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Russian Law Journal

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Vol 7, No 1 (2019)
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https://doi.org/10.17589/2309-8678-2019-7-1

Articles

4-54 636
Abstract

The article is devoted to the consideration of the system for the tax authorities to assess tax risks and to prevent tax law violations. The work focuses on how the tax authorities affect the conduct of taxpayers through “soft law,” disclose information about their approach towards understanding tax risks and enforce a system of measures to ensure compliance. Tax compliance is analysed in the article as good-faith and lawful conduct of a taxpayer, which is formed under the influence of a system of, at the same time, preventive and incentive measures. This article considers tax compliance issues in Russia, the United Kingdom and the USA, not so much as a consequence of the voluntary actions of the taxpayer, but as a consequence of the conditions that are set for a taxpayer by the administrative action of tax authorities. To do this, the approaches of the tax authorities to defining the criteria for tax risks and the procedure for assessing them are analysed, as is the effect of these approaches on the subsequent implementation of tax control measures, while the system of enforcement measures and incentives for taxpayers to comply with tax legislation are examined. Tax compliance is the most desirable regime for the state, but in the entire history of taxation no jurisdiction has been able to achieve full tax collection solely based on a persuasive method. At the same time, owing to the limited resources of tax administrations, in practice there is no real opportunity to examine absolutely every taxpayer. For specifically this reason, a risk-based approach to carrying out tax control with a reasonable combination of both incentive measures and the enforcement of compliance with tax legislation is becoming increasingly relevant. The authors consider the implementation of a risk-based approach and its effect on tax compliance, on the choice of tax control measures, and on depth and scope in terms thereof, using the example of the experience of Russia, the United Kingdom and the USA. The article also pays special attention to an analysis of incentive measures and the enforcement of tax compliance in these jurisdictions.

55-86 546
Abstract

In this paper, legal translation and its role in the interpretation of international law documents have been taken into consideration, both from a theoretical and a practical perspective. As far as theoretical aspects are concerned, legal translation in the light of civil law (Roman law) and common law systems, the status of legal translation in international law, the principles of plain language, and the equivalence of legal words are discussed. Accordingly, the interconnection between legal translation and interpretation of international law documents has been examined. As regards the practical perspective, the practice of the International Court of Justice, as well as applicable rules of the World Trade Organization and the European Union in respect of legal translation, has been discussed. The study carried out shows that due to the nature of international law and different foundations, goals, structures, sources and concepts of international legal order on the one hand, and divergent legal and cultural characteristics, as well as non-equivalent technical terms of various legal systems on the other, legal translators, who are inevitably influenced by their own national laws, are confronted with many profound difficulties.

87-118 221
Abstract

The present study overhauls Hans Kelsen’s thesis of the traditional normative pyramid, in order to accommodate the most outstanding doctrinal contributions of the last century to it. For the purpose, the Essay proceeds as follows: (i) the shortcomings of the first version of the pyramid, found in Kelsen’s Pure Theory of Law and on Adolf Merkl’s contributions, are detected; (ii) new key concepts of the Aristotelian-Thomistic metaphysics are introduced, this will allow us to upgrade the theory of the staggered legal system; (iii) unity and order of the legal system are briefly analyzed; (iv) a staggered legal pyramid is redesigned, with a gradual reduction of the juridical space; and finally, (v) the theories of Kelsen, Merkl, and several of the most influential doctrinarians of law (e.g., Jhering, Radbruch, Rorty, Ross, Kelsen, Holmes, Hägerström, Olivecrona, Hart, MacCormick, Dworkin, among others) are tested, to see if their ideas fit in the new theory.

This upgrade of the traditional theory arises from a significant shift in the philosophical basis. The first pyramid was elaborated by Kelsen and Merkl under the tenets of neoKantian metaphysics. On the other hand, the methodology and the basic ideas behind this study are those of the Aristotelian-Thomistic metaphysics. It moves from an idealistic metaphysics to a traditional realistic metaphysics, so neglected in recent centuries. The inverted pyramid theory, formulated here, is the product of many previous works. Many of them have been published in different international journals.

