Jurisdiction In Proceedings Research Articles

The volitional aspect in the emergence of taxpayers’material subjectivity – basic reflections

The article considers the significance of volitivity in the setting up of tax subjectivity (personality) in terms offactual (resp. substantial) taxpayer – the one upon whom the tax obligation rests. The author specifies four methodsof identifying the tax personality – incl. objectivistic, behavioral, equitable, and subjective – in order to outlinethe field of analysis. In case that the object of taxation includes factual and, in particular, economic events orconditions, the will of the subject participating therein as a taxpayer/taxable person (or otherwise) may be, andindeed proves to be, of essential significance. The author argues that the subject who is willing to become a taxpayer/taxable person becomes such a subject even when acting under an error-of-law (phantom taxpayer) or whenacting in bad faith if participating in an event (condition) that objectively is not subject to taxation and yet (s)he/it has submitted the related tax return – unless such subject has quit or lost this status under jurisdiction proceedings.In case that a subject has unconsciously participated as a taxpayer in a third-party tax fraud, whilst (s)he/itshould otherwise have been aware of it, (s)he/it may not be a taxpayer/taxable person anymore, which howevermay only be established through jurisdiction proceedings. To conclude, if a subject is willing to be a factual (substantial)taxpayer, (s)he/it becomes a taxpayer (taxable person) even if (s)he/it has submitted a tax return thatspecifies, in particular, the tax obligation related to events (conditions) not subject to taxation

Features of management decisions in enforcement agencies

The article examines the features of managerial decision-making in such public authorities as enforcement agencies. The author considers management decisions in enforcement agencies from the point of view of the phonomena of their legal status, in particular, as a tool for ensuring the enforcement of an authoritative decision of a judge, judicial authority, other public authority, official in relation to a single legal entity: a citizen, an organization, a public authority. This proves the importance of the role of management decisions in ensuring human and civil rights as the highest value, authoritative publicly significant decisions on the scale of the entire state. Adhering to a broad interpretation of the definitions of the concepts of “public administration”, “act”, the author comes to the conclusion that the management decision — this is a process that requires formalization, and which permeates the entire activity of the enforcement authority, in particular and mainly, illustrating the process of enforcement proceedings, asserts that a management decision accompanies it from the moment of receipt of the enforcement document to its completion, says that as long as the state exists, it will need tools for the enforcement of authority decisions, and therefore in a management decision. According to the author, a legally significant managerial decision of the enforcement body, its official, is based on a triad of conditions on the basis of which it is made: legislative, jurisdictional, competent; it takes the form of a legal act of management, the main of which is a resolution. In addition to resolutions, the author names such forms of management decisions as a request, a bilateral act and others, arguing his position from the point of view of a broad understanding of the term “act”. The author comes to the conclusion that the adoption of a managerial decision in enforcement proceedings is a vivid example of a combination of administrative procedure and specific administrative and jurisdictional proceedings, characteristic only of a bailiff conducting enforcement proceedings, in the unity of conditionally allocated types of administrative procedural activities.

Proceedings in Courts on Cases of Administrative Offenses as an Integral Part of Administrative Proceedings

