Amendments to the Law "On the Prosecutor's Office of the Russian Federation", which relate to the procedure for conducting prosecutorial inspections.

The law now clearly establishes the timeframe for prosecutors to carry out verification activities, as well as for those who are being checked to comply with the requirements of the supervisory authority.

In particular, according to the adopted amendments, all necessary materials and documents must be submitted free of charge within five working days from the date of receipt of the prosecutor's request. And in the course of inspections of the implementation of laws, this period is reduced to two days. The period for submitting documents to prosecutors is reduced to one day if there is a threat to the life or health of citizens, property, the environment, state security, as well as in the presence of emergencies.

At the same time, the audit period should not exceed 30 calendar days. In exceptional cases, it can be extended for a maximum of another 30 days. At the same time, higher-ranking prosecutors have been given the right to extend the terms of the inspection if all the measures were not carried out in time. The prosecutor's office has the right to suspend the inspection for 6 months.

If this period is not enough, then it can be extended for another six months, but only by decision of the Prosecutor General or his authorized deputy. When the inspection is suspended, the law obliges the return of materials and documents seized from the organization. An exception is if these documents and materials are necessary to resolve the issue of criminal prosecution. Or carrying out special examinations, which in turn may affect the conclusions of the inspection. It should be noted that the time for which the inspection was suspended does not count towards the date of its execution.

The prosecutor's check should not exceed 30 days, but can be extended for the same period

If it is held in a large organization that has subdivisions in several regions of Russia, then the terms will be calculated separately for each branch.

In addition, if earlier the supervisory authority had the right to check only those materials that were related to the subject of the check, now the law has expanded its powers. If during the inspection the prosecutor becomes aware of other violations of the law in the inspected organization, then he has the right to add a new subject of inspection or even start a new inspection.

A direct prohibition is introduced to duplicate powers and carry out inspections instead of other authorities. Also, the prosecutor does not have the right to demand from the organization information that is not conditioned by the purposes of the inspection or is not related to its subject.

The same prohibition applies to the receipt of materials that have previously been transferred to the prosecutor's office or were officially published in the media or were posted on the organization's official website on the Internet.

And also, according to the law, a new document is being introduced - "the decision to conduct an inspection." The decision must necessarily indicate the goals, grounds and subject of verification. Prosecutors are obliged to acquaint the auditees with this document, even before the start of the audit. If during the inspection no violations of the law were found, then within ten days from the moment of its completion, an act is drawn up. After that, a copy of the act is sent to the head of the audited organization.

According to Art. 21 of the Federal Law of January 17, 1992 N 2202-I "On the Prosecutor's Office of the Russian Federation" p When exercising supervision over the execution of laws, the prosecution bodies do not replace other state bodies.

Law enforcement checks are carried out on the basis of information received by the prosecutor's office about the facts of violation of laws requiring the adoption of measures by the prosecutor.

Thus, reasons for prosecutorial verification of the implementation of laws at enterprises may be:

1. 1. an appeal to the prosecutor's office (both oral and written) containing information about the violation of the law in any area;
   2. media materials;
   3. the task of the higher prosecutor's office;
   4. an instruction from the prosecutor to conduct a spot check of the implementation of legislation in a particular organization, given to subordinate employees on the basis of information about a violation of the law (unscheduled check);
   5. conducting a scheduled inspection, carried out in accordance with the work plan of the prosecutor's office for half a year, which includes a similar inspection (scheduled for a certain month).

Methodology for conducting prosecutorial inspections of the implementation of laws at enterprises

About the organization of the check

The effectiveness of the prosecutor's activity in supervising the accurate and uniform execution of laws entirely depends on its correct organization, which includes the following components:

1. 1. concretization of directions in the activities of the prosecutor to supervise the implementation of laws;
   2. delineation of powers between prosecutors within the framework of a centralized system of prosecution bodies;
   3. proper reception and analytical work with information about violations of the law received by the prosecutor's office;
   4. planning the work of the prosecutor;
   5. organization of interaction between the prosecutor's office and regulatory authorities;
   6. the actual prosecutor's check.

In the order of the Prosecutor General of the Russian Federation of 07.12.2007 No. 195 "On the organization of prosecutorial supervision over the execution of laws, observance of human and civil rights and freedoms", the main directions of supervisory activities are highlighted:

• • supervision over the legality of legal acts, observance of human freedoms and,
  • supervision in the field of economics and environmental safety,
  • prevention of criminal manifestations.

Another element should be considered the separation of powers between prosecutors provided for by the Federal Law "On the Prosecutor's Office of the Russian Federation" within the framework of a centralized system of prosecutorial bodies. For example, direct supervision over the implementation of laws, as well as over the compliance with laws of legal acts issued by federal ministries and departments, all-Russian public associations, is entrusted to the General Prosecutor's Office of the Russian Federation; by republican ministries, departments and public associations - to the prosecutor's offices of the republics; by regional, regional, autonomous regions, autonomous okrugs, bodies and administrations, regional public associations - respectively to the prosecutor's offices of territories, regions, autonomous regions, autonomous okrugs and specialized prosecutor's offices equated to them; other local representative bodies, executive power and management bodies, legal entities, public associations - to other territorial and specialized prosecutor's offices.

Supervision over the implementation of laws by military administration bodies, military units and institutions is carried out by the military and the relevant specialized prosecutors.

The prosecutor's office, carrying out its activities, in no case should replace the controlling state bodies and officials. The prosecutor's office does not have the right to interfere in the operational and economic activities of the objects under its supervision. The task of the prosecutor's office is to oversee the accurate and uniform implementation of laws, the observance of the rights and freedoms of citizens, interests, society and the state.

Proper reception and analytical work with information about violations of the law received by the prosecutor's office. The importance of organizing the work of the prosecutor's office in this direction is evidenced by the order of the Prosecutor General of the Russian Federation of December 17, 2007 No. 200 "On the enactment of the Instruction on the procedure for considering appeals and receiving citizens in the system of the prosecutor's office of the Russian Federation."

In accordance with this order, the work on considering appeals and receiving citizens is an integral part of the human rights function of the prosecutor's office. It is fully subordinated to the solution of tasks for the protection of human and civil rights and freedoms, strengthening the rule of law and law and order. The Prosecutor General of the Russian Federation requires such an approach to this work so that each appeal receives a timely, objective and final resolution in the prosecutor's office, which is responsible for resolving the issue.

In accordance with the Order of the Prosecutor General of the Russian Federation dated 04.10.2007 No. 158 "On the procedure for submitting special reports and other mandatory information" for the timely and proper adoption of organizational and supervisory decisions by the prosecution authorities, an appropriate procedure for submitting special reports on emergencies, crimes and other mandatory information.

Planning the work of the prosecutor. The content of planning in the work of the prosecutor's office is determined by order of the Prosecutor General of the Russian Federation dated January 15, 2003 No. 2, which approved the regulations of the General Prosecutor's Office of the Russian Federation. This Order provides for the planning of work for half a year. A similar approach is acceptable for the prosecutor's offices of the constituent entities of the Russian Federation. Planned tasks are drawn up on the basis of information on the state of legality in the territory covered by the supervisory activities of the prosecutor's office. The effectiveness of prosecutorial supervision largely depends on the correct choice of the object of verification of the state of legality.

An important point is the correct organization of interaction between the prosecutor's office and regulatory authorities, which have more numerous states. Relatively narrow specialization, good technical equipment allow the regulatory authorities to quickly track and record a fairly large amount of information of interest to prosecutors.

Actually the prosecutor's check consists of the following stages:

1) preparatory where the prosecutor

• • gets acquainted with the legislation necessary for conducting an audit,
  • determines the tasks, the composition of the persons, by means of which the check will be carried out,
  • studies typical violations of the law;

2) the actual checks, which is implemented by using the powers granted to the prosecutor by law. The check should be organized in such a way as to identify not only the violations of the law themselves, but also the conditions that contributed to this;

3) implementation of verification materials(a decision is made which remedy should be applied against violators of the law - a protest, presentation, warning or resolution);

4) control over execution measures taken to eliminate violations of the law revealed during the prosecutor's inspection.

Onsite check

The inspection of the organization by the supervisory authority begins with the receipt of a request for the need to provide certain documentation.

Proceeding from the fact that the inspection by the prosecutor's office of the implementation of legislation is an organizational event in which a large number of people can be involved, as a rule, the prosecutor's office employees notify the organization's management by phone in advance of its beginning.

The approval of the start of verification activities is not regulated in the legislation, however, the request of the head to postpone the arrival of the prosecutor's office for a certain time (say, a day or two) in order to fulfill all the requirements of the supervisory authority will not be considered a violation and cannot be considered as an obstacle to the inspection. Thus, the start date of verification activities can be agreed between the employees of the prosecutor's office and the employer. The task of the latter is to ensure that employees of human resources departments, accountants, deputy heads, and other persons responsible for organizing work in a certain area are at their workplaces in order to provide prosecutors with an operational opportunity to familiarize themselves with the documentation they are interested in, visually inspect production facilities, etc. .d.

After agreeing on the start time of the verification activities at the appointed hour, the prosecutor's office employee arrives at the organization. In accordance with Art. 22 of the Federal Law "On the Prosecutor's Office of the Russian Federation", a prosecutor's employee has the right, upon presentation of an official certificate, to freely enter the territory and premises of the supervised bodies, have access to their documents and materials, check the implementation of laws in connection with information received by the prosecutor's office about the facts of violation of the law.

Despite the fact that the legislation does not regulate the procedure for carrying out verification measures by the prosecutor's office employees, in general it is formalized. At the same time, the rights and obligations of prosecutors enshrined in the Law on the Prosecutor's Office are limited by Art. 26 FZ: the prosecutor's office is not entitled to interfere in the economic activities of organizations. This means: the prosecutor's office cannot give advice and instructions on the selection and placement of personnel, the appointment of persons responsible for labor protection, assessment of the qualifications of workers, improvement of the production cycle or other on-farm and intra-organizational activities.

Before the start of the events, the prosecutor's office employee gets to know the officials whose activities are to be checked.

In accordance with Art. 22 of the Law on the Prosecutor's Office, the prosecutor's office has the right to involve specialists when carrying out verification activities. This legislative provision is due to the fact that, in practice, the auditing prosecutors do not have special knowledge in any narrow-profile industries (for example, in the production characteristics of complex technical equipment and options for its safe operation for employees, accounting calculations). In the normative acts, the procedure and peculiarities of attracting persons with the necessary knowledge and skills to prosecutorial inspections are not enshrined.

