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principles of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty

Being an element of customs payments, privileges on their payment inseparably linked with the mechanism of an establishment and customs duties collection. From that how much it is debugged, efficiency of use of customs payments as tool of a customs and financial policy gosu - darstva [283] depends, that, certainly, is in many respects defined by the principles which have been put in pawn in legal regulation.

It is necessary to note distinction of concepts "establishment" and "collection" of customs payments, including the customs duties.

The establishment represents difficult from a position of legislative technics process. Its essence consists in necessity not simply to fix the list of customs payments, but also to define all essential elements of its structure: the payer, object of taxation, base, the rate, a calculation order, an order and terms уплаты1.

Complexity also is shown that institute of customs payments represents the complex (interbranch) legal institution consolidating similar, close norms, concerning various branches of law. It is possible to name institute of customs payments the interbranch legal institution as its functioning is based on rules of law constitutional, customs, financial and other branches of the legislation [284 [285]. At the same time, traditionally named institute include in system of the customs right [286]. It causes necessity of the account of the legal ideas having branch specificity.

Collection of customs payments concerns already the block of their administration. As specifies I.A.Tsidilina, collection of customs payments (including their compulsory collecting) and the control over correctness of calculation and timeliness of their payment, is an essence of administration of customs payments [287]. Without the accurate organisation and functioning of system of collection of customs payments successful carrying out of customs-tariff regulation of foreign trade activities [288] is impossible.

In aspect of consideration of principles of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty pertinently to ask a question, on what principles it is necessary to talk in this case: establishment or collecting duty principles.

It is obviously possible to agree with I.S.Nabirushkinoj's believing opinion, that concepts collection of customs payments and payment of customs payments should correspond as the general with the private. Wider is the concept the "collection" including reception by customs (tax) bodies of customs payments both at voluntary execution of the liability (payment), and in case of application of forced measures (compulsory collecting) 1. As collection of payments is impossible without their establishment it is possible to conclude, that the concept «principles of legal regulation of collection of the customs duties» covers in the maintenance processes and establishments and collection, acting as the general ideas which realisation is possible in any moment of these processes in need of the decision of questions at issue.

In a science it is not challenged, that the Constitution of the Russian Federation is the basic source not only a constitutional law, but also all branches of law.

State activity on an establishment and collection of customs payments, certainly, is based on a number of the constitutional principles - generality, a legislative establishment, unity of system of customs payments, equality, etc. [289 [290] Explanation of the constitutional positions with reference to various spheres of legal regulation is within the competence of the Constitutional Court of the Russian Federation.

Concerning an establishment and collection of the customs duties separate positions have not been stated by the Constitutional Court of the Russian Federation, however from its Definition from March, 03rd, 2015 № 417 [291] follows, that any public payments in the budget should not be deduced from sphere of action of article 57 of the Constitution of the Russian Federation fixing conditions of an appropriate establishment of taxes and tax collections which gets thereby universal character. It allows to draw a conclusion

0 volume, that the given legal position extends and on customs пошлины1.

Considering affinity of the legal nature of the customs duties and taxes, and also the specified position of the Constitutional Court of the Russian Federation, it is represented, that by working out of principles of an establishment and collection of customs payments should receive application conceptual workings out, and also the settled positions of vessels of the higher degrees of jurisdiction concerning taxes and the taxation. Not casually in pre-revolutionary scientific thought necessity of strict deliberation of legislative decisions [292 [293] was marked. It is quite obvious, that customs payments can possess features, including regarding principles. However these features should be proved as excluding application of base principles and to form own principles and approaches. Formation and category development «principles of an establishment and collection of fiscal payments» as a whole is obviously necessary, that, however is not a problem of the given research.

By consideration of principles definition of their concept is important. Traditionally principles of the right including tax, are defined as the basic and supervising ideas leading positions, the defining beginnings of the fiscal law expressed directly in norms of the fiscal law [294]. But there is also other approach represented by more significant from a position of protection of the rights and legitimate interests of payers of obligatory payments. So, for example, according to M.B.Razgildievoj, fiscal law principles it is set of the requirements shown by a society to the state on maintenance of fundamental laws and freedom of the person in the field of the taxation [295].

The constitutional Court of the Russian Federation in the Decision from March, 21st, 1997 № 5-П has formulated a legal position according to which the general principles of the taxation and gathering concern the basic guarantees which establishment provides with the federal act realisation and observance of bases of the constitutional system, fundamental laws and freedom of the person and the citizen, federalism principles in the Russian Federation.

