Who is responsible for false advertising. Issue of securities

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 Article 182 “Knowingly False Advertising” from the Criminal Code of the Russian Federation. IN 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 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 is especially dangerous 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 false advertising provided for in the legislation of Sweden, Switzerland, Denmark.

The exclusion of Article 182 from the Criminal Code testifies to the ignorance by the legislator of 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 punishable 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 inappropriate advertising, and primarily its specific form, provided for in 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 a careful, detailed and well-developed legal framework monitoring of advertising products.

Paragraph 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 repeated (more than three times) committing administrative offense to introduce criminal liability in the form of a fine in the field of advertising. If it is impossible to recover 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 of 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 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 responsibility 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.

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 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;

ABOUT 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 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.

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 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 authority and within the time limits established by it, to produce counter-advertising.

Counter-advertising is a refutation of improper 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.

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 requirements current legislation in relation to the dissemination of advertising information about the offered banking products.

The grounds for holding the credit institution 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 that affects its cost, such an 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 reading 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 activities of the bank 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 the consumer of advertising 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 advertisements 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 for the protection of their violated rights, but also 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

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 body.

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 violator and the consequences that have occurred, as well as whether the implementation of advertising is the main activity of the violator 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 the legislation on advertising. "Business entities are not subjects of legal relations regulated by this Code. The list of subjects of administrative liability and the concept of an administrative offense are contained in Chapter 2 of the Code of Administrative Offenses of the RSFSR. This the 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 of August 23, 1995 in case No. 44-423. In this regard, administrative liability for violation of the legislation on advertising comes 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 Enactment of Part Two of the Civil Code of the Russian Federation" 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 dimensions wages established by federal law is applied by the antimonopoly authority for the violations themselves specified in this paragraph, and not for failure to comply with their instructions to stop violations of advertising legislation and decisions to carry out counter-advertising. As for the criminal liability provided for by part two of paragraph 2 of Article 31 of the Law "On Advertising" for improper advertising repeated within a year after the imposition of an administrative penalty for the same actions, such criminal liability is not provided for by either the current Criminal Code of the Russian Federation or the Criminal Code. code in force before it, and not only for legal entities to which measures of administrative responsibility 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 persons 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. Of 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 as the creation of a wide legislative framework, and the formation of a system executive bodies different levels of control.

The antimonopoly authorities 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 sector, in addition, there are a number of positive examples of successful the functioning of the self-regulation system in foreign countries, in particular in the United States. 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 raise the required amount of funds 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 the Federal Law of the Russian Federation "On the Securities Market", an 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 demand and supply of 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, an entrepreneurial firm must evaluate the investment attractiveness of the 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 equity 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, provided that the owner observes the procedure for exercising these rights established by the legislation of the Russian Federation;

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 effectiveness 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 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 must 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, requires certain costs and a long time (6-9 months), therefore, it is usually carried out with the involvement of stock market professionals.

A 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 availability of information in Russian on food products imported into the Russian Federation"

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.

Legal liability is one of the components of the mechanism of legal regulation public relations. Not a single rule defined by the legislator as a norm of behavior can be considered viable if liability for deviation from it is not established.

Under the legal liability in the field of advertising, one should understand the duty of the subject that has committed a violation of the legislation on advertising, established in a special procedural order, to suffer deprivation of a personal, property or organizational nature.

General provisions of responsibility for violations of the legislation on advertising are established by Art. 38 of the Law on Advertising.

The article identifies the following types of legal liability for violations of advertising legislation: civil, administrative and other liability measures.

Civil liability arises from the violation of property and personal non-property rights of citizens and organizations. The procedure and conditions for bringing subjects of advertising activities to civil liability are determined Civil Code Russian Federation.

Responsibility under civil law occurs for an action or inaction that violates the requirements of a law or an agreement, and is of a compensatory nature. Measures envisaged by the law or the contract, which have negative consequences of a property nature for him, are applied to the violator of civil rights, in the interests of another person - compensation for harm or losses, payment of a penalty (fine, penalty), loss of a deposit, etc.

Responsibility for violation of advertising legislation arises as a result of the implementation of the jurisdictional form of protection of the right. In this regard, the Advertising Law establishes the right of citizens and legal entities to apply to the court for protection in case of violation of their rights by improper advertising.