In practice, the prosecutor's office may involve officials of bodies competent in certain aspects in joint verification activities. For example, these can be bodies exercising control and supervision in the field of

• • ensuring the sanitary and epidemiological well-being of the population;
  • hydrometeorology and environmental monitoring;
  • state environmental control;
  • state control of the safety of explosive industries;
  • bodies of state energy supervision, etc.

The aforementioned departments and their officials are supervised entities for the prosecutor's office, which, according to the law, are obliged to provide specialists.

Scope of verification activities is determined not only by the plan targets and the list of issues to be checked, but also by the initiative of the supervising prosecutor, on whom the inclusion of certain areas depends.

Need to keep in mind that the provisions of the Federal Law of December 26, 2008 No. 294-FZ "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Exercise of State Control (Supervision) and Municipal Control" do not apply to the procedure for conducting inspections by prosecutors (part 3 of article 1) ... At the same time, the presence of the head of an enterprise, institution or organization during prosecutorial inspections is necessary, since otherwise the inspection may not take place. Law of the Russian Federation of 27.04.1993 No. 4866-1 "On appealing to the court of actions and decisions that violate the rights and freedoms of citizens" the right to appeal against illegal actions of officials of the prosecutor's office is enshrined.

Based on the results of the inspection and the measures taken, the official of the prosecutor's office prepares a certificate addressed to his head, which refers to official documents and is not intended for unauthorized persons... If an employee of the prosecutor's office engages specialists to check the implementation of labor legislation and, together with them, checks the work of the organization, then he is the leader of this group and coordinates their actions. Representatives of other regulatory bodies present during this inspection provide information on its results and violations detected in a form convenient for the prosecutor's office worker. The noted persons also may not draw up acts on the results of the inspection (since such situations are not regulated in the legislation, but in practice the instructions of the prosecutor in this case are of greater importance).

Since the main actor in this situation is the prosecutor's office, who bears full responsibility, and other persons present during the inspection follow the instructions given to them, the time frame for the inspection and the scope of inspection measures are set on his initiative.

Non-exit (documentary) check

The essence of this check lies in the fact that the employee of the prosecutor's office summons the persons he needs to give explanations and requests the necessary documentation while in his office. In the process of verification activities, he examines the materials provided upon request.

Statistical and other information, certificates, documents and their copies necessary in the implementation of the functions assigned to the prosecutor's office are provided at the request of the prosecutor free of charge.

Failure to comply with the requirements of the prosecutor's office contained in the request, as well as untimely, incomplete, distorted provision of the requested information (information) will serve as a pretext for bringing to administrative responsibility under Art. 19.7 of the Administrative Code of the Russian Federation.

If a person was duly notified of the need to appear at the prosecutor's office (received a summons to appear and put his signature) and ignored this requirement without objective, documented reasons, he may also be brought to administrative responsibility under Art. 19.7 of the Administrative Code of the Russian Federation.

An assistant or deputy prosecutor may request written explanations from persons related to identified violations of the law. It should be noted that the submission of written explanations is a common formality required for the completeness of the collected verification material, since in accordance with Art. 51 of the Constitution of the Russian Federation, no one is obliged to testify against himself.

Complaint check

Verification of a complaint or an application includes similar actions: requesting information and taking written explanations from persons related to the arguments presented by the applicant. If the facts stated in the appeal need to be clarified, the employee of the prosecutor's office has the right to call the person who wrote the appeal and talk to him.

The work of prosecutors with appeals from citizens and legal entities allows for a conciliation procedure to avoid prosecution. Its essence is as follows: if the employer, having learned that a complaint has been filed against him and the arguments contained in it are true, will independently and promptly take measures to restore the violated rights and interests (for example, he will pay off the wage arrears as soon as possible), then in this case he has a chance to receive only a warning about the inadmissibility of violating the law.

If the employer considers his actions in relation to the applicant to be lawful, he must justify his position solely with reference to the current legislation and law enforcement practice.

The completion of the verification of the implementation of labor legislation, both documentary and on-site, ends with the adoption of measures by the prosecutor's response in the event that violations are identified.

1. The subject of an unscheduled inspection is compliance by a legal entity, an individual entrepreneur in the process of carrying out activities with the mandatory requirements and requirements established by municipal legal acts, compliance with the instructions of state control (supervision) bodies, municipal control bodies, taking measures to prevent harm to the life and health of citizens, harm to animals, plants, the environment, cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation, museum items and museum collections included in the Museum Fund of the Russian Federation, especially valuable, including unique, documents of the Archive Fund of the Russian Federation, documents , having a special historical, scientific, cultural significance, which are part of the national library fund, to ensure the security of the state, to prevent the occurrence of natural and man-made emergencies, to liquidate giving the consequences of causing such harm.

2. The basis for an unscheduled inspection is:

1) the expiration of the term for the execution by a legal entity, an individual entrepreneur of a previously issued order to eliminate the revealed violation of mandatory requirements and (or) requirements established by municipal legal acts;

1.1) the receipt by the state control (supervision) body, the municipal control body of an application from a legal entity or individual entrepreneur for the granting of a legal status, a special permit (license) for the right to carry out certain types of activities or permission (approval) to carry out other legally significant actions, if carrying out an appropriate unscheduled inspection of a legal entity, an individual entrepreneur is provided for by the rules for granting legal status, special permission (license), issuance of a permit (approval);

2) a reasoned presentation by an official of a state control (supervision) body, a municipal control body based on the results of an analysis of the results of control measures without interaction with legal entities, individual entrepreneurs, consideration or preliminary verification of applications received by state control (supervision) bodies, municipal control bodies, and statements of citizens, including individual entrepreneurs, legal entities, information from public authorities, local authorities, from the media about the following facts:

(see text in previous edition)

A) the emergence of a threat of harm to the life, health of citizens, harm to animals, plants, the environment, cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation, museum items and museum collections included in the Museum Fund of the Russian Federation, especially valuable, in including unique documents of the Archival Fund of the Russian Federation, documents of special historical, scientific, cultural significance, which are part of the national library fund, state security, as well as threats of natural and man-made emergencies;

(see text in previous edition)

B) causing harm to life, health of citizens, harm to animals, plants, the environment, cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation, museum items and museum collections included in the Museum Fund of the Russian Federation, especially valuable, including unique documents of the Archival Fund of the Russian Federation, documents of special historical, scientific, cultural significance, which are part of the national library fund, state security, as well as the occurrence of natural and man-made emergencies;

(see text in previous edition)

C) violation of consumer rights (in the case of an appeal to the body exercising federal state supervision in the field of consumer protection, citizens whose rights have been violated, provided that the applicant applied for the protection (restoration) of his violated rights to a legal entity, an individual entrepreneur, etc. the appeal was not considered or the applicant's claims were not satisfied);

(see text in previous edition)

d) violation of the requirements for the labeling of goods;

2.1) identification, when carrying out control measures without interaction with legal entities, individual entrepreneurs, of the parameters of the activity of a legal entity, an individual entrepreneur, compliance with which or deviation from which, according to the approved federal executive body, exercising the functions of developing and implementing state policy and legal regulation in the established field of activity, indicators of the risk of violation of mandatory requirements is the basis for an unscheduled inspection provided for in the regulation on the type of federal state control (supervision);

(see text in previous edition)

3) the order (order) of the head of the state control (supervision) body, issued in accordance with the instructions of the President of the Russian Federation, the Government of the Russian Federation and on the basis of the request of the prosecutor to conduct an unscheduled inspection in the framework of supervision over the execution of laws on the materials and appeals received by the prosecutor's office.

(see text in previous edition)

3. Appeals and statements that do not allow to establish the person who applied to the state control (supervision) body, the municipal control body, as well as appeals and statements that do not contain information about the facts specified in paragraph 2 of part 2 of this article, cannot serve as a basis for conducting an unscheduled inspection. In the event that the information set forth in the appeal or application may, in accordance with paragraph 2 of part 2 of this article, be the basis for an unscheduled inspection, an official of a state control (supervision) body, a municipal control body, if he has reasonable doubts about the authorship of the appeal or application is obliged to take reasonable measures to identify the applicant. Applications and statements sent by the applicant in the form of electronic documents can serve as the basis for an unscheduled check only if they were sent by the applicant using information and communication technologies that provide for mandatory authorization of the applicant in a unified identification and authentication system.

(see text in previous edition)

3.1. When considering applications and applications, information about the facts specified in part 2 of this article, the results of consideration of previously received similar applications and applications, information, as well as the results of previously carried out control measures in relation to the relevant legal entities, individual entrepreneurs must be taken into account.

3.2. In the absence of reliable information about the person who violated the mandatory requirements, the requirements established by municipal legal acts, sufficient data on the facts specified in part 2 of this article, authorized officials of the state control (supervision) body, the municipal control body may conduct a preliminary check of the received information. In the course of the preliminary verification of the information received, measures are taken to request additional information and materials (including orally) from the persons who sent applications and appeals, who submitted information, the documents of a legal entity, an individual entrepreneur, available at the disposal of the state control body ( supervision), a municipal control body, if necessary, control measures are taken without interaction with legal entities, individual entrepreneurs and without imposing on these persons the obligation to provide information and fulfill the requirements of state control (supervision) bodies, municipal control bodies. As part of a preliminary check, a legal entity, an individual entrepreneur may be asked for clarifications regarding the information received, but the submission of such explanations and other documents is not mandatory.

(see text in previous edition)

3.3. If, based on the results of a preliminary check, persons who have violated the mandatory requirements, the requirements established by municipal legal acts, have received sufficient data on the facts specified in part 2 of this article, the authorized official of the state control (supervision) body, the municipal control body prepares a reasoned submission on appointment of an unscheduled inspection on the grounds specified in clause 2 of part 2 of this article. Based on the results of a preliminary check, measures to bring a legal entity or an individual entrepreneur to justice are not taken.

(see text in previous edition)

3.4. By the decision of the head, deputy head of the state control (supervision) body, the municipal control body, the preliminary inspection, unscheduled inspection is terminated if, after the start of the corresponding inspection, the anonymity of the appeal or the statement that was the reason for its organization is revealed, or deliberately false information contained in the appeal or statement.

3.5. The state control (supervision) body, the municipal control body has the right to apply to the court with a claim to recover from a citizen, including from a legal entity, an individual entrepreneur, the costs incurred by the state control (supervision) body, the municipal control body in connection with the consideration of the applications received , appeals of these persons, if deliberately false information was indicated in the applications, appeals.