It is expedient to note also separate opinion of the judge of the Constitutional Court of the Russian Federation K.V.Aranovsky who has noticed, that, obliging everyone to pay not any, and the only lawfully installed taxes and tax collections, article 57 of the Constitution of the Russian Federation, thereby everyone is left free from formally illegal monetary withdrawals and, besides, protects from the legislation charging with payments contrary to the constitutional establishments. Monetary withdrawal in the budget should be statutory, first, and secondly, such law should have konstitutsionno well-founded основания1.

In the scientific environment as base principles (rules) of taxation taxes traditionally consider the postulates formulated by A.Smith: uniformity, definiteness of taxation, convenience of collection to payers and cheapness of collection. In a pre-revolutionary science of the Russian financial right they were estimated as not faultless, but all the same on the general depth and fidelity the cores for any correctly arranged system of taxes.

Many scientists, including representatives of the Saratov scientific school [296 [297] [298], support a position that concern number of main principles of the fiscal law: legality of the taxation; generality and equality of the taxation; justice of the taxation; levy in the public purposes; an establishment of taxes and tax collections in due legal procedure; the economic basis of taxes; a presumption of interpretation in favour of the tax bearer of all ineradicable doubts, contradictions and ambiguities of certificates of the legislation on taxes and tax collections; definiteness of a tax duty and т.д.1

It is represented, that with reference to the mechanism of an establishment and collection of the customs duties principles of interpretation in favour of the payer of ineradicable doubts, contradictions and the ambiguities of certificates of the legislation establishing a duty of payment have special value; a principle of economic validity of the customs duties; a principle of balance private both public interests at an establishment and customs duties collection. Certainly, the list of principles of an establishment and collection of customs payments is more considerable and can be hardly generated within the limits of one research work [299 [300]. The reference to consideration of the specified principles is caused by several factors. First, their obvious constitutional basis, i.e. immutable distribution on sphere of an establishment and customs duties collection. Secondly, obvious ignoring of these principles that is revealed by the present research.

The principle of a lawful establishment of obligatory payments is not limited to requirements to the legal form of the certificate establishing this or that obligatory payment, and to procedure of its acceptance. The maintenance of this certificate also should meet certain requirements, lawfully established the obligatory payment mismatching in essence the constitutional principles and fundamental principles reflecting them of the legislation on taxes and tax collections [301] therefore cannot be considered.

As has specified the Constitutional court in Definition from March, 01st, 2010 № 430-ABOUT-o1, the legal principle in dubio contra fiscum («doubt - against the fisc») represents display in tax laws of the constitutional principle of a lawful establishment of taxes and tax collections (article 57 of the Constitution of the Russian Federation) in which force tax organs can operate in taxation sphere only in those limits, in that volume of tax loading which is statutory, i.e. the certificate accepted with observance of democratic procedures. Differently, the given principle represents display of the constitutional principle of legal definiteness which assumes sufficient accuracy of rules of law, than their correct understanding and application is provided, the vagueness of tax norm can lead not soglasujushchemusja with the constitutional principle of a lawful state to any and its discrimination application and by that - to infringement of the constitutional principle of legal equality and the requirement of equality of the taxation following from it [302 [303] [304].

A.A.Kosov underlines, that the import customs duties are not specified by the legislator directly as the tax or the gathering established by the Tax code of the Russian Federation, however, it also are obligatory public payment and consequently rules of law which establish elements of any obligatory public payment, should be interpreted according to the given principle [305].

The principle of a presumption of interpretation in favour of the tax bearer represents the historical rule which is going back to basic postulates of the Roman Law - «At doubt find for the defendant or the weakest» 1.

The principle of definiteness of the tax obligation is derivative from obshchepravovogo a principle of legality and a principle of interpretation in favour of the tax bearer (the payer of gathering) all ineradicable contradictions and ambiguities. The given principle directly is fixed in point 6 of article 3 NK the Russian Federation and means a rule according to which norms about taxes and tax collections should be formulated so that everyone precisely knew, what taxes (gathering) when and in what order he should pay.

This principle of the tax obligation as one of the central principles of the fiscal law, has general-theoretical and obshchepravovuju the nature and bears in itself the requirement of limiting concreteness, clearness and unambiguity of the maintenance of corresponding rules of law.

