On February 26, 2015, according to the results of an audit conducted by the Federal Antimonopoly Service in relation to MTS-Bank OJSC, violations of the requirements federal law“On Advertising” N 38-FZ of March 13, 2006, 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 advertising consumers.

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", and the text with less attractive deposit conditions (deposit term and amount, interest rate depending on the period of stay Money in the deposit, the possibility of replenishing the deposit, the conditions for paying interest in case of early termination of the contract, etc.) occupied only 1/20 of the total advertising area and was made in small, unreadable white type on a blue background.

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

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

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

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

Analyzing the above violations, different in nature, in the sphere 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 improper 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 law Russian Federation about 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

2) defames honor, dignity or business reputation persons, including a competitor;

3) is an advertisement of a product, the advertising of which is prohibited in this way, at a given time or in a given place, if it is carried out under the guise of an advertisement of another product, the trademark or service mark of which is identical or confusingly similar to the trademark or service mark of the product, in relation to the 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;

4) is an act of unfair competition in accordance with the antitrust laws.

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

3) 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 of time;

4) on the cost or price of the goods, the procedure for its payment, the amount of discounts, tariffs and other conditions for the acquisition of goods;

5) on the terms of delivery, exchange, repair and maintenance of goods;

6) about warranty obligations the manufacturer or seller of the goods;

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

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

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

11) on the results of research and testing;

12) on granting additional rights or benefits to the purchaser of the advertised product;

15) on the rules and deadlines for holding an incentive lottery, contest, game or other similar event, including the deadline for accepting applications for participation in it, the number of prizes or winnings based on its results, the timing, place and procedure for receiving them, as well as about the source of information about such an event;

16) on the rules and terms of risk-based games, bets, including the number of prizes or winnings based on the results of risk-based games, betting, terms, place and procedure for receiving prizes or winnings based on the results of risk-based games, bets , about their organizer, as well as about the source of information about risk-based games, bets;

17) on the source of information subject to disclosure in accordance with federal laws;

18) about the place where, prior to concluding a contract for the provision of services, interested persons can familiarize themselves with the information that must be provided to such persons in accordance with federal laws or other regulatory legal acts Russian Federation;

19) about the person obligated by the security;

1) induce to commit unlawful acts;

2) call for violence and cruelty;

3) be similar to road signs or otherwise threaten the safety of road, rail, water, air transport;

4) form a negative attitude towards persons who do not use the advertised goods, or condemn such persons.

1) the use of foreign words and expressions that can lead to a distortion of the meaning of information;

In accordance with Federal Law No. 218-FZ of July 18, 2011, from July 23, 2012, in paragraph 3 of Part 5 of Article 5, the words "as well as beer and drinks made on its basis" will be excluded.

3) demonstration of smoking and consumption processes alcoholic products, as well as beer and drinks made on its basis;

4) the use of images of medical and pharmaceutical workers, with the exception of such use in advertising of medical services, personal hygiene products, in advertising, the consumers of which are exclusively medical and pharmaceutical workers, in advertising distributed at the venues of medical or pharmaceutical exhibitions, seminars, conferences and other similar events, in advertising placed in printed publications intended for medical and pharmaceutical workers;

6) an indication of the medicinal properties, that is, a positive effect on the course of the disease, of the object of advertising, with the exception of such an indication in the advertisement of medicines, medical services, including methods of treatment, medical devices and medical equipment.

6. In advertising, it is not allowed to use swear words, obscene and offensive images, comparisons and expressions, including in relation to gender, race, nationality, profession, social category, age, language of a person and a citizen, official state symbols (flags, coats of arms, hymns), religious symbols, cultural heritage sites (monuments of history and culture) of the peoples of the Russian Federation, as well as cultural heritage sites included in the World Heritage List.

7. Advertising is not allowed, in which there is no part of the essential information about the advertised product, about the conditions for its acquisition or use, if the meaning of the information is distorted and consumers of advertising are misled.

(Part seven.1 was introduced by Federal Law No. 48-FZ of April 12, 2007)

8. Advertising of goods, in respect of which the rules for use, storage or transportation or regulations for use have been approved in accordance with the established procedure, must not contain information that does not comply with such rules or regulations.

