Role of the Plenum of Russian Supreme Court in the judicial practice formation

The subject. The article considers the role of the Plenum of Russian Supreme in forming judicial practice on the example of giving qualification to the crimes committed against sexual freedom and inviolability, as well as against property and public health.The objective of the article is to conduct a complex analysis of the function of the decisions, taken by the Plenum of Russian Supreme Court, in the formation of a unified vector of judicial practice. The authors dare to refute the hypothesis hat judicial practice can be recognized as a source of law.The methodological basis of the research is the dialectical theory of development and interrelation of phenomena. Historical, formal-logical, systematic methods of knowledge have been identified as relevant to the topic of the study.The main results, scope of application. The authors draw attention to the problem of evaluative features used in the process of law enforcement when interpreting the norms of the Special Part of the Criminal Code of the Russian Federation. A norm with such signs acquires an unformalized essence from the point of view of the boundaries of criminalization of a particular phenomenon. On the other hand, the nature of crimes is so diverse that without the flexibility of criminal law regulation (allowing the use of evaluative features), the application of the norm taking into account specific circumstances in a particular case may not be possible. The authors also consider issues related to the characteristics of the objective side, the end time of these crimes, the application of the formula of a single ongoing crime and its separation from related compounds. The process of law enforcement is based on such guidelines as the norms of law, judicial discretion, established judicial practice, the position of the Plenum of Russian Supreme Court. Attributing an explanatory role to the decisions of the Plenum of Russian Supreme Court does not completely eliminate the shortcomings inherent in legal technology. Correcting the current situation with the help of judicial discretion is not always justified, since this is possible only if there is a legitimate alternative. Assigning the status of a precedent to a judicial decision may lead to the substitution of the law by decisions taken in a particular case.Conclusions. The judicial practice concerning these issues is completely different. Despite the existence of similar situations, courts, as a rule, qualify an offense using various norms of the law, which negatively affects compliance with the principle of legality. The issue related to the function of the decisions of the Plenum of Russian Supreme Court in the formation of a single vector of judicial practice has been and remains debatable. The continued addition of new articles to criminal legislation, on the one hand, indicates the desire of the legislator to bring it to perfection, but, on the other hand, forms a mechanism for clarifying the rules of its application, which sometimes leads to their contradictory interpretation. At the same time, crime and punishment should be determined only by legislation.

Normative acts in the system of national tax security provision

The subject. The article characterizes the role of Russian Constitution, federal laws and bylaws in ensuring tax security.The purpose of the article is to identify legal norms that ensure the tax security of the state, and to confirm the hypothesis that such norms hat such norms are effective in systemic interaction.The methodology. The author uses methods of system analysis of scientific papers devoted to the provision of various types of security. Formal logical and legal interpretation of Russian regulatory legal acts is used also.The main results. Regulatory documents in the field of tax security can be classified into: the Constitution of the Russian Federation at the highest level; program documents (conventions, strategies, charters, concepts, programs, doctrines, standards, directives) as acts of the first level, the legislation of the Russian Federation and its constituent entities is at the second level; departmental regulatory legal acts are at the third level. The law on security should be an act of direct action that determines the content of the management activities of public authorities to ensure security by fixing its goals, principles, the most general forms and means of implementation. The basis of legal provision of tax security at the legislative level should be defined in the federal law on security as well as in the federal law "On Tax Authorities of the Russian Federation" (in intra-governmental relations context because tax authorities are the main subjects of tax administration) and in the Russian Tax Code (concerning relations between public administration bodies and private entities). Any draft legislative acts affecting issues of tax relations and economic management should be examined for compliance with national interests in the field of tax security and the effectiveness of minimizing threats. Each legislative act should take into account the implementation of the goals and principles of ensuring tax security (as well as other types of security) enshrined in the concept document. Such expertise is possible in the process of approving draft laws by the Russian Government as well as when registering relevant bylaws by the Russian Ministry of JusticeConclusions. The Russian Constitution should consolidate a unified approach to the essence of security as a whole. Legislative acts (first of all, the laws on security, on tax authorities, the Tax Code of the Russian Federation) should provide for the main directions of countering threats to tax security arising in the relevant areas of regulation. By-laws and regulations are designed to fix specific managerial ways of dealing with such threats.

