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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

As at the moment of carrying out of research judiciary practice concerning application of the financially-legal privilege containing in subparagraph 1 of point 1 of article 277 TK EAES, is not generated yet, in work the legal positions of vessels expressed in judicial certificates, taken out from the moment of the beginning of action of subparagraph 1 of point 1 of article 347 TK the HARDWARE are used.

The first condition necessary for application of subparagraph 1 of point 1 of article 277 TK EAES, that the privilege provided by it can be realised only concerning those operations on current (average) repair is and (or) to maintenance service of a sea vessel, the requirement in which has arisen outside of the Union customs territory (further - a condition «about requirement» [365]).

For the first time the condition «about requirement» has found the reflexion in subparagraph 1 of point 1 of article 347 TK the HARDWARE (the text of paragraph 2 of point 1 of article 276 TK the Russian Federation did not provide such condition), however, revealed in a course pravoprimenenija the specified condition legal blanks and have not been settled. In particular, one of such blanks is absence of unequivocal instructions that it is necessary to understand as requirement for operations on maintenance service and (or) to current (average) repair of a vehicle of the international transportation and what are made demands to ways of fixing given потребности1.

The existing legal blank was filled with developing arbitration practice, which after it has settled, reduced, more likely, to maintenance of its uniformity [366 [367], than to all-round consideration of each business, with the account of its features and actual facts inherent only in it.

Not numerous scientists investigating practice of application of article 347 TK the HARDWARE, in particular, Z.S.Rudnev [368], specified, that the privilege provided by subparagraph 1 of point 1 of the given rule of law, extends only on such operations on operating repair and (or) to vehicle maintenance service, the requirement in which has arisen during its use in the international transportation. A.N.Gureevoj was noticed that fact, that this condition serves one of criteria of legitimacy of realisation of a privilege and specifies in "frame" character of article 347 TK the HARDWARE [369].

The developed judiciary practice concerning application of subparagraph 1 of point 1 of article 347 TK shows the HARDWARE, that courts at disposal of legal proceeding ambiguously interpreted concept "requirement" for application of the specified subparagraph in this connection, in view of identity of the given conditions, it is fair to believe, that uncertainty will be present at interpretation and at the disposal of legal proceeding, connected with realisation of subparagraph 1 of point 1 of article 277 TK EAES.

For example, from the award Murmansk области1 follows, that as a definition of concept "requirement" the court recognised necessity for carrying out of repair which is caused by certain factors of objective character, or the unforseen causes which can arise in a finding of a vessel outside of the customs territory during its use in concrete international transportation [370 [371].

Carrying out of repair of a vehicle in this case is necessary with a view of maintenance of its safety, operation and maintenance in a condition in which it was at date of export for end of the international transportation. Other courts [372] adhere to a similar position also.

The part of arbitration courts [373] denies and the approach resulted above, tending to its narrower interpretation and believing, that the requirement of fulfilment concerning a vehicle of the international transportation of operations on maintenance service and (or) to operating repair can arise only when to a vessel there was an emergency case or any not -

Regular or emergency ситуация1 in spite of the fact that the ship-owner was released from payment of the customs duties from cost of the operations directed on liquidation of consequences of failures or action of force majeure circumstances according to subparagraph 3 of point 1 of article 347 TK the HARDWARE.

It is necessary to notice, that in judiciary practice exists not received the distribution and the legal approach of Arbitration court of Primorye Territory [374 [375] not supported by higher instance which, considering dispute between the ship-owner and customs body, has specified that the requirement should not be connected with failure or other incident which has occurred in flight, and can be caused any reasons, including including, as technical (physical deterioration as a result of normal operation of a vessel), and commercial (unwillingness of the ship-owner to incur losses from demurrage in foreign port in expectation of the following loading or from returning in a port of registry of a vessel without cargo).

Considering that fact, that subparagraph 1 of point 1 of article 277 TK EAES (as well as subparagraph 1 of point 1 of article 347 TK applied earlier the HARDWARE) under the maintenance and structure is not otsylochnoj the rule of law and does not establish a definition of the term "requirement" (or possible interpretation of the given concept), is represented, that as the basic definition of the given term, it is necessary to consider its lexical maintenance: «Need, need for what., demanding satisfaction» 1, which can be not always connected with occurrence of those or others negative (including external) circumstances. Besides, positions of subparagraph 1 of point 1 of article 277 TK EAES do not limit possibility of its realisation to exclusively influence on a vessel of any external circumstances.

At operation of a vehicle of the international transportation, shore services of the ship-owner cannot carry out the physical control over its condition [376 [377] in this connection similar functions are taken away to the exclusive competence of ship crew. In such situations during a finding of a sea vessel in the sea, it is represented, that with reference to subparagraph 1 of point 1 of article 277 TK EAES as one of approaches to interpretation of the term "requirement" for fulfilment concerning it operations on maintenance service and (or) to current (average) repair, it is necessary to consider own opinion (belief) of ship crew (mainly, vessel administrations: the captain and its senior assistants, and also the senior mechanic and mechanics on managements) which is based on long-term operating experience of ship systems and elements, a professional knowledge, skills and abilities concerning a condition of a sea vessel.

The given position also finds the acknowledgement in article 61 of the Maritime Code Russian Федерации2 (further - KTM the Russian Federation) according to which the complex of duties is assigned to the captain on acceptance of the measures connected with safety of swimming vessels, protection of the sea environment, order maintenance on a vessel, to prevention of injury to a vessel, people being on it and cargo.

Thus, the ship master, being guided received from members of crew on corresponding managements of the information, and also an actual condition of elements of a vessel, is obliged to establish necessity of performance concerning them maintenance service and (or) current (average) repair. Hence, first of all the internal opinion and belief of members of crew (which can be based on long-term operating experience of the same Courts of Admiralty) and the decision made by the ship master - form a basis for formation of "requirement" for performance of operations concerning a vessel on its current technical condition [378].

