The president Russian Federation submitted to the State Duma of the Federal Assembly of the Russian Federation a draft federal law No. 304898-3 "On the introduction of amendments and additions to the Criminal Code of the Russian Federation".

In particular, the draft Federal Law proposed to exclude from the Criminal Code of the Russian Federation Article 182 “Knowingly false advertising". V explanatory note, which has not been published, gives a very brief and completely unconvincing rationale for this proposal. It reads as follows: “It is proposed to exclude articles 182 “Knowingly false advertising” and 200 “Deception of consumers” from the Criminal Code of the Russian Federation. Responsibility for these acts is provided for by the Code of Administrative Offenses of the Russian Federation, and in the case when consumer fraud exceeds the amount of 500 rubles, it must be qualified under Article 159 of the Criminal Code of the Russian Federation, which provides for liability for fraud.

No broad discussion of the project was organized, and this is also a well-defined legal policy. The objections of some scientists and practitioners published in newspapers, magazines, collections of articles were not taken into account.

On December 8, 2003, the President of the Russian Federation signed Federal Law of the Russian Federation No. 162 “On Amendments and Additions to the Criminal Code of the Russian Federation”, where paragraph 106 states: “Article 182 of the Criminal Code of the Russian Federation shall be recognized as invalid.”

The exclusion of Article 182 of the Criminal Code of the Russian Federation has become a major political and legal mistake in the field of legal regulation of advertising activities.

The initiators of the exclusion of the article of the Criminal Code of the Russian Federation in the explanatory note to project Federal Law No. 304898-3 “On Amendments and Additions to the Criminal Code of the Russian Federation” justified their proposal by the fact that liability for this act is provided for by the Code of Administrative Offenses of the Russian Federation. In fact, the Code of Administrative Offenses of the Russian Federation provides for liability for violations of the legislation on advertising, which is understood as improper advertising (Article 14.3 of the Code of Administrative Offenses of the Russian Federation). Article 182 of the Criminal Code of the Russian Federation established liability for another, much more dangerous act - for the use of deliberately false information in advertising, committed out of selfish interest and causing significant damage.

Advertising poses a particular danger when creating so-called financial pyramids. Many believe that after the collapse of MMM, the Russian House of Selenga, Russian Real Estate, Khoper-Invest, and Lords, financial pyramids left the scene. This is a deep delusion - the "pyramids" only modified their "geometry". Moreover, it is possible to predict their growth.

Article 182 of the Criminal Code of the Russian Federation was new for Russian legislation, but quite traditional for the criminal law of countries with a developed market and socially oriented economy. Thus, criminal liability for false advertising is provided for in the legislation of Sweden, Switzerland, and Denmark.

The exclusion of Article 182 from the Criminal Code indicates that the legislator ignores the principle of equality of citizens before the law, as well as the principle of justice, which the criminal laws of any country seek to adhere to. After the abolition of Article 182 of the Criminal Code of the Russian Federation, the interests of a huge audience of advertising consumers, covering the majority of the population, were deprived of protection. Priorities are demonstrated that are not related to the rights of citizens guaranteed by the Constitution of Russia to protect property, life and health, reliable information. It is these highly significant social benefits that were harmed by the repeal of Article 182 of the Criminal Code of the Russian Federation.

At the same time, the exclusion of Article 182 from the Criminal Code of the Russian Federation clearly demonstrates the protection of the interests of representatives of the advertising business (advertisers, advertising producers, advertising distributors). The exclusion of Article 182 from the Criminal Code of the Russian Federation now allows them to distribute false advertising information that entails serious negative consequences of a material and moral nature, harm to health, without worrying about a possible attack. criminal liability.

Knowingly false advertising was one of the means of committing other crimes in the economic sphere provided for by the Criminal Code of the Russian Federation in force at that time: illegal entrepreneurship and illegal banking activities (Articles 171 and 172 of the Criminal Code of the Russian Federation); false entrepreneurship (Article 173 of the Criminal Code of the Russian Federation); monopolistic actions and restriction of competition (Article 178 of the Criminal Code of the Russian Federation); counterfeit valuable papers or payment documents (Articles 186 and 187 of the Criminal Code of the Russian Federation); as well as consumer fraud (Article 200 of the Criminal Code of the Russian Federation). Such crimes should have been qualified under Article 182 of the Criminal Code of the Russian Federation and one of the named articles of the Criminal Code, since the dispositions of these articles do not cover actions, the punishability of which is established by Article 182 of the Criminal Code of the Russian Federation. Knowingly false advertising is different from fraud. Thus, advertising information about a knowingly missing product becomes a way of breach of trust, through which theft of someone else's property or the acquisition of the right to it, that is, fraud (Article 159 of the Criminal Code of the Russian Federation). At the same time, there is an ideal set of crimes provided for in Articles 159 and 182 of the Criminal Code of the Russian Federation. Knowingly false advertising is not a crime against property and in this case is only a way of breaching trust, without covering the intent to commit a more serious crime - fraud, aimed at the unlawful gratuitous seizure of someone else's property and its conversion in favor of the perpetrator (or other persons). ), committed out of mercenary motives and causing damage to the owner or other owner of this property.

Advertising often serves way committing theft. And a legal structure is quite conceivable, in which the fact of placing such an advertisement should be considered as a completed crime.

It must be admitted that the version of Article 182 of the Criminal Code of the Russian Federation that was in force before the abolition suffered from serious technical and legal defects. Therefore, the general preventive and protective functions potentially inherent in this article could not be fully implemented. However, defects in the legislative technique could not and should not serve as a basis for the decriminalization of the socially dangerous acts envisaged by it. What was required was not the exclusion of this article from the Criminal Code of the Russian Federation, but a significant adjustment, clarification of the wording, taking into account the realities that are developing in the advertising sphere

Of particular interest are the proceeds from advertising crimes. These criminal means need to be legalized. Articles 174 and 174 1 of the Criminal Code of the Russian Federation contain the legal regulation of these criminal acts.

According to part 1 of article 174 of the Criminal Code of the Russian Federation, the purpose of laundering Money acquired by criminal means is to give a lawful form to their possession, use and disposal. In this regard, it is interesting to analyze the place and role of inappropriate advertising and, specifically, advertising crime in the process of money laundering.

Articles 242 “Illegal distribution of pornographic materials or objects” and 242 1 “Production and circulation of materials or objects with pornographic images of minors” of the Criminal Code of the Russian Federation establish, among other things, the prohibition of illegal distribution for the purpose of advertising and advertising of pornographic materials and objects, as well as advertising materials or items with pornographic images known to be minors. The object of advertising, in the sense of paragraph 2 of Article 3 of the Federal Law "On Advertising", here are pornographic materials and objects.

The set of sanctions proposed by the legislator has been reduced to a minimum: only imprisonment. A person who has committed a crime under part 1 of article 242 1 of the Criminal Code of the Russian Federation may be punished no less severely than a person guilty of causing grievous bodily harm that negligently caused the death of the victim, or qualified murder (part 4 of article 111 of the Criminal Code of the Russian Federation - from 5 years deprivation of liberty, part 2 of article 105 of the Criminal Code of the Russian Federation - from 8 years in prison).

Proceeds from advertising pornography are criminal in Russia, since the production and distribution of such advertising is illegal, just like pornographic products themselves. Having received criminal proceeds, offenders face the problem of finding ways to legalize them. Therefore, it can be argued that improper advertising, and first of all its specific form, provided for by Articles 242 and 242 1 of the Criminal Code of the Russian Federation, in some way determines the subsequent process of money laundering. This can be counteracted by thorough, detailed monitoring of advertising products based on a developed legal framework.

