Qualification Problems Research Articles

Problems of protecting the rights of taxpayers in the framework of examining the materials of a tax audit and making a decision by a tax authority

The subject of the study is the Russian Federation legislation, case law, as well as domestic and foreign doctrine, which allow us to establish the main problems of determining the concept of procedural norms’ materiality of breach when examining the materials of a tax audit and making a decision by a tax authority. The object of the study is public relations on the examination of the materials of the tax audit and the decision of the tax authority on the audit results. The author examines in detail the legal aspects related to the procedural issues of notifying the taxpayer related to the place and time of tax authority’s examination of the audit materials, compliance of the decision with the procedural requirements of the law, compliance with the deadlines for examination of the tax audit materials and making a decision on them, as well as additional tax control measures. The author pays special attention to the problems of qualification of procedural violations as significant ones, entailing the cancellation of the decision of the tax authority. The author formulates the criterion of procedural norms’ materiality of breach of the Russian Federation legislation on taxes and fees when considering the materials of a tax audit and making a decision by the tax authority.

Некоторые проблемы квалификации преступлений, связанных с корпоративными захватами (по материалам судебной практики). Часть 1

The article deals with certain problems of applying the norms of criminal law in the field of counteracting raider seizures. A brief analysis of the dispositions of part one of article 170.1 and part one of article 185.5 of the Criminal Code of Russia is given, attention is drawn to certain shortcomings in the structure of offenses and contradictions that arise in law enforcement. Statistical data for the last three years on the number of persons convicted of these crimes are given. The judicial practice in criminal cases considered under the indicated articles in various regions of Russia is summarized, excerpts from court verdicts and judicial acts of the appellate and cassation instances are given. The problems of qualification of socially dangerous attacks committed with the aim of seizing the management of organizations, and their competition with the elements of crimes provided for by Articles 159, 327 of the Criminal Code of the Russian Federation, are touched upon. The points of view of some scientific and practical workers on the issues of the topic are given and the author’s personal position on solving the problems that have arisen is expressed in order to avoid mistakes in law enforcement practice.

The problem of qualification of domestic violence in criminal law

The problem of qualification of domestic violence in criminal law

Problems of qualification of the murder of two or more persons in the law enforcement practice of Armenia and Russia

Problems of qualification of the murder of two or more persons in the law enforcement practice of Armenia and Russia

Problems of qualification of crimes committed by not providing assistance to a patient

Problems of qualification of crimes committed by not providing assistance to a patient

Problems of Qualification of Extremist Crimes

The analysis of the complex of criminal law problems of the formation of the institution of extremist crimes is given, questions are raised about the role and place of the totality of crimes of an extremist orientation in the structure of crime about the absence of a single object of criminal encroachment, the possibility of committing, any crime motivated by hatred or enmity, lack of a legal definition of “social group” and other aspects inextricably linked with the qualification of the crimes in question. It is noted that the legislative act becomes a tool for manipulating public opinion due to the choice of unreasonable priorities, politicized assessments in the formation of the institution of extremist crimes, which also forms informational prerequisites for the subsequent adoption of unreasonable and ineffective decisions in the field of ensuring the security of citizens, society and the state, it is proposed ways of development of the considered institution.

Экономикалық контрабанданы саралаудың теориялық және тәжірибелік мәселелері

The article discusses the problems of qualification of economic smuggling. The article analyzes theoretical and practical gaps in the conceptual apparatus of this crime. The author conducted a study in the field of legal regulation of illegal movement of goods and other items across the customs border. The article reveals the main features of such problems of qualification of a crime under Article 234 of the Criminal Code of the Republic of Kazakhstan. At the same time, the article highlights the fact that its correct qualification is ensured not only by the application of criminal law norms but also by strict compliance with the criminal procedure law studying the theory and practice of the qualification of economic smuggling. The article considers some critical remarks concerning this point of view, taking into account the peculiarities of establishing the signs of the composition of economic smuggling and the provisions of the legislation, as well as the established expert, investigative and judicial practice. In conclusion, the authors propose ways to solve the studied problems.