According to L.V.Hodsky, definiteness of taxation represents preliminary knowledge of payers of presence at them podatnyh duties. It allows them to be prepared in due time for entering of obligatory payments into treasury and to avoid unforeseen unexpectedness in mutual relations with the fiscal power [306 [307]. The similar position was stated by the Constitutional court of the Russian Federation [308].

The considered principle also comes under to application to the customs duties as, first, it is obshchepravovym, and secondly, the norms establishing a duty of payment of the customs duties are financially-legal and assume established by the state and provided with measures of the state compulsion, strictly certain rule of behaviour in the public financial relations arising in the course of formation, distribution and use state (and municipal) monetary funds and incomes which fixes the legal rights and their legal obligations участников1.

Thus considered legal principles should extend not only on the customs duties, but also on privileges on its payment as an element of customs payments.

The principle of the economic basis of the tax repeatedly expressed the Constitutional Court of the Russian Federation in various formulations: the law it is impossible to establish taxes and tax collections, not having on that of the economic bases, that from point 3 of article 3 NK the Russian Federation [309 [310] directly follows; to establish taxes and tax collections follows not any way, and in compliance with their economic sushche - stvu [311].

The principle of the economic basis of taxes in the scientific doctrine is understood as different parametres. So, one authors notice, that this principle not only is shown that taxes should not be excessively burdensome, but also that they should have necessarily the economic basis (that is not to be any) [312]. This principle is fixed in article 3 NK the Russian Federation in which also it is specified in inadmissibility of an establishment of the taxes interfering realisation of constitutional laws of citizens.

Many scientists notice, that the economic basis of the tax adequately is far not in all cases and is consistently embodied in the legal mechanism of its establishment and взимания1 about what also it is possible to approve fairly concerning the customs duties.

As specifies I.A.Tsindeliani, the considered principle causes a considerable quantity of disputes in the scientific environment as now there is no unequivocal interpretation of the term «the economic basis». He believes, that one of a component of the specified term is necessity of an estimation of possible consequences which will be entailed by a tax establishment as for the concrete tax bearer and the state treasury, and for economy branch (level of tax burden of the manufacturer etc.) [313 [314]. This factor is represented deserving the maximum attention.

As it has been noted in paragraph 1.1, with the beginning of collection of the customs duties from repairs of the Courts of Admiralty executed abroad, domestic ship-owners began to reduce sharply quantity sudohodov in the Russian ports. For trading vessels it has entailed decrease in volumes of transfer of foreign cargoes in domestic ports, for fishery vessels - delivery Russian ulova in foreign ports, that negatively influenced economy of "fishing" regions. Russia has been forced to get own fish at foreigners, for example, annually on "nezahodnyh" fishing vessels the economy of Murmansk area receives less about 5 billion roubles [315].

Customs amnesty for fishing Russian vessels became the first measure realised in the Russian Federation before coming into force of the Customs code of the Customs union and directed on elimination of consequences of this destructive policy. As an occasion to its realisation the selector meeting consisting on December, 01st, 2008, devoted to problems of fish branch, with participation of the vice-president of the Government of the Russian Federation V.A.Zubkova and the governor of Murmansk area J.A.Evdokimova on which the last had been sounded a problem about 70 modern fishing vessels which do not come into the Russian ports because of necessity of payment of the customs duties and the VAT has served. In this connection it was offered to J.A.Evdokimovym or to declare customs amnesty, or to oblige our ship-owners to pay only the 5 percent customs duties with instalments on 12 месяцев1.

The initiative of the governor of Murmansk area has been considered and as a result is realised in the form of the Federal act from December, 30th, 2008 № 314-FZ «About modification of a part the second the Tax code of the Russian Federation and separate acts of the Russian Federation regarding increase of efficiency of the taxation rybohozjajstvennogo a complex» [316 [317]. Changes have been made to article 150 of the Tax code of the Russian Federation and in article 35 of the Law of the Russian Federation from May, 21st, 1993 № 5003-1 «About custom duties» [318] according to which Russian vessels of fishery fleet in which relation outside of the customs territory of the Russian Federation works have been performed on major repairs and (or) modernisations, were released from payment of the import customs duties and taxes.

The specified amnesty was a target date for one year and by results of its carrying out has been noticed, that the part of vessels could return to Russia, and the Murmansk port in 2009 has processed on 60 thousand tons of fish more than in 2008 [319].

