THEORY AND HISTORY OF LAW ENFORCEMENT
The subject of the article is the content of the constitutional amendment of 2020 on the need to ensure the protection of historical truth.
The purpose of the research is confirmation or confutation of the hypothesis that protection of historical truth should not be provided by measures of constitutional and legal regulation, since this would conflict with other constitutional principles.
The methodology of research includes analysis of academic researches concerning the essence of historical truth, interpretation of Russian Constitution.
The main results, scope of application. The author proves that "historical truth" in the constitutional and legal sense is the goal of an objectively and conscientiously minded researcher, guaranteed in a free democratic society by the constitutional right to freedom of thought, scientific creativity and expression. Goal-setting in cognition is a matter of mental activity that is difficult for the democratic control of the state and law. From a normative point of view the moral aspect exists here only (the search for historical truth is a virtue, its distortion is a vice). Constitutional democracy is based on the will and needs of today's generation of people. The past, of course, has a certain significance, but it cannot be considered decisive. An excessive preoccupation with traditions and the historical past is fraught with stagnation, stagnation or even degradation of the state mechanism. Constitutional regulation of historical truth leads to unnecessary sacralization of the history of the state, which is profoundly alien to the true legal essence of the constitutional system of a modern democratic society and the objectivity of historical and legal science. State-legal influence in this area is difficult and entails risks of legally binding ideology, which is prohibited by the first chapter of the "Fundamentals of the constitutional order" of the Constitution of the Russian Federation (part 2 of article 13) and the current acts of the Russian Constitutional Court.
Conclusions. The legal obligation to "ensure the protection of historical truth" deserves a critical assessment, since it is difficult to combine with the constitutional rights to freedom of scientific creativity, freedom of thought and speech, the principle of ideological diversity and the democratic nature of the Russian state. The right of citizens to their own position on historical issues and search for their "historical truth" followed from the constitutional regulation before the constitutional amendments of 2020 and continues to operate today due to the immutability of chapters 1, 2 and 9 of the Constitution of the Russian Federation.
The subject. The article reveals the main historical trends and legal problems concerning unification of documents used by Russian authorities during different historical periods. The purpose of the article is to identify the prerequisites for the origin of document unification, as well as to characterize the periods of development and main directions of document flow standardization in pre-revolutionary Russia. The methodology includes historical-legal method, formal-legal method, systematic approach, chronological method, analysis, synthesis. The main results of research. Scientific understanding of the historical and legal aspects of document flow standardization is closely related to the main stages of its development, and therefore the problem of periodization of document flow standardization in Russia for the purpose of systematization and scientific generalization of this field of knowledge comes to the fore. The chronological approach was chosen as the most appropriate criterion, which allows to trace the evolutionary development of document management standardization, link it with the general history of office work in Russia and state policy in this area. The research will help to determine ways to improve the current system of document management standardization in Russia. The research topic becomes especially relevant in connection with the activation of the processes of implementation of international standards, and the wide application of foreign practice in the field of documentation management over the past decade in Russia. Generalization and analysis of the historical experience of our country in this area makes it possible to identify the national specifics of document management and its standardization. It helps to determine the prospects for the implementation of international standards. Conclusions. The study of the history of documentation practice in Russia allows us to conclude that the issues of document flow rationalization were of great importance since the XVII century. Considerable experience was accumulated in the field of document unification in pre-revolutionary Russia. The beginnings of document unification arose at the dawn of the XVII century and developed gradually with the formation and complexity of the office system in Russia. At the first stage unification was manifested in the consolidation of spontaneously formed norms and rules for drawing up business papers, by the end of the XIX century it turned into an independent element in the field of document management. The gradual evolution of the form as well as the introduction of stamp paper led to the appearance of legally established forms of documents with permanent details in the XIX century, and the first unified documentation systems were created. The appearance of collections of business paper samples showed that government and Russian society understood the importance of using sustainable document models in order to streamline document flow.
THE LAW ENFORCEMENT BY PUBLIC AUTHORITIES
The subject of the article is justification of the main elements of the constitutional responsibility of the Russian Constitutional Court in the context of constitutional reform.
