Name of the Republic of Moldova
of January 30, 2018 No. 2
About exceptional case of illegality of some provisions of Art. 10 of item 4 of the Law No. 845-XII of January 3, 1992 on entrepreneurship and the companies (the address No. 154g/2017)
Constitutional court in structure:
Tudor Pantsyru, chairman,
Auryl to Beesh,
Vyacheslav Zaporozhan, judges,
with the assistance of the secretary of meeting Marcella Lupu,
in view of the address provided and registered on November 30, 2017
having considered the specified address in open plenary meeting, considering acts and case papers,
having carried out discussion in the consultative room on January 30, 2018,
issues the following decree.
Points of order
1. The address about exceptional case of illegality of syntagma the "implementation of activities without license" in item 4 of Art. 10 of the Law No. 845-XII of January 3, 1992 on entrepreneurship and the companies provided at the request of the lawyer Alexander Tenase within the case No. 3-694/17, considered by court of Chisinau, the sector Buyukan formed the basis for consideration of the case.
2. The address was brought into the Constitutional court on November 30, 2017 by the judge Mihai Murgulets, based on Art. 135 of the h. (1) the item and) and the item g) Constitutions, in the light of its interpretation by the Resolution of the Constitutional court No. 2 of February 9, 2016, and also Regulations on procedure for consideration of the addresses brought into the Constitutional court.
3. The author of the address considers that he the challenged provisions according to which for implementation of business activity without license the penalty in the amount of gained gross income is imposed contradicts Art. 1 of the h. (3), Art. 21, Art. 23 and Art. 46 of the Constitution.
4. Determination of the Constitutional court of December 15, 2017, without decision in essence, the address was acknowledged acceptable.
5. During consideration of the address the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova and the Government.
6. In open plenary meeting of the Constitutional court the address was supported by the lawyer Elena Muntyanu, the representative of the author of the address.
7. From Parliament the chief of service of representation took part in the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament, Valeriu Kuchuk.
Circumstances of the main dispute
8. The decision of June 20, 2017 General Tax Administration of the southern region, based on Art. 10 of item 4 of the Law on entrepreneurship and the companies, imposed penalty for implementation of business activity without license, in particular, for implementation of motor transportation transportation of goods on paid basis, on GBA Trans LLC.
9. This company made on July 19, 2017 in the State Tax Administration the complaint with the requirement to cancel the above-stated decision.
10. The decision of August 17, 2017 the State Tax Administration rejected the claim of GBA Trans LLC.
11. The company took a legal action on September 20, 2017 Chisinau, sector Buyukan, with the action for declaration against the Main state tax authorities, requiring to cancel the decision of General Tax Administration of the southern region of June 20, 2017 and the decision of the State Tax Administration of August 17, 2017.
12. During judicial session of November 27, 2017 the lawyer provided to Alexander Tenase request about exceptional case of illegality of syntagma "implementation of activities without license" to item 4 of Art. 10 of the Law No. 845-XII of January 3, 1992 on entrepreneurship and the companies.
13. The degree of jurisdiction satisfied with determination from the same number request and sent the appeal about exceptional case of illegality to the Constitutional court for permission.
14. Applicable provisions of the Constitution (repeated publication in M.O., 2016, No. 78, the Art. 140):
Article 1. State Republic of Moldova
(3) the Republic of Moldova - the democratic constitutional state in which advantage of the person, its rights and freedom, free development of the human person, justice and political pluralism are the supreme values and are guaranteed".
Article 20. Open entry to justice
"(1) Any person has the right to effective recovery in the rights by competent courts in case of violation of its rights, freedoms and legitimate interests.
(2) Any law cannot limit access to justice".
Article 23. Right of each person to knowledge of the rights and obligations
"(1) Each person has the right to recognition of its legal personality.
(2) the State provides the right of each person to knowledge of the rights and obligations. For this purpose the state publishes all laws and other regulations and provides their availability".
15. Applicable provisions of the Law No. 845-XII of January 3, 1992 on entrepreneurship and the companies (M.O., 1994, No. 2, Art. 33):
Article 10. Regulation of business activity
4. For implementation of activities without license or implementation of the activities prohibited in the territory of the Republic of Moldova, and also permited exclusively state companies the State Tax Administration, the Agency of the state services or other representative to grant licenses the body impose penalty in the amount of the gross income gained as a result of such activities from realization.
16. Applicable regulations of the Code of the Republic of Moldova on offenses No. 218-XVI of October 24, 2008 (repeated publication in M.O., 2017, Art. No. 78-84, 100):
Article 197. Violation of regulations of motor transportation transportations of passengers and loads
(3) Implementation of motor transportation transportation of goods on paid basis without license for motor transportation transportations
attracts imposing of penalty on physical persons in the amount of 60 to 90 conventional units and on legal entities in the amount of 210 to 300 conventional units with suspension in both cases of right to use of the road vehicle for the term of 6 months.
[Part (3) Art. 197 in the edition preceding entry into force of the Law No. 295 of 21.12.2017]
Article 263. Illegal implementation of business activity
(4) Implementation of business activity without the permission, licenses or the certificate issued by competent authority based on the law
attracts imposing of penalty in the amount of 60 to 180 conventional units.
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