Clause 1 of Article 7 of the Federal Law "On Advertising" contains a provision expressly prohibiting the advertising of goods, the production and (or) sale of which is prohibited by the legislation of the Russian Federation. Thus, if the object of advertising is illegal, then its advertising is also illegal. At the same time, the object of advertising, in accordance with paragraph 2 of Article 3 of the Federal Law, should be understood as a product, a means of its individualization, a manufacturer or seller of goods, the results of intellectual activity or an event to attract attention to which advertising is directed.

As already noted, administrative liability for offenses in the advertising business has been dominant for many years and, admittedly, far from always effective. Apparently, there is a reason for the repeated (more than three times) commission of an administrative offense in the field of advertising to introduce criminal liability in the form of a fine. If it is impossible to collect a fine from the guilty subject, then it is necessary to introduce an independent type of criminal punishment - forced labor for the period during which he will reimburse the amount of the fine imposed.

Questions for self-preparation:

1. Expand the concept of legal liability under the advertising law of Russia.

2. Name the types of legal liability under the advertising legislation of the Russian Federation.

3. What are the features of criminal liability for offenses in the field of advertising?

4. What is the place of administrative responsibility in the system of legal liability in advertising law?

5. Expand the content of the concepts: inappropriate advertising, unfair advertising, false advertising, unethical advertising, hidden advertising, advertiser, advertising producer, advertising producer, counter-advertising, territorial antimonopoly authority, self-regulation, self-regulatory bodies, state regulation, state regulatory bodies.

Main literature:

1. Baitin M.I. Essence of law (modern normative legal understanding on the verge of two centuries). - Saratov, 2001.

4. Baranova M.V. Administrative responsibility for violations of the Russian legislation on advertising (general theoretical and applied problems): Monograph. - N. Novgorod, 2006. - 237 p.

5. Baranova M.V. General Theoretical and Applied Problems of Civil Liability for Violations of Advertising Legislation in Russia (Experience in Doctrine Thematic Analysis of the Federal Law of the Russian Federation of March 13, 2006 "On Advertising"): Monograph. - Nizhny Novgorod, 2006. - 241 p.

6. Baranova M.V. Administrative responsibility for offenses in the field of advertising legislation in the Russian Federation and the Republic of Belarus (experience of general theoretical comparative analysis): Monograph. - N. Novgorod, 2005. - 203 p.

7. Bakhrakh D.N. Administrative responsibility of citizens in the USSR: Tutorial. - Sverdlovsk, 1989.

8. Bratus S.N. Legal responsibility and legitimacy. - M., 1976.

9. Course international law. The main institutions of international law. - M., 1990. - T. 3.

10. Leist O.E. The essence of law. Problems of theory and philosophy of law. - M., 2002.

11. Timoshenko I.V. Administrative responsibility: Textbook. – M.; Rostov-on-Don, 2004.

12. Federal Law of March 13, 2006 No. 38-FZ “On Advertising” //Collected Legislation of the Russian Federation. - 2006. - No. 12. - Art. 1232.

Additional literature:

1. Baranova M.V. Criminal Law Regulation of Advertising Activities in the Russian Federation: Experience and Prospects // Modern Russian Criminal Law: Collection of Articles of the All-Russian Scientific and Practical Conference Participants. / Ed. P.N. Panchenko. - Nizhny Novgorod, 2011. - S. 71-84.

4. Baranova M.V. Unethical advertising under the current Russian legislation: concept, social danger, responsibility // Advertising business, legislation, economic security individuals and states in modern Russia: Collection of articles / Ed. V.M. Baranov. - N. Novgorod, 2005. - S. 76–83.

5. Baranova M.V. Popularization of cultural heritage objects as a special kind of advertising activity and the problem of concretization of legal liability for offenses under the advertising legislation of Russia // Constitutional and municipal law. - 2003. - No. 2. - P. 16–19.

6. Baranova M.V. Problems of administrative responsibility for violation of the legislation on advertising / M.V. Baranova, N.V. Makareiko, Yu.V. Cheryachukin // Problems of legal science in the research of doctoral students, adjuncts and applicants: Collection of scientific papers: In 2 hours / Ed. V.M. Baranova and M.A. Pshenichnov. - N. Novgorod, 2001. - Issue. 7. - Part 1. - S. 27–37.

7. Baranova M.V. Criminal liability for advertising pornographic materials or objects: state, problems, effectiveness of application / M.V. Baranova, N.A. Kolokolov // Advertising business, legislation, economic security of the individual and the state in modern Russia: Collection of articles / Ed. V.M. Baranov. - N. Novgorod, 2005. - S. 50–62.

8. Baranova M.V. The expediency of criminal liability for deliberately false advertising (on one erroneous legislative initiative of the President of Russia) / M.V. Baranova, V.M. Baranov // Contemporary Issues state and law: Collection of scientific papers / Ed. V.M. Baranova, A.V. Nikitin. - N. Novgorod, 2003. - Issue. 1. - S. 148-164.

10. Izmailova E.V. Contract for the production of advertising // Scientific works. Russian Academy of Legal Sciences. - M., 2004. - Issue. 4: In 3 vols. - Vol. 1.

11. Kuznetsov A.P. Decriminalization of deliberately false advertising (Article 182 of the Criminal Code of the Russian Federation): success or miscalculation of the legislator // Advertising business, legislation, economic security of the individual and the state in modern Russia: Collection of articles / Ed. V.M. Baranov. - N. Novgorod, 2005. - S. 260-267

12. Lisetsky R.M. Administrative responsibility for violation of the legislation on advertising: Dis... cand. legal Sciences. - M., 2005.

14. Investigation of crimes in the economic sphere: A guide for investigators. - M., 1999

15. Collection of legislative and other legal acts and documents about advertising. - M., 2001.

16. Semeusov V. Responsibility for violation of advertising legislation // Russian justice. - 2000. - No. 4.

17. Spector E.I. Commentary on the Federal Law "On Advertising" (item-by-article). – M.. 2007.

18. Decree of the President of the Russian Federation of June 10, 1994 No. 1183 "On the protection of consumers from unfair advertising"

19. Decree of the President of the Russian Federation of February 15, 1995 No. 161 "On Guarantees of the Rights of Citizens to Health Protection in the Distribution of Advertising"

20. Fokova E.A. Responsibility for violation of advertising legislation // Lawyer. - 2002. - No. 9. - S. 28–31.

21. Fokova E.A. Legal regulation responsibility in the advertising sphere // Lawyer. - 2004. - No. 7. - P. 60–62.

Report of the Federation Council of the Federal Assembly of the Russian Federation in 2008 "On the state of the legislation of the Russian Federation" / Under. total ed. CM. Mironova, G.E. Burbulis. - M., 2009. - S. 438.

Leist O.E. The essence of law. Problems of theory and philosophy of law. - M., 2002. - C 253. For more information about the unacceptability of "introduction" into the scientific and practical circulation of the concept of "positive legal responsibility", see: Shaburov A.S. Political and legal aspects of the social responsibility of the individual: Abstract of the thesis. thesis ... Dr. jurid. Sciences. - Yekaterinburg, 1992. - S. 15–16; Baitin M.I. Essence of law (modern normative legal understanding on the verge of two centuries). - Saratov, 2001. - S. 196.

Cm.: Bratus S.N. Legal responsibility and legitimacy. - M., 1976. - S. 4, 85.

International Law Course. The main institutions of international law. - M., 1990. - T. 3. - S. 190.

Cm.: Izmailova E.V. Contract for the production of advertising // Scientific works. Russian Academy of Legal Sciences. - M., 2004. - Issue. 4: In 3 vols. - Vol. 1. - S. 755.