The purpose of the article is confirmation or refutation of the hypothesis that the Constitutional Court must be subject to constitutional responsibility.
The methodology. The author uses methods of complex analysis of legislation, synthesis, as well as formal-logical and formal-legal methods.
The main results, scope of application. Russia as a democratic state excludes the existence of legally irresponsible subjects of state power. It concerns the Constitutional Court of the Russian Federation. Legal irresponsibility characterizes only the absolute monarchy. The article comprehensively examines the problem of responsibility of the Constitutional Court of the Russian Federation, the reasons for the poor development of this institution in legislation and academic literature are also considered. The reasons for the Constitutional Court's dependence on the President of the Russian Federation as a "guarantor of the Constitution of the Russian Federation" have been systemized. The author considers duumvirate of guarantors of constitutional legitimacy as a nonsense. The reasons for the Constitutional Court's peculiar use of the law of the legislative initiative are considered. This initiative was used only in the direction of increasing the term of the powers of judges of the Constitutional Court from 65 up to 70 years. The life-long status of the President of the Court is seen as a violation of the principle of equality of judges, which is the most important guarantee of the independence of the Constitutional Court. Constitutional reform-2020 completed the process of dependence of the Constitutional Court on the President of the Russian Federation and the "second government" - the Administration of the Russian President. Some constitutional and legal torts of the Constitutional Court of the Russia are considered also. The author comes to the conclusion that judges of the constitutional court have a special responsibility - political, moral and historical. The main questions are need to be resolved: who has the right to state the torts of the constitutional court and what are the consequences of this statement?
The subject. The paper is focused on the study of the role of performance information in the decision-making process on public finance with particular accent on the legal aspects of the issue.
The purpose. We aim to show that the performance results have a little impact on the public finance allocation in the next management cycle. Nowadays the financial resolutions are taken not on the basis of the results, but apart from them. The problem can be identified in many countries and currently discussed on the international level. We make an attempt to identify the main reasons for this. The research is elaborating the possible solutions for the problem and presenting possible amendments to the legislation.
The methodology. The multidisciplinary approach is employed in this research as the problem is covered by different social sciences like law, economics and politics. The methods of analysis and synthesis are relevant for this paper. The examples and illustrations from different countries all over the world constitute the empirical part of the article.
The main results and conclusions. The key reason for the omission or misuse of performance results in public finance is the passive role of the user of the performance information. There is a lack of legal incentives for using the performance results for those who take the financial decisions. Those who take the decisions in public finance governance should have an obligation to assess the performance information and use it for the further resolutions.
Scope of the research outcome application. This research shall have substantial impact on the development of adequate legal model for the performance information use in public finance allocation. If the legal obligation to use the performance information is introduced it will have positive impact on the legal regulation of public finance in Russia. This can be relevant for the international studies of the issue and for the legal regulation of financial governance in other countries as well.
The subject. The leading position of the personal income tax in most countries is due to a number of circumstances. First, it is a personal tax, the object of which is the income actually received by the payer, and not the estimated average income that could be received in specific economic conditions. Second, income tax allows to maximize the implementation of the basic principles of taxation - universality and uniformity. In recent decades, national regimes of personal income taxation regimes have been actively developed both in foreign countries and in Russia.
Purpose of the study. The article shows the results of analysis of the framework of personal income taxation in the Russian Federation in the context of the principle of the social fairness. Dealing with selected provisions of the national legislation of European countries and Russia the article shows that elements of progressive taxation can be applied only in particular aspects. The proposals of taxation of rich taxpayers are also brought into light. Methodology. The research was carried out with the application of the formally legal interpretation of legal acts as well as the comparative analysis of Russian and European legal literature. Structural and systemic methods are also the basis of the research,
The main results. After studying the European experience of personal income taxation the authors come to the conclusion that some of the ideas described can be transferred to the Russian tax legislation, but this should be done with caution. It is not necessary to introduce a progressive tax system in its pure form in the Russian Federation, but it is worth considering options for switching to a dualistic system. The authors believe that the elements of borrowing foreign experience should be aimed rather at a fair distribution of benefits, for example, through rules that fix tax benefits.
