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Licensing of certain types of entrepreneurial activity: the procedure and essence of the event. Licensing of entrepreneurial activity in the Russian Federation Licensed entrepreneurial activity

The legislation of the Russian Federation and many other countries regulates the mandatory licensing of a number of types. The laws also establish a list of business areas required for obtaining a license. The organization of any "case" ignoring this aspect of the law is a serious violation, for which Various types punishments.

License as an official document

Licensing is a set of measures aimed at obtaining licensing documents for a certain aspect of life. This process also includes:

license control;
providing documents to confirm that a person has licenses;
verification of compliance with all license requirements;
cancellation of received documents and permits;
introduction of license registries and so on.

Licensing certain types entrepreneurial activity (PD) is a very important process introduced by the government of the Russian Federation to ensure the security of our country and from unauthorized types of entrepreneurship.

The state monitors compliance with all license clauses of each type of business activity that may be dangerous for the inhabitants of Russia and require specialized skills to carry out their functioning.

Thus, it is possible to single out the general principle of forming the need for licensing PD: licensed types of entrepreneurship include all areas of organizing any actions that can infringe on the rights of citizens, harm the state, violate laws, be dangerous to the health of the country's inhabitants and pose a danger to the security of Russia in in general. All types of PD with a similar characteristic cannot be organized without a licensing event.

Goals ( general principles) licensing of certain types of business activities include:

organization of a single, equal economic field for all on the territory of the country;
formation of a unified list and procedure for obtaining licenses for certain areas of business;
establishment of a number of requirements and regulations for licensing;
compliance with all fundamental principles of the legislation of the Russian Federation.

Depending on the process of licensing, it can be divided into two types: general (compliance with the rules of the basic law) and special (obtaining a license under special legislation). The overall result of successful licensing of a certain type of entrepreneurial activity is obtaining a license to carry out any "case" and its existence approved by law.

This outcome is determined by the issuance of a license, which is a special document allowing a legal entity or business to be engaged and issued for a fixed period or indefinitely.

Types of entrepreneurial activity required for licensing

The entire process of licensing PD is based on compliance with all aspects of the current legislation of the Russian Federation. For the most part, it relies on the Federal Law of April 22, 2011 (No. 99-F3). Licensing obligations are imposed on the authorities of the Russian Federation, legal entities and individual entrepreneurs (IP).

Also, Law No. 99-F3, or rather its 12th article, regulates almost the entire list of types of entrepreneurship that require mandatory licensing. The main provisions of the article state that a license is required for the following areas of PD:

educational;
medical;
pharmaceutical;
security;
communicative (television and radio broadcasting);
transportation of more than 8 persons in vehicle(private transport);
activities for maintenance structures in plan fire safety;
connections and others.

From the point of view of relevance today, the above types of PD are most in demand and more often registered. However, it should be understood that the list of all types is quite large and in more detail it can be found in the law itself.

In addition to all of the above, it is important to highlight the presence of various corrective and clarifying by-laws, which are also taken into account in common process licensing. The legislation of the Russian Federation regulates 11 types of entrepreneurship, a license for which can only be obtained according to the rules of a special federal law. These include areas:

nuclear energy;
production of alcohol-containing goods;
protection of state information;
lending;
organizational auctions;
professional purchase/sale of securities;
formation of investment and pension funds, as well as many other aspects of this area;
clearing and PD.

For successful licensing, it is necessary to familiarize yourself in detail with the legislation of the Russian Federation or entrust this event to a professional lawyer.

Requirements for the license applicant and the procedure for obtaining

It's hard to get a license

Obtaining a license for a certain type of entrepreneurial activity requires the applicant to meet certain requirements. Depending on the status of a legal entity or individual entrepreneur, as well as the type of entrepreneurship, the rules for obtaining may vary. In most licensing cases, the license applicant must meet the following requirements:

own real estate, equipment, etc.;
maintain an active working headquarters;
have a professional education, etc.;
have capital.

A more complete list of requirements for the applicant can also be considered in some provisions federal law. To obtain a license, you need to do a whole range of activities, including:

Checking the compliance of the type of PD and the status of the entrepreneur for the possibility of obtaining a license.
Drawing up an application for the provision of license documents. It is drawn up in the form prescribed by law and includes information about the identification marks / company names, about the entrepreneur, taxpayer number (as well as other data necessary for registering the applicant with the tax authority), type of business for which the license is oriented, receipts /requisites .
It is necessary to attach some pre-assembled documents to the completed application: constituent (notarized), necessary papers, the presence of which is regulated by law when licensing a certain type of PD, an inventory of everything provided to the licensing authority.
After submitting the application with all the documents, the applicant must wait from 45 to 60 days. The documents will be reviewed by a special body, which will either approve the issuance of a license to engage in a certain type of PD, or refuse. The unsatisfactory result of the commission can be appealed by the applicant in court.

The measures presented above are mandatory, however, in some situations, the process of obtaining a license can be simplified or, conversely, tightened.

