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NB: Administrative Law and Administration Practice
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The Principle of "Mirror Reflection" in the Rights and Obligations of Participants in Foreign Economic Activity and Customs Authorities

Bobrova Anna Vladimirovna

Professor, Department of Customs Affairs, South Ural State University

454080, Russia, Chelyabinsk region, Chelyabinsk, Lenin Avenue , 76 / Main building, office 518a/3

ms.Bobrova_AV@mail.ru
Other publications by this author
 

 

DOI:

10.7256/2306-9945.2023.2.39725

EDN:

IEOEAL

Received:

01-02-2023


Published:

08-02-2023


Abstract: The subject of the study is the relationship between the rights and obligations of participants in foreign economic activity and customs authorities, namely, the implementation of the principle of "mirror reflection" in the complex formation of rights and obligations. The purpose of the study is to search for gaps in customs legislation that do not directly link the rights and obligations of customs subjects, as well as to develop recommendations for its amendment. The methodological basis of the study was a comparative analysis of the rights and obligations of customs authorities and their officials with the rights and obligations of participants in foreign economic activity, in particular, declarants, persons subject to customs inspection, and other participants. The novelty of the research lies in the formation and justification of the principle of "mirror reflection" when introducing the rights and obligations of the main counterparties in customs. The study revealed a discrepancy between the rights and obligations of the parties, both in the context of the relations "customs authorities – participants in foreign economic activity", and when comparing the rights and obligations of each of the parties. It was also shown that they are not presented systematically and in full in regulatory legal acts, and their implementation is hindered by the lack of an effective mechanism. The results of the study can be used by the legislative power of the country to amend customs legislation and customs authorities to regulate relations with participants in foreign economic activity. The article develops recommendations for improving the legal basis of relations for customs entities, in particular, it is proposed to bring the rights and obligations of the parties into full compliance, as well as to justify the mechanism of their action within each right and obligation.


Keywords:

rights, duties, responsibility, customs authorities, officials, participants in foreign economic activity, implementation mechanism, mirror image, regulatory regulation, gaps in legislation

This article is automatically translated. You can find original text of the article here.

 

The rights and obligations of the subjects of customs affairs are the most important component of foreign economic activity (FEA), including the resolution of disputes between its participants and customs authorities. Among the scientific works of the last period, there are no studies directly devoted to the relationship between the rights and obligations of foreign trade participants and customs authorities. The problems of protecting the rights of entities engaged in foreign economic activity are also rarely raised. Two works by M.V. Rubtsova reveal individual facts of violations of their rights and the role of the Investigative Committee of the Russian Federation in resolving customs disputes [1, 2].

Individual studies are indirectly related to questions about the rights of foreign trade participants through their interaction with customs authorities [3]. The authors proceed from the position that the rights and obligations of all parties to these relationships are fully realized on the basis of the provisions of the legislation, although they recognize the existence in Russian practice of mechanisms of information interaction that do not meet modern requirements. S.V. Taktarova also believes that customs authorities do not consider consulting and informing as a reflection of the legitimate interests of participants in foreign trade [4].

A diametrically opposite opinion is also expressed. Violations of the rights of foreign trade participants, according to G.M. Musayeva [5], are equivalent to non-compliance with legislation and problems of legal regulation in the field of administrative responsibility.

Scientific works of recent years use the provisions of the rights and obligations of customs authorities only in the context of control measures, regardless of the legal powers of the opposite side of the relationship [6-10]. V.V. Romanova believes that the lack of clearly defined rights and obligations of business and government agencies affects almost all spheres of activity in Russia [11]. On the other hand, A. Mindagulov believes that the preservation of state secrets by customs authorities implies the absence of all the features of the regime of state bodies in open access [12].

