Administrative and municipal law: business, economy, finance
Kurakin A.V., Karpukhin D.V. —
Legal entity’s guilt of violations in financial sphere: formal-legal and law-enforcement aspects of the problem
// Administrative and municipal law. – 2017. – ¹ 10.
– P. 49 - 65.
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Review: The research subject is the current provisions of the Administrative Offences Code, the Tax Code, the Budget Code of the Russian Federation, the Federal Law “On the Central Bank of the Russian Federation (the Bank of Russia)”, which establish the concept and the content of legal entity’s guilt for tax, administrative, budget and bank offences, and the interpretative acts of judicial bodies, which contain interpretation of normative directions about guilt for administrative, tax, budget and bank offences. Codified acts, regulating budget and bank segments of the financial sphere, establish three fundamentally different formulations of a question about the evidentiary of admission of guilt of a legal entity for incriminated offences. The uncodified act – the Federal law “On the Central Bank of the Russian Federation (the Bank of Russia)”, in fact formulates the definition of a bank offence and contains a comprehensive list of administrative sanctions for the violation of bank legislation. The research methodology is based on the modern achievements in epistemology. The authors use theoretical and general philosophic methods (dialectics, the system method, analysis, synthesis, analogy, deduction and modeling); traditional legal methods (formal logical and interpretational methods, which are used for the analysis of particular content of provisions, establishing the concept and the content of quilt of administrative, tax, budget and bank offences); the comparative method is used to compare normative directions regulating the concept and content of guilt of tax, administrative and budget offences. The authors conclude that the codified acts in the financial sphere (the Tax Code, the Administrative Offences Code, and the Budget Code) contain three concepts of understanding of guilt (subjective, objective and interfacing) of a legal entity for offences, which have been formulated by scholars at the scientific and theoretical level. The chronological framework of adoption of these codes marks the tendency of shift from the subjective concept of guilt to the objective incrimination.
Besides, the provisions of the Administrative Offences Code compete with the provisions of the Federal Law in the issues of regulation of imposition of legal responsibility by the Bank of Russia on credit organizations in accordance with the directions of the Administrative Offences Code and the Federal Law. The authors compare the subjective and objective concepts of guilt of a legal entity for offences in the financial sphere with the real normative models of guilt contained in the codes, and with the normative and casual interpretation, which has formed in judicial practice. The scientific novelty of the study consists in the comparative-legal analysis of normative constructs of guilt of a legal entity for offences in the financial sphere at the level of codified acts and the Federal law “On the Central Bank of the Russian Federation (the Bank of Russia)” and affirmation of an interfacing construct of guilt of a legal entity, contained in the Administrative Offences Code, gravitating toward objective incrimination.
Keywords: subjective aspect of offence, objective aspect of offence, composition of offence, budget offence, Tax offence, Administrative offence, guilt, Intent, Direct intent, objective concept of guilt
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