Cm.: Fokova E.A. Responsibility for violation of advertising legislation // Lawyer. - 2002. - No. 9. - P. 28–31; Fokova E.A. Legal regulation of liability in the advertising sphere // Lawyer. - 2004. - No. 7. - P. 60–62.

Lisetsky R.M. Administrative responsibility for violation of the legislation on advertising: Dis... cand. legal Sciences. - M., 2005. - S. 58.

Cm.: Lisetsky R.M. Administrative responsibility for violation of the legislation on advertising: Dis... cand. legal Sciences. - M., 2005. - S. 51–60.

Cm.: Bahrakh D.N. Administrative responsibility of citizens in the USSR: Textbook. - Sverdlovsk, 1989. - S. 21-24.

An exception is the exemption from administrative responsibility or the limitation of administrative responsibility on a subjective basis.

Timoshenko I.V. Administrative responsibility: Textbook. – M.; Rostov-on-Don, 2004. - S. 85.

On the unjustified exclusion of Article 182 of the Criminal Code of the Russian Federation, see: Kuznetsov A.P. Decriminalization of deliberately false advertising (Article 182 of the Criminal Code of the Russian Federation): success or miscalculation of the legislator // Advertising business, legislation, economic security of the individual and the state in modern Russia: Collection of articles / Ed. V.M. Baranov. - N. Novgorod, 2005. - S. 260-267; Satushiev A.Kh. On the fallacy of the decriminalization of article 182 of the Criminal Code of the Russian Federation “Knowingly false advertising” // Advertising business, legislation, economic security of the individual and the state in modern Russia: Collection of articles / Ed. V.M. Baranov. - N. Novgorod, 2005. - S. 355-360.

For details see: Baranova M.V. Monitoring advertising of financial services as a means of early diagnosis of fraud in the form of "financial pyramids" // Reklama i pravo. - 2004. - No. 1.

See: Economic Crime Investigation: A Guide for Investigators. - M., 1999. - S. 263-264.

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False advertising- this is an advertisement that discredits persons who do not use the advertised goods; contains incorrect comparisons of the advertised goods with the goods of other persons; denigrate honor, dignity, business reputation competitors; abuses trust individuals or lack of experience, knowledge, etc.

Discredits the honor, dignity or business reputation of a person, including a competitor;

It is an advertisement for a product, the advertising of which is prohibited in this way, in given time or in this place, if it is carried out under the guise of an advertisement of another product, the trademark or service mark of which is identical or confusingly similar to the trademark or service mark of the product, in relation to the advertisement of which the relevant requirements and restrictions are established, as well as under the guise of an advertisement of the manufacturer or the seller of such goods;

Is an act of unfair competition in accordance with antitrust laws.

About any characteristics of the product, including its nature, composition, method and date of manufacture, purpose, consumer properties ah, about the conditions for the use of the goods, about the place of its origin, the presence of a certificate of conformity or a declaration of conformity, marks of conformity and marks of circulation on the market, service life, expiration dates of the goods;

On the assortment and on the complete set of goods, as well as on the possibility of their acquisition in a certain place or within a certain period;

About the cost or price of the goods, the procedure for its payment, the amount of discounts, tariffs and other conditions for the purchase of goods;

On the terms of delivery, exchange, repair and maintenance of goods;

O warranty obligations the manufacturer or seller of the goods;

On exclusive rights to the results of intellectual activity and equivalent means of individualization of a legal entity, means of individualization of goods;

On the rights to use official state symbols (flags, coats of arms, anthems) and symbols international organizations;

about official or public recognition, about receiving medals, prizes, diplomas or other awards;

About the results of research and testing;

On granting additional rights or benefits to the purchaser of the advertised product;

On the source of information subject to disclosure in accordance with federal laws;

About the place where, before concluding a contract for the provision of services, interested persons can get acquainted with the information that must be provided to such persons in accordance with federal laws or other regulatory legal acts of the Russian Federation;

About the person obligated by the security;

Unethical Advertising- this is an advertisement containing any kind of information that violates the generally accepted norms of humanity and morality by using offensive words, comparisons, images in relation to race, nationality, profession, social category, age group, gender, language, religious, philosophical, political and other beliefs of individuals. Unethical advertising denigrates works of art that constitute a national or world cultural heritage; state or religious symbols, national currency.

physical or entity who became aware of the production or distribution of advertising containing information discrediting his honor, dignity or business reputation, has the right to apply for protection of violated rights to a court or arbitration court, respectively, in the manner prescribed by the legislation of the Russian Federation, and also has the right to demand a refutation from the advertiser such advertising in the same manner as it was distributed, unless the advertiser voluntarily complies with this requirement.

Hiden advertisment- advertising that has an effect on consumer perception that is not realized by the consumer. Such information may be present in programs, publications that are not officially advertising. Hidden advertising may be distributed through the use of special video inserts (double sound recording) and in other ways.

The Law on Advertising provides for sanctions and liability for various violations in the implementation of advertising activities. At the same time, the advertiser is responsible for violations in terms of the content of advertising information, unless it is proved that the violation occurred through no fault of his. The advertiser is responsible for the design, production, preparation of advertising. The advertiser is responsible for violations of the law in terms of time, place and means of advertising.

The state body, whose functions include control over the implementation of advertising activities, is the Ministry for Antimonopoly Policy and Entrepreneurship Support and its territorial divisions. When establishing the fact of violation of the legislation on advertising, the violator is obliged, at the request of the antimonopoly body and within the time limits established by it, to produce counter-advertising.

Counter-advertising is a refutation of inappropriate advertising, distributed in order to eliminate the consequences caused by it. Counter-advertising is carried out at the expense of the infringer and, as a rule, using the same means of distribution, characteristics of duration, space, place and order as inappropriate advertising.

Persons whose rights and interests are violated as a result of inappropriate advertising may claim damages in court, including lost profits, compensation for moral damage, as well as a public refutation of inappropriate advertising. Violation by the advertiser, advertising producer and advertising distributor of the legislation on advertising (improper advertising or refusal to counter-advertise) entails the imposition of an administrative fine in accordance with Art. 14.3 of the Code of Administrative Offenses of the Russian Federation. The procedure for considering cases on grounds of violation of the legislation of the Russian Federation on advertising was approved by the order of the Civil Code of Administrative Offenses of the Russian Federation dated November 13, 1995 No. 147. Criminal liability in this area is provided for the implementation of deliberately false advertising (Article 182 of the Criminal Code of the Russian Federation), and it occurs in the case when the false nature of the advertisement was obvious to the perpetrator, but he was guided by the selfish motive of gaining advantages through false advertising, which caused significant damage to consumers.

In accordance with the theory of law, legal responsibility is the application of measures of state coercion to the offender for the unlawful act committed by him. As characteristic features legal liability are as follows:

Connection with state coercion;

The basis of liability is an offense;

Legal responsibility is essential for the functioning of the rule of law, maintaining the regime of law and order. The main functions of legal responsibility are the following:

Preventive (legal responsibility encourages to follow the prescriptions of legal norms);

Punitive (through legal responsibility, society, represented by the state, condemns offenders and imposes on them additional legal obligations or deprives them of certain rights);

Restorative (with the help of legal liability, violated rights and legal relations are restored).

For the application of legal liability, including in the field of advertising, it is necessary to have appropriate grounds. The actual basis of liability is an offense, i.e. a specific act of the subject, contrary to legal norms. The legal basis for liability is a legal norm that provides for a measure of liability for a given offense. On the application of legal liability, a special act of application of law is drawn up, according to which a specific measure of liability is applied to a specific subject for a given offense.