About some problems of qualification of involvement of minors in committing crimes

About some problems of qualification of involvement of minors in committing crimes

Historical development of criminal liability for bankruptcy offenses in the domestic legislation

The article deals with the origin and formation of criminal responsibility for bankruptcy crimes. The author describes and analyzes the features of compositions of criminal bankruptcy and sanctions for their commission in the historical legal acts. With the support of scientific literature and judicial practice the solution of various problems of qualification of crimes in the sphere of bankruptcy in the historical perspective is demonstrated. In the process of historical analysis reveals a tendency to expand the range of subjects and the objective side of criminal bankruptcy. The author describes the gradual transition from private to public type of criminal prosecution of criminal bankruptcy with the development of legislation. The interrelation of bankruptcy proceedings and criminal prosecution is illustrated. A comparison with modern criminal liability in bankruptcy is made.

Нецелевое расходование бюджетных средств как преступная форма поведения и дисфункция современной экономики

The article is devoted to the study of a very complex economic and legal phenomenon —inappropriate spending of budget funds. The article presents economic and legal arguments substantiating the need to counteract this kind of delinquent-criminal behavior as a dysfunction of the modern economy. The substantiation of the social and legal conditionality of the criminalization of misuse of budget funds is proposed. A high level of blanketness of the disposition of Article 2851 of the Criminal Code of the Russian Federation. The most controversial examples of misappropriation of budgetary funds are demonstrated, within the framework of which the most frequent problems of qualification of this kind of socially dangerous behavior arise.

Subjective side of "Concealment of a crime" (Article 396 of the Criminal Code of Ukraine) and its impact on qualifications

The article considers the current problems that arise during the qualification "Concealment of a crime" (Article 397 of the Criminal Code of Ukraine), in particular on the basis of the subjective side. The problem of the correct qualification of a criminal offense depends on the correct establishment of all the features of the criminal offense, among which the greatest complexity are the features of the subjective side. To do this, it is necessary to disclose the content and characteristics of the subjective side, its mandatory features, and to determine the significance of the characteristics of the subjective side of the crime for the criminal assessment of the offense. The subjective side is a mandatory element of any criminal offense. Among its features are guilt, motive and purpose of the criminal offense.
 The analysis of judicial practice, scientific works gives the chance to develop scientific knowledge concerning the outlined question and to draw the following conclusions. The subjective side of concealment of a crime (Article 396 of the Criminal Code of Ukraine) is characterized by guilt exclusively in the form of direct intent.
 The qualification of concealment of a crime can be significantly affected by a person's legal or factual error. Motive and purpose are optional features of the composition of concealment of the crime, they do not affect the qualification of the perpetrator, but must be considered by the court in sentencing. At the same time, the selfish motive of concealment of a crime has a great social danger, but fixing it in the tort under investigation is considered inexpedient, as it may complicate the distinction between concealment of a crime committed for selfish motives and acquisition, receipt, storage or sale of criminally obtained property.
 The significance of the subjective side and its features for qualification is determined. The paper reveals the features of subjective signs of concealment of a crime on the basis of the provisions of the Criminal Code of Ukraine. Examples from judicial practice are analyzed.

Problem of criminal legal qualification of domestic violence in law enforcement practice

Domestic violence is a phenomenon that can take the form of a socially dangerous act and be qualified as a crime under Art. 126-1 of the Criminal Code of Ukraine and other articles of the Criminal Code of Ukraine. It is the correctness of the criminal legal qualification of domestic violence that became the subject of our study. 
 The lack of systematic interpretation of Art. 126-1 of the Criminal Code of Ukraine leads in practice to the fact that the courts decide completely differently on the qualification of actions of a person. After all, domestic violence can be a manifestation of both an administrative offense and a criminally punishable act. That makes it impossible to further apply the restrictive measures of a criminal legal nature, enshrined in Art. 91-1 of the Criminal Code of Ukraine. Such situation has already become the basis for resolution in the order of review by higher courts and formation of a position on the most problematic aspects by the Supreme Court of Ukraine. In particular, in order to avoid the prohibited double conviction or punishment, the proceedings must be combined on a comprehensive basis and form a single whole. This means not only that the goal and the means used to achieve it must complement each other in nature and be linked in time, but also that the possible consequences of such legal response to appropriate behavior must be proportionate and predictable. for the persons to whom they relate. 
 Thus, the purpose of our study is to form a list of issues for the correct criminal legal qualification of actions under Art. 126-1 of the Criminal Code of Ukraine, for the correct separation from the administrative offense under Art. 173-2 of the Code of Administrative Offenses, as well as from other criminal offenses related to domestic violence. The task is to study the conclusions of the Supreme Court of Ukraine, to analyse the case law, to analyse the research conducted by non-governmental international organizations, as well as to analyse the positions of the doctrine of criminal and criminal procedure law on this issue.