119-137 289
Abstract

Problems associated with the possibility of the stipulation of preemptive rights by contract and their effective protection are researched in this article. Based on the examples of German, French and Swiss civil legislation, we establish that contractual preemption is widely used in Europe as a convenient instrument to formalize the interests of the participants in a civil turnover. In this connection, in Russian civil doctrine, the widespread idea that preemptive rights may be stipulated only by law, not by contract, should be revised.

We state that the essence of the institution of preemptive rights predetermines its remedy. Historically Russian civil law provides specific remedy in case of breach of the most spread statutory preemptive rights. It is a claim by the entitled person (holder of preemption) against a third party (counterparty of obliged person whose contract breached the preemption) to transfer from the third party to the entitled person the rights and duties that arose under the contract between the third party and the obliged person. This remedy is more efficient for the entitled person than damages. In accordance with the principle of good faith, it may be used only in cases in which the third party knew or should have known about preemption. However, this requirement is complied in relation to protection of statutory preemptions only. As far as both contractual preemptive rights and contracts stipulated the latter are not recognized and not registered in Russia, such suit will be dismissed by court. The lack of effective protection of contractual preemptions impedes the creation of full-fledge system of preemptive rights in Russian civil law.

In order to create effective mechanism of protection of contractual preemptive rights by giving the participants of a civil turnover the opportunity to ascertain if there is a contractual preemptions, we suggest that Russian civil legislation should be added by two registration systems. The first is a system for the registration of contracts that stipulate preemptions over immovable property (or registration of the preemptions itself which is better) provided by the Federal Service for State Registration, Cadastre and Cartography of the Russian Federation. The second is a system for the registration of notifications on the conclusion of contracts that stipulate contractual preemptive rights over movable things that could be established by an expansion of the existing system for the e-registration of notifications оf pledges of movable things under the jurisdiction of the Federal Chamber of Notaries of the Russian Federation.

Comments

138-153 160
Abstract

This paper examines the Catalonia-Spain trajectory. Quite recently, the region of Catalonia became known for its sovereignty demand, which has strained relations with Spain its host state. Economic grievances, nationalism, and political disillusionment are some of the explanations given for the growing secessionist moves in the region. Apart from this, other reasons identified include strained historical ties, class struggle, the erosion of its autonomous region by General Francisco Franco and the subsequent demand for selfdetermination by separatists. An issue that runs through this work is the refusal of the Spanish government to concede to this separatist’s demand which has deteriorated any negotiations for dialogue. However, the Spanish government has announced that it is open to negotiate anything except a referendum. Furthermore, based on the reaction of the Spanish government, the 2014 referendum held by the Catalans seems to be nonconclusive. This study, therefore seeks to examine the contentious issues of “contested sovereignty” with relations to the Catalonia-Spain quagmire and its seemly subsisting impact in the pro-independence agitations in Europe and Africa.

154-177 156
Abstract

This article substantiates the author’s scientific concept of electronic criminal proceedings, as regards the use thereof in the adversarial system, which would involve the formation of criminal proceedings as an electronic file, and the procedural interaction of the subjects of proceedings in an electronic law enforcement environment. The tasks of this article are as follows: analysis of issues that may arise when establishing such adversarial system in the criminal process of Ukraine; study of foreign experience of involving a defense lawyer in electronic criminal procedural processes; and development of proposals for improving the domestic practice of law enforcement.

The Uniform Register of Pre-trial Investigations (URPI) has been defined as an electronic procedural document and an integral segment of criminal proceedings. The analysis of the electronic segment of the pre-trial investigation shows that the lawyer’s procedural status needs to be improved by his/her involvement in the URPI. Based on the analysis of the experience of electronic criminal proceedings in the province of Alberta (Canada), the Czech Republic, Sweden, and Kazakhstan, proposals have been drawn up to bring the defense to the URPI.

As a result of the study, the author identified the legal and technical aspects of involving an attorney in electronic criminal proceedings, which suggested successive practical steps in creating personal virtual accounts, an algorithm for involving a defense lawyer in proceedings, and reforming the Uniform Register of Lawyers of Ukraine (URLU) as an electronic procedural legalization instrument.



ISSN 2309-8678 (Print)
ISSN 2312-3605 (Online)