In the theory of law, in the current regulations listed essential principles legal liability:

legality;

Equality of citizens before the law;

Justice;

Single use;

Objectivity;

inevitability;

expediency;

Timeliness;

Individuality.

Depending on the goals and content of responsibility, its various types are distinguished:

1) punitive legal liability, aimed at general and particular prevention (prevention) of offenses, is divided into sectoral types of liability:

a) material (the basis of this type of liability is damage to the employer or employee by the other party in labor relations);

b) disciplinary (occurs as a result of disciplinary offenses committed by an employee. disciplinary responsibility may be a person exercising administrative and disciplinary power over a particular employee);

c) civil law (comes for the commission of a civil tort. The imposition of this type of liability is carried out by judicial or administrative bodies);

d) administrative (comes for the commission of administrative offenses provided for by the Code of the Russian Federation on administrative offenses and the laws of the constituent entities of the Russian Federation on administrative offenses);

e) criminal (it is established only by the criminal law, only the court has the authority to bring to criminal responsibility);

2) remedial legal liability aimed at eliminating the harm caused to the rights and legitimate interests of the participants legal relations. The content of this type of legal liability consists in the restoration of violated rights or in the enforcement of an unfulfilled duty.

Article 38 of the Law on Advertising differentiates the subjects of liability depending on the type of offense. This article states that the advertiser is responsible for violation of the requirements for the content of advertising, the terms of storage of advertising materials. In particular, the advertiser is liable for violation of the rules provided for in parts 2–8 of article 5, articles 6–9, part 4 of article 10, article 12, parts 1 and 3 of article 21, parts 1 and 3 of article 22, parts 1 and 3 of article 23, articles 24 and 25, parts 1 and 6 of article 26, parts 1 and 5 of article 27, articles 28-30 of the Advertising Law.

The advertiser is responsible for violation of the requirements for the means, time and place of distribution of advertising, terms of storage of advertising materials. In particular, the advertising distributor is liable for violation of the rules established by clause 3 of part 4, parts 9 and 10 of article 5, articles 7–9, 12, 14–18, parts 2–6 of article 20, parts 2–4 of article 21, parts 2–4 of Article 22, parts 2–4 of Article 23, parts 7, 8 and 11 of Article 24, parts 1–5 of Article 26, parts 2 and 5 of Article 27, parts 1, 4, 7, 8 and 11 of Article 28, parts 1, 3, 4 and 6 Article 9 of the Advertising Law.

12.2. Administrative liability for offenses in the field of advertising

Administrative responsibility is established by the Code of the Russian Federation on administrative offenses and the laws of the constituent entities of the Russian Federation on administrative offenses.

According to the Code of Administrative Offenses of the Russian Federation, the basis of liability is an administrative offense, i.e., an unlawful, guilty action (inaction) of an individual or legal entity, for which administrative liability is established by law.

A feature of administrative responsibility is the possibility of bringing to it not only individuals, but also legal entities. A legal entity is found guilty of committing an administrative offense if it is established that it had the opportunity to comply with the rules and norms for the violation of which the law provides for administrative liability, but this person did not take all measures depending on them to comply with them.

At the same time, the imposition of an administrative penalty on a legal entity does not relieve the guilty individual from administrative liability for this offense, just as bringing an individual to administrative or criminal liability does not relieve a legal entity from administrative liability for this offense.

The general composition of an administrative offense in the field of advertising is the composition provided for in Article 14.3 "Violation of the legislation on advertising" (CAO RF).

The object of this offense is the general and special requirements for advertising, established by law about advertising.

The objective side can be expressed either by the action or inaction of the advertiser, advertising producer or advertising distributor in the form of inappropriate advertising or refusal of counter-advertising.

Inappropriate advertising is advertising that does not comply with the requirements of the law. This may be unfair, unreliable advertising, advertising with other violations of the requirements for the content, place, time, method of advertising distribution.

Counter-advertising is a public refutation of false advertising. Decision on counter-advertising current law on advertising is accepted only in court at the suit of the antimonopoly authorities or other persons whose rights and interests have been violated. In its decision, the court determines the form, place and terms for posting the refutation. Refusal to execute the relevant court decision and forms the composition of this offense.

The subject of this offense may be individuals (including officials) and legal entities: advertisers, advertising producers, advertising distributors. The subjective side is characterized by both intentional and careless forms of guilt.

Administrative punishment for this offense is applied in the form of a fine: for citizens - in the amount of 2000 to 2500 rubles; for officials - in the amount of 4,000 to 20,000 rubles; for legal entities - in the amount of 40,000 to 500,000 rubles.

The body that has the right to apply the liability provided for in Article 14.3 (of the Code of Administrative Offenses of the Russian Federation) is the Federal Antimonopoly Service, as well as its territorial bodies (Article 23.48 of the Code of Administrative Offenses of the Russian Federation).

Another administrative offense typical for the field of advertising is the offense provided for in Article 19.5 “Failure to comply with the legal order (decree, presentation, decision) of the body (official) carrying out state supervision(control)" (Code of Administrative Offenses of the Russian Federation).

The object of the offense in this case is the management procedure, which provides for the obligation to fulfill the instructions of the regulatory authorities (their officials) within the prescribed period.

As the objective side of the offense, the inaction of the subject is considered, expressed in the failure to comply with the order (decision) of any controlling body (official) - part 1 of the article, or the antimonopoly body (official) - part 2 of the article, to eliminate violations of the law within the prescribed period.

The subjective side, as in the previous offense, can be expressed in the form of intent or negligence.

The subjects of the offense provided for by part 1 of the article are citizens, officials and legal entities, and the subjects of the offense in the form of failure to comply with the legal order, the decision of the antimonopoly body within the prescribed period are officials and legal entities.

The penalty applied for this offense is fines or disqualification for officials. In particular, the following penalties have been established for non-compliance with the order of the antimonopoly body: for officials - a fine in the amount of 18,000 to 20,000 rubles or disqualification for up to three years; for legal entities - a fine from 300,000 to 500,000 rubles.

In case of non-compliance with the instructions of the antimonopoly body, the subject applying administrative responsibility is the antimonopoly body itself. In case of non-compliance with the instructions of another regulatory body (Part 1 of Article 19.5 of the Code of Administrative Offenses of the Russian Federation), administrative responsibility is applied in court.

The following composition of an administrative offense provides for liability for failure to provide data (information) that advertising entities are required to submit to the antimonopoly authority in accordance with Article 34 of the Law on Advertising (Article 19.7 of the Code of Administrative Offenses of the Russian Federation).

"Failure to provide information (information)". The object of the offense in this case is also the order of management.

The objective side for the sphere of advertising is characterized by non-submission or untimely submission to the antimonopoly authority of the information necessary for the exercise of its powers of state control over compliance with advertising legislation, or the provision of information in an incomplete or distorted form.

The subjects and the subjective side of this offense are the same as in the offenses considered earlier.

The punishment prescribed by law consists in the imposition of an administrative fine on citizens in the amount of 100 to 300 rubles; for officials - from 300 to 500 rubles; for legal entities - from 3000 to 5000 rubles. This punishment is enforced by the court.

The following administrative offense related to promotional activities, provided for in Article 13.15 “Abuse of freedom mass media"(Code of Administrative Offenses of the Russian Federation).

The object of the offense in this case is public relations to protect the individual, society and the state from the abuse of freedom of the mass media.

The objective side of the offense may consist only in the action: the production and / or distribution of television, video, film programs, documentaries and feature films, as well as information computer files related to special media and information text processing programs containing hidden inserts that affect people's subconscious and / or having a harmful effect on their health.

The subject and subjective side of the offense are similar to those set out above.

