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ARCHIVE FOR 2021    RUSSIAN

Апрель 2021

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

Abuse of Taxpayer Rights: Is a Reset Coming?
Comments by A. Bryzgalin, V. Machekhin, N. Sheveleva, S. Savseris, E. Timofeev, A. Artyukh, K. Vikulov
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Topic of the issue

N.S. Danilenko, V.P. Provotorov, O.P. Pleshanova The Problem of Formal Approach to Tax Liability Assessment in the Context of Digitalisation
The article concerns the problem that the tax authorities formally use the data from various registries, databases and electronic systems for additional tax assessment and bringing to tax responsibility. In many cases the use of Big data does not allow taking into account the full range of the factual circumstances and showing an individual approach to taxpayer. The judicial practice admits evidences taken from the electronic systems but the courts require from tax authorities to examine comprehensively every taxpayer’s act which is important for correct assessment of the tax liability.
Keywords: tax authorities, tax liability, evidences, electronic systems, Big data, formal use of data, comprehensive examination of taxpayer’s acts
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A.E. Shastitko, A.N. Morozov The Ambivalence of Digital Transformation of Tax Administration
Digital technologies in tax administration made it possible to organise continuous automated control over the correctness and completeness of the submitted tax reporting, which is intended to complicate the application of the tax avoidance schemes. Employing the law and economics methodology, we show that the automated control system gives rise to enforcement errors both of the first and second type, which limit the detering function of enforcement, thus making illegal behavior more attractive. In our opinion, such result is associated with the latent digitalisation potential, which has yet to be explored. Considering the tax control measures, more attention should be paid to measures aimed at preventive disclosure of tax optimisation schemes, and the tax risk criteria should be empirically supported, particularly using machine learning methods.
Keywords: tax control, digitalisation, law and economics, enforcement, type I and type II legal errors
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D.M. Schekin Reducing the Regressivity of VAT: Protecting the Interests of Low-Income Citizens and Families with Children by Means of Digital Technologies
The article analyses the VAT regressivity and offers to eliminate this problem by means of digital technologies. The proposed VATrefund model, taking into account its targeted nature, will protect those consumers who really need to be lifted from the tax burden. In case of its realisation this model might become a new mechanism in development of VAT regulation.
Keywords: VAT, regressivity, digital technologies, “MIR” cards, social support, demography
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N.S. Kovalenko, E.M. Leonov Tax Monitoring as a Way of Tax Digitalisation
Tax monitoring is a new reality of tax control that meets the needs of the modern digital world. It is a form of tax control with extended information interaction between taxpayers and tax authorities. During tax monitoring the tax audit begins to be carried out in real-time which is fundamentally different from the “classic” office and field tax audits. It is obvious from the development of the legal regulation of the tax monitoring that the digitalisation of the interaction between the company and the tax authority, the transparency of the company’s internal processes for the latter will increase significantly in the future. Among the controversial aspects of the tax monitoring — the right of the Federal Tax Service of Russia to revise its results based by way of control over the activities of the subordinate tax inspectorate and the lack of publicity of tax rulings.
Keywords: tax monitoring, horizontal monitoring, extended information interaction, tax ruling
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A.N. Kozyrin, A.A. Yalbulganov EAEU Tax Legislation and Digitalisation of Tax Administration
The use of modern IT in the activities of tax authorities profoundly changes tax administration. These novelties are reflected in tax legislation by fixing the legal status of taxpayers, forms of their interaction with tax authorities, and the organisation of tax control. On the example of the legislation of EAEU states the authors consider the following new institutions of tax law: electronic taxpayer, taxpayer’s electronic signature, presentation of documents and information to the tax authority in electronic form. Legal definition of such new technologies of tax administration as a personal cabinet of the taxpayer, risk-categorisation of the taxpayer, tax monitoring and others is analysed.
Keywords: EAEU tax legislation, digitalisation of tax administration, electronic taxpayer, taxpayer’s electronic document, taxpayer’s personal account, risk management system, tax monitoring
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Discussion Board

