home » Marketing » Facts have been punished for false advertising. Questions for self-study

Facts have been punished for false advertising. Questions for self-study

ADVERTISING LEGISLATION
V. SEMEUSOV
V. Semeusov, Doctor of Law, Professor (Irkutsk).
The development of the advertising services market has led to the need for legal regulation of this activity. It is primarily about protecting the rights and interests of consumers. Unfair, unethical advertising can do a lot of harm. So, after watching another commercial about a new miraculous drug, the patient, in the hope of being cured, not only empties his wallet, but often puts his life in danger.
Unbelievable, but true: the advertising services market in Russia functioned for some time in a legal vacuum, since there were no legal provisions in this regard.
After the adoption of the Federal Law of July 18, 1995 "On Advertising", advertising activity was recognized as entrepreneurial. Legal relations associated with it are now regulated by special legislation, which should be considered part of the economic, and violations of it - economic offenses.
The law introduces the concept of improper advertising, its classification is given. This includes unscrupulous, unreliable, unethical, deliberately false and other advertising, which violates the requirements for its content, time, place and method of distribution established by the legislation of the Russian Federation. Violation of the legislation on advertising is subject to civil, administrative and criminal liability. Let's start with the last one. In Art. 31 of the Federal Law of July 18, 1995, it is written: "Inappropriate advertising, repeated within a year after the imposition of an administrative penalty for the same actions, entails criminal liability in accordance with the legislation of the Russian Federation." Alas, there is still no such corpus delicti in the Criminal Code of the Russian Federation. Therefore, until now, criminal liability for inappropriate advertising under certain circumstances has not been introduced.
The law prohibits false advertising under penalty of criminal liability. But for some time there was no corresponding criminal-legal norm. Now in Art. 182 of the Criminal Code, the plot of a crime called "knowingly false advertising" is stated as follows: the use in advertising of knowingly false information about goods, works or services, as well as their manufacturers (performers, sellers), committed out of selfish interest and caused significant damage.
Criminal punishment for deliberately false advertising occurs if this act caused "substantial" according to the Law of July 18, 1995, and according to Art. 182 of the Criminal Code - "significant" damage. What does it mean? There is no legal answer.
Disposition Art. 182 of the Criminal Code is such that the question of specific subjects is also unclear criminal liability. After all, an advertiser, an advertising producer, an advertising distributor are involved in the advertising business. These are usually legal entities. But in Russian criminal law there is a principle that a legal entity cannot be subject to criminal liability, it has no place in the dock.
It appears to be a criminal offence. officials who violated advertising laws. It must be assumed that the responsibility provided for by Chapter 5 of the Law of July 18, 1995, is borne by the subjects of this activity in the part that applies to them. Thus, the advertiser is liable for violation of the law in terms of the content of information provided for the creation of advertising; advertising producer - for violations in the design, production, preparation of advertising; advertising distributor - for violations regarding the time, place and means of advertising.
In accordance with the Law, deliberately false advertising, made with the aim of making a profit (income) and causing significant damage to state interests or the rights and interests of citizens protected by law, entails criminal liability. It turns out that the interests legal entities, which false advertising can cause significant damage, are not protected under criminal law. One can hardly agree with this, because both citizens and legal entities are recognized as consumers of advertising. Knowingly false advertising involves the deliberate misleading of any consumers.
For violation of the legislation on advertising, the antimonopoly authority has the right to impose a fine of up to 5,000 minimum dimensions wages. The amount, of course, is impressive. But it turns out to be a bluff. After all, a fine in this amount can be recovered only in two cases: for failure to comply with the instructions to stop violations of advertising legislation and for failure to comply with decisions on counter-advertising. If the prescription is complied with, then the Law does not provide grounds for imposing a fine in the specified amount.
The procedure for collecting an administrative fine for inappropriate advertising is as follows. It must be paid voluntarily within 30 days from the date of issuance of the relevant decision. What if the perpetrator evades payment? It is logical to assume that then the fine is collected in an indisputable manner. But no. In this case, you need to go to court (Article 31 of the Law "On Advertising"). The court is obliged to verify the fact of the violation and the legality of imposing a fine. In accordance with Part 2 of Art. 22 of the Arbitration Procedure Code of the Russian Federation, the arbitration court has jurisdiction over economic disputes on the recovery of fines from organizations and citizens by state bodies exercising control functions, unless the federal law provides for an indisputable (non-acceptance) procedure for their recovery. Thus, the antimonopoly body initiates a court case, and the court decides on punishment for inappropriate advertising.
In practice, there is often a need to implement the so-called "counter-advertising".
In accordance with Art. 29 of the Law of July 18, 1995, counter-advertising is designed to be an effective means of influencing violators of advertising legislation, and its essence is a refutation of improper advertising, distributed in order to eliminate the consequences caused by it. The legal basis for the use of counter-advertising is the establishment of the fact of violation of the legislation on advertising and the issuance of an appropriate decision in connection with this by the antimonopoly body.
Consequently, the violator of the advertising legislation is obliged to carry out counter-advertising within the time period established by the antimonopoly authority. He bears the associated costs in full (which can be large sums). Counter-advertising is carried out through the same medium, using the same characteristics of duration, space, place and order, as the refuted inappropriate advertising. The content of the counter-advertising is coordinated with the federal antimonopoly body (its territorial body), which established the fact of the violation and took the appropriate decision to eliminate it.
V individual cases by decision of the federal antimonopoly body (its territorial body), it is allowed to change the means of distribution, the characteristics of the duration, space, place and procedure for the implementation of counter-advertising. If the decision of the antimonopoly authority on counter-advertising is not implemented, then the question is raised of voluntary and then compulsory payment of a fine in court in the amount of up to 5,000 minimum wages.
As you can understand, the antimonopoly body has the right to act differently in such cases, since, in accordance with Art. 31 of the Law of July 18, 1995, in case of refusal to counter-advertisement or failure to comply with the order to carry out counter-advertising within a certain period, administrative liability arises in the form of a warning or a fine in the amount of up to 200 minimum wages.
So, in these cases, administrative responsibility is applied in the form of a warning or a fine. But other sanctions may apply. If counter-advertising is not carried out by the infringer within the established period, the federal antimonopoly body (its territorial body), which has decided to conduct counter-advertising, has the right to completely or partially suspend the advertisement of the infringer until the day when the counter-advertising distributed by him is completed.
The body that has made a decision on the complete or partial suspension of the infringer's advertising is obliged to immediately notify all parties to the contracts with the infringer for the production, placement and distribution of his advertising.
Individuals and legal entities, whose rights and interests are violated as a result of improper advertising, have the right to apply to the court, arbitration court with claims: for damages, including lost profits; on compensation for harm caused to health and property; on compensation for non-pecuniary damage if honor, dignity or business reputation are discredited; about the public refutation of improper advertising in the same way in which it was distributed, if the advertiser does not comply with this requirement voluntarily.
Employees of the federal antimonopoly body (its territorial bodies), in order to perform their functions of monitoring compliance with advertising legislation, have the right to unhindered access to all necessary documents and other materials of advertisers, advertising producers and advertising distributors.
For failure to provide information within the prescribed period at the request of the antimonopoly authority, a fine of up to 200 minimum wages is imposed.
LINKS TO LEGAL ACTS