CONTRACTUAL BASIS FOR TERMINATION OF CIVIL LEGAL OBLIGATIONS: PROBLEMS OF THEORY AND PRACTICE OF APPLICATION

The article considers contractual grounds for termination of civil obligations: compensation, innovation, debt forgiveness. The paper notes some problems of the application of Articles 409, 414, 415 of the Civil Code of the Russian Federation in judicial practice, analyzes the issues of the ratio of compensation and innovation, the differentiation of these contracts. The problems of qualification of agreements on the grounds for termination of obligations in law enforcement practice and the question of applying the principle of freedom of contract to the relations under consideration are considered. It is noted that at present the practice of applying the legislation on compensation has changed significantly. Despite the restrictions established by the norm of Article 409 of the Civil Code of the Russian Federation, judicial practice allows the possibility of using works and services as a subject of compensation, which leads to problems of distinguishing such contractual grounds for termination of obligations as compensation and innovation. With regard to the innovation, an analysis of the provisions on the possibility of novating the penalty into a loan obligation is given. A problematic issue is the legal qualification of debt forgiveness as a basis for termination of an obligation. It is noted that the contractual nature of debt forgiveness should be taken into account. Acceptance of notification by the debtor's creditor of his release from the performance of his duty is the silence of the debtor (clause 2 of Article 438 of the Civil Code of the Russian Federation). The article also considers the question of the ratio of debt forgiveness and donation. The analysis of judicial practice shows that the courts do not consider debt forgiveness as a gift, except in cases when the creditor released the debtor from the performance of the obligation free of charge. In this case, the norms of Article 168 of the Civil Code of the Russian Federation and paragraph 4 of Article 575 of the Civil Code of the Russian Federation are subject to the application of debt forgiveness.

ЩОДО ПРАВОВОЇ ПРИРОДИ ВАРТОСТІ НЕОБЛІКОВАНОЇ ЕЛЕКТРИЧНОЇ ЕНЕРГІЇ У СФЕРІ ГОСПОДАРЮВАННЯ

The article is devoted to the study of the legal nature of the cost of unaccounted electricity, the calculation of which is a consequence of the commission of relevant offenses in sphere of economic activities. Attention is drawn to the problem of qualification of the cost of unaccounted electricity and the active dynamics of changing the positions of the judiciary on the issue, the lack of a common position on the legal nature of these losses. It is noted that economic courts do not make a legal assessment of such losses in the process of considering cases for cost recovery of unaccounted electricity or such an assessment is debatable. It is noted also that the cost of unaccounted electricity in law enforcement practice qualifies as operational-economic sanctions, and as losses, and as payment for the cost of electricity (a special form of liability). In this regard, the key aspects of the application of such forms of economic and legal liability as operational-economic sanctions and compensation for losses are analyzed, the features of contractual debt are determined. Arguments are given that exclude the possibility of recognizing the accrual of the cost of unaccounted electricity by operational-economic sanctions. It is proved that the cost of unaccounted electricity is not a payment for the supplied electricity, including debt. Based on the analysis of the relevant rules of economic legislation and special regulations governing relations in the electricity market, and according to scientific positions on forms of economic liability and judicial practice of recovery of unaccounted electricity, arguments are presented and it is substantiated that disputes on recovery of unaccounted electricity in the field of economic activities are disputes over the recovery of losses, and the value of unaccounted electricity in the field of economic activities by its legal nature are losses in the form of the value of lost property.