Conclusions. The following proposals can be formulated to improve the legal regulation of personal income taxation in the Russian Federation: the distinction between taxation of taxpayers with ultra-high incomes and those with minimal incomes should be based not on the income criterion, but on the expenditure criterion; to establish a non-taxable minimum in the amount of the minimum wage, which will ensure tax fairness for taxpayers with lower-average incomes; to review the criteria of taxation of luxury vehicles, raising the border separating the mass and premium segments of the Russian car market by at least two times - up to 6 million rubles. The best solution would be to abolish the vehicle tax and impose an increased excise tax on fuel and lubricants for personal transport.
The subject. The research concerns analysis of legal status of a new participant of tax relations in the digital era - an operator of electronic platform.
The purpose of the article is to confirm or disprove hypothesis that operators of electronic platforms are participants of tax relations and their rights and obligations must be described in tax legislation.
The research methodology includes an interpretation of tax legislation, other legal acts governing the legal status of operators of electronic platforms, analysis of rights and obligations of other participants of tax relations.
The main results and scope of their application. Due to the lack of an unambiguous definition of the legal status of operators of electronic platforms, obstacles are existed in the use of the transactional principle to taxation in case of professional income tax in Russia. Administration of this tax implies a complete absence of tax reporting as well as an unusual moment of the payment of this tax - at the time of the transaction, when self-employed taxpayer receives payment for his services by a consumer. This mechanism eliminates the unnecessarily complicated process of notifying the tax authorities about such transactions, but implies additional obligations to the operators of electronic platforms and the taxpayers themselves. It actualizes the necessity of detailed description of legal status of the operators of electronic platforms in tax legislation.
Conclusions. The legal status of operators of electronic platforms in terms of belonging to the participants in tax relations already provided for in the Tax Code of the Russian Federation is not defined. Although they act as intermediaries in calculating and paying professional income tax. Such a lack creates a number of practical problems and does not contribute to the development of a transactional approach to taxation. At the present stage, it would be logical to recognize the operators of electronic platforms as tax representatives of taxpayers or withholding agents. According to the further development of the technical capabilities of tax administration, operators of electronic platforms may become a new participants of tax relations, who are conventionally called by the author «technological intermediaries».
The subject. The developing approaches towards the classification of various types of income received as a result of electronic transactions for the purposes of domestic tax legislation and double tax treaties at the level of international tax governance and at the level of Russian tax legislation and practice.
The aim of this paper is to test the hypothesis that the legal approach and criteria developed in the course of work of global tax governance institutions (OECD and UN) towards income classification from cross-border transactions in electronic form can be used as a basis for legal approach towards this issue in Russia.
The authors use the methods of comparative legal analysis and logical-analytical method. In particular authors perform the detailed review of the related provisions of OECD and UN.
Model Tax Conventions, commentaries to them and global tax governance expert group's position and contrast it against the Russian legal practice relating to the subject.
The main results, scope of application. Uncertainty in the income classification may arise for almost any type of digital transactions, since income received can fall under at least three different categories. Incorrect legal classification may result in double taxation, nontaxation and distortion of neutrality. There is still ambiguity in the development of international consensus approach towards the issue. There are developing approaches to the characterization of income in the comments to the OECD and UN Model Tax Conventions, however, they can hardly be called fully elaborated due to the specific nature of the digital transactions. The similar situation can be observed in Russian tax legislation where the issue of digital transactions creates a lot of uncertainty. The analysis of domestic court practice indicates the absence of the national approach to the classification of income due to the small number of court cases. On this basis, an attempt was made to form a theoretical and methodological model of classification of digital payments for the purpose of applying the corporate income tax, based on the provisions of domestic law and recommendations of OECD and the UN.
Conclusions. The authors find that despite of the presence of some guidance towards characterization of income from digital transactions at the level of OECD and UN a stable legal framework is strongly needed in the domestic tax law. The approach towards classification proposed in this article can be used as a reference point for further academic and practical discussion.