Term and rules of the license

The license has terms

For a clearer concept of licensing certain types of business activities, it is worth considering the validity period of the license obtained. Federal law states that all documents and permits are issued for an indefinite period (indefinitely). However, some situations involve the issuance of a temporary license, issued in accordance with all the requirements of the legislation of the Russian Federation.

An individual entrepreneur and other legal entity has the right to start organizing its activities from the next day after the approval of the issuance of a license for it. PD can be carried out throughout Russia, regardless of the place of its issue, as well as in places of jurisdiction of the Russian Federation.

Basically, business licensing is carried out at the federal level, however, licenses for some types of PD are also issued at the regional level. But in any case, the validity of the license permit applies to the entire territory of our country.

Entrepreneurial activity can only be organized by the person in whose name the license is issued. Otherwise, there will be problems with the law and some government agencies.

As you can see, in general terms, obtaining a license for certain types of entrepreneurial activity is a fairly simple event. In the process of licensing your “case”, you must comply with all clauses of the current legislation and consult with professional lawyers. Do not forget that illegal PD is punished by the state by bringing a person to justice under Article 171 of the Criminal Code of the Russian Federation or administrative - in accordance with Article 14.1 of the Code of Administrative Offenses of the Russian Federation.

Opinion of a legal expert:

Licensing of entrepreneurial activity is the most complex function of the state in the field of economic regulation. On the one hand, in a democratic state, unreasonable restrictions economic types for business. On the other hand, the interests of the state and its citizens are on the scales. The wisdom of public administration is in achieving a balance of interests of both sides.

In addition, it is also important to get legislators to develop high-quality laws. This is far from all right. The instability and poor quality of legislation in this area leads to conflicts between government and business. A few years ago, the state decided to use Foreign experience in this domain. It's about O self-regulatory organizations. Instead of a licensing procedure, certain activities require membership in such an organization.

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Ministry of Education and Science of the Russian Federation

federal state budgetary educational institution higher vocational education

"Nizhny Novgorod State University of Architecture and Civil Engineering"

International Institute of Economics, Law and Management

Department of International Law

Test

discipline: "Business Law"

on the topic: "Licensing certain types of business activities"

Completed by: 3rd year student of the Yubz-03 group of IUEP NNGASU

Shutov Roman Alexandrovich

Nizhny Novgorod - 2016

Introduction

1. The concept and subject composition of licensing. List of activities for which licenses are required

2. Licensing requirements and conditions

3. Bodies authorized to conduct licensed activities

4. Basic provisions on licensing activities for the provision of paid legal services

Conclusion

Bibliography

Introduction

Licensing of certain types of activities, being a form state regulation, limits the number of entities engaged in a particular type of activity, and also determines the conditions and requirements for its implementation. Therefore, miscalculations made in the organization of work on licensing can lead to large economic and social costs, creating obstacles to the formation of private business and the entry of new business structures into the market.

From the standpoint of public interests, such a tool as licensing should, on the one hand, ensure the protection of the rights of citizens from an unscrupulous entrepreneur, in cases where this species activity requires compliance with the terms of its conduct, and on the other hand, not to serve as an obstacle to the development of entrepreneurship, artificially restricting markets, procedurally and financially complicating obtaining a license.

Legal regulation of licensing is carried out by the Federal Law of December 30, 2008 No. 128-FZ "On Licensing Certain Types of Activities", other laws and by-laws.

Currently, there is a tendency to narrow the range of licensed activities. In our opinion, this is not always justified, and requires a careful approach to the development of the regulatory framework. Otherwise, it may lead to adverse consequences.

So, for example, when licensing a potentially dangerous type of activity is refused, it is necessary to introduce another institution that can minimize the negative consequences, for example, insurance of this type of activity.

1. The concept and subject composition of licensing. List of activities for which licenses are required

By its nature, licensing is a form of state regulation of entrepreneurship, expressed in a legal ban on engaging in a particular activity without obtaining a special permit, then the legal relations between licensing authorities and entrepreneurs that begin in this area are "vertical" in structure, since they are formed during the implementation of a special type of public activities - licensed. "Vertical" legal relations are relations of power-subordination, where the licensing authority gives imperious instructions to business entities, and they, in turn, are obliged to comply with these instructions, and failure to comply entails prosecution. At the same time, the entrepreneur himself undertakes the obligation to carry out the licensed type of activity, observing special rules, and the state grants him the right to conduct this activity.

The very concept of "licensing", which implies the existence of a permissive policy of the state regarding certain types of activities of entrepreneurs, was introduced into the everyday life of the domestic science of business law and administrative and legal science in general not so long ago. In tsarist Russia there was no concept of licensing. State control over entrepreneurs did not use such methods. The only time such a practice was used in the activities of the executive and administrative bodies in Russia during the Romanov period was during the period of the so-called "continental blockade" (1811-12), when, due to the conflict between France and England, European countries limited trade with the latter. , in fact, declaring a boycott on it. In Russia, at that time, entrepreneurs were issued special "letters of privilege", which, in fact, were licenses for trading with England. In the Soviet Union, the problem of licensing did not arise for a simple reason - the absence of private entrepreneurship as such. State enterprises they did not need licensing - why should the state license itself?