4. An unscheduled inspection is carried out in the form of a documentary inspection and (or) on-site inspection in accordance with the procedure established by this Federal Law, respectively.

5. An unscheduled field inspection of legal entities, individual entrepreneurs can be carried out on the grounds specified in subparagraphs "a", "b" and "d" of paragraph 2, paragraph 2.1 of part 2 of this article, by state control (supervision) bodies, municipal control bodies after agreement with the prosecutor's office at the place of implementation of the activities of such legal entities, individual entrepreneurs.

(see text in previous edition)

6. The standard application form for the approval by the state control (supervision) body, the municipal control body with the prosecutor's office of conducting an unscheduled field inspection of a legal entity, an individual entrepreneur is established by the federal executive body authorized by the Government of the Russian Federation.

(see text in previous edition)

7. The procedure for the approval of the state control (supervision) body, the municipal control body with the prosecutor's office for an unscheduled on-site inspection of a legal entity, individual entrepreneur, as well as approval of the prosecutor's office for approval of an unscheduled on-site inspection is established by order of the Prosecutor General of the Russian Federation.

(see text in previous edition)

8. On the day of signing the order or order of the head, deputy head of the state control (supervision) body, the municipal control body on conducting an unscheduled field inspection of a legal entity, an individual entrepreneur in order to coordinate its conduct, the state control (supervision) body, the municipal control body shall submit or send by registered mail with an acknowledgment of receipt or in the form of an electronic document signed with an enhanced qualified electronic signature, to the prosecutor's office at the place of business of a legal entity, an individual entrepreneur, an application for approval of an unscheduled on-site inspection. This application shall be accompanied by a copy of the order or order of the head, deputy head of the state control (supervision) body, municipal control body on conducting an unscheduled on-site inspection and documents that contain information that served as the basis for its conduct.

(see text in previous edition)

9. An application for approval of an unscheduled on-site inspection of a legal entity, an individual entrepreneur and the documents attached to it are considered by the prosecutor's office on the day they are received in order to assess the legality of an unscheduled on-site inspection.

(see text in previous edition)

10. Based on the results of consideration of an application for approval of an unscheduled on-site inspection of a legal entity, an individual entrepreneur and the documents attached to it, no later than during the working day following the day of their receipt, the prosecutor or his deputy makes a decision on the approval of an unscheduled on-site inspection or on refusal to agree on its conduct.

(see text in previous edition)

11. Grounds for refusal to approve an unscheduled on-site inspection are:

1) the absence of documents attached to the application for approval of an unscheduled field inspection of a legal entity, individual entrepreneur;

(see text in previous edition)

2) the absence of grounds for conducting an unscheduled on-site inspection in accordance with the requirements of part 2 of this article;

3) failure to comply with the requirements established by this Federal Law for the execution of a decision of a state control (supervision) body, a municipal control body on conducting an unscheduled on-site inspection;

4) carrying out an unscheduled on-site inspection that contradicts federal laws, regulatory legal acts of the President of the Russian Federation, regulatory legal acts of the Government of the Russian Federation;

5) inconsistency of the subject of the unscheduled on-site inspection with the powers of the state control (supervision) body or the municipal control body;

6) verification of compliance with the same mandatory requirements and requirements established by municipal legal acts in relation to one legal entity or one individual entrepreneur by several state control (supervision) bodies, municipal control bodies.

12. If the reason for the unscheduled field inspection is harm to the life, health of citizens, harm to animals, plants, the environment, cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation, museum items and museum collections included in the Museum Fund of the Russian Federation Federation, especially valuable, including unique, documents of the Archival Fund of the Russian Federation, documents of special historical, scientific, cultural significance, which are part of the national library fund, state security, as well as the occurrence of natural and man-made emergencies, detection of mandatory violations requirements and requirements established by municipal legal acts, at the time of committing such violations due to the need to take urgent measures, state control (supervision) bodies, municipal control bodies have the right to proceed with an unscheduled on-site inspection immediately with the notification of the prosecutor's office about the implementation of control measures by sending the documents provided for in parts 6 and this article to the prosecutor's office within twenty-four hours. In this case, the prosecutor or his deputy decides on the approval of an unscheduled on-site inspection on the day the relevant documents are received.

(see text in previous edition)

13. The decision of the prosecutor or his deputy on the approval of an unscheduled on-site inspection or on the refusal to approve its conduct is made in writing in two copies, one of which on the day of the decision is submitted or sent by registered mail with a receipt acknowledgment or in the form of an electronic document signed with a strengthened qualified electronic signature to a state control (supervision) body, a municipal control body. paragraph 2 of part 2 of this article, a legal entity, an individual entrepreneur shall be notified by the state control (supervision) body, the municipal control body at least twenty-four hours before the start of its conduct by any available means, including through an electronic document signed with an enhanced qualified electronic signature and sent to the e-mail address of a legal entity, an individual entrepreneur, if such an address is contained, respectively, in the unified state register of legal entities, the unified state register of individual entrepreneurs, or was previously submitted by a legal entity, an individual entrepreneur to a state control (supervision) body, a municipal control body.

(see text in previous edition)

17. In the event that, as a result of the activities of a legal entity, an individual entrepreneur, harm is or is being done to the life and health of citizens, harm to animals, plants, the environment, cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation, museum items and museum collections, included in the Museum Fund of the Russian Federation, especially valuable, including unique, documents of the Archival Fund of the Russian Federation, documents of special historical, scientific, cultural significance, which are part of the national library fund, state security, and emergency situations of natural and man-made nature, preliminary notification of legal entities, individual entrepreneurs about the beginning of an unscheduled field inspection is not required.(see text in previous edition)

20. In the event of violations by members of a self-regulatory organization of mandatory requirements and requirements established by municipal legal acts, officials of the state control (supervision) body, municipal control body during an unscheduled on-site inspection of such members of a self-regulatory organization are obliged to inform the self-regulatory organization of the violations detected within five working days from the date of the end of the unscheduled on-site inspection.

21. In the event that the basis for an unscheduled inspection is the expiration of the time limit for the fulfillment by a legal entity, an individual entrepreneur of an order to eliminate the revealed violation of mandatory requirements and (or) requirements established by municipal legal acts, the subject of such an inspection can only be the execution of the issued by the state control body ( supervision) and (or) the authority of the municipal control of the order.

Instead of an epigraph, I will cite an excerpt from the Decree of Peter I "On the position of the Prosecutor General": "And even this rank is like our eye and solicitor about state affairs."

Prosecutor's check. These words often put on the alert not only representatives of entrepreneurship, but also employees of state bodies, local authorities and other institutions and organizations.

Let's take a look at what a "prosecutor's check" is, what powers the prosecutors have, and most importantly - where are the limits of these powers.

Under prosecutor's check should be understood as the verification of the implementation of laws by state bodies, their officials, commercial and non-commercial organizations, carried out by the prosecutor's office. The basis for the inspection is information about the facts of violation of laws, requiring the adoption of measures by the prosecutor. An appeal of a citizen, a report in the media, materials of civil, criminal cases, cases of administrative offenses can serve as a reason for conducting an inspection.

Under subject of verification it is necessary to understand what, in fact, is checked and for what period of time. The Federal Law "On the Prosecutor's Office of the Russian Federation" (hereinafter referred to as the Law) refers to the jurisdiction of the Prosecutor's Office everything that is not within the competence of special supervisory bodies. The Law directly states: "When exercising supervision over the implementation of laws, the prosecution bodies do not replace other state bodies." The audited period is not legally established, however, one should be guided by the principles of reasonableness and legal certainty.

The powers of the prosecutor are given in paragraph 1 of Art. 22 of the Law:

- upon presentation of a service certificate, freely enter the territory and premises of the organizations and institutions being inspected;

- have access to their documents and materials;

- require managers and other officials to submit the necessary documents, materials, statistical and other information, as well as the allocation of specialists to clarify the issues that have arisen;

- to call officials and citizens for explanations about violations of laws.

Prosecutors, who have the right to conduct inspections and exercise the powers provided for by the Law, are understood as prosecutors, their deputies and assistants.

When conducting an audit, it must be excluded the claim of unnecessary materials, documents and information that can be obtained by prosecutors directly during the audit with a visit to the site, the facts of imposing on the representatives of the audited organizations obligations to provide information that are not related to the subject of the audit or go beyond it should not be allowed. limits, as well as not provided for by the legislation on statistical data. The timing of the provision of documents to prosecutors must be reasonable, the requirements for the form and content of such documents must be clear and understandable.

As the Constitutional Court of the Russian Federation has repeatedly noted, the deadlines for verifying the conduct of a prosecutor's inspection are not established by the Law, however, these deadlines cannot exceed the deadlines established by the Federal Law "On the Procedure for Considering Appeals from Citizens of the Russian Federation" and the Instruction on the Procedure for Considering Appeals and Reception of Citizens in the Prosecutor's Office of the Russian Federation (approved by order of the Prosecutor General of the Russian Federation of January 30, 2013 No. 45).

Since the grounds for conducting an audit are reports of violations received from the media, from citizens, officials, etc., then 30 days from the date of registration are allotted for their consideration and verification. In exceptional cases, the period for resolving appeals is extended by the prosecutor or his deputy, but for no more than 30 days.

A prosecutor's check may not reveal any irregularities in the work of the institution. In case of revealing violations, the prosecutor has the right:

- submit a submission with the requirement to eliminate the violation;

- make a warning about the inadmissibility of violations;

- go to court with a claim to liquidate the public association, and in case of violation of anti-extremist legislation, suspend the activities of the public association.

If during the inspection other violations are revealed that are not related to the grounds for the start of the inspection and they contain signs of an administrative offense or crime, then the prosecutor's office will exercise the authority to initiate an administrative offense case, or the relevant materials will be sent to the preliminary investigation body to resolve the issue of criminal prosecution ...

New procedure for conducting a prosecutor's check

In this case, a prosecutor is understood to mean prosecutors or his deputies. The assistant prosecutor has the right to issue only a resolution on the initiation of an administrative offense case.

There is no universal scheme of actions in the event of a prosecutor's check. However, it is possible to single out the points that should be focused on in order to competently substantiate their legal position in the future.

The prosecutor's office worker is obliged to present a certificate and, at least verbally (which is quite acceptable), explain the subject of the check. If he forgot to do this, he should be reminded of this in writing, in addition, you can request a document on the basis of which the check is carried out, referring to the Resolution of the Constitutional Court of the Russian Federation of February 18, 2000 N 3-P, thanks to which the Law was amended to provide for the possibility of acquaintance with verification materials (the old edition forbade it with vague reservations).