The subject. The article is devoted to the analysis of the freedom of speech and access to information in the context of the emerging system of international information security.
The purpose of the article is to try to predict the positive and negative consequences of changing international relations in the digital age, to determine the role of freedom of speech and access to information in the context of confrontation between Russia and the United States.
The research presented in this article was carried out by combining different disciplinary approaches, including comparative law, comparative politics and international relations, political theory and sociology. Moreover, study includes methods of dialectical logic, analysis and synthesis, as well as formal legal analysis of international legal acts of the UN.
The main results and scope of their application. The rights of freedom of speech and access to information is undoubtedly one of the main in the global digital communication context.
Degree of implementation of human and citizen rights to freedom of expression and access to information are indicators of political processes, the pace of building a civil society and legal state in current country. These rights are the foundation of modern democracy.
The authors carry out a systematic analysis of the categories “freedom of speech” and “the right to access information”, identify the features of implementation of these rights in cyberspace, analyze international practice of legal regulation of these rights and assess the place and role of these rights in the emerging system of international information security. A legal analysis of international legal acts shows that the positions of the United States and the Russian Federation in the field of international information security are gradually converging, and the convergence is going in the direction of the Russian position Conclusions. The limits on the exercise of freedom of speech and access to information do not correspond to the level of development of public relations, because there are no effective legal tools to prevent defamation in the mass media, which in turn can lead to conflict between countries. It is concluded that there is a need for active international cooperation and consistent unification of the legislation of various countries, taking into account that freedom of speech and access to information in cyberspace should have the same level of protection as in the physical world.
The subject. The system of state control and supervision in the Russian Federation was chosen as the subject of research. The relevance of the article is due to the need to find a balance between improving the level of law and security in various areas of business and reducing administrative pressure on business entities during control and supervisory activities.
The purpose of the article is the goal is to substantiate the scientific hypothesis that the existing system of state control and supervision in Russia needs further improvement despite the performing legislative reform.
The methodological basis for the study: general scientific methods (analysis, synthesis, comparison, description) as well as legal interpretation of legislative acts and drafts.
Results, scope of application. The correlation of the terms "control" and "supervision" is defined, the stages of development of these institutions are highlighted, and he directions for improving the control and supervision activities of the state are outlined. Analysis of the features of legislative regulation of state control and supervision allowed us to identify three stages of its formation. Currently, the third stage of the control and supervision reform is being implemented in Russia. Analysis of the new Federal law "On state control (supervision) and municipal control in the Russian Federation" made it possible to note that this act has some obvious advantages in comparison to Law No. 294-FZ: the extension of the scope of the risk-based approach, clear regulation of all control activities, avoiding monopoly inspections as the main tool of control and supervision, use of preventive approach rather than punitive approach.
Conclusions. It is concluded that the new Federal law "On state control (supervision) and municipal control in the Russian Federation" provides for the development of a risk-based approach in the implementation of control and supervision activities, as well as a number of other innovations that can, if being properly implemented, reduce the administrative burden on economic entities, change the punitive direction of the control activities to a preventive one. At the same time, the problem of unification of the conceptual apparatus in this area remains unresolved.
THE LAW ENFORCEMENT BY THE JUDGES
The subject of the article is some judicial acts on cases concerning protection of private property issued in Russia in recent years in the context of changes in the procedural legislation and legislation on the judicial system. The purpose of this article is to discover whether the current Russian judicial decisions may serve as input data for a machine learning algorithm in future. The main results, scope of application. The article presents an analysis of the changes in the Russian procedural law and in the regulation of the national judicial system in the recent years, which form new trends in judicial practice, according to the latest cases for the protection of private property in the courts. The author makes an analysis of the effectiveness of justice in providing recourse to private property violations in Russia. It is discovered whether the judicial protection has been substantially improved, following the promises of the Russian government. The article argues that these trends in judicial practice will negatively affect the automation of justice in the context of the nationwide digitalization of justice Such digitalization requires setting guidelines for the automated judicial decisions followed by the automated delivery of judicial documents. The methodology combines legal interpretation of judicial acts and Russian legislation comparative research, foresight and critical approach based on structured analysis, induction and deduction. Conclusions. There is a systemic deficiency in protecting private property in Russia, since neither the rules of civil and administrative proceedings, nor the constitutional control tools provide adequate protection on the matter. The recent relocation of the Constitutional Court of Russia from Moscow to St. Petersburg did not promote the judicial independence of the Court. On the contrary, the Constitutional Court, through formal excuses refrains from processing complaints on violation of private property rights and on the inefficiency of judicial procedures. The recent merger of the Supreme Arbitration Court of Russia and the Supreme Court of Russia has contributed to the uniformity of judicial practice. It violated the rights the owners of the shared premises in apartment buildings, but favored the beneficiaries of the management companies, which breach the owners' rights.