"ARBITRATION PROCEDURE CODE OF THE RUSSIAN FEDERATION"
dated 05.05.1995 N 70-FZ
(adopted by the State Duma of the Federal Assembly of the Russian Federation on 04/05/1995)
FEDERAL LAW dated July 18, 1995 N 108-FZ
"ABOUT ADVERTISING"
(adopted by the State Duma of the Federal Assembly of the Russian Federation on June 14, 1995)
"CRIMINAL CODE OF THE RUSSIAN FEDERATION" dated 06/13/1996 N 63-FZ
(adopted by the State Duma of the Federal Assembly of the Russian Federation on May 24, 1996)
Russian justice, N 4, 2000

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 the trust of individuals or their 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 advertising another product, the trademark or service mark of which is identical or confusingly similar to trademark or a service mark of a product, in relation to the advertising of which the relevant requirements and restrictions are established, as well as under the guise of advertising of the manufacturer or 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, on the conditions for the use of the goods, on the place of its origin, the availability 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 parties can get acquainted with the information that must be provided to such parties in accordance with federal laws or other regulatory legal acts 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.

An individual or a legal entity who has become 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 require the advertiser to refute such advertising in the same manner in which it was distributed, if the advertiser does not voluntarily comply 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 promotional 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.

government agency The Ministry of Antimonopoly Policy and Entrepreneurship Support and its territorial divisions is responsible for monitoring the implementation of advertising activities. 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.

