THEORY AND HISTORY OF LAW ENFORCEMENT
The subject of the paper is the constitutional development of Russia till 1990s up to 2018.
The purpose of the paper is to identify the main trends in development of Russian consti-tutional legislation.
The methodology of the research includes the formal legal analysis of Russian federal laws and their comparison with the decisions of Russian Constitutional Court.
The main results and scope of their application. The author gives the legal assessment to main novelties in Russian constitutional legislation: an increase of the term of office of the President of the Russian Federation and the State Duma of the Russian Federation, the in-troduction of the annual reports by the Government of the Russian Federation to the State Duma of the Russian Federation on the results of their activities, the merger of the Supreme and Supreme Arbitration Courts of the Russian Federation, the strengthening of the posi-tions of the President of the Russian Federation when appointing prosecutors, judges, members of the Federation Council, officials of subjects of the Russian Federation, central-ization of local self-government. The identified trends may be used in future research of Russian constitutional legal order.
The author comes to the conclusion that there is a need for strong state power in the con-ditions of reforming economic, social and state-legal institutions in Russia. The movement towards centralization and strengthening of the power vertical is a historically necessary and justified measure. It will be possible to implement decentralization and reduction of the regulatory functions of the state after the successful modernization of economic and social state and legal institutions.
The subject. The paper is devoted to the classification of financial law enforcement acts issued in Poland.
The purpose of the paper is a typological analysis of the financial law enforcement acts in Poland depending on the subjects who issues such acts.
The methodology. General scientific methods as analysis, synthesis, induction, deduction, comparison were used. The system method made it possible to regularize a set of financial law enforcement acts, taking into account the subjects of law enforcement in Poland. The functional approach made it possible to identify the types of financial law enforcement acts, depending on their role in the system of law enforcement in Poland.
The main results and scope of their application. The definition of the financial law enforcement act is proposed. Classification of subjects of financial law enforcement in Poland is carried out, their powers are covered and characteristics of the individual legal acts issued by them are al-located. The proposed qualitative analysis of law enforcement acts adopted in Poland may be-come a starting point for research in the field of financial law theory and comparative law.
Conclusions. A financial law enforcement act is an act issued on the basis of the current rules of financial law by the authorized bodies, establishing or determining – in respect of an individual addressee – the rights and (or) obligations in a particular case in the field of public finance, or preparing their establishment or determination.
The subjects applying the norms of financial law, can be divided into: bodies of financial ad-ministration, the courts (primarily administrative courts) and quasi-judicial bodies (e.g. the Commission, considering cases of violation of discipline of public finance). The first group of bodies issues decisions and orders (financial and legal acts), the bodies of the second group issue court decisions and court orders, the bodies of the third group issue decisions.
The role of administrative courts in the financial law enforcement is significant. Significant number of financial cases, particularly concerning individual interpretations, in the total number of cases considered by such courts is an evidence.
The subject. The paper is devoted to the issues of the system of constitutional legal guarantees of unity, stability and consistency of the Russian legal system, the problems of their effective implementation.
The purpose of the paper is to reveal the actual problems of constitutional legal support of the unity, stability and coherence of the Russian legal system.
The methodology of the study includes general scientific methods (analysis, synthesis, comparative method, description) as well as particular academic methods (formal-legal method, interpretation of legal acts).
Results, scope of application. It is revealed that the constitutional legal support of unity, stability and consistency of the Russian legal system occurs by means of action of two types of special constitutional legal guarantees: conflict and competence ones. A number of problems of effective support of the unity, stability and consistency of the domestic legal system are identified. The problems include gaps and other defects of constitutional regulation, the lack of a legal mechanism to ensure the supremacy of the foundations of the constitutional system and others.
Conclusions. There is a number of amendments to the existing constitutional legislation proposed to solve the identified problems.
THE LAW ENFORCEMENT BY PUBLIC AUTHORITIES
The subject of the paper is constituent entities’ powers in federative state concerning the establishment of the administrative responsibility for breach regional and municipal rules.