Judicial acts studied in this article prove their ineffectiveness in contributing to the quality machine learning for artificial intelligence required for the transition to automatic generation of blueprints and templates of court decisions. Analysis of judicial acts allows to conclude that they cannot serve now as a basis for machine learning of artificial intelligence. They cannot be systematized in databases even by the criterion of the law norms applied by the plaintiffs, since the courts evade the procedural obligation to explain why they reject the law norms that serve as the basis for a lawsuit or complaint, and apply completely different ones. These circumstances require the immediate response from the state authorities, including finding efficient ways to provide sustainable development of justice, i.e. ensuring the Rule of Law and access to courts, since otherwise the digitization of justice will lead to the automation of arbitrariness.
THE LAW ENFORCEMENT BY BODIES OF CRIMINAL EXECUTIVE SYSTEM
The subject of the research is the modern administrative law and administrative procedural doctrine shaping the view of the contents and nature of the legal relationship of administrative liability involving correctional agencies.
The purpose of the article is to confirm or disprove the hypothesis about significant features of legal relations of administrative liability arising, developing and terminating in the field of execution of criminal penalties.
The methodology includes systematic analysis of legal academic literature, interpretation of Russian legislation on administrative offences.
The main results. The static (universal for all law enforcement agencies) structure of the institution of administrative liability acquires its qualitative originality in the process of its practical implementation in the law enforcement activities of the relevant bodies and officials authorized by the state to bring to administrative responsibility through appropriate legal relations. The main part of the legal relations of administrative responsibility that develop in the activities of correctional institutions and pre-trial detention centers are of a security nature. These relations are primarily aimed not at implementing the main tasks of the legislation on administrative responsibility, but at achieving the basic goal of the functioning of penitentiary institutions, i.e. ensuring the public safety of objects of the Federal Penitentiary Service of Russia. Identification and proper procedural registration of the fact of an administrative offense will be the basis for the emergence of the corresponding protective legal relationship. The authors make proposals aimed at improvement of normative regulation and practice of application of administrative coercive measures, enforced by employees of the Federal Penitentiary Service of Russia. It is necessary to radically change the approach to the administrative and jurisdictional practice of correctional agencies by expanding the application of administrative responsibility to convicted persons and persons held in pre-trial detention centers.
Conclusions. Administrative liability relations involving correctional agencies have specific features. The application of such liability is aimed at maintaining the normal legal regime and ensuring the public safety of the relevant penitentiary facility. Administrative responsibility should be applied by correctional agencies to citizens who are located on the territory of the penitentiary institution and pre-trial detention center, civil personnel of the penitentiary system and special agents. A doctrinal definition of the legal relationship of administrative liability involving correctional agencies is formulated by authors.
THE LAW ENFORCEMENT BY THE BODIES OF PRELIMINARY INVESTIGATION AND INQUIRY
The subject. The article reveals theoretical, lexical and logical approaches to determining the essence of the public danger of crime.
The purpose of the article is to confirm or dispute hypothesis that the public danger of crime as a legal or theoretical construction represents the possibility of negative changes in society; public danger is an exclusive social feature of criminal acts. The authors also aim to develop a system of verifiable criteria for public danger.
