Articles

Hybrid mismatch arrangements are means of structuring cross–border transactions which result into double taxation or double non-taxation due to differences in the legal qualification of the taxpayer’s status or the legal qualification of the type of income. Hybrid mismatches arise due to imperfection of legislative techniques and are often accidental, but in some cases hybrid mismatch arrangements act as a way of committing tax offenses, leading to base erosion and profit shifting. The key provisions against the intentional use of hybrid mechanisms aimed at tax avoidance are being specified at the level of national legislations. One of the problems arising out of such norms’ adoption is concluded in providing them with compliance to tax certainty principle, which acts as a guarantee of tax legislation application in accordance with the content of public interest laid down into them, and as the means of protecting the taxpayers’ reasonable expectations at the stage of law enforcement. This article analyzes the existing anti-hybrid mismatch provisions of the certain foreign tax legislations (on the examples of the United States of America, of the United Kingdom and of the members of the European Union) for their compliance with the tax certainty principle.

The article provides a comparative analysis of the key characteristics of preemptive terms in civil law, civil, arbitration proceedings, as well as in tax law. The definition of preventive terms, as well as their legal features, are not enshrined in legislation. However, acts of the Federal Tax Service, judicial practice, civil and financial and legal doctrines recognize them as a specific type of terms for exercising both civil rights and the rights of participants in tax legal relations. The admissibility of the reception of the civilistic approach to the substantiation of the essence of the pre-trial period in the tax process is substantiated. The author critically assesses the current judicial practice to justify the violation by the tax authorities of the deadlines for the exercise of power. It proves the presence of preventive deadlines in the tax process and the need for their strict observance by law enforcers. On the basis of doctrinal teachings and analysis of law enforcement acts, the main features of preclusive deadlines in the tax process and the goals of their legislative fixation have been developed. It has been revealed that it is advisable to establish the criteria for classifying a term as a preventive term from the analysis of the norms of the Tax Code of the Russian Federation, which imperatively regulate the consequences of violating the terms. Such consequences lead to the termination of the right of the tax authority to exercise its powers and to carry out the relevant legally enshrined procedural actions. The necessity of further study of the institute of terms in the tax process is substantiated. The task of the science of tax law, and subsequently the legislator, is argued, to develop and fix the legal regime of preventive deadlines in the tax process.

Due to current major changes of the geopolitical climate studying of international practices of providing financial environment, which differs from ordinary financial products of banks and non-banking financial organizations, is becoming increasingly important. There is a need to focus special attention to the financing based on etic standards of doing business, which are common for most countries of Middle East region. The exploration of one or another etic standards as well as its reflection in the domestic legal systems of such countries allows extending the legal boarders in order to create a strong fundamental basis for cooperation between the state and the society, as well as between the legal parties, keeping consistent the essential nature of the civil law. The analysis of the main characteristics of transactional models, which are consistent with the etic principles, is advisable to make on the basis of the transactions common for the countries of the Islamic region. This article shows the main distinctive feature of the legal and religious rules, as well as it shows the main idea of the Islamic law. This article also shows the legal environments for the implementation of the legal norms consistent with ethical standards into the legislation of the Russian Federation.

The article analyzes the role of legal science and education in the formation of the legal culture of the population, taking into account the tasks set by the Foundations of the state cultural policy. It is concluded that jurisprudence plays an important role in the formation of a high level of legal consciousness of the population and its national identity. Intensive legal education and the possibility of obtaining legal knowledge by a wide range of people will help to create a positive image of the state (including in works of art) and strengthen civil self-identity. The destructive activity of “unfriendly countries” can be overcome by strengthening traditional values, which form the basis of the constitutional system of Russia and are embodied in various legal institutions. The developed legal culture of the population will help to avoid socio-psychological dependence on external influence, will become the basis of unity and cohesion of Russian society, the unification of the multinational people of the Russian Federation. The authors of the article propose to popularize legal science and law enforcement practice, to promote youth movements in the field of patriotic education and legal education, to develop the system of legal education by organizing lectures, seminars, round tables, conferences in order to strengthen the spirit of unity, cohesion, friendship of peoples, as well as traditional values in society.

In this article, the author examines the historical heritage of the works of Sergei Mikhailovich Korneev, including the development of the topic of bankruptcy of citizens that he began in the cathedral textbook. The historical path of development of the legislation on bankruptcy of citizens in modern Russia is given: from the Federal Law of 08.01.1998 N 6-FZ “On Insolvency (Bankruptcy)” to the Federal Law of the same name of 10.26.2002 N 127-FZ and, finally, the Federal Law of 06.29.2015 N 154-FZ, which actually introduced the institution of bankruptcy of citizens and the Law on extrajudicial bankruptcy of citizens (Federal Law of July 31, 2020 No. 289-FZ). The difference between consumer and commercial bankruptcy is given; reveals the features of the implementation of constitutional principles in the process of insolvency (bankruptcy) of citizens. As part of the consideration of the principle of the social state, the problem of excluding the subsistence minimum for a dependent child from the bankruptcy estate and the problem of selling the only housing of the debtor are considered. A characteristic is given of the formed judicial practice of the Constitutional Court of the Russian Federation on the issue of limiting the executive immunity of the only housing, as well as the practice of the Supreme Court of the Russian Federation, which established the principles for the provision of replacement housing.

