The article is devoted to the analysis of evaluation method and its impact on legal policy development in governance, including in the area of law enforcement.
The author outlines the importance of question whether, when and how the evaluation results of public policies, programs and measures has been utilized (or not utilized) in policy making and policy implementation.
In the pursuit of this guiding question the article will come in five steps.
First, major variants of evaluation will be briefly presented particularly with an eye on their respective “utilization potential”.
Second, different concepts will be sketched that have been forwarded to capture the utilization of social science generated knowledge by political, administrative and social actors. The author outlines a detailed description of types of evaluations: a retrospective, prelimi-nary, ongoing, interactive, – as well as existing concepts of application of its results.
Third, looking at Germany, Switzerland and the European Union as “cases in point” perti-ent research findings will be discussed. The article also subjected to a detailed analysis of the experience of Germany, Switzerland and the European Union in the field of utilization of evaluation results.
Fourth, a summary and conclusion will be given.
Fifth, some remarks on pertinent research needs will be made.
The author comes to the conclusion that that the rate of the utilization of evaluation-generated knowledge has so far turned out be, by and large, scarce. The author says that re-garding the politically crucial decisions the political rationality and its underlying political will of the decision-makers prevail while concerning less important decisions evaluation-generated evidence does show some effect and, hence, a dose of scientific rationality comes to the fore.
There is also a need for further research on the subject of how should (and should not) use assessment results when making legal and political decisions.
УДК 340.130.5+342.4
The legal theory and practical problems of interpretation (explanation) of adopted acts are analyzed in the article. The author researches Belarusian legislation, theory of law and legal acts of public authorities.
The article gives a detailed description of the types of interpretation, such as authentic, casual, – with examples from Belarusian legislation.
Attention is drawn in the article to existing shortcomings, in particular, liability of organizations and individuals when they act in accordance with the official response, abolished by superior authorities.
The author offers comprehension of the problems associated with contradictory practice of promulgation the adopted acts of interpretation, disputes regarding the list of authorities, who are able to clarify such act.
The author emphasizes that if the explanation given to one requesting applicant, previously formulated rule must have the power at emergence of a similar situation concerning an-other requesting applicant. The author believes that the taxpayer or other applicant should have possibility to claim into the court if he disagrees with personal answer given by relevant authority (an official).
The author speaks about the necessity of recognition of precedent as source of law. Judicial and other precedent are at the core of law enforcement practice, the guarantor of a uniform enforcement practice.
In conclusion it is emphasized the necessity of improving existing legislation, the proposals are introduced.
УДК 342.5
The place of law enforcement in the system of provision for national tax security is analyzed in the article. The author analyzes scientific approaches to the concept of national security as a generic term to the tax security, highlights its elements and contents.
The author notes that the state, public and personal safety shouldn’t be opposed each other, but they should be considered as elements of a unified system of national security
Full and effective implementation of the rights and legitimate interests of citizens and their communities equally meets the needs of national security as the protection of the interests of the state as a whole.
The author is convinced that national security and tax security in particular are achievable only in conditions of genuine state sovereignty. The characteristics of the forms of tax sovereignty, as well as classification of threats to tax sovereignty and tax security, are given in the article.
The author's concepts of national security and tax security are given in the article as well as their tasks are defined. National tax security is defined by author as a level of development of public relations in the sphere of taxation, when the amount of collecting taxes corresponds to the number of planned tax revenues taking into account the need for full funding of all functions and tasks of the state and municipalities both in the current period and in the future.
The interests of the tax security, of course, must be taken into account in the enforcement process in tax relations. The author describes the mechanism of the interdependence of the national tax security and law enforcement in tax relations. The ignoring of threats to tax security by tax enforcers reduces the level of security and does not meet the objectives of the implementation of the law in a sovereign state.
УДК 347.9
The article is devoted to analysis of tax harmonization in the area of direct taxation in the European Union. Questions of positive and negative integration, common market and tax harmonization are analyzed.
The author mentions the following benchmarks of the European tax integration: these are tax harmonization in the area of direct taxation, prohibition of discrimination and of unfair competition, leading role of fundamental freedoms in field of European integration.
The direct effect of EU law is brought into light. The international treaty is a special source of law of Member States and it used in cases which can't be regulated by national legislation or by acts of integration law.
