THEORY AND HISTORY OF LAW ENFORCEMENT
The subject of the paper is temporal effect of abolition of the law establishing liability (especially liability for failure to submit calculation of social insurance fee).
The main aim of the paper is to confirm or disprove the hypothesis that the application of the rule of liability after its repeal depends on whether the law has introduced a rule on a similar offense and what is its objective side. The author wants to apply this hypothesis to the Russian legislation concerning liability for failure to submit calculation of social insurance fee.
The description of methodology. The author uses economic approach and the theory of rational choice as well as the dialectic and formal‐legal methodology. The author uses general scientific methods (analysis, synthesis, description) as well as particular academic legal methods (formal‐legal method, interpretation of legal acts.
The main results and scope of their application. Temporal rules have universal general legal value, they must be applied to all types of legal liability. The repeal of the law establishing liability blocks generally the possibility of applying such law in the future. When the repeal of a law providing for liability for a specific offence is accompanied by the adoption of another law on liability, it does not entail the cancellation, but strengthening or mitigation of liability. If the repeal of the law establishing liability is intended to "transform" the legal (sectoral) nature of liability, it is permissible to apply the revoked law to persons who have committed the offence according to this law before its cancellation. The adoption of a law that mitigates liability requires its extension to those who have committed the relevant unlawful act before the new law is introduced. The legal rules abolishing one type of liability for a particular offence and establishing a more or less strict liability of another type should enter into force simultaneously, without any time gap. Otherwise the repeal of the law establishing liability would undoubtedly "nullify" the possibility of holding someone liable for the relevant offence that occurred prior to the repeal.
According to pt. 1 of art. 119 of the Russian Tax Code failure to submit the calculation of social insurance fees constitutes an offense only if these contributions themselves were not paid in full in a timely manner. After the Federal law "On social insurance fees… " have been revoked since January, 1, 2017 the failure of the payer of social insurance fees to submit the calculation of accrued and paid insurance fees ceased to be considered by the legislator as an offense. Ergo since that date holding someone (who had already paid social insurance fee) to responsibility for non‐submitting the calculation shall be completely excluded. The results of research may be used as the basis of correction of temporal rules in any legal system to make enforcement more just.
Conclusions. The author confirmed the hypothesis that the application of the rule of liability after its repeal depends on whether the law has introduced a rule on a similar offense and what is its objective side. After the cancellation of Federal law "On social insurance fees...", the article of the Russian Tax Code replaced this law does not provide for liability for failure to submit calculation, when payment of the social insurance fee was made on time. And persons who did so cannot take any legal responsibility.The subject. The article reveals an understanding of the freedom of speech in French law The purpose of the article is to identify the contents of freedom of speech in the French law and to determine the boundaries of its implementation in the Internet as well as to confirm or refute the hypothesis that both the freedom of speech and the definition of the boundaries of that freedom meets the purposes of protection of human rights. The description of methodology. General scientific methods ‐ analysis, synthesis, induction, deduction, comparison ‐ were used. The authors also use the formal legal interpretation of French judicial decisions and content‐analysis of press.
The main results and scope of their application. Freedom of speech is one of the foundations of French society, but it has become necessary to revise a number of rules governing freedom of speech and imposing restrictions due to widespread using of Internet in people’s life. So exceptions from freedom of speech are embedded in national legislation, despite the fact that the basis for the legal regulation of freedom of the media in a democratic society is to ensure non‐interference of the state in the content of production and dissemination of information. In some countries exceptions to freedom of speech are expressed primarily in the form of rules aimed at preventing abuses of freedom of the mass media and serving as a basis for sanctions against media editorial boards. The authors also cite actual examples of the realization of the freedom of speech in France, and draw conclusions about the possibilities for the development of this right. The proposed analysis may be used as a basis for improvement national legislation concerning limitations of freedom of speech.
Conclusions. Freedom of speech and freedom of the media are not absolute in France. In order to fulfil its function of protecting and guaranteeing rights and freedoms, the state must pay equal attention both to ensuring freedom of speech (including the independence of the press, access to information) and to defining the limits of this freedom in order to prevent its unlawful abuse. Any freedom turns into chaos without proper boundaries.
