Original scientific article Employer’s Abuse of the Right to Labour Management

Introduction. In the process of employees’ labor managemeint, it is possible that the employer uses formally legitimate powers to harm the employee, therefore the article is devoted to studying the problem of employer’s abuse of the right to manage labor. Purpose. Give a legal description of the employer’s abuse of the right to manage labor in the exercise of discretionary powers, determine the relationship between the category of abuse of the right and discrimination in labor relations, and determine the consequences of such abuse, if a gap is identified in the legal regulation of problematic relations between the employer and employees, propose a draft of norms supplementing the Labor Code of the Russian Federation, ensuring proper protection of the rights and legitimate interests of the employees. Methodology. In addition to general scientific methods (analysis, synthesis, analogy), private scientific methods were also used, such as formally legal, systemic and comparative legal. Results. The right to labor management consists of normative permissible powers, with the help of which the operational management of labor is carried out. The exercise of formally legitimate powers with the aim of harming an employee is an abuse of the employer's right to manage labor, so the employer’s unlawful motive is a constituent element of abuse of the right. Actions, the result of which is a violation of the rights of workers, are not an abuse: they should be attributed to discriminatory actions, since the exercise of the right cannot entail a violation of another right. It is concluded that the current legislation does not provide a mechanism to protect employees from abuse by the employer. An analysis of the norms of the Civil Code of the Russian Federation shows that abuse of law is a form of unfair behavior, the principle of good faith is a general legal principle, and the existence in the Labor Code of the Russian Federation of norms providing for special consequences of unfair behavior of the parties to labor relations would help in solving the identified problem. A draft of norms supplementing the Labor Code of the Russian Federation designed to ensure adequate protection of the interests of employees from abuse of rights by the employer is proposed. Conclusion. Both in the doctrine and in practice, there is a confusion of the concepts of employee discrimination and abuse of law by the employer. From the point of view of the theory of law, it is necessary to distinguish between these categories, and the legislation should contain adequate mechanisms to protect employees from abuse of law by the employer.

Postautorytarna trauma jako czynnik sprawczy przemian mechanizmu przedawnienia roszczeń w Polsce. Część 2

The first part of the article characterizes the change in the provisions concerning the way of taking into account the expiration of the limitation period of claims, which took place in 1990, as well as the basic aspects related to the functioning of two competing solutions in the discussed issue, i.e. taking into account the expiration of limitation period of claims by the court ex officio or on the defendant’s plea. This second part of the article presents the practice of applying the solution introduced in 1990, including the assessment by the courts of the plea of limitation raised by the defendant in terms of whether it constitutes an abuse of law. Some irregularities that emerged in connection with the functioning of the electronic writ of payment were also indicated. Attention was also paid to the aspect of the sometimes expressed social attitude in the analyzed matter and the amendment to the provisions on the limitation of claims made by the Act of April 13, 2018. The latter regulation caused that now, in relation to claims pursued by entrepreneurs from consumers, the court must ex officio take into account the expiration of the limitation period of claim. The considerations end with reflections on the causes and effects of the phenomenon of the return, albeit partial, to such a solution. After all, it was first rejected in 1990 as a normative structure functioning in an authoritarian state, and in a significant period even totalitarian (as discussed in more detail in the first part of this article), and now in 2018 it has been restored with regard to claims pursued by entrepreneurs from consumers.

Legal anomalies within human rights implementation in court: Ukrainian heritage and perspectives

The law is a regulator of relations based on an orderly, generally accepted system of ideas and norms for the behaviour of subjects in a particular relationship. A large number of regulations, which are an external reflection of the content of law, sets the boundaries of such behaviour, but under the influence of relevant factors that have a subjective and/or objective nature, there are cases of deviation from generally accepted regulations, the so-called legal anomalies that occur in the exercise of a person’s rights in court. This article contains an analysis of current legal anomalies that may arise in the exercise of a person’s procedural rights in the administration of justice, given the reasons that provoke their occurrence. Both legal anomalies related to the subject of realisation of rights in court and anomalies that indirectly affect the possibility and completeness of such realisation were subject to research. The authors assessed the phenomenon of abuse of law, legal nihilism of the participants in the process, inconsistencies of judicial practice, etc., in terms of classifying such phenomena as legal anomalies. The possibility of recognising a legal anomaly at the legislative level (abuse of law) and the transformation of a legal anomaly into a rule of procedural law (written proceedings) is investigated. Variants of vulnerabilities of the modern mechanism of administration of justice are offered, where there is a high probability of emergence of new legal anomalies in the sphere of realisation of the rights of the person at protection by a court of the broken, unrecognised, or disputed rights.