If the inspector requests documents that, in your opinion, do not relate to the subject of the inspection or its competence, then you can provide these documents (of course, having received written confirmation of this fact) and appeal these actions to a higher prosecutor or to the court. Or refuse to provide these documents, but then be ready to prove the illegality of these requirements in order to avoid bringing to administrative responsibility for failure to comply with the legal requirements of the prosecutor.

In the case when the prosecutor asks to provide an indefinite list of documents for a very long period of time, it should be required to specify the list of requested documents, explaining that the requirements of the representative of the authorities must be understandable and enforceable. A written refusal, indicating the reasons, to send to the prosecutor's office, noting that you are ready to provide all the necessary documents after specifying their list.

Any refusal to provide the prosecutor with information, documents, or, on the contrary, the fact of transferring any materials must be recorded in writing.

If the inspecting prosecutor's office wants to interview any of the representatives of the organization, then it is necessary to explain to their employees that, within the meaning of Article 51 of the Constitution of the Russian Federation, giving explanations is a right, not an obligation.

After the end of the check, within a month, if violations are detected, the prosecutor can send a representation or a warning to you.

Upon receipt of one of the indicated acts of the prosecutor's response, if you agree with the violations identified, you must eliminate them and inform the prosecutor about the results within a month.

If you do not agree with the submission (warning), you need to appeal them in court in accordance with Chapter 25 of the Civil Procedure Code of the Russian Federation. An application for disputing the act of the prosecutor's response must be submitted to the court within three months from the date of its receipt (Article 256 of the Code of Civil Procedure of the Russian Federation). Appealing against the actions of the prosecutor to a higher official may not bring the desired result, in addition, while waiting for an answer, you can skip the legal deadline for going to court.

It should be noted that the requirements of the prosecutor, set out in the act of the prosecutor's response, are subject to execution not literally, but in accordance with the Law. So, in the Decree of 27.08.2010 N 11-AD10-11, the Supreme Court of the Russian Federation noted that "by virtue of Article 6 of the Federal Law" On the Prosecutor's Office of the Russian Federation "the requirements of the prosecutor arising from his powers listed in Articles 22, 27, 30 and 33 of this Federal Law are subject to unconditional execution within the prescribed period ... The provisions of the Federal Law "On the Prosecutor's Office of the Russian Federation", which provide the prosecutor with the right to make submissions to eliminate violations of the law, oblige the officials to whom they are issued to consider these submissions, however, the nature of the measures taken must be determined by the officials themselves. "

How the prosecutor's office conducts an inquiry on a complaint

The procedure for coordinating an unscheduled on-site inspection of small and medium-sized businesses of a state control (supervision) body, a municipal control body with a prosecutor's office

Federal Law of December 26, 2008 No. 294 "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Exercise of State Control (Supervision) and Municipal Control" regulates the procedure for coordinating an unscheduled on-site inspection of small and medium-sized businesses of a state control (supervision) body, a municipal body control with the prosecutor's office at the place of implementation of activities of small and medium-sized businesses.

An unscheduled field check of legal entities, individual entrepreneurs belonging to small or medium-sized businesses, on the basis of a threat of causing (or direct causing) harm to the life, health of citizens, harm to animals, plants, the environment, state security, as well as the threat of natural emergencies. and of a man-made nature is carried out by state control (supervision), municipal control after agreement with the prosecutor's office at the place of operation of such legal entities, individual entrepreneurs.

Violation of the provision (in terms of agreement with the prosecutor's office of an unscheduled on-site inspection) refers to gross violations, as a result of which the results of the inspection cannot serve as evidence of a violation by a legal entity, an individual entrepreneur of the mandatory requirements and requirements established by municipal legal acts, and must be canceled by a higher state control body (supervision) or by a court on the basis of an application by a legal entity, an individual entrepreneur.

An application for approval of an unscheduled on-site inspection by state control (supervision) bodies, municipal control bodies is sent to the prosecutor's office on the day of signing the order or order of the head (deputy head) of these bodies. This application is submitted or sent by registered mail with acknowledgment of receipt, it can also be sent in the form of an electronic document signed with an electronic digital signature.

The decision on approval of an unscheduled on-site inspection or on refusal to approve its conduct is made by the prosecutor or his deputy no later than during the working day following the day of receipt of the application for approval of an unscheduled on-site inspection of small or medium-sized businesses.

Cases when surgical intervention is required in the form of an unscheduled on-site inspection without waiting for the decision of the prosecutor's office is causing harm to life, health of citizens, harm to animals, plants, the environment, state security, as well as the occurrence of natural and man-made emergencies, detection of violations of mandatory requirements and the requirements established by municipal legal acts at the time of the commission of such violations. In this case, the prosecutor's office is immediately notified of an unscheduled on-site inspection by sending documents within twenty-four hours. The prosecutor or his deputy make a decision on the approval of an unscheduled on-site inspection on the day of receipt of the documents or on the refusal to approve it.

Albina Kiseleva

I decided to write this small article to help my clients-entrepreneurs (and not only them) who have come to the attention of our valiant prosecutors.

First of all, I will outline the basic principles of behavior that must be adhered to in dealing with prosecutors.

1. Smile, be nice, even if you are not reciprocated. By doing so, you inspire confidence or leniency in yourself and dull the vigilance of the examiners. Do not go into open conflict, in any case, even if you are absolutely convinced that you are right.
2. When communicating with prosecutors, do not cling to formalities, it infuriates them and makes them angry.
3. Don't tell anything unnecessary about yourself and your company. Just answer the questions and nothing else. Moreover, it is best to appoint a specific employee (the most intelligent and adequate), there can be several who will communicate with prosecutors, accept and execute their requests. Other employees need to point out that all communication with the inspectors should take place through a person you have designated.

This is necessary so that employees of your organization do not inadvertently inform prosecutors about other possible violations at the enterprise, since the law allows prosecutors to take appropriate measures if they detect signs of any other offense that is not included in the subject of their inspection.

For example, they came to you to check compliance with fire safety requirements, or tax legislation, and in a conversation with technical staff, prosecutors find out that an employee's salary is paid once a month, while according to the general rule enshrined in the Labor Code of the Russian Federation, it is paid must 2 times a month, unless otherwise specified in the employment contract with the person. As a result, you will additionally receive a fine for violation of labor laws, despite the fact that they came to check something completely different.

We fix it. Basic principles of conduct during a prosecutor's inspection:

• smile and nod;
• no need to be clever, clinging to formalities, and tell the prosecutors what they are right or wrong (if necessary, this will have to be done later in writing);
• we do not chat and appoint specific people responsible for communication with the inspectors.

Of course, adherence to these principles can hurt your vanity, but in my opinion, this is better than your wallet. Otherwise, after one check, several more may follow, and the number of violations identified in you and the amount of fines imposed will grow many times over.

Do not forget that by virtue of Part 1 of Article 22 of the Federal Law "On the Prosecutor's Office of the Russian Federation", the prosecutor has the right to demand from any supervisory authority to organize any inspection in relation to your organization, if there are grounds. Well, the emergence of such grounds, as you know, is a matter of technology. For example, I was told cases when, if necessary, prosecutors wrote themselves complaints about the actions of specific persons, so that there were legal grounds to go out with a check.

Scared, right? Don't be afraid, it's not that scary. This will be discussed further.

Now about what may threaten as a result of the prosecutor's check.

The law provides for the following response measures that can be taken by the prosecutor:

• warning;
• protest;
• performance;
• a claim in court;
• a resolution to initiate an administrative offense case;
• a resolution on sending the materials of the inspection to the preliminary investigation bodies to consider the issue of initiating a criminal case.

I've listed the responses in ascending order of importance (let's say “painfulness”) to you and your organization.

Warning. This is a document that is handed to you personally, or sent by mail, in which you are warned that you must not break the law and if you break it, you will bear responsibility for it. Fearfully? So I think not! Everyone knows about this. You were simply told that if you do this and that, you will be punished.

Another nuance. Warnings can be announced publicly, under the camera - do not be alarmed, just by virtue of internal orders, prosecutors are obliged to interact with the media and do their job publicly. This does not impose any obligations on you, except for the indication in the warning itself about the inadmissibility of breaking the law.

Protest. You get it when any local legal act of the organization (simply an order or order of the director, for example) does not meet the requirements of the law. All that the law obliges you to do here is to consider this draft within 10 days, and then immediately inform the prosecutor who submitted it in writing about the results. And that's it!

The law does not even oblige you to appeal a protest if you disagree with it. You just write an answer to the prosecutor's office within 10 days from the moment of its receipt, where you agree or not with the claims expressed. Moreover, in case of disagreement, you are not even obliged to justify it, although I strongly recommend that you always motivate your position. Otherwise, it is perceived as an act of disrespect for state institutions in the person of the prosecutor's office (see.

Prosecutorial inspections have limited

the beginning of this article).

So there is nothing to be afraid of here, as you understand.

Performance. This document often accumulates all the violations that were identified during the audit and contains a requirement to eliminate them.

In this case, the law states that the prosecutor's submission is subject to immediate consideration and, within a month from the date of its submission, specific measures must be taken to eliminate the violations of the law, their causes and conditions that contribute to them, and the results of the measures taken must be reported to the prosecutor in writing. form in a month.

Let us dwell in more detail on this act of the prosecutor's response. The first thing to note here is that the law obliges you to consider the submission, take measures to eliminate the violations (reasons and conditions) and report the results to the prosecutor in writing within a month. Everything!!! No other obligations are imposed.

Second, the law only declares that it is necessary to take specific measures, and which ones are up to you!

It also occurs when violations are irreparable - then simply state this in your response to the prosecutor.

In terms of eliminating the causes and conditions that contributed to the commission of offenses, I recommend holding a meeting with subordinate employees under the protocol, where to demonstratively point out to them the strict observance of the requirements of the law in the course of their activities and the inadmissibility of violating laws in the future. You can take the wording directly from here. If there is a branch network in the company, you can get by with sending the appropriate letters with similar content.

In practice, someone even organizes appropriate seminars with employees, legal education events, various trainings, and develops training manuals or guidelines. It is not necessary, but it will not hurt if available. Again, it's up to you.

The next point concerns the consideration of the submission with the participation of an employee of the prosecutor's office. and the need to bring your employees to disciplinary or other liability (for example, deprivation). Almost always, these requirements are stated in the text of the presentation.