Directives and regulations as sources of EU secondary law are described in the article. Their special features are also brought into light.
International EU agreements and acts of cooperation in the area of taxation are also brought into light. The special role of soft law is also mentioned in the article.
The special role of the European Court of Justice in forming of EU tax law is emphasized.
The conclusion of the article is in the statement of importance of taxation in the forming of internal market in integration community.
The expected results are important both from theoretical and practical points of view and include:
working out the legal framework of direct taxation and finding out actual problems of integration tax law mentioning modern trends of cross-border taxation;
recommendations of improving of harmonization mechanisms in the EAEU and improving of the Russian Tax Code.
УДК 347.163
The main purposes of present article are the research of regulatory framework of establishment of repayment for tutors of emancipated incapable persons and legal practice of set-tlement of disputes in abovementioned sphere. Accumulation of methods of scientific cog-nition is a methodological outline of present research, the main methods are system-defined, technic and comparative ones.
Based on deep analysis of federal and regional provisions of legislation maintained terms and conditions of payments of repayment for tutors of emancipated incapable persons the social and interim nature of aforementioned payments is concluded. Current state law actually allows to conclude that the state care for the socially vulnerable categories of the citizens, including the elderly and disabled citizens, with limited material resources, encourages the legislator to seek new alternative ways of its implementation. To those should be referred "social outsourcing", that is, privatization of "unprofitable" social services in order to optimize the budgetary resources. Meanwhile, the reduction of costs for the implemen-tation of the social functions of the state should not take place to the detriment of the content component.
In the scientific literature there is no unanimity of views on the legal nature of the payments made by the trustees for the performance of such duties. Comparison of remuneration of trustees with a monthly payment for child care until the age of 1.5 years to achieve it possible to identify common objectives of establishing these payments, as well as the identity of their social and interim nature. Confirmation designated theses is to analyze the provisions of the legislation of the Russian Federation, in which the caregiver award is regarded as one of the ways to sequence the elimination of in-patient care and social services at home, which also contribute to the strengthening of social protection of this category of citizens.
However, the practice of implementation of the provisions in the legislation found a num-ber of fundamental problems. In particular, the regulation of these relations norms different industry sector is the cause of the ambiguity of their interpretation. Judicial authorities misinterpreted the purpose of the above payments, ignoring their legal entity. The current judicial practice does not allow to achieve the objectives the legislator and has a negative impact on the social security of citizens.
УДК 349.41
The article is devoted to the analysis of legal forms and informal land use practices existing among Chinese farmers on the Russian Far East. The main intention of the authors is to explore the reasons for the existence of sustainable practices circumvent legal restrictions of land rights of foreign citizens and legal entities, as well as determine the “limits of limitations” of land rights of foreigners (including property and land lease rights). Problem field of the research includes definition of trends of legal regulation in this sphere, classification of informal land use practices by Chinese farmers, as well as a comparative description of the trends in legal regulation of land relations with foreign element in the Commonwealth of Independent States and Asia-Pacific countries. Methodology includes sociological methods (interview, participant observation) by which authors has obtained and classified infor-mation on informal land use practices existing among Chinese farmers. Specially-legal methods (including comparative legal analysis and method of normative interpretation) were used to determine the regulatory trends in neighboring countries as well as to find out the limits of restrictions which may be imposed on foreigners land rights without con-tradiction with federal Constitution. Restrictive initiatives promoted recently by Ministry of agriculture not only make a visible contrast with the liberalization of land use in the neighboring countries of the Asia-Pacific region, but also are not adequate in light of the government's intentions to attract foreign investment into the economy of the Far East region. The fact that some subjective rights belongs to foreign citizens and legal persons in itself does not allow the government to restrict them more than such rights of Russian citizens. Moreover, further limitation invades in the very essence of the content (core) of the right for land. A further limitation of land use rights of foreigners not only would repel investment, but will also encourage the development of informal land use practices, which, in turn, are the breeding ground for corruption in local government, as well as in the controlling and supervisory authorities.
УДК 342.25
The purpose of this article is to study the concept and the content of "competence" cate-gory in relation to the entities of municipal governance in Russia and Canada. The methods of theoretical analysis, along with legal methods, including formal-legal and comparative law methods are used to achieve this goal.