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 harm caused to the health of individuals and (or) property individuals or legal entities, on compensation for non-pecuniary damage, on the public refutation of unreliable advertising (counter-advertising) (Part 2, Article 38 of the Law on Advertising).

Judicial practice has developed the following positions regarding the public refutation of unreliable advertising (counter-advertising) as a specific measure of a restorative nature. First, the applicant must have evidence of the wrongfulness of false advertising. The illegality of false advertising may be established by a court or an antimonopoly authority. Secondly, the consolidation of a special right to publicly refute false advertising (counter-advertising) does not relieve persons whose rights and interests have been violated from the burden of proving the occurrence of harmful consequences.

The law also establishes the right of the antimonopoly body to file a lawsuit against the advertiser for a public refutation of false advertising. The antimonopoly body mediates its right to demand refutation of unreliable advertising on behalf of the state, if necessary, to protect an indefinite circle of consumers from the harmful effects of advertising.

The law identifies the refutation of unreliable advertising with counter-advertising, without revealing the concept of counter-advertising as such.

The legal basis for counter-advertising is a court decision on the public refutation of false advertising. The violator is obliged to carry out counter-advertising within the period established by the court. The court decides on the form, place and timing of posting such a refutation. In this case, the violator bears the costs of production and distribution of counter-advertising in full.

Administrative responsibility.

Ch. 4 Art. 38 of the Law on Advertising establishes that violation by advertisers, advertising producers, advertising distributors of the legislation of the Russian Federation on advertising entails liability in accordance with the legislation of the Russian Federation on administrative offenses.

The general composition of an administrative offense in the field of advertising is the composition provided for by Art. 14.3 of the Code of Administrative Offenses of the Russian Federation "Violation of the legislation on advertising."

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

The objective side can be expressed either by action or inaction.

The subject of the offense can be both individuals (including officials) and legal entities: advertisers, advertising producers, advertising distributors.

The subjective side is characterized by both intentional and careless forms of guilt.

In addition to this general article, other elements of administrative offenses are also provided: failure to submit petitions, notifications (applications), information (information) to the federal antimonopoly body, its territorial bodies, provided for by the legislation on advertising, as well as the provision of such information (information) in an incomplete volume or in distorted or representation false information(information) (Part 2.4. Article 19.8 of the Code of Administrative Offenses of the Russian Federation); failure to comply with the legal order (decree, presentation, decision) of the body ( official) carrying out state supervision(part 2.4 of article 19.5 of the Code of Administrative Offenses of the Russian Federation); installation violations advertising design(Article 14.37 of the Code of Administrative Offenses of the Russian Federation); advertising on road signs and vehicles(Article 14.38 of the Code of Administrative Offenses of the Russian Federation); violation of the terms of storage of promotional materials (Article 19.31 of the Code of Administrative Offenses of the Russian Federation).

A characteristic feature of administrative responsibility is that for the commission of administrative offenses violators of advertising legislation are punished in the form of an administrative fine. Despite the fact that the penalties are quite high, advertising entities deliberately violate advertising legislation in order to maintain the advertising attractiveness of layouts, which can bring in the future profit, much more than established by law amounts of fines.

The merit of advertising legislation is a clear division of legal responsibility between participants in advertising legal relations - advertisers, advertising producers and advertising distributors, depending on the role of each entity in the production, placement and distribution of advertising.

The advertiser is the source of advertising information. Based on this circumstance, the legislation establishes a presumption of his guilt in relation to other subjects of advertising activity (an advertising producer and an advertising distributor) for violations of the legislation of the Russian Federation on advertising that relate to the content of information provided for creating advertising.

The advertising producer carries out the reduction of advertising in a form ready for distribution, therefore, is responsible for violation of the requirements of the legislation of the Russian Federation on advertising in the event that it is proved that the violation occurred through his fault.

The advertising distributor performs actions to distribute advertising and, accordingly, is responsible for violations of the requirements established for the procedure for advertising distribution (time, place, method and means of advertising placement).