As an example, it is possible to result the situations considered in the following paragraph at which after ice swimming at a vessel characteristics of its paint and varnish covering (an external covering etc. have decreased) or degree of corrosion of one of pipelines shlamovogo the tank that members of crew can check only has increased.

If to follow the judicial interpretation of concept resulted above "requirement" any of the specified examples will not fall under clearing of taxation by the customs duties even with the account of that the ship-owner could not assume, that in a finding of a vessel outside of the customs territory of the Union or sea transitions in ice conditions the condition of the listed elements of a vessel will decrease to such values which will demand performance of maintenance service and (or) repair.

From the considered examples unequivocally follows, that the requirement for realisation of the given operations has arisen outside of the Union customs territory. However developed at application of subparagraph 1 of point 1 of article 347 TK the HARDWARE limited interpretation by condition arbitration courts «about requirement» with a high share of probability will not allow ship-owners to realise a privilege releasing them from payment of the customs duties according to subparagraph 1 of point 1 of article 277 TK EAES.

It is expedient to notice also, that shore services of the ship-owner during a finding of a vehicle of the international transportation in the sea with the account of features executed earlier judgement flights (the complexities which have arisen during sea transition or work in ice conditions) or by results of the analysis of plans-schedules of maintenance service (the plan of repair of fleet, other documentation) are obliged to inform the ship master on necessity of performance concerning it those or other operations by forces of crew or the third parties.

Meanwhile, as it has already been noted, the developed judiciary practice and the ambiguous approach in condition application «about requirement» (generated by consideration of the disputes connected with application of subparagraph 1 of point 1 of article 347 TK the HARDWARE) exclude possibility of realisation of the privilege provided by subparagraph 1 of point 1 of article 277 TK EAES and clearing of ship-owners from payment of the customs duties concerning such operations.

Besides, contrary to generated customs and judiciary practice under "requirement" it is expedient to consider also approach of term of performance of the regulated (planned) works concerning the vehicles, established by the technical, operational and other documentation defining periodicity of their carrying out [379].

Thus, with a view of high-grade realisation of subparagraph 1 of point 1 of article 277 TK EAES and an exception of cases of unreasonable infringement of the rights and legitimate interests of ship-owners it is necessary to add point 1 of article 2 TK EAES with the new subparagraph in which to state a concept definition «requirement for fulfilment concerning a vehicle of the international transportation of operations» as follows: «necessity of performance concerning a vehicle of the international transportation, the operations provided by Customs code EAES, requirement in which can be caused influence on it of external circumstances, deterioration of a condition of its elements, refusal of the equipment or other means, and also approach of term of performance of such operations established by technical, operational and other documentation, defining periodicity of their carrying out».

It is necessary to notice also, that the legislation does not contain and earlier did not contain the requirements shown to documents with which the arisen requirement for carrying out concerning a vessel of those or other operations should prove to be true. Absence of the exhaustive list of the documents confirming presence of the right to clearing of payment of the import customs duties according to article 276 TK the Russian Federation, was marked in 2006 1 This question demands specification with a view of a possibility of realisation of a considered financially-legal privilege.

The analysis developed at application of subparagraph 1 of point 1 of article 347 TK has shown the HARDWARE of judicial-arbitration practice, that positions of vessels on the given question is essentially separated. The part of arbitration courts considers, that the requirement for fulfilment concerning a vessel of operations confirms exclusively the logbook. In the absence of corresponding record in the specified document courts came to conclusion that it does not present the competent evidences confirming the fact of revealing of malfunctions or defects of a vessel during performance of the international transportation [380 [381]. Extremely seldom in judiciary practice there was other approach on the given question [382].

The given legal position cannot be recognised enough by proved and high-grade because according to point 29 of section of III Appendix № 1 to Rules of conducting ship журнала1 to number of the basic records made in the logbook, data on occurrence of requirement for fulfilment concerning a sea vessel of operations on its maintenance service and (or) to current (average) repair are not carried (as a rule, following records are brought in the logbook: the information connected with mooring and statement to a mooring, on swimming with the pilot, about conducting with tows etc.).

From this follows, that the logbook cannot be considered as the basic document and the unconditional proof testifying to occurrence of requirement for operations with a vessel.

Some arbitration courts adhere to a position according to which those documents which have been constituted by representatives of ship-owners unilaterally, are insufficiently proved for a formulation of conclusions about occurrence of the unforseen causes during fulfilment of flight [383].

The most part of arbitration courts by manufacture on the affairs connected with application of subparagraph 1 of point 1 of article 347 TK the HARDWARE, believes, that the order of fixing and the message of data the ship master about the revealed malfunctions or defects of a vessel during performance of the international transportation is established for the Courts of Admiralty by Position about classification of vessels and sea stationary platforms (further - Position about classification of vessels and MSP) [384 [385], and also RD 31.20.01-97"Rules of technical operation of the Courts of Admiralty. The basic management» 2 (further - RD 31).

Having analysed the Position preamble about classification of vessels and MSP, it is possible to draw a conclusion that the given subordinate legislation certificate is directed on regulation of public relations regarding carrying out of classification of vessels and the sea stationary platforms, carried out FAU "RMRS". The specified document does not establish neither sequences, nor ways of fixing by ship crew of the found out malfunctions or defects, and only contains the requirement about the Register notice (at carrying out established osvidetelstvovany a vessel) about all noticed defects and cases of refusals of elements of a vessel between previous and spent освидетельствованием1.

Concerning RD 31 to which arbitration courts refer, it is necessary to notice, that the specified rules assign to ship crew a duty on reflexion in the trip report only the revealed malfunctions, refusals or emergency cases [386 [387], and to entering into ship registration-accounting documents of the ship technical systems found out in work and designs of lacks [388].