The purpose of the paper is to justify the need for new approaches to the delimitation of the constituent entities’ jurisdiction in the field of legislation on administrative offences, up to the allocation of administrative-tort legislation in the exclusive jurisdiction of the Federation.
The methodology. General and special scientific methods of cognition were applied: systemic, comparative legal, formal logical. The analysis of legislative and law-enforcement practice of the constituent entities of the Russian Federation, the legal decisions of the Con-stitutional Court of the Russian Federation, is also used.
The main results and scope of their application. The constituent entities of the Russian Federation, making legal acts in the field of legislation on administrative offenses, are not always properly take into account the boundaries of their competence in the field of establishment of administrative responsibility for committing administrative offences for breach regional and municipal rules. The compliance of such constituent entities’ authority to es-tablish this type of responsibility with the provisions of art. 19 and 55 of the Russian Con-stitution is very debatable issue. Although Constitutional Court of the Russian Federation in its decisions confirms the constitutional empowerment of the constituent entities with the authority to establish in its laws the administrative responsibility for violation regional and municipal rules, such decisions are controversial. It may be useful to consolidate adminis-trative and tort law in the exclusive jurisdiction of the Russian Federation.
Conclusion. The provisions of Federal legislation that let constituent entities of the Russian Federation to establish administrative responsibility for administrative offenses are not fully comply with the constitutional provisions, despite the opinion of the Constitutional Court of the Russian Federation.
The subject of the paper is Russian the legal framework and law enforcement practice con-cerning granting subsidies to business entities.
The purpose of the paper is to identify the legal problems of state support for small and medium – sized businesses by granting subsidies.
The methodology of paper includes the formal logical interpretation of Russian legislation, systematization of the court practice concerning application of art. 15.15.5 (pt. 2) Code of Administrative Offences of the Russian Federation and other regulations.
The main results and scope of their application. The legal basis of providing subsidies is characterized. The business support programs in Russia are analyzed. The author's ap-proach to the distinction between the concepts of "terms of granting subsidies”, “terms established when granting subsidies" and the "terms of using subsidies" is substantiated. The valid and invalid conditions for the granting of subsidies as well as the reasons for their return are proven. The results of research may be used as the basis of correction of Russian and foreign legislation concerning granting subsidies to business entities as well as step in future legal research in this sphere.
Conclusions. Public authorities and local governments do not take into account differences between the terms "conditions for granting subsidies" and "conditions for the use of subsi-dies", unreasonably apply civil law norms to the rules for granting subsidies. Regional au-thorities do not effectively use the legal opportunities provided to them by the Federal leg-islator, as well as often allow the abuse of power.
The subject of the paper is civil servants’ right on pension provision and realization of this right in Russian regions.
The purpose of the paper is to check the constitutionality and legality of limits to this right. Some limits were imposed by the court practice of the Supreme Court of the Russian Fe- deration.
The methodology. General scientific methods as analysis, synthesis, induction, deduction, comparison were used. The authors also use the formal legal interpretation of judicial decisions of the Supreme Court of the Russian Federation, concerning pension rights of public servants.
The main results and scope of their application. The principle of budget balance is very relevant for the Russian Federation and is crucial in the system of public administration. But different courts’ approaches to the protection of the rights of citizens depending on their official position and social affiliation means a violation of the constitutional principle of equality of rights, infringe the rights of civil servants to state pension provision. The results of research may be used as the basis of correction of judicial practice of the Supreme Court of the Russian Federation and legislation concerning pension rights of public servants.
Conclusions. Deprivation of rights to receive a pension when there is an absence of the region's necessary budget funds leads to unjustified differences in the implementation of this right in relation to civil servants in certain regions of the Russian Federation. The con-stitutional principle of equality of citizens' rights should always be taken into account by the courts when considering the most important cases related to the establishment of social support measures for certain categories of citizens.
The subject. The paper is devoted to the main trends of the Russian customs law at the present stage.
The purpose of the paper is to determine the place of customs law in the system of Russian law and to identify the features of its impact on the development of integration within the EAEU.
The methodological basis for the study: general scientific methods (analysis, synthesis, com-parison, description); private and academic (interpretation, formal-legal).