The commission of such an offense entails the imposition by the judge of an administrative fine with confiscation of the subject of the administrative offense (for citizens from 2,000 to 2,500 rubles, for officials from 4,000 to 5,000 rubles, for legal entities from 40,000 to 50,000 rubles).

As noted above, in the field of outdoor advertising, relations can be regulated by both federal and local legislation. Accordingly, administrative liability for offenses in the field of outdoor advertising is established both by the Code of Administrative Offenses of the Russian Federation and by the laws of the subjects of the Federation.

Article 11.21 "Violation of the rules for protecting the right of way of a highway" (CAO RF) provides, among other things, liability for the installation of an advertising structure without the consent of the road authorities.

The object of the offense in this case is safety traffic and the established procedure for the use of the right of way of motor roads.

The objective side is expressed in illegal actions: for the advertising sector, this is the installation of an advertising structure without coordination with the road authorities.

The subjects of the offense can be citizens and officials who commit an offense both intentionally and through negligence.

The commission of such an offense entails a warning or the imposition in court of a minimum fine (for citizens from 1,000 to 1,500 rubles, for officials from 3,000 to 5,000 rubles, for legal entities from 50,000 to 80,000 rubles).

The law of the city of Moscow dated January 24, 1996 No. 1 “On administrative liability for offenses in the field of urban improvement” in article 17 provides for liability for violation of the rules for installing, maintaining, accommodating and operating facilities decoration and outdoor advertising.

The object of the offense in this case is the procedure for installing, maintaining, placing and operating outdoor advertising media.

The objective side can be expressed both by action and inaction, violating the requirements for outdoor advertising media and the rules for their placement, the obligations of owners advertising structures. Among other things, the offense includes the placement of outdoor advertising without issuing permits.

The subjects of the offense may be officials and legal entities. The subjective side is intent or negligence.

Administrative punishment for this offense consists in the application of a fine: for officials in the amount of five to thirty minimum dimensions wages, for legal entities - from ten to one hundred minimum wages. Cases of administrative offenses against officials are considered by administrative commissions, with respect to legal entities - by the Association of Administrative and Technical Inspections of the City of Moscow, its district and specialized inspectorates.

Placing false advertising in organizations that sell goods, perform work or provide services to the public may constitute an administrative offense (Article 14.7 of the Code of Administrative Offenses of the Russian Federation “Deception of consumers”).

The object of the offense in this case are the rights and interests of consumers.

The objective side for the sphere of advertising is characterized by actions that mislead consumers about consumer properties, the quality of a product (work, service) or other deception. An administrative offense is considered completed at the moment when the consumer has entered into a contract for the retail sale, performance of work, provision of services (received cash receipt, receipt or other document confirming payment).

The subject of this administrative offense may be a natural person, executive, entity. The fault of the offender is intentional.

Administrative punishment for this offense consists in the imposition of an administrative fine on citizens in the amount of 1,000 to 2,000 rubles; for officials - from 1000 to 2000 rubles; for legal entities - from 10,000 to 20,000 rubles.

Another composition that violates the rights of the consumer, including in the case of the dissemination of false advertising, is provided for in Article 14.8 "Violation of other consumer rights" (CAO RF).

Unlike the previous one, the objective side of this offense is of a special nature and consists in violating the consumer's right to receive the necessary and reliable information about the product (work, service) being sold, about the manufacturer, about the seller, about the performer and about their mode of operation.

The subjects of such an offense can be officials and legal entities, the form of guilt is intent or negligence, the punishment is a fine.

The liability provided for in Articles 14.7 and 14.8 (of the Code of Administrative Offenses of the Russian Federation) is applied by the authorities state inspection on trade, product quality and consumer protection.

The composition of the following offense related to advertising is provided for in Article 5.9 “Violation of the conditions for advertising business and other activities during the election campaign” (CAO RF).

The object of this offense is public relations related to ensuring objective information of voters and referendum participants.

The objective side of the offense is expressed in the action or inaction, which entailed the violation of the conditions for advertising entrepreneurial and other activities of candidates, registered candidates, electoral associations, electoral blocs, other persons and organizations, stipulated by the legislation on elections and referendums, advertising of entrepreneurial and other activities of which are subject to requirements and restrictions provided by the legislation on elections and referendums.

The subjects of the offense may be citizens, officials and legal entities. The offense can be committed both intentionally and negligently.

Punishment for this offense is provided in the form of a fine imposed in court: for citizens in the amount of 1,000 to 1,500 rubles; for officials - from 2000 to 3000 rubles; for legal entities - from 20,000 to 30,000 rubles.

Another offense that can be committed in the field of advertising is provided for by Article 6.13 "Propaganda of narcotic drugs, psychotropic substances or their precursors" (CAO RF).

The object of the offense in this case is the health of citizens, morality, public order.

The objective side includes, among other things, advertising of narcotic drugs, psychotropic substances or their precursors in violation of the requirements of federal law.

The subjects of the offense may be citizens, officials, legal entities who commit this offense intentionally.

The liability provided for such an offense is a fine with possible confiscation of advertising products and equipment used for its manufacture, or administrative suspension of activities (for legal entities and individual entrepreneurs). Punishment is applied by the court or officials of bodies authorized in the field of press and mass media, in the field of television, radio broadcasting and state control over technical quality broadcasting, authorities for the control of the circulation of narcotic drugs and psychotropic substances.

For violation of special requirements for advertising securities and financial services, liability is provided for under article 15.24 “Public placement, advertising under the guise of securities of documents certifying monetary and other obligations” (Code of Administrative Offenses of the Russian Federation).

The object of the offense in this case is the rights and legitimate interests of investors, the rules for circulation and advertising of securities.

The objective side of this offense includes, among other things, such an action as advertising under the guise of securities of documents certifying monetary and other obligations and not being securities in accordance with the law.

The offense is committed intentionally by legal or official persons. As a punishment, the Code of the Russian Federation on Administrative Offenses provides for an administrative fine, which is imposed federal agency executive power, authorized in the field of the securities market.

Of all the listed offenses, the most common and typical for the advertising industry is the offense provided for in Article 14.3 “Violation of the Advertising Legislation” (CAO RF). Responsibility for this offense may be applied by the head of the FAS and his deputies, as well as the heads of the territorial bodies of the FAS and their deputies.

For the application of liability, the Code of the Russian Federation on Administrative Offenses provides for a certain procedural order.

According to Article 28.1 (of the Code of Administrative Offenses of the Russian Federation), the reasons for initiating a case on administrative offenses may be:

Direct detection by an authorized official of sufficient data indicating the presence of an event of an administrative offense;

Received from law enforcement agencies, as well as from other government agencies, local governments, from public associations materials containing data indicating the presence of an event of an administrative offense;

Messages and statements of individuals and legal entities, as well as messages in the media containing data indicating the presence of an event of an administrative offense.

A protocol is drawn up on the commission of an administrative offense, which indicates the date and place of its preparation, the position, surname and initials of the person who drew up the protocol, information about the person against whom the case on administrative offense, surnames, names, patronymics, addresses of the place of residence of witnesses and victims, if there are witnesses and victims, place, time of commission and event of an administrative offense, an article of the Code of the Russian Federation on administrative violations or a law of a constituent entity of the Federation providing for administrative responsibility for this administrative offense, explanation the individual or legal representative of the legal entity against whom the case has been initiated, other information necessary to resolve the case.

An individual or a legal representative of a legal entity in respect of whom a case on an administrative offense has been initiated must be given the opportunity to familiarize themselves with the protocol on an administrative offense. These persons have the right to provide explanations and comments on the content of the protocol, which are attached to it. An individual or a legal representative of a legal entity in respect of whom an administrative offense case has been initiated, as well as the victim, is handed a copy of the protocol on an administrative offense against signature (Article 28.2 of the Code of Administrative Offenses of the Russian Federation).