If we consider the post-perestroika period in the history of the Russian state, then at that moment the concept of "licensing certain types of activities" reappeared in the new Russian law. It arose in legislative practice on December 2, 1990 in relation to the banking sector, when they entered into force again adopted Laws RSFSR "On banks and banking activities" and "On the Central Bank of the RSFSR (Bank of Russia)". December 25, 1990 appeared more general concept on licensing business activities, when, in accordance with paragraph 4 of Art. 21 of the Law of the RSFSR "On Enterprises and Entrepreneurial Activity", a norm providing for such licensing began to operate. This norm established that certain types of activities of entrepreneurs in Russian Federation can only be carried out on the basis of a license (special permission from the competent authorities). It was assumed that the list of types of business activities subject to licensing would be determined by the Government of the Russian Federation.

A new step in the legal regulation of licensing business activities is the adopted Federal Law "On Licensing Certain Types of Activities" dated 08.06.2008 No.

This Law clarified the concept of legal regulation of entrepreneurial activity through licensing, put the licensing of enterprises and entrepreneurs on a transparent, clear basis, determined the procedure and procedure for licensing.

According to Article 2 of the Law on Licensing, a license is recognized as a special permit to carry out a specific type of activity subject to obligatory observance of licensing requirements and conditions, issued by the licensing authority to a legal entity or individual entrepreneur. As seen from this definition only operating legal entities and individual entrepreneurs can be a license applicant.

The concept of licensed activity should be understood as the type of activity for which a license is required on the territory of the Russian Federation. That is, the very existence of a license is for an organization necessary condition the right to engage in such activities. A similar conclusion is also enshrined in paragraph 3 of Article 49 of the Civil Code of the Russian Federation, which expressly provides that the ability of a legal entity to carry out activities for which a license is required arises from the moment such a license is received or within the period specified therein and terminates upon its expiration, unless otherwise provided by law or other legal acts.

The main condition for granting a license is the applicant's compliance with the licensing requirements and conditions, that is, those established by the licensing regulations. specific types requirements and conditions, the fulfillment of which by the licensee is obligatory when carrying out the licensed type of activity.

According to Article 17 of the Federal Law of 08.08.2001 No. 128-FZ, a list of activities for which licenses are required was approved:

Development of aviation equipment, including dual-purpose aviation equipment;

Production of aviation equipment, including dual-purpose aviation equipment;

Repair of aviation equipment, including dual-purpose aviation equipment;

Testing of aviation equipment, including dual-purpose aviation equipment;

Activities for the distribution of encryption (cryptographic) tools;

Activities for the maintenance of encryption (cryptographic) means;

Provision of services in the field of information encryption;

Development, production of encryption (cryptographic) tools protected using encryption (cryptographic) tools information systems, telecommunication systems;

Activities for issuing electronic key certificates digital signatures, registration of owners of electronic digital signatures, provision of services related to the use of electronic digital signatures, and confirmation of the authenticity of electronic digital signatures;

Activities to identify electronic devices intended for secretly obtaining information in the premises and technical means ax (except for the case if the specified activity is carried out to meet the own needs of a legal entity or individual entrepreneur);

Activities for the development and (or) production of means of protecting confidential information;

Activities for the technical protection of confidential information;

Development, production, sale and purchase for the purpose of sale of special technical means intended for secretly obtaining information by individual entrepreneurs and legal entities engaged in entrepreneurial activities;

Anti-counterfeiting activities printing products, including blanks of securities, as well as trade in these products;

Development of weapons and military equipment;

Production of weapons and military equipment;

Repair of weapons and military equipment;

Utilization of weapons and military equipment;

Trade in weapons and military equipment;

Manufacture of weapons and main parts of firearms;

Manufacture of ammunition for weapons and constituent parts cartridges;

Trade in weapons and essential parts of firearms;

Trade in ammunition for weapons;

Exhibiting weapons, main parts of firearms, ammunition for weapons;

Collecting weapons, basic parts of firearms, ammunition for weapons;

Development and production of ammunition;

Ammunition disposal;

Performance of work and provision of services for the storage, transportation and destruction of chemical weapons;

Operation of explosive production facilities;

Operation of fire hazardous production facilities;

Operation of chemically hazardous production facilities;

Operation of the main pipeline transport;

Operation of oil and gas production facilities;

Processing of oil, gas and products of their processing;

Transportation through main pipelines of oil, gas and products of their processing;

Storage of oil, gas and products of their processing;

Realization of oil, gas and products of their processing;

Activities for the examination of industrial safety;

Production of explosive materials for industrial use;

Storage of explosive materials for industrial use;

Application of explosive materials for industrial use;

Activities for the distribution of explosive materials for industrial use;

Production of pyrotechnic products;

Activities for the distribution of class IV and V pyrotechnic products in accordance with the state standard;