9. It is not allowed to use in radio, television, video, audio and film products or in other products and distribute hidden advertising, that is, advertising that has an effect on their consciousness that is not realized by consumers of advertising, including such an effect through the use special video inserts (double sound recording) and in other ways.

11. When producing, placing and distributing advertisements, the requirements of the legislation of the Russian Federation, including the requirements of civil legislation, legislation on the state language of the Russian Federation, must be observed.

(part eleven as amended by Federal Law No. 231-FZ of December 18, 2006)

Article 38

1. Violation by individuals or legal entities of the legislation of the Russian Federation on advertising entails liability in accordance with civil law.

2. Persons whose rights and interests have been violated as a result of the dissemination of inappropriate advertising shall 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 health individuals and (or) property of individuals or legal entities, on compensation for moral damage, on public refutation of unreliable advertising (counter-advertising).

3. If the antimonopoly body establishes the fact of dissemination of unreliable advertising and issues an appropriate order, the antimonopoly body shall have the right to apply in accordance with the established procedure to a court or arbitration court with a claim against the advertiser for a public refutation of false advertising (counter-advertising) at the expense of the advertiser. In this case, the court or the arbitration court determines the form, place and terms for posting such a refutation.

4. 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.

5. Federal laws may establish other liability measures for intentional violation of the legislation of the Russian Federation on advertising.

In accordance with Federal Law No. 218-FZ of July 18, 2011, effective July 23, 2012, in Part 6 the words "Parts 1 and 3 of Article 21" will be replaced by the words "Parts 1, 3, 5 of Article 21", and the words "Parts 1 and 3 article 22," will be deleted.

6. The advertiser is liable for violation of the requirements established by parts 2 - 8 of article 5, articles 6 - 9, parts 4 - 6 of article 10, article 12, parts 1 and 3 of article 21, parts 1 and 3 of article 22, parts 1 and 3 Article 23, Articles 24 and 25, Parts 1 and 6 of Article 26, Parts 1 and 5 of Article 27, Articles 28-30 of this Federal Law.

(as amended by Federal Law No. 115-FZ of June 3, 2011)

(see text in previous edition)

In accordance with Federal Law No. 218-FZ of July 18, 2011, effective July 23, 2012, in Part 7 the words "Parts 2-4 of Article 22," will be deleted.

7. The advertiser is liable for violation of the requirements established by paragraph 3 of part 4, parts 9 and 10 of article 5, articles 7 - 9, 12, 14 - 18, parts 2 - 6 of article 20, parts 2 - 4 of article 21, parts 2 - 4 Article 22, parts 2-4 of Article 23, parts 7, 8 and 11 of Article 24, parts 1-5 of Article 26, parts 2 and 5 of Article 27, parts 1, 4, 7, 8 and 11 of Article 28, parts 1, 3, 4, 6 and 8 of Article 29 of this Federal Law.

(as amended by Federal Law No. 18-FZ of February 9, 2007)

(see text in previous edition)

9. Amounts of fines for violation of the legislation of the Russian Federation on advertising and failure to comply with the instructions of the antimonopoly body shall be credited to the budgets of the budgetary system of the Russian Federation in the following order:

1) in federal budget- 40 percent;

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

10. Payment of the fine does not exempt from the execution of the order to stop violating the legislation of the Russian Federation on advertising.

49. Limitation of manipulative strategies in advertising.

Article 6. Comparisons
Advertising containing comparisons must be made in such a way that the comparison itself cannot be misleading, and must also comply with the rules of fair competition. The parameters to be compared should be based on facts on which evidence can be presented.

Article 7. Evidence
Advertisements must not contain personal testimonials or endorsements or references to them unless they are genuine. Evidence or endorsements that are outdated or otherwise no longer applicable should not be used.

Article 9 Use of reputation
1. Advertising must not unreasonably use the fame and business reputation of other firms, companies or organizations, as well as unreasonably exploit the reputation (authority) of people known in society.
2. Advertising must not unreasonably benefit from the prestige inherent in the person, trademark or symbol of another firm or product, or from the prestige derived from another advertising campaign.
3. Advertisements must not contain images or references to any person, either private or in public office, without obtaining their prior consent to do so; Advertisements must also not, without prior permission, depict or refer to the property of any person in a way that may give the impression that that person is acknowledging the content of the advertisement.