THE LAW ENFORCEMENT BY PUBLIC AUTHORITIES
The subject of the article is legal regulation of award of academic degrees in Russia after the reform that let universities and scientific organization award academic degrees independently, without centralized state control over this process.
The main aim of the article is to confirm or disprove the hypothesis that universities that have received the right to self‐award academic degrees, should have the ability to determine the list of scientific specialties.
The methodology of the study includes analysis, synthesis, description as well as formal‐ legal method and interpretation of legal acts.
The main results and scope of their application. Impossibility of application their own nomenclatures of scientific specialties by educational and scientific organizations that have received the right to independently award academic degrees is justified. Not only federal regulatory legal acts interrelated with the nomenclature of specialties, for which scientific degrees are awarded, but also local legal acts of organizations that regulate the designated issues in different ways were analyzed. The criteria of systematization in the nomenclature of scientific specialties by levels are not set in a single key, which can cause problems in determining the subject and methods of research and expert evaluation of the thesis. Organizations fix procedural issues of examination of dissertations, as well as other issues related to the formation of dissertation councils and their work, the award of academic degrees, the issuance of diplomas, in local regulations that create conditions for the decentralization of legal support for the implementation of state policy in this area. The applicant for an academic degree has the right to prepare a dissertation and pass candidate examinations in a scientific specialty in any organization that meets the established requirements. Then the applicant for an academic degree has the right to apply to the organization, which has the right to self‐award of academic degrees. However, if the specialties which are absent in the official state nomenclature were established in this organization, the rights of applicants will be broken, and they will be put in unequal conditions with those applicants who passed candidate examinations in this organization.
Conclusions. The universities that have received the right to self‐award academic degrees, should have the ability to determine the list of scientific specialties, as this would entail violation of the rights of applicants for academic degrees.The subject. The object of research is a principle of proportionality – first as the constitutional principle allowing resolve the conflict arising during the liquidation of political party. This conflict exists between the equally protected constitutional values – freedom of association, democracy, on the one hand, and a need of protection of national interests, national security, the rights and freedoms of the citizens – on another hand. Proportionality is also cross‐sectoral principle of legal responsibility guaranteeing justice at constitutional‐legal responsibility cases and proportionality of the constitutional legal sanction to the constitutional delict, circumstances, the reasons and conditions of its commission.
The purpose of the study is to highlight the constitutional principles, concerning the prohibition or dissolution of a political party according to European democratic standards and to refute or confirm the hypothesis that they are not effectively reflected in Russian legislation and law enforcement practice.
Methodology. As the main method of this research the author chose the method of legal comparison which allowed carry out the comparative analysis of practice of the foreign constitutional courts, the European Court of Human Rights on the questions raised in the work. Also traditional methods of knowledge of legal matter – the analysis, synthesis, deduction, induction and a formal legal analysis were used.
The main results of research and a field of their application. Liquidation of political party must be a consequence only of serious constitutional offenses or crimes committed by its members acting on behalf of political party. Organizational violations (a lack of number or regional offices of political party, late submission of the updated data necessary for modification of the Unified State Register of the Legal Entities) can't be the basis for the compulsory termination of activity of the political party. The courts have to be guided by the principle of proportionality when they consider cases about liquidation of political parties. The judges must give an assessment if a liquidation of political party proportional to the constitutional offenses committed by it and whether liquidation is strictly necessary for protection of the bases of the constitutional system, morality, health, the rights and legitimate interests of the people, defense of the country, national security or public order.
Conclusions. Constitutional principles, concerning the prohibition or dissolution of a political party according to European democratic standards are not effectively reflected in Russian legislation and law enforcement practice. It is necessary to recognize and reflect exclusive character of such enforcement measure as a liquidation of political party in the legislation. It demands a change of the bases for liquidation.The subject. The article is devoted to the analysis of the socio‐economic aspect of public authorities’ activities with regard to constitutional legal support of the state unity and territorial integrity of the Russian Federation.
The purpose of the article is to confirm or refute the hypothesis on the shortage of constitutional regulation of socio‐economic policy of modern Russia in the context of ensuring its state unity and territorial integrity.
The methodological basis of the study includes general‐scientific methods (analysis and synthesis, system‐structural approach) as well as academic methods (formal‐legal method, method of interpretation of legal acts).