The methodology of the research is an objective assessment of the public danger as legal category. It is performed selecting a system of verified factors of public danger on the basis of analysis and synthesis, induction and deduction, interpretation of legal literature.
The main results, scope of application. The meaning of the legal definition of a crime contains the purpose of preventing possible harm to society stipulated in the criminal law. This fact is due to the preventive task (part 1 of article 2 of the Russian Criminal Code). The public danger of crime as a phenomenon of objective reality is meaningless, since the crime is the negative changes and harm that has occurred. The social danger of crime creates a shock to the foundations of society, undermines the conditions of its existence. Other ("non-criminal") offenses that contradict the established law and order in the state do not threaten the basic system of social values. Intersectoral differentiation of legal responsibility should have transitivity, which includes a rule: the degree of repression of coercive measures within various branches of law meets the rules of hierarchy. Mandatory signs of public danger of a crime are that the act: 1) affects significant social relations that need criminal legal protection from causing harm to them by socially dangerous behavior; 2) has a harmful potential that is fraught with causing significant harm or creating a threat of causing such harm to the object of criminal legal protection; 3) results in socially dangerous consequences; 4) is characterized by the guilty attitude of the subject to the deed, expressed in the form of intent or carelessness. Optional criteria of public danger of act are: the characteristics of the crime and characteristics of victim; method of committing a crime; the time, place, atmosphere, instruments and means of committing the crime; the motive; the object of the crime; special characteristics of the perpetrator. The quantitative indicators (size, severity, or other value) of the subject of the offense and its socially dangerous consequences, as well as the repetition of the act and the presence of a special recidivism of crimes should not be used as criteria for public danger of behavior.
Conclusions. Public danger is a social feature exclusively of criminal acts (crimes and potential criminal misdemeanors); all other types of offenses are harmful to the interests of society, but they do not pose a danger to it. To exclude competition between criminal and administrative responsibility, it is necessary to take into account the public danger of the crime on the basis of verifiable factors.
The subject. The algorithm of qualification of beatings is researched taking into account changes in the Russian legislation of Russia on the protection of bodily integrity of a person. The author studies the norms of Russian criminal and administrative legislation in the field of protection of human bodily integrity and practical issues that have emerged in this regard.
The purpose of the article is to confirm or disprove the hypothesis of a complex (not obvious to the law enforcement officer) process of qualification of violent actions that caused physical pain, but did not cause harm to human health, due to the multi-level competition of legal norms.
The methodological basis of the study is the general scientific dialectical-materialistic approach based on the methods of analysis and synthesis, induction and deduction. Logical, system-structural, concrete sociological and comparative legal methods are also used. The research materials are data from judicial practice on liability for beatings and related crimes. The main results, scope of application. Beatings are considered as violence that is not dangerous to life or health. The norms that can be applied when the perpetrator commits the corresponding violent actions are identified. The differences between beatings and lawful infliction of harm, minor acts, and attempted crimes are shown. A distinction is made with related elements of crimes against life and health, constitutional rights and freedoms, interests of minors, property, etc. The presentation is based on the author's systematization of the rules for qualifying beatings and taking into account the sequence of steps for making the final decision by the law enforcement officer. The results of the research may be applied in higher legal education, further academic researches concerning beatings as well as in law enforcement practice of criminal investigations.
Conclusions. The author explains the difficulties in qualifying beatings. The rules of legal assessment of violent actions that caused physical pain, but did not cause harm to health, in the competition of criminal law norms are shown. The algorithm for qualifying beatings according to the current legislation of Russia is derived.
SCIENTIFIC LIFE
The article assesses the monograph by Sergey Baburin. The monograph is devoted to formation in the process of international integration supranational law, taking into account peculiarities of the synthesis of international and constitutional law. This problem is one of the most actual in the context of the constitutional reform in the Russian Federation. Taking into account certain discussion points, it is necessary to come to a conclusion about the high relevance of Sergey Baburin's scientific research. The monograph is based on serious analysis of the legal, sociological, historical and teleological features of integration processes and their root causes. Such research fully meets the requirements of modern legal scientific thought.
ISSN 2658-4050 (Online)