In the article, the author notes the lack of consensus in legal science in determining the con-tent of "competence" category and its subjective identity. Some authors consider the compe-tence as a set of rights and obligations of public authorities (Yu.A. Tikhomirov, S.A. Avakyan), while others recognize the correct use of the word "competence" in relation to the public territorial collectives and institutions of public power in general (T.M. Byalkina et al.).
The Russian legal model for determining the competence of municipal governance entities also implies the distinction between the concepts of "local issues" and "powers." Unfortu-nately, the domestic legislator does not provide for the clear distinction of these concepts, and there is also a lack of content specification of the issues to be addressed at the local level. Recent changes in law also call into question the relation between the municipalities’ competency model and the constitutional autonomy of local government.
At the base of the approach to the definition of the competence of municipal government entities in Canada, as well as within the Anglo-Saxon model in general, lies the need for decentralization of functions, which cannot be effectively carried out by the central author-ities or the private sector (A. Sancton). The competence carrier here is a municipality as a form of public corporation. This does not lead to contradiction between this carrier and other municipal governance entities (specifically, local authorities), as the latter carry out activities for the competence implementation on behalf of the corporation.
The approach to the municipality as a corporation originally anticipated the use of the ultra vires doctrine, which excludes from municipal jurisdiction the issues and powers not ex-pressly granted by statute. However, the analysis of the dynamics of legislative and judicial practice in Canada demonstrates a departure from this fundamental principle in favor of expanding the municipal competence, based on the goals of municipalities’ activities. The author believes that such an approach is contrary to the legal nature of municipal corporations, and therefore the rules governing the competence of municipalities and the rules governing their legal status in general need to be harmonized.
Based on the above, the author concludes that in Russia and Canada both theoretical and normative work is required to eliminate defects and optimize the functional load of munic-ipal governance entities.
УДК 342.53
The question of the concept and characteristics of a municipal formation has a very practical embodiment: in disputes about territorial foundations of local self-government, the courts often have to infer the presence or absence of the municipality, to investigate the presence or absence of signs of a municipal formation have a specific territory. The objective is to study the concepts and characteristics of the municipality in the materials of law enforce-ment, a comparative analysis of different types of municipalities. The study used the dialec-tical, system-structural, functional, comparative-legal and other methods of cognition. The article compares the types of municipalities found in the Federal legislation and the legisla-tion of subjects of the Russian Federation, explores the question of the powers of the con-stituent entities of the Russian Federation on the establishment of new types of municipal formations. For example, the practice of the constitutional Court, materials of the State Duma emphasized that in providing different types of municipalities, the Federal legislator has quite clearly articulated its desire to establish their differences. Special attention is paid to the analysis of differences in the legal status of municipalities belonging to the same species. Analysis of legal material, law enforcement practice allows the following attributes of municipal formation: territory, permanently or primarily resident population, municipal property and local budgets, bodies of local self-government, the Charter and the system of municipal legal acts, official symbols. When considering the question of the legal status of municipalities stated that the question of equality of different types of municipal for-mations is not so straightforward. Most of the differences in the legal status of different types of municipalities is established by Federal laws and is driven by the desire to make local government more efficient and municipal services more accessible. In addition to ac-tual differences in the legal status of the municipal formations of different types, there are examples of establishing the differences between the municipalities belonging to the samespecies. Especially sharply this question arose in 2014-2015, when the subjects of the Rus-sian Federation received the right to establish the order of formation, as well as other issues of organization and activity of local authorities. With reference to the decision of the Con-stitutional Court of the Russian Federation from December 1, 2015 States that it is possible to establish different models, different criteria determine the structure of local govern-ments for different types of municipalities or the specific municipalities. For this to be es-tablished concrete and clear criteria; otherwise will mean the restriction of the right to ex-ercise local self-government that contradicts a number of articles of the Constitution.
УДК 34
The article highlights the main stages in the development of local government and self-gov-ernment in Russia. It shows the specifics of each stage. The formation of the Russian state was accompanied by the synthesis of the princely power and the community self-government. The genesis autocracy was accompanied by a struggle with the self-government institutions. The creation of rural and urban self-government in the second half of the XIX century was accom-panied by a debate on the social and public origin of these institutions.