State control compliance with the legislation of the Russian Federation on advertising is carried out by the Ministry of the Russian Federation for Antimonopoly Policy and Entrepreneurship Support (MAP of Russia) 1 and its territorial bodies, which, in particular:

Prevent and suppress the facts of inappropriate advertising committed by legal entities and individuals;

Send materials on violations of the legislation of the Russian Federation on advertising to the authorities that issued the license to resolve the issue of its suspension or early cancellation;

They send materials to the prosecutor's office and other law enforcement agencies according to their jurisdiction to resolve the issue of initiating a criminal case on the grounds of crimes in the field of advertising.

In accordance with Art. 2 of the Law "On Advertising" improper unfair, unreliable, unethical, deliberately false and other advertising is recognized, in which violations of the requirements for its content, time, place and method of distribution established by the legislation of the Russian Federation are allowed.

unscrupulous advertising is recognized that discredits legal entities and individuals who do not use the advertised goods; contains incorrect comparisons of the advertised product with the product (s) of other legal entities or individuals, as well as statements, images that discredit the honor, dignity or business reputation of a competitor (competitors); misleads consumers about the advertised product through imitation (copying or imitation) common project, text, advertising formulas, images, musical or sound effects used

unreliable advertising is recognized in which there are untrue information about: the nature, composition, method and date of manufacture of the goods, purpose, consumer properties, conditions of use, the presence of a certificate of conformity, certification marks and marks of conformity state standards, quantity, place of origin of the goods; availability of goods on the market, the possibility of its acquisition in the specified volume, period of time and place; cost (price) of the goods at the time of distribution of advertising; additional payment terms; delivery, exchange, return, repair and maintenance of goods; warranty, service life and shelf life; exclusive rights to the results of intellectual activity and equivalent means of individualization of a legal entity, individualization of products, works or services performed; rights to use state symbols (flags, emblems, anthems), as well as symbols of international organizations; official recognition, receiving medals, prizes, diplomas and other awards; providing information on how to purchase a complete series of goods, if the product is part of a series; research and test results, scientific terms, quotes from technical, scientific and other publications; statistical data, which should not be presented in a way that exaggerates their validity; references to any recommendations or to the approval of legal entities or individuals, including outdated ones; the use of terms in superlatives, including by using the words "most", "only", "best", "absolute", "only" and the like, if they cannot be documented; comparisons with other goods (goods), as well as with the rights and status of other legal entities or individuals; references to any guarantees to the consumer of the advertised goods; the actual demand for the product; information about the advertiser.

Under unethical refers to advertising that contains textual, visual, sound information who 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; denigrates objects of art constituting a national or world cultural heritage; defames state symbols (flags, emblems, hymns), the national currency of the Russian Federation or another state, religious symbols; discredits any natural or legal person, any activity, profession, product.

knowingly false is an advertisement with the help of which the advertiser (advertising producer, advertising distributor) deliberately misleads the advertising consumer. This is a particularly serious type of false advertising, as it implies intent. Knowingly false in such advertising may be the information contained in it, both in general and in a certain part. The motives and goals may be different and do not matter for the recognition of advertising deliberately false.

Finally, under hidden refers to advertising that has an unconscious effect on consumer perception. Such information may be present in programs, publications that are not officially advertising; be distributed through the use of special video inserts (double sound recording) and in other ways.

The advertiser is responsible for the content of advertising information, unless it is proved that the violation occurred through no fault of his. The advertising producer is responsible for the design, production and preparation of advertising, the advertising distributor - for violations of the law regarding the time, place and medium of advertising (Article 30 of the Law "On Advertising"). So, false advertising often the fault of the advertiser; hidden advertising using technical means - advertising producer; violation of placement rules outdoor advertising- advertising distributor. In the light of modern statistics, the perpetrators are mostly advertisers.

Article 31 of the Law "On Advertising" states that inappropriate advertising, repeated within a year after the imposition of an administrative penalty for the same actions, as well as knowingly false advertising, made for the purpose of generating profit (income) and causing significant damage to state or public interests or legally protected rights and interests of citizens, entail criminal liability. Meanwhile, such criminal liability is not provided for either by the current Criminal Code of the Russian Federation or by the Criminal Code that was in force before it. Therefore, part two of paragraph 2 of Art. 31 of the Law "On Advertising" is not currently in force, although it has not been repealed.

The Criminal Code of the Russian Federation provides for criminal liability for only one type of inappropriate advertising - deliberately false (Article 182).