Introduction. The consideration by the courts of cases of administrative offenses is an essential part of the administrative judicial process and acts as one of the means of combating these offenses, as well as ensuring the legality of bringing individuals and legal entities to administrative responsibility. Meanwhile, the procedural and legal nature of the resolution by the courts of cases involving individuals and legal entities to administrative responsibility and cases of challenging decisions and decisions made in cases of administrative offenses (administrative proceedings or administrative jurisdiction) has not yet been clearly defined. In the context of the inconsistency of the current regulatory and legal regulation of the activities of courts of general jurisdiction and arbitration courts for the resolution of cases of administrative offenses referred to their competence, the question of the procedural and legal qualification of this activity becomes particularly relevant. Theoretical Basis. Methods. The theoretical basis of the research was the works of Russian legal scholars on the theory of justice, administrative proceedings, proceedings on administrative offenses, as well as normative material contained in the le¬gislation on administrative responsibility and administrative proceedings that were in force earlier and in force now. The main research methods used were the method of formal-legal analysis of normative legal acts and the historical-legal method. Results. It is stated that the institution of judicial review of cases of offenses (misdemeanors) that are not recognized as crimes originated in the Russian state in the XVIII century and then evolved throughout the XIX and XX centuries. It is shown that historically two forms of court resolution of cases of administrative offenses have been formed: consideration of cases on bringing individuals and legal entities to administrative responsibility and consideration of cases on appeal (challenging) decisions and decisions made by administrative bodies or lower courts in cases of administrative offenses. The absence of uniform approaches to understanding the legal nature of judicial acti¬vity in resolving cases of administrative offenses in the domestic procedural and legal science has been revealed. It is established that this activity is considered from two positions: as the administration of justice in the form of administrative proceedings and as the implementation, together with administrative bodies, of a separate independent complex administrative and jurisdictional proceedings. The inconsistency of the fe¬deral legislative acts currently in force regulating the consideration by courts of cases arising from administrative legal relations in terms of the procedural and legal qualification of judicial proceedings in cases of administrative offenses is noted. Discussion and Conclusion. As a result of the conducted research, conclusions are formulated that the proceedings in cases of administrative offenses in all courts that are part of the judicial system of the Russian Federation represent the administration of justice in the form of administrative proceedings and are subject to regulatory se¬paration from extrajudicial (administrative) proceedings in these cases.

Zasady ogólne postępowania kontrolnego prowadzonego przez Rzecznika Praw Obywatelskich

This paper presents selected general principles of control proceedings conducted by the Ombudsman. These are not jurisdictional proceedings, and the rules set out in the Code of Administrative Procedure do not apply to them. Due to the significant formalization and simplification of these proceedings, the general principles applicable to them are important. These express certain values that are relevant to all involved, and which the Ombudsman, in conducting the proceedings, should take into account at all times. A person has an inalienable dignity, and the Ombudsman should uphold this, while also upholding the freedoms and rights of the human being and the citizen, and the relationship of the person to society. The general principles, expressing certain values, are there to “remind” the Ombudsman of these basic duties.

New Procedure for Electronic Deliveries in Administrative Proceedings

Abstract This study focuses on the new procedure of electronic deliveries in administrative jurisdictional proceedings, as regulated by the provisions of the Code of Administrative Procedure. The primary research objective was to describe de lege lata the modes of individual deliveries, indicating their mutual hierarchy, while also addressing several issues related to the relationship between the Code and the Act on Electronic Deliveries. Both normative acts necessitate co-existence, and thus determining which of them and in which situational variants will be qualified as lex generali. This task is by no means facilitated by the fact that the characteristics of the framework regulation can be found in the Code, while the Act “model” regulates the rules of communication involving public entities. The main thesis presented in the study underscores the need for a systemic interpretation of the provisions of the latter Act. The author also believes that the definition of the scope of exclusions from the application of the Act was not designed appropriately. The issues raised have not been the subject of articles thus far.

The Role of the Arbitrator in Finding the Truth

The study on the role of the arbitrator in finding out the truth aims to highlight the specific elements of the arbitration procedure, considering that it must be carried out with the application and observance of the principles of the civil process dictated by the Code of Civil Procedure for all judicial procedures. The principle of finding the truth, however, has a specific applicability in private jurisdiction proceedings, given that within them a judgment in equity can take place and which differentiates them from the trial procedure before the common law courts. Finding out the truth is the goal of any judicial proceeding and leads to fair justice.

Compulsory mortgage as a form of security for tax liability

The principle of tax fairness contained in Article 84 of the Constitution of the Republic of Poland commands the organs of the public authorities to shape tax mechanisms in keeping with the principle of equality and universality. Ensuring the effectiveness of tax revenue, as a fundamental duty of the legislature, determines the necessity of creating institutional guarantees that ensure the organs of the executive authority not only with supervision over taxpayers fulfilment of their fiscal obligations, but also the securing of the said obligations in the future via jurisdictional proceedings, claim-securing proceedings, as well as at the stage of applying coercive measures in administrative enforcement proceedings. It also leads to interference in regard to individual rights under constitutional protection, which determines the necessity to create institutional mechanisms for protecting taxpayers and monitoring the activities of public authorities, including in particular judicial-administrative supervision. This paper analyses the institution of tax mortgage, as one of the forms of security for the performance of tax obligations. As a limited right in rem, tax mortgage constitutes an effective means of securing the performance of tax liabilities, not only at the stage of tax inspection, but also in the course of administrative enforcement and claim-securing proceedings.