Article 10 Imitation
1. Advertisements must not mimic the overall composition, text, slogans, visual images, music, sound effects, etc. of other advertisements in such a way that they may be misleading or mistaken for other advertisements.
2. If an advertiser in one or more countries organizes an advertising campaign that has a characteristic distinctive ability, other advertisers should not imitate this campaign in other countries where this advertiser operates.

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

Connection with state coercion;

The basis of liability is an offense;

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

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

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

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

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

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

legality;

Equality of citizens before the law;

Justice;

Single use;

Objectivity;

inevitability;

expediency;

Timeliness;

Individuality.

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

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

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

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

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

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

e) criminal (established only by criminal law, the authority to bring to justice criminal liability possessed only by the court);

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

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

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

12.2. Administrative liability for offenses in the field of advertising

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The following administrative offense related to advertising activities is provided for in Article 13.15 "Abuse of freedom of the mass media" (CAO RF).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The subject of this administrative offense may be an individual, an official, a legal entity. The fault of the offender is intentional.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For violation of special requirements for advertising valuable papers and financial services, liability is provided for under article 15.24 “Public placement, advertising under the guise of securities of documents certifying monetary and other obligations” (CAO RF).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When considering a case on an administrative offense:

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

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

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

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

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

6) the submitted challenges and petitions are considered;

7) if necessary, rulings are made.

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

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

1) on imposing an administrative penalty;

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

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

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

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

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

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

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

6) reasoned decision on the case;

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

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

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

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

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

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

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

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

1) to the federal budget - 40 percent;

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

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

12.3. Civil liability for offenses in the field of advertising

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The subjective side is characterized by intent.

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

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

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

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

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

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

The subjective side of crimes is characterized by direct intent.

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

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

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

1) remark;

2) reprimand;

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

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

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

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

Questions and tasks

1. What is legal liability?

2. List the principles and types of legal liability.

3. What is the essence of legal responsibility?

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

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

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

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

The President of the Russian Federation submitted to the State Duma of the Federal Assembly of the Russian Federation the draft Federal Law No. 304898-3 “On 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. The 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 indicates that the legislator ignores the principle of equality of citizens before the law, as well as the principle of justice, which the criminal laws of any country seek to adhere to. After the abolition of Article 182 of the Criminal Code of the Russian Federation, the interests of a huge audience of advertising consumers, covering the majority of the population, were deprived of protection. Priorities are demonstrated that are not related to the rights of citizens guaranteed by the Constitution of Russia to protect property, life and health, reliable information. It is these highly significant social benefits that were harmed by the repeal of Article 182 of the Criminal Code of the Russian Federation.

At the same time, the exclusion of Article 182 from the Criminal Code of the Russian Federation clearly demonstrates the protection of the interests of representatives of the advertising business (advertisers, advertising producers, advertising distributors). The exclusion of Article 182 from the Criminal Code of the Russian Federation now allows them to distribute false advertising information that entails serious negative consequences of a material and moral nature, harm to health, without worrying about the possible onset of 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); sale of counterfeit securities 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 someone else's property is stolen or the right to it is acquired, 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 legal 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.

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

As already noted, administrative liability for offenses in the advertising business has been dominant for many years and, admittedly, far from always effective. Apparently, there is a reason for the repeated (more than three times) commission of an administrative offense in the field of advertising to introduce criminal liability in the form of a fine. If it is impossible to 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 body, 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 liability 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.

Legal responsibility is one of the components of the mechanism of legal regulation of public relations. Not a single rule defined by the legislator as a norm of conduct 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 by the Civil Code of the 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 body. 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 authority 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 is the general and special requirements established by the legislation on 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 in time with a legal order (decree, presentation, decision) of the body (official) exercising state supervision (part 2.4 of article 19.5 of the Code of Administrative Offenses of the Russian Federation); violation of the requirements for the installation of an advertising structure (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. certain types goods and services. The similarity of advertising with road signs or any other threat to traffic safety, 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 meet 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".