It should also be noted that in the scientific literature, the concepts of rights and obligations are being replaced by psychological aspects of the relationship between foreign trade participants and customs authorities, which shifts the legal aspects of regulation to the field of ethical norms. The concepts of "morality" and "morality", according to T.A. Grigorieva and V.N. Kormakova [13], are an integral component of the training and education of a future customs specialist. Such an approach to training allows, according to the authors, to ensure the prevention of not only corruption, but also abuse of official duties in relation to foreign trade participants, negligent attitude to work, and, as a result, violation of the rights of foreign trade participants. On the other hand, E.A. Terekhova proceeds in the relations between customs authorities and foreign trade participants from the principle of good faith of the latter [14].

In foreign sources, the issues of regulatory regulation of customs affairs, especially the implementation of the rights and obligations of the participants in the relationship, are not raised, apparently, due to the specifics of a priori legal state activity. At the same time, legal issues of interaction between business and government are the subject of research in separate works. O.D. Krupchan and co-authors [15], as well as Russian researchers [16], propose to extend the principle of equal relations applied in private law to the regulation of the economic activities of legal entities C. Beesley [17] and T. Cantens [18] it is generally believed that the main obstacle to the globalization of trade is not the regulatory regulation of the rights and obligations of the participants in the relationship, but the corruption of state customs officials.

So, the completeness and accuracy of the formulations of rights and obligations, as well as the principles underlying their formation, determine how successful the program for the implementation of public services in customs will be. Oriented to the interests of foreign trade participants, the directions of development of customs authorities suggest a systematic approach to the formation of the rights and obligations of all subjects of customs relations. The creation of such a system should be considered as a solution to a set of problems.

It should be recognized that the rights of foreign trade participants are represented in heterogeneous regulatory legal acts, are only partially defined and are not supported by the relevant duties of customs authorities and their officials. In addition, in our opinion, the problem is much deeper than the particular cases of customs disputes. Omissions of legislation in the field of the rights and obligations of foreign trade counterparties distort the legal field of the state, preventing the development of the system of rendering services by customs authorities to foreign trade participants.

There is also no fundamental analysis by the legislature of the rights and obligations of customs authorities and their officials. Not only are they not linked to similar categories for foreign trade participants, but they are also repeatedly duplicated in various regulatory legal acts, as well as expanded to almost unprecedented powers when conducting inspections and collecting customs duties. We believe that the rights and obligations of customs authorities cannot be classified as a state secret and should be publicly available. The main participants in customs relations are a priori not equal from the standpoint of law.

The interaction of foreign trade participants and customs authorities should be regulated exclusively by legal aspects. Of course, the ethical norms of society are also important, but the state cannot rely in the management of foreign economic activity on the principles of relations that are not extended to a legally defined conceptual apparatus, a clear mechanism for implementation and measures of responsibility.

The alignment of the rights and obligations of the parties in the framework of customs becomes an urgent task of the legislative authorities and the purpose of this study. The hypothesis put forward in this paper can be considered the provision that the construction and legislative support of the rights and obligations of participants in foreign trade and customs authorities in a "mirror image" will lead to a sharp decrease in judicial precedents on the basis of ensuring a common legal framework for all participants in customs relations.

The technique of "mirror reflection" is proposed by the author and consists in the premise that each item of the rights of customs authorities represented in a single regulatory legal act must correspond to the item of obligations of participants in foreign economic activity and vice versa. Each pair of such points should be supported by a mechanism for their implementation and measures of responsibility in case of their violation.

Additionally, methods of systematization and comparative analysis were used to determine the compliance of the rights and obligations of each participant in foreign economic relations with each other and the rights and obligations of the counterparties of these relations on the principle of "mirror reflection".

In the customs legislation , the rights and obligations of participants in relations in the field of foreign economic activity are presented in the following volume:

1. On Customs Regulation in the Russian Federation and on Amendments to Certain Legislative Acts of the Russian Federation: feder. Law No. 289-FZ of 03.08.2018:

-     Article 231. The rights of officials of the customs body during the customs inspection;

 The article does not give a detailed explanation of the rights, but only determines that when conducting a customs inspection, customs officials enjoy rights in accordance with Article 335 of the Customs Code of the Eurasian Economic Union (EAEU). Thus, the rights of not the customs authorities as a whole, but their officials and only in the process of customs inspection are presented without obligations, and these rights are not related to the rights or obligations of participants in foreign economic activity.