The Soviet state was based on the unity of the Soviet system. It concluded the discrete de-velopment of local self-government in Russia. There is no historical strong tradition of local government in this system.
Objective of the article is to identify and characterize the main stages of development of local government and self-government in Russia. Show the discrete nature of the develop-ment of local self-government in Russia.
The formation of the Russian state was accompanied by the synthesis of princely power and community self-government. Genesis autocracy was accompanied by a struggle with self-government institutions. The absence of territorial self-government in Russia was offset by the presence of social class municipality for a long time. Caste traditions tradition had a negative impact after the establishment of rural and urban self-government in the second half of the XIX century.
During the preparation of the reforms and their implementation were discussions of the rela-tionship between the state and the community began in management. As a result, there is the inclusion of local authorities in the sphere of active state regulation. The desire of the county public to the political activity was suppressed by autocracy. The Provisional Government at-tempt to rely on the local self-government to create new authorities ended in failure.
The Soviet state was based on a single management system. Certain powers was delegated at the local level. The local authorities have been transferred some resources to implement it. So the system of local budgets was build. The most successful period of the local govern-ment activity accounts for 1920s. The city and district are considered as the territorial foundation of local government. Scientific field formed that studies the feature of local govern-ment in the Soviet conditions.
In the 1930s, there is centralization of government. The development of the city is subject to problems of industrialization and development of the rural areas is subject to problems of collectivization. The state policy does not consider the interests of local communities.
The liberalization of the political regime in the late 1950s has led to a revival of the idea of decentralization. But decentralization of government is considered solely as an economic rather than a social and political problem. This understanding persisted until the end of the Soviet period.
The lack of stable historical tradition of local government negatively affects the municipal development of the Russian Federation.
УДК 343(2+7)
The main provisions of the theory of qualification of crimes were developed in the Soviet times. Some of them, notably relating to the content of criminal law assessment, have become obsolete. Therefore, the article aims to interpret a new vision of the content of qualification. The methods used in the research include analysis, synthesis, induction, deduction, interview and statistical method. The authors note that in practice, in fact, general and specific signs of the crimes appearing in the criminal law are used in the qualification of crime.
The authors question the use of "corpus delicti" in enforcement during the criminal legal evaluation. Corpus delicti was created in science to the full understanding and disclosure of the crime and its possible structures. It is impossible to carry out qualification and to resolve issues of criminal responsibility or exemption from it on the basis of scientific statements, which are not enshrined in law.
Without knowledge of corpus delicti it is possible to hold a formal qualification of the offences and the imposition of criminal liability. This is due to the fact that all penal signs, sufficient for criminal liability provided for in the existing criminal law of the Russian Federation.
The authors make the conclusion that qualification is carried out not in terms of corpus delicti, which is a scientific category, but on the basis of general features of crime – guilt, social danger, unlawfulness, liability to punishment, since it is them that are consolidated on the legislative level.
УДК 343
Purpose of the article is to study the specific legal and informational nature of the unsolved crime in comparison with the phenomenon of delinquency, special study and analysis to improve the efficiency of law enforcement.
Methods of research are abstract-logical, systematic, statistical, study of documents. The main results of research. Unsolved crime has specific legal, statistical and informational na-ture as the crime phenomenon, which is expressed in cumulative statistical population of unsolved crimes. An array of unsolved crimes is the sum of the number of acts, things of which is suspended and not terminated. The fault of the perpetrator in these cases is not proven, they are not considered by the court, it is not a conviction. Unsolved crime must be registered. Latent crime has a different informational nature. The main symptom of latent crimes is the uncertainty for the subjects of law enforcement, which delegated functions of identification, registration and accounting. Latent crime is not recorded. At the same time, there is a "border" area between the latent and unsolved crimes, which includes covered from the account of the crime. In modern Russia the majority of crimes covered from accounting by passing the decision about refusal in excitation of criminal case. Unsolved crime on their criminogenic consequences represents a significant danger to the public is higher compared to latent crime.
It is conducted in the article a special analysis of the differences and similarities in the unsolved latent crime for the first time in criminological literature.
The analysis proves the need for radical changes in the current Russian assessment of the state of crime and law enforcement to solve crimes. The article argues that an unsolved crime is a separate and, in contrast to latent crime, poorly understood phenomenon. However unsolved latent crime and have common features and areas of interaction.