A.A. Ivanov Digital Ethics and Law
The article focuses on how the general correlation of ethics and law is refracted in relation to digital law. It is concluded that no special concept of digital ethics is needed — it is ordinary ethics, only in the digital sphere. With regard to the digital environment, the following features of ethics can be identified: a significant reduction in the invariance of regulation, the increasing influence of public institutions formalising ethical norms, the weakening of the influence of the national factor, the different impact of ethics on the periphery and core norms, the division of people into digital adherents and digital withdrawalists.
Keywords: digital law, digital ethics, digitalisation, globalisation, digital adherents and digital withdrawalists
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O.P. Pleshanova The April Theses
Towards elections 2024 — Ban on flights to Turkey and Tanzania — Price hikes and appeals to the Federal Antimonopoly Service of Russia — Tax policy — Electronic justice — 10th All-Russian Congress of Advocates — General Prosecutor’s Office as Russia’s representative in international courts — Land and titles issue — Import substitution and quality of Russian goods — Sanctions, diplomatic scandals and relations with Ukraine — Welfare and retirement pensions
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Press Release

 

Theory and practice

Yu.A. Tsvetkov Artificial Intelligence in Justice
The research is aimed at determining the boundaries and possibilities of using artificial intelligence in judicial activities. The fundamental problems of the development of artificial intelligence technologies in general and in the legal sphere in particular are identified. Legal and author’s definitions of artificial intelligence are given, its main types are described, and the principles of its operation, including the model of an artificial neural network, are shown. The article analyses the practice of its use in various jurisdictions of the United States and China and the errors that occur in decision-making with its support. The article considers the experience of functioning of the automated case distribution system in Russian courts. The use of artificial intelligence in solving various tasks of justice, including the tasks of predicting post-criminal returning verdicts and sentencing, is modeled. The paper contains a controversy with the developers and apologists of the automated sentencing system “Electronic scales of Justice”, as well as with supporters of the scientific paradigm of automation, algorithmisation and mathematisation of judicial activity. Examples of specific court situations show the advantage of human intelligence over artificial intelligence. The main conclusion is made about the limitation of the role of artificial intelligence in justice by solving purely computational problems.
Keywords: justice, judicial activity, artificial intelligence, neural network, automated case distribution system, automated sentencing system
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V.A. Belov Change of Persons in Obligations: The Legacy of the Russian Empire (Part 2)
The article highlights the state and content of legal regulation of assignment of creditors and debtors in pre-revolutionary Russia and considers the main changes which the draft Civil Code of the Russian Empire proposed to introduce to this regulation. Part 2 of the article deals with the regulation of individual cases of assignment of claims, the definition of assignment of claims under the draft Civil Code of the Russian Empire, and the transfer of debt. The author draws a number of parallels between the pre-revolutionary situation and the recent reform of the general provisions of the law of obligations contained in the current Russian Civil Code. They make it possible to compare the range of issues subject to legal regulation before and now and to assess the different solutions, former and modern. The author discovers the necessity of evaluating not only the content (quality) and motivation of these solutions, but also their technique. In spite of the extreme poverty of the Civil Laws valid at that time and the extreme brevity and ambiguity of the norms of the Empire Civil Code which was to replace them, the prerevolutionary legal regulation of persons changing their obligations was much more meaningful, professional, rich and vivid than the regulation of the modern Civil Code, even the post-reform one. The author believes that this is because our pre-revolutionary law was the result of equal participation in its creation not only of legislators, but also of practitioners and scholars. This distinguishes it sharply and favorably from the law of today, which is characterised by a maniacal tendency to stipulate in the law everything down to the smallest detail. Without the assistance of scientists it regularly fails to put two and two together, i.e. to solve even simple questions, and misses even the most general, fundamental provisions.
Keywords: assignment of claim, transfer of debt, replacement of creditor, replacement of debtor, change of persons in the obligation, civil laws of the Russian Empire, draft Civil Code of the Russian Empire, Civil Code of the Russian Federation