The violator of the legislation on advertising is obliged, at the request of the antimonopoly body and within the time limits set by it, to produce counter-advertising, which was mentioned earlier. At the same time, in accordance with Art. 2 of the Law "On Advertising" counter-advertising refutation of improper advertising, distributed in order to eliminate the consequences caused by it, is recognized. In this case, the violator bears the cost of counter-advertising in full.

However, not every violation of the law on advertising entails the obligation to carry out counter-advertising. Thus, the unjustified use of the word “best” in advertising certainly obliges to counter-advertising, while the absence in the advertisement of the licensed activity of the license number and the name of the body that issued it or the absence of the mark “subject to mandatory certification” in the advertisement cannot be refuted by counter-advertising. Sometimes it contains a decision of the antimonopoly body on counter-advertising. The violator is obliged to carry out counter-advertising on his own behalf, and not on behalf of the antimonopoly body.

In the event that a violation of the legislation of the Russian Federation on advertising is established, the violator is obliged to carry out counter-advertising within the time period established by the federal antimonopoly body (its territorial body) that made the decision to carry out counter-advertising. In this case, the violator bears the costs of counter-advertising in full (clause 1, article 29 of the Law "On Advertising").

According to Art. 2 of the commented Law, counter-advertising is a refutation of improper advertising, distributed in order to eliminate the consequences caused by it. Despite the fact that paragraph 1 of Article 29 indicates the obligation of the violator to carry out counter-advertising, in the event that a violation of advertising legislation is established. Not every violation of the law on advertising entails the obligation to carry out counter-advertising, just as the absence of the mark "subject to mandatory certification" in an advertisement cannot be refuted. Sometimes counter-advertising contains the content of the decision of the Antimonopoly Authority on counter-advertising. Counter-advertising must be carried out by the violator on his own behalf, and not on behalf of the antimonopoly authority. Otherwise, it is not clear why coordinate its content with the antimonopoly authority.

When deciding on the full or partial suspension of advertising, the Commission for the Consideration of Cases on Signs of Violation of the Law on Advertising of the SAC or its territorial administration the degree of guilt of the infringer and the consequences that have occurred, as well as whether the implementation of advertising is the main activity of the infringer or serving his main activity, should be taken into account. As stated in paragraph 2 of Art. 29, the complete or partial suspension of advertising is terminated when the violator performs counter-advertising.

In accordance with Article 30 of the Law "On Advertising", the advertiser is liable for violation of the legislation of the Russian Federation on advertising in terms of the content of information provided for the creation of advertising, if it is proved that the violation occurred through the fault of the advertising producer or advertising distributor.

As follows from Article 31 of the Law "On Advertising", only legal entities or individuals can be held liable for violation of advertising legislation - individual entrepreneurs who are advertisers, advertising producers, advertising distributors, and only for the actions specified in Article 30 of the Law "On Advertising". Responsibility of officials for violation of the legislation on advertising is not provided. It is not provided not only by the "Law on Advertising", but also by the Code of Administrative Offenses of the RSFSR. This Code also does not provide for the liability of legal entities for any administrative offenses and the liability of individuals for violations of advertising legislation. "Business entities are not subjects of legal relations regulated by this Code. The list of subjects of administrative responsibility and the concept administrative offense contained in Chapter 2 of the Code of Administrative Offenses of the RSFSR. This list is exhaustive, and the concept of an administrative offense, as the guilty behavior of an individual, is not subject to broad interpretation, "is indicated in the Resolution of the Presidium of the Moscow City Court dated August 23, 1995 in case No. 44-423. In this regard, administrative responsibility for violation of the legislation on advertising occurs only under the Law "On Advertising".

It should be noted that administrative liability for violation of the rules for the distribution of advertising is also provided for in Article 60 of the Law of the Russian Federation "On the means mass media". However, only the Law "On Advertising" indicates specific measures of such liability. When implementing paragraph 1 of Article 31 of the Law "On Advertising", one should be guided by the norms of chapters 25 and 59 and articles 15, 151, 152 of the Civil Code of the Russian Federation, as well as article 12 of the Federal Law of November 26, 1996 "On the entry into force of part two Civil Code RF". When applying paragraph 2 of Article 31 of the Law "On Advertising", it should be borne in mind that administrative liability in the form of a fine of up to 200 minimum wages established by federal law is applied by the antimonopoly authority for the violations themselves specified in this paragraph, and not for non-compliance with their orders to stop violations of advertising legislation and decisions to implement counter-advertising.As for the criminal liability provided for by the second part of paragraph 2 of Article 31 of the Law "On Advertising", for inappropriate advertising, repeated within a year after the imposition of an administrative penalty for those actions, then such criminal liability is not provided for either by the current Criminal Code of the Russian Federation or by the Criminal Code that was in force before it, and not only for legal entities to which administrative liability measures are applied, but also in relation to individual entrepreneurs.

