<<
>>

the Financially-legal nature of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty

The further research of legal regulation of clearing of ship-owners from payment of the customs duties concerning temporarily taken out vehicles of the international transportation demands definition of the legal nature of such clearings and their place in the mechanism of an establishment and collection of the customs duties.

This problem is caused by necessity of that establishment, how much in operating legal regulation of a privilege on the payment of the customs duties fixed by the customs legislation, features of the duty as the payment having finansovopravovuju the nature are considered, and realisation of a principle of balance private and public interests is provided.

The reference to this question is actual also because earlier, in the Customs code of the Russian Federation (2003) clearing of payment of the customs duties from the repair and maintenance service cost, provided in point 1 of article 276 TK the Russian Federation, was fixed as a privilege. This term and in practice arbitration судов1, and scientific community [219 [220] was used. In the Customs code of the Customs union the term a privilege with reference to the clearing provided in subparagraph 1 of point 1 of article 347 TK the HARDWARE, was not fixed any more. After this also courts qualified such finansovopravovoe regulation as clearing of payment of customs payments [221], than in a kind льготы1 is more often. Possibly, such approach will be supported in pravoprimenitelnoj to practice and concerning subparagraph 1 of point 1 of article 277 TK EAES. It can create danger of an erroneous conclusion that the given clearing does not concern now privileges.

Now the current legislation does not provide concept definition «a customs privilege». In a science it is noticed, that in many cases the terminological designation of the given legal phenomenon is excluded only, its essence thus remains неизменной2. However there is also other opinion - that there is a substitution of concepts when the customs privilege on

^ . 3

To the essence remains, however, thus loses the name and значение3.

Along with standard rules of behaviour exist and the deviations authorised by the state from rules, exceptions of them which can be designated льготами4 with which help the right has an opportunity to react to changes in a society and economy, to consider interests of subjects.

Wide use of privileges in legal influence symbolises itself expansion optional and incentive (in certain degree) methods, creates a new moral and psychological and legal climate in a society in this connection importance and value of the given mechanism pra - [222 [223] [224] [225] vovogo регулирования1 are obvious. Certainly, as well as all legal privileges, financially-legal privileges cannot be abused, as it can lead disbalansu in legal regulation, meanwhile - full refusal of use of any advantages considerably will impoverish all legal arsenal, will create additional difficulties in legal oposredovanii public relations, that as a whole will negatively affect quality of the legislation.

Importance and the importance of privileges in activity of the Russian state also proves to be true doktrinalnym a substantiation of presence of institute of a lgotno-legal policy which is directed on increase of level and quality of manufacture, development of various branches of economy, support of economic and significant structures [226 [227] [228].

The privilege is understood in usual value as «the simplification to somebody given as an exception of general rules» [229], i.e. the privilege creates such mode of position of its owner of which is no by others. Thus specificity of the given mode consists in certain sorts an indulgence. This property of a privilege is reflected also to the special legal literature: privileges are a measure differentiating a legal status of subjects and at their establishment the legislator pursues the aim of simplification of position of certain subjects [230].

In the form of a privilege (side benefits), and in clearing of the established duties (standard withdrawals) can be expressed both in granting of the special rights. Research of existing approaches to definition of the given definition leads to a conclusion, that the legal privilege is used in wide and narrow value. In wide - it represents lawful simplification of position of the subject, allowing it to satisfy the interests and expressed as in granting of the additional, special rights (advantages), and in clearing of duties more full. In narrow - represents itself as «the special legal rule establishing the additional rights, privileges for certain groups of citizens and applied in the course of executive activity» 1. It is necessary to notice, that clearing of the certain general instruction (from taxes and other duties) carried to number of privileges and E.N.Trubetsky [231 [232].

According to I.S.Morozovoj, under a legal privilege it is necessary to understand a version of the legal exceptions participating in creation of a specific legal regime in which frameworks the subject is allocated with the additional possibilities of legal character connected both with perfection of competences (side benefits), and with reduction of volume of a various sort of obligations (standard withdrawals) [233].

