The licensing authority is obliged to notify the license applicant within the specified period of the decision to grant or refuse to grant a license. The grounds for refusal to grant a license are:

Presence of inaccurate or distorted information in the documents submitted by the license applicant;

Inconsistency of the license applicant, objects belonging to him or used by him, licensing requirements and conditions.

The issuance of a document confirming the existence of a license is carried out within three days after the applicant submits a document confirming the payment of the license fee for granting a license. If the licensee has not paid the license fee within three months, then the licensing authority that issued the license has the right to cancel it.

At the request of a license applicant or licensee, a simplified licensing procedure may be applied in relation to certain types of activities licensed in order to protect property rights and legitimate interests of citizens. It is possible if the license applicant or the licensee concludes a civil liability insurance contract or if the licensee has a certificate of compliance with the licensed type of activity carried out by him. international standards with regard to licensing the following activities: operation of fire hazardous production facilities; activities for the restoration of cultural heritage sites (historical and cultural monuments); transportation by sea cargo; carriage of goods by inland waterway; air transportation of goods; railway transportation of goods, cargo luggage; transportation of goods (movement of goods without concluding a contract of carriage) on public railway tracks, with the exception of cleaning up the arrived cargo from the railway exhibition tracks, returning them to the railway exhibition tracks; loading and unloading activities in relation to dangerous goods in inland waterway transport, in seaports, on railway transport; activities for the implementation of towing by sea (except for the case if the specified activity is carried out to meet the own needs of a legal entity or individual entrepreneur).

Under the simplified licensing procedure, the applicant does not submit documents confirming his compliance with the licensing requirements. The term for consideration of documents has been reduced to 15 days. The transition to a simplified system is of a notification nature. Subsequently, the licensee is exempted from routine inspections of his compliance with license requirements and conditions by the licensing authority.

The introduction of a simplified licensing procedure is due to the general trend of reducing control over entrepreneurial activity and the need to avoid duplication of state functions, because the presence of a liability insurance contract or a certificate of compliance with certain requirements implies that the requirements for a person upon obtaining a license are also met.

3.4 Suspension and revocation of the license

In accordance with the Federal Law "On Licensing ...", the suspension of the license is carried out by the licensing body in the event that the licensee is brought to administrative responsibility for violation of licensing requirements and conditions in the manner established by the Code Of the Russian Federation on administrative offenses. Licensing authorities are empowered to suspend a license in cases of their detection of repeated violations or gross violation by the licensee of licensing requirements and conditions.

If a judge makes a decision on the administrative suspension of the licensee's activities for violation of licensing requirements and conditions, the licensing authority within 24 hours from the date of accession this decision in legal force suspends the license for the period of administrative suspension of the licensee's activities.

Simultaneously with the suspension of the license, the licensing body is obliged to establish a time limit for the licensee to eliminate violations that became the basis for the suspension of the license. This period cannot exceed six months. After elimination of violations, the licensee notifies the licensing authority with the attachment of all necessary documents. The law did not set a time limit for the licensing authority to consider the licensee's notification on the elimination of violations that became the basis for the suspension of the license. Thus, the current period is established either by regulations on licensing specific types of activities, or by departmental acts of licensing authorities. In particular, in accordance with clause 6 of the Regulations on the licensing of tour operator activities, "the period for checking the elimination of violations by the licensee that led to the suspension of the license should not exceed 15 days from the date of receipt of the notification from the licensee on the elimination of these violations."

Of course, in the course of inspections, licensing authorities reveal a wide variety of violations by licensees of licensing requirements and conditions. It seems interesting to give one illustrative example from arbitration practice, dedicated to the violation of license requirements and conditions by a licensee carrying out passenger transportation. The decree of the FAS East Siberian District of April 4, 2002 N А78-4530 / 01-С2-20 / 225-Ф02-785 / 02-С1 states the following: "... the court of first and appeal instances established that the entrepreneur Kochergina IV under the license N ASG 75 043805 of March 1, 01, carries out the transportation of passengers by buses. The license does not indicate which type of transport - public or non-public - transportation should be carried out. Of the Road Transport Charter and Transportation Rules Protocol N 002809 on an administrative offense of September 19, 01 established a violation in the form of a refusal to provide a discount for travel for disabled people of group 1. By Decree N 002859/624 of October 2, 2001 entrepreneur I. V. was brought to administrative responsibility for violation of licensing conditions, i.e. according to part 3 of article 157.3 of the Code of Administrative Offenses of the RSFSR. The court of first and appeal instances, recognizing valid the given contested decision, indicated the following. The Federal Law "On Licensing ..." determined that licensing requirements and conditions are a set of requirements and conditions established by regulatory legal acts, the fulfillment of which by the licensee is mandatory when carrying out the licensed type of activity. Art. 9 it is determined that one of mandatory conditions and the requirements for the implementation of licensed activities by licensees is compliance with the legislation of the Russian Federation, environmental, sanitary-epidemiological, hygienic, fire-prevention norms and rules, as well as provisions on licensing of specific types of activities. In accordance with Art. 30 of the Federal Law of November 24, 1995 N 181-FZ "On social protection disabled people in the Russian Federation "disabled children, their parents, guardians, trustees, as well as disabled people, including disabled persons of the 3rd group, enjoy the right of free travel on all types of public transport urban and suburban communication, except for taxis. The court of first instance rightly concluded that public transport is a transport intended for the transport of an indefinite number of persons, regardless of the form and type of ownership vehicle... The plaintiff's transport is a public transport, regardless of whether it is indicated in the license or not. The plaintiff refuses to transport those categories of citizens who, in accordance with the legislation of the Russian Federation, are granted the right to travel free of charge, violating both the aforementioned Law and the Temporary Transportation Rules approved by the Ministry of Transport of the Russian Federation of September 22, 1997 ”.

