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Administrative and municipal law
Reference:
Shkiperov, A.A., Al'bov, A.P., Arutiunian, G.V., Burygin , A.A. (2024). Concepts of customs law. Administrative and municipal law, 6, 1–42. https://doi.org/