Protocols on administrative offenses provided for in Article 14.3 (of the Code of Administrative Offenses of the Russian Federation) may be drawn up not only by the above-mentioned employees of the antimonopoly authorities, but also by officials of the internal affairs bodies (police), officials of the state inspection bodies for trade, quality of goods and consumer protection, officials persons of bodies exercising state control for the production and circulation of ethyl alcohol, alcoholic and alcohol-containing products (Article 28.3 of the Code of Administrative Offenses of the Russian Federation). After drawing up, the protocols are sent to the antimonopoly authorities.

When drawing up a protocol on an administrative offense, an individual or a legal representative of a legal entity against whom an administrative offense case has been initiated, their rights and obligations are explained - the right to get acquainted with all the materials of the case, give explanations, present evidence, file motions and challenges, use legal assistance counsel to be present during the hearing.

According to Article 26.1 (CAO RF), when considering a case on an administrative offense, the following must be established:

1) the presence of an event of an administrative offense;

2) a person who has committed unlawful actions (inaction), for which the law provides for administrative liability;

3) the person's guilt in committing an administrative offense;

4) circumstances mitigating administrative responsibility and circumstances aggravating administrative responsibility;

5) the nature and extent of the damage caused by the administrative offence;

6) circumstances excluding proceedings in a case concerning an administrative offence;

7) other circumstances that are important for the correct resolution of the case, as well as the causes and conditions for committing an administrative offense.

In cases where, after revealing an administrative violation of the legislation on advertising, an examination or other procedural actions are carried out that require significant time costs, an administrative investigation is carried out. The term for conducting an administrative investigation may not exceed one month from the date of initiation of a case on an administrative offense (Article 28.7 of the Code of Administrative Offenses of the Russian Federation).

The case of an administrative offense is considered at the place of its commission. At the request of the person in respect of whom proceedings are being conducted on the case of an administrative offense, the case may be considered at the place of residence of this person. A case concerning an administrative offense in respect of which an administrative investigation has been conducted shall be considered at the location of the body that conducted the administrative investigation.

The case on an administrative offense is considered within 15 days from the date of receipt by the judge, body, official authorized to consider the case, the protocol on the administrative offense and other materials of the case. In case of receipt of petitions from the participants in the proceedings in the case of an administrative offense or if additional clarification of the circumstances of the case is necessary, the term for the consideration of the case may be extended by the judge, body, official considering the case, but not more than for one month (Article 29.6 of the Code of Administrative Offenses of the Russian Federation) .

The procedure for considering a case is defined in Article 29.7 (of the Code of Administrative Offenses of the Russian Federation).

When considering a case on an administrative offense:

1) it is announced who is considering the case, what case is subject to consideration, who and on the basis of what law is brought to administrative responsibility;

2) the fact of the appearance of an individual, or a legal representative of an individual, or a legal representative of a legal entity, in respect of which proceedings are being conducted on an administrative offense case, as well as other persons participating in the consideration of the case, is established;

3) the powers of legal representatives of a natural or legal person, defense counsel and representative are checked;

4) it is ascertained whether the participants in the case proceedings have been notified in accordance with the established procedure, the reasons for the non-appearance of the participants in the case proceedings are ascertained, and a decision is made to consider the case in the absence of the indicated persons or to postpone the case;

5) explain to the persons participating in the consideration of the case, their rights and obligations;

6) the submitted challenges and petitions are considered;

7) if necessary, rulings are made.

When the consideration of the case on an administrative offense is continued, a protocol on an administrative offense is announced, and, if necessary, other materials of the case. Explanations of an individual or a legal representative of a legal entity in respect of whom proceedings are being conducted on an administrative offense are heard, testimonies of other persons participating in the proceedings, explanations of a specialist and an expert opinion, other evidence is examined, and in the case of the participation of a prosecutor in the consideration of the case, his conclusion.

Based on the results of the consideration of a case on an administrative offense, a decision may be issued:

1) on imposing an administrative penalty;

2) on termination of proceedings on the case of an administrative offence.

The resolution (Article 29.10 of the Code of Administrative Offenses of the Russian Federation) must indicate:

1) position, surname, name, patronymic of the judge, official, name and composition collegiate body who made the decision;

2) the date and place of the hearing of the case;

3) information about the person in respect of whom the case has been considered;

4) the circumstances established during the consideration of the case;

5) an article of the law providing for administrative liability for committing an administrative offense, or the grounds for terminating proceedings on the case;

6) reasoned decision on the case;

7) the term and procedure for appealing against the ruling.

In case of imposition of an administrative fine, the resolution also indicates information about the recipient of the fine, which is necessary in accordance with the rules for filling out settlement documents for transferring the amount of the administrative fine.

The decision is announced immediately after the end of the consideration of the case.

A decision on a case on violation of advertising legislation must be issued within a year from the moment the administrative offense was committed (Article 4.5 of the Code of Administrative Offenses of the Russian Federation).

The decision on the case of an administrative offense may be appealed in court, arbitration court. An appeal against a decision in a case concerning an administrative offense may be filed within ten days from the date of delivery or receipt of a copy of the decision.

The main administrative penalty applied for offenses in the field of advertising is an administrative fine.

According to Article 32.2 (CAO RF), an administrative fine must be paid by a person brought to administrative responsibility no later than thirty days from the date the decision to impose an administrative fine enters into force or from the date of expiration of the deferral or installment period provided for in Article 31.5 (CAO RF). The amount of the administrative fine is paid or transferred by the person brought to administrative responsibility to the bank. A copy of the document certifying the payment of an administrative fine shall be sent by the person brought to administrative responsibility to the judge, body, official who issued the decision. In the absence of a document certifying the payment of an administrative fine, after the expiration of due date the judge, body, official who issued the decision shall send the relevant materials to the bailiff to recover the amount of the administrative fine in the manner prescribed by federal law. In addition, the judge, body, official who issued the decision shall make a decision to bring the person who has not paid the administrative fine to administrative responsibility.

The Law on Advertising (Article 38) establishes that the amounts of fines for violation of the legislation of the Russian Federation on advertising and failure to comply with the instructions of the antimonopoly body are credited to the budgets of the country's budget system in the following order:

1) in federal budget- 40 percent;

2) to the budget of the constituent entity of the Russian Federation in whose territory a legal entity or an individual entrepreneur is registered that has committed a violation of the legislation of the Russian Federation on advertising - 60 percent.

The payment of the fine does not exempt from the execution of the order to stop the violation of the legislation of the Russian Federation on advertising.

12.3. Civil liability for offenses in the field of advertising

Civil liability is the sanctions provided for by the Civil Code of the Russian Federation and applied to the offender in the form of depriving him of his civil right or imposing on him an additional civil obligation.

The general measure of civil liability is compensation for damages. According to Article 15 of the Civil Code of the Russian Federation, losses are understood to be expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (actual damage), as well as lost income that this person would have received under normal conditions of civil circulation, if his right had not been violated (lost profit).

Liability in the form of damages applies in all cases of violation of civil rights, including in case of violation of contracts concluded between advertisers, advertising producers, advertising distributors (see Chapter 7).

Other forms of civil liability apply only in cases specifically provided for by law or contract.

Special measures of civil liability, typical for the sphere of advertising, are compensation for harm, compensation for moral damage, public refutation of unreliable advertising (counter-advertising).

In addition to general and special civil liability, there are also contractual and non-contractual liability. Contractual liability arises for breach of a contractual obligation. Its essence and conditions are considered by us in Chapter 7. Out-of-contractual liability occurs when the offender is not in a contractual relationship with the victim.