Any of specified above documents does not define an order of fixing of those "defects" or other elements of a vessel, which can arise after customs declaring of its time export or after the beginning of its use in the international transportation (including during its use outside of the Union customs territory) [389]. Meanwhile "defects" of a vessel (and its elements) represent the basic object on which current (average) repair and (or) maintenance service is directed. This conclusion found acknowledgement and in a position of customs bodies with which they occupied in quarrels at law with ship-owners [390].

To generate the proved offer concerning the possible list of documents with which help the ship-owner could confirm occurrence of requirement for performance concerning a vessel of necessary operations and subsequently legally realise the financially-legal privilege provided by subparagraph 1 of point 1 of article 277 TK EAES, it is necessary to consider an existing definition of the term "defect".

According to subparagraph 38 of point 3 of GOST 15467-79 «Product quality control. The basic concepts. Terms and definitions» 1 (further - GOST 15467-79) the term "defect" represents each separate discrepancy of production to the established requirements.

GOST 15467-79 also provides various variations of defects, in particular: obvious, hidden, critical, considerable, insignificant, ustranimyj, ineradicable etc., that is unconditional, matters at definition of a technical condition of elements of a sea vessel.

It is necessary to notice, that contrary to existing positions of arbitration courts, from explanatories to the term the "defect", containing in GOST 15467-79 directly follows, that it is connected with the term "malfunction", but is not its synonym [391 [392] as malfunction concerns exclusively a certain condition of a product which can include one or several defects. Thus essential difference is spent between "defect" and "refusal" whereas as the last the event testifying to infringement of working capacity of a product which before its occurrence was efficient admits. Refusal, also, as well as malfunction, can be expressed available one or several defects, however, occurrence of defects not always means, that there was a refusal, i.e. the product became nerabotospo - sobnym [393].

The list of basic "defects" and their definitions allocated at an estimation of a technical condition of object of technical supervision, is stated in Rules classification osvidetelstvovany vessels in operation from December, 28th, 2017 № ND № 2-020101-012 [394] (further - Rules classification osvidetelstvovany vessels in operation), developed and approved FAU "RMRS". Besides, as it has already been noted, the given establishment spends survey of the Courts of Admiralty being in operation and within the limits of the powers, carries out working out of rules and the managements establishing the requirements concerning vessels, both at their designing and construction, and at re-equipment, modernisation, repair and operation.

According to point 5.5 of section 5 of Rules classification osvidetelstvovany vessels in operation among basic (base) "defects" of a sea vessel the Register allocates the following: "damage", "deterioration" and "malfunction".

The major importance for the present research has directly "deterioration" whereas "malfunction" or "damage", as a rule, arise in connection with any emergency cases or as a result of failures of the equipment of a vessel, ways of fixing and which reflexion contain in point 8.5.4 RD 31.

According to paragraph 2 of point 5.5 of section 5 of Rules classification osvidetelstvovany vessels in operation the term "deterioration" represents reduction prochnostnyh the sizes of designs and details or change of quality of a material, an event while in service owing to corrosion, erosion, weariness, development of interfaced parts of mobile connections, mechanical istiranija, rotting, occurrence of a mould and prelosti (a tree, a canvas, vegetative ropes, etc.).

Proceeding from the definitions of terms resulted in the following paragraph «current and average repair» 1, it is possible to draw a conclusion that subparagraph 1 of point 1 of article 277 TK EAES, providing possibility of clearing of the ship-owner from payment of the customs duties from cost of the specified operations, basically is focused that the given operations will provide elimination of consequences of "deterioration" of a vessel (replacement bystroiznashivajushchihsja elements, etc.) which, as a rule, is not connected with emergency cases or occurrence of unforeseen events (circumstances).

Taking into consideration, that the current legislation does not establish the concrete list of documents with which help the ship-owner could confirm occurrence of requirement for performance concerning a vessel of operations on its maintenance service and (or) to current (average) repair, and also considering, that the given problem has not been properly settled at legislative level and has not found the high-grade reflexion in the developed legal positions of arbitration courts, having analysed meeting in sea practice and the documentation used while in service the Courts of Admiralty, the following list of such documents (with corresponding substantiations) which can promote high-grade realisation containing in subparagraph 1 of point 1 of article 277 TK EAES of a privilege is offered.

The base repair document is the sheet of the declared repair work (further - the repair sheet) often designated as the specification. In it the structure and volume of works assumed to performance is fixed, the quantity of materials necessary for repair (maintenance service), preparations, details or got products is reflected.

Repair sheets can be carried to number of providing documents because their presence is necessary for maintenance of technical supervision and vessel classification, and also its maintenance service and repair [395 [396].

It is represented, that at revealing of necessity of fulfilment of operations on maintenance service and (or) to current (average) repair of the vessel, the specification issued by ship crew (the repair sheet), will be one of the basic proofs testifying to occurrence of requirement for them.

The basic requisite of any specification is date in which it has been constituted. If the forms of specifications approved on a sea vessel do not contain similar columns, it is necessary for ship-owners to provide entering of respective alterations and to oblige captains of vessels at formation of repair sheets to specify exact data concerning their term заполнения1.

At proceeding occurrence (or in the course of realisation of the customs control) such document will serve as the proof of legitimacy of application of subparagraph 1 of point 1 of article 277 TK EAES and to confirm «occurrence of requirement for operations with a vessel».

In case repair sheets will not contain the information on when they have been constituted, it can entail that the court will not accept such specifications as acknowledgement of occurrence of requirement.