Results, scope. The socio‐economic aspect of the constitutional legal support of state unity and territorial integrity of Russia implies consistent provision of a decent standard of living throughout the country, as well as strengthening economic ties between the subjects of the Russian Federation as one of the key factors in preserving the territorial integrity of Russia. In this regard, the constitutional legal support of the unity of the economic space of the Russian Federation, the alignment of the level of socio‐economic development of the subjects of the Russian Federation are of particular importance.
Conclusions. The consistent implementation of the constitutional legal guarantees is accompanied by a number of problems identified in the law enforcement practice of the Federal bodies of state power. It seems that it is necessary to expand the range of entities entitled to initiate the procedure of dismissal of the Chairman of the Central Bank of the Russian Federation. It is required in the long term to consolidate the principle of alignment of socio‐economic development of subjects of the Russian Federation among the foundations of the constitutional system. Finally, it seems that there is a need for a more thorough constitutional settlement of the General principles of taxation and fees, budget regulation in Russia.The subject. The article is devoted to integration of conflictology theory in legal science. The purpose of the paper is to confirm or disprove hypothesis that theoretical mechanisms of conflictology may be effectively applied into constitutional legal theory to prevent con‐ stitutional legal conflicts.
The methodology of the study includes general scientific methods (analysis, synthesis, description) and sociological approach.
The main results and scope of their application. The author describes the genesis of legal conflictology theory in different humanitarian sciences and its periodization, including integration of conflictology theory in legal science. The author substantiates necessity and justification of application of theoretical and methodological bases of science of conflictology in the constitutional and municipal law for the purpose of forecasting, identification and the resolution of the corresponding constitutional and legal conflicts.
Conflictology of constitutional and municipal law is a research level of legal conflictology. The subject of this kind of conflictology are legal conflicts in constitutional and municipal law, their prediction, identification and resolution. It is necessary to take into account the following postulates of the General theory of conflictology in the study of legal conflicts in constitutional and municipal law:
– the conflict is natural, objective and acts as an integral property of social life;
– the social conflict at the same time acts as a stabilizing factor of functioning of social system;
– social conflict is a complex social phenomenon as well as a process having structural, spatial‐temporal and dynamic characteristics;
– the organic connection of law conflict with the law. The legal conflict arises about legal phenomena, it is realized under the influence and with the application of legal norms, it is resolved on the basis of legal regulation;
– there is a special kind of political conflict that arises within the existing government, where each of the groups within the ruling class has more private interests and its own vision of the situation.
Conflictology of constitutional and municipal law bases on the general theoretical postulates of the science of social conflicts. Constitutional conflict is a political type of social conflict – a disagreement between the subjects of constitutional and municipal legal relations over constitutional values, which can be transformed into legally significant conflict and generate legal consequences.
Conclusions. The object of scientific knowledge of legal conflictology in constitutional and municipal law is a constitutional and legal conflict, the study of which should be based on the above postulates of the general theory of conflictology, and can not be limited to purely legal knowledge.
The subject. The article is devoted to the analysis of the procedural competence of tax authorities in the context of ensuring national fiscal security.
The purpose of the article is to identify the features of the procedural powers of the tax authorities in the field of fiscal security provision. The hypothesis of the study is that the purpose of tax authorities’ procedural powers is dual and it should be aimed at implementation of the fiscal function of the state and municipalities, as well as at protection the tax‐ payer from illegal and unjustified seizure of taxes in accordance with legal principles. The overall objective involves a number of specific tasks:
– definition of the concepts of competence and procedural legal status of tax authorities in the field of fiscal security;
– identification of the objectives of law enforcement activities of tax authorities in the field of fiscal security provision;
– identification of the principles of law enforcement activities of tax authorities in the field of fiscal security provision.
The methodology of the study includes general scientific methods (analysis, synthesis, comparative method, description) as well as particular academic methods (interpretation of legal acts, formal‐legal method).
