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Russian law: theory and practice №1 - 2016
CONTENTS
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From the Editor-in-Chief С. 5
TAX LAW
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Withholding Tax on Agency Fees under the Russia-Germany Tax Treaty (Articles 14, 15 and 21) С. 6-16
Withholding Tax on Agency Fees under the Russia-Germany Tax Treaty (Articles 14, 15 and 21) С. 6-16
The article is devoted to the analysis of cross-border tax case No A56- 20669/2013 (Mr. Goncharov vs. the Russian Tax Administration) which was connected with the issues of scheduling income derived from an agency fee as well as with the issue of interpretation of the term dependent work/income from employment (Article 15 of the OECD / UN Model). The options for qualification of the respective income in line with Article 21 “Other income” or Article 14 “Independent personal services” were also under discussion. However, the parties in the case did not consider the potential of Articles 7 or 13, which, in principle, may also be hypothetically relevant in comparable situations. In general, the case also provides interesting examples of the interpretation of Articles 3 (2) of tax treaties based on the UN Model / OECD Model, as the central point of the dispute related to the applicability or non-applicability of the definitions of tax treaty terms derived by national courts from the domestic non-tax legislation of the source country. Meanwhile, the concept of the “context” was not analysed in detail in the dispute.
Key words: International taxation, withholding tax on agency fees, taxation under the Russia-Germany Tax Treaty, interpretation of Articles 13, 14 / 7, 15 and 21 of the OECD / UN Model Tax Convention.
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VAT as an Object of Harmonization of Tax Law of the Eurasian Economic Union (a Comparative Legal Issue) С. 17-26
The study considers main features of tax law and namely VAT regulation of the Eurasian Economic Union under the Treaty on the Eurasian Economic Union. The important role of the Court of the Eurasian Economic Union in considering tax issues is brought into light. An important aspect of the proposal is the comparative study of the development of tax law in the EAEU and the EU as a successful model of integration.
Key words: the Eurasian Economic Union, tax law, VAT, integration, indirect taxes.
ECONOMY AND LAW
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Economy and Law: Major Models of Correlation С. 27-38
Economy and Law: Major Models of Correlation С. 27-38
The article considers main theories of legal regulation of economy. Primary attention is given to the theory of the rule-of-law state, the main idea of which is that the state is connected with the law. The article draws the conclusion that the concept of the rule-of-law state has a comprehensive character; it harmoniously combines various elements, scholarly approaches, theories and opinions. The author of the article underlines that in the transition period modern Russia needs a new concept of national economy managementand puts forward a number of proposals to improve the legislation regulating the sphere of economy and business.
Key words: economy, theories of legal regulation of economy, the rule-of-law state, the concept of national economy management, main trends to improve the legislation regulating the sphere of economy and business.
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State and Entrepreneurship: Problems of Interaction С. 39-41
State and Entrepreneurship: Problems of Interaction С. 39-41
The article examines basic methodological problems of interaction between the state and the society, including its economic sphere (entrepreneurship). The author introduces philosophical, economic, and legal academic literature rarely used by Russian legal scholars into scientific study of entrepreneurial law. Using the method of imaginary constructions, the author considers the fact that the state is to stay away from private matters. Its main task is to guarantee the security of an individual and the society in general, to react to deviating conduct by introduction of necessary regulatory acts, enforcement measures, and judicial decisions.
Key words: society, entrepreneurship, market, state, legislative power, executive power, judicial power, law, legal consciousness
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Introducing Anti-Dumping Duties on Imports of Steel Pipes for Oil and Gas Industry: the View from Abroad С. 42-53
Foreign economic activity is a multi-level, multi-faceted, multi-vector and multi-subject phenomenon that can include different substantial models like foreign trade of the state, e-commerce, etc. The authors analyze the substantial elements of the “foreign economic activity” concept that reflect its public and private law characteristics. The authors propose their understanding of the “foreign economic activity” concept, its properties, and particular features. The authors outline the appearance of the new regulation method as a result of transforming civil and administrative legal regulation methods. The method of the Foreign Trade law, in the opinion of the authors, reflects the symbiosis of the public and private elements in organization of the legal regulation. There is a gradual understanding that the country’s economic security as an integral part of national security is defined by the level of self-sufficiency and efficiency of the economy. The object of economic security is economy as a system and its integral parts, such as productive and non-productive assets, financial resources, etc. Economic challenges have a complex nature and are influenced by geopolitical, social, criminal and other factors. The state policy on economic security should include a system of measures to block the sources of all challenges. The article analyzes the modern forms and examples of political risks in foreign trade.