-     Article 235. Rights of the person being checked (rights without obligations are given, there is no interpretation of the term "person being checked");

-     Article 258. Duties of customs authorities;

-     Article 259. Rights of customs authorities;

-     Article 260. The rights of customs authorities in the implementation of customs control with the use of water and aircraft of customs authorities;

-     Article 261. The rights of customs authorities to stop vehicles.

Articles 260 and 261 present only rights without obligations, which are specific functions of customs authorities in certain conditions and are not linked to the general list of their rights, and which are not supported by the rights of participants in foreign economic activity.

2. Customs Code of the Eurasian Economic Union (Annex No. 1 to the Treaty on the Customs Code of the EAEU) (signed in Moscow on 11.04.2017):

-     Article 84. Rights, duties and responsibilities of the declarant;

Due to the fact that the declarant's position does not exhaust the list of foreign trade participants, and also because not only organizations and individual entrepreneurs transporting goods across the customs border can act as a declarant, these rights and obligations blur the spectrum of powers of foreign trade participants.

-     Article 335. The rights and obligations of customs officials during customs inspection (the powers of only customs officials and exclusively during inspections are presented, they are not related to the rights and obligations of foreign trade participants);

-     Article 336. Rights and obligations of the inspected person during customs inspection (comments are similar to Article 84);

-     Article 355. The rights of customs authorities to stop vehicles and to detain (return) water and aircraft that have left the customs territory of the Union (comments are similar to Articles 260, 261 of the regulatory legal act No. 1 from the list);

-     Article 404. Rights of a customs representative;

-     Article 405. Duties of the customs representative;

-     Article 409. Duties of the customs carrier;

-     Article 414. Duties of the owner of a temporary storage warehouse;

-     Article 419. Duties of the owner of the customs warehouse;

-     Article 429. Duties of a duty-free shop owner;

-     Article 442. Duties of an authorized economic operator.

Articles 405 to 442 contain only the obligations of counterparties of customs authorities, but do not reflect their rights, which in itself is a violation of the legal framework of relations in foreign economic activity. In addition, the fragmentation of subjects of duties blurs the boundaries of law enforcement.

In general, the Customs Code of the EAEU cannot and should not contain the rights and obligations of customs authorities, since it is necessary to take into account the specifics of the EAEU member states, but then these categories for foreign trade participants should also be determined by the domestic legislation of the states.

3. About service in the customs authorities of the Russian Federation: feder. Law No. 114-FZ of 21.07.1997:

-     Article 16. Rights of a customs officer;

-     Article 17. Duties of a customs officer.

This federal law presents the rights and obligations of a paramilitary service officer, but not all customs officials. Despite the positioning by the customs authorities of the entire service as equivalent to a paramilitary one, there are fundamental differences in rights and responsibilities in the implementation of operational search and control activities. In addition, in the law, the rights and obligations are presented in relation to the service itself, and not to foreign economic activity (participants in foreign economic activity).

4. About export control: feder. Law No. 183-FZ of 18.07.1999:

– Article 14. Obligations of participants in foreign economic activity to provide information for export control purposes.

In general, the provisions of these documents create a disparate picture of the rights and obligations of counterparties, therefore they require systematization before performing analytical operations and developing recommendations. The principles of grouping include: similar rights or obligations are combined, powers similar in procedures are placed side by side. The results of grouping the powers of customs authorities and foreign trade participants are presented in Table 1.