On the one hand, the law does not directly oblige you to invite the prosecutor's submission for consideration, however, by virtue of paragraph 16 of the order of the Prosecutor General of the Russian Federation dated 07.12.2007 No. 195, prosecutors must certainly take part in such reviews of their acts of response. Otherwise, they are punished. Therefore, if you do not want to aggravate relations with the prosecutor's office, it is better to invite and formalize this process. In any case, nothing new will be presented to you and will not be charged, and you will not lose anything.

Now about bringing the company's employees to disciplinary or other liability (under another one should be understood as depreciation, a decrease in increasing salary ratios, allowances, bonuses, etc.). For prosecutors, this is a rather painful question, since their effectiveness is tacitly assessed by the number of “punished” according to representations.

Yes, in accordance with paragraph 2 of Article 22 of the Federal Law "On the Prosecutor's Office of the Russian Federation", the prosecutor has the right to demand that you bring persons who have violated the law to disciplinary or other liability. At the same time, it is only the right to demand. To bring your employee to justice under the Labor Code of the Russian Federation or not is the exclusive prerogative of the employer. So they can demand, but it's up to you again.

In this case, one's "mercy" can be motivated by low wages at the enterprise, high qualifications of the guilty employee, a promise to improve in the future, or the likelihood of dismissal of a highly qualified specialist if disciplinary action is applied to him, etc.

Remember, the law does not oblige you, at the request of the prosecutor, to bring your employees to disciplinary responsibility or to deprive them of bonuses and bonuses.

Let's go further. According to the Code of Administrative Offenses of the Russian Federation, the prosecutor (Article 28.4) has the right, if there are grounds initiate proceedings for any administrative offense by issuing an appropriate order.

But this measure of the prosecutor's response should be somewhat wary, especially for small businesses. Article 3.2 of the named code lists the main types of administrative punishment, I will cite the most "unpleasant" ones:

• fine (can reach 1 million rubles);
• confiscation of the instruments of committing or the subject of an administrative offense (for example, a vehicle);
• administrative arrest;
• disqualification;
• administrative suspension of activities (especially unpleasant for industries);
• compulsory work.

The corresponding punishment is applied by a court or an authorized authority depending on the article of the code, which provides for an administrative offense.

The fact is that, although prosecutors can initiate any case of an administrative offense, they will always be considered either in court or in the appropriate authority (for example, Rospotrebnadzor, Rosprirodnadzor, FAS Russia, etc.).

It should also be mentioned that when one violation is identified, decisions to initiate proceedings are often made simultaneously against the head of the organization and the enterprise itself, and the fines for legal entities are much larger than the fines for individuals and officials.

It is difficult to formulate general recommendations here, since it will be necessary to describe all administrative proceedings, taking into account the specifics of each article of the code. However, as a guide to action, I will say the following.

In order to minimize the risks of bringing to administrative responsibility, including by the prosecutor, spare no money and order a full legal audit of the documentation and activities of your organization. It is cheaper than paying fines, stopping production (sales) or being arrested, albeit for up to 15 days.

By the way, our lawyer's office provides this service.

And second, when conducting an audit, I strongly recommend getting a detailed consultation of a competent lawyer in order to understand what negative consequences can be expected following the results of the prosecutor's audit.

In addition, do not forget that the initiated case can be terminated on procedural grounds (the resolution was not drawn up correctly, no explanations were received from the person, the person was not notified of the initiation of the case against him, etc.), and the guilty citizen was released from punishment for various reasons, for example, the expiration of the statute of limitations, violation of the right to defense, lack of guilt, insignificance of the offense committed, etc. A lawyer will also help with this.

Practice shows that quite often the materials of a case on an administrative offense are not always drawn up properly, which makes it possible to subsequently terminate the case in court.

Therefore, we tell our clients that it is more profitable to contact us than to pay the state.

Lawsuit in court. The severity of this measure depends on the subject matter of the claim. However, the law clearly outlines the range of issues on which the prosecutor has the right to take part in the case. In general terms, these are claims for the protection of social and labor rights of citizens, health protection, protection of motherhood, fatherhood and childhood, ensuring the right to a favorable environment, education. Protecting the interests of the state and society as a whole.

In the field of arbitration, these are transactions with any state participation, let's say.

Often, the claims of prosecutors satisfied by the court impose additional financial obligations on the organization to carry out certain actions. For example: the construction of a wastewater treatment plant for discharged wastewater, the installation of ramps and buttons to call personnel for the disabled, the installation of a fire warning system, and more.

However, in addition to the law, certain restrictions are also imposed on prosecutors by departmental legal acts. Thus, clause 8.4 of the order of the Prosecutor General's Office of the Russian Federation of 07.12.2007 No. 195 instructs prosecutors to prevent unjustified interference in the economic activities of enterprises and organizations and the involvement of prosecutors in economic disputes between commercial structures. Clause 8.5 of the aforementioned order directly prescribes to exclude the facts of suspension of production and construction of facilities at the initiative of prosecutors, except in cases of threats to the safety of citizens, clause 8.6 - not to allow the use of the powers of prosecutors to create obstacles to legitimate business activities of participants in economic relations.

Clause 13 of the same order states that when introducing acts of response, it is necessary to assess the possible negative consequences of fulfilling the requirements of the prosecutor, bearing in mind that acts of response should be aimed not at destroying existing legal relations, but at correcting them and bringing them in line with current legislation. ...

In general, this order of the Prosecutor General of Russia is a storehouse of information for preparation for the prosecutor's check and concerns not only the claim work, but also all the supervision activities carried out by the department.

Here's another! In accordance with paragraph 15 of the above order, prosecutors are obliged, when conducting inspections, to exclude cases of demanding unnecessary materials, documents and information that can be obtained directly during an inspection with a visit to the site, they are also instructed not to allow the facts of imposing on organizations and their officials the obligation to submission to the prosecutor's office of information that is not related to the subject of the audit or goes beyond its limits, as well as statistical data not provided for by legislation.

Sending the materials of the prosecutor's check to the preliminary investigation bodies to resolve the issue of initiating a criminal case.

Pay attention to the title. Do you know why it is? Because since 2007, the prosecutor's office has been deprived of the authority to initiate criminal cases, although it supervises their investigation. Strange, yes! However, this is how it is.

Of course, this is the worst thing that a prosecutor's check can end up with. Usually, this direction of materials then turns into a decision to initiate a criminal case. However, this is not always the case.

There is only one advice here - urgently look for a good lawyer in order to have time to build a line of defense and do not rely on "maybe" until everything is started and it is still possible to minimize adverse consequences.

After the materials are received by the investigating authorities, you or your employees will again be summoned for explanations, but not to the prosecutor's office, but to the investigator or interrogating officer. After 10 days, and in case of extension - 30 days, a decision must be made either to initiate a criminal case, or to refuse to initiate it.

Now a few words about the verification procedure itself.

Until recently, the procedural moments here were poorly regulated, therefore, in any disputes in court, prosecutors usually emerged victorious, and most of their claims were recognized as legitimate.

The situation changed after the adoption by the Constitutional Court of the Russian Federation of Resolution No. 2-P of February 17, 2015 on the case of checking the constitutionality of certain provisions of the Federal Law "On the Prosecutor's Office of the Russian Federation". In pursuance of this resolution, the Prosecutor General of Russia issued an order dated May 28, 2015 No. 265.

Here are the main requirements of these documents for the procedure for conducting prosecutorial inspections.

The decision to conduct an audit must be brought to the attention of the head or other authorized representative of the audited organization no later than the day of the start of the audit.

The verification period should not exceed 20 working days, which can be extended once for no more than 20 working days with the simultaneous notification of the person being verified. Subsequent extensions of the term can only be accepted by a higher-ranking prosecutor.

After the completion of the inspection, within 10 working days, the head or other authorized person of the organization is given the right to familiarize himself with the inspection report.

When determining for the organization the deadline for the provision of statistical and other information, certificates, documents, other materials and their copies, prosecutors should be guided by the principle of rationality. Establishing the deadline for the execution of the prosecutor's request in less than one day is possible in the event of a threat of harm to the life and health of citizens, the environment, state security, property of individuals and legal entities, state or municipal property, natural and man-made emergencies.

Based on the foregoing, we conclude that one should not be afraid of a prosecutor's check, although, like any other, one should be prepared in advance.

The law and internal documents of the prosecutor's office impose very much on the implementation of verification measures.

And finally, one more secret: they are very afraid of stories in the media that prosecutors are putting administrative pressure on business. In addition, there is the Prosecutor General's Office of Russia and the court, where you can always write a complaint.

See other articles

Managing partner of Zheleznyak & Partners, Anatoly Romanovich Zheleznyak, has been working in the prosecutor's office for 5 years. Today we will talk with him about what is important to know if a check has arrived. The lawyer will tell you how to properly prepare for the audit and what to look for.

- Anatoly Romanovich, what is the procedure after the firm has received a notice of the start of the audit?

Please read the notice carefully. As a rule, it contains a list of documents and information that you must provide to prosecutors.

Once again about the dismissal. What and how will the prosecutor's office check?

At this stage, it is important to understand what exactly was the basis for checking whether the actions of the supervisory authority are legal, this will be the starting point for the formation of your legal position.

You do not need to provide more documents than requested. Do not hesitate to clarify in what form the documents are needed (copies or originals). Always provide documents with a cover letter or a list and only through the office, with an official mark.

“On-site inspection is a real test for all employees. Often times, leaders start to panic and literally don't know what to grab onto. Some recall the "dashing 90s" and immediately look for intermediaries. How would you advise yourself to behave?

It is necessary to throw out of my head all the illegal options for resolving the situation. Explore the areas in which the reviewers will work. The check cannot be carried out by a continuous method ("We will watch all the activities of your company!"). Prepare, identify the persons responsible for supporting the audit. This way you will be able to control the deadlines for submitting documents and prevent formal violations.

- Does it make sense to immediately contact a lawyer or can you do with the efforts of a full-time lawyer?

Everyone decides this question for himself. Legal resolution of conflict situations with a supervisory agency is a specific area of ​​legal work and is based on many nuances, especially regarding the procedure for conducting an audit. For example, the prosecutor's check is regulated by internal orders, which lawyers do not encounter in their daily work.

In addition, it is necessary to foresee all possible consequences of the audit, including criminal ones. And this is work only for a lawyer.

1. Read the document that served as the basis for the audit.
2. Be sure to record all documents submitted to the inspectors.
3. In case of selection of explanations from you or employees, always take a copy for yourself.
4. Remember that failure to comply with the requirements of the prosecutor entails administrative responsibility under Art. 17.7 of the Administrative Code of the Russian Federation.