The following similar amnesty has been passed on the basis of the Decision of Commission EAES from February, 12th, 2016 № 4 «About modification of some decisions of the Commission of the Customs union concerning separate kinds of the Courts of Admiralty» [320]: subparagraph 7.1.10 of the Decision of the Commission of the Customs union from November, 27th, 2009 № 130 has been added by the rule of law releasing till January, 1st, 2018 from the import customs duties fishing and other vessels (corresponding to a code 8902 00 100 0 TN foreign trade activities EAES), registered in the register of vessels of member state of the Euroasian economic union, floating under the flag of one of member states the Euroasian economic union, imported on territory of the Euroasian economic union and placed under a customs procedure of release for internal consumption.

The resulted examples confirm, that existing tamozhennotarifnoe regulation concerning temporarily taken out vehicles of the international transportation, podvergshimsja abroad to operations on repair or the maintenance service, directed on protection of ship-repair branch, has considerably worsened position of fishery branch of Murmansk area (and, probably, of some other regions) and has demanded necessity of double application of amnesties.

Besides it, the doubt causes validity of the established size of the customs duties levied from operations on repair (maintenance service). In particular, according to subpositions 8901 90 90 100 0 and 8902 00 100 0 TN foreign trade activities, the rate of the import customs duties concerning cargo, passenger-and-freight and fishing vessels constitute 5 % from their customs cost. It is obvious, that the specified rate should be directed on protection of interests of domestic ship-building branch at import of the vessels constructed on foreign shipyards, and should be defined proceeding from a level of development, possibilities, degree of decline of the given branch etc.

Meanwhile resulted above a subposition and the customs duties rate are applied and to operations on repair (maintenance service) of the Courts of Admiralty (in case of non-observance of conditions of their use abroad), recognised as processing out of customs territory EAES. It is obvious, that the customs duties levied from operations on processing of the Courts of Admiralty abroad, it should be entered for the purpose of protection of ship-repair branch, instead of ship-building.

The given circumstances objectively specify that the same rate (5 %) on the same subposition is applied, as at import of the foreign goods (a sea vessel), and concerning operations on processing abroad back imported Courts of Admiralty which are goods EAES, i.e. is applied to protection of different branches: ship-building and ship-repair.

Besides the specified principles in questions of customs-tariff regulation and the financially-legal clearings connected with it the balance between public and private interests also should be provided.

The constitutional Court of the Russian Federation on the questions of principle, concerning conformity of those or other norms of the Constitution of the Russian Federation, always addresses to a principle of equation private and public interests. Quite often «the balance public and private interests» is defined by the Constitutional Court of the Russian Federation on a level with categories «legal definiteness», "equality", "justice" 1. Thus the Constitutional Court of the Russian Federation specified in necessity of observance of the given principle by consideration of the questions connected with various branches of law: civil [321 [322], wood [323], жилищного1 and so forth, that testifies to universality of the given principle and its unconditional rasprostranjaemosti on sphere of an establishment and collection of customs payments.

The given principle has been formulated for the first time by the European court under human rights [324 [325] [326] which repeatedly focused attention on infringement «fair balance between interests of the state and the applicant» [327]. It was noticed by it, that this balance is expressed in a legal protection of the person from any intervention from the state.

The constitutional Court of the Russian Federation recognises multidimensional character of maintenance of balance private and public interests, naming it: a right principle; the requirement following from positions of a part of 3 articles 17 and a part of 3 articles 55 of the Constitution of the Russian Federation and turned to carriers of public authority; a duty of the federal legislator; necessity; the constitutional value etc. [328]

Characterising sense and the maintenance of the given principle the Constitutional Court of the Russian Federation specifies, that: «public interests... Can justify legal restrictions of the rights and freedom if they are adequate to socially defensible purposes» [329]; «Providing at realisation of corresponding legal regulation balance private and public interests in democracy sphere, the federal legislator... Is obliged to consider, that the purposes of restriction of the rights and freedom should be not only legally, but also are socially defensible, and restrictions - adequate to these purposes and to answer with justice requirements.... The public interests listed in article 55 (a part 3) Constitutions of the Russian Federation, can justify legal restrictions of the rights and freedom, only if such restrictions are adequate to socially necessary result» 1; « The federal legislator has the right to use a combination of private-law and public elements which will provide with the most effective image interaction private and public interests in the given sphere in regulation of corresponding relations. Having thus wide freedom of the discretion in a choice of legal means, it at the same time is connected by konstitutsionno-legal limits of use publichnopravovyh the beginnings, defined articles 7, 8, 17 (a part 3) and 55 (parts 2 and 3) Constitutions of the Russian Federation »[330 [331].