The license is renewed in two cases:

By the licensing authority - from the day following the expiry date of the administrative suspension of activities;

With the onset of the day of early termination of execution administrative punishment in the form of administrative suspension of activities. To do this, it will be necessary to apply to the judge with the appropriate application.

The validity period of the license is not renewed for the period of its suspension.

If, within the time period established by the judge, the licensee has not eliminated the violation of the license requirements and conditions, which entailed the administrative suspension of the licensee's activities, the licensing authority must apply to the court with an application to revoke the license.

The license is canceled by a court decision on the basis of consideration of the application of the licensing authority.

The grounds for revoking a license, in accordance with this clause 4 of article 13 of the Federal Law "On licensing ..." are: 1) failure by the licensee to eliminate, within the period specified by the licensing authority, gross or repeated violations of licensing requirements and conditions; 2) failure of the licensee to pay the license fee for granting a license within three months from the date of granting the license; 3) violation by the licensee of licensing requirements and conditions that entailed damage to rights, legitimate interests, health of citizens, defense and security of the state, cultural heritage of the peoples of the Russian Federation.

4. Legal responsibility and other legal consequences of violations in the field of licensing of certain types of activities

Consider the possible consequences of violations of activities in the field of licensing from the point of view of civil, administrative and criminal legislation.

Code of Administrative Offenses of 30.12.2001 No. 195-FZ in Art. 14.1 provides for liability for carrying out activities in violation of the terms of the license or without a license.

Carrying out entrepreneurial activity without a license takes place when activities are carried out after the application for a license has been submitted, but before a positive result is obtained and notification of the licensing carried out; the activity continues after receiving the decision of the licensing authority to refuse to issue a license, and although in this case a negative decision can be appealed, the person does not have the right to engage in activities requiring licensing; the activity continues after the suspension of the license if violations of the licensing requirements and conditions have been identified; the activity is carried out after the revocation of the license by the licensing authority or by the court; entrepreneurial activity is carried out after the expiration of the license.

Carrying out entrepreneurial activity without a special permit (license), if such a permit (such license) is mandatory (mandatory), entails the imposition of an administrative fine on citizens in the amount of twenty to twenty-five times the minimum wage with or without confiscation of manufactured products, production tools and raw materials. such; on officials - from forty to fifty times the minimum wage with or without confiscation of manufactured products, production tools and raw materials; for legal entities - from four hundred to five hundred times the minimum wage with or without confiscation of manufactured products, production tools and raw materials.

If this act caused major damage to citizens, organizations or the state, or is associated with the extraction of income on a large scale, then it is a crime and is punished in accordance with Article 171 of the Criminal Code of the Russian Federation of 05.24.1996. Criminal liability for illegal entrepreneurship can arise only for violation of the licensing rules established by federal legislation. In case of violation of the licensing rules established regulations subjects of the Russian Federation, criminal liability does not arise. Otherwise, the grounds for criminal prosecution for illegal entrepreneurship in the constituent entities of the Russian Federation would be different.

Article 172 of the Criminal Code of the Russian Federation is specifically devoted to illegal banking activities. Thus, criminal liability arises for carrying out banking activities (banking operations) without a special permit (license) in the case when such a permit (license) is mandatory, or in violation of the licensing conditions, if this act caused major damage to citizens, organizations or the state, or is associated with generating income on a large scale.

In accordance with Art. 203 of the Criminal Code of the Russian Federation, criminal liability arises for exceeding the head or employee private security or the detective service of the powers granted to them in accordance with the license, contrary to the tasks of their activities, if this act was committed with the use of violence or with the threat of its use. The same act, which entailed grave consequences, is punished more severely.