Peer-reviewed publications as an element of the state system of scientific attestation

The aim of the work is to analyze peer-reviewed scientific publications as an element of the state system of scientific attestation in order to improve its regulatory legal regulation. The article shows the directions of improving the formation of the list of peer-reviewed scientific publications. Suggestions are made to optimize the formation of the list of peer-reviewed scientific publications, namely, to form a list of peer-reviewed scientific publications by groups of scientific specialties without detailing by branches of science, as well as to improve some regulatory legal acts in terms of requirements for peer-reviewed scientific publications.

The acts of the EU tax law and double tax treaties: the problems of correlation in establishing anti-tax avoidance rules

The subject. The specifics of the functioning of tax systems and the risk of double taxation require a solution to the issue of whether tax competence can remain only at the national level. Modern cross-border tax relations operate within a multi-level system of legal regulation based on the norms of international, supranational and national lawThe difficulties of correlating these levels are rooted in the fact that, in accordance with international law, each State has the right to tax persons or transactions with which it has a sufficient connection. Different situations may occur when both countries believe that the taxpayer is their resident, or when each of them claims that the income was received in this state. States solve this problem both unilaterally with the help of national legislation, and on a bilateral basis with the help of a double tax treaty.With the adoption of the Action Plan aimed at combating the erosion of the tax base and the withdrawal of profits (hereinafter referred to as the BEPS plan) and the EU Council Directive 2016/1164 (ATAD), tax strategies for using gaps and inconsistencies in tax rules to artificially transfer profits to low-tax jurisdictions were limited.Purpose of the study. The article discusses possible scenarios arising from the interaction of tax agreements and acts of EU tax law. It is necessary to take into account the obligation of the Member States to eliminate inconsistencies between acts of national legislation and acts of EU law. Member States have committed to achieve this goal at the time of EU accession and, therefore, before the adoption of any secondary EU law.Methodology. The research was carried out with the application of the formally legal interpretation of legal acts as well as the comparative analysis of international and European legal literature. Structural and systemic methods are also the basis of the research.The main results. Due to the clear coordination between the European Union and the OECD of actions in terms of establishing common measures to combat tax evasion and focusing on the subjective element of assessing potential abuse situations, a new standard for combating tax evasion has been established.Сonclusions. The author comes to the conclusion that the priority of the EU law over DTTs has been established. However, Member States retain the right to establish their own tax regimes and enter into tax treaties, thereby creating conflicts in legal regulation. In order to be directly applicable, the norm of the treaty must be clearly and definitely formulated, as well as be unconditional and independent of any national implementation measures.National legislation provides measures to eliminate the legal multiple taxation only for its residents. On the other hand, with respect to tax agreements concluded with third countries, the predominance of one system over another depends on the specific scenario, and in some cases the result achieved is the result of interpretation of existing provisions. In particular, tax treaties should prevail only when concluded before a state joins the EU.

Taxation of copper and nickel ores mining in Australia, Canada, Chile, Kazakhstan and USA

The subject. This article discusses the taxation of copper and nickel extraction in Australia, Canada, Chile, Kazakhstan and USAThe purpose of the article is to confirm or disprove the hypothesis that the experience of taxation of copper and nickel extraction in Australia, Canada, Chile, Kazakhstan and USA may be used for modifying the mineral extraction tax (MET) in Russia in order to increase the share of resource rent collected by the government.The methodology of research includes legal interpretation and economic analysis of the tax legislation in United States, Canada, Australia, Chile and Kazakhstan as countries with a well-developed tax system and a significant size of the mining sector in overall GDP.The authors select the legislative acts of these countries and regions that determine the procedure for collecting taxes in the extraction of metal ores, including those containing copper and nickel, as well as in the production of copper and nickel. The selected legislative acts are analyzed to determine the essential parameters of taxation. Particular attention is paid to the method of calculating the tax base, taking into account the approach to assessing the value of the taxable object, permissible tax deductions and exceptions, which allows authors to test the hypothesis put forward by determining which part of the value of a mineral resource is withdrawn during taxation.The main results, scope of application. Mineral extraction tax is the main tool for collecting natural resource rent in Russia. However, the level of taxation of solid minerals and coal is disproportionately low compared to their share in the production and export of raw materials. Thus, in 2018, the amount of MET on all minerals totaled 100.5 billion rubles, while the MET collected from oil and natural gas amounted to 5,979.6 billion rubles, i.e. 60 times as much. At the same time, the role of solid minerals in the Russian economy is comparable to the role of oil and gas. The share of the main types of minerals in the exports of the Russian Federation in 2018 was 20.4% compared to 56% for oil and gas, i.e. the difference of less than three times. The contribution of the industries related to the extraction of minerals and production of metals (mining of coal, ores, diamonds, metallurgy, fertilizer production) to the Russian GDP is about half as much as that of industries involved in the extraction and processing of oil and natural gas (7% and 14% of GDP respectively).In view of the above, it is important to develop a new approach to the taxation of solid minerals in Russia based on the world’s best practices. In order to identify the general principles of their taxation, we have conducted a detailed analysis of the tax legislation in a number of countries with a well-developed tax system and a significant size of the mining sector (the United States, Canada, Australia, Chile and Kazakhstan). We focused on the taxation of copper and nickel ores mining.Conclusions. The analysis of the international experience of taxation of copper and nickel mining sector reveals the following trend: the tax is calculated based on the market value of the extracted minerals, which is linked to the price quotes for the relevant product on an organized metal exchange (for example, the price of pure metal on the London Metal Exchange). This approach can be used in the Russian tax practice in several ways. First, Russia can adopt the Australian model where royalty on a mineral resource can be levied at the time of sale of the useful component irrespective of the processing stage (ore, concentrate or metal). The second potential model is based on the actual sale price of the product (provided it is sold in an arm’s length transaction) after deducting the costs of processing (i.e., smelting, enrichment etc., depending on the stage of processing) to arrive at the market value of the ore at the "mine mouth". The third is the Canadian model which is similar to the second one, but with the extraction costs also deducted from the sale price.