The principle of balance private and public interests repeatedly was exposed to scientific judgement, and at the present stage to the given question more and more steadfast attention [332] is paid.

According to O.N.Monahova, the balance of interests assumes legal regulation of the relations arising between subjects of law by means of the fair legislation. That is the idea of justice receives realisation in a kind is moral-legal principle in standard legal актах1. Maintenance of balance private and public interests has great value for formation of the fair law and order [333 [334].

J.A.Krohina believes, that the mission of the financial right should be expressed in maintenance of balance of legitimate interests of all participants of the financial activity, optimum combining public and private requirements [335].

Fair D.M.ShChyokina's statement that would be an error to believe that collision of public and private interests occurs only in legislative process at a formulation of the rule of law and when it is formulated in the law in it the invariable proportion of these interests is always statically fixed is represented. As any rule of law requires interpretation in its correlation with other rules of law and at interpretation collision public and the private interest [336] also is shown. T.T.Aliev [337] pays attention To necessity of observance of the given balance at delivering justice, naming it is a challenge demanding directly intervention of vessels.

Necessity of observance of a principle of balance private and public interests marked E.I.Maksimenko, P.V.Ljashenko [338], E.S.Donetskov [339], K.M.Mashtakov. Thus last believes, that balance achievement as some balance is objectively impossible in general, and for reflexion of a real essence of a parity of the specified interests offered use of concept "harmonisation" that assumes their reduction in a condition слаженности1.

Observance of the given principle should be shown also and in customs sphere about what directly specify T.A.Dikanova and L.I.Aleksandrova. Other approach would mean or infringement of public interests (import to Russia the forbidden production) or the rights of participants of foreign trade activities (illegal deprivation of property, creation of obstacles in business dealing). The given scientists believe, that protection of private interests, in turn, promotes observance of public interests, foreign trade activities development, it is thus obvious, that such interests as a rule do not coincide - any participant of foreign trade activities is interested in minimisation of customs payments that gives profit. Public interest consists in completeness of customs receipts in the budget [340 [341].

The problem of assistance and display of realisation of a principle of observance of balance private and public interests can be expressed to development of foreign trade activities, in particular, in softening of customs-tariff measures (decrease in rates of the customs duties and their full cancellation), removal of interdictions and restrictions etc.

In the theory of the politician of introduction of custom duties it is considered not optimum policy, as from positions of maintenance of national commodity producers from an external competition (considering the negative consequences of its restriction connected with reduction of stimulus to effective activity), and from positions of filling of the state budget (according to the scientists, the given function is carried out is better by internal taxes, neutral concerning foreign policy). For this reason many researchers come to conclusion that the blanket tariff with zero ставкой1 is optimum only.

At the same time, taking into consideration necessity of attraction of means for the state budget in the cheapest way, often is recommended to use custom duties with the minimum rate.

Arguments in favour of use of import tariffs with low rates are based volume, that lower rates cause smaller losses of efficiency from the protectionist policy. At low rates small administrative costs on collecting duty can move economic losses from protectionism and make expedient introduction of the import duty [342 [343].

Scientists agree in opinion, that each correct custom duties should be the compromise between system of free trade and system patronising. It is necessary to weigh strictly each article of the tariff and in each separate case not to lose sight of common interests of the state [344].

The scientific thought of the pre-revolutionary period has developed approaches, the basic ideas (the beginnings, rules) establishments of custom duties (customs duties) which do not lose the urgency and now. The duty should be imposed from reasons of value of those materials which are a part of a product, and is equal with value of its manufacture, and then this value should be compared to similar values in other states. Such approach can serve as a criterion of the established duty. The tariff should correspond to circumstances in which there is a state, and according to them to raise or go down. For taxation by revenue duties it is necessary to select such goods which are brought and consumed in the country in the extensive size [345]. As to duties fiscal, i.e. What are levied without any economic calculations, it is unique for the purpose of income reception these duties are similar on the character to other indirect taxes and should submit therefore in the device to all those general rules which are applicable to everyone налогу1.

As specifies O.J.Bakayev, at definition of the size of custom duties, this or that rate should not be excessively high as it should correspond to degree of protection of the national market of production [346 [347]. Otherwise, import of the foreign goods «can become practically impossible» [348], internal manufacture becomes monopoly and will not be improved, and the price will increase only [349].