At a finding of a sea vessel in the sea, an exchange of the scanned copies of specifications or their graphic forms filled in those or other electronic editors on ship system of a satellite communication (for example, Inmarsat), represents enough zatratnyj a way of interaction of crew of a vessel and coastal divisions which each ship-owner is ready to use not, especially, in case of transfer from a vessel of a considerable quantity of repair sheets. [397 [398]

In such situations sending in navigable service of the ship-owner of the electronic text message (for example, with the name of a theme of the message "official report/notice/notice") with the description in it of the reasons of the revealed necessity for performance of maintenance service and (or) current (average) repair of court, the list of works and volume demanded материалов1 is expedient. It is necessary to notice also, that the official report of the captain admits the developed judiciary practice as the competent evidence on business [399 [400].

Besides, it is expedient to ship-owners to fix a duty of the ship master immediately to direct such official reports after revealing of necessity for carrying out of maintenance service and (or) current (average) repair or, not later than the termination of that day in which there was a requirement for the specified operations. It is caused by that in navigation practice there are situations at which the captain (ship crew) constituted and directed to coastal divisions repair sheets after performance of the trip task. Differently, all specifications were constituted by members of crew and sent simultaneously to the ship-owner in last port of an unloading or the uniform official report in which all works demanding performance were marked was constituted. From the point of view of application of subparagraph 1 of point 1 of article 277 TK EAES, at finding-out of circumstances «occurrence of requirement for operations with a vessel» there is a probability of that such specifications (especially if they are executed together with the official report in the same calendar date) will not be taken into consideration by customs bodies and arbitration courts, and opposite, can be regarded as constituted before customs declaring of time export of a vehicle or prior to the beginning of its use in the international transportation (i.e. before departure of a vehicle of the international transportation for limits of the customs territory of the Union), that excludes possibility of realisation of a privilege.

After arrival of a sea vessel to ship-repair factory, the captain (or the technical superquartermaster) and representatives of a shipyard, as a rule, make out the report (certificate) of a document transfer (specifications, drawings, plans etc.) from a vessel to shipyard. It is necessary to notice, that foreign ship-repair factories, develop such system of vertical interaction between employees, that the engineer who has received from the arrived vessel any documents, as a rule, is obliged to inform on it the direct head (the manager of the project) about such circumstances, as: date and time of reception of documents; the person who has surrendered documents; their structure and quantity.

Similar documents can serve as the proof confirming, that the requirement for performance concerning a vessel of those or other operations has arisen after customs declaring of its time export or after the beginning of its use in the international transportation as documents have been transferred before vessel statement in dock and its survey by representatives of a shipyard.

Moreover, absence of any other documents (shipyard service records, ancillary acts, reports, sheets), constituted after «to - kovanija» a vessel, will testify that the volume of necessary works shown on the arrival of a vessel - did not change also the ship-owner (members of crew) was not specified.

In sea practice there are situations when the requirement in provede - nii operations on maintenance service and (or) to current (average) repair of a vessel, arises in the course of performance of trip tasks (i.e. during international carriages) after which end by the ship-owner its statement was planned for modernisation (for example when the contract on modernisation of a sea vessel consisted before its departure abroad).

For more effective utilisation of time of the non-productive demurrage, each ship-owner will take all measures depending on it for the purpose of the coordination with ship-repair shipyard of possibility of combination specified above operations with direct performance of modernisation of a vessel (in case it realizable and will not interfere with one another).

In this case, additional acknowledgement «occurrence of requirement for operations with a vessel», can be considered reports (certificates) of statement of a vessel in repair, modernisation and dock which are signed by representatives of the ship-owner and a shipyard in one day that will directly specify that the requirement for these operations could not arise in the course of modernisation of a sea vessel [401].

The contract (contract) which subject is performance of works on maintenance service and (or) to current (average) repair of a sea vessel, the prisoner after customs declaring of time export of a vehicle or after the beginning of its use in the international transportation, can be considered as the proof of occurrence of requirement for fulfilment specified above operations whereas the maintenance of legal relations of this transaction will be issued and fixed after approach listed above circumstances.

In case the similar contract is concluded before customs declaring of time export of a vehicle or prior to the beginning of its use in the international transportation (or next day after approach of these events; simultaneously with the contract on re-equipment) such document will specify about realisation concerning a vessel of the planned operations, that with a high share of probability will be regarded subsequently by customs bodies (and arbitration court, in case of contest nenormativnyh customs), as wrongful application by the ship-owner of the privilege provided by subparagraph 1 of point 1 of article 277 TK ЕАЭС1.

It is fair to notice, that before acceptance TK the HARDWARE arbitration courts not always categorically concerned prisoners to a vessel exit for limits of the Russian Federation to contracts [402 [403].

Besides the contract special value has document circulation existing to its conclusion between the ship-owner and shipyard (including correspondence of the parties). Correspondence (document circulation) between the ship-owner and ship-repair shipyard before vessel departure for limits of the customs territory of the Customs union was quite often considered as the proof of non-observance of conditions of clearing of payment customs пошлин1. Hence, the contract (contract), and also available correspondence of a shipyard and the ship-owner can serve as the proof of occurrence of requirement for fulfilment concerning a vessel of operations and validity of application to the last financially - the legal privilege provided by subparagraph 1 of point 1 of article 277 TK EAES.

According to point 3.6.1 RD 31 to the competence of inspection of the state supervision of Sea administration of port (further - Inspection) the control over execution on vessels of instructions of the Russian and international normative acts is carried. All sea vessels to an exit in flight come under to obligatory check by the given Inspection for the purpose of definition of their seaworthy condition and maintenance of safety of navigation [404 [405]. If Inspection will not establish circumstances which interfere with vessel departure the captain of seaport will resolve to it an exit from port.

Considering, that the document given by Inspection confirms, that before an exit of a vessel from port it was in a serviceable condition and that did not require performance concerning it operations, such document can serve as the proof of that the requirement for them has arisen after customs declaring of time export of vehicles or after the beginning of their use in the international transportation.