The main results and scope of their application. The competence of the tax authorities directly in the tax sphere is a set of their powers to control and monitor compliance with the legislation on taxes and fees, the correctness of the calculation, completeness and timeliness of the payment of taxes and fees to the budget; to bring persons who have committed tax offenses to responsibility; to consider and resolve complaints of citizens on acts of the ruling subjects of tax relations (tax bodies and officials). Procedural and legal status of the tax authorities can be understood as a system of powers that ensure the proper procedure and conditions for the tax authorities to exercise their legal functions in accordance with the principles of law and the requirements of the procedural form. Both material and procedural powers of the tax authorities are implemented in tax authorities’ activity in the field of fiscal security provision.
The legal consolidation of the dual purpose of the tax authorities will contribute to provision of the national fiscal security. This dual purpose should be aimed at both the implementation of the fiscal function of the state and municipalities, as well as at protection the tax‐ payer from illegal and unjustified seizure of taxes. The system of principles of procedural activities of tax authorities to ensure tax security should include general legal, inter‐sectoral and special tax procedural principles.
Conclusions. The procedural aspects of the tax authorities' exercise of their powers must be systematized in national legislation. If there is lack of legislative consolidation of the principles and objectives of law enforcement activities of the tax authorities, such situation significantly worsens the possibility of applying the law in a single procedural form, making it difficult to implement the objectives of ensuring the national fiscal security.The subject. The article is devoted to the main problem of customs classification on the example of Foreign Economic Activity Commodity Nomenclature (FEACN) of the EAEU. The purpose of the paper is to define the concept and meaning of classification of goods for customs purposes, the characteristics of the legal basis of FEACN, the identification of the features of cases challenging the decisions of customs authorities on the classification of goods in accordance with the EAEU FEACN. The hypothesis is to confirm or refute the relevance of the problems of customs classification for participants of foreign economic activity, and for customs authorities.
The methodological basis for the study: general scientific methods (analysis, synthesis, comparison, description); private and academic (interpretation, formal‐legal).
Results, scope. Features of classification of goods in customs declaration, in the implementation of customs control and in other cases regulated by the Customs Code of the EAEU. The classification of goods for customs purposes should be understood as the action taken by the declarant or customs authorities to classify goods as specific commodity items, sub‐ items and sub‐sub‐items of FEACN in accordance with the Basic rules of interpretation and the corresponding digital codes, which has legal significance in determining the amount of customs payments, in the application of non‐tariff regulation measures and in the frame‐ work of customs statistics for the purpose of summarizing data on goods moved. The current FEACN of the EAEU was approved by the decision of the Council of the Eurasian Economic Commission. The FEACN used in the EAEU is derived from the Harmonized commodity description and coding system. In addition, the FEACN of the Commonwealth of Independent States, introduced after the conclusion of the relevant international legal agreement by the former Soviet republics in 1995, acts as the international basis of the EAEU FEACN.
Since the size of customs payments depends on the HS code, the majority of disputes between participants of foreign economic activity and customs authorities arise in this category of cases, moreover, their number increases from year to year.
Conclusions. As a result of the study, the concept and importance of classification of goods for customs purposes are defined, the legal basis of FEACN is characterized, the features of cases on challenging the decisions of customs authorities on the classification of goods in accordance with the EAEU FEACN are revealed. All of the above indicates the relevance of the problems of customs classification for participants of foreign economic activity, and for the customs authorities.The subject of the article is legal regulation of work in retail on Sundays and holidays in Poland and in the European Union.
The main aim of the article is to confirm or disprove the hypothesis that restrictions on work in retail on Sundays are not due to the needs of the economy and law, but due to the political situation in Poland, and therefore, although these restrictions are not rejected by the Polish society, they can be revised easily after the elections.
The methodology of the study includes analysis, synthesis, description, interpretation as well as particular academic legal methods (historical overview, comparative analysis of legislation, formal‐legal method, interpretation of legal acts).
The main results and scope of their application. The article discusses legal restrictions in Poland concerning work on Sundays and public holidays, especially in retail. General rules concerning work on these days are set in the Polish Labor Code in accordance with the EU legislation. Recently, a law was passed in Poland introducing the restriction of employment in retail outlets on Sundays and other public holidays. This law was entered into force on March 1, 2018 with two years transition period. After transition period a total ban on working on Sundays and holidays in shops and other retail (except some special sales places, such as post offices, ticket offices etc.) will be established. Thus, discussions and disputes over the years, which have been going on almost from the very beginning of the systemic transformation, have been closed for many years. The author of the article presented a systematic analysis of legislation and various problems on the example of Poland and the European Union. The limitations on employment on Sundays are the protective measures established by labour law provisions. They combine the function of securing rest to employees with their role of a method allowing the society to celebrate certain days due to lay or religious reasons. Macroeconomic effects of the restrictions of work in retail on Sundays are not known yet. Nevertheless, it seems that the apocalyptic visions of the condition of Poland’s economy, free of commerce made on Sundays (such as a dramatic drop in GDP or a rapid growth of unemployment) are rather far from reality.