Well-known, that tariff protection extends not only on the goods, but also on the whole branches, including on what are at a stage of formation and development [350]. Positive examples of realisation of measures of state regulation of this or that branch are known since Soviet times. For example, the Decision of Council of National Commissioners from February, 11th, 1927 had been entered differential custom duties for the goods brought through Murmansk port, and represented the discount from operating rates of the general custom duties on the imported trade estimated in rub - the pole [351]. Subsequently, the discount was defined in a percentage parity to the specified tariff [352]. Introduction of this tariff pursued the aim to promote bolshej to loading of Murmansk port after the termination of building of the Murmansk railway. The positive effect from the specified tariff also has been noted in the Soviet literature [353].

Thus, it is obvious, that at definition of the sizes of the customs duties (state regulation limits) into consideration the principle of a combination public and private interests without fail should be taken. Pursuing the public aims (formation of a profitable part of budgetary system, strengthening of struggle against wrongful acts in the field of customs business), public authorities should be guided and on private-legal начала1. About it the maintenance of article 18 of the Constitution of the Russian Federation directly says. Concerning a considered principle the specified article of the Constitution has a direct sense. Public interests (state) are generated by private interests, public authorities are obliged at realisation of the powers assigned to them to start with interest of concrete subjects of customs legal relations.

Meanwhile, as it was fair it has been noted by I.I.Janzhulom, struggle between aspiration of the state to take is more and aspiration of citizens to give occurs resolutely through all financial history of the European people to various result [354 [355] less. It is represented, that levied for the purpose of protection of the domestic ship-repair enterprises the customs duties from cost executed concerning the Courts of Admiralty outside of the customs territory of the Russian Federation of operations, are directed exclusively on satisfaction of fiscal interests of the state. Meanwhile practice has shown an inefficiency of such approach for lack of any financially-legal privileges (their inferiority or insufficient prorabotannosti).

The stated testifies that at regulation introduction in the specified sphere in a due measure the rules considered above and principles have not been considered: collection of the customs duties has been directed mainly on satisfaction of fiscal interests of the state, and granting of financially-legal clearings had no necessary degree of legal fastening.

Instead of introduction of constant financially-legal clearing of payment of the customs duties from cost of operations on repair and maintenance service of the Courts of Admiralty, covering base requirements of ship-owners and considering features of operation of vessels, the state it has been forced to release fishery vessels from payment of the import customs duties for all repairs executed abroad completely twice. In the presence of more flexible customs-tariff regulation with corresponding privileges many of these operations could be object of taxation by customs payments and increase country incomes, having provided fiscal interests of the state on a basis balance private and public interests.

The given circumstances confirm importance and necessity of financially-legal clearings (privileges) for the mechanism of an establishment and collection of the customs duties which maintenance should consider requirements of the branches which regulation they mention that will provide realisation of a principle of balance private and public interests in sphere of collection of customs payments.

By R.K.Kostanjanom it is fairly noticed, that neprorabotannost mechanisms of separate privileges attracts behind itself their inefficient use, depriving the given tool of true regulating sense [356].

Besides, proved the position of pre-revolutionary scientist I.H.Ozerov is represented, according to which one only duties cannot develop the industry, since they are only one of means in variety of others (presence of natural favorable conditions for the given industry; good intelligent structure of working class, also the most serious measures, a technical education and technics development, and also the rational organisation of duties should be in this respect taken: that one hand that another is given did not undertake) 1.

Now and in ship-building and ship-repair branches the considerable block of problems which cannot be eliminated by means of only collection of the customs duties (deterioration of production assets, moral and physical obsolescence of the process equipment has collected; backwardness of the technologies which have stopped at level of the sixtieth years of last century; excess in 3-5 times of specific labour input of manufacture in comparison with foreign competitors; in times the exceeding cost price of building of vessels; low automation of processes, shortage of shots etc.) [357 [358].

Therefore repair of the Russian vessels abroad cannot in itself be the reason of decline of ship-repair branch of Russia since also problems of other branches are frequently connected not only with import. In this connection, it is impossible to disagree with O.J.Bakaevoj's conclusion: «feature of Russia consists that a foreign competition - not unique, and in some cases even not main reason of decline of many branches. Becomes clear, that this decline first of all is caused by intraeconomic disproportions» [359].