Legal problems of use of compulsory psychiatric treatment in Russia and Belarus

The subject of the research is the problems of legislative regulation of compulsory psychiatric measures in the criminal legislation of the Republic of Belarus and the Russian Federation.The purpose of the article is to confirm or refute the hypothesis that there are defects in legislative regulation that prevent the effective use of compulsory psychiatric treatment. They are not eliminated in the Criminal Codes of the Russian Federation and the Republic of Belarus. Research methodology. On the basis of a system-integrated approach on an interdisciplinary basis, a scientific analysis of special legal and forensic psychiatric scientific literature and interpretation of the criminal legislation of the Republic of Belarus and the Russian Federation were carried out.Main results. An analysis of the Criminal Codes of the Republic of Belarus and the Russian Federation showed that compulsory psychiatric treatment is an independent institution of criminal law, which is regulated in sufficient detail in the national criminal legislation. The article includes a comparative legal analysis of the norms of the criminal legislation of both states (Chapter 14 of the Criminal Code of the Republic of Belarus and Chapter 15 of the Criminal Code of the Russian Federation) that regulate psychiatric coercive measures applied to persons with mental disorders who have committed illegal acts. Based on the results of the study, a number of problems were identified in the legislative regulation of psychiatric compulsory measures in the criminal codes of both states, the authors propose directions for further improvement of the current criminal legislation.Conclusions. The Criminal Codes of the Republic of Belarus and the Russian Federation contain only general criteria for choosing the type of psychiatric measures of a coercive nature, in the most general form, the procedure for their change and termination is provided, they need editorial clarification of their purpose. There is no legislative definition of the concepts of “coercive security measures and treatment” (Chapter 14 of the Criminal Code of the Republic of Belarus) and “compulsory measures of a medical nature” (Chapter 15 of the Criminal Code of the Russian Federation), etc., which causes serious difficulties in law enforcement practice and indicates the need to continue work to improve the current criminal legislation.The terminology used “coercive and security measures and treatment” (Chapter 14 of the Criminal Code of the Republic of Belarus) and “coercive measures of a medical nature” (Chapter 15 of the Criminal Code of the Russian Federation) does not reflect the specifics of these measures, which in their essence and content are exclusively psychiatric measures. The identified problems of legislative regulation of psychiatric compulsory measures in the criminal legislation of both states require their further resolution, and based on the interdisciplinary medico-legal nature of the problems involved, with the obligatory involvement of forensic psychiatrists in their solution.