Countering the corporate tax avoidance in the Court of Justice of the European Union practice

The article contains the analysis of extensive CJEU practice regarding the issues of countering corporate tax avoidance, and legal framework, mostly the provisions of the Treaty on the Functioning of the European Union and Directives.The purpose of this paper is to conduct a comprehensive research of the issues of countering the corporate tax avoidance in the CJEU practice. For this reason the authors set the following tasks: (1) to consider the concept of abuse of law, developed by the CJEU practice, with respect to corporate tax avoidance; (2) to identify the interaction between national anti-avoidance rules and fundamental freedoms of the internal market as established by the CJEU practice; (3) to study the CJEU practice concerning the implementation of tax directives and the application of anti-avoidance measures; (4) to identify the main features of the Directives "Anti-Tax Avoidance Directive" (ATAD) in terms of their potential impact on the development of the CJEU practice.The research methodology includes the application of both general methods of formal logic (including analysis, synthesis, deduction and induction) and special legal methodology (formal legal and comparative legal methods).The main results of the study. The CJEU has repeatedly considered the problem of conflict of national anti-avoidance rules with the fundamental freedoms of the EU internal market. The conflict between these rules is resolved in different ways depending on the type of antiavoidance rules: (1) national rules aimed at countering the abuse of law, and (2) national rules developed to counter tax avoidance, which are strictly applied according to formal criteria, without any requirement to prove abuse of law in a particular situation. The application of national anti-avoidance rules may provide for the exemptions from the regime of fundamental freedoms of the internal market. Where national anti-avoidance rules are not aimed at combating wholly artificial arrangements, but are applied mechanically, due to formal criteria, such rules should apply subject to the legal regime of fundamental freedoms. The CJEU held that the concept of beneficial owner should be applied not only to interest and royalties, but also to the distribution of profits, despite the fact that the provisions of the Parent-Subsidiary Directive do not contain such a concept. EU law prohibits the granting of state aid. National anti-avoidance rules and law enforcement practice may be subject to such a prohibition in cases where they create positive discrimination.Conclusions. When implementing the provisions of the ATAD 1-2, the EU Member States committed numerous breaches of the EU law. It therefore can be expected that the CJEU practice regarding the proper implementation of the Directives may appear in the near future. The general prohibition of abuse of EU law shall apply, even in cases where the EU Member State has not implemented the anti-avoidance mechanisms of tax directives into its national law. The general prohibition of abuse of EU law shall apply despite the principle of legal certainty, which precludes directives from being able by themselves to create obligations for individuals, so the directives cannot be relied upon per se by the Member State as against individuals. Sections 1−2 were contributed by S.G. Sokolova, 3−4.1 by D.M. Osina (section 4.1 in collaboration with K.A. Tasalov), 4.1−7 by K.A. Tasalov (section 4.1 in collaboration with D.M. Osina).

Abuse Issue in Labor Relations

Based on an analysis of the provisions of the legislation, the law enforcement acts of the courts, the essence of the legal phenomenon of abuse, as well as the problems associated with the application of provisions on abuse of law in the field of labor legal relations, are investigated. Based on examples from judicial practice, the paper substantiates the absence of a formally defined approach to the application of the principle of inadmissibility of abuse, as well as its superficial understanding. The paper reveals the issues of theoretical heterogeneity of the intersectoral concept of abuse of law in domestic science, as well as the understanding of the concept of "abuse" and its elements existing in the science of labor law. In addition, the possibility of highlighting this type of abuse as abuse of power (opportunities) is being considered. The expediency of the development of an integrated cross[1] sectoral system of views and legal norms in relation to abuse in law is substantiated, giving answers to questions about the place of abuse in the system of legal behavior, its means and the system of effective measures of responsibility.