Characteristics of the system of subjects of administrative and jurisdictional proceedings and its system-forming signs.

Characteristics of the system of subjects of administrative and jurisdictional proceedings and its system-forming signs.

К вопросу о правовой определенности административно-процессуальных норм

The article presents the author’s vision of the problem of legal certainty, industry affiliation and consistency of administrative procedural norms enshrined in Russian legislation. As a result of the analysis, the need is substantiated for both the unification of administrative procedural norms establishing administrative procedures and the systematization of administrative procedural norms governing administrative jurisdictional proceedings through a single codification.

PATRIMONIAL RESPONSIBILITY OF THE COLOMBIAN STATE FOR THE JUDICIAL DELAY DURING THE QUARANTINE DUE TO THE COVID–19 PANDEMIC

The research aims to analyze the exercise of jurisdictional power in Colombia during remote work at home conducted by the judicial offices of Cartagena during the COVID-19 quarantine in 2020. This article establishes if the Colombian State is incumbent on any patrimonial responsibility for the judicial delay during the quarantine. This article describes a new method in socio-legal research in Colombia, based on quantitative analysis, which allows determining through the application of surveys to users of the administration of justice that the state activities developed in the branches of the Colombian public power can generate patrimonial responsibility. Using the quantitative analysis of the surveys, the authors illustrate with the proposed method of statistical analysis that the application of surveys allows us to infer that in the administration of justice in Cartagena, 67% have perceived many changes in the notification of procedural stages with the notification application by email, contemplated in Decree 806 of 2020. The evaluation of the new method's efficiency is confirmed by calculating 150 surveys applied to the administration users, and the research results complement studies conducted by other authors in 2020-2021. The novelty and scientific contribution point to applying Cloud Computing using information and communication technology to conduct legal proceedings, and the conclusions pointed to developing new studies on the unjustified delay in compliance with the procedural terms and jurisdictional proceedings. Keywords: Administration of Justice, Access to Justice, Judicial Delay, COVID-19, Remote Work at Home DOI： https://doi.org/10.35741/issn.0258-2724.58.1.16

Innovative Approaches to Judicial Modeling in the Context of E-Democracy: Prospects for Ukraine

Introduction. Innovative approaches in the field of digitalization of the judiciary of Ukraine include the development of network technologies, introduction and improvement of electronic court document management, creation of automated systems for generalization of judicial practice and analysis of court activity, updating the telecommunications structure of courts, creating a single judicial database.Problem Statement. An important research task is the monitoring of “electronic tools” for modelling litigation in order to complete, timely, impartial, expedited and effective consideration of court cases, as well as the development on this basis of legislative and law enforcement proposals.Purpose. Theoretical understanding of the role of law and law enforcement practice in the process of using e-democracy tools in the judiciary.Materials and Мethods. Logical law, comparative law, empirical, deductive and systematic methods of analy sis of the development of electronic litigation in Ukraine.Results. The current state of implementation of the Unified Judicial Information and Telecommunication System in Ukraine has been analyzed. Legal monitoring of the legislative framework for e-court regulation in Ukraine has been conducted.Conclusions. In order to improve the legal basis for modelling litigations in Ukraine, the following issues need to be addressed: 1) access to court by videoconference for the parties to the case; 2) use of all possible (existing) messengers for communication with the court; 3) appeal to the court (submission of documents) exclusively in electronic form; 4) remote form for jurisdictional proceedings; 5) remote access to court records for all employees; 6) the possibility of signing the text of the decision without a personal presence in court (electronic signature); 7) automatic distribution of cases between all judges of Ukraine of the relevant specialization (departure from territorial jurisdiction).