Table 1 – Comparative analysis of the rights and obligations of participants in customs relations

Rights

customs authorities

Responsibilities

participants of foreign economic activity

Responsibilities

customs authorities

Rights

participants of foreign economic activity

1, article 259, paragraph 1

absent

1, article 258, paragraph 2

absent

1, article 259, paragraph 2

2, article 84, paragraph 2

absent

2, article 336, paragraph 2

2, article 335, paragraph 1.1

2, article 336, paragraph 2

2, article 335, paragraph 2.10

2, article 335, paragraph 1.2

absent

absent

2, article 335, paragraph 2

absent

absent

absent

2, article 335, paragraph 3

absent

2, article 335, paragraph 2.5

absent

absent

absent

2, article 335, paragraph 2.9

absent

absent

absent

absent

absent

absent

absent

absent

absent

absent

absent

absent

absent

2, article 335, paragraph 4

absent

absent

absent

2, article 335, paragraph 6

absent

absent

absent

1, article 258, paragraph 3

absent

absent

absent

1, article 258, paragraph 4

absent

1, article 259, paragraph 3

absent

absent

absent

1, article 231, paragraph 1

1, article 259, paragraph 4

absent

absent

absent

1, article 259, paragraph 5

absent

absent

absent

1, article 259, paragraph 6

absent

absent

absent

1, article 259, paragraph 7

absent

absent

absent

1, article 259, paragraph 8

absent

absent

absent

1, article 259, paragraph 9

absent

absent

absent

2, article 335, paragraph 2.11

1, article 259, paragraph 10

absent

absent

2, article 84, paragraph 5

2, article 336, paragraph 3

1, article 235, paragraph 1

1, article 259, paragraph 11

absent

absent

absent

1, article 259, paragraph 12

absent

absent

absent

1, article 259, paragraph 13

2, article 84, paragraph 6

2, article 335, paragraph 9

2, article 84, paragraph 7

2, article 335, paragraph 1.8

2, article 336, paragraph 9

2, article 336, paragraph 6

2, article 335, paragraph 2.12

1, article 259, paragraph 14

absent

absent

absent

absent

absent

absent

2, article 84, paragraph 1

2, article 335, paragraph 1.7

2, article 336, paragraph 7

absent

2, article 84, paragraph 2

2, article 335, paragraph 2.4

2, article 84, paragraph 4

2, article 335, paragraph 2.1

2, article 84, paragraph 3

absent

2, article 84, paragraph 3

2, article 336, paragraph 1

2, article 336, paragraph 5

2, article 335, paragraph 2.6

absent

absent

absent

absent

absent

absent

2, article 84, paragraph 6

absent

2, article 84, paragraph 1

absent

absent

absent

2, article 84, paragraph 4

absent

absent

absent

2, article 84, paragraph 5

absent

absent

absent

 

absent

 

2, article 335, paragraph 7

2, article 336, paragraph 1

2, article 335, paragraph 5

absent

absent

2, article 335, paragraph 8

2, article 336, paragraph 4

absent

absent

absent

1, article 235, paragraph 2

absent

absent

absent

1, article 235, paragraph 3

2, article 335, paragraph 2.3

2, article 336, paragraph 3

absent

absent

2, article 335, paragraph 2.7

absent

absent

absent

absent

2, article 336, paragraph 4

absent

absent

absent

2, article 336, paragraph 5

absent

absent

2, article 335, paragraph 2.2

2, article 336, paragraph 6

absent

absent

absent

2, article 336, paragraph 8

absent

absent

2, article 335, paragraph 2.8

absent

absent

absent

2, article 335, paragraph 1.3

absent

absent

absent

2, article 335, paragraph 1.4

absent

absent

absent

2, article 335, paragraph 1.5

absent

absent

absent

2, article 335, paragraph 1.6

absent

absent

absent

The table is compiled by the author on the basis of normative legal acts 1 and 2 from the previous list.