Therefore, the second part of paragraph 2 of Article 31 of the Law on Advertising is not currently in force, although it has not been canceled. In force since January 1, 1997. The Criminal Code of the Russian Federation provides for criminal liability for only one type of inappropriate advertising - deliberately false (Article 182 of the Criminal Code). Individual entrepreneurs may be held criminally liable under this article for using in advertising deliberately false information about goods, works or services, as well as their manufacturers (performers, sellers), committed out of selfish interest and causing significant damage. The concept of "knowingly false advertising" in the Criminal Code of the Russian Federation is much broader than in Article 9 of the Law "On Advertising". As a punishment for this crime, a fine in the amount of 200 to 500 minimum wages or in the amount of wages or other income of the convicted person for a period of two to five months, or compulsory labor for a term of one hundred and eighty to two hundred and forty hours, or arrest for a term of three to six months, or imprisonment for a term of up to two years.

The Law "On Advertising" passes over in silence the question of the procedure for considering cases of violation of the law on advertising. However, such a procedure exists, it is approved by the Order State Committee of the Russian Federation on Antimonopoly Policy and Support of New Economic Structures dated November 13, 1995 No. 147. According to this order, for the consideration of each specific case, a Commission is formed to consider cases on signs of violation of advertising legislation. The course of the meeting is recorded by the Commission in the minutes, which is signed by the Chairman of the Commission. In the absence of the parties (their representatives), the case may be considered only in cases where there is data on their timely notification, on the place and time of the consideration of the case, and if they have not received a reasoned request to postpone the consideration of the case. The non-appearance of interested persons is not an obstacle to the consideration of the case. The case is considered at the location of the advertiser, advertising producer, advertising distributor who committed the violation.

The decision is made by the commission in the absence of the parties and all persons involved in the case.

The decision of the Commission shall be issued immediately after the completion of the proceedings. In particularly complex cases, the drafting of the decision can be postponed for a period of not more than five days, but the operative part of the decision is announced by the Commission at the same meeting in which the case ended. A copy of the reasoned decision shall be sent to the parties, interested parties within three days from the date of its preparation.

In practice, the following question arises: should the two-month limitation period provided for in Article 38 of the Code of Administrative Offenses of the RSFSR be applied in cases of violations of advertising legislation, by analogy, given that such a period is not established in the Law "On Advertising"? It seems that this should not be done, since, unlike civil procedural legislation (Article 10 of the Code of Civil Procedure of the Russian Federation), administrative legislation does not provide for the possibility of its application by analogy.

The development of market relations is unthinkable without advertising. Advertising in our country has become necessary condition functioning of enterprises various forms property. It affects the interests of millions of people and is an integral part of their lives. From the entire set of market instruments Russian business quickly mastered and began to widely use advertising. This is due to the fact that the system marketing communications is the most accessible method of sales promotion.

The most important component of the advertising activity control system is state regulation. It is achieved both by the creation of a broad legislative framework and the formation of a system executive bodies different levels of control.

The antimonopoly bodies of the Russian Federation are actively working in the field of regulation of advertising activities and have already achieved a number of positive results, I dwelled on this issue in relative detail in my work. In Russia, work is also underway in the field of self-regulation of advertising, and the participants in advertising activities themselves are directly involved in this. Yes, the system of self-regulation of advertising in Russia has not yet fully developed, but one thing is clear: the advertising business in Russia is strong enough to defend its corporate interests before legislators and actually prove the right not to self-regulate in the business sphere, in addition, there are a number of positive examples of successful functioning of the self-regulation system in foreign countries, particularly in the USA. And since the advertising business in Russia is still very young, we just need to learn from someone else's experience. It is desirable, of course, to adopt all the best, but, unfortunately, it does not always work out that way. But I think that the advertising business in Russia has a great future, there are all the prerequisites for this.

Issue of securities.