In spite of the fact that the logbook is not used for fixing of necessity for fulfilment of any operations concerning a vessel and cannot be considered as the base document confirming occurrence of requirement for them, taking into consideration that fact, that owing to point 4 of Rules of conducting the logbook in it is brought the information mentioning a daily life of a vessel, and considering, that validity of realisation of subparagraph 1 of point 1 of article 277 TK EAES, in a case donachislenija the customs duties will be investigated by manufacture on business in arbitration court, it is expedient to ship-owners to assign to the ship master (the log assistant) a duty on entering into the logbook of data on time and date of drawing up of specifications (repair sheets) to use extracts from it as the corroborating evidence «occurrence of requirement for operations with a vessel».

According to point 2.2.7 RD 31 condition and vessel operating modes, and also ship technical systems and designs (further - STSiK) come under to the control on the basis of indications of the regular instrumentations, special means of the alarm system, other equipment, and also by visual supervision over condition STSiK, to a sound and vibration. At the same time, owing to subparagraphs 5.12.1 and 5.12.2 Rules classification osvidetelstvovany vessels in operation, visual survey also is applied at an estimation of a technical condition of case designs.

The standard positions resulted above in addition specify that the control of a technical condition of a vessel is carried out not only by means of indications of ship devices, but also by survey of its separate elements, therefore as additional acknowledgement of occurrence of requirement for performance of operations on maintenance service and (or) to current (average) repair of a sea vessel inspection certificates of those or other elements of the vessel, constituted in any (or on approved) the form ship crew within the limits of the managements (with obligatory reflexion of date of their drawing up), and also accompanied by corresponding photos can be used.

For technical operation of the Courts of Admiralty such documents, as the plan of repair of fleet and the maintenance service plan (maintenance service plans-schedules) sea vessel have special value. They establish terms of performance concerning a vessel of the regulated (planned) works provided technical and (or) other operational documentation. In case of approach of the term of performance of operations established by such documents on current (average) repair and (or) to maintenance service of vehicles of the international transportation after customs declaring of their time export or after the beginning of their use in the international transportation, these documents will confirm, that the listed operations come within the purview of subparagraph 1 of point 1 of article 277 TK EAES and should be released from taxation by the customs duties.

With the account of the mechanism of realisation of a considered financially-legal privilege stated with a view of perfection, Methodical recommendations about application of subparagraph 1 of point 1 articles 277 TK EAES (Appendix) in which have been developed the list of the documents confirming occurrence of requirement for performance concerning a vessel of operations on repair and (or) maintenance service is fixed: repair sheets; official reports of the ship master; service records (certificates) of ship-repair shipyard (the executor of works); reports (certificates) of statement of a vessel in dock, repair and modernisation; the contract (contract) on performance concerning a vessel of operations and correspondence of the parties previous its conclusion; the documents which are given out to ship-owners by public authorities, resolving an exit of a vessel from port; the logbook; inspection certificates and photos; the plan of repair of fleet, the maintenance service plan (maintenance service plans-schedules) sea vessel etc.

The offered list is not settling and does not cover all possible proofs confirming occurrence of requirement in

Operations with судном1.

The following condition which observance is necessary for realisation of the financially-legal privilege releasing ship-owners from payment of the customs duties from cost of operations executed abroad concerning a sea vessel, the condition about the moment of occurrence of requirement is.

The basic difference of existing edition of subparagraph 1 of point 1 of article 277 TK EAES from subparagraph 1 of point 1 of article 347 TK the HARDWARE is reduced to that last provided a condition that the requirement for fulfilment concerning a vehicle of operations should arise in the course of its use in the international transportation [406 [407]. Containing in TK EAES regulation specifies that for privilege realisation, the requirement should arise during use of vehicles of the international transportation outside of the Union customs territory.

It is thought, that the maintenance of the given condition in existing edition of subparagraph 1 of point 1 of article 277 TK EAES cannot be interpreted ambiguously: the ship-owner has the right to privilege application in the event that potreb - nost in operations on maintenance service and (or) to current (average) repair has arisen for границей1. Meanwhile probably to assume and limited interpretation of subparagraph 1 of point 1 of article 277 TK EAES: the privilege can be applied only in the event that the requirement for operations with a vessel has arisen directly in the course of realisation of the international transportation by it outside of customs territory EAES (as it has been provided in subparagraph 1 of point 1 of article 347 TK the HARDWARE).

Preconditions of such tendency already are available. In initial edition of project TK EAES [408 [409] maintenance of the given privilege has been formulated as follows: «... If the requirement for such operations has arisen during use of these vehicles in the international transportation». Besides, at Advisory council session on work with participants of foreign trade activities at the Far East Customs (further - DVTU), taken place on February, 04th, 2015, the representative of customs body has directly informed that despite the fact that what will be total edition TK EAES (without dependence from that in it offers and remarks of customs bodies will be included or not), position FTS of Russia on a case in point is already defined, and will be realised by customs bodies of region within the limits of the taken away competence [410].

Standard to prove dependence of possibility of realisation of subparagraph 1 of point 1 of article 277 TK EAES on obligatory realisation by a sea vessel of the international transportation, it is enough to customs bodies to refer to system interpretation of subparagraph 50 of point 1 of article 2; subparagraph 2 of point 2 of article 272; and chapters 38 TK EAES according to which use of a vehicle of the international transportation first of all assumes realisation of the international transportation of cargoes by it, passengers and (or) luggage that is why the privilege releasing ship-owners from payment of the customs duties can be realised only in the event that the vehicle was used in such transportations outside of the customs territory of the Union and the requirement for performance concerning a vessel of operations has arisen in the course of their realisation. Under such circumstances in the absence of actual transportation of cargoes (passengers or luggage) the statement of the ship-owner about vehicle use in the international transportation will be the unreasonable and not meeting established legislation to requirements, that, in turn, will form the basis for a conclusion about impossibility of realisation of subparagraph 1 of point 1 of article 277 TK EAES in connection with non-observance of the conditions provided by it.