In some cases, the law turns the requirement to follow the provisions of the law to the content of advertising, as well as to the obligation of advertising distributors. However, there is whole line violations, the commission of which, by virtue of parts 6 and 7 of Article 38 of the Law on Advertising, entails both the responsibility of both the advertiser and the advertiser.

Equally, the advertiser and the advertiser are responsible for advertising goods that are prohibited for production and sale or that have not passed the procedure for mandatory certification or other mandatory conformity assessment, as well as that have not received appropriate permits, licenses and registrations. The advertiser, along with the advertiser, will be punished for the lack of information in the content of the advertisement, the indication of which is mandatory by law, such as pre-advertisement notes, various warnings and messages in the advertisement of certain types of goods and services. similarity between advertising and road signs or any other threat to the safety of traffic, violation of the terms of storage of advertising materials entails the responsibility of both the advertiser and the advertising distributor.

In this regard, it can be stated that the law toughens the responsibility of the advertising distributor, equating it with the responsibility of the advertiser for violating the formal requirements for advertising.

Regarding the responsibility of the advertising distributor, it should be noted that in practice there are cases of bringing the advertising distributor to liability for violations of the legislation on advertising, the composition of which is not provided for by paragraph 7 of Article 38 of the Law on Advertising.

From the decision of February 11, 2010 of the Arbitration Court of the Stavropol Territory in case No. A63-4530 / 2009-C6-22, it follows that the regional radio broadcast an advertisement for the Biomatic dietary supplement, which could be ordered by phone. This advertisement created the impression among consumers that Biomatic dietary supplement is a drug and has medicinal properties. In addition, the purpose of the drug was unreliably indicated in the advertisement.

Specialists of the antimonopoly authority have repeatedly advised the TV and Radio Company on the distribution of advertising for dietary supplements "Biomatic", convincing that this advertisement does not comply with the requirements of the Federal Law "On Advertising", pointing to incoming complaints to the antimonopoly authority and hundreds of complaints from all over Russia posted on the official the website of the reference and information service "Pharmcontrol", which informs the population about rejected and falsified medicines according to the databases of Rospotrebnadzor.

However, the TV and Radio Company did not take any measures to eliminate violations of the Federal Law “On Advertising”. The antimonopoly body sent an official appeal to the TV and Radio Company about the inadmissibility of distribution of advertising of remote methods of sale of dietary supplements, as well as unreliable advertising of dietary supplements. But the appeal government agency was ignored by the management of the TV and radio company.

The court considered that this fact indicates a targeted advertising campaign aimed at generating and maintaining interest in the Biomatic dietary supplement and promoting the sale of this product, and in this particular situation, the advertising distributor was able to stop the dissemination of inappropriate advertising. In this regard, the court concluded that the Teleradiocompany's references to the absence of an administrative offense in its actions were untenable.

The above court decision clearly shows that the offenses that may be charged to an advertising distributor are not limited to their list in paragraph 7 of Article 38 of the Federal Law "On Advertising".

Other measures of responsibility.

In the legislation of the Russian Federation, violations of the legislation on advertising are subject to administrative and civil liability.

Previously, Article 182 of the Criminal Code of the Russian Federation established criminal liability for 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 causing significant damage. However, Federal Law No. 162-FZ of 08.12.2003 declared this article invalid and excluded criminal liability for deliberately false advertising.

The inclusion of this provision in the Federal Law "On Advertising" implies the possibility of introducing criminal liability for intentional violation of the legislation of the Russian Federation. Thus, the legislator emphasized the importance of social responsibility, which the subjects of advertising activities must consciously bear for the consequences of their actions.

Summing up this section of the work, it should be noted:

• - The Advertising Law provides for civil, administrative and other liability measures. The legislator left the list of types of liability open for the possibility of introducing criminal liability in the future;
• - A specific restorative measure in the field of advertising is a public refutation of unreliable advertising (counter-advertising);
• - The merit of this advertising legislation is a clear division of legal responsibility between advertisers, advertising producers and advertising distributors;
• - An analysis of legal liability has shown that the law toughens the liability of an advertising distributor, equating it with the liability of an advertiser for violating the formal requirements for advertising. Moreover, the offenses that may be charged to an advertising distributor are not exhausted by their list in paragraph 7 of Article 38 of the Federal Law "On Advertising".