ARCHIVE FOR 2021 RUSSIAN
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Апрель 2021
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
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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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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