Conclusions. The Polish law restricting work on Sundays and public holidays in retail is not totally rejected by Polish society, but it may be subject to further changes. It depends on what political forces will exercise power in Poland.
THE LAW ENFORCEMENT BY LOCAL AUTHORITIES
The subject. The article discusses the current model of municipal control in Russia, analyzes the relevant regulations and judicial practice.
The purpose of the article is to confirm or refute the hypothesis that municipal control can be effective from the standpoint of ensuring the security of the urban environment.
The methodological basis of the study includes general‐scientific methods (analysis and synthesis, system‐structural approach) as well as academic methods (formal‐legal method, method of interpretation of legal acts).
Results and scope of their application. The quality parameters of the urban environment are closely related to the issues of local importance, for the solution of which the local authorities are responsible; secondly, safety is one of the criteria for assessing the quality of the urban environment, so the local authorities should have tools to influence its improvement. One of such instruments is municipal control exercised by local governments or their officials. De facto municipal control smoothly flows from the sphere of public relations into the sphere of civil law relations due to the control functions of the owner of his property. This may affect not only the concept of municipal control, but also the features of the de‐ limitation of municipal control from related types of state control (for example, in the field of land control, etc.). The analysis of normative acts and the existing judicial practice allows to conclude that the existing concept of municipal control is a gap and internally contradictory. It leads to a diminution of the control activities of local governments, inefficient spending of budget funds. In addition, this means that local governments do not have effective mechanisms to ensure the security of public spaces.
Conclusions. The article refutes the hypothesis of the effectiveness of municipal control in Russia from the standpoint of ensuring the safety of the urban environment. Local governments, as a full‐fledged and equal variety of public authorities should have a mechanism for the implementation of municipal control, especially in terms of compliance with the requirements established in municipal regulations. This is particularly important for the security of the urban environment.The subject. This article is devoted to exploring the possibilities of formalizing the institution of local communities of citizens in urban areas, with the goal to more extensively involve local population in solving local issues, including controlling the organization of relevant processes.
The purpose of the article to refute or confirm the hypothesis that local communities may exercise local control functions effectively to improve the quality of local services and reduce the number of local government officials.
The methodology of the study includes methods of theoretical analysis, as well as legal methods, including the formal legal method.
The main results and scope of their application. The activities of subjects of municipal ad‐ ministration – bodies and officials of local government, aiming at improvement of control over the solution of local issues are subject to difficulties, and institutional and organizational measures to develop the mechanism of municipal management in this case are not sufficient. The territorial reorganization of the city administration is also not justified ‐ the creation of intracity municipalities, as well as the formation of territorial subdivisions of the citywide administration is often costly and inefficient. At the same time, the population, being both a beneficiary of the solution of local issues, and, theoretically, the main subject of self‐government and a source of legitimation of municipal authority in cities, is excluded from the mechanism of control over the organization of relevant processes.
The creation of local communities, in turn, could be an alternative to the proliferation of the apparatus of municipal bureaucracy in cities, providing legal guarantees for the implementation of citizens’ right to self‐government directly in territories of their residence. At the same time, local communities, unlike the territorial public self‐government, should be included into the general municipal management mechanism, which would ensure their financing at the expense of local administration. However, in contrast with the territorial bodies of city administrations, the functioning of local communities’ bodies should presup‐ pose mainly volunteer beginnings in their activities, whereas financial and material support should only assist in realization of their competence.
Conclusions. The expansion of existing forms of control over the solution of local issues by local communities would contribute to improving the efficiency and quality of municipal services, the livelihood of the local population in urban areas.THE LAW ENFORCEMENT BY THE JUDGES
The subject. The system of crimes against justice includes four groups of acts, each of which encroaches on a separate group of public relations: crimes that threaten the security of justice, crimes that undermine its justice, crimes that prevent the reasonable adjudication and crimes that execution of judicial decisions.