Article 38 of the Law on Advertising provides that persons whose rights and interests have been violated as a result of the dissemination of inappropriate advertising have the right to apply in accordance with the established procedure to a court or arbitration court, including claims for damages, including lost profits, for compensation for damage caused health of individuals and / or property of individuals or legal entities, on compensation for moral damage, on public refutation of unreliable advertising (counter-advertising). This article deals with non-contractual liability. Its shape and size are determined by law.

The basis for the application of civil liability is a civil offense, which includes general rule wrongful conduct and guilt of the debtor. However, in the cases specified in the law, the liability of the violator may occur without fault. If liability in the form of compensation for losses is applied, the damages themselves and the causal relationship between the action (inaction) of the offender and the losses are also included in the civil offense.

The rules for compensation for harm are set out in Chapter 59 of the Civil Code of the Russian Federation. General rule of this chapter reads (Article 1064 of the Civil Code of the Russian Federation): "The harm caused to the person or property of a citizen, as well as the harm caused to the property of a legal entity, is subject to compensation in full by the person who caused the harm." Exceptions to this rule are established by law. In particular, harm caused by employees of a legal entity in the performance of labor (service, official) duties is compensated by the legal entity (Article 1068 of the Civil Code of the Russian Federation).

The Civil Code of the Russian Federation provides for various ways of compensation for harm.

Satisfying the claim for damages, the court, in accordance with the circumstances of the case, obliges the person responsible for causing the damage to compensate for the damage in kind (provide a thing of the same kind and quality, fix the damaged thing, etc.) or compensate for the losses caused (Article 1082 of the Civil Code RF).

When a citizen is injured or otherwise damaged in his health, the lost earnings (income) that he had or could definitely have, as well as additional expenses incurred due to damage to health, including the cost of treatment, are subject to compensation. extra food, purchase of medicines, prosthetics, outside care, sanatorium treatment, purchase of special Vehicle training for another profession, if it is established that the victim needs these types of assistance and care and is not entitled to receive them free of charge (Article 1085 of the Civil Code of the Russian Federation).

In the event of the death of the victim, his disabled dependents have the right to compensation for harm in accordance with Article 1088 (Civil Code of the Russian Federation).

Compensation for harm caused by a decrease in the ability to work or the death of the victim is, as a rule, made in monthly installments.

A special case of harm may be associated with the activities of an advertiser - a manufacturer or seller of goods, a performer of work and services for consumers.

Harm caused to life, health or property of a citizen or property of a legal entity due to structural, prescription or other defects in a product, work or service, as well as due to inaccurate or insufficient information about a product (work, service), is subject to compensation by the seller or manufacturer of the product, person, those who performed the work or provided the service (performer), regardless of their fault and whether the victim was in a contractual relationship with them or not (Article 1095 of the Civil Code of the Russian Federation).

In this case, the damage caused due to defects in the goods is subject to compensation at the choice of the injured person by the seller or the manufacturer of the goods. Damage caused as a result of shortcomings in work or service is subject to compensation by the person who performed the work or provided the service (performer). The same persons compensate for the harm caused due to failure to provide complete or reliable information about the product (work, service). In this case, the fault is not prerequisite responsibility of the offender. The seller or manufacturer of goods, performer of work or service is released from liability only if he proves that the damage was caused by force majeure or violation by the consumer of the established rules for the use of goods, results of work, services or their storage.

A special measure of civil liability, common in the field of advertising, is compensation for moral damage. According to Article 151 (Civil Code of the Russian Federation), if a citizen has suffered moral harm (physical or moral suffering) by actions that violate his personal non-property rights or encroach on other non-material benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose on the violator the duty monetary compensation for the said damage. Physical and moral suffering to citizens may be caused as a result of the dissemination of advertising in violation of statutory general and special requirements, for example, in the case of dissemination of false advertising of medicines.

Compensation for non-pecuniary damage is carried out in cash. When determining the amount of compensation for non-pecuniary damage, the court takes into account the degree of guilt of the offender and other noteworthy circumstances. The court must also take into account the extent and nature of the physical and mental suffering associated with the individual characteristics of the person harmed. The nature of the physical and moral suffering is assessed by the court, taking into account the actual circumstances under which the moral harm was inflicted, and individual characteristics victim. When determining the amount of compensation for harm, the requirements of reasonableness and fairness must be taken into account (Article 1101 of the Civil Code of the Russian Federation).

Moral damage caused by actions (inaction) that violate the property rights of a citizen is subject to compensation only in cases provided for by law. In this case, compensation for moral damage is carried out regardless of the property damage subject to compensation.

As a general rule, compensation for non-pecuniary damage is carried out in the presence of the fault of the tortfeasor, however, in the cases specified in Article 1100 (Civil Code of the Russian Federation), the harm is compensated regardless of fault. Among other things, such cases include harm caused by the dissemination of information discrediting honor, dignity and business reputation.

Another special measure of civil liability in accordance with Article 38 of the Law on Advertising is counter-advertising, i.e. public refutation of false advertising. Such liability applies only in the case of dissemination of false advertising. The form, place and terms of placement of a refutation are determined by the court at the suit of the victim or the antimonopoly body. Refutation is carried out at the expense of the advertiser.

12.4. Other types of liability for offenses in the field of advertising

For certain especially dangerous offenses related to advertising activities, criminal liability may be applied. However, in practice, such cases almost never occur. Article 182 of the Criminal Code of the Russian Federation "Knowingly false advertising" in December 2003 was declared invalid.

The object of this crime is the rights to the means of individualization of goods (works, services).

The objective side of the crime is the illegal use of someone else's trademark, service mark, appellation of origin of goods or similar designations for homogeneous goods (Part 1, Article 182 of the Criminal Code of the Russian Federation) or in the illegal use of warning markings in relation to a trademark or appellation of origin not registered in the Russian Federation (Part 2, Article 182 of the Criminal Code of the Russian Federation), if these acts were committed repeatedly or caused large damage. The use of a trademark and other objects of crime can be carried out, including in advertising.

The conditions for bringing to criminal responsibility are the repeated act or the infliction of large damage as a result of the act. Repeated illegal use of a trademark is considered completed from the moment of the second fact of its use. In the material composition, the crime is completed from the moment of causing major damage; according to the note to Article 169 (Criminal Code of the Russian Federation), its amount must exceed two hundred and fifty thousand rubles.

The subjective side is characterized by intent.

The perpetrators of a crime can be individual entrepreneurs, employees of legal entities.

For the commission of this crime, the court imposes a punishment in the form of a fine, compulsory work or correctional labor. In the event of the commission of these crimes by a group of persons or an organized group, it is possible to impose a penalty of imprisonment for up to six years.

The law also provides for the elements of crimes, “Illegal distribution of pornographic materials or objects” (Article 242 of the Criminal Code of the Russian Federation), “Production and circulation of materials or objects with pornographic images of minors”

(Article 242.1 of the Criminal Code of the Russian Federation).

The objects of these crimes are relations in the sphere of public morality.

The objective side, among other things, includes advertising of pornographic materials or objects (Article 242 of the Criminal Code of the Russian Federation), advertising of materials or objects with pornographic images of obviously minors (Article 242.1 of the Criminal Code of the Russian Federation).

The subjective side of crimes is characterized by direct intent.

The subject of the crime is a person who has reached 16 years of age (Article 242 of the Criminal Code of the Russian Federation) and 18 years of age (Article 242.1 of the Criminal Code of the Russian Federation).

Article 242 (Criminal Code of the Russian Federation) provides for punishment in the form of a fine or imprisonment for up to two years. Article 242.1 (Criminal Code of the Russian Federation) provides for punishment in the form of imprisonment for up to six years, and with a qualified composition - up to eight years.