Key words: import of Russian steel, Antidumping Duty Investigation, foreign trade legislation, foreign economic activity, foreign economic relations.
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The Theory and Practice of Bank Credit and Investment Activities in Russia С. 54-64
The Theory and Practice of Bank Credit and Investment Activities in Russia С. 54-64
The article is devoted to the problems of investment banking in Russia. The authors conducted the comparison of the understanding of terms credit agreement and loan agreement and the comparison of banking operations and investment activities of banks in Russia. Apart from this, the authors look into the finance scheme of project finance.
Key words: banking activities, investment activities, investment banking, project finance, credit agreement, loan agreement.
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Some Aspects of Managing Risks of Freight Forwarders С. 65-69
Some Aspects of Managing Risks of Freight Forwarders С. 65-69
The article is devoted to the problem of managing risks of the freight forwarder. It concerns the ways of reducing financial risks of the freight forwarder within his/her professional activity. The author considers the most important of them, namely: detailed conduct of the precontractual work and the possibility to conduct the insurance contract.
Key words: the freight forwarder, the forwarding contract, managing of risks, insurance of goods, the precontractual work, the Russian Civil Code.
CRIMINAL LAW AND CRIMINOLOGY
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Objective Conditions for Criminal Liability of Legal Entities in the Russian Federation and Prospects of Its Introduction С. 70-93
The article points to objective conditions for criminal liability of legal entities in the Russian Federation and provides arguments supporting the need for introduction of such liability for certain violations. It describes the history of interpretation and gives brief characteristic of this institution in the Russian criminal and legal science with regard to three periods: before the revolution (up to 1917), Soviet era (from 1917 till 1991), post-Soviet period (from 1992 till now). The article provides information about legislative drafts which precede the Criminal Code of the Russian Federation 1996 and impose criminal liability upon legal entities. It analyses draft laws which were proposed in 2011 by the Investigative Committee of the Russian Federation and the deputy of the State Duma of the Federal Council of the Russian Federation – A.A. Remezkov – with a view to introduction of criminal liability of legal entities. Furthermore, it points to signify cant differences between the aforementioned draft laws. The first one recognizes a legal entity as a subject of liability covered by other criminal and legal measures, while the second one views a legal entity as a subject of crime covered by criminal punishment. The article expands on approaches used to establish the guilt of a legal entity. It comes to conclusion about practicability of one more criminal law which should be adopted apart from the Criminal Code of the Russian Federation – a federal law Concerning Legal Liability of Legal Entities, and suggests that such liability should be viewed as the beginning of a new branch of criminal law, basing, first of all, on specific differences in conceptions of deed and guilt of an individual and a legal entity.
Key words: criminal law, criminal liability of legal entities, subject of a crime, subject of criminal liability, objective conditions for criminal liability of legal entities, administrative violations by legal entities, crimes committed by legal entities, guilt of a legal entity
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Metallurgical Enterprises as Objects of Criminological Examination С. 94-98
Metallurgical Enterprises as Objects of Criminological Examination С. 94-98
The problem of criminological examination of space is one of the most difficult and unexplored in jurisprudence. It is caused by the tasks and functions of criminological examination that have not been reflected in the legislation, and its applied value in the conditions of the Russian reality has no practical implementation. The article describes some aspects of increase in efficiency of criminological examination of space developed by the Criminal Law Department of the Ural State Law University.
Key words: industry, crime prevention, criminological examination, crime prevention through environmental design.