Special Tribunal for Lebanon and progressive development of international criminal law

The subject. The article analyses the practice of the Special Tribunal for Lebanon and its Judgement of 18 August 2020, rendered against those found guilty of a terrorist act and the impact on the progressive development of international criminal law.The purpose. This article seeks to define what goal the international community pursued in establishing the Special Tribunal for Lebanon from the perspective of international security law, international criminal justice, and counter-terrorism cooperation. The legal nature of the terrorist attack of 14 October 2005 is essential in this regard: is the crime is comparable in its gravity and consequences to the crimes of genocide or war crimes in the territory of the former Yugoslavia or Rwanda, which predetermined the subsequent establishment of ad hoc international criminal tribunals? Further, was the establishment of the Special Tribunal for Lebanon an attempt to make the crimes of terrorism an international crime in practice? Finally, was the establishment of the Tribunal an attempt to lay the groundwork for a new type of international judicial bodies with jurisdiction over crimes of terrorism? The methodology. The authors use such general theoretical and specific scientific methods as comparative analysis, generalization, interpretation and classification as well as systemic analysis and formal logical methods.The main results. The legal qualification and analysis of the circumstances of the terrorist attack do not enable the conclusion that the bomb explosion in Beirut was comparable in danger and consequences to any international crimes or was a threat to international peace and security. In its turn, the involvement of the Security Council in the establishment of the Tribunal does not unequivocally evidence its alleged attempt to create a purely international criminal structure.The choice of applicable law granted to Lebanon and the fact that the crime committed solely affected the interests of that State would qualify the Tribunal as an internationalized judicial body, whose work would focus on defining the crime of terrorism through a broader lens of interpreting national legislation. In other words, the impetus for development has been given not to international but national criminal law.The Tribunal was created neither to progressively develop international criminal law with regard to defining terrorism as an international crime nor to advance the international criminal justice system. Rather, it was an attempt to address Lebanon’s specific political and legal challenges.Conclusions. The outcome of the Tribunal’s work could have a rather negative impact on the development of international criminal law, discrediting the very idea of enabling “peace through justice” and uniform, consistent application and interpretation of international criminal law.

Tax obligation fulfillment

The subject. The article is devoted to the study of the mechanism of tax obligation fulfillment. The author established that there are several points of view in understanding the legal essence of the fulfillment of an obligation in Russia and abroad: 1) contractual theories (the general contractual theory, the theory of a real contract, the limited contractual theory); 2) the theory of target impact; 3) the theory of real impact.The purpose of the article is to determine the legal essence of tax obligation fulfillment, to study the concept of the tax obligation fulfillment, the mechanism for exercising subjective rights and obligations, and the criteria for the proper fulfillment of a tax obligation.The methodology. The author uses general and specific scientific methods of scientific research: observation, systemic-structural, dialectical, analysis, comparative jurisprudence and others.The main results, scope of application. There are two sides of the tax obligation fulfillment: legal and factual. From an actual point of view, the tax obligation fulfillment is a set of operations by its parties with the object of the obligation. As a result, the object of the obligation must pass from one owner to another. From a legal point of view, the tax obligation fulfillment always represents the realization of its content through the exercise of rights and the fulfillment of obligations.The author believes that the tax obligation fulfillment should not be equated with the fulfillment of the obligation to pay tax, since not every obligation is executed through the payment of tax. In this regard, a situation may arise when the obligation is properly fulfilled by the debtor, and the creditor does not receive the property grant (for example, if a loss is received at the end of the tax period).The mechanism of the implementation of subjective tax rights and the fulfillment of obligations is a certain system of legal means and algorithms of behavior that allow to determine the appropriate size of the claim of a public law entity on the taxpayer's property and ensuring the transfer of the monetary is equivalent to this economic benefit to the budget system. This mechanism is a set of algorithms for the behavior of subjects of tax liability, defined by law, using specific legal means. As such means, depending on the party of the tax obligation, the law provides, for example, a tax return, a requirement to pay tax, etc. The mechanism of exercising subjective rights and fulfilling obligations includes the following stages: 1) pre-implementation; 2) procedural implementation; 3) actual implementation; 4) protection of the violated right.The author identifies five criteria for the proper fulfillment of a tax obligation: 1) the proper subjects of execution; 2) the proper place; 3) the proper time; 4) the proper object; 5) the proper way.Conclusions. The legal essence of the tax obligation fulfillment can be characterized as a transaction between its parties, aimed to mutual termination and the emergence of the rights of its parties. In order to protect the rights of bona fide taxpayers the author proposes to enshrine in tax legislation a ban on contradictory behavior in the process of fulfilling a tax obligation.