K.L.Ivanov believes, that privileges represent lawful granting of the additional rights or clearing of duties of subjects in connection with features of their legal status [234]. M.V.Titov is offered by following interpretation of legal privileges - the special version of legal exceptions participating in creation of a specific legal regime in which frameworks the subject is allocated with the additional possibilities of legal character connected both with perfection of competences, and with reduction of volume of a various sort of obligations [235].

R.K.Kostanjan considers, that privileges as a legal category represent legal means of differentiation of a legal status of subjects with a view of elimination or softening of an actual inequality of various categories of persons for the fullest satisfaction of interests and requirements of all общества1. As specifies N.V.Vitruk, privileges are an independent kind of the special personal rights representing «the rights of separate groups of the population which concretise, develop and supplement general laws of the person» [236 [237].

According to scientists, the main objective of legal privileges consists in the coordination of interests of the person, social groups, the states. Privileges connect and harmonise these various interests, allowing them to satisfy, meting the social blessings and promoting that to normal development, both the separate citizen, and a society as a whole [238].

On the one hand, privileges are established for those subjects which concrete interests within the limits of general rules cannot receive due maintenance and protection as they are characterised by any features (a state of health, an age, sex, etc.) or are in specific conditions [239]. Thus privileges should be distinguished from encouragement since the last represents a certain award for result (lawful behaviour) while the privilege does not mean any merit or an overfulfillment objazanno - sti [240]. In this connection, it is impossible to disagree with opinion that privileges, basically, are shown in the form of the additional rights (advantages) and in clearings that, in turn, also provides possibility of observance of balance private and public interests.

Allocate the following signs inherent in a legal privilege: is an exception of general rules, an element of a special legal status of the person; is the lawful exception established in the normative act; can establish only more favorable conditions (consequence) 1; has for an object introduction of guarantees of the is social-useful activity promoting realisation of those or other duties; carries out pravostimulirujushchuju function, induces to certain behaviour and designates positive legal motivation; is the form of differentiation of legal streamlining of social communications [241 [242].

In the theory to privileges carry different kinds preferentsy: tax preferentsii, grants, subventions, grants, indemnifications, privileges and immunities, including privileges customs [243].

Customs privileges are given to subjects of foreign trade and the physical persons moving the goods through customs border of the Euroasian economic union. Such advantages, certainly, are a version of legal privileges [244]. They are used as one of the legal means promoting successful carrying out of a commercial policy and state regulation of home market of the goods of the Russian Federation at its interrelation with the world market, to maintenance of a rational parity of import and export etc. Fairly specifies A.A.Stupnikov, that the purposes of a customs policy are reached not only fiscal tools, but also by use of legal stimulus for separate subjects of the legal relations which activity is favorable for the state [245].

Customs privileges have strictly a special-purpose designation. In the legal literature it is underlined, that their overall aims are: protection of domestic manufacturers, assistance to their exit on the world market, creation of favorable conditions for their participation in customs relations and т.д.1. The state establishes a privilege, creating thereby optimum conditions for import or export to those spheres which would promote improvement of an economic situation in the country, to development of any branch of manufacture [246 [247].

As it has been noted, now in the legislation there is no concept «a customs privilege», and in a science there were some approaches to its understanding. The majority of experts in the customs and financial right is carried to customs privileges by any advantages (exception), concerning corrected, established by the customs legislation, in particular in sphere of customs payments, realisation of customs operations and the control of the goods, shown as favorable exceptions of an applicable customs mode and given in the form of clearing of payment of the customs duties and gathering, applications of summary procedures of the admission through customs border of the Russian Federation of the goods, personal things, other subjects which moving through border under the general rule is forbidden [248].