Relevance in Belief Update

It has been pointed out by Katsuno and Mendelzon that the so-called AGM revision operators, defined by Alchourrón, Gärdenfors and Makinson, do not behave well in dynamically-changing applications. On that premise, Katsuno and Mendelzon formally characterized a different type of belief-change operators, typically referred to as KM update operators, which, to this date, constitute a benchmark in belief update. In this article, we show that there exist KM update operators that yield the same counter-intuitive results as any AGM revision operator. Against this non-satisfactory background, we prove that a translation of Parikh’s relevance-sensitive axiom (P), in the realm of belief update, suffices to block this liberal behaviour of KM update operators. It is shown, both axiomatically and semantically, that axiom (P) for belief update, essentially, encodes a type of relevance that acts at the possible-worlds level, in the context of which each possible world is locally modified, in the light of new information. Interestingly, relevance at the possible-worlds level is shown to be equivalent to a form of relevance that acts at the sentential level, by considering the building blocks of relevance to be the sentences of the language. Furthermore, we concretely demonstrate that Parikh’s notion of relevance in belief update can be regarded as (at least a partial) solution to the frame, ramification and qualification problems, encountered in dynamically-changing worlds. Last but not least, a whole new class of well-behaved, relevance-sensitive KM update operators is introduced, which generalize Forbus’ update operator and are perfectly-suited for real-world implementations.

Ущерб как признак состава злоупотреблений в сфере закупок товаров, работ, услуг для обеспечения государственных или муниципальных нужд

The article deals with the concept and features of damage as a qualifying sign of abuse (corpus delicti) in the procurement of goods, works and services ensuring state or municipal needs. The subjective and objective criteria necessary to define the concept of «major damage» are revealed. The problem of qualification of acts containing signs of abuse in the field under consideration and delimitation of Art. 2004 of the Criminal Code of the Russian Federation from related offenses are touched upon. The issue of the validity of establishing the amounts of major and especially major damage for the qualification of the crime in question is analyzed. Based on statistical data, the average cost of one procurement item to ensure state or municipal needs is calculated. The most common methods of determining the supplier (contractor, performer) are identified. Various approaches and points of view of scientists concerning the issues of determining the amounts of major and especially major damage caused when committing abuses in the procurement of goods, works and services for state or municipal needs are analyzed. 
 The author formulates his position on the problems arising in connection with the unreasonableness of the established amounts of major and especially major damage caused by committing abuses in the field studied.

TRAILER AS AN ECTOCOMPONENT OF CINEMA DISCOURSE: NEUROLINGVOSEMIOTIC QUALIFICATION OF A LANGUAGE ORGANIZATION

The article is devoted to the problem of neurolinguosemiotic qualification of the language organization of trailers as autonomous components of film discourse. The author of this article draws the following conclusions: 1) the trailer belongs to the external components of film discourse, which is due to the presence of semantic and functional correlations with the concept of «advertising»; 2) between the concepts of «trailer text» and «advertising text» the relationship of the so-called approximate identity, because they have identical structural elements, primarily of a reference nature; 3) the text of the trailer is more complex compared to the advertising text, because the linguosemiotic structure of the first introduced a larger number of typological types of signs; 4) the linguosemiotic structure of the advertising text, in which there are dialogic and monologue signs, has the form of meaningfully and formally interconnected remarks of actors who can perform different roles (average consumers of goods / services, professionals, celebrities, etc.), with the final thesis announcer (rarely – titrated on the screen graphically); 5) the linguosemiotic structure of the trailer text is a combination of autonomous multifunctional monologue signs, nonlinearly related to each other by subject (signs of actor, expert, witness and announcer); 6) the vectors of influence of linguosemiotic units of advertising texts and trailer texts do not coincide, because in the former the metaprograms of centrifugal / centripetal motivation, activity, desired modality, comparison focus are actualized, and in the latter – metaprograms of time orientation, breakdown size, way of thinking.