4 RUSSIAN LAW: THEORY AND PRACTICE • No. 1 • 2016 HUMAN RIGHTS AND LEGAL AID
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Do We Need the European Court of Human Rights As a Supranational Body? С. 99-112
Do We Need the European Court of Human Rights As a Supranational Body? С. 99-112
The article analyzes the position of the supreme courts of the Russian Federation on the implementation of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedom, the legal positions of the European Court of Human Rights and the execution of judgments of the European Court of Human Rights. The author also considers problems arising in the criminal, administrative and civil proceedings within the Russian national judicial system in connection with the application of the legal positions of the European Court of Human Rights. Moreover, the difficulties arising in connection with the fulfillment of the judgments of the European Court of Human Rights are demonstrated with the example of decisions in which, in the author’s point of view, the European Court of Human Rights has exceeded its competence. The author examines the judgments rendered in respect of the Russian Federation as well as judgments rendered in respect of other countries that have ratified the European Convention for the Protection of Human Rights and Fundamental Freedom. Moreover, attention is paid to the decision of the Constitutional Court of the Russian Federation of 14 July 2015 concerning the collision between the decisions of the European Court of Human Rights and previously expressed positions of the Constitutional Court of the Russian Federation. It is mentioned that pursuant to this decision of the Constitutional Court of the Russian Federation,the procedure of constitutional control of the decisions of international bodies for the protection of people’s rights and freedoms, in particular the European Court of Human Rights, has been developed and implemented.
Key words: The European Court of Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedom, a collision, a supranational body,supreme juridical force, sovereignty
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Nationality and Legal AID: Russian and Finnish Approaches С. 113-131
Nationality and Legal AID: Russian and Finnish Approaches С. 113-131
In this article, the authors discuss issues related to the nationality of persons entitled to public legal aid in Russia, using as a point of comparison the legal-aid system in Finland. Such issues are of particular importance in modern Russia, since a large proportion of Russian residents are citizens of the former Soviet Union who lack Russian citizenship: citizens of other countries (inter alia, CIS countries), or immigrants and refugees, many of whom may find themselves in need of free legal aid. Russia’s Ministry of Justice is in charge of developing a system of free-of-charge, state-provided legal aid that could, in theory at least, also be accessed by the above-mentioned categories of non-citizens. The Ministry ran a pilot project between 2006 and 2011, after which Russia passed a new Free Legal Aid Act, which has been in force since 15 January 2012. The authors first compare the provisions of the Constitutions in both Russia and in Finland and discuss the question of the right to a fair trial based on the concept of human rights. The authors focus especially on the question of the citizenship of persons entitled to public legal aid. Second, the authors discuss key legislation on state-provided legal aid in Russia and Finland. In this connection, some statistics are presented on foreigners who receive state-provided legal aid in Helsinki (Finland). Such data on what legal aid foreign nationals have required in Finland is used to give a rough assessment of what corresponding legal aid foreign nationals may need in Russia. The authors address some of the fundamental questions in the continued development of the public legal-aid system in Russia, including challenges related to the legal protection of foreign nationals. The authors note that, at present, in view of Russia’s active migration policy, foreign nationals are arriving in the Russian Federation with increasing frequency, are becoming more widely engaged in various public activities in Russia, and are increasingly entering into legal relationships in Russia. If they have a low income (for example, students, pensioners and the unemployed), the state should consider guarantees with respect to the provision of legal aid in order to protect their rights.
Key words: Finnish legislation, Russian legislation, public legal aid, nationality, nondiscrimination.
COMPARATIVE LAW
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The Dispute Concerning the Polish Constitutional Tribunal С. 132-142
The Dispute Concerning the Polish Constitutional Tribunal С. 132-142
Dispute Concerning the Polish Constitutional Tribunal. Poland is currently under criticism for an amendment of the Constitutional Tribunal Act passed by the new government majority party called Law and Justice (PiS). In 2015, a legislative change was adopted which introduced an obligation for the Constitutional Tribunal to discuss unconstitutionality of an act only in the presence of at least 13 judges, under the chairmanship of President or Vice President of the Constitutional Tribunal. An act is unconstitutional if two-thirds of the judges vote for it. This text compares this requirement with the adjustment in Bohemia, Moravia and Silesia in the past and present.
Key words: Poland, Constitutional tribunal.
PUBLICITY