Review of Russian scientific researches on Сhinese law of public finance

The article provides a systematic review of the scientific works of Russian legal scholars in the field of public finance law in China, in particular tax, budget and currency law. Today, it is premature to talk about fully functioning schools of Chinese law in the Russian legal science. However, at the same time there are examples of successfully conducted fundamental researches on Chinese public finance law. Authors have to admit that the last few years have not been marked by the appearance of any monograph on Chinese public finance law in Russia – the studies conducted today are usually devoted to specific problems and are published on the pages of the relevant journals. There are obvious reasons for this – difficulties in Chinese language learning and understanding specific Chinese legislation, which is characterized by uncertainty, ambiguity and plurality of sources of law. Existing studies can be classified into studies entirely devoted to the study of particular institutions or branches of Chinese law, and studies of a comparative nature. The article examines and systematizes the work of Soviet and Russian legal scholars devoted to various areas of research in the fields of tax, budget and currency law of China, with an assessment of their significance and contribution to the development of the relevant branch of knowledge. The materials in this article may be useful for future researches, which, in turn, can predetermine the strengthening of bilateral relations, as well as the implementation of joint investment projects. The article allows to identify unexplored areas in the considered field, thereby laying the foundation for future research. Authors note research issues that seem to be perspective based on the conducted review.

Additional procedures in cassation and supervision proceedings of civilistic procedure

The subject of the research is the additional powers of the Chairman of the Supreme Court of the Russian Federation in relation to cassation and supervisory complaints.The purpose of the article is to substantiate the necessity or redundancy of certain additional powers of the Chairman of the Russian Supreme Court taking into account the nature of such powers and the conditions for their application.The methodology. Analysis and synthesis, dialectical method as well as formal legal interpretation of Russian legislative acts and judicial practice of Russian Supreme Court were used.The main results. Since the transformation of the three-tier supervisory proceedings into a system of two cassation and one supervisory instance, as well as the liquidation of the Supreme Arbitration Court, the powers of the Chairman of the Supreme Court of the Russian Federation have spread to a fairly wide range of relations that allow influencing the movement of the case in the cassation and supervisory instance, and on itself initiation of a case in a supervisory instance. Moreover, such activities are far from always regulated by the norms of the law.The Chairman of the Supreme Court of the Russian Federation (or his deputy) currently has leverage over the possibility of considering a case in the cassation instance of the Supreme Court of the Russian Federation (Judicial Collegium of the Supreme Court) and in the supervisory instance (Presidium of the Supreme Court). These possibilities are called control and substitute in the article. Control powers should include: 1) regulation of key deadlines in cassation and supervisory proceedings; 2) interference in the procedure for filtering complaints. The procedure and conditions for the use of these powers are not regulated in the procedural codes. Having such powers in relation to procedural terms, the President of the Supreme Court actually influences the very possibility of initiating a case in a court of cassation or supervisory instance, as well as the duration (and, accordingly, the quality) of the examination of the complaint. The intervention of the Chairman of the Supreme Court of the Russian Federation in the procedure for filtering complaints has a clearly pronounced discretionary nature, moreover, it is selective. It would not be superfluous to point out that such as "order" in itself creates conditions for its abuse both by the participants in the case and by the courts. The substitute authority is the right of the Chairman of the Supreme Court to initiate supervisory proceedings on his own initiative, contrary to the basic rule of civil proceedings based on the principle of discretion (the case is initiated by the person whose rights have been violated). Supervisory proceedings are currently intended to appeal against judicial acts adopted by the Supreme Court of the Russian Federation itself when considering cases in the first, appeal and cassation instances. However, among the objects of appeal there are also acts of the Judicial Collegium of the Supreme Court, applications to which are possible with complaints against acts of any lower courts, with some restrictions on the decisions of justices of the peace (Article 390.4 of the Civil Procedure Code; Article 291.1 of the Arbitration Procedure Court). In this regard, the supervisory authority must continue to be viewed as the final link in the system of reviewing judicial acts. However, the system for reviewing judicial acts is very contradictory. On the one hand, there are a number of strict rules that cut off certain types of judicial acts from appeal; filtering complaints in the second cassation and supervision; establishing special rules for the jurisdiction of complaints. On the other hand, it is possible not to comply with these strict rules and directly contact the Chairman of the Supreme Court of the Russian Federation.This extraordinary power of the Chairman of the Supreme Court of the Russian Federation has been preserved, precisely because the Russian legislator firmly and consistently adheres to the conviction that it is necessary to leave at least one official who is not a party to the case the right to initiate an audit of a judicial act.Conclusions. The extraordinary powers of the Chairman of the Supreme Court are of an extra-procedural nature, at best they are based on the rules of record keeping (instead of the law), are selective and opaque.