The article is about the problem of changing the content of the concept of the object of taxation in the Russian science of tax law in the conditions of the course on digital economy. The purpose of the article is to analyze the provisions of the Russian tax legislation, international norms, as well as academic literature on the identification of certain new subjects and phenomena as possible objects of taxation, thus updating the concept of the object of taxation itself.
The development of information technologies generates the following unavoidable problems related to the content of the concept of an object of taxation, which allows reviving the discussion about the content of this tax and legal concept: the impossibility to assess implementation operations as potential objects of taxation with the help of the classical triad «product, work, service»; recognition in certain situations (for example, when calculating with electronic money) as the object of taxation of none, but the totality of legal facts (legal structure); the need to establish the object of taxation through the so-called «tax relationship» of the object and the subject of taxation.
In connection with the emergence of the first problem, the author proposes to unambiguously define in the Tax Code the legal nature of implementation transactions of digital products for tax purposes, treating them as a new type of service. The conclusion is based on the experience of international regulation and suggests supplementing the provisions of the Tax Code in terms of legal regulation of the concept of the object of taxation as well as VAT taxation.
The research of the second problem leads to the conclusion that it is necessary to clarify the rules of the Tax Code when the counterparties carry out taxable transactions, settlements on which are made using electronic money. In this situation, the object of taxation is not one, but several legal facts-actions of the potential taxpayer.
On the third problem the author proposes to discuss the issues of identification of the taxpayer in the case of certifying the taxable transaction by an analogue of the digital signature. Taking into account international experience, as well as national civil law regulations, it is concluded that it is necessary to include provisions on digital certificates and digital signatures in tax legislation.
In the article, the author focuses primarily on the general rules of EU antimonopoly regulation, inter
alia: the dominant position, the anti-competitive agreements and the State assistance. The author also
specifies of special features of the regulation, as well as its practical regulation. In the second part of the
article, the researcher analyses the specific antitrust norms, applicable to gas industry in the sectors of
gas transport, distribution, storage and commerce.
The author points that today the antitrust law became the basic instrument of the gas industry development.
The application of the common rules became habitual and gets the gradual character. At the
same time, the doubts on the necessity of the antitrust law existence still exist. The application of the
specific antitrust norms give rise to more doubts.
Possibly because of the lack of the practice of the realization of the EU legislation, may be it is
too early to make the conclusions about the effectiveness of the antitrust legal regulation. Already, there
are propositions of the elaboration of the new directives. However, while implementing future reforms
concurrence should not be achieved through the establishment of the new barriers on the market. The
measures like unbundling, the regulatory access to the infrastructure themselves present the restrictions
of the freedom of the entrepreneurship.
Consequently, more actual is not the adoption of the new directives but the deregulation. The
diminution of the States interference will allow to retain the incitements for the monopolist and to
eliminate the barriers of the entrance on the market.
The author comes to the conclusion that if the adoption of the new acts is inevitable for the legislator,
the institutions should, first of all, proportion the goals and measures of their achievement and,
secondly, secure the balance between the importance of the concurrence developpement and the energy
efficiency, keeping in mind the deficit of this resource.
Currently, all over the world, including in Muslim countries, there is a tendency to increase the age of marriage. In Russia, the law does not directly set the minimum age of marriage.The reduction of the age of marriage is possible up to 16 years if there are valid reasons for it. The family laws of the subjects of the Russian Federation may establish the conditions and procedure for marriage of persons under this age.A literal interpretation of laws indicates the absence of lower age limit at marriage.The article deals with the correlation of the concepts of "marriage age" and "age of consent". Analysis of the Art. 134 of the Criminal Code allows to conclude that the provision on marriage to the victim, as a basis for exemption from punishment, contradicts the basic conditions of marriage.In fact, when making a decision, the courts cannot reliably determine for what purpose the marriage was concluded, whether there are grounds to consider the marriage fictitious, concluded for the avoidance of criminal punishment or for another selfish purpose. In criminal cases, it should be mandatory to ensure the participation of the staff of the guardianship authority in the criminal process, giving them the right to conduct inspections and to give conclusions about the real desire of the couple to create a family. It seems controversial to apply the rule of exemption from punishment due to change of the situation to the perpetrator who committed the crime under Art. 134 of the Criminal Code. The act itself does not cease to be socially dangerous: sexual relations with a person under the age of consent are still ongoing, and marriage does not entail a legal right to sexual relations with a minor under the age of 16, at least not expressly provided for by law.It is proposed to define a special obligation for the release of the guilty from punishment: if a marriage concluded with a person under the age of 16 years is terminated at the initiative of a probationer earlier than four years after his imprisonment, the court may decide to abolish the conditional sentence and the execution of the sentence imposed by the court.