Unlawful refusal to issue a license to carry out certain activities, if these acts were committed by an official using his official position, or in violation of an effective judicial act, as well as causing major damage, are punished in accordance with Article 169 of the Criminal Code of the Russian Federation. In this case, obstruction of legal entrepreneurial activity encroaches on a very important area of ​​public relations associated with free enterprise, the right to which is granted to citizens by the Constitution of the Russian Federation (Article 34).

In the Civil Code of the Russian Federation, the possibility of concluding a number of contracts is directly stipulated by the presence of an appropriate license (Articles 825, 835, Clause 4, Articles 845, 938, 1063).

In accordance with Art. 173 of the Civil Code of the Russian Federation, a transaction made by a legal entity that does not have a license to engage in the relevant type of activity may be recognized by the court as invalid. Statement of claim on the recognition of the transaction as such is submitted by a legal entity, its founder (participant) or a state body exercising control and supervision over its activities, if it is proved that the other party to the transaction knew or should have known about its illegality.

As an example, the position of the judiciary regarding claims for invalidating transactions on the grounds provided for in Art. 173 of the Civil Code of the Russian Federation, you can give an example from the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 04.21.98 N 33.

The specialized investment fund for privatization (the seller) filed a claim with the arbitration court to invalidate the contract for the sale of shares it had concluded and to apply the consequences of the invalidity of the transaction. The court, having established that the investment fund, not having the necessary license giving the right to engage in the relevant activities, entered into a sale and purchase transaction of shares, declared it invalid on the basis of Article 173 of the Civil Code of the Russian Federation (hereinafter referred to as the Code).

By a decision of the cassation instance, the decision was canceled, and the proceedings were terminated with reference to the consideration by another arbitration court of a case in a dispute between the same persons, on the same subject and on the same grounds (Article 85 of the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the APC RF ).

The Presidium of the Supreme Arbitration Court of the Russian Federation recognized the conclusion of the cassation instance as erroneous and canceled its decision.

When checking the materials of the case, it was established that the investment fund carried out activities subject to licensing, including transactions with shares, in the absence of an appropriate license. Article 173 of the Civil Code provides for the right of a legal entity that has made a transaction without a license to engage in the relevant activity to challenge it in court. Such a transaction is invalidated if it is proven that the other party to the transaction knew or should have known about its illegality. The decision of the court of first instance, which recognized the agreement concluded by the investment fund as invalid, was made in accordance with the specified article of the Code and is correct.

Summing up, we can say that the condition for the legal activity of economic entities is the compulsory obtaining of a license in the cases provided for by law, and compliance with licensing rules. For failure to fulfill this obligation, one or another type of legal liability may be applied to violators.

Conclusion

This paper considers legal position licensing in the Russian Federation. As a result, a number of conclusions can be drawn.

First of all, the institution of licensing is an important civil legal institution - aimed at directly protecting the interests of citizens, ensuring the country's defense, state security and other interests of the state itself.

It provides for the implementation of measures related to the issuance of licenses, the suspension and cancellation of licenses, the control of licensing authorities over the observance by licensees in the implementation of licensed activities of the relevant licensing requirements and conditions.

Legal basis licensing constitute Art. 49 of the Civil Code of the Russian Federation, Federal Law "On licensing certain types of activities", acts of the constituent entities of the Russian Federation. In addition, the procedure for licensing specific types of activities is determined by the relevant provisions. The effect of the Federal Law "On licensing certain types of activities" does not apply to the types of activities, the list of which is given in its article 1 (insurance, notary, stock exchange, credit organizations and others). The licensing procedure for these types of activities is determined by special legislation.

The development of licensing norms from securing the complete freedom of administrative discretion of executive authorities in the field of applying preventive measures in the field of licensing towards limiting their powers, as well as the very grounds for application, indicates the undesirability of transferring such an instrument of influencing entrepreneurship entirely into the hands of the executive. In this regard, there is a reduction in the types of activities subject to licensing. The prevailing trend is to transfer control from licensing to a product (service) quality control system.

When engaging in entrepreneurial activity, for which, in accordance with the legislation, a special permit (license) is required, it is necessary to strictly comply with licensing standards, do not allow the activity to be carried out until it is obtained. A person carrying out entrepreneurial activities in violation of the terms of a license or without a license bears administrative (article 14.1 of the Code of Administrative Offenses of the Russian Federation) or criminal liability (article 171 of the Criminal Code of the Russian Federation). Likewise, officials of bodies authorized to conduct licensing activities are subject to criminal liability for illegal refusal or evasion of a license (Article 169 of the Criminal Code of the Russian Federation).