Results, scope. Despite all the variety of social relations that make up the subject of customs law, their core is the relationship associated with the management of customs authorities, regulated by the rules of administrative law. In this regard, the allocation of customs law as an independent branch of law, in our opinion, is premature.
Further development of integration within the EAEU has necessitated the development and adoption of a new codified legal act regulating public relations in the field of customs.
Analysis of the provisions of the customs code of the EAEU revealed the following innovations, confirming the thesis on the simplification of regulation in the sphere of customs affairs:
– reduction of terms of performance of separate customs operations;
– priority of electronic Declaration form;
– improvement of the Institute of customs control;
– further development of the Institute of authorized economic operators.
Conclusions. Customs law is a sub-branch of administrative law at present. A natural con-sequence of the integration processes is the transformation of the domestic customs law into an alloy of international law, integration law (acts of the EAEU) and national law.
The subject. The problems of realization of non-discrimination principle in tax law of inte-gration associations are considered in the article.
The purpose. The aim of this paper is to analyze influence of internationalization of tax law on tax law enforcement in the area of direct taxation using discrimination tests.
Methodology. The author uses methods of theoretical analysis, particularly the theory of integrative legal consciousness, as well as legal methods, including formal legal method and methods of comparative law.
The main results and scope of their application. The problems of realization of non-discrimination principle in EU tax law are considered in the article. The area of direct taxation is considered precisely. Roles of OECD Model Double Taxation Convention on Income and Capital and of practice of the European Court of Justice are brought into light. The possibilities of applying the experience of the European Union in the law enforcement practice of the Eurasian Economic Union are considered.
Conclusions. The author comes to the conclusion that in the legislation of the EAEU member states the main criterion of identifying tax discrimination is the criterion of tax residency. The novelty of the Russian legislation was the institute of tax residency of organizations, which is based on the "nationality" of the organization. We can speak about the formation of a legal regime for non-discrimination in the legal space of the EAEU.
THE LAW ENFORCEMENT BY LOCAL AUTHORITIES
The subject. The concept and elements of the economic basis of local self-government are discussed in the paper in the context of different laws on local self-government.
The purpose of the paper is to identify the main ways of increasing the economic basis of municipalities.
The methodology of paper includes the formal logical interpretation of Russian legislation and systematization of the court practice that concerns economical issues of local self-government as well as analysis and synthesis of statistics data of the Ministry of Justice of Rus-sia and the Ministry of Finance of Russia.
The main results and scope of their application. The features of municipal property and local budgets are consistently considered. The property base of the municipality should be analyzed through the scope of it’s adequacy for the implementation of the relevant functions, including for the performance of public obligations. The profile of municipal assets and their purpose should play the minor role. The instruments of property management used by local governments (like attracting private investment) are also important. The sources of revenues and expenditures of the local budget are important not as themselves in absolute terms, but in the context of the ratio with the volume of competency that is assigned to local governments. The improvement of control and supervisory activities is a resource for improving the economic basis of local self-government. The proposed qualitative analysis the economic basis of local self-government may inspire new researches in the field of municipal law.
Conclusions. The formation of the economic basis of local self-government is a complex complex process, closely related to the legal, territorial, organizational and competence bases of local self-government and it is determined by legislation and law enforcement practice.
THE LAW ENFORCEMENT BY THE JUDGES
The subject. The paper deals with the procedural issues of imposition of administrative sanctions by the courts.
The purpose of the paper is to identify how the form of proceedings impacts on the rights and obligations of administrative trial participants.
Methodology. The author uses the methods of analysis and synthesis, as well as dialectic approach. The formal-legal interpretation of the Code of Administrative Offences, the Code of Administrative Proceedings, the Commercial Procedure Code of the Russian Federation and is also used.
The main results and scope of their application. The rules of the Code of Administrative Offences of the Russian Federation are "average" according to their nature, they are designed for application by a lot of authorities competent to impose administrative sanctions.