As the probability of interpretation of conditions of realisation of the mechanism provided by subparagraph 1 of point 1 of article 277 TK EAES of a privilege by analogy to subparagraph 1 of point 1 of article 347 TK the HARDWARE is high enough, for the purpose of working out of recommendations about perfection existing finansovopravovogo regulations, it is necessary to consider the positions which have developed on a given question of courts of justice.

At condition interpretation about occurrence of requirement for operations during use of vehicles in the international transportation (further - the condition «about the international transportation») in the arbitration disputes connected with application of subparagraph 1 of point 1 of article 347 TK the HARDWARE, has developed absolutely excellent three from each other the judicial approach.

Supporters of the first approach adhere to a position that operations on operating repair and (or) to vehicle maintenance service should be carried out directly in the course of international pe - revozki [411]. For example, in the decision of Arbitration court of Far East district on business № А59-5335/2015 the following conclusion contains: «Considering, that vessel STM« Vulkannyj »during carrying out named vozmezdnyh repair work as have established courts and was confuted by the applicant, the international transportation of cargoes did not carry out also any data on damages of the named vessel owing to failure or force majeure actions is not presented, courts, to failure of evidence of the return, have made a substantiated conclusion that the repair work spent on a vessel is not among provided by point 1 of article 347 TK the HARDWARE» 1. A similar position divide, both arbitration courts of the Far East of Russia [412 [413] [414], and courts of others регионов1.

The accent on that in performance of repair work the vessel did not carry out the international transportation of cargoes appears in many judicial certificates [415 [416] [417].

Other approach in condition interpretation «about the international transportation» consists that if at an establishment (occurrence) of necessity for performance concerning a vehicle of the international transportation of operations, on such vessel there was no cargo and (or) passengers, that, it did not carry out the international transportation (that, accordingly, excludes possibility of application of a privilege) [418].

Last legal approach of arbitration courts consists that at the disposal of legal proceeding, connected with application of the privilege releasing ship-owners from payment of the customs duties, courts study such aspect as presence or absence of cargo (passengers) onboard a vessel at its return import [419 [420]. Possibly, arbitration courts, adhering to such approach consider, that for the realisation provided by subparagraph 1 of point 1 of article 347 TK the HARDWARE of a privilege and "high-grade" international transportation, the sea vessel should decrease from the customs territory of the Customs union and come back to it with cargo in this connection, only the data set of circumstances can specify in condition observance «about the international transportation».

It is represented, that any of resulted above approaches does not reflect sense of a considered condition which in it has been put in pawn by the legislator.

First, the condition «about the international transportation» does not provide requirements about obligatory presence onboard a vessel of cargo and (or) passengers at the moment of its return import. Thus, presence or absence of cargo onboard temporarily taken out vehicle of the international transportation at its return import on the Union customs territory should not have legal effect for application of subparagraph 1 of point 1 of article 277 TK EAES.

Secondly, conclusions existing in judiciary practice about obligatory performance of operations on maintenance service and (or) to vessel operating repair it is direct in the course of its use in the international transportation contradicted the maintenance of subparagraph 1 of point 1 of article 347 TK the HARDWARE as the condition «about the international transportation» does not provide performance of the listed operations directly during sea transition and transportation of cargoes between ports. The given condition defines the moment of occurrence of requirement for them, instead of the period of performance of works.

Special value also has that fact, that owing to point 2.3.1 RD 31 performance of operations on vessel maintenance service (and furthermore the operations connected with repair of a vessel and its base elements, for example, by replacement of elastic support of engines), as a rule, demands the termination of its operation.

Thus, the fact of performance of maintenance service and (or) current (average) repair of a vehicle not in the course of realisation of concrete international transportation (sea transition) has no jural significance at realisation of the financially-legal privilege containing in subparagraph 1 of point 1 of article 277 TK EAES.

Thirdly, positions of chapter 38 TK ЕАЭС1 provide possibility of time export from the customs territory of the Union of vehicles of the international transportation (including empty) for end and (or) the beginnings of the international transportation outside of the Union customs territory.

It means, that to start time export of a vehicle of the international transportation (and it is direct occurrence of the international transportation) has no legal effect that fact, whether there is onboard a vessel any cargo (or passengers) or not; the vessel with cargo (passengers) is taken out or leaves the customs territory of the Union the empty.

It is necessary to allocate also existing among some practising lawyers [421 [422] and in judiciary practice [423] position that «the condition about the international transportation» means that such transportation should be "valid", i.e. pursue the certain business aim which should be directed on reception of corresponding commercial result by the ship-owner.

Besides resulted above the arguments confuting approaches existing in judiciary practice in interpretation of a condition «about the international transportation», it is expedient to consider and other example when compulsion of "the valid transportation» excludes possibility of realisation of a privilege, as a matter of fact, in usual situations for sea navigation.

Owing to point 4 of article 276 TK EAES term of a finding outside of the customs territory of the Union of temporarily taken out vehicles of the international transportation is not limited, hence, sea vessels used abroad can not come back long time (for years) to the Union customs territory. In a finding outside of the customs territory of the Union the vessel can carry out empty sea transition to the port of loading or follow without cargo in any port for replenishment of ship supplies. If to adhere resulted above the legal approach at an establishment of necessity of performance concerning a vessel of maintenance service (or) current (average) repair in the course of the specified sea transitions possibility of application of the privilege releasing ship-owners from payment of the customs duties from cost of such operations as the requirement for them will be recognised by arisen not during the "valid" international transportation [424] is excluded.