What awaits the entrepreneur after the audit?

Based on the results of the inspection, an act must be served, or the person being inspected will be notified of the adoption of prosecutorial response measures. Take the response you take seriously, as it can be a starting point in a chain of negative consequences. Also, be sure to read the materials that passed the test.

Memo. If the prosecutor's check came:

1. If you have received a check from a supervisory authority, there may be several reasons for this:

- scheduled inspection (not to be confused with 294-FZ), in accordance with the work plan of the prosecutor's office;

- execution of the order of the superior prosecutor;

- statement (complaint), information about the violations committed by you;

- there may be other grounds and reasons for initiating an audit that are not obvious at first glance.

As practice shows, the prosecution authorities come when there are grounds. Therefore, this is a serious reason to think about the need to put your activities in order.

1. As a rule, the prosecutor's office independently carries out checks on the most socially dangerous offenses, or - when there is information about the corrupt relationship of the person being checked with the relevant departments, the inaction of officials.
2. The verification period can be up to 30 days (extension is possible in exceptional cases).
3. Failure to comply with the requirements of the prosecutor, obstruction of the inspection entails serious administrative responsibility (Article 17.7 of the Administrative Code of the Russian Federation), up to the suspension of activities.
4. The prosecutor's office should not replace other bodies of state and municipal control. In other words, if they check the consumer's corner, compliance with fire safety legislation, etc. - this may be a violation on their part, since there are departments authorized in these areas.
5. Sometimes inspections are carried out jointly with other bodies involved by specialists. Their participation in the inspection must be justified by officials of the prosecutor's office.
6. The consequences of the check may not be immediately visible. Often, its results are sent to a specialized department (for example, Rosprirodnadzor, the Ministry of Emergencies, the Ministry of Internal Affairs, etc.), which makes a procedural decision on the presence or absence of corpus delicti / crime.

What advice do you have for an entrepreneur?

There is a myth among the business community that it is better not to contradict the requirements of control bodies, especially the prosecutor's office.

Of course, the legal requirements of the authorities must be complied with. But law enforcers are people who tend to make mistakes. Therefore, you should not be afraid to defend your rights and legitimate interests, but you need to do this competently and legally.

Very often people turn to us for correcting errors. When the quick and illegal option "skip the check" only created the appearance of fixing the problem, and after a while the "illness" gave complications.

Therefore, it must be remembered that the main task of the head of the enterprise is not to survive the inspection with minimal losses, but to eradicate violations. Understand how to conduct business in full compliance with the law and not worry when another request comes in.

Protect yourself legally.

In accordance with subparagraph 7 of paragraph 2 of Article 20 of the Federal Law of December 26, 2008 N 294-FZ (as amended on July 3, 2016) "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Exercise of State Control (Supervision) and Municipal Control" ( hereinafter referred to as Law No. 294) gross violations include, inter alia, violation of the requirements provided for in Part 3 of Article 9 of this Law (in terms of conducting a scheduled inspection that is not included in the annual plan for conducting scheduled inspections). Thus, it is illegal to carry out a routine inspection that is not included in the annual inspection plan.

According to paragraph 2 of Article 9 of Law No. 294 scheduled inspections are carried out no more than once every three years unless otherwise provided by parts 9 and 9.3 of this article.

Scheduled inspections are carried out on the basis of annual plans developed by state control (supervision) bodies, municipal control bodies in accordance with their powers (paragraph 3 of Article 9 of Law No. 294).

The annual plans for conducting scheduled inspections of legal entities (their branches, representative offices, separate structural divisions) and individual entrepreneurs indicate the following information:

1) the names of legal entities (their branches, representative offices, separate structural divisions), surnames, names, patronymics of individual entrepreneurs whose activities are subject to scheduled inspections, the location of legal entities (their branches, representative offices, separate structural divisions) or the place of actual implementation of activities by individual entrepreneurs;

2) the purpose and basis of each scheduled inspection;

3) the start date and timing of each scheduled inspection;

4) the name of the state control (supervision) body or the municipal control body carrying out a specific scheduled inspection. When conducting a scheduled inspection by state control (supervision) bodies, municipal control bodies jointly indicate the names of all bodies participating in such an inspection.

The annual plan for conducting scheduled inspections approved by the head of the state control (supervision) body or the municipal control body is brought to the attention of interested parties by posting it on the official website of the state control (supervision) body or the municipal control body on the Internet or in another accessible way.

As follows from paragraph 6 of Article 9 of Law No. 294, before September 1 of the year preceding the year of scheduled inspections, state control (supervision) bodies, municipal control bodies send draft annual plans for scheduled inspections to the prosecutor's office.

Prosecutor's check: combat readiness number 1

The prosecution authorities consider draft annual plans for scheduled inspections for the legality of including objects of state control (supervision), objects of municipal control in them in accordance with part 4 of this article and, by October 1 of the year preceding the year of scheduled inspections, make proposals to the heads of the bodies state control (supervision), municipal control bodies on the conduct of joint scheduled inspections. State control (supervision) bodies, municipal control bodies consider the proposals of the prosecutor's office and, based on the results of their consideration, send to the prosecutor's office by November 1 of the year preceding the year of scheduled inspections, approved annual plans for scheduled inspections.

Attention! The procedure for preparing an annual plan for conducting scheduled inspections, its submission to the prosecutor's office and approval, as well as a standard form for an annual plan for conducting scheduled inspections, is established by the Government of the Russian Federation.

Bodies of the prosecutor's office, by December 1 of the year preceding the year of scheduled inspections, summarize the annual plans for conducting scheduled inspections received from state control (supervision) bodies, municipal control bodies and send them to the Prosecutor General's Office of the Russian Federation for the formation of an annual consolidated plan by the Prosecutor General's Office of the Russian Federation conducting scheduled inspections. The Prosecutor General's Office of the Russian Federation draws up an annual consolidated plan for scheduled inspections and posts it on the official website of the Prosecutor General's Office of the Russian Federation on the Internet before December 31 of the current calendar year.

Based on clause 7.1. Article 9 of Law No. 294, the territorial bodies of federal executive bodies authorized to exercise federal state control (supervision) in the relevant areas of activity, and the executive bodies of the constituent entities of the Russian Federation that exercise the delegated powers of the Russian Federation to exercise such control (supervision) shall submit up to November 1 of the year preceding the year of scheduled inspections, approved annual plans for scheduled inspections to the relevant federal executive authorities.

Federal executive bodies authorized to exercise federal state control (supervision), before December 31 of the year preceding the year of scheduled inspections, draw up annual plans for conducting scheduled inspections in the relevant field of activity, including information on approved annual plans for conducting scheduled inspections submitted by territorial bodies of state control (supervision) specified in part 7.1 of this article. Annual plans for scheduled inspections are posted by federal executive authorities on their official websites on the Internet, with the exception of information, the free distribution of which is prohibited or restricted in accordance with the legislation of the Russian Federation (clause 7.2. Article 9 of Law No. 294).

According to paragraph 8 of Article 9 of Law No. 294, the basis for including a scheduled inspection in the annual plan for conducting scheduled inspections is expiration of three years from the date:

1) state registration of a legal entity, individual entrepreneur;

2) the end of the last scheduled inspection of a legal entity, individual entrepreneur;

3) the commencement of entrepreneurial activity by a legal entity or individual entrepreneur in accordance with the notification submitted to the federal executive body authorized by the Government of the Russian Federation in the relevant area of ​​the commencement of certain types of entrepreneurial activity in the event of the performance of work or the provision of services requiring the submission of the said notification.

Regarding legal entities, individual entrepreneurs engaged in activities in the field of health care, education, in the social sphere, in the field of heat supply, in the field of electricity, in the field of energy saving and energy efficiency, scheduled inspections can be carried out two or more times in three years. The list of such activities and the frequency of their scheduled inspections are established by the Government of the Russian Federation.

The Government of the Russian Federation may establish a different frequency of scheduled inspections in the implementation of types of state control (supervision), determined in accordance with Parts 1 and 2 of Article 8.1 of this Federal Law, depending on the attribution of the activities of a legal entity, individual entrepreneur and (or) used by them production facilities to a certain category of risk, a certain class (category) of hazard.

In accordance with paragraph 12 of Article 9 of Law No. 294 on conducting a scheduled inspection, a legal entity, an individual entrepreneur are notified by a state control (supervision) body, a municipal control body no later than three working days before its start by sending a copy of the order or order of the head, the deputy head of the state control (supervision) body, the municipal control body on the beginning of a scheduled inspection by registered mail with a receipt acknowledgment or in any other available way.

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Who got into the plan of prosecutorial inspections

The consolidated plan of control and audit measures for 2018 was published on the official website of the country's General Prosecutor's Office last year. The global document contains information on the timing, subjects and objects of the planned control activities. It makes no sense to download the inspection plan of the Prosecutor General's Office, it is much more convenient to use an online search.

The service allows you to quickly determine if your organization is on the "lucky list". The search is posted on the website of the Prosecutor General's Office. To check your legal entity, it is enough to enter the full name, OGRN or TIN.

A search by the address of the organization is also provided. However, errors have crept into the directory, so we recommend looking for your institution by TIN.

Organization of prosecutorial inspections

A prosecutor's audit is a set of special measures aimed at exercising control over the implementation of the current legislation by a controlled organization in the process of carrying out financial and economic activities. This set of measures is carried out by the bodies of the Prosecutor's Office of the Russian Federation.

The subject of the prosecutor's audit is the results of the activities of a controlled organization, private entrepreneur, government body or local government in terms of compliance with financial, tax, budgetary legislation, as well as administrative and criminal law.

The procedure for organizing and conducting a prosecutor's audit is not legally established. That is, there is no normative document governing the specifics of such events. When carrying out control measures, the bodies of the Prosecutor's Office are guided by the current Law on the Prosecutor's Office.

Peculiarities of Prosecutor's Inspections

We will define the key features of the organization and conduct of audits of the prosecutor's office:

1. The prosecution authorities independently develop and approve the inspection plan. However, most of the control and audit activities are initiated upon receipt of complaints, appeals and applications from individuals and legal entities.
2. The timing of audits is not limited by law. But usually the prosecutor's audit is completed within 30 days, since this period is set for giving an official response to the application.
3. The subject and scope of the inspection is also not limited by applicable law. Consequently, during the period of the control event, the subject of the audit can be expanded.
4. Any demands of the prosecutor or his representatives must be fulfilled unconditionally. Otherwise, violators will face fines ranging from 50,000 to 100,000 rubles for legal entities, or suspension of activities for 90 days.