By analogy to conclusions of scientists concerning privileges in tax laws [249] it is possible to draw a conclusion on presence of two approaches to I understand a customs privilege - formal and substantial. In the first case the recognition of this or that mechanism as a customs privilege depends on express indication in the law in such form. Application of the substantial approach in understanding of a customs privilege (the substantial approach to I understand a tax privilege leans against essence of the legal phenomena, instead of on their legislative registration [250]), based on presence of signs of customs privileges in this or that norm of the customs legislation is more proved.

In the branch relation customs privileges meet in such spheres legal (including international legal) regulations, as customs regulation, customs-tariff regulation, not tariff regulation, tax регулирование1. Thus, clearings of performance of certain requirements (completely or partially) at moving of the goods through customs border EAES are possible with reference to: to customs payments; to customs operations [251 [252]; to the customs control; to interdictions and restrictions.

In a science there is a differentiation of concepts «a customs privilege» and «a privilege on payment of customs payments», thus last is considered as one of versions of customs privileges. In this connection M.G.Enadarovoj has been formulated the following definition of a privilege on payment of customs payments: «given to subjects of customs legal relations at moving of the goods through customs border of the HARDWARE for the purpose of use on the HARDWARE customs territory according to the chosen customs procedure advantages not having individual character in the field of calculation and the payments of customs payments connected with a kind of the goods or its appointment» [253].

According to E.N.popovich, the modern vector of development of economy of the Russian Federation, caused scale structural transformations to parts importozameshchenija, predetermines necessity of a statement of definition of the term a privilege on payment of customs payment in such edition: «it is the tool of the state stimulation of the economy, applied in the field of customs business in a kind of clearing of payment, or application of the lowered rate of customs payment according to international and (or) the national legislation, focused on improvement of quality of a life of the population, the manufacture support, used at carrying out of structural transformations of national economy by means of support of its separate sectors and not having individual character» 1.

For lack of the settled definition «privileges on customs payments» and understanding of economic essence of customs privileges L.I. G oncharen - to offers term use «advantages on payment of customs payments». The specified term in this case has conditional character and covers the wide list arising in sphere of customs taxation of situations at which duties on payment of customs payments differ from standard [254 [255].

E.N.popovich has formulated term definition «clearing of payment of customs payment»: it is a kind of the customs privilege which are not carrying individual character, given according to international and (or) the national legislation in the form of clearing of payment (application of the lowered rate) customs payment which can be connected with restriction on using and the order the goods [256].

It is obvious, that in the general view under a privilege on payment of customs payments scientists understand the certain advantage which does not have individual character.

From a disposition of point 1 of article 49 TK EAES follows, that the system of privileges on payment of customs payments includes: privileges on payment of the import customs duties (tariff privileges); privileges on payment of the export customs duties; privileges on payment of taxes; privileges on payment of custom charges (clearing of payment of custom charges).

Privileges on payment of the customs duties can be given in shape: clearings of payment of the customs duties, applications of the lowered rates of the customs duties, return of the paid customs duties, establishments

Tariff quotas on preferential import/export товаров1.

There is a set of various classifications of privileges on payment of customs payments. Traditionally privileges on payment of customs payments divide on two groups: tariff privileges and tariff preferentsii. However at research of system of privileges on payment of customs payments it is necessary to divide concepts «a customs-tariff privilege» and «tariff preferentsija» [257 [258].

Some scientists, for example, E.E.Rajkonen, S.V.Zybkin, do not see differences between concepts «a tariff privilege» and «tariff preferentsija», including their identical [259], that is represented not absolutely true owing to the following.

As correctly mark O.N.Kutepov, E.N.Murygina, O.G.Guschin, tariff privileges represent the advantages connected with payment of the import and export customs duties which are given depending on a kind of the goods and its appointment [260].

In turn under tariff preferentsijami in international trade privileges on payment of the import and export customs duties which are applied depending on country of origin of the goods moved through customs border are understood, and established concerning all goods or their separate kinds. Granting tariff preferentsy can be carried to one of methods of realisation of a commercial policy of Russia [261].