Briefing stated it is possible to draw a conclusion, that existing in subparagraph 1 of point 1 of article 347 TK the HARDWARE a condition «about the international transportation», the developed approaches to it pravoprimeneniju should not be considered by consideration of a question on legitimacy of use of the financially-legal privilege provided by subparagraph 1 of point 1 of article 277 TK EAES.

It is represented, that with a view of perfection of the mechanism of realisation provided by subparagraph 1 of point 1 of article 277 TK EAES finansovopravovoj privileges it is expedient to bring the reservation on the international transportation, having limited its application by the aspects listed further.

As it has already been noted, one of the conditions distinguishing subparagraph 1 of point 1 of article 277 TK EAES from subparagraph 1 of point 1 of article 347 TK the HARDWARE, the condition that the requirement for fulfilment concerning a sea vessel of operations on its maintenance service and (or) to current (average) repair should arise outside of the Union customs territory (instead of in the course of the international transportation) is.

Thus, for execution of the specified condition the moment of occurrence of requirement for operations with a vessel and its site is defining, i.e. The period of its finding outside of the Union customs territory, and also the moment at which approach the vehicle is considered left limits of this territory.

According to point 1 of article 5 TK EAES the Union customs territory represents territories of member states entering into it, and also artificial islands being behind its limits, constructions etc. Thus owing to point 2 of article 5 TK EAES customs border are limits of the customs territory of the Union.

According to article 1 of the Law of the Russian Federation № 4730-1 Frontier Russian Federation is the line and the vertical surface passing on this line establishing limits of the state territory (a land, waters etc.). Frontier Russian Federation passage on the sea if other is not established by international treaties of the Russian Federation, is carried out on external border of territorial sea of the Russian Federation [425].

According to point 1 of article 2 of the Federal act from July, 31st, 1998 № 155-FZ «About internal sea waters, territorial sea and a contiguous zone of the Russian Federation» [426] territorial sea represents adjoining the dry land or to internal sea waters a sea belt in width of 12 n miles.

Hence, proceeding from existing edition of subparagraph 1 of point 1 of article 277 TK EAES, the ship-owner has the right to count on possibility of realisation of the provided financially-legal privilege concerning those operations executed with a vessel, the requirement in which has arisen only when the vessel has left 12 mile zone of territorial sea waters of the Russian Federation. The similar approach enters unreasonable territorial restrictions into realisations of a privilege and excludes clearing of ship-owners of payment of the customs duties from cost of such operations, the requirement in which can arise in any of following situations before actual crossing 12 mile zones:

1. At realisation by a vessel of the international transportation which, till the moment of actual export of a vessel for limits of the customs territory of the Union, assumes its calling in some Russian ports for the purpose of loading.

2. In the course of following of a vehicle of the international transportation to a place of crossing of Frontier of the Russian Federation after customs declaring of its time export.

Concerning the first case it is necessary to notice, that in sea practice quite often there are situations when the vessel before leaving the customs territory of the Russian Federation carries out calling in some Russian ports for full loading then decreases for the purpose of transportation of cargoes in foreign port (within the limits of the uniform trip task). From the point of view of tax laws sea transitions between ports of Russia in the resulted situation admit the international transportation, and services realised by the ship-owner in transportation of cargoes are released from VAT taxation (the rate of the VAT of 0 % is applied) 1. Moreover, the tax laws suppose possibility of application of the rate of the VAT of 0 % and concerning a transportation site between ports of Russia which is a component of the international transportation (a situation when the vessel leaves one port of Russia, come into another where cargo is overloaded on the second vessel which then leaves the Union customs territory) [427 [428].

It is obvious, that performance of the international transportation can begin how the vehicle will actually leave the Union customs territory (for example, flight of the item Dudinka - the item Arkhangelsk - the item Murmansk - the item Rotterdam). Hence, the requirement for performance concerning a vessel of the operations, arisen during such international transportation till the moment of crossing of Frontier of the Russian Federation at existing edition of subparagraph 1 of point 1 of article 277 TK EAES, will not come within the purview of the privilege provided by it. It is represented, that the given rule of law should be formulated so that she allowed ship-owners to extend action of a financially-legal privilege for the operations executed abroad concerning vessels, requirement in which cart - nikla during realisation of the international transportation till the moment of actual crossing of border of the customs territory of the Union, but after the beginning of such transportation.

For example, during sea transition from port Arkhangelsk in port Murmansk, for the purpose of the further transportation of cargo in port Rotterdam (within the limits of the uniform trip task) at a vessel has been revealed deterioration of elements of a set of the case (stringera or a frame) or deterioration of the drainage pipeline. Certainly, deterioration of the specified elements does not influence safety of navigation, meanwhile demands performance of maintenance service and (or) current (average) repair. At existing edition of subparagraph 1 of point 1 of article 277 TK EAES of operation on elimination of the specified deterioration will not come within the purview of this financially-legal privilege. Other example. In the course of sea transition between specified by ports there has come term of performance of procedural operations concerning the main engine of a vessel (for example if on a vessel 3 main engines at "pure" and "open" sea water without ices the vessel can carry out swimming only on one of them are established). The given operations also will be object of taxation by obligatory payments.

It is represented, that such operations should be released from taxation by the customs duties as the requirement for them arises besides will of the ship-owner during the international transportation which purpose is vehicle export for limits of the customs territory of the Union. Differently, technical operation of a vessel represents continuous process and if the requirement for any operations arises after the beginning of the international transportation (with the subsequent export of a vessel abroad), it appears, that they should come within the purview of the financially-legal privilege provided by subparagraph 1 of point 1 of article 277 TK EAES.