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D.O. Shniger, A.E. Dolgushin Atropos for Guarantee: Correct Interpretation of Preclusive Term
The article inquiries into a matter of partial enforcement of a claim on a debtor within a term of his guarantee with the further increase in the cost of action, made by the creditor in a litigation process. Having defined the elements of guarantee term as a type of preclusive terms, the authors come to conclusion that the claim on a debtor could be enforced entirely within a guarantee term; beyond this term the enforcement of the claim is invalid, even if it is made through the procedural increase of a cost of action. The article highlights the interaction of guarantee term with term of limitation, defines similarities and differences between them. The authors support the idea that it is impossible to apply, when regulating the guarantee term, any elements of the period of limitation concept, among others its temporary interruption for the time of litigation. Moreover, the authors define some distinctive features of enforcement of claim in guarantee relations, which is to have a procedural form only. The article contains the analysis of the latest rulings of the Supreme Court, where an attempts is found to reduce preclusive effect of guarantee term (case No. А40- 117494/2016 and the draft of the Supreme Court Plenary resolution on guarantee relations). As it is highlighted in the article, this tendency has not got any further development, since according to the ruling of paragraph 42 of the Supreme Court Resolution dated 24th December 2020 No. 45 “On Some Issues Arising on the Context of Dispute Settlement Regarding Guarantees” the enforcement of the claim on a guarantor beyond the guarantee term is invalid. Scientific validations of this ruling as well as inconsistency of opposite creditor-oriented opinions are given in the article.
Keywords: guarantee, expiration of guarantee, preclusive term
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M.V. Kustova Foreclosure under the Judicial Act on Treasury Assets: Budgetary Procedures vs Substantive Law
The article analyses the change in the Supreme Court’s approach to the execution of the resolution part of the judicial act on the claims against the public entities. This change is caused by the desire to determine a proper procedure for the execution of such acts. The author insists on coordinated application of budgetary and civil legislation regulations when interpreting the provisions of Chapter 241 of the Budgetary Code of the Russian Federation. In the author’s opinion, the prioritisation of budgetary procedureoriented provisions in the enforcement process can lead to legal substitution and violate the plaintiff’s right to full satisfaction of claims against a public entity.
Keywords: enforcement of judgments, levy of execution on budget funds, secondary liability, the chief manager of budget funds, public enterprise
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W. Zomerski On the Impact of Real Socialism on the Theory of Legal Dogmatics: Toward a Democratic Theory of Law? (Introduction by E.Yu. Gorbunov)
The aim of this paper is to demonstrate how the domestic theory of legal dogmatics has been affected by the experience of real socialism. To this end, in the first place the Marxist critique of legal dogmatics is reconstructed. Subsequently, three concepts of legal dogmatics are considered: two articulated originally in the response to this critique and one contemporary. It is argued that the image of legal dogmatics in domestic legal theory is paradoxical but stable: despite emphasising the autonomy of legal dogmatics from legal texts as well as the intention of the legislator, it is argued that legal dogmatics resembles natural sciences. At the same time, attention is drawn to the internal tensions within the discussed concepts. This leads to the conclusion that the discussed concepts of legal dogmatics were neither descriptive nor prescriptive, but they had a solely legitimising character: their underlying aim was to protect the autonomy of legal dogmatics and — co-construed by the latter — law. Finally, the explanation of this phenomena is provided and attention to dangers associated with it is drawn. In the conclusion, the author argues that there is a growing need for a democratic theory of law.
Keywords: legal dogmatics, real socialism, Polish theory of law, scientificity, rational legislator
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Foreign experience

 

A. Wudarski The Right of Repurchase in German Law (Introduction by A.A. Novikov)
The author reveals the content of the civil law institute applied in the law of Germany and Poland — the right to repurchase the sold goods, which may be provided by the contract of sale. The legal nature of this institution, the procedure of its emergence and implementation, mutual rights and obligations of the parties, including the amount of liability, issues related to the rights of third parties to the subject of repurchase, as well as issues of compensation of costs, indivisibility of repurchase and determination of its price are analysed.
Keywords: right of repurchase, purchase agreement, the reseller’s liability, repurchase price, buyer’s reimbursement
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