It is necessary to notice, that despite understanding of a current condition of ship-repair and ship-building branches of economy of Russia and the reasons on which repair, maintenance service and marine sea fleet modernisation are carried out abroad, possibility of use of administrative levers and legal mechanisms for the purpose of maintenance of satisfaction of fiscal interests and reception of the income of the customs duties (other payments) from cost of such operations now is considered, showing as one more example of ignoring of principles of economic validity of taxation by duties and balance private and public interests is represented.

For example, since 2014 the offer on interdiction introduction on vylov fishes in the Russian waters by vessels which have not passed customs registration in Russia, i.e. "nezahodnyh" the vessels repaired, modernised, etc. on foreign судоверфях1 is considered. It, according to the head of Federal agency on fishery, «will give advantages of the Russian ship-building branch, and the fishermen working under the Russian flag, will force to observe laws of the Russian Federation» [360 [361]. Term of realisation of the specified initiative is now at a stage of discussion [362], possibility of carrying out of tax and customs amnesties before introduction of the specified measure is thus discussed.

Thus, shipbuilding and ship repair support is planned, despite their unavailability to perform works necessary for ship-owners, that, in case of realisation of discussed measures, will put ship-owners (especially proprietors of fishing vessels) before a choice: repair abroad and payment of customs payments for the purpose of right preservation on vylov fishes, i.e. essential growth of costs and difficulty of economic development, or the economic activities termination.

The ministry of the industry and trade of the Russian Federation prepares the draught federal law «About modification of the Maritime Code of the Russian Federation» which purpose of working out was necessity of increase of loading of the ship-building enterprises, and also the enterprises of allied industries of the industry located in territory of the Russian Federation, and as a way of regulation use was offered at carrying out of separate kinds of works of exclusively vessels constructed in territory Russian Федерации1. The given project provides introduction of an interdiction for use in sea transportations across Russia of vessels which have been constructed outside of the Russian Federation, even in spite of the fact that they carry out swimming under national colours and are registered in the domestic register of ships (except for the vessels being in the property of the Russian Federation or used by the state bodies for performance of functions assigned to them). However more than 80 % of the Courts of Admiralty belonging now to the Russian ship-owners are constructed abroad. Realisation of this measure will entail the forced termination of economic activities, liberation of a manpower and necessity of employment of highly skilled workers which have skill of work only in certain sphere of work, etc. [363 [364]

Thus, in spite of the fact that the customs duties with a view of development of the ship-repair and ship-building branches which purpose is creation of unprofitable conditions for ship-owners for repairs of the Courts of Admiralty abroad are already entered, research of additional legal means and mechanisms with which help probably replenishment of the budget in the form of receipts from customs payments and support specified above branches for the account of infringement of legitimate interests of navigable branch which is the basic in relation to named and, as a matter of fact, defines their existence nevertheless proceeds.

It is represented, that instead of resulted above measures, now it is expedient to concentrate on an existing financially-legal privilege (provided in subparagraph 1 of point 1 of article 277 TK EAES), as display of regulating function of the customs duties as a principal cause of outflow of national fleet, low congestion of the ship-repair enterprises the problem connected with taxation by obligatory payments of "foreign repairs» is.

The research carried out this part allows to conclude the following. At an establishment of the customs duties and the privileges directed on clearing of participants of foreign trade activities from its payment, the balance private and public interests should be provided. It is represented that the specified principle has not been considered at introduction of the customs duties directed on replenishment of the budget and stimulation of development ship-building (ship-repair) branches, at a formulation finansovopravovoj a privilege provided in subparagraph 1 of point 1 of article 277 TK EAES, assuming clearing of its payment.

It is remarkable, that carried out in frameworks of the given scientific research the analysis of materials of the developed judiciary practice allows to draw a conclusion that the given principle has not been provided not only the legislator at a formulation of a financially-legal privilege, but also has not found the due application at the disposal of legal proceeding, connected with realisation by ship-owners of the specified privilege.

The given circumstances specify articles 277 TK EAES considering features of technical operation of the Courts of Admiralty in necessity of modification of subparagraph 1 of point 1, and also impossibility of the domestic ship-repair enterprises properly to provide satisfaction of requirements of ship-owners under repair and maintenance service of the Courts of Admiralty belonging to them, that in turn will allow to provide balance between private and public interests in the specified sphere and to bring existing regulation into accord with positions of the Constitution of the Russian Federation and positions of the Constitutional Court of the Russian Federation.