Economic categories in civil and business law are quite common. However, over the years, disputes have not subsided about whether these categories should be present in law, how these categories should be reflected in the rules of law, whether they should fully reflect the economic essence of these categories, and most importantly, whether economic categories serve as the basis for making legal decisions. The article brought to the attention of readers reflects the position of the largest scientists in the field of civil law and business law on the issues under consideration: Doctor of Law, Professor Korneev S. M., Doctor of Law, Professor Gribanov V. P., Doctor of Law, Professor Bykov A. G., Academician of the Russian Academy of Sciences Laptev V. V. and other famous lawyers. Such economic categories as fixed and circulating assets, fixed and circulating assets, depreciation deductions, cost accounting, state property as an economic and legal category, enterprise, economic mechanism and others are considered. Particular attention is paid to the relationship between economics and law, the impact of economics on law and law on the economy. Attention is drawn to the close relationship between economics and law with the social factors of modern society.

The scientific article provides a historical analysis of the doctrinal approach to the legal characterization of the right of operational management. Particular attention is paid to the scientific works of Professor S. M. Korneev and his position on the right of operational management as a subjective real right. The position of Professor S. M. Korneev is presented. on the distinction between the right of ownership and the right of operational management, which became the basis for the author’s conclusion that the subject of the right of operational management manages the property of the owner for the purposes that the owner sets for the first. The article touches upon the question of the possibility of transferring the powers of the owner to the subject of the right of operational management, the answer to which was given at one time by Professor Korneev S. M., who believed that the owner, transferring this or that power, does not transfer it completely. The author also examines the current problems of applying the norms of the civil legislation of the Russian Federation on the right of operational management, which in most cases take place in relation to private institutions. The question is raised about the subsidiary liability of the founder of the institution for the debts of the latter. It is concluded that it is necessary to revise the main features of the right of operational management in the new economic conditions, which are different from those that took place in the Soviet period of Russia’s development.

The article is dedicated to the memory of MSU Professor Sergei Mikhailovich Korneev in connection with the 100th anniversary of his birth. Grateful memory allows the author to turn over the pages of his life history, emphasizing the huge contribution to the training of students working at universities in various parts of our country today. With the versatility of scientific interests and the presence of numerous works, S. M. Korneev, according to the author, had a special attitude to the doctrine of state property law created by him. Having singled out the fundamental characteristics of state property law as an economic phenomenon from the works of Professor Korneev, the author made an attempt to search for their development in the works of modern foreign civilists. And this attempt was crowned with success, because on the pages of the publication it was possible to prove that the professor’s ideas, even if not in an absolute form, are making their way, demonstrating the development in the research of modern foreign authors.

The article analyzes the concept of gross negligence in the occurrence of an insured event and its legal significance for liability insurance. The broad interpretation of gross negligence in judicial practice leads to an increase in the number of cases of refusal to pay insurance compensation. For this reason, customs representatives and other professional participants in the turnover cannot use insurance protection in situations for which such protection is provided. Using the examples of judicial practice, the author substantiates the need to analyze all elements of the insured event as a whole, and not only the behavior of the party preceding this case, when determining gross negligence. In addition, in the article the author touches upon the currently relevant issue of the admissibility of providing in the contract the possibility of releasing the insurer from the payment of compensation. The author comes to the conclusion that the rules regarding gross negligence in the occurrence of an insured event should be considered imperative, because this form of guilt does not exclude the randomness characteristic of insurance relations. According to the author, the rules of Article 959 of the Civil Code of the Russian Federation allow to protect the interests of the insurer in connection with the increased risk of an insured event due to gross negligence.

The article examines the key legal problems in connection with the formation and operation of endowment funds (endowment funds). The author takes as a basis two main theses related to the scientific heritage and personality of Professor of Moscow University Sergey Mikhailovich Korneev — the real nature of the right of operational management and the ethical significance of legal activity. The discussion in the scientific literature about the legal regime of the endowment fund property, as well as the purposes of spending the funds of these organizations, paid services of non-profit organizations has not subsided for several years. The author makes an attempt to talk about possible ways to resolve these debatable issues, based on the provisions of the current legislation. The subject of the author’s attention is endowment funds as a venture investment tool. Two ways of forming endowment funds are considered in detail — within the framework of an existing non-profit organization and by creating a specialized non-profit organization — a fund. Separately, the issue of restrictions that are introduced by the legislator for this type of non-profit organizations is considered. As an illustrative example, the article analyzes endowment funds operating in the educational sector.