Activities for the prevention and extinguishing of fires;

Production of works on installation, repair and maintenance of fire safety equipment for buildings and structures;

Activities for the operation of electrical networks (except for the case if the specified activity is carried out to meet the own needs of a legal entity or an individual entrepreneur);

Activities for the operation of gas networks;

Activities for the operation of heat networks (except for the case if the specified activity is carried out to meet the own needs of a legal entity or individual entrepreneur);

Design of buildings and structures of I and II levels of responsibility in accordance with the state standard;

Construction of buildings and structures of I and II levels of responsibility in accordance with the state standard;

Engineering surveys for the construction of buildings and structures of I and II levels of responsibility in accordance with the state standard;

Production of surveying works;

Activities for the restoration of cultural heritage sites (monuments of history and culture);

Geodetic activity;

Cartographic activity;

Performance of works on active influence on hydrometeorological processes and phenomena;

Performance of works on active influence on geophysical processes and phenomena;

Activities in the field of hydrometeorology and related fields;

Pharmaceutical activity;

Production medicines;

Production of medical equipment;

Activities for the distribution of medicines and medical products;

Maintenance of medical equipment (except for the case when the specified activity is carried out to meet the own needs of a legal entity or individual entrepreneur);

Activities for the provision of prosthetic and orthopedic care;

Cultivation of plants used for the production of narcotic drugs and psychotropic substances;

Activities related to the circulation of narcotic drugs and psychotropic substances (development, production, manufacture, processing, storage, transportation, release, sale, distribution, acquisition, use, destruction) included in Schedule II in accordance with the Federal Law "On Narcotic Drugs and psychotropic substances";

Activities related to the circulation of psychotropic substances (development, production, manufacture, processing, storage, transportation, release, sale, distribution, acquisition, use, destruction) included in Schedule III in accordance with the Federal Law "On Narcotic Drugs and Psychotropic Substances" ;

Activities related to the use of pathogens of infectious diseases;

Production of disinfection, disinfestation and deratization agents;

Sea transportation of passengers;

Transportation of goods by sea;

Transportation by inland water transport of passengers;

Transportation by inland water transport of goods;

Transportation by air passengers;

Transportation by air cargo;

Passenger transportation by car equipped for transportation of more than 8 people (except for the case if the specified activity is carried out to meet the own needs of a legal entity or individual entrepreneur);

Transportation of passengers on a commercial basis by passenger cars;

Transportation of goods by road transport with a carrying capacity of more than 3.5 tons (except for the case if the specified activity is carried out to meet the own needs of a legal entity or individual entrepreneur);

Transportation by rail passengers (except for the case when the specified activity is carried out to meet the own needs of a legal entity or an individual entrepreneur and without access to railways common use);

Transportation of goods by rail (except for the case when the specified activity is carried out to meet the own needs of a legal entity or an individual entrepreneur and without access to public railways);

Survey service sea vessels in seaports;

Loading and unloading activities in inland water transport;

Loading and unloading activities in seaports;

Loading and unloading activities in 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 an individual entrepreneur);

Air traffic maintenance activities;

Aircraft maintenance activities;

Aircraft repair activities;

Activities on the use of aviation in the sectors of the economy;

Activities for the maintenance and repair of rolling stock in railway transport;

Activities for the maintenance and repair of technical means used in railway transport;

Hazardous waste management activities;

Organization and maintenance of sweepstakes and gambling establishments;

Appraisal activity;

Tour operator activity;

Travel agency activity;

Activities for the sale of rights to club holidays;

Non-state (private) security activities;

Non-state (private) detective activity;

Procurement, processing and sale of non-ferrous metal scrap;

Procurement, processing and sale of ferrous scrap;

Activities related to the employment of citizens of the Russian Federation outside the Russian Federation;

Activities for breeding breeding animals (except for the case if the specified activity is carried out to meet the own needs of a legal entity or an individual entrepreneur);

Activities for the production and use of breeding products (material) (except if the specified activity is carried out to meet the own needs of a legal entity or individual entrepreneur);

Public display of audiovisual works, if the specified activity is carried out in a cinema hall;

Reproduction (production of copies) of audiovisual works and phonograms on any type of media;

Audit activity;

Activities of investment funds;

Activities for the management of investment funds, mutual investment funds and non-state pension funds;

Activity specialized depositories investment funds, mutual investment funds and non-state pension funds;

Activities of non-state pension funds; activities for the production of elite seeds (seeds of the elite);

Manufacture of tobacco products;

Activities for the manufacture and repair of measuring instruments;

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;

Activities for the storage of grain and products of its processing;

space activities;

Veterinary activities;

Medical activity.

In the scientific literature, there are points of view that more widely interpret the subject composition of legal relations in the field of licensing, regulated by Law No. 128-FZ. Thus, the opinion was expressed that all public authorities participate in licensing relations, in particular: federal legislative authorities represented by the State Duma and the Federation Council, legislative (representative) authorities of the constituent entities, the President of the Russian Federation, as well as the courts of the Russian Federation. It seems that all of the above bodies are the subjects of licensing relations indirectly: they adopt general legal regulations in the field of licensing, and consider litigation on licensing issues. However, they do not directly participate in licensing relations, which are covered by the commented Law, since the named normative act clearly defines the subjects of legal relations arising in connection with the licensing of certain types of activities.