List of normative material and literature

1. Constitution of the Russian Federation of 12.12.1993 / Legal systems ConsultantPlus.

2. The Arbitration Procedure Code of the Russian Federation of July 24, 2002 N 95-FZ / Legal system ConsultantPlus

3. Civil Code of the Russian Federation (parts one, two, four) / Legal systems ConsultantPlus

4. Code of Administrative Offenses of 30.12.2001 No. 195-FZ / Legal system ConsultantPlus

5. The Criminal Code of the Russian Federation of May 24, 1996, No. 63-FZ / Legal system ConsultantPlus.

6. Federal Law "On Licensing Certain Types of Activities" No. 128 of 08.08.01 (as amended by FZ No. 200-FZ of 31.12.2005) / Legal system ConsultantPlus.

7. Federal Law of July 2, 2005 No. 80-FZ "On Amendments to the Federal Law" On Licensing Certain Types of Activities ", Federal Law" On the Protection of the Rights of Legal Entities and Individual Entrepreneurs during State Control (Supervision) and the Code of Administrative Offenses of the Russian Federation "/ Legal system ConsultantPlus.

8. Federal Law "On State Regulation of the Production and Turnover of Ethyl Alcohol, Alcoholic and Alcohol-Containing Products" dated 22.111995 No. 171-FZ / Legal System ConsultantPlus.

9.Federal Law "On Banks and Banking Activities" No. 395-1 dated 02.12.1990 / Legal system ConsultantPlus.

10. Law of the Russian Federation "On Subsoil" dated 02.21.1992 No. 2395-1 (revised on 08.22.2004 "122-FZ) / Consultant.

11. Decree of the Government of the Russian Federation of February 11, 2002 N 9 "On Approval of the Regulations on Licensing Tour Operator Activities" / Legal Systems ConsultantPlus

12. Decree of the Government of the Russian Federation of January 26, 2006. № 45 "On the organization of licensing of certain types of activities" / Legal systems ConsultantPlus.

13. Regulations on licensing the production of medicines, approved by the Decree of the Government of the Russian Federation dated 06.07.2006 No. 415 / Legal systems ConsultantPlus

14. Decree of the Government of the Russian Federation of 14.07.2006 No. 432 "On approval of licensing the activities of investment funds" / Legal systems ConsultantPlus.

15. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation in August 31, 1999 N 422/99 / Bulletin of the Supreme Arbitration Court of the Russian Federation. 1999. N 12. S. 43 Legal system / ConsultantPlus

16. Resolution of the FAS of the East Siberian District of April 4, 2002 N А78-4530 / 01-С2-20 / 225-Ф02-785 / 02-С1

17. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 14, 1998 in case N 1173/98 / Consultant - Judicial practice

18. Information mail Of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 04.21.98 N 33.

19. Commentary on the Federal Law "On Licensing of Certain Types of Activities", ed. L.N. Tkach, publishing house. Legal house "Justicinform", 2003

20. Ershova I.V. Business Law: Questions and Answers. - 3rd ed., Rev. and add. - M .: Publishing House "Jurisprudence", 2005. - 288p.

21. Zvonenko D.P. New law on licensing // Consultant. 2002. No. 1.

22. Business law of the Russian Federation: textbook / otv. ed. E.P. Gubin, S.A. Lakhno. M., 2004

23. Syutkina M.A. New simplified procedure for obtaining licenses and other novelties of licensing legislation / Entrepreneur without a legal entity PBOYUL No. 5 2006

24. G. V. Melnichuk. Administrative responsibility for violation of licensing conditions / Law and Economics No. 2, 2003.

Article 7 of the Federal Law "On Licensing of Certain Types of Activities" dated 08.08.2001 No. 128-FZ

Resolution of the Government of the Russian Federation of January 26, 2006. No. 45 "On the organization of licensing of certain types of activities"

Regulation on licensing the production of medicines, approved by the Decree of the Government of the Russian Federation dated 06.07.2006 No. 415.

Article 9 of the Federal Law "On Licensing Certain Types of Activities" dated 08.08.2001 No. 128-FZ

Syutkina M.A. New simplified procedure for obtaining licenses and other novelties of licensing legislation / Entrepreneur without a legal entity PBOYUL No. 5, 2006

Article 9 of the Federal Law "On Licensing Certain Types of Activities" dated 08.08.2001 No. 128-FZ

Article 9 of the Federal Law "On Licensing Certain Types of Activities" dated 08.08.2001 No. 128-FZ.

Regulations on the licensing of tour operator activities, approved by Decree of the Government of the Russian Federation of February 11, 2002 N 9.

Art. 13 of the Federal Law "On Licensing of Certain Types of Activities" dated 08.08.2001 No. 128-FZ.

Arbitration Procedure Code of the Russian Federation of July 24, 2002 N 95-FZ.

Korovinskikh S. Criminal liability for illegal business // Russian justice. 2000. N 4.

Business licensing.

Licensing is a type of state control aimed at ensuring the protection of the rights, legitimate interests, morality and health of citizens, ensuring the country's defense and state security.