According to A.J.Filippovoj under preferentsijami the special customs privileges given at realisation topgovo - shlitich¾skih relations of the Russian Federation with foreign state blow - ствами1 are understood. O.G.Guschin, repeating the legislator [262 [263], carries to tariff preferentsijam clearing of payment of the import customs duties concerning the goods occurring from the countries, forming together with the Russian Federation the free trade zone or signed the agreements having for an object creation of such zone, or decrease in rates of the import customs duties concerning the goods occurring from the developing or least developed countries, using uniform system tariff preferentsy the Customs union [264].

Thus, for realisation of tariff privileges goods characteristics (allowing it to classify on a corresponding code of the Commodity nomenclature of foreign trade activities [265] (further - TN foreign trade activities)), instead of the concluded international agreements or a place of its origin have value.

Hence, tariff privileges and tariff preferentsii represent the various legal categories consolidated within the limits of the uniform legal institution of privileges on payment of the customs duties.

Provided in subparagraph 1 of point 1 of article 277 TK EAES the privilege cannot be carried to number of the privileges following from the maintenance of customs procedures as owing to point 4 of article 272 TK EAES vehicles of the international transportation come under to customs declaring and release without a premise under customs procedures. As point 1 of article 277 TK EAES assumes clearing of payment as customs duties, and the VAT, hence, the specified privilege cannot be considered as a tariff privilege which provides possibility of clearing of payment only the import customs duties, but not taxes.

In this connection it is necessary to agree with the offered O.J.Bakaevoj concept customs tarifno-tax preferentsy as advantages in the field of payment of the customs payments given to subjects of foreign trade activities at moving of the goods through customs border of the Russian Federation (the Euroasian economic union) 1. And to carry to their category clearing of payment of the customs duties from cost of the operations executed outside of territory EAES on repair or maintenance service of the Russian Courts of Admiralty.

In a science it is noticed, that the given version of privileges concerns a category of financially-legal privileges as their regulation is carried out by means of norms both customs, and the financial legislation [266 [267]. Concerning the customs duties with this conclusion it is necessary to agree with some specification: privileges on payment of the customs duties are regulated by the customs legislation, having thus the financially-legal nature.

The conclusion about the financially-legal nature of privileges on payment of the customs duties is proved by presence at relations on an establishment and collection of the customs duties (including to clearing of their payment) the features inherent in relations, regulated financially-rules of law, constituting a subject of the financial right.

In the modern legal literature there is no common opinion concerning a subject of the financial right that causes set of discussions [268].

So S.V.Rybakova believes, that a subject of the financial right are the public relations developing in the course of financial activity of the state with participation of managing subjects, based on the private property right, concerning maintenance of their financial stability деятельности1. E.D. The Sokolov as it understands public (monetary, organizational, registration, control and others) the relations arising in the course of distribution of gross national product and a part of the national income by creation, distribution (redistribution) and use of the centralised and decentralised funds of money resources of the state, municipal unions, in certain cases and other funds of the money resources entering into a financial system of a society, a method «the power and submission», based, as a rule, on functional dependence of subjects at realisation of financial activity by them [269 [270].

D.V.Vinnitsa notices, that the subject of the financial right is traditionally treated as system of certain monetary relations [271]. G.G.Pilkin considers it as the relations arising in the course of financial activity of the state [272]. E.P.Orljuk considers, that a subject of the financial right are public relations which arise, change and stop in sphere of public financial activity [273]. Thus, as representatives of the Saratov scientific school mark, it is necessary to understand realisation of functions as financial activity of the state by it by systematic formation (formation), distribution and use of monetary funds (financial resources) with a view of maintenance of realisation of problems of social and economic development, defensibility and safety of the country, and also activity of the state bodies [274]. Besides, according to N.I. Himichevoj, the subject of the financial right should not be limited only to the relations directly arising in the course of financial figure -

nosti the state and municipal unions as it is necessary to consider the activity of the state causing the maintenance finansovopravovyh of institutes, the public interests directed on maintenance (for example, compulsory insurance of contributions of citizens) 1.