The basic sense of the given approach is reduced to that the ship-owner which vessel carries out the international transportation and leaves subsequently the Union customs territory, has not been forced to return it back or to cease realisation of such transportation for the purpose of fulfilment «besposhlin - nogo» maintenance service and (or) current (average) repair at the Russian ship-repair factory (which, for example, not always it is ready to provide immediately possibility of statement of a vessel in dock) only because on it subsequently will not extend given financially - legal regulation whereas the requirement for the specified operations has arisen before crossing by a vessel of Frontier of the Russian Federation.

Concerning the second case it is necessary to notice, that registration of time export of a vehicle of the international transportation also frequently does not coincide with the moment of actual crossing by it of a line of Frontier of the Russian Federation on море1.

According to subparagraph 2 of point 1 of article 278 TK EAES vehicles of the international transportation moved through customs border of the Union, come under to customs declaring and release at their export and return import on the Union customs territory.

According to paragraph 5 of article 7 of the Law of the Russian Federation № 4730-1 mode of Frontier Russian Federation includes admission rules through Frontier Russian Federation of persons, vehicles, cargoes etc. the Admission through G osudarstvennuju border of the Russian Federation of vehicles owing to a part of 1 article 11 of the Law of the Russian Federation № 4730-1 is carried out in the established check points through Frontier and consists in the permission of its crossing by the vehicles decreasing from limits of the Russian Federation. Thus the check point through Frontier Russian Federation (for navigation) is understood as water area within seaport where the admission through Frontier Russian Federation of vehicles [429 [430] is carried out.

From a part of 7 articles 9 of the Law of the Russian Federation № 4730-1 directly follows, that between Frontier Russian Federation and a check point through it there is the certain distance, which passage from the moment of customs declaring of time export of a vessel and before actual crossing of line G by it some days can occupy a wasp - of donative border of the Russian Federation. For example, at registration of time export of a vehicle of the international transportation in port Dudinka and its movement in a direction in port Rotterdam the vessel will cross line G osudarstvennoj borders of the Russian Federation in following co-ordinates: «70-14,0 Sowing. / 057-05,6 Vost.», that is the exit from marine belt of the Russian Federation will be carried out to the West from passage Kara straits that constitutes about 813 n miles and at average speed of movement of a universal dry-cargo sea vessel in 13-15 knots will constitute 3.5 days.

It is obvious, that in this time interval there can be a requirement for fulfilment concerning a vehicle of the international transportation of any works (flowing (average) repair and (or) maintenance service), including approach of term of performance of the regulated (planned) operations. Thus the vessel can be taken out for limits of the customs territory of the Union in a ballast, without any cargo onboard, that realisation of the "valid" international transportation by it (or its non-use with the specified purpose) will be considered customs and courts of justice as not. Thus, at existing edition of subparagraph 1 of point 1 of article 277 TK EAES the ship-owner will have not the right to apply the financially-legal privilege releasing it from payment of the customs duties from cost of such operations.

The condition formulated in the given rule of law that for privilege realisation, the requirement for operations concerning a vehicle of the international transportation should arise during its use outside of the Union customs territory has essential lacks which can entail unreasonable restriction of the right of ship-owners on their clearing of payment of the customs duties that is why, for the purpose of observance of balance private and public interests, requires specification.

It is represented, that possibility of occurrence of requirement in operatsi -

jah, for application of subparagraph 1 of point 1 of article 277 TK EAES it is expedient to combine not only with the period of a finding of a vessel outside of the Union customs territory, but also with the period estimated from the moment of customs declaring of its time export, and (or) the moment of the beginning of its use in the international transportation. At such statement of the given rule of law (with the account of its complex and interbranch character assuming necessity of the account of features of sphere on which its action extends) the ship-owner will have the right to realise the provided privilege if the requirement for operations with a sea vessel has arisen:

- Directly by transportation cargoes between foreign ports (that is, use of a vehicle of the international transportation outside of the Union customs territory);

- In the course of empty sea transitions outside of the Union customs territory;

- At performance of the international transportation which part of ports are in limits of the customs territory of the Union with the subsequent export of a vehicle for its limits (the example resulted earlier);

- During non-productive idle time of a vehicle of the international transportation outside of the Union customs territory;

- At performance of works by results of survey of a vessel by the Register (other classification society), fault detection etc.

Thus for the purpose of correct pravoprimenenija subparagraph 1 of point 1 of article 277 TK EAES it is necessary a phrase containing in the specified rule of law: «... In which they were at date of export from the Union customs territory» to replace on: «... In which they were at date of customs declaring of time export (the beginning of the international transportation).». The similar statement of the given formulation contained in paragraph 2 of point 1 of article 276 TK the Russian Federation [431] and has shown high efficiency in application and maintenance of observance of the rights and legitimate interests of ship-owners.

Thus, it is expedient to state subparagraph 1 of point 1 of article 277 TK EAES as follows: «Outside of the customs territory of the Union with temporarily taken out vehicles of the international transportation fulfilment of following operations is supposed:

1) operations on maintenance service and (or) to repair (except for major repairs, modernisation), necessary for maintenance of their safety, operation and maintenance in a condition in which they were at date of customs declaring of time export (the beginning of the international transportation) if the requirement for such operations has arisen after customs declaring of time export of vehicles or after the beginning of their use in the international transportation ».

2.2.

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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 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:

  1. 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
  2. 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
  3. 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
  4. 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
  5. the Financially-legal nature of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  6. principles of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  7. Chapter 3. Problems of realisation of the right to clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  8. Chapter 1. Theoretical and legislative bases finansovopravovogo regulations of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  9. Formation of financially-legal regulation of clearing of payment of the customs duties concerning the Russian Courts of Admiralty
  10. 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
  11. 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
  12. 2.1. Legal maintenance of principles of activity of customs service of the Russian Federation.
  13. the Microfield «Repair and atomic power station maintenance service»