Recall that any decision of the prosecutor's office can be appealed. The procedure and terms for filing an appeal are enshrined in the Law of the Russian Federation of 04/27/1993 No. 4866-I and in Chapter 25 of the Code of Civil Procedure of the Russian Federation.

How to prepare for a prosecutor's check

To avoid large fines and punishments based on the results of the prosecutor's audit, it is important to properly prepare for it. We suggest that you familiarize yourself with the key training rules:

1. Specify the subject of the audit activities. Conduct a preventive audit in this area of ​​the organization's activities on its own or with the involvement of outside experts. The identified errors should be corrected in the prescribed manner.
2. Check local regulations that govern the subject of inspection. For example, regulations on wages, orders for the payment of bonuses, incentive and compensatory surcharges. Determine the legality of these orders.
3. Check the presence of signatures of responsible officials on primary and accounting documents. For example, in cash outflow orders or certificates for writing off inventories.
4. Make sure you have all supporting documents.

   Added powers

   For example, checks, receipts or acts of completion. The lack of supporting documents can be regarded as a violation.

5. Check the purpose of the expenses. First of all, pay attention to the subject of contracts, contracts and agreements: they must meet the intended purpose. Otherwise, such expenses are recognized as non-earmarked.

During control activities, do not interfere with the actions of the prosecutor's office. Do not try to hide or falsify the facts of the organization's activities. For such actions, criminal liability is provided, as well as for giving a bribe.

Compliance with procurement legislation is the most relevant subject of prosecutorial inspections.

Regardless of the subject of the planned prosecutor's check, prepare the following documents:

1. The plan of financial and economic activities for the current financial year.
2. Your organization's schedule and procurement plan.
3. Local regulations on the procurement of goods, works and services for the fulfillment of state (municipal) needs.
4. Other documentation regulating the activities of the institution in the field of procurement.

More related articles

Prosecutor's check

Yu.V. Kapanina, expert in accounting and taxation

Is it possible to check the organization on the employee's complaint

The court decisions mentioned in the article can be found: section "Judicial practice" of the ConsultantPlus system

The management of the company needs to live in harmony with its employees. After all, the most “touchy” of them may complain about the employer “where they should be”. And even if the employee is mistaken with the choice of instance, his complaint will be redirected to those bodies that have the authority on his issue. Complaints can be about anything. We will narrow the topic down and talk about late payment of wages or benefits and wages in an envelope. What are the implications of such complaints for the organization? Is it possible to check on a tip?

What do employee complaints lead to?

An employee can report a violation of labor legislation by an employer to various state bodies: to the prosecutor's office, and to the labor or tax inspectorate, and to extra-budgetary funds.

Government agencies respond to complaints and applications from citizens by conducting inspections of their employers.

ATTENTION

The position of the regulatory authorities: compensation for delayed wages cannot be taken into account in expenses for the purposes of income tax Letter of the Ministry of Finance dated 31.10.2011 No. 03-03-06 / 2/164... But the judicial practice on this issue is developing in favor of the taxpayer in Resolutions of the FAS PO dated 30.08.2010 No. A55-35672 / 2009; FAS MO dated 11.03.2009 No. KA-A40 / 1267-09.

If an employee informs about "salary" problems at the enterprise, the inspectors will most likely require labor contracts, orders for personnel (on hiring, dismissal, transfers), everything related to wages and payments upon dismissals (provisions on bonuses, on allowances or other local regulations), pay sheets, various accounting journals, payroll statements and other documents according to the situation. And if violations are revealed during the audit, both the company and its manager can be fined.

If it turns out that the employer does not pay wages (or benefits) on time, then, in addition to the delayed wages (or benefits), he will be obliged to pay the employee compensation in the amount of not less than 1/300 of the refinancing rate in force during the delay, of the amounts not paid on time NS Art. 236 of the Labor Code of the Russian Federation... The obligation to make such payment arises regardless of whether the employer is at fault. That is, orders to pay salaries later than the deadline (even if they are signed by employees), or the difficult financial situation of the organization, or any other "valid" reasons will not save you from liability. p. 55 of the Resolution of the Plenum of the Armed Forces of March 17, 2004 No. 2.

But finding gray salary schemes in a company and proving the fact of their application is quite problematic. After all, supporting documents (for example, unofficial payrolls with unrecorded salaries) will be carefully hidden. And the complaining employee (for example, upon dismissal, he received only the amount specified in the employment contract, and the monthly supplement "in the envelope" - no), most likely, will not have any documents either.

Who can come with a check

Prosecutor's office

Any complaint of an employee can become a reason for a prosecutor's check. That is, the prosecutor's office may be equally interested in both delayed payment of wages or benefits, and shadow wages. In many cities of Russia, on the basis of the prosecutor's office, there are even hotline telephones that receive applications from citizens related to violations of the labor contract and payment of wages "in an envelope".

The Prosecutor General's Office maintains statistics on the prosecution of officials (both administrative and criminal) for various violations in the field of wages: website of the Prosecutor General's Office→ Interaction with the media → News archive of 23 July 2014

When considering appeals of citizens, the prosecutor's office has the right to request from the heads of organizations (and other officials) any documents and explanations necessary to resolve issues on complaints e clause 1 of Art. 22 of the Law of 17.01.92 No. 2202-1 (hereinafter - Law No. 2202-1); p. 4.2 Instructions, approved. By order of the Prosecutor General's Office dated January 30, 2013 No. 45... The required documents must be submitted within 15 calendar days from the date of receipt of the request. clause 2 of Art. 10 of the Law of 02.05.2006 No. 59-FZ.

The prosecutor's office can also conduct an inspection on the territory of the enterprise p. 4.3 Instructions, approved. Order of the Prosecutor General's Office dated 30.01.2013 No. 45; clause 2 of Art. 9 of the Law of 02.05.2006 No. 59-FZ... As a rule, you will find out about this only at the moment of appearance at the office of an employee of the prosecutor's office, presenting an official ID. The prosecutor will not show you any more documents (resolutions, orders, orders) on the beginning of the inspection (and you also have no reason to demand them). The organization is not previously informed about such a check. clause 1 of Art. 22 of Law No. 2202-1.

Since it is not known in advance what was the reason for the check, it will not work to spread the straw. What documents need to be prepared, you will learn only from the inspectors. After all, having come with a check on a specific complaint, the prosecutor can check anything. The only limitation is the availability of the time and desire of the prosecutor himself.

Based on the results of the check, the prosecutor does not draw up an act, as is done when checking by other regulatory authorities. The employer can only wait for the prosecutor's response.

In the event of violations of the law, the prosecutor may:

• bring to the head protest to a local act of organization that contradicts the law Art. 23 of Law No. 2202-1... For example, the manager issued an order according to which the salary is paid once a month. The protest is subject to compulsory consideration within 10 calendar days from the date of its receipt. The company must report the results of its consideration to the prosecutor in writing. This may be an order from the head to cancel or amend a document that has been protested. If the manager does not agree with the protest, then within the same time frame it is necessary to prepare a written reasoned response;
• to make performance with the requirement to eliminate the violations Art. 24 of Law No. 2202-1... And you need to eliminate them within a month. The results of the measures taken must also be reported to the prosecutor in writing. In this document, it is necessary to reflect what exactly was done to eliminate violations (for example, wage arrears to employees were repaid);
• take out decree on the initiation of proceedings in the case of an administrative offense under Art. 5.27 of the Administrative Code. Further, for its consideration, the prosecutor's office sends this decision to the authorized body Art. 25, paragraph 3 of Art. 27 of Law No. 2202-1... Cases on violations of labor legislation e h. 1 tbsp. 5.27 of the Code of Administrative Offenses of the Russian Federation are reviewed by state labor inspectors Art. 23.12 Administrative Code of the Russian Federation as well as ships and h. 2 tbsp. 23.1 Administrative Code of the Russian Federation.

For violation of labor laws threatens the penalty Art. 5.27 of the Code of Administrative Offenses of the Russian Federation:

• for organizations - from 30,000 to 50,000 rubles;
• for officials and individual entrepreneurs - from 1000 to 5000 rubles.

If executive has already been subject to administrative liability for a similar offense and at the same time, 1 year has not passed since the date of completion of the execution of the previous resolution Art. 4.6 of the Administrative Code of the Russian Federation; nn. 16, 17 Resolutions of the Plenum of the Armed Forces of March 24, 2005 No. 5 then it can be disqualified for a period from 1 to 3 years.

If this is a repeated similar violation h. 2 tbsp. 5.27 of the Code of Administrative Offenses of the Russian Federation, then in such cases labor inspectors draw up protocols item 16 h. 2 art. 28.3 of the Administrative Code of the Russian Federation, and these cases are considered by the judge and h. 1 tbsp. 23.1 Administrative Code of the Russian Federation.

Requirements of the prosecutor arising from his powers Art. 22 of Law No. 2202-1, are subject to unconditional execution within a specified period clause 1 of Art. 6 of Law No. 2202-1... Deliberate failure to comply with them may result in a fine Art. 17.7 of the Administrative Code of the Russian Federation; Resolution of the Arkhangelsk Regional Court dated 03.04.2013 No. 4a-139/13:

• organizations - from 50,000 to 100,000 rubles;
• officials - from 2,000 to 3,000 rubles.

I would like to note that on the received appeals, the check will not necessarily be carried out by the prosecutor's office itself - this can be done by other bodies (for example, the labor inspectorate) at the request of the prosecutor.

Labor Inspection

If a citizen has written a complaint about the violation of his rights to the labor inspectorate, then an unscheduled field inspection may be appointed. As a general rule, the labor inspectorate notifies the organization of an unscheduled field inspection at least 24 hours before its start by any available means h. 16 art. 10 of the Law of December 26, 2008 No. 294-FZ... However, if an employee receives an appeal about a violation of his labor rights or about the facts of violations by the employer of the requirements of labor legislation, which entailed the emergence of a threat of harm to the life and health of employees, the employer must not be notified of the inspection. h. 9 art. 360 of the Labor Code of the Russian Federation... Non-payment of wages is a violation that poses a threat to the health of the citizen p. 5.3 of the Methodological Recommendations, approved by By order of Rostrud dated 24.01.2011 No. 14... Such an unscheduled inspection can be carried out immediately, without the consent of the prosecutor's office. h. 8 art. 360 of the Labor Code of the Russian Federation.

