Правовое государство: теория и практика (Oct 2023)
ON THE DESIGN OF CORPUS DELICTI OF CRIMINALLY PUNISHABLE ILLEGAL ENTREPRENEURSHIP AND THE PRACTICAL IMPLICATIONS OF DETERMINING ITS TYPE
Abstract
In the modern criminal law doctrine, there is a division of corpus delicti into material corpus delicti and formal corpus delicti, depending on the presence in them of signs of socially dangerous consequences and causal relationship between the act and the consequence. The literal interpretation of the disposition of Article 171 of the Criminal Code of the Russian Federation allowed most researchers to conclude that corpus delicti of such a crime as illegal entrepreneurship refers, according to this classification, to formal-material corpus delicti. Those who attribute corpus delicti of illegal entrepreneurship to material corpus delicti remain in the minority. On the one hand, the literal interpretation of the disposition prevents an unambiguous statement of the «materiality» of corpus delicti of illegal entrepreneurship on the basis of extracting a large income. On the other hand, law enforcement practice considers the sign of extracting a large income precisely as a socially dangerous consequence. Taking into account the presence of a similar corpus delicti in the legislation on administrative offenses, as well as the existence of the problem of qualifying an incomplete crime of formal corpus delicti, outwardly a purely doctrinal question about «formality» and «materiality » of corpus delicti of illegal entrepreneurship in fact reveals a number of consequences of a purely practical nature. Purpose: to analyze doctrinal and law enforcement problems related to the qualification of criminally punishable and administratively punishable illegal entrepreneurship. Methods: general scientific (analysis, synthesis, generalization and comparison), empirical (comparison, description, interpretation), specific scientific (legal-dogmatic and intersectoral). Results: the study (on the examples of the problem of distinguishing between administratively punishable and criminally punishable illegal entrepreneurship, as well as qualifying the latter as an incomplete crime) shows that the criminal law norm providing for liability for illegal entrepreneurship is applied to the relevant social relations in such a way that it is necessary to state the «materiality» of corpus delicti contained therein. The conclusions of the supporters of this position, despite the fact that they are in the minority, continue to find practical confirmation. In all analyzed criminal cases, the courts have established the sign of extracting a large income from illegal entrepreneurship in the same way as the consequences are established in the corpus delicti of crimes, the «materiality » of which no one doubts.
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