In market relations, securities perform a number of important functions. At the level of macroeconomics, the securities market creates conditions for the overflow of capital, structural transformations of the economy. The microeconomic aspect of securities is that they are a means of generating income, perform the function of satisfying the property interests of citizens and legal entities. Along with lending, securities are one of the main ways to attract investment.

In accordance with established world practice, the securities market is regulated by the state. The process of forming a system of legal and organizational mechanisms for regulating the securities market in Russia began relatively recently.

In the legal literature, securities, their legal status are the subject of discussion and publications of many modern scientists.

Thanks to the works of Aldokhin S.G., Zhdanov D.V., Lomakin D.V., Redkin I.V., Sinenko A.Yu., Shevchenko G.N. and other domestic civil lawyers, a qualitatively new legal discipline was formed - the legal regulation of the securities market. Their works became a worthy continuation of the theoretical research of jurists of the early 20th century - G.V. Shershenevich G.F. and O.S. Ioffe.

The purpose of the issue of securities is to attract the necessary volume Money in the shortest possible time. The issue can be primary or additional. The primary issue of securities is carried out upon the establishment of a joint-stock company. An additional issue is carried out if the company needs to attract additional financial resources. An additional issue of shares can be carried out after approval general meeting the results of the previous issue, making changes to the authorized capital due to the actual sale of previously issued shares and the redemption of unsold shares. In addition, in the event of an additional issue of securities, shareholders owning voting shares have a pre-emptive right to purchase them.

In accordance with federal law RF "On the Securities Market" issuance security is any security, including non-documentary, which is simultaneously characterized by the following features:

establishes a set of property and non-property rights subject to certification, assignment and unconditional exercise in compliance with the forms and procedures established by law;

placed by issues;

has an equal volume and terms of exercising rights within one issue, regardless of the time of purchase of the security.

In accordance with the said law in Russia, equity securities are shares and bonds.

A share is an issuance security that secures the rights of its owner (shareholder) to receive part of the profit of a joint-stock company in the form of dividends, to participate in the management joint stock company and part of the property remaining after its liquidation. An entrepreneurial firm can issue common and preferred shares.

A bond is an issuance security that secures the right of its holder to receive from the issuer of the bond, within the period stipulated by it, its nominal value and the percentage of this value fixed in it or other property equivalent. The issuing firm can issue bonds with a one-time maturity or bonds with maturity by series at certain dates.

Equity securities may be issued in one of the following forms:

registered securities of a documentary form of issue (registered documentary securities);

registered securities of non-documentary form of issue (registered bearer securities).

The procedure for issuing securities by an entrepreneurial firm includes several stages, which are schematically shown in the figure:

When an entrepreneurial firm makes a decision to issue securities, the following main activities are preliminarily carried out:

the stock market situation is analyzed;

an assessment of the investment attractiveness of the issued securities is carried out;

the purpose of the issue is determined;

the volume of the issue is determined;

the form, denomination and quantity of issued securities are determined.

The firm should make a decision on the proposed issue only on the basis of a comprehensive preliminary analysis of the stock market situation and an assessment of the investment attractiveness of the issued securities.

An analysis of the stock market situation, as a rule, includes: an analysis of the supply and demand for securities, an analysis of the dynamics of the price level of their quotes, an analysis of the volume of sales of securities of new issues, and an analysis of a number of other indicators. As a result of such an analysis, the firm must determine the level of sensitivity of the stock market's response to the appearance of emitted securities.

In addition, the entrepreneurial firm must evaluate investment attractiveness issued securities. Such an assessment is carried out from the standpoint of taking into account the prospects for the development of the company's industry in comparison with other industries, the competitiveness of products, and also taking into account the results of the analysis financial condition firms. As a result, the possible degree of investment preference for the shares of this company in comparison with the circulating shares of other companies is determined. The issue of securities is a rather complicated and expensive process, so the objectives of the issue should be significant for strategic development entrepreneurial firm.

The main purposes of the issue of securities can be:

making real investments related to expansion or diversification production activities;

change in the structure of capital used, i.e. share increase equity, for example, in order to increase the level financial stability firms;

other goals that require the firm to quickly accumulate a significant amount of capital.

It is also quite important when making a decision on the issue of securities to correctly determine the volume of the proposed issue. The issue volume is determined based on the previously calculated need for additional financing from external sources.

In conclusion, the firm must determine the form, denomination and number of issued securities.