Implementation of international standards of child-friendly justice to the administrative legislation of Ukraine

The article is devoted to the peculiarities of the implementation of the basic principles of justice for children in cases of administrative offenses. It is noted that every year in Ukraine more than ten thousand juveniles are brought to administrative responsibility for administrative offenses. But it is in this type of jurisdictional proceedings that the norms of Ukrainian legislation take the least into account the specifics of the administration of justice for children, which are determined by international standards and guidelines for the protection of children's rights. The purpose of the article is to clarify the content of international standards and guidelines for the administration of child-friendly justice and to identify existing problems of their implementation in the Ukrainian legislation on administrative offenses. It is established that the basis for the protection of the rights of juveniles prosecuted for administrative offenses is a set of interrelated and principles of administrative tort and international legal standards (rules) of treatment of children in the administration of justice. The second group of principles consists of the following principles, such as: ensuring the best interests of the child; access of the juvenile to the court and obtaining the necessary information in a form and manner accessible to the child; participation of the minor in the administrative tort proceedings against him (the principle of active participation, including the presumption of the child's ability to be a full participant in this relationship and the mandatory participation of the minor in the administrative case against him); free expression of the child's views and consideration of his opinion (the principle of being heard); the use of detention and forced detention of children only as an exceptional measure and for the shortest possible time; presumption of vulnerability of administrative and procedural rights of the child. These principles need to be more actively implemented in the norms of Ukrainian administrative law.

Аdministrative and jurisdictional proceedings: properties and classification

Аdministrative and jurisdictional proceedings: properties and classification

Legal nature of administrative-tort procedural relations

The article examines the systematic study of administrative-tort procedural relations, specifies their theoretical and applied legal basis. On the basis of the given scientific points of view concerning the maintenance of administrative-tort relations the legal nature and features are defined. The study of the legal nature of administrative-tort procedural relations allowed the author to summarize the accumulated scientific information and results of judicial practice and offer on their basis scientific and practical proposals and recommendations for improving their legal regulation, eliminating existing gaps and conflicts, and identifies areas for further development. The author notes that in polemical form modern scholars-administrators discuss certain rules governing proceedings in cases of administrative offenses (torts), the content of which contributes to new issues, both in theory and in law enforcement. In this regard, there is an objective need for clearer regulation of the rules of proceedings in cases of administrative offenses (torts), which does not allow arbitrary interpretation of the rules. In the context of studying the administrative legislation of Ukraine, the definition of "administrative tort law" as a set of rules governing relations arising in connection with the commission of an administrative offense (tort) has already been formed and improved. Norms of administrative tort law perform the function of protecting law and order, rights and freedoms of citizens. The scope of its legal regulation includes, on the one hand, relations related to the behavior of subjects of administrative law, and on the other hand, the activities of competent authorities to terminate and investigate acts of jurisdictional proceedings on administrative offenses (torts). In this sense, the author's justification for the development of an independent sub-branch of administrative law and administrative process in the form of administrative tort law and administrative tort law, the subject of which are administrative legal relations related to the consideration and opening of administrative offenses.

Udział Straży Granicznej w jurysdykcyjnym postępowaniu karnym skarbowym

<p>This article is an attempt to approximate the participation of the Polish Border Guard as a non-financial body of preparatory proceedings in fiscal criminal court proceedings. First, the tasks and material property of the Border Guard were presented. Most space was devoted to considerations about the permissions of the Border Guard in jurisdictional proceedings in fiscal criminal proceedings, limiting them to cases of fiscal misdemeanours due to the fact that the Border Guard was granted the status of public prosecutor only in this category of cases. The study also discusses the issue of appeals against the Border Guard and its participation in the appeal hearing. The legal regulations regarding the powers of the Border Guard in court proceedings in cases of fiscal misdemeanours were also assessed, referring them to similar powers granted to financial organs of preparatory proceedings.</p>

THE SPECIFICITY OF ADMINISTRATIVE REGULATION IN CONSULAR LAW: SELECTED SYSTEMIC AND PROCEDURAL PROBLEMS

The article discusses a significantly modified regulation within administrative law applied in the consular service. There seems to be a need for a voice in the discussion regarding the legal status of a Consul of the Republic of Poland (as well as the other members of the diplomatic corpus) as seen from an administrative law point of view. In the background of two regimes of administrative and consular law, it is also undoubtedly necessary to indicate the basic procedural border problems. A very typical example are the modified administrative procedures provided for diplomacy, with particular emphasis put on the importance of jurisdictional administrative proceedings lead by the consul. The administrative procedure constructed in this way by the legislature differs in many points from the general administrative procedure performed by other Polish authorities. Therefore, to some extent, it can be perceived as a specific administrative consular law. The aim of this article is to signal the typical procedural differences and to point out their sources. “Consular administrative law” can be perceived as a special administrative procedure, which does not constitute part of the general administrative procedure applicable to all national authorities and citizens in Poland, but which still is a sub-branch of Polish consular law which applies to the Polish citizens and foreigners in a specific administrative situations. The existence of so-called “consular administrative law”, however, presupposes one fundamental condition, which is having and maintaining foreign relations in the first place.