The subjects of these legal relations, along with the executive authorities, are also legal entities created in the form of commercial or non-profit organizations, and individual entrepreneurs, since it is they who are interested in obtaining a license for the successful implementation of relevant activities and are the initiators of such legal relations. For example, for a firm with significant competitive advantages, a license is a fair reward for her previous merits that allowed her to achieve such an advantage in the form of restricting competition, which means increasing income and a quiet life; for other firms and individual entrepreneurs - this is the bar for the qualitative growth of the organization of work. licensing requirement activity body

On behalf of all the above-mentioned authorities and legal entities, their officials act. However, they should not be attributed to the subjects of licensing relations, since officials always represent one or another authority (legal entity), exercise its competence, and the rights and obligations assigned to official, there is nothing more than the powers of this body. It is the authorities or legal entities that take part in the relations under consideration, and not their officials.

2. License requirements and conditions

Licensing requirements and conditions - according to the legislation of the Russian Federation on licensing certain types of activities, a set of requirements and conditions established by regulatory legal acts, the fulfillment of which by the licensee is mandatory when carrying out a licensed type of activity (Article 2 of the Federal Law "On Licensing Certain Types of Activities").

The license requirements and conditions are:

Compliance with the legislation of the Russian Federation, regulatory and technical documents in the field of geodetic activities;

The presence of a legal entity in the state of qualified employees in the field of geodesy, as well as the presence of a head of higher or secondary vocational education and work experience in this field for at least 3 years;

The presence of an individual entrepreneur of higher or secondary vocational education and work experience in the field of geodesy for at least 3 years;

The licensee has buildings and premises that have been certified and undergone metrological maintenance (verification, calibration) of instruments and equipment, a quality control service for the work performed and the created geodetic materials and data and the output of cartographic products;

Organization of repair, verification and calibration of geodetic measuring instruments (measuring instruments used in the implementation of cartographic activities);

The use of the latest publication (compilation) materials of the state cartographic and geodetic fund as a basis for creating new geodetic materials and data (when compiling and preparing for publication of new cartographic products);

Display in the published geodetic materials and output data;

Displaying names on newly created cartographic materials geographical objects in a normalized form in accordance with the requirements of regulatory and technical documents;

Free transfer of 1 copy of the created geodetic materials and data to the relevant cartographic and geodetic funds.

To obtain a license, the license applicant shall send or submit to the appropriate licensing authority an application for a license, which shall indicate:

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

Last name, first name and (if any) patronymic of the individual entrepreneur, his place of residence, addresses of the places where the licensed type of activity is carried out, which the applicant intends to carry out, details of the document proving his identity, the main state registration number of the entry on the state registration of the 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;

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

The licensed type of activity in accordance with paragraph 1 of Article 17 of this Federal Law, which the license applicant intends to carry out.

3. Bodies authorized to conduct licensed activities

Clause 1, Article 1 of Law No. 128-FZ strictly outlines the circle of entities participating in the licensing process. These are, first of all, the executive authorities of both the Russian Federation and its constituent entities, which, while fulfilling the tasks assigned to them in the field of licensing, are endowed with authority in relation to such licensing entities as legal entities and individual entrepreneurs.

First of all, the Government of the Russian Federation should be attributed to federal executive authorities, since it is entrusted with such important tasks in the field of licensing as approving regulations on licensing specific types of activities, determining federal executive authorities that carry out licensing, establishing types of activities licensed by executive authorities subjects of the Russian Federation. Decree of the Government of the Russian Federation of 26.01.2007 No. 45 "On the Organization of Licensing Certain Types of Activities" establishes the List of federal executive authorities that carry out licensing.

The executive authorities of the republics, territories, regions, autonomous regions, autonomous districts and cities of federal significance take part in the licensing mechanism for the types of activities approved by the above-mentioned Decree of the Government of the Russian Federation.

4. Basic provisions on licensing activities for the provision of paid legal services

The concept of providing qualified legal assistance multifaceted. This is assistance provided on time, assistance that influenced the resolution of a certain conflict of interest, assistance with which the needy person avoided negative consequences or acquired any benefits, assistance, as a result of which any rights and interests were protected. The quality of legal assistance can be judged by a number of other criteria. I believe that when resolving the issue of the quality of legal assistance, it is necessary to be guided by the quality standards of such assistance, established both in international legal acts, and in the legislation of the Russian Federation, for example, in Federal Law No. 63-FZ "On Advocacy and the Bar in the Russian Federation".

In accordance with Part 1 of Art. 48 of the Constitution of the Russian Federation, everyone is guaranteed the right to receive qualified legal assistance. However, so far in Russian legislation the concept of "qualified legal assistance" is not fixed.