STRUCTURAL AND SEMANTIC FEATURES OF THE NEOLEXES ON THE DESIGNATION OF THE CULTURAL AND ARTISTIC SPHERE

The article clarifies the meaning and features of word-formation development of new words and terms to denote the cultural and artistic field, which appeared in the modern Ukrainian literary language at the beginning of the XXI century and due to linguistic and extralinguistic factors are widely used. The object of research are words and terms of the cultural and artistic sphere, as they are best able to nominate concepts in special vocabulary, to reflect the diversity of the semantic spectrum of the conceptual sphere of «culture and art». The subject of research is lexical-semantic, structural-word-forming and spelling features of words and terms of cultural and artistic sphere in the Ukrainian language. Scientific novelty of the research. The classification of neolexes by semantic criterion is offered. The place of innovations in the lexical structure of the Ukrainian language is determined, the main stages of adaptation and structural and semantic features of words and terms to denote the cultural and artistic branch are characterized; the factors of creation of neolexes and their inclusion in the lexical-semantic system of the Ukrainian language, which supplement the corresponding lexical-semantic group with new tokens, are clarified; factors of word-forming activity of neolexes are revealed; It is proved that one of the reasons for the problem of qualification and spelling of neolexes with creative bases-Englishisms is the lack of mastery of innovations by the grammatical system of the Ukrainian language. The existing achievements of linguists in the field of studying innovative derivatives are analyzed, it is stated that the issue of the dynamics of the language system is always at the center of current linguistic research. Innovative words and terms of the cultural and artistic sphere of the beginning of the XXI century in the language of mass media, Internet forums and in dictionaries of neologisms of the modern Ukrainian language are revealed, globalization tendencies in their use are testified. The main thematic groups of neolexes for the designation of the cultural and artistic sphere are singled out, structural and semantic innovations and productivity of their use are determined. It is proved that one of the reasons for the problem of qualification and spelling of neolexes with creative bases-Englishisms is the lack of mastery of innovations by the grammatical system of the Ukrainian language.

Проблемы квалификации грузино-осетинского конфликта в контексте процесса федерализации Российской Республики 1917–1922 гг.

Автор статьи выявляет неверную квалификацию так называемого грузино-осетинского конфликта, вызванную ошибочной исторической интерпретацией международной правосубъектности сторон конфликта. На основании метода исторко-правового анализа документов и норм национального и международного права в настоящей статье описывается факт вхождения единой Осетии в состав РСФСР в 1921 году. На основании этого факта в статье рассматривается правосубъектность двух суверенных государств (ГССР и РСФСР) в контексте правомочности их юрисдикции на территории Осетии, для политико-правового анализа ответственности каждого из них за нарушение целостности Осетии и этнического суверенитета осетин. В силу неделимого качества этнического суверенитета осетин, она путем самоопределения могла быть передана только одному федеративному государству – Российской Федерации. Автор статьи квалифицирует конфликт как грузино-российский, что открывает совершенно новый подход к урегулированию конфликта посредством переноса его на открытый равносторонний международный уровень. Investigating the problems of the so-called Georgian-South Ossetian confl ict, the author of the article revealed an incorrect qualifi cation of the confl ict caused by an erroneous historical interpretation of the international legal personality of the parties to the confl ict.Based on the method of historical and legal analysis of documents and norms of national and international law, this article reveals the fact of the entry of united Ossetia into the RSFSR in 1921. Based on this fact, the article examines the legal personality of two sovereign states (the SSR of Georgia and the RSFSR) in the context of the legitimacy of their jurisdiction on the territory of Ossetia, for a political and legal analysis of the responsibility of each of them for violating the integrity of Ossetia and the ethnic sovereignty of the Ossetians. Due to the indivisible quality of the ethnic sovereignty of the Ossetians, it could be transferred by self – determination to only one federal state-the Russian Federation. Due to this fact, and the impeccable international legal personality of Georgia and Russia as actual members of the UN, the author of the article qualifi es the confl ict as Georgian-Russian, which opens up a completely new approach to resolving the confl ict by transferring it to an open equilateral international level.

An Alternative View of the Legal Regulation of Civil Law Relations in the Digital Economy

The paper substantiates the author’s proposal to amend the Civil Code of the Russian Federation, which is explained by the gradual creation of a digital economy in the Russian Federation. In particular, the author has examined and solved the following problems of the legal regulation of civil law relations in the context of digitalization: the problem of identifying the object of digital rights, the problem of legal qualification of the electronic form of the transaction, the problem of using a smart contract in civil transactions, the problem of using blockchain technology to create mixed payment systems. The paper proposes a non-standard solution to each of these problems—the author has prepared a draft federal law "On Amendments to Parts One and Two of the Civil Code of the Russian Federation in terms of legal relations arising in cyberspace." In particular, the author proposes to define digital rights as the absolute and relative rights to digital property named in this capacity, the content and conditions of implementation of which are determined by the law and the rules of the information system (protocol) that meets the characteristics established by the law. In the author’s opinion, an electronic document can exist in the form of a machine information file of any format or a computer program that meets the characteristics of an electronic document.