The issue of securities is subject to mandatory state registration in the Ministry of Finance of the Russian Federation or in the Ministry of Finance of the republics within the Russian Federation, territorial, regional, city financial departments at the location of the enterprise (issuer). In order to register an issue of emissive securities, an issuer must submit the following documents to the registering body: an application for registration; decision on the issue of emissive securities; prospectus, if the registration is accompanied by registration of the prospectus; copies of constituent documents; documents confirming the decision of the authorized executive body to issue issuance securities, if such permission is necessary.

The decision to issue issuance securities, which is mandatory prepared by the company, must contain:

full name of the issuer and its legal address;

the date of the decision to issue securities;

the name of the authorized body of the issuer that made the decision on the issue;

type of issue papers;

state registration mark and state registration number of securities;

the owner's rights secured by one security;

procedure for placement of issuance securities; the obligation of the issuer to ensure the rights of the owner, subject to the observance by the owner established by law RF procedure for the exercise of these rights;

indication of the number of emissive securities in this issue;

indication total issued emissive securities with the given state registration number and their par value;

indication of the form of securities;

seal of the issuer and signature of the head of the issuer.

The issue of securities can be carried out in the form of an open (public) placement of securities among a potentially unlimited number of investors and in the form of a closed (private) placement of securities among a previously known limited number of investors.

For an open offering, an issue prospectus must be prepared and published in the press, which must contain:

issuer data - the legal address of the issuer, a list of all founders and distribution authorized capital between them, the structure of controls with data on personnel directorates, information on persons owning at least 5% of the authorized capital of the issuer, a list of all legal entities in which the issuer owns more than 5% of the authorized capital, a list of all representative offices and branches of the issuer and other information;

data on the financial position of the issuer - balance sheets and financial statements for the last three years, balance sheet and report at the end of the last quarter before the adoption of the decision on the issue, certified by auditors; detailed breakdown of accounts payable; report on the formation and use of the reserve fund over the past three years, data on authorized capital issuer; data on previous issues of securities;

information about the forthcoming issue of securities: types of securities and their number; the par value of one share, the order of issue, the date of the decision on the issue, the start and end dates of the placement of the issue, restrictions on potential investors, prices and procedure for payment of equity securities acquired by owners, the procedure for accruing dividends or interest on securities, directions for using funds mobilized by issuing securities, with an assessment of the expected efficiency of investments and other information.

In the event that the issue of securities in documentary form is being prepared, the issuing business firm must prepare a certificate of the issuing security - a document registered with the state registration authority for securities and containing data sufficient to establish the scope of rights secured by the security, such as : full name of the issuer and its legal address, type of securities, state registration number of equity securities, procedure for placement, obligation of the issuer to ensure the rights of the owner subject to the owner’s compliance with the procedure for exercising these rights established by the legislation of the Russian Federation, an indication of the number of equity securities in this issue, an indication of the general the number of issued emissive securities with the given state registration number and their par value, etc.

Registration of the issue prospectus is carried out when issuing securities are placed among an unlimited number of owners or a previously known number of owners, the number of which exceeds 500, as well as in the case when the total issue volume exceeds 50 thousand minimum wages. In the case of a public issue, the issuer is obliged to provide access to the information contained in the emission prospectus and publish a notice on the procedure for disclosing information in a printed periodical with a circulation of at least 50,000 copies.

The grounds for refusal to register an issue of emissive securities are:

violation by the issuing firm of the requirements of the legislation of the Russian Federation on securities, including the presence in the submitted documents of information that allows one to conclude that the conditions for the issue and circulation of equity securities contradict the legislation of the Russian Federation and the conditions for issuing securities do not comply with the legislation of the Russian Federation;

non-compliance of the submitted documents and the composition of the information contained in them with the requirements of the legislation of the Russian Federation;

inclusion in the prospectus or in the decision to issue securities false information or information that is not true.

In accordance with the legislation, the issuing company has the right to begin the placement of equity securities issued by it only after the registration of their issue. The number of equity securities to be placed must not exceed the number specified in founding documents and prospectuses on the issue of securities. A firm may place a smaller number of equity securities than specified in the prospectus, while the actual number of placed securities is indicated in the report on the results of the issue.

The placement of securities of a new issue should begin no earlier than two weeks after all potential owners have access to information on the issue of these securities. At the same time, information on the placement price of securities may be disclosed on the day of commencement of the placement of securities. In addition, during the public placement or circulation of an issue of issuance securities, it is prohibited to pledge an advantage in the acquisition of securities by one potential owner over others.