Licensing - activities related to the granting of licenses, the suspension and renewal of licenses, the cancellation of licenses and the control of licensing authorities over the observance by licensees in the implementation of licensed activities of the relevant licensing requirements and conditions.

The legal basis for licensing business activities is currently Article 49 of the Civil Code of the Russian Federation, Federal Law of September 25, 1998 No. 158-FZ "On licensing certain types of activities", acts of the constituent entities of the Russian Federation that determine the licensing procedure. In addition, the procedure for licensing specific types of activities is determined by acc. provisions that are approved by the Government of the Russian Federation. On August 8, 2001, the President of the Russian Federation signed a new Federal Law No. 128-FZ “On Licensing Certain Types of Activities”. Licensing can be carried out by federal state authorities, as well as by state authorities of the constituent entities of the Russian Federation, acc. with the Constitution of the Russian Federation and federal laws. Decree of the Government of the Russian Federation of April 11, 2000 No. 326 "On licensing certain types of activities" approved the list of federal executive bodies that carry out licensing. In Moscow, this activity is carried out specially by the creation of the Moscow Licensing Chamber.

The law grants licensing authorities very broad rights related to their activities. Thus, within the framework of control over the licensee's compliance with license requirements and conditions, licensing authorities have the right to conduct inspections of the licensee's activities; request and receive the necessary explanations and information; draw up reports on the basis of the results of inspections indicating specific violations; make decisions obliging the licensee to eliminate the identified violations, set the deadlines for the elimination of such violations; issue a warning to the licensee. The new law on licensing introduces the principle of establishing a single list of licensed activities. By virtue of this principle, the list of licensed types of activity can be determined only by the Federal Law "On Licensing Certain Types of Activities". The introduction of licensing for other types of activities is possible only by making appropriate amendments to this Law.

In order to become a licensee, that is, a person licensed to carry out a specific type of activity, the license applicant submits the following documents to the appropriate licensing authority: 1) Application for a license. 2) A copy of constituent documents and a certificate of state registration as a legal entity or, respectively, a copy of a certificate of state registration of a citizen as an individual entrepreneur. 3) A copy of the certificate of registration with the tax authority; 4) A document confirming the payment of the license fee for the consideration of the application by the licensing authority. The new Law provided for a fixed amount of the license fee for considering an application - 300 rubles.

The grounds for refusal to issue a license may be: a) the presence of inaccurate or distorted information in the documents submitted by the license applicant; b) non-compliance of the license applicant, the objects belonging to him or used by him with the license requirements and conditions. Refusal to issue a license m. appealed by the applicant. The basis for re-issuing a document confirming the existence of a license for a legal entity is its transformation or change of name or location.

For individual entrepreneurs, the basis for re-registration is a change in name or place of residence. In addition, the basis for re-issuance is the loss of the document confirming the license. Licensing authorities are empowered to suspend a license in the event that they identify repeated violations or gross violation by the licensee of licensing requirements and conditions. License loses legal entity. force: - in case of liquidation of a legal entity. person or termination of the certificate of state registration of a citizen as an individual entrepreneur; - in case of reorganization of legal entities. person, excluding transformation. The licensing law also provides grounds for revoking a license.

There are two groups of such grounds and the corresponding two procedures for revoking a license. 1) Administratively, that is, by the licensing authority itself without going to court, the license may be canceled if the licensee fails to pay the license fee for the license within three months; 2. In court, on the basis of the application of the licensing authority, the license is canceled: - if the violation by the licensee of the licensing requirements and conditions entailed damage to the rights, legitimate interests, health of citizens, as well as the defense and security of state-TV, the cultural heritage of the peoples of the Russian Federation; - if the licensee fails to eliminate repeated or gross violations of license requirements and conditions after the suspension of the license.

Certain types of activities, the list of which is determined by the Federal Law dated 04.05.2011 No. 99-FZ "On licensing certain types of activities" ( Further- Law No. 99-FZ), legal entities and individual entrepreneurs can be engaged only on the basis of a special permit - a license. This list is exhaustive, therefore, those types of entrepreneurial activities that are not indicated in it are not subject to licensing. What is the procedure for licensing business activities, we will consider in more detail in the presented material.

What is licensing and why is it needed

According to the provisions of Part 2 of Art. 3 of Law No. 99-FZ, a license is a special permit for a legal entity or individual entrepreneur to carry out a specific type of activity (performance of work, provision of services that constitute a licensed type of activity), which is confirmed by a document issued by the licensing authority.

Licensing implies the activities of licensing authorities to grant, reissue licenses, extend the validity of licenses, exercise license control, suspend, renew, terminate and revoke licenses, form and maintain a register of licenses.

Several principles of licensing are enshrined in the legislation of the Russian Federation, regardless of the type of licensed activity:

• the type of activity permitted by the license can be carried out by the licensee throughout the territory of the Russian Federation, regardless of whether it is issued by a federal or regional executive authority;

Note!