УДК 343
The article is devoted to the analysis of the concept of the legal nature and the system of other measures of criminallegal nature, specified in the Criminal legislation of the Russian Federation and the problems of application of these measures in the judicial practice. The author pays attention to the fact that these measures are quite common in the judicial practice, especially conditional sentence. The legislator establishes three of other measures of criminal-legal nature in section VI of the RF Criminal Code: compulsory measures of a medical nature, confiscation of property and judicial penalty. But the author of the article aims to prove that the system of other measures of criminal-legal nature is not exhausted by these three measures. The article substantiates the statement that the measures in question constitute independent institute of criminal law. The author analyzes in details the concept and the legal nature of other measures of criminal-legal nature, their difference from punishment. Since the other measures of criminal-legal character are varied and specific, the author considers that it is difficult to formulate a general definition of such measures. The author distinguishes three approaches in the theory of criminal law on the question about the system of measures under consideration: "wide", "narrow" and "balanced approach." The author adheres to the "balanced approach" and justifies the statement that the organization of other measures of criminal-legal nature can only be based on their legal nature. This leads to the conclusion that conditional sentence, postponement of punishment, postponement of punishment for drug addicts, compulsory measures of educational influence, compulsory measures of medical nature connected with the execution of the sentence should be referred to other measures ofcriminal law. The author substantiates the view that the legislator's decision about systematization of measures considered in Section VI of the RF Criminal Code is inconsistent and illogical. According to the author, the confiscation of property should be provided in the criminal legislation not as other measure of criminal law, but as an additional kind of punishment. Judicial fine should be excluded from the Criminal Code. Because of their specificity and diversity it is hardly expedient to allocate all the other measures of criminal-legal nature in one section of the RF Criminal Code.
УДК 343.2
A new institute of repressive measures applied outside the criminal liability in criminal law (including as a condition for exemption from criminal liability) is forming now in Russian legislation. The author concludes that the provisions of the criminal law on monetary compensation and a court fine should be deleted because of the following reasons. 1) By their nature, and monetary compensation and a court fine, not being a formal punishment (and, therefore, a form of realization of criminal responsibility) is a monetary penalty, i.e., penalty-punishment. Moreover, the rules of court fine destination identical rules of criminal sentencing. 2) Quantitatively court fine may exceed the minimum limits of criminal punish-ment in the form of fines. The dimensions of monetary compensation in the order of hours. Pt. 2, Art. 76.1 of the Criminal Code and at all close to the maximum values of fine-punishment. 3) Exemption from criminal liability requires states to refrain from prosecuting the person alleged to have committed a crime, which means that the nonuse of criminal repression. Regulatory standards analyzed, on the other hand, require mandatory use of repression, ie, virtually no exemption from criminal liability does not occur at all. 4) The use of a quasi-penalty in the form of monetary compensation and court fines are not an exemption from criminal responsibility, but on the contrary, the use of criminal repression (of responsibility), and in a simplified manner. 5) Contrary to the requirements of the Constitution and the Criminal Code of criminal repression is applied to persons whose guilt has not been established in the commission of a crime. Thus, in criminal law introduced a presumption of guilt. 6) Customization repression (in fact – of criminal responsibility) in the application of the judicial penalty is substantially limited, and the application of monetary compensation is excluded at all, contrary to the requirement that the rough justice (Pt. 1, Art. 6 of the Criminal Code). 7) Rules of court fine actually allow re-use of penalties and, moreover, consistent application of the two main types of punishment, although no one can be held criminally responsible twice for the same offense (Pt. 2, Art. 6 of the Criminal Code).
This article comprehensively and adequately considered some theoretical and practical aspects concerning the types of expert activities, the implementation of which non-state forensic-expert institution should have an appropriate license issued by them in the manner prescribed by law. Reflected the current system of voluntary certification for the test subject non-state forensic activities. The analysis of judicial practice on sample questions provided law enforcement mistakes of actors eligible to appoint a forensic examination in the criminal case, invited some of the trends of the current legislation.