The placement of securities to be issued must be completed after one year from the date of commencement of the issue, unless other terms are established by the legislation of the Russian Federation.

The results of the placement of securities are published in the press. Unplaced securities are at the disposal of the board of directors of the company and can be used by it as a reserve for subsequent issue.

After completion of the placement of issue-grade securities, no later than 30 days later, the issuing company is obliged to submit to the registering authority a report on the results of the issue of issue-grade securities, which is considered within two weeks and, in the absence of violations related to the issue of securities, is registered. This report must contain the following information:

start and end dates of placement of securities;

the actual price of placement of securities;

the number of placed securities;

the total amount of proceeds for the placed securities;

for shares, a list of owners who own a block of shares, the size of which is determined by the Federal Commission for the Securities Market, is additionally indicated.

It should be noted that an open issue of securities is an expensive operation, it requires certain costs and a long time (6-9 months), therefore it is usually carried out with the involvement of stock market professionals.

Task:

Chief Physician The hospital concluded an agreement with the timber industry for the purchase of wood for repairs. The contract was fulfilled, but the hospital did not have the funds to fully pay for the products. Lespromkhoz filed a lawsuit against the hospital and the district administration, to which it was subordinate.

How to resolve the dispute?

The solution of the problem:

1. This legal situation refers to the "Civil Law" branch, the "Business Law" sub-branch.

2. In this legal situation, there are legal relations in which the legal institution “Sale and Purchase Agreement” appears.

3. Subject: head doctor of the hospital, timber industry.

Object: filing a claim.

a) equality

b) procedural

c) material

4. This legal situation is resolved on the basis of the norms of the Civil Code of the Russian Federation, Part 2 of Section 4 “Certain Types of Obligations”, Chapter 30 “Purchase and Sale”, Ex. 1 “ general provisions”, Article 454 “sales contract”, paragraph 1 of article 484 “buyer's obligation to accept the goods”, article 486 “payment for goods”.

5. In accordance with Article 454 of the Civil Code of the Russian Federation, this agreement is a contract of sale. In accordance with Article 484, clause 1 “The buyer is obliged to accept the goods transferred to him”

In accordance with Article 486, “If the buyer does not pay for the goods transferred in accordance with the contract of sale in a timely manner, the seller has the right to demand payment for the goods and payment of interest.”

6. The hospital is obliged to pay for the purchase of wood.

Bibliography:

2. Federal Law of the Russian Federation "On competition and restriction of monopolistic activity in the commodity markets".

3. Federal Law of the Russian Federation "On the Mass Media" of December 27, 1991 (as amended on January 13, June 6, July 19, December 27, 1995, February 18, 1998)

4. Federal Law of the Russian Federation "On consumer protection"

7. Federal Law of the Russian Federation "On state regulation of the production and circulation of ethyl alcohol and alcoholic products» November 22, 1995

8. Order of the State Committee of the Russian Federation for Antimonopoly Policy and Support for New Economic Structures dated November 13, 1995 “On Approval of the Procedure for Considering Cases on Signs of Violation of the RF Legislation on Advertising”.

9. Decree of the Government of the Russian Federation of December 27, 1996 "On approval of the Rules ensuring the presence on food products imported into Russian Federation, information in Russian"

10. Decree of the Government of the Russian Federation of April 23, 1997, 1997 "On approval of the list of goods, information about which should contain contraindications for use in certain types of diseases."

11. Yu.A. Voldman "Commentary on the Law of the Russian Federation" On Advertising ", M, Legal Culture, 2008."

12. Zavidova S.S., Kryuchkova P.P., Pavlovets E.V., Sork D.M., Yanin D.D. "Russian legislation on advertising" - a practical commentary, M, New lawyer, 2007

16. K.V. Vsevolozhsky "Fundamentals commercial advertising» M, 2008

17. A.Yu. Eroshok " State regulation advertising market "M, 2009.

19. Guseva I.A. Stocks and bods market. Practical tasks on the course: studies. allowance. - M.: Exam, 2005.

20. Galanov V.A. Securities market: textbook. - M.: INFRA-M, 2009.

Send your good work in the knowledge base is simple. Use the form below

Students, graduate students, young scientists who use the knowledge base in their studies and work will be very grateful to you.

Facts have been punished for false advertising. Questions for self-study

Send your good work in the knowledge base is simple. Use the form below

Similar Documents

Popular