In cases where a license is issued by a body of a constituent entity of the Russian Federation, the implementation of a licensed type of activity on the territory of other constituent entities of the Russian Federation is possible only after the licensee has notified the licensing authorities of the corresponding constituent entities of the Russian Federation.

• The license grants the right to carry out the type of activity specified in it only to the licensed economic entity, that is, the license is not subject to transfer to another legal entity or individual entrepreneur, except in cases of legal succession in the transformation of a legal entity.

As a rule, a license is issued for an unlimited period, but in some cases, its term may be limited by regulatory enactments.

How to get a license

To obtain a license, it is necessary to follow a certain procedure, which includes, first of all, the submission of the necessary documents to the appropriate licensing authority. The list of licensing bodies is defined in the Decree of the Government of the Russian Federation of November 21, 2011 No. 957 "On licensing certain types of activities", as well as in the regulatory legal acts that regulate the receipt of licenses for specific types of activities.

An application for a license must contain:

• for legal entities: full and abbreviated name, including the corporate name and organizational-legal form of the legal entity, its location, addresses of the places of implementation of the licensed type of activity, the state registration number of the record on the creation of the legal entity and the data of the document confirming the fact of entering information about the legal entity in the Unified State Register of Legal Entities;
• for an individual entrepreneur: full name, place of residence, addresses of places of implementation of the licensed type of activity, passport, main state registration number of the state registration record of the individual entrepreneur and data of the document confirming the fact of entering information about the individual entrepreneur into the USRIP;
• TIN and data of the document on the registration of the license applicant with the tax authority;
• licensed type of activity.

The following documents are attached to the license application:

• copies of notarized constituent documents - for legal entities;
• a document confirming the payment of the state fee;
• copies of documents, the list of which is determined by the regulation on licensing a specific type of activity and which indicate that the license applicant has the ability to fulfill licensing requirements and conditions, including documents, the presence of which in the implementation of a licensed type of activity is provided for by federal laws.

Note!

The licensing authority does not have the right to require the license applicant to submit documents that are not provided for by law.

On the basis of the inspection carried out, the licensing authority makes a decision on granting or refusing to grant a license within a period not exceeding forty-five days from the date of receipt of the application and the documents attached to it. This decision is formalized by the relevant act of the licensing authority. Sometimes, for some types of activities, a shorter time frame for making this decision is set.

What is subject to licensing

Many types of activities are subject to licensing, which are listed in Art. 12 of Law No. 99-FZ:

• development, production, repair and testing of aviation equipment;
• processing of oil and gas and products of their processing;
• pharmaceutical activity;
• space activities, etc.

But in practice, for entrepreneurship, the following are of greatest interest:

• educational activities;
• medical activity;
• activities for the transportation of passengers;
• installation, maintenance and repair of security equipment fire safety buildings and structures;
• private security activities;
• provision of communication services and other types of activities in demand in the sphere of life.

Obtaining a license for some types of entrepreneurial activity is sometimes a difficult and time-consuming process, since some types of activity have specific characteristics and require the provision of additional documents. It is worth considering the fact that there are many by-laws that specify and detail the law on licensing. Whatever region of the country you live in, Moscow or on the periphery, our online consultants will help you figure out the licensing of your activities in a short time.

Sample application

To submit an application, you can use the prepared form general form and fill it up.

The form is available for download and viewing.

Download a sample license application (.docx)

Licensing of certain types of activities, including entrepreneurial ones, is carried out on the basis of the federal law of August 8, 2001 No. 128-FZ with numerous subsequent amendments (of 13.03.2002; of 21.03.2002; of 09.12. 2002; 10.01.2003; from 27.02.2003; from 11.03.2003; from 26.03.2003; from 23.12.2003; from 02.11.2004. ), in connection with which this law should be used when studying this topic according to the EPS ConsultantPlus or Garant.

License - This is a special permit for the implementation of a specific type of activity subject to mandatory compliance with licensing requirements and conditions, issued by the licensing authority to a legal entity or individual entrepreneur. A legal entity or an individual entrepreneur licensed to carry out a specific type of activity are called licensees.

The license includes a list of powers that are within the competence of an economic entity in relation to licensed activities that require special knowledge or special conditions for their implementation, licensing requirements for employees of a legal entity, as well as requirements for compliance with the specified special conditions of an object in which or with the help of which this type of activity is carried out. These requirements are associated, first of all, with the potential for harm to the legitimate interests, morality and health of citizens, the interests of society and the state in the event that such activities are carried out unskilled or unskilled.

Licensing is a type of government control. The issuance of licenses and control over the observance of licensing requirements and conditions is carried out by the licensing authorities, i.e. oran federal authorities and executive authorities of the constituent entities of the Russian Federation carrying out licensing in accordance with the licensing legislation (for example, the licensing chambers of the constituent entities of the Russian Federation).