How to organize work with personnel documentation in order to avoid "labor" fines, read:

During the visit, the labor inspector is obliged to show the employer his service certificate, as well as an order (order) to conduct an inspection. It should clearly establish the subject of the audit and the timing of its implementation.

Having come to an unscheduled inspection, the inspector will check the facts stated in the complaint, since this inspection is the target p. 5.2 of the Methodological Recommendations, approved by By order of Rostrud dated 24.01.2011 No. 14.

FROM AUTHORIZED SOURCES

Deputy Head of the Federal Service for Labor and Employment

“In the event of a complaint from an employee, the subject of an unscheduled check will be facts of non-compliance by the employer with the requirements of labor legislation in relation to this employee. At the same time, documents related to this particular employee will be checked. Since state labor inspectors do not have the right to demand the submission of documents, information, if they are not objects of inspection or do not relate to the subject of inspection.

If during the inspection the inspector detects violations that are not related to the subject of the inspection, this may become a reason for initiating another unscheduled inspection. After all, the basis for its implementation may be information (including received from officials of the federal labor inspectorate) on the facts of violations by employers of labor law requirements, including labor protection requirements, which led to the emergence of a threat of harm to the life and health of the employee. "

Here I would like to note that a complaint about a gray salary is unlikely to interest the labor inspectorate. Since upon receipt of such information, only this issue will have to be checked. However, as we said above, it is rather difficult to identify and prove such violations. Therefore, the subject of an unscheduled inspection by the labor inspectorate will be to check information about delays in the payment of wages, rather than about wages "in an envelope".

But inspectors can check any time period of the company's activity, not limited to the usual 3 years, and any documents related to labor relations, but only within the subject of inspection.

Based on the results of the inspection, the inspector draws up an act, which indicates the identified violations. An order to eliminate violations is attached to the inspection act, which is subject to mandatory execution. Failure to do so is subject to a fine under Art. 19.5 of the Administrative Code of the Russian Federation.

WARNING THE LEADER

Failure on time government regulations on the elimination of violations entails a fine Art. 19.5 Administrative Code of the Russian Federation:

• for organizations - from 10,000 to 20,000 rubles;
• for officials - from 1000 to 2000 rubles.

From January 1, 2015 the fine for non-compliance with the labor inspection order make up t Clause 5, Art. 11, paragraph 2 of Art. 15 of the Law of 28.12.2013 No. 421-FZ:

• for organizations - from 100,000 to 200,000 rubles;
• for officials and individual entrepreneurs - from 30,000 to 50,000 rubles.

Also, the labor inspector can fine the organization and the head under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation Art. 357 of the Labor Code of the Russian Federation; Art. 23.12 Administrative Code of the Russian Federation.

Please note that if during the inspection the labor inspector reveals a delay in the payment of salaries to several employees, then this will be regarded as different violations Resolution of the Armed Forces of 15.08.2014 No. 60-AD 14-11... Let's say a company employs 20 people. Then the total amount of fines may turn out to be rather big - at least 600,000 rubles. (30,000 rubles x 20 violations).

To check the fulfillment of the issued order by the employer, the labor inspector may later come to the organization with an unscheduled check. clause 2 of Art. 10 of the Law of December 26, 2008 No. 294-FZ... Perhaps, if you fulfill the order on time and submit supporting documents to the labor inspectorate, this will save you from the inspectors coming again.

Tax office

Tax officials have always shown interest in the size of salaries in organizations. Having received information about the payment of wages by the company "in an envelope", the tax authorities did not leave it unattended. p. 5 of the Public Criteria for Risk Assessment, approved. By order of the Federal Tax Service dated May 30, 2007 No. MM-3-06 / [email protected] ... That is, the Inspectorate of the Federal Tax Service will react to the complaint of an employee, but not in the same way as the prosecutor's office or labor inspectorate. From reliable sources, we learned the algorithm of inspection actions.

Before coming with an audit (or at least including the company in the audit plan), the tax authorities will study the information received. To do this, the inspectorate will call the complaining employee (and maybe other employees of the company) to conduct a survey. Note that the courts often refuse to support tax officials in support of additional charges based only on interrogations of employees of the organization as witnesses. Resolutions of the FAS PO dated 08.08.2012 No. A12-12839 / 2011, dated 05.03.2013 No. A65-18177 / 2012... However, there are court decisions in favor of the inspectors, especially if there is other evidence as well. Resolutions of the FAS MO dated 18.01.2012 No. A40-71623 / 10-111-46; FAS DVO dated 11.04.2012 No. F03-501 / 2012.

The head of the company will also be summoned to give explanations to the "salary" commission.

If an employee complains to the Federal Tax Service, then the chances of the organization to be checked in this case are significantly increased.

If the company is included in the audit plan, most likely, a comprehensive field audit will be assigned for all taxes, and not only for personal income tax.

READER'S OPINION

“A former employee complained about us to the labor inspectorate. The inspectorate summons to him with "salary" documents. We pay salaries on time, but the trouble is that employees do not always sign on the statements. That is, during verification, we will be forced to pay amounts that are not confirmed by signatures. Moreover, they will be fined.
This is what they advise me. If a former employee is ready to refuse a complaint for a certain amount, then it is better to negotiate with such a "blackmailer" than to meet with a labor inspector. After all, checking takes a lot of time and nerves. "

Svetlana,
chief accountant, Moscow region

If the tax authorities identify and prove that the company did not fulfill its obligations to withhold and transfer personal income tax from a gray salary to the budget, the organization may be charged a fine of 20% of the amount of personal income tax to be withheld or transferred Art. 123 of the Tax Code of the Russian Federation, and also charge her a penalty Art. 75 of the Tax Code of the Russian Federation.

But in practice, the tax office does not often receive complaints about the payment of gray wages. After all, many people know that for the employees themselves, who receive wages "in an envelope", responsibility is also provided. FTS explained a Letter of the Federal Tax Service dated 02.12.2009 No. 3-5-04 / 1774 that an employee who received income from which personal income tax was not withheld is obliged to independently submit an income tax return and pay tax sub. 4 p. 1, p. 4, art. 228, paragraph 1 of Art. 229 of the Tax Code of the Russian Federation... If this is not done, the tax authority has the right to collect personal income tax from the employee, calculated from the unofficial part of the salary, and charge penalties and fines. Art. 75, paragraph 1 of Art. 119 of the Tax Code of the Russian Federation; Art. 198 of the Criminal Code of the Russian Federation.

Will the tax authorities be interested in information about delays in the payment of wages or benefits? Most likely no. The Inspectorate is worried about the receipt of taxes, namely that the personal income tax must be transferred on time. The obligation to transfer personal income tax to the budget arises from the tax agent only after the actual tax deduction from the income paid by the employee to Letter of the Federal Tax Service dated 25.07.2014 No. BS-4-11 / [email protected] ... Therefore, until the salary is paid, personal income tax cannot be paid.

FSS and FIU

Also, inspectors from extra-budgetary funds, who control the payment of insurance premiums, can check with you. After all, the payment of salaries "in an envelope" means that the company underestimates the base for calculating contributions. Such information will certainly interest the FIU authorities, and it can be taken into account when planning on-site inspections.

FROM AUTHORIZED SOURCES

Deputy Manager of the Department of the Pension Fund of the Russian Federation for Moscow and the Moscow Region

“If the FIU receives a complaint from employees about the payment of wages“ in an envelope ”, this may serve as a reason to include the company in the audit plan. In this case, verification is usual, it does not differ from others in the way of carrying out and formalizing the results. At the same time, I would like to note that the FIU cooperates with the tax authorities in order to identify gray salary payment schemes. And to a greater extent, we conduct checks on this topic with them. "

But the FSS, having received a complaint from an employee about non-payment of benefits or its incorrect amount, has the right to conduct an unscheduled on-site inspection (without the participation of the FIU) No. 255-FZ the course of inspections questions.

As a rule, upon receipt of a complaint from an insured person about non-payment of compulsory social insurance benefits, a thematic check is carried out. ”

They also explained to us what exactly they will check if a thematic check is scheduled.

FROM AUTHORIZED SOURCES

POZDNYAKOVA Irina Vladimirovna

Deputy Head of the Department for Organizing Insurance for Temporary Disability and Maternity Insurance of the Federal Security Service of the Russian Federation

“When conducting an unscheduled on-site inspection on the complaint of an employee about the incorrect calculation of benefits for compulsory social insurance h. 3 tbsp. 4.7 of Law No. 255-FZ the correctness of the calculation and payment of benefits by the employer in relation to the applied employee or the persons indicated in the complaint is checked. At the same time, the law does not restrict the right of the executive body of the insurer to check on this complaint the correctness of the expenses of the insured for the payment of insurance coverage for other employees, including during this unscheduled field inspection.

Also, this organization can be included in a joint plan of on-site inspections with the FIU. Art. 33 of the Law of 24.07.2009 No. 212-FZ (hereinafter - Law No. 212-FZ)” .

You may not know about the check in advance, since the FSS authorities are not obliged to notify you.

During the inspection, the supervisors will ask for all documents related to the payment of benefits. However, the audited period should not exceed 3 years.

Based on its results, an act is drawn up. In the final part of the act, the inspectors indicate proposals for eliminating the identified violations.

If, for example, the FSS during the audit reveals the payment of benefits in a smaller amount, the employer will be obliged to:

• pay in addition to the incorrectly paid benefit;
• reflect expenses in the payroll in the form-4 of the FSS for the period in which additional payments will be made a par. 16 p. 18 Methodical instructions, approved. By the decree of the FSS dated 07.04.2008 No. 81... At the same time, fine for the delay in the payment of benefits or for their payment in a smaller amount under Art. 5.27 Administrative Code The Fund cannot, this is a privilege of the labor inspectorate.

If, during the audit, auditors from extra-budgetary funds reveal non-payment of insurance premiums due to an underestimation of the calculation base (say, in the case of a gray salary), then the company will have to pay a fine Art. 47 of Law No. 212-FZ... In this case, the amount of sanctions will be 20% of the unpaid amount of insurance premiums. If the inspectors consider that the organization has deliberately underestimated insurance premiums, then the amount of the fine will increase to 40% h. 1, 2 tbsp. 47 of Law No. 212-FZ... In addition, regulatory agencies will charge companies with penalties. h. 1 tbsp. 25 of Law No. 212-FZ.

Even the most experienced accountants are shivering at the word “check”. And not only because of the fear of finding errors, but also because of the huge volume of documents that need to be prepared for the inspectors within a certain period of time. If your boss tells you, for example, that there is a delay in wages this month, tell him about the consequences of not complying with labor laws.