Undoubtedly, qualified legal assistance can only be provided by a qualified specialist - a person with special knowledge and experience in the field of law. Confirmation of a person's special knowledge in the field of law, his ability to provide qualified legal assistance can be a diploma of higher legal education and other documents on legal education, as well as documents confirming that the person has a positive experience in the legal specialty.

The existing legislation practically does not limit the circle of persons trying to provide paid legal assistance, and this assistance is far from always being qualified. And the lack of clear criteria for assessing the quality of the activities of these persons allows them, in the case of providing unqualified legal assistance, to evade responsibility and continue their dishonest activities.

The activities of other persons applying for the provision of paid qualified legal assistance should be regulated by the state, for example, through licensing.

Until November 1998, there was a regulation "On Licensing Activities for the Provision of Paid Legal Services on the Territory of the Russian Federation dated April 15, 1995", which contained both the requirements for business lawyers and the grounds for terminating the activities of such private organizations providing legal services. services, and other provisions on this type of activity. Currently, this document has actually ceased to be valid, since the Federal Law "On Licensing Certain Types of Activities" dated September 25, 1998 does not provide for the licensing of paid legal services. There is no provision for licensing this type of activity to date. There is no state control over the quality of legal services.

Previously, licenses were issued by the Ministry of Justice to individuals and legal entities on the condition that:

At individuals and participants of legal entities have a diploma of higher legal education of the Russian Federation;

At least three years of experience in the legal profession;

For legal entities - the presence in the constituent documents of a reference to the relevant type of activity (legal);

Persons with a diploma of higher legal education of another state may provide legal assistance only in relation to the legislation of the state where the diploma was issued.

In fact, these criteria have not lost their relevance today. To carry out licensing of activities for the provision of paid legal assistance, it is necessary:

Adoption of the Federal Law "On Amendments to Federal Law No. 128-FZ of 08.08.2001 "On Licensing Certain Types of Activities"", which would classify the provision of paid legal assistance as a licensed type of activity;

In order to ensure the unity of the economic space on the territory of the Russian Federation, the Government of the Russian Federation, in accordance with the main directions determined by the President of the Russian Federation domestic policy the state must approve the regulation "On Licensing Activities for the Provision of Paid Legal Aid";

In this provision, empower, for example, the Ministry of Justice of the Russian Federation to exercise the following powers:

Grant licenses;

Reissue documents confirming the existence of a license;

Suspend licenses in case of administrative suspension of licensees for violation of license requirements;

Terminate licenses;

Maintain a register of licenses, provide interested parties with information from registers of licenses and other information on licensing;

Monitor compliance by licensees with relevant license requirements and conditions;

Apply to the court with applications for the annulment of licenses.

When granting a license, the following requirements are not without meaning:

Higher legal education obtained in accordance with the requirements established in the Russian Federation.

Having three years of continuous practical experience legal activity with positive results of this activity documented.

Absence of any outstanding conviction or court decision, which has entered into force, on bringing to any responsibility for the provision of unqualified legal assistance.

The implementation of licensed activities only by individual entrepreneurs, in order to have the possibility of personal liability and real prosecution up to bankruptcy.

The issuance of licenses for the provision of paid legal assistance to legal entities allows you to actually level out personal responsibility, because the work of providing legal assistance will still be carried out by a specific person. The licensing mechanism itself should be aimed at the natural qualities of a person, at his instincts, upbringing, his position in society, and each licensee must know that one case of providing unqualified legal assistance can actually deprive him of income, the right to engage in certain activities, a certain position in society, etc. .d. In relation to a legal entity, the licensing authority and the company do not have such leverage. They took away a license from a legal entity, and I, as an individual. the person is not guilty, went, organized a new jur. face, etc.

The lack of clear regulation in the field of qualified legal assistance is beneficial only to unscrupulous lawyers, persons who do not have real knowledge in the field of jurisprudence. Persons who actually cannot provide qualified legal assistance.

Conscientious lawyers who have the knowledge to provide qualified legal assistance, I think, will react positively to the licensing of this type of activity.

Licensing will make it possible to oust from the market of legal services a fairly large group of people who call themselves lawyers, but are not really able to provide qualified legal assistance on a professional basis. The state will finally be able to guarantee the receipt of paid qualified assistance not only from lawyers and notaries, which may positively affect the cost of obtaining qualified legal assistance for the end consumer.

Conclusion

First of all, the institution of licensing is an important civil law institution aimed at directly protecting the interests of citizens and the interests of the state itself. I believe that the institution of licensing is currently quite well regulated in the Russian Federation: there is a Law that establishes the types of activities subject to licensing, the procedure for licensing, and there are many other regulations that regulate the procedure for licensing each specific type of activity.

