The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court of the Republic of Belarus P.P. Miklashevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, S.Y. Danilyuk, V.P. Isotko, V.V. Podgrusha, L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov has examined the application in which it is specified imperfection of the norms of the legislation defining notion "income" with a view to impose an administrative penalty for illegal entrepreneur activity.  

Having analyzed the provisions of the Civil Code of the Republic of Belarus (hereinafter – CC), the Code of Administrative Offences of the Republic of Belarus (hereinafter – CAO), the Criminal Code of the Republic of Belarus (hereinafter – CC), other normative legal acts of the Republic of Belarus concerning the investigated issue, the Constitutional Court found the following. 

The entrepreneurial activity is an independent activity of legal and natural persons, implemented by them in civil turnover under their personal name, at their risk and under their property liability, directed at systematic obtaining of profit from using of property, selling the things made, processed or gained by the before-mentioned persons for selling, as well as from performing of works or rendering the services, if these works or services are intended for realization to other persons and are not applied for own consumption (part two of point 1 of Article 1 CC). 

According to Article 12.7 of CAO illegal entrepreneur activity shall be recognized including: 

entrepreneur activity without the state registration or without a special patent (license), when such special patent (license) is necessarily, or with violation of rules and conditions of realization of such kind of activity envisaged in a special patent (licenses) (part one); 

engage in the forbidden kind of activity (part two); 

the actions directed on the employment of citizens abroad, carried out without a special patent (license) or with violation of rules and conditions of realization of such kind of activity, envisaged in a special patent (license) if in these actions there is no components of crime (part fife). 

The norms of the abovementioned parts of Article 12.7 of CAO envisage for engaging in illegal entrepreneur activity is imposed the substantive administrative penalty – the fine and the additional penalty – confiscation of the income profited by such activity. 

According to Article 6.10 of CAO confiscation is embodied the gratuitous forfeiture in the property of the state of the income, profited by illegal activity, a subject of an administrative offence, and also tools and means of commitment of an administrative offence, belonging to the person who has committed an administrative offence, or being in the property on the right of economic conducting or an operational management of the legal persons that is subject to the administrative responsibility irrespective of a fact in whose a property it is, only in the instances envisaged by articles of Especial Chapter of CAO. 

At the same time the substance of notion "income" for purposes of realization of the sanction containing in parts one, two and fife of Article 12.7 of CAO and envisaging confiscation of the income, is not defined. In this connection there is a issue should it be in defining the income which is subject to confiscation on the basis of the specified parts of Article 12.7 of CAO to take account of the expenses which were incurred by the offender in realization of illegal entrepreneur activity. 

Thus the definition of notion "income" contains in other articles of CAO and other acts of the legislation. However its substance defined in different ways depending on the purposes of legal regulation. 

So, the definition of the specified notion contains in the note to Article 13.2 "Realization of activity without registration in tax body» of CAO. Regarding to the given components of an administrative offence it is necessary to understand an economic definite in cash or in kind as the income, defined as a proceeds minus the documentary confirmed material charges connected with the income-making and established for the legal persons according to tax legislation. 

In the note to Article 233 of CC it is envisaged that it is necessary to understand all sum of a proceeds in cash or in kind without expenses for its getting as the income of illegal entrepreneur activity. The earned in the natural kind income is subject to calculation in monetary kind. 

According to part two of Article 1 of the Law of the Republic of Belarus of 19 July 2000 «On measures on prevention of legalization of the incomes earned by illegal way and financing of terrorist activity» (in edition of the Law of 11 December 2005) the incomes earned by illegal way – the meansearned as a result of violation of civil, criminal, administrative and other legislation of the Republic of Belarus. 

According to part one of Article 233 of CC and part one of Article 12.7 of CAO criminal and administrative responsibility is accordingly established for illegal entrepreneur activity which is carried out without the state registration or without a special patent (license), when such special patent (license) is necessarily. Differentiation the administrative offence as illegal entrepreneur activity from a similar crime depends on the rate of the earning income. According to Article 233 of CC illegal entrepreneur activity shall be recognized as a crime, if those activity entail earning the income in a big amount (part one), in an extra big amount (part two), is carried out by the organized group (part three). 

Thus, for the concluding an issue while calling of the person to responsibility for illegal entrepreneur activity and qualification of its actions it is necessary to calculate the income earned as a result of such activity. If the income of illegal entrepreneur activity is not big, the person is subject to administrative responsibility according to part one Article 12.7 of CAO. 

The Constitutional Court considers that definition of notion the "income" containing in Article 233 of CC is applicable only for differentiation the administrative offence envisaged by part one of Article 12.7 of CAO from a crime envisaged by Article 233 of CC. 

For the purpose of imposing of the administrative penalty in kind of confiscation for realization of illegal entrepreneur activity notion of the income with reference to Article 12.7 of CAO should be defined in the law. 

According to Article 72 of the Law of the Republic of Belarus of 10 January 2000 «On normative legal acts of the Republic of Belarus» in revealing gaps in normative legal acts the norm-making bodies (officials) who have adopted (published) these acts, are obliged to make to them corresponding alterations or addenda eliminating the gaps. 

On the basis of the abovementioned and guiding by Articles 40, 116 of the Constitution of the Republic of Belarus, Articles 22, 24 of the Code of the Republic of Belarus on judicial system and status of judges, the Constitutional Court 

RULED: 

1. To propose to the House of Representatives of National Assembly of the Republic of Belarus to add the Code of Administrative Offences of the Republic of Belarus the provision defining notion "income" with a view of imposing of the administrative penalty according to Article 12.7 of the specified Code. 

2. The present Decision shall come into legal force from the date of its adoption.  

3. To publish the present Decision in accordance with the legislation.