The purpose of the paper is to confirm or refute the hypothesis that the criminal legal response in Russia to groups of crimes in the sphere of justice is not adequate to the degree of their social danger.
The methodology. The concept of criminal legal response was chosen as a methodological basis for the analysis of the practice of sentencing. This concept highlights the following types of criminal legal response: lack of response; very weak response – the number of convicts does not exceed 10; weak response – the number of convicts is small, calculated in dozens; adequate response – the number of convicts and penalties correspond to the criminological characteristics of the crime; intensive response – the inevitability of punishment is ensured by the enforcement of rules; punitive response – the norm is applied on the basis of the "letter, not the spirit" of the law; reflexive response – the imposition of punishment "their" in conditions of increased public attention, "resonance" of the case; protest response – judicial practice is in conflict with ill‐conceived legislative innovations.
The main results and scope of their application. The weakest, very weak criminal‐legal response or complete absence of criminal‐legal response in the sphere of justice is the most typical in Russia. It is explained by various factors, and the professional lack of competence and the motive of “protection of the honor of the uniform” appear most frequent. The criminal‐legal impact is punitive in relation to the insult of public officer (art. 319 of the Russian Criminal Code). Criminal liability for insulting a public officer is anachronism in the context of full or partial decriminalization of insults in general (art. 130 of the Russian Criminal Code) and beatings (art. 116 of the Russian Criminal Code).
Conclusion. The purpose of the study is reached the hypothesis is confirmed partially – in relation to the inadequacy of criminal penalties for insulting a public officer. Decriminalization of art. 319 of the Russian Criminal Code is necessary. Save it in the current Criminal Сode leads to a "witch hunt", in addition to receiving a criminal record every year by thousands of people (that stain not only their biography but also biography of their loved ones). There is art. 5.61 "Insult" in Russian Code of administrative offences. It is proposed to supplement art. 5.61 of the Code of administrative offences of the fourth part: "insulting a public officer during the performance of their official duties" simultaneously with the de‐ criminalization of art. 319 of the Criminal Code.
The subject of the article is realization of adversarial process principle in Russian criminal proceedings.
The purpose of the article is to disclose the list of systemic flaws in modern criminal justice. The hypothesis of the study is the thesis that the ongoing transformation of the criminal procedure did not lead to its transformation on the basis of the principle of the adversarial process.
The authors use formal‐legal and comparative‐legal methods as well as legal interpretation of the text of Russian Criminal Procedure Code and Russian Constitutional Court’s decisions.
The main results and scope of their application. The problem field of the research is the analysis of the latest changes in the Criminal Procedure Code of the Russian Federation and their influence on the qualitative modernization of the domestic justice. For optimal understanding of the problem field, the authors used a set of general scientific and private‐scientific methods. The article provides a brief overview of the legal positions of the Constitutional Court of the Russian Federation and judicial acts reflecting the views of the law enforcers on the motivation of the sentence. In the introduction, the authors justify the relevance of the study, also discusses possible criteria for the fairness of a judicial decision in criminal justice. The second section analyzes the main trends in overcoming the accusatory bias in criminal proceedings and determines the relationship between constitutional legal and criminal procedural parameters of justice and the validity of judicial decisions. The third section examines the main shortcomings of the elements of judicial control in pre‐trial criminal proceedings and assesses the prospects for the establishment of an investigative judge. In the fourth section, the authors explore the specifics of the legalization of operative information as evidence in a criminal case, taking into account the legal positions of the Constitutional Court. The fifth section is devoted to the analysis of the latest changes in the criminal procedure law regarding the order of consideration of cases in the appellate and cassation instances. In the sixth section, the dynamics of doctrinal views on the systemic flaws of the Russian criminal process are examined.
The main proposals for the improvement of the Russian criminal procedure legislation are formulated in the conclusion. It is concluded that the principle of the adversarial process is not taken into consideration completely during the transformation of the criminal procedure in Russia.SCIENTIFIC LIFE
ISSN 2658-4050 (Online)