As shown in the examples, despite explicit legal requirements on licensing of certain types of expertise-there are still violations of non-state forensic agencies. Regarding the certification of the institutions, we note that the absence in the law on forensic examination requirements for mandatory certification activities of non-state forensic institutions allow these organizations to make a decision about the need of certification of their activities. This approach of the legislator to the activities of non-state forensic institutions in light of the discussion in this section is not correct, in view of what we have proposed recommendations to improve normative-legal regulation in the field of forensics.
УДК 347.734
The relevance of the study is determined by the debates around legal rules devoted to the bank deposit contract, as well as an extensive judicial practice, revealing the problems of existing legislation. Purpose: to systematize the main problems of enforcement related to the bank deposit contract and to suggest ways of improving the current legislation. Meth-ods: general and special scientific methods (systemic, comparative, formal-logical and other) are used. Results: on the basis of the comparative experience of Belarus, Kazakhstan and other foreign countries, analysis of judicial practice proposals to improve existing legislation are presented (including types of contract, investigation of deposits, bail-in).
The authors conclude, it is necessary to supplement Chapter 44 of Russian Civil Code by rules on types of bank deposit agreement, establish the order of registration of the deposit and deposited funds with the remote technology, by list of requirements as to the form of deposit and savings certificates, by details and peculiarities of treatment, as well as consolidate the definition of "interest capitalization" and establish the list of cases of restriction of the rights of depositors for disposal of deposits. Procedural rules on the investigation of the deposits, determining the jurisdiction of cases on the protection of investors, are also should be improved.
УДК 340.132
The state of law enforcement in modern Russia is analyzed in the article on the basis of judicial statistics. The author gives a critical assessment of the most important decisions of the Constitutional Court of the Russian Federation handed down in 2015-2016 years in var-ious spheres of legal reality:
– local self-government;
– the formation of the foundationd capital repairs of condominium houses;
– pensions provision of ex-militaries;
– legislative regulation of property valuation activity;
– problem of execution of court decisions.
The Constitutional Court of the Russian Federation many times violated the Constitution of the Russian Federation. Since the Constitutional Court has recognized the legal abolition of elections of mayors in cities and towns. Constitutional Court recognized a legal collection taxes from citizens for capital repairs of condominium houses of others. Very often in the Russian law enforcement the Constitutional Court adopts a politically motivated decision, although such decisions are strictly prohibited by law. Unfortunately, the Constitutional Court of the Russian Federation not adequately protect the rights of Russian citizens and organizations.
The author comes to the conclusion of a big crisis of law enforcement caused of legal nihilism, rooted among the enforcers, is made in the article. Analyzing the examples of judicial practice author propose any ways out of crisis law enforcement.
УДК 347.9
The purpose of the article – a critical analysis of the position of the Constitutional Court of the Russian Federation, the justification, through the analysis of the ECtHR practice and scientific work on execution of the ECtHR judgments, about the coordination of positions of national courts and the supranational body.
The methodological basis for the study: general scientific methods (analysis, synthesis, comparison); private and academic (interpretation, comparative legal, formal-legal).
Problems and basic scientific results:
The issue of implementation of the Human Rights Court decisions at the national level oc-curs when the compensation is not enough to eliminate the revealed violations. Russian legislator opted for the situation of Human Rights by the European Court finding a violation of the provisions of the Protection of Human Rights and Fundamental Freedoms in the consideration by the court of a particular case, in connection with the decision by which the applicant applied to the ECtHR mechanism for review of the decision on the new circumstances. Supreme Court puts forward three conditions for the implementation of the revi-sion of the judicial act on a national level, which should be available at the same time: 1) the continuous nature of the adverse effects; 2) the existence of violations of the Convention or gross procedural violations; 3) a causal link between the breach and the consequences.
The author point out that the regulation of possible conflicts between the Convention and national legislation is based on cooperation (not confrontation) States and the European Court of Human Rights. Such practice of cooperation based on the principles of subsidiarity (addition to national rights protection system); evolutionary interpretation of the Convention (which implies flexibility, and accounting for changes in public relations); Judges dialogue and to develop advisory opinions. Consequently, the task of the Constitutional Court can not be default search options, on the contrary, its task – to determine exactly how, taking into account the differences in the legislation, the decision will be enforced. Failure, as well as the improper execution of judgments of the ECtHR may involve the establishment of a new violation of the provisions of the Convention and sanctions against violators.
ISSN 2658-4050 (Online)