Administrative coercion in enforcement proceedings

The article examines administrative coercion in enforcement proceedings as a legal phenomenon. The author considers it, firstly, as one of the types of state coercion, and secondly, as a kind of administrative coercion, and comes to the conclusion that enforcement proceedings are inseparable from administrative coercion by their nature. Both elements that make up the general concept under study are generated by the state, are necessary for the exercise of state power, the achievement of a publicly significant goal. This goal is determined by the actual enforcement proceedings as a necessary specific type of activity aimed at completing the cycle of jurisdictional proceedings: in cases of administrative offenses, civil, arbitration, administrative proceedings, and others, to solve its tasks. In enforcement proceedings, only its combination with administrative coercion can achieve the goal of public authority, to achieve the real execution of the act of a jurisdictional body, an official. In addition, administrative coercion is a method of public administration, an effective tool with which enforcement proceedings are carried out. The article also presents the author’s classification of types of administrative coercion in enforcement proceedings, and raises the problem of improving the legislation on it.

Podejmowanie czynności materialno-technicznych przez organy administracji publicznej a prawo jednostki do bycia wysłuchanym

The right of the individual to be heard is a principle that relates to both the right to a fair trial and the right to a trial. The adjudicating entity is required, regardless of whether it is a court or a public administration body, to enable the active participation of the entity in the proceedings. The right of an individual to be heard in the context of administrative law relates mainly to the procedural situation of a party to administrative proceedings. In jurisdictional administrative proceedings, a party is guaranteed a number of procedural tools to protect its rights. First of all, the party has the opportunity to actively participate in the ongoing administrative process. Provisions of administrative procedural law allow for the submission of evidence applications, explanations, participation in the taking of evidence, as well as access to the files of a pending administrative case. The right of the individual to be heard to a limited extent should also apply to material and technical activities. An individual should be guaranteed at least minimal procedural protection in a situation where administrative bodies perform material and technical activities directly affecting their legal situation.

Legal and Practical Conditionality of the Prosecutor’s Participation in the Consideration of Administrative Off enses Cases in Commercial Courts

The paper examines the prosecutor’s role in the administrative jurisdictional proceedings in a commercial court. The author provides numerous examples from prosecutorial and judicial practice, reflecting the activities of prosecutors to strengthen the rule of law through participation in commercial litigation. The paper also indicates the requirements imposed by legislation, organizational and administrative documents of the General Prosecutor’s Office of the Russian Federation and the prosecutor’s offices of the constituent entities for the work of prosecutors in this direction. Based on statistical data on the number of cases initiated by prosecutors and the corresponding cases considered by the courts, the role of the prosecutor in the consideration of cases of the analyzed category by the courts is determined. According to the results of the study, the author points out the shortcomings of certain provisions of the law, determines the need to improve the theoretical foundations of the participation of the prosecutor in the consideration of cases of administrative offenses in commercial courts, emphasizes that changing the procedure for legal regulation of the participation of the prosecutor in commercial litigation is necessary in connections with changing social relations, and the preservation of the existing order gives rise to stagnation in the development of procedural legislation.

More flexibility for EU trade mark owners in choice of jurisdiction

Until now, the case law of the Court of Justice of the European Union (Court of Justice) concerning the determination of the competent jurisdiction in proceedings for infringement of a national trade mark has consistently rejected a choice of court based on the linking factor of the target location of the online message that constituted the offer to sell the goods bearing the protected trade mark. The AMS Neve and Others judgment holds that the territory in which the right to an EU trade mark has been infringed is the territory of the Member State in which the addressees either of advertisements posted on the internet or of targeted offers to sell are present, and that the right holder may bring an action for infringement before a court based in the territory of the country of such targeting. This judgment not only constitutes a breakthrough in the case law of the Court of Justice, but also represents an attempt to approximate the rules for determining the jurisdiction applicable to both national and EU trade marks.