The focus of the rules of the Code of Administrative Offences of the Russian Federation is to regulate the procedure for imposition of administrative sanctions and to define the punishment for an administrative offense. Therefore, the civil procedural form is not applicable here and the rules of the Civil Procedure Code and Code of Administrative Proceedings of the Russian Federation shouldn’t be used.
"Procedural form" in cases of administrative offenses considered by arbitration courts is mainly represented by the rules of the Code of Administrative Offences of the Russian Federation. The accused person can receive a little from actually judicial (civil) procedural form.
The serious contradictions of the Code of Administrative Offences with the rules of the Commercial Procedure Code of the Russian Federation couldn’t be seen, on the one hand, but, on the other hand, the provisions of the Code of Administrative Offences of the Russian Federation have a different focus. The results of research may be used as the basis of correction of Code of Administrative Offences, the Commercial Procedure Code of the Russian Federation and may also inspire new researches concerning procedural issues of imposition of administrative sanctions by the courts.
Conclusions. Participants in simplified administrative proceedings fall into a double trap: they are initially deprived of guarantees of procedural form due to the predominance of the rules of the Code of Administrative Offences of the Russian Federation and are again deprived of the "remains" of procedural form because of using the simplified proceedings. Empowering the courts with the authority of administrative jurisdiction does not correspond to the current trends in the development of legislation.
The subject of the paper is the procedural features and grounds for the appellate revision of the verdict, decided by the court with the participation of jurors.
The purpose of the article is to is to assess the effectiveness of the rules on the grounds for review of courts’ decisions based on jury’s verdict.
The description of methodology. The author uses formal-legal and comparative-legal methods during the scrutinize the text of the Criminal Procedure Code of the Russian Federation and international legislation. The court statistics is also analyzed.
The main results and scope of their application. The author gives a general description of the legal concepts of cassation and appeal, their similarities and differences. The paper suggests statistical indicators of the activity of the jury as a court of first instance, as well as statistical characteristics of the decisions of the Supreme Court of the Russian Federation as a court of appeal and as a court of cassation. A brief description of the rules of appeal proceedings, the types of appealed decisions, powers and limits of the rights of appeal are also characterized. It is proposed to analyze the grounds for repealing or changing the ac-cusatory and acquittal decisions of courts with the participation of jurors, the interpretation of such grounds by higher courts through the resolution of specific criminal cases. Specific criminal cases examples are given, and foreign criminal procedure legislation is analyzed.
Conclusions. The author suggests to replace the grounds for cancellation or modification of both accusatory and acquittal decisions of courts based on the jury’s decision with the grounds previously provided in art. 465 of the Code of Criminal Procedure of the RSFSR because of their clearer legal content.
The subject. The paper deals with the problem of arbitrariness of criminal punishment in case of replacement of fine with other types of criminal penalties.
The purpose of the paper is to identify the criteria to replace the fine to more severe kind of punishment.
Methodology. The author uses the methods of analysis and synthesis, as well as dialectic approach. The formal-legal interpretation of the Criminal Codes and of the Russian Federation researches of familiar criminalists is also used.
The main results and scope of their application. The arbitrariness of repression as its indicator means the possibility of changing the quality, quantity and (or) intensity of repression depending on the convicted person's compliance with the imposed regime, including the replacement of the assigned measure of state coercion with a more severe one.
The author proposes a new version of pt. 5 of art. 46 of the Criminal Code of the Russian Federation. A new model of the consequences of non-payment of a penalty involves the observance of several conditions: 1) every sanctions, including penalty of a fine, should be submitted to the alternative punishment; 2) every sanction, including a penalty of fine and imprisonment, should be submitted to the "intermediate" punishment; 3) selecting the replacement of punishment should be due to unpaid fines and to provide a factual and not a formal toughening of punishment; 4) should establish the possibility of replacing the fine with imprisonment in proportion to the unpaid amount of the fine.
The results of research may be used as the basis of correction of the Criminal Code of the Russian Federation and judicial practice. The paper may also inspire new researches concerning replacement of criminal punishment.
Conclusions. The current system of replacing the fine does not correspond to the idea of saving repression. The new scheme of replacement of criminal punishment proposed in the paper is less arbitrary.
SCIENTIFIC LIFE
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