Abuse of the Rights of the Taxpayer

Statement of a problem. The design of abuse of law, first developed for the sphere of private law, was further transferred to the sphere of public law. But this does not make it possible to equate abuse of law in private and public relations. There is a fundamental difference between them due to the nature of the regulated relations, the specificity of the methods of legal regulation. The process of shaping and developing perceptions of the possibility of abuse of rights in the field of taxation has gone through a complex, contradictory path of development. Initially, the Constitutional Court of the Russian Federation effectively recognized that the category «abuse of the right» did not apply to taxpayers. However, the need to find a balance between public and private interests required the development of fundamentally new approaches, naturally derived from the content of general and special principles of tax law. The aim and objectives of the study is to carry out a systematic analysis of the peculiarities of taxpayers» abuse of their subjective rights. Methods. Methods of knowledge of legal reality are used general (dialectic), general scientific (the analysis, synthesis, classification, generalization, the description) and private and scientific (legallistic, interpretation methods) when carrying out a research. Conclusions. Abuse of tax law is a particular form of tax offences. Unlike the offences of the classical kind, its wrongfulness, the public danger is veiled as the subject tries to take his behavior into legal form. Abuse of the law in the field of taxation is an illegal socially dangerous act of the taxpayer, in the sense that the person, based solely on his own interests, deliberately goes beyond the limits of a legally defined measure of possible behavior, while unduly reducing the measure of his proper behavior and the measure of possible behavior of other participants in tax legal relations. The courts, given the nature of the abuse committed, may deny a person the protection of his subjective right in whole or in part; Oblige a person to comply with his or her tax obligation; To decide on compensation for the damage caused to the public interest in the form of an accrual and recovery of penalties for late payment of fiscal payments and tax sanctions – fines for improper performance of public legal obligations in the field of taxation.

ABUSE OF LAW IN BANKRUPTCY OF LEGAL ENTITIES AND CITIZENS: COMPARATIVE ANALYSIS

The article deals with the abuse of law typical for all debtors: the artificial creation of debt, the reduction of the bankruptcy estate by alienating the liquid property of the debtor. Based on the results of the study, the author identifies the features of abuse of law that are characteristic only for the bankruptcy of organizations, in particular, the use of corporate relations, falsification of accounting documents and the features of abuse of law that are identified only in the bankruptcy of citizens - the debtor's investment in expensive residential premises related to the only housing of the debtor.

Abuse of law as a prerequisite for the criminalization of a socially dangerous act

Within components of a crime, the abuse of law can be presented as a method or content of illegal behavior. The assessment of these circumstances in law lacks consistency, which necessitates their analysis in the context of general rules of criminalization. To optimize criminal and legal means of preventing the abuse of law, it is necessary: 1) to oppose general rules on the abuse of law in communication between private entities to general rules on responsibility for the abuse of law in interaction with state institutions; 2) to limit general rules on liability for the abuse of law to the violation of the established procedure for realizing subjective rights inherent in a person; 3) to assess such violations according to the rules applicable to the totality of the crimes committed if the consequences of the abuse of law exceed the danger of the abuse itself.

ABUSE OF THE RIGHT AND JUDICIAL ERRORS IN THE EXERCISE OF DISCRETION BY THE JUDGE IN THE CONSIDERATION OF CRIMINAL CASES WITH THE CONSENT OF THE ACCUSED WITH THE CHARGE BROUGHT AGAINST HIM

The article examines the categories of "abuse of law" and" miscarriage of justice", as well as the factors contributing to their occurrence, reveals the mechanism of occurrence of miscarriages of justice, the sources and causes of their occurrence. The author substantiates the claim that the defect of interest, as an aspect of law enforcement, causes the occurrence of abuse and can cause a miscarriage of justice. The main characteristics of a miscarriage of justice, as well as the signs that distinguish a miscarriage of justice from abuse, are revealed. The definition of "abuse of the right" is given, its properties and features are revealed. The article analyzes the peculiarities of committing judicial errors and abuses under a special procedure of judicial proceedings.

Regarding Scientific Discussion on Legal Nature of the Law Abuse

The authors have analyzed the facts inherent in the equitable right that can lead to abuse of law. It has been emphasized that the legal literature has no single approach to the definition of the term of “law abuse”. However, there is a number of factors that influence the existence of such a specific phenomenon as “law abuse”. Attention has been paid to the species classification of law abuse. It has been noted that depending on what public relations are harmed in the process of exercising the right contrary to its purpose, law abuse can be divided into lawful (legal) and illegal. The general characteristic of lawful (legal) and illegal abuse of law has been presented; their features have been named. It has been emphasized that abuse of law can also be classified by the branch (abuse of property rights, abuse of rights in criminal law, white collar crime within public administration sphere). Attention has been paid to the fact that each of the forms of law abuse can be divided into types and subspecies depending on the means of abuse, i.e. depending on the type of equitable right or jurisdiction as elements of legal capacity, which are abused. As a result, it has been concluded that the peculiarities of modern legislation, in particular the presence of conflicting rules, gaps and contradictions, can lead to abuse of law. This is mainly the case when the equitable right corresponds to an obligation for non-fulfillment of which there is no legal liability at the level of legislation. As a result, it has been noted that law abuse can be currently classified on various grounds, but it should be understood that any classification will reflect only part of the features of the studied phenomenon.