The institution of licensing is not perfect, its shortcomings are widely discussed in the pages of legal literature. Nevertheless, it should be recognized that at present it is more suitable for the purposes of "prevention of damage", the tasks of "prevention, detection and suppression of violations" in the field of public law and order in comparison with alternative forms of regulation (self-regulation, technical regulation, notification procedure for the start of implementation entrepreneurial activity). When a legislator makes a decision to replace licensing with alternative forms of regulation, it is extremely important to decide on the following issues:

Whose interests are supposed to be protected by the relevant institution,

What legal means it is endowed with to prevent damage, prevent, detect and suppress violations;

What system of sanctions is provided for violation of public law and private law interests.

In the absence of a proper set of legal means in an alternative institution aimed at protecting public law and private law interests, it is premature to replace licensing with other forms of regulation.

Bibliography

1. Federal Law No. 128-FZ "On Licensing Certain Types of Activities" // Russian newspaper, № 153-154, 30.12.08.

2. Decree of the Government of the Russian Federation No. 152 "On approval of the Regulations on the procedure for licensing the activities of commodity exchanges on the territory of the Russian Federation" // Collection of acts of the President and Government of the Russian Federation, 26.11.07, No. 10, art. 787.

3. Decree of the Government of the Russian Federation No. 45 "On the organization of licensing certain types of activities" // Rossiyskaya Gazeta, No. 34, 17.02.07.

4. A. Gushchin "Licensing in the Russian Federation. Legal and organizational aspects". Edition Dashko and Co., 2004.

5. O. Kurnoskina "Licensing certain types of activities. Questions and answers". Ed. PressYurLit., 2005.

6. A.B. Abramov "Scientific and Legal Center", 2008.

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The concept of licensing

Licensing is a set of measures that includes services for the issuance, suspension, reissuance and cancellation of licenses for different kinds A license is a special document that authorizes a company or an individual entrepreneur to provide certain services or carry out one or another type of work on a legal basis. Such a document can be issued both in paper and in electronic (with digital printing) version.

Licensing of individual companies is carried out according to the principle of a single economic space, openness and accessibility of information, and compliance with the law.

which are subject to licensing

Now a license must be obtained for about 50 types of work and services. Here are some of them:

Licensing of certain types of activities is carried out by special bodies that have been accredited.

Documents for obtaining a license

In order to obtain permission to carry out certain works or provide services, it is necessary to submit the following data:

The name of your company.
Address and details of the organization.
firm's activities.
Information about the company's registration with the tax office.
Documents on payment of the necessary state duties.
Other data.

The procedure for licensing certain types of activities

The head (representative) of the organization or submits documents to the licensing authority. The process of considering the issue of issuing a license takes about a month (and longer periods are possible). If, after analyzing the submitted data, the licensing commission reveals errors and shortcomings, obtaining a license will be delayed. The applicant will have to correct all these comments and only then submit the documents again.

The period of validity of such a document cannot be less than 5 years. After the end of this time, the entrepreneur can apply for an extension of the license. In some cases, the permit is issued for an unlimited period. Licensing of certain types of activities is carried out throughout Russia.

No. 135 of February 11, 2002 “On Licensing Certain Types of Activities”, as well as regulations on licensing each type of activity approved by the Government of the Russian Federation.

Under licensed understand a special permit to carry out a specific type of activity subject to the obligatory observance of licensing requirements and conditions, issued by the licensing authority to a legal entity or individual entrepreneur.

Licensing is a set of measures related to the issuance of licenses, reissuance of documents confirming the availability of licenses, suspension, 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 license requirements and conditions, maintenance of registers of licenses.

The list of licensed activities is contained in paragraph 1 of Art. 17 of the Federal Law "On Licensing Certain Types of Activities". Activities not mentioned in this list do not need to be licensed, with the exception of the types of activities that are named in paragraph 2 of Art. 1 of the Federal Law "On Licensing Certain Types of Activities" (educational, notarial, exchange, insurance activities, activities of credit organizations; activities related to the protection of state secrets, etc.). These types of activities are subject to licensing in accordance with special legislation.

The legislation contains several licensing rules.

Firstly, the type of activity permitted by the license can be carried out by the licensee throughout Russia, regardless of whether it is issued by a federal executive body or an executive body of a constituent entity of the Russian Federation. However, in cases where the license is issued by a body of a subject of the Russian Federation, the implementation of the licensed type of activity on the territory of other subjects of the Russian Federation is possible only after the licensee notifies the licensing authorities of the relevant subjects of the Russian Federation. Notification shall be made by the licensee in writing no later than the moment when he directly proceeds with the implementation of the licensed activity. The notice contains the following information:

a) name, legal form and location - for a legal entity;
b) last name, first name, patronymic, place of residence, details of an identity document - for individual entrepreneurs;
c) licensed activity;
d) number, period of validity of the license and the name of the licensing authority that issued it;
e) taxpayer identification number of the licensee;
f) the location of the licensed activity on the territory of the relevant subject of the Russian Federation;
g) the date of the proposed commencement of the licensed activity in the territory of the relevant subject of the Russian Federation.

Upon receipt of the notification, the licensing authority sends (gives) to the licensee a receipt for receiving the notification with a note on the date of receipt of the notification.

