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

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

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.