The establishment of the customs duties from cost of repair and the maintenance service executed abroad if it has not been caused by the requirements which have arisen during flight of the international transportation, has the appointment not only fiscal problems, but also the regulating developments of national ship-repair branch directed on stimulation by formation of financial interest of ship-owners, to spend repairs in territory of Russia. It is represented, that in an establishment of clearing of payment of the customs duties from cost of the repair executed abroad or maintenance service, the principle of balance private and public interests, and also a principle of justice of taxation by obligatory payments, its economic validity is realised. Carrying out of repair (maintenance service) outside of Russia at presence to that objectively-necessary requirement should not be assessed with the customs duties. Thus, a duty establishment on payment of the customs duties at performance abroad repairs (maintenance service) of a sea vessel and clearing of their payment under certain conditions, have system interrelation and, as a whole, are directed not only on formation of incomes of the federal budget, but also on maintenance of a problem of stimulation of development of ship-repair branch and a marine sea fleet in the Russian Federation.

However the analysis of the situation which have developed as a result of action of the given standard instruction, allows to establish its low efficiency, as regarding maintenance of incomes of the federal budget, and development of ship-repair branch and a marine sea fleet of Russia. As it has been noted, impossibility of reception of qualitative repair (maintenance service) on territories of Russia, and also additional financial encumbrances in the form of payment of the customs duties from them, force ship-owners to registration in foreign jurisdictions, that not only reduces tax revenues from their activity in budgets of the Russian Federation, but also interferes with formation of a sea merchant marine fleet. Meanwhile, it appears, what exactly last problem is the basic since the ship-repair branch represents an infrastructure of a marine sea fleet and cannot function at its absence.

Balanced with features of operation of the Courts of Admiralty the mechanism of realisation of the given financially-legal privilege will create bolshy economic benefit and favorable for development of ship repair of a condition (in the presence of other measures of the state support), the ways of influence rather than resulted above. It will create preconditions for vozrashchenija fleet under national colours, will involve in the country incomes in the form of public payments and will raise demand for works of the domestic ship-repair enterprises, that, as a whole, will provide realisation of a principle of balance private and public interests.

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A source: MASLY Andrey Igorevich. FINANCIALLY-LEGAL REGULATION of CLEARING of payment of the customs duties Concerning TEMPORARILY TAKEN out VEHICLES of the INTERNATIONAL TRANSPORTATION (ON the EXAMPLE of the RUSSIAN COURTS OF ADMIRALTY). The dissertation on competition of a scientific degree of the master of laws. Saratov -. 2018

More on topic principles of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty:

  1. clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty as means of maintenance of realisation of functions of the customs duties
  2. the Financially-legal nature of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  3. Chapter 3. Problems of realisation of the right to clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  4. Clearing of payment of the customs duties at fulfilment of planned operations on current (average) repair and (or) to maintenance service of temporarily taken out Russian Courts of Admiralty
  5. Chapter 1. Theoretical and legislative bases finansovopravovogo regulations of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  6. Requirement for fulfilment of operations on repair and (or) to maintenance service, as a condition of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  7. the operations necessary for maintenance of a vessel in a condition in which it was at date of export as a condition of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  8. Formation of financially-legal regulation of clearing of payment of the customs duties concerning the Russian Courts of Admiralty
  9. MASLY Andrey Igorevich. FINANCIALLY-LEGAL REGULATION of CLEARING of payment of the customs duties Concerning TEMPORARILY TAKEN out VEHICLES of the INTERNATIONAL TRANSPORTATION (ON the EXAMPLE of the RUSSIAN COURTS OF ADMIRALTY). The dissertation on competition of a scientific degree of the master of laws. Saratov -, 2018 2018
  10. Chapter 2. Conditions of realisation of the right to clearing of payment of the customs duties in the relation it is temporary vyvezennyhrossijskih the Courts of Admiralty
  11. clearing of payment of the customs duties at fulfilment of operations on current (average) repair and (or) to maintenance service by results of fault detection and survey of temporarily taken out sea vessel
  12. 2.1. Legal maintenance of principles of activity of customs service of the Russian Federation.
  13. duties of Jews on payment of taxes and execution of other duties.
  14. § 2. Legal nature of the customs duties
  15. § 3. A parity of concepts «civil-law principles» and «principles of realisation of the rights and discharge of duties»