The Decree of the Government of the Russian Federation approved the List of federal executive bodies that carry out licensing and the List of types of activities licensed by the executive bodies of the constituent entities of the Russian Federation, as well as federal executive bodies developing draft regulations on licensing these types of activities.

At the federal level, the licensing authorities are the ministries - transport, Agriculture, culture, internal affairs, and some state committees - each within the framework of their competence.

The executive authorities of the constituent entities of the Russian Federation license such activities as the production of disinfectants, veterinary activities, procurement, processing and sale of non-ferrous scrap, public display of audiovisual works, if these activities are carried out in a cinema hall.

Provisions on licensing certain types of activities (foreseen in advance in the federal law!) Are adopted at the level of the Government of the Russian Federation, and for some types of activities - at the level of ministries of the federal level.

The Law on Licensing establishes a single list of licensed types of activity (in clause 17 of the Law, more than a hundred types are listed). In addition, some other types of activities subject to licensing, in addition to the list given in Art. 17 of the Licensing Law may be established at the level of other federal laws - this applies to banking, insurance and a number of other types of activities.

If a particular type of activity is not subject to licensing by virtue of federal law, no other bodies, including at the regional level, can provide for the licensing of this activity.

Licensed types of activity include those types of activities, the implementation of which may entail damage to the rights, legitimate interests, health of citizens, defense and security of the state, the cultural heritage of the peoples of the Russian Federation and the regulation of which cannot be carried out by other methods except licensing.

In particular, activities related to tourism, transportation, weapons and military equipment, medical, veterinary services, non-state (private) security and detective activities and more. The list of activities requiring a license for its implementation is contained in Art. licensing law. In addition, certain types of activities subject to licensing are specified in other federal laws.

Thus, special federal legislation regulates the licensing of the activities of credit institutions. activities in the field of production and circulation of alcoholic beverages, activities in the field of communications, customs, foreign economic operations and other activities specified in paragraph 2 of Art. 2 of the Licensing Law. The number of types of licensed activities has been significantly reduced by the current legislation, which in itself is aimed at developing entrepreneurship, limiting the arbitrariness of officials, but at the same time it should be noted that licensing for some types of activities was clearly canceled prematurely (for example, this applies to real estate activities or the activities of arbitration managers).

A separate license is provided for each type of activity provided by law. The type of activity for which a license is granted can only be performed by a licensed entity - a legal entity or an individual entrepreneur.

Activities for which a license is granted by a federal executive body or an executive body of a constituent entity of the Russian Federation may be carried out throughout the territory of Russia. Activities for which the license is granted by the licensing authority of a constituent entity of the Russian Federation may be carried out in the territories of other constituent entities of the Russian Federation, provided that the licensee notifies the licensing authorities of the corresponding constituent entities of the Russian Federation in the manner established by the Government of the Russian Federation.

The term of the license cannot be less than five years. Upon the expiration of the license, it can be extended at the request of the licensee by reissuing the document confirming the existence of the license. Licensing regulations for specific types of activities may provide for an indefinite validity of the license.

To obtain a license, the license applicant submits the following documents to the relevant licensing authority:

Application for a license indicating the name and organizational-legal form of the legal entity, its location - for the legal entity; surname, name, patronymic, place of residence, data of an identity document - for an individual entrepreneur; the licensed type of activity that a legal entity or individual entrepreneur intends to carry out;

Copies of constituent documents and a copy of the document on state registration of the license applicant as a legal entity (with the presentation of originals if the copies are not certified by a notary), and for an individual entrepreneur - a copy of the certificate of state registration of a citizen as an individual entrepreneur (with the presentation of the original in case of if the copy is not certified by a notary);

A copy of the certificate of registration of the license applicant with the tax authority (with the presentation of the original if the copy is not certified by a notary);

A document confirming the payment of the state fee for the consideration by the licensing authority of an application for a license;

Information about the qualifications of the license applicant's employees or the qualifications of the individual entrepreneur himself.

In addition to these documents, the provisions on licensing of specific types of activity may provide for the submission of other documents, the presence of which in the implementation of a specific type of activity is established by the relevant federal laws, as well as other regulatory legal acts, the adoption of which is provided for by the relevant federal laws.

It is not allowed to require a license applicant to submit documents not provided for by the Federal Law on Licensing and other federal laws.

All documents are accepted by the licensing authority from the applicant according to the inventory with the issuance of a copy of it to the applicant.

The licensing authority makes a decision on granting a license or refusing to grant a license within a period not exceeding sixty days from the date of receipt of an application for a license with all necessary documents... The corresponding decision is formalized by the order of the licensing authority. Shorter terms for making a decision on granting or refusing to grant a license may be established by regulations on licensing specific types of activities.