Another type of legal liability that may apply in the field of advertising is disciplinary liability. This type of liability is subject to labor relations between employers and employees. If an employee of an organization engaged in advertising activities has violated the requirements of advertising legislation, the employer has the right to apply the following disciplinary sanctions to him:

1) remark;

2) reprimand;

3) dismissal on the relevant grounds provided for by the Labor Code of the Russian Federation (Article 192).

The Labor Code of the Russian Federation does not allow the application of disciplinary sanctions and grounds for dismissal that are not provided for by federal laws.

Article 193 Labor Code Russian Federation and establishes the procedure for the application of disciplinary liability.

Before application disciplinary action the employer must ask the employee for an explanation of writing. If the employee refuses to give the specified explanation, an appropriate act is drawn up. A disciplinary sanction is applied, as a rule, no later than one month from the day the misconduct was discovered. The order (instruction) of the employer on the application of a disciplinary sanction is announced to the employee against receipt within three working days from the date of its issuance. If the employee refuses to sign the specified order (instruction), an appropriate act is drawn up.

Questions and tasks

1. What is legal liability?

2. List the principles and types of legal responsibility.

3. What is the essence of legal liability?

4. Indicate the grounds and procedure for applying administrative liability for offenses in the field of advertising.

5. Determine the grounds and conditions for the application of civil liability for offenses in the field of advertising.

6. Describe the meaning of criminal and disciplinary liability in the field of advertising.

7. Name the problems and prospects for application various kinds legal liability in the field of advertising.

On February 26, 2015, according to the results of an audit conducted by the Federal Antimonopoly Service in respect of MTS-Bank OJSC, violations of the requirements of the Federal Law "On Advertising" N 38-FZ of March 13, 2006 were revealed, as a result of which the organization was fined a total of two hundred thousand rubles.

By the resolution on the case No. 4-14.3-115 / 00-08-15 and No. 4-14.3-101 / 00-08-15 on an administrative offense dated February 26, 2015, MTS-Bank OJSC was brought to administrative responsibility for non-compliance the requirements of the current legislation regarding the dissemination of advertising information about the offered banking products.

The grounds for holding the credit organization liable were several violations, different in nature, but having similar negative consequences for consumers of advertising.

In the first case, the Bank, providing full information about the advertised product, indicated in large print information about the interest rate on deposits favorable for the consumer. The rest of the information containing information that affects the amount of income received by persons who will take advantage of this offer was placed in small print, and the color of the text practically did not differ from the background, which made it unreadable. Thus, the requirements for the reliability and completeness of the information of the advertised product, established by Art. 5 of the Federal Law "On Advertising", were observed by the Banking Organization only formally, since, despite the availability of complete and reliable information about the advertising product, they were not properly communicated to the advertising consumer. So, in particular, in the advertisement of the “Hot” deposit of MTS-Bank OJSC, attractive conditions for the consumer were reported in large print:

"Hot" deposit. Up to 12% per annum. MTS BANK 8 800 250 05 20 www.mtsbank.ru”, but the text with less attractive deposit conditions (deposit term and amount, interest rate depending on the period of funds in the deposit, the possibility of replenishing the deposit, conditions for paying interest in case of early termination contracts, etc.) occupied only 1/20 of the total advertising area and was made in small unreadable white print on a blue background.

In the second case Credit organization only part of the information about the proposed product was indicated, which contradicts not only Part 7 of Art. 5 of the Federal Law "On Advertising", but also Art. 28.

So, for example, in information on deposits "High income - Region", "Cumulative - Region", "Mobile", "Pension - Region", "Corporate", "Convenient - Region", "Multicurrency - Region", "Investment" , placed in the advertising booklet "Deposits of MTS-Bank", there was no information on the size of the interest rate.

According to paragraph 3 of Article 28 of the said legal act, if an advertisement for services related to the provision of a loan or a loan contains at least one condition affecting its cost, such advertisement must contain all other conditions that determine the full cost of the loan.

The next violation was the dissemination advertising booklets containing information about the conditions for granting bank loans that did not correspond to the real conditions for their issuance to citizens. Thus, the advertising of the credit product was not reliable. According to Clause 4 of Part 2 of Article 5 of the Federal Law “On Advertising”, an advertisement is recognized as false if it contains false information about the cost or price of the product, the procedure for paying for it, the amount of discounts, tariffs and other conditions for purchasing the product.

Analyzing the above violations of various nature in the field of the implementation of an advertising product, we can conclude that they all entail one negative consequence. When familiarized with such advertising, the consumer is misled about the important conditions for the provision of banking services, which deprives him of the opportunity to make an informed and correct choice of financial services for him.

In this state of affairs, the bank's activities created the prerequisites for the consumer of advertising to form misconceptions about the amount of income necessary for the timely return of borrowed funds, or about the amount of income that an advertising consumer can receive using a particular financial service, therefore, the involvement of MTS-Bank OJSC ” to administrative responsibility seems to be quite reasonable.

Unfortunately, the spread of unscrupulous advertising is not uncommon and tends to increase.

The Federal Antimonopoly Service annually takes measures to bring dishonest advertisers to administrative responsibility.

So in April 2014, Alfa-Bank was fined for placing inappropriate outdoor advertising.

In November 2014, the Volgograd provider "InvestSvyaz" was fined for failure to provide consumers with complete and comprehensive information about the services provided mobile communications under the Pronto brand.

In December 2014, MTS OJSC was fined 100,000 rubles for distributing advertisements in which part of the terms of the proposed tariff was written in small illegible print.

And these are far from all cases of bringing unscrupulous advertisers to administrative responsibility.

Despite the fact that modern streets are filled with advertising products that do not meet the requirements of the law, as practice shows, most checks of placed advertising for compliance with current legislation are carried out on the basis of applications from citizens who have already suffered in one way or another from the dishonest actions of an advertiser of financial or other services.

However, it is practically impossible to take any preventive measures to prevent this category of offenses due to the large volume of advertising products offered.

In 2014, the Federal Antimonopoly Service published a letter of clarification of certain provisions on advertising dated April 17, 2014 N AD / 15051/14. This document contains, among other things, clarifications regarding the form and content of the statement of violation of the legislation of the Russian Federation on advertising, set out in an accessible language for persons who do not have special knowledge in the field of jurisprudence. Thus, favorable conditions have been created for citizens, seeing obvious violations of the requirements of the current legislation on advertising, not to be indifferent to the problem, but to apply to the competent authorities not only to protect their violated rights, but also to act for the benefit of society as a whole, reporting about the violations they noticed.

It should be noted that the requirements of the legislation regarding the quality of the advertising product are close in their legal nature to the norms regarding the quality of goods and services established by the law "On the Protection of Consumer Rights" of 07.02.1992 N 2300-1, which seems quite natural.

So, for example, in the process of purchasing food in everyday life, a citizen needs to have complete information about the product he is purchasing (shelf life, manufacturer, composition, date of manufacture, etc.). Otherwise, by making the wrong choice, the buyer runs the risk of paying not only for his health, but also for the health of his family.

A similar danger is fraught with inappropriate advertising, since it is not possible for a person who is interested in the advertised service to obtain sufficient information about this service, therefore, a citizen or legal entity will not be able to make an informed choice that is beneficial for them, as a result of which their “financial health"

Thus, bringing unscrupulous advertisers to administrative responsibility is of fundamental importance for reducing the number of offenses in the field of dissemination of advertising information and, as a result, entails a decrease in the number of advertising consumers affected by the wrong choice.

Andrey Komissarov, founder of the Komissarov & Partners Bar Association