Based on the data in the table , the following conclusions can be drawn and recommendations can be derived from them:

1. Most of the rights do not correspond to the obligations, both for each participant in foreign economic relations and for the counterparties related to the relationship. It is necessary to bring into line a set of rights and obligations for customs authorities, foreign trade participants and for the process of their interaction on the basis of the principle of "mirror reflection" proposed by the author, to fill in the gaps of customs legislation. At the same time, it is necessary to use the wording of full, and not identical, correspondence of powers.

It is possible to list exactly which rights and obligations of participants in foreign economic activity and customs authorities should be linked to each other on the basis of a table of items that are indicated as missing.

2. The mechanism of realization of the rights and obligations of participants in foreign economic relations is not traced. It is necessary to introduce into the formulation of each right and obligation the ways of their implementation and exclude formal powers represented by general phrases and having no mechanism of implementation. Mediation of third-party organizations and all types of liability (administrative, criminal and proposed customs) for all participants in the relationship should act as a mechanism for the implementation and resolution of disputes.

3. The rights and obligations of participants in foreign economic relations are represented in heterogeneous normative legal acts, and, because of this, there is a duplication of individual powers, as well as contradictions between various documents. It is necessary to reflect the rights and obligations of participants in foreign economic relations in a single document, first in the context of the EAEU, then in the Russian Federation, linking these provisions together.

4. Of course, the customs authorities have more rights, their duties are extremely limited for them. They mainly concern customs officials as physical participants in the relationship. Foreign trade participants are clearly infringed on their rights, but their responsibilities are much broader. It is necessary to level the legal field in the field of customs affairs, as required by the state development program focused on foreign trade participants, and create equivalent legal powers for participants in foreign economic relations.

5. Categories of other rights and obligations are not disclosed, which makes the system of powers of participants in foreign economic relations opaque and allows the use of mechanisms for their implementation that are not prescribed in legislation. It is necessary to exclude the category of other rights and obligations from the customs legislation.

6. The rights and obligations for customs authorities and their officials diverge, which disavows the powers of the body responsible for customs control and prevents the full realization of the rights and obligations of participants in foreign economic activity. It is necessary to bring the rights and obligations of customs authorities and their officials into line on the basis of their full compatibility. A single disclosure of these categories is possible.

The scope of application of the research results lies in the legislative plane. Amendments to customs law by creating a single regulatory legal act reflecting the rights and obligations of the main participants in customs relations, and the application of the principle of "mirror reflection" will reduce the number of disputes and court cases.

Further research of the author assumes the formation of the rights and obligations of participants in foreign economic relations in full on the principle of "mirror reflection" with a reflection of the mechanism of their implementation and the implementation of the results obtained.