The licensing authority is obliged, within the same 60-day period, to notify the license applicant about the decision to grant or a reasonable refusal to grant a license - in writing, indicating the details of the bank account and the deadline for paying the state fee for granting the license (if the decision is positive). Thus, in case of a positive decision, the fee will have to be paid twice - for the consideration of the license and for the issuance of the license.

Within three days after the license applicant submits a document confirming the payment of the state fee for granting a license, the licensing authority issues to the licensee a document confirming the existence of a license, which must indicate the licensee, his location (residence), TIN and license validity period.

Licensing authorities keep registers of licenses for the types of activities that they license.

The grounds for refusal to grant a license are:

Presence of inaccurate or distorted information in the documents submitted by the license applicant;

Inconsistency of the license applicant, objects belonging to him or used by him, licensing requirements and conditions.

Refusal to issue a license on the basis of the amount of products (works, services) produced or planned for production by the license applicant is not allowed. The license applicant in all cases has the right to appeal to the court against the licensing authority's refusal to grant a license or its failure to act.

In the event of a transformation of a legal entity, a change in its name or location, or a change in the name or place of residence of an individual entrepreneur, or the loss of a document confirming the existence of a license, as well as in other cases stipulated by federal laws, the licensee is a legal entity (its successor) or an individual entrepreneur - must submit an application for renewal of the document confirming the existence of a license, with the attachment of documents confirming the specified changes or the loss of a document confirming the existence of a license, no later than fifteen days later

Re-issuance of a document confirming the existence of a license is carried out within ten days from the date of receipt by the licensing authority of the relevant application. A state fee is charged for re-issuing a document confirming the existence of a license.

Licensing authorities have the right (and are obliged) to monitor compliance by the licensee with the license requirements and conditions within the competence provided to them by the Law on Licensing. These bodies have the right to suspend the license in case the licensing bodies identify repeated violations or gross violations (assessment category!) By the licensee of the license requirements and conditions for a period of up to six months. There is no license renewal fee. The validity period of the license is not renewed for the period of its suspension.

In the event that the licensee has not eliminated the indicated violations within the prescribed period, the licensing authority has the right (and is obliged) to apply to the court with an application to revoke the license. Only a court can revoke a license, but there is an exception: licensing authorities can revoke a license without going to court if the licensee fails to pay the state fee for granting a license within three months.

The court may revoke the license on the basis of the application of the licensing authority if the violation by the licensee of the license requirements and conditions entailed damage to the rights, legitimate interests, health of citizens, the defense and security of the state, the cultural heritage of the peoples of the Russian Federation, or if the licensee did not eliminate the violations after suspension validity of the license Simultaneously with filing an application with the court, the licensing authority has the right to suspend the said license for a period until the entry into force of the court decision.

The license loses legal force in case of liquidation of a legal entity or termination of its activities as a result of reorganization, with the exception of its transformation, or in case of termination (for any reason!) Of the certificate of state registration of a citizen as an individual entrepreneur, as well as entered into force a court decision to revoke the license.

The information contained in the register of licenses is open for acquaintance with it by individuals and legal entities. This information in the form of extracts from the register about specific licensees is provided to individuals and legal entities upon their applications within three days, and on a paid basis.

Responsibility for offenses in the field of state registration and licensing

Violation of the legislation on licensing by organizations and individual entrepreneurs when carrying out entrepreneurial activity in cases established by law entails administrative and criminal liability of the guilty persons for illegal entrepreneurship.

So, part 2 of Art. 14. 1 of the Code of Administrative Offenses of the Russian Federation provides for administrative responsibility of citizens, officials and legal entities for carrying out entrepreneurial activities without a special permit (license), if such a permit is required. The punishment is provided in the form of a fine, the amount of which is set for each of the indicated subjects separately. Confiscation of manufactured products, production tools and raw materials is also possible. With a literal interpretation of this wording, it seems to follow that confiscation can only be applied to entities that manufactured products for sale without a license for making and sale. It seems that by trade enterprises in this case, confiscation can also be applied if the seller sells the product without the required license.

Part 3 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation provides for the responsibility of citizens, officials and legal entities in the form of fines of various sizes imposed for carrying out entrepreneurial activities in violation of conditions provided for by a special permit (license).

For the same offenses (activities without a license, when it is necessary, or in violation of licensing conditions), criminal liability is also provided - Art. 171 of the Criminal Code of the Russian Federation.

The article contains three independent elements of crimes related to the implementation of entrepreneurial activity: engaging in such activities without state registration of a legal or natural person; without obtaining a license, if necessary; in violation of the terms of licensing.

Committing the relevant offenses can lead to criminal liability only if they have caused major damage to citizens, organizations or the state, or the income received as a result of these actions is large. Punishment for such crimes is established in the form of fines of various sizes, compulsory labor, arrest or imprisonment for up to three years.