Проблемы применения административно-правовой и гражданско-правовой ответственности при осуществлении хозяйствующим субъектом деятельности в отсутствии лицензии

The problem of administrative and civil liability in the implementation of economic entities in the absence of a licence

The article based on the analysis of judicial practice administrative and civil penalties provided for carrying out activities without a license. The article considers the questions of goals and criteria of licesing. Author comes to conclusion about public nature of licesing process. That is why the penalties for carrying out activities without a license are firstly public - administrative and criminal. Administrative penalty submitted by art. 14.01 as a fine and confiscation of manufactured products and instruments of production and raw materials or administrative suspension of activity for up to ninety days. Criminal penalty aren't considered in this article, because entities can't be the subject of the crime. Whereas the process of reception of a license considered as a foundation of entity's capacity carrying out activities without a license leads to application of civil penalties. They are: liquidation of the entity and recognition of the contract as invalid. Author comes to conclusion that liquidation of the entity protects public order and can't defend contractor's interests. The proofs of this conclusion are a circle of persons entitled to claim on the liquidation of a legal person - there are no counterparts of economic entities. Another civil penalty for carrying out activities without a license - recognition of the contract as invalid also analyzed in this article. It is known that transaction made by a legal person who has no license for the relevant activity may be deemed invalid by a court at the suit of the legal entity, its founder (participant) or a public body exercising control or supervision of the entity, if it is proved that the other party the transaction knew or should have known about its illegality (art. 173 of the Civil Code). Author concludes that provisions of Art. 173 of the Civil Code provides for unscrupulous entities - performers, as they may at any time as necessary to overturn the deal and return to its original position (unless it is proved that the other party to the transaction knew or should have known about it illegality). In conclusion author comes to the idea of inadequacy of mechanisms for the protection of public and private interests, which requires a permit in law.