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A REVIEW of an article on the topic "The principle of "mirroring" in the rights and obligations of participants in foreign economic activity and customs authorities". The subject of the study. The article proposed for review is devoted to the principle of "..."mirroring" in the rights and obligations of participants in foreign economic activity and customs authorities." The author has chosen a special subject of research: the proposed issues are investigated from the point of view of customs, administrative and constitutional law, while the author notes that "The rights and obligations of subjects of customs affairs are the most important component of foreign economic activity (FEA), including the resolution of disputes between its participants and customs authorities." The NPA (Federal Law "On Customs Regulation in the Russian Federation ...", the Customs Code of the EAEU, etc.) relevant to the purpose of the study are being studied. A large volume of Russian and foreign (in English) scientific literature on the stated issues is also studied and summarized, analysis and discussion with these opposing authors are present. At the same time, the author notes: "... the rights and obligations of all parties to these relationships are fully realized on the basis of the provisions of the legislation, although they recognize the existence in Russian practice of mechanisms of information interaction that do not meet modern requirements." Research methodology. The purpose of the study is determined by the title and content of the work: "... the completeness and accuracy of the formulations of rights and obligations, as well as the principles underlying their formation, determine how successful the program for the implementation of public services in customs will be. Oriented to the interests of foreign trade participants, the directions of development of customs authorities suggest a systematic approach to the formation of the rights and obligations of all subjects of customs relations,""Bringing the rights and obligations of the parties into line within the framework of customs becomes an urgent task of legislative authorities and the purpose of this study." They can be designated as the consideration and resolution of certain problematic aspects related to the above-mentioned issues and the use of certain experience. Based on the set goals and objectives, the author has chosen a certain methodological basis for the study. The author uses a set of private scientific, special legal methods of cognition, methods of "systematization and comparative analysis". In particular, the methods of analysis and synthesis made it possible to generalize approaches to the proposed topic and influenced the author's conclusions. The most important role was played by special legal methods. In particular, the author used formal legal and comparative legal methods, which made it possible to analyze and interpret the norms of acts of Russian legislation and compare various documents. In particular, the following conclusions are drawn: "... the rights of participants in foreign economic activity are represented in heterogeneous normative legal acts, are only partially defined and are not supported by the relevant duties of customs authorities and their officials," etc. Thus, the methodology chosen by the author is fully adequate to the purpose of the article, allows you to study many aspects of the topic. The relevance of the stated issues is beyond doubt. This topic is important in the world and in Russia, from a legal point of view, the work proposed by the author can be considered relevant, namely, he notes "Among the scientific works of the last period there are no studies directly devoted to the relationship between the rights and obligations of participants in foreign economic activity and customs authorities", "There is also no fundamental analysis by the legislature of the rights and duties of customs authorities and their officials. Not only are they not linked to similar categories for foreign trade participants, but they are also repeatedly duplicated in various regulatory legal acts, as well as expanded to almost unprecedented powers in conducting inspections and collecting customs duties." And in fact, an analysis of the opponents' work should follow here, and it follows and the author shows the ability to master the material. Thus, scientific research in the proposed field is only to be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. It is expressed in the specific scientific conclusions of the author. Among them, for example, the following: "The technique of "mirror reflection" was proposed by the author and consists in the premise that each item of the rights of customs authorities represented in a single normative legal act should correspond to the item of obligations of participants in foreign economic activity and vice versa. Each pair of such points should be supported by a mechanism for their implementation and measures of responsibility in case of violation." As can be seen, these and other "theoretical" conclusions "It is necessary to introduce into the formulation of each right and obligation ways of their implementation and exclude formal powers represented by general phrases and having no mechanism of implementation" can be used in further research. Thus, the materials of the article as presented may be of interest to the scientific community. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Administrative Law and Practice of Administration", as it is devoted to the principle of "..."mirroring" in the rights and obligations of participants in foreign economic activity and customs authorities." The article contains an analysis of the opponents' scientific works, so the author notes that a question close to this topic has already been raised and the author uses their materials, discusses with opponents. The content of the article corresponds to the title, since the author considered the stated problems and achieved the goal of his research. The quality of the presentation of the study and its results should be recognized as improved. The subject, objectives, methodology, research results, and scientific novelty directly follow from the text of the article. The design of the work meets the requirements for this kind of work. No significant violations of these requirements were found. The bibliography is quite complete, contains publications, NPAs, to which the author refers. This allows the author to correctly identify problems and put them up for discussion. The quality of the literature presented and used should be highly appreciated. The presence of scientific literature showed the validity of the author's conclusions and influenced the author's conclusions. The works of these authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of many aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. The author describes the opponents' different points of view on the problem, argues for a more correct position in his opinion, based on the work of opponents, and offers solutions to problems. Conclusions, the interest of the readership. The conclusions are logical, specific "The rights and obligations for customs authorities and their officials differ, which disavows the powers of the body responsible for customs control and prevents the full realization of the rights and obligations of participants in foreign economic activity. It is necessary to bring the rights and obligations of customs authorities and their officials into line on the basis of their full compatibility," etc. The article in this form may be of interest to the readership in terms of the systematic positions of the author in relation to the issues stated in the article. Based on the above, summing up all the positive and negative sides of the article, I recommend publishing it.