D.N.Karnauhov believes, that the public relations arising in the course of financial activity of the Russian Federation (accumulation) by training concern a subject of the financial right, distribution and use of the centralised and decentralised funds of the money resources providing uninterrupted functioning of the state [275 [276].

According to A.K.Sarkisyan, to signs of a subject of the financial right it is necessary to carry following characteristics: relations, are directed on public interest realisation; within the limits of these relations mobilisation and distribution of monetary fund, and also regulation of financially-property relations [277] is carried out. This position can be specified on the ground that financial legal relations are directed on maintenance of the public interest on the basis of a principle of balance private and public interests.

Besides, as the important characteristic of the financial right character of a regulation of monetary relations acts. As fairly specified G.F.Shershenevich, «when the state resorts in getting of means to the power and takes incomes by enforcement - here already area of the financial right» [278].

The stated allows to draw a conclusion, that the relations constituting a subject of the financial right, are mainly monetary; result of these relations is formation, distribution or use of monetary funds or the financial resources intended for maintenance of public interests; their regulation is carried out in an imperative order on the basis of a principle of balance private and public interests. It is thought, that the relations developing during collection of the customs duties correspond to these signs and can unequivocally be considered as financially-legal.

Relations on payment of the customs duties and taxes, inherently, have financially-legal character as are connected with execution physical and as legal bodies of a public duty on payment of obligatory payments (i.e. result is property right belittling плательщика1) that is why can be considered as financial relations (which participants realising instructions containing in these norms by training, to distribution and use of the state funds and incomes [279] [280]) which are a subject of science of finances [281] act as carriers of the legal rights and the duties. A number of scientists directly specify, that relations on payment of the customs duties and gathering are directly connected with public finances and maintenance of appropriate functioning of a financial system [282].

Clearing of payment of the customs duties, acting as the integral element of the duty, also possesses the financially-legal nature. Thus, taking into consideration, that the institute of customs payments has interbranch character, it is possible to draw a conclusion that provided in point 1 of article 277 TK EAES the privilege (clearing) on payment of customs payments has the financially-legal nature. It corresponds to basic signs of a legal privilege, and also possesses the specific purpose - is directed on creation of the conditions, allowing to realise interests and requirements of the ship-owners maintaining temporarily taken out vehicles of the international transportation, with the account of their special status and a legal status, and also features of technical operation of the Courts of Admiralty which cannot receive due maintenance and protection within the limits of general rules.

It is necessary to notice, that realisation considered finansovopravovoj privileges is put in dependence on observance by the ship-owner of some conditions, and also presence at a sea vessel of the certain status - a vehicle of the international transportation and registration of its time export as chapter 38 TK EAES.

1.4.

<< | >>
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 the Financially-legal nature 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. principles of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  3. Formation of financially-legal regulation of clearing of payment of the customs duties concerning the Russian Courts of Admiralty
  4. Chapter 3. Problems of realisation of the right to clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  5. 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
  6. 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
  7. 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
  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. 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
  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. Legal nature of the customs duties
  13. § 1. Concept of clearing settlements: financially-legal aspects.
  14. § 1. Obligatory elements of legal structure of the customs duties
  15. TIMAKOVA Tatyana Gennadevna. FINANCIALLY-LEGAL PROBLEMS of REGULATION by the CENTRAL BANK of the RUSSIAN FEDERATION of INTERSTATE CLEARING SETTLEMENTS. The dissertation on competition of a scientific degree of the master of laws. Saratov 2003, 2003
  16. features of financially-legal regulation of an order of calculation, payment and collection of custom charges for storage
  17. Financially - (nalogovo-) legal bases and debatable aspects of the termination of a duty on tax payment
  18. 2.1. Features financially - (nalogovo-) legal regulation of change of a duty on tax payment