Secondly, a license grants the right to carry out the type of activity specified in it only to an economic entity that has received a license, that is, a license is not subject to transfer to another person, except in cases of succession during the transformation of a legal entity.

Thirdly, a license is issued for a certain term- not less than 5 years. Regulations on licensing specific types of activities may also provide for the perpetual validity of the license. The validity period of the license upon its expiration may be extended at the request of the licensee.

Licensing procedure

To obtain a license, the license applicant sends or submits to the appropriate licensing authority license application, which specifies:

full and (if any) abbreviated name, including company name, and organizational and legal form of the legal entity, its location, addresses of the places of the licensed type of activity that the applicant intends to carry out, state registration number of the record on the creation of the 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 the individual entrepreneur, his place of residence, addresses of the places where the licensed type of activity is carried out, which the applicant intends to carry out, details of the document proving his identity, the main state registration number of the entry on the state registration of the 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;
taxpayer identification number and data of the document on registration of the license applicant with the tax authority;
licensed type of activity in accordance with which the license applicant intends to carry out.

Attached to the license application are the following: documentation:

copies constituent documents(with the presentation of originals if the accuracy of the copies is not certified by a notary) - for a legal entity;
a document confirming the payment of the state fee for consideration by the licensing authority of an application for a license;
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 license requirements and conditions, including documents whose presence in the implementation of a licensed type of activity is provided for by federal laws (clause 1, article 9 of the Federal Law "On Licensing Certain Types of Activities").

The licensing authority is not entitled to require the applicant for a license to submit documents that are not provided for by law.

The application for 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 said application and documents, is sent (delivered) to the license applicant.

2. Making a decision to issue (or refuse to issue) a license. The licensing authority checks the completeness and reliability of information about the license applicant contained in the application and documents submitted by the license applicant, as well as checks the possibility of the license applicant fulfilling the license requirements and conditions. On the basis of the inspection carried out, the licensing authority makes a decision to grant or refuse to grant a license within a period not exceeding forty-five days from the date of receipt of the application for a license and the documents attached to it. The specified decision is formalized by the relevant act of the licensing authority.

Shorter terms for making a decision to grant or refuse to grant a license may be established by the regulations on licensing specific types of activities.

3. Notice to the license applicant of the decision granting or refusing to grant a license.

A notice of refusal to grant a license shall be sent (delivered) to the license applicant in writing indicating the reasons for the refusal, including the details of the act of checking the possibility of the license applicant fulfilling the license requirements and conditions, if the reason for the refusal is the inability of the license applicant to comply with the specified requirements and conditions.

A notice of the grant of a license shall be sent (delivered) to the license applicant in writing, indicating the details of the bank account and the deadline for paying the license fee for granting 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 free of charge document confirming the existence of a license, which specifies:

name of the licensing authority;
full and (if any) abbreviated name, including company name, and organizational and legal form of the legal entity, its location, addresses of the places where the licensed type of activity is carried out, the state registration number of the entry on the creation of the legal entity;
surname, name and (if any) patronymic of the individual entrepreneur, his place of residence, addresses of the places where the licensed type of activity is carried out, details of the document proving his identity, the main state registration number of the entry on the state registration of the individual entrepreneur;
licensed type of activity (indicating the work performed and the services provided);
the term of the license;
taxpayer identification number;
license number;
the date of the decision to grant the license.

Grounds and procedure for suspension and cancellation of a license

Licensing authorities have the right suspend the validity of a license in the event that the licensing authorities reveal repeated violations or gross violations by the licensee of license requirements and conditions.

The licensing authority is obliged to set a period for the licensee to eliminate the violations that led to the suspension of the license, which may not exceed six months. If the licensee has not eliminated the violations within the prescribed period, the licensing authority is obliged to apply to the court with an application to cancel the license.

The licensee is obliged to notify the licensing authority in writing of the elimination of the violations that led to the suspension of the license. The licensing authority that has suspended the license shall make a decision to renew it and notify the licensee in writing within three days after receiving the relevant notice and verifying that the licensee has eliminated the violations that led to the suspension of the license.

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

Cancellation licenses are possible:

a) outside judicial order. Licensing authorities may revoke a license without going to court if the licensee fails to pay the state fee for granting a license within three months.
b) in a judicial proceeding, that is, by a court decision on the basis of an application from the licensing authority, if the violation by the licensee of licensing requirements and conditions has resulted in damage to the rights, legitimate interests, health of citizens, defense and security of the state, cultural heritage of the peoples of the Russian Federation and ( or) in the event that the licensee has not eliminated the violations due to which the license was suspended within the prescribed period. Simultaneously with filing an application with the court, the licensing authority has the right to suspend the said license for a period until the court decision comes into force.

The decision to suspend the license, to cancel the license or to send an application for the cancellation of the license to the court shall be communicated by the licensing authority to the licensee in writing with a reasoned justification for such a decision no later than three days after its adoption.

The decision to suspend the validity of a license and to annul a license may be appealed in accordance with the procedure established by the legislation of the Russian Federation.

License loses its validity 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 termination of the certificate of state registration.