The article is devoted to the development of the institute of the head of state in Spain in 1939-1975. The importance of the analysis is determined by the increased role of the heads of state in domestic and international affairs and the popularity of the term. The Spanish experience seems to be useful for research of this phenomenon. Franco's main post was named "head of state" (Jefe del Estado) legally, and the officially recognized institution with the same name (Jefatura del Estado) formalized his status.
In comparison with the "head of state" in the doctrine of Constant, he did not function in the system of separation of powers, but named a ruler with a personal absolute lifelong power. The legal term "head of state" became a synonym for the political term "dictator". Franco’s experience demonstrated the non-democratic nature of the institute of head of state. It was also emphasized by the title "caudillo", indicating its leadership and its mission to restore the former "greatness" of Spain. Franco’s government was to be characterized by the features of "sovereign dictatorship", described by C. Schmitt. By analyzing features of the institution of the post, formation of the same institute and their development, the author notices the potential of the institute of head of state during Franco's authoritarian regime.
Two periods are distinguished in the history of the institute. During the first, after the Civil War (1939) and before the adoption of the law "On Succession" (1947), Franco's constitutional activity was aimed to create a "new" nationalist state, struggling against internal and external enemies. Unlimited power in a militarized state became the basis for the domination of “decessionism”, and the state itself was identified with its head personally. In the course of the second period, 1947-1975, the constitutional power of the caudillo began the "institutionalization" of a "social and representative" state which was proclaimed as a monarchy again. Franco’s "fundamental" laws not only created a quasi-constitutional facade of the regime, but consolidated the head of state's self-limited powers and its status in the system of established state bodies, a mechanism to transfer his power to the future king.
Spanish state was no longer identified with the head of state. He was declared a representative of the nation and ensured the unity of state power. Franco remained an extraordinary head of state till the end of his life. The mechanism he introduced "worked" after his death in Spain and created the opportunity for a transition from an authoritarian regime to a democratic one, from "institutionalization" to constitutionalism.
The article examines the advantages to applying the concept of legal tradition when studying the medieval ius commune in Europe from a historical perspective. The author looks into three key elements of this legal tradition, namely legal science, legal education, and legal consciousness. Each component is characterized in its relation to the development of the ius commune and the legal order in Continental Europe.
The article is devoted to a new type of supervision of financial market participants – behavioral supervision of the Bank of Russia. Behavioral approach to the protection of financial services consumers’ rights is treated in the "zone of action" of the administrative-legal regulation mechanism. The author points to the public nature of the subject composition of its implementation (the Bank of Russia and the executive authorities); the possibility of using the judicial (consideration of citizens' appeals) and (as a result) jurisdictional (bringing the violators of the financial services consumers’ rights to administrative responsibility) procedural administrative and legal algorithms.
The present paper is devoted to a study of the legal regulation of the relations in the gas industry of India and RSA. In the first instance the author represents the overall survey of the state of the gas industry in these countries and perspectives of its development. He finds out that they have a lot in common. Both do not have considerable gas reserves, at the same time the demand for the resource is higher than production in the State. However, the Governments endeavor to develop proper production and not to import the gas, to which end the reforms of the legal regulation were undertaken.
The present research is accented on the legal sources of regulation in that domain and the role of the international law. In the article the detailed analysis is made on legal regulation of activities of exploration, production of natural gas, on its transportation, distribution, commercialization, import-export activity in India and in RSA.
In conclusion the author resumes the results of the comparative legal analysis, estimating the models of regulation, pointing out their weaknesses and possible treatment for its correction.
The researcher comes to conclusion that in RSA the clear, comprehensible, codified legislation was elaborated. In the meantime, in India it is not the legislation which was changed but the sub legislative acts. In both States the special regulators were established.
Notwithstanding the proclamed policy of deregulation of gas industry in India no unbundling measures were undertaken. The legislation of RSA in its turn foresee the measures of restriction of the abuse of dominant position by vertically integrated companies: the activity should be undertaken with the usage of separate bank accounts, the cross subsidization is forebeeden.
If in India in the domain of the gas production the supple form – product sharing agreements is used, in RSA – the license. In both countries there is a State regulation of tarifs, transportation, storage, distribution and gas supply are perfomed in virtue of license. In India the right to acces to transport system is secured only in respect of the one third of the transport capacities.
In spite of unsystematicity of indian approach to the regulation unlike RSA this State has reached more significant results: more explorations works were undertaken, more gas is produced.
Article devoted to the legal regulation of labor activity of migrants from Kazakhstan in the Russian Empire of the 19th c. Author reviews the legislation on the status of labor migrants on the boundary regions of the Empire and Kazakhstan, discovers problems, connected with violation of this legislation and characterizes measures of fight against undocumented migration. It seems, that methods of legal regulation of labor migrants’ status used today were invented already during the imperial age.
The article is devoted to analysis of notes of Russian travelers to Mongolia as a source on legal situation in this country during 18th — first half of 19th c. Until now these texts were used mainly as a source on political or economic history as well as on ethnology of Mongols but far less as one on legal history of this people. Indeed, the information on legal realties of Mongolia is rather fragmentary and lapidary as the travelers didn’t have a goal to describe state and law of Mongolia. Nevertheless, this information is of great interest and value as it allows us to give a notion on real legal situation, legal relations realized in practice — in contrast to survived written legal monuments (codes) of Mongols from this period: travelers could observe such legal practice and even participate in the legal relations among Mongols. The source base of research are notes of travelers who visited Mongolia since the beginning of the 18th c. to 1850s. There were diplomats (ambassadors and their companions), couriers, intelligence officers, tradesmen and scientists. Depending on goals and objectives of their trips they interested in different aspects of Mongolian legal realties, so the comparative analysis of their information allows to present different aspects of legal life of Mongols. The study of travelers’ notes from the legal anthropology point of view (basing on works of N. Rouland, A.I. Kovler, V.V. Bocharov) presumes analysis positions of their authors, reasons of their interest to specific field of law as well as Mongols’ attitude to law and order, legal rules, will of Mongol and Manchu authorities, etc. Analysis of Russian travelers’ notes in combination with legal monuments allow to understand better specific features in legal development of Mongolia in the turning-point period of its history: just at this time there was activated the policy of the Qing Empire to transform Mongols from autonomous vassals to complete subjects with disfranchisement, performance of duties and obligations and further closing in status with other categories of subjects (as Chinese, etc.). Also these notes are examples of basic stage of Russian practical-oriented legal anthropology which differed from the western one by attempting to study and understand the law of “traditional” societies without disregard of the Europocentrism.
The article analyzes the main approaches to the problem of the validity of law. As a result a number of aspects of the phenomenon designated as “the validity of law” are distinguished: normative significance, social and (or) psychological efficiency, objective givenness, a binding force. To fill the gap in the theoretical constructions the author proposes such a notion of the validity of law that is independent of philosophical approaches. Legal validity is defined as a specific mechanism (force) of normative influence on people’s conduct. Therefore, the binding force of law is considered not as an obligation to obey the law, but as a mechanism of giving rise to legal obligations. Moreover in this article all existing variations of providing a rationale for the validity of law are classified into two main approaches: metaphysical and anti-metaphysical. Alf Ross’s (Danish legal philosopher, one of the most prominent representatives of Scandinavian legal realism) concept of legal validity is considered as a perfect example of the anti-metaphysical approach and is reconstructed along with the analysis of major terminological issues, which occur in translations and studies of his legacy. The author concludes that a key to a proper understanding of Ross’s concept is an appropriate terminological division between the two basic concepts, which reflect his viewpoint regarding the validity of law in the context of Is-Ought problem in law. The author proposes to translate the Danish term «gælden» into Russian as «deistvennost'», since it concerns law in force and its effectiveness, and «gyldighet» as «deistvitel'nost'», since it implies a binding force of law related to oughtness. Ross considers the former as a revelation of the latter in the reality and as a proper subject of jurisprudence (doctrinal study of law, based on strict empiricism, non‑cognitivism, coherentism).
This article is devoted to problem aspects of indemnification which resulted from actions (inaction) or decisions of bodies of public administration and their public officials. The author analyzes system of standard regulation of these relations, the developed court practice, revealing features of realization of the right for compensation of the harm done by the state as a result of its administrative and jurisdictional activity. The special attention is paid to debatability of a question of the legal nature of the adjustable relations, a problem of definition of a standard basis of the indemnification caused by the state within administrative process including a problem of applicability of all ways of protection provided by the civil legislation at realization of the right for indemnification caused within administrative process. Questions of establishment of illegality and guilt at infliction of harm as a result of implementation of imperious actions (decisions) are analyzed, and also questions of a preyudition, admissibility of justification within claim production of illegality of the decisions of standard and substandard character made by public administration. Conclusions about the insufficient clearness of legal regulation of the studied question are presented to end, the assessment is given to debatable aspects of a perspective and tendencies of development of institute of compensation of the harm done by the state, ways of improvement of the current legislation and law-enforcement practice are offered. The author offers two ways of the legislative solution of the delivered problem: recognition of all indemnification methods provided by the civil legislation within administrative legal relations by means of more accurate general legislative specifying on admissibility of all sales opportunities of this right in relation to indemnification caused by actions of public administration or forming of own full administrative and legal regulatory base of compensation of the harm done by the state as a result of its administrative and jurisdictional activities. Regardless of the chosen way of enhancement of the considered institute, its updated standard basis shall consider positive achievements of law-enforcement practice, especially – the progressive legal line items created in the course of interpretation of disputable regulations by the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation. Audit of the legislation regarding a regulation of indemnification shall promote not only to refining of the place of this institute in system of legal regulation, but also to provide proper protection of the appropriate right.
There are considered the problems of understanding of legal hermeneutics and doctrinal interpretation. The author concludes that the issue of interpretation of the law has developed into the thematic framework of the general theory of law and state, as is the subject of a separate science of applied - legal hermeneutics, which has in its arsenal a whole palette of different methods of interpretation of the law. Particular attention is paid to the definition of the object of doctrinal interpretation and its types. Based on the analysis the author concludes that the doctrinal interpretation of the objects is very diverse and not limited only to the interpretation of the law. Almost all the elements of the legal system can be subjects to scientific analysis and forecasting. In contrast to affirmed in the literature on the theory of law and state, there is the opinion that the doctrinal interpretation is a kind of informal interpretation of the law, the author makes a conclusion that the doctrinal interpretation can be official, unofficial and officious, that means, the semi-official character, such as the conclusion to bills.
The author asserts, despite the fact that in modern Russia the doctrine is not recognized as an official source of law, it has a tremendous impact on the legislator, in particular, his legal mind, his psychology foundations. The best specimens of scientific doctrines enshrined in the first chapter of the Constitution. This is the theory of Montesquieu on the separation of powers, as the idea of the federal structure of the Russian state, the idea of a secular and democratic state, which underwent a major test of time. This is the idea of Lorenz von Stein of the social character of the state, too.
After considering the various approaches to understanding the sources of law, the author comes to the conclusion that if the interpretation of the results produced renowned legal scholar, is set out in the bosom of a recognized theory, a certain concept, the legal paradigm, it must be recognized as the source (form) right and need to refer to it when resolution of legal problems in the administration and in the courts of various levels.
Author analyzes the competences of subjects of the Russian Federation in sphere of providing of free legal assistance. Authors concern the peculiarities of legal regulation in this sphere at the local and regional levels. Actuality of the theme of this article is based on two factors: the initial stage of the formation of this institute and the delegating federal legislation, all costs related with the provision of legal assistance to the expenditure commitments of budget of subjects of the Russian Federation.
Goal. Article devoted to analysis of information and evaluations of the members of the Bukharan elite of the 1870s — 1910s on legal transformations made by Russian authorities in the Bukharan Emirate which since 1868 was under the protectorate of the Russian Empire. Author used works of contemporaries — Bukharan officials who were loyal to emir’s government (Sadr-i Ziya, Salimbek) or criticized them (A. Donish, A. Sami) as well as oppositionists who demanded reforms (A. Fitrat, S. Ayni). Methods. Using methods of historical legal, formal legal and comparative legal analysis the author characterizes attitude of contemporaries on the interference of the Russian authorities in the internal affairs of Bukhara in general and their evaluation of transformations made by Russians in different fields of legal relations — taxation, trade, criminal and judicial and even the public health. Results. Author finds that social status and political vies of members of the Bukharan elite (authors of analyzed works) substantially affected their evaluation of transformations made in the Bukharan Emirate with initiative of Russian authorities. Conservative officials criticized these transformations and opposed any reforms in Bukhara. Reformers (jadids or Young Bukharans) evaluated many of transformations positively. At that it makes sense to note the contradictory position of some authors: they welcome changes carried out by Russian authorities but at the same were afraid that Emirate would lose completely its independence to Russia and its development would continued in the “Russian” (i.e. European) way without considering national and religious specific features, traditions of Central Asian state and law. Nevertheless, in fact, all authors demonstrated their adaptation for new political and legal realities, realized that influence of Russia became “fait accompli” and sometimes even gave information on getting out profit (by themselves or their familiars) in the changed circumstances in different fields of legal relations. Conclusions. The information of Bukharan contemporaries on the legal transformations in Bukhara under the Russian protectorate is a valuable addition to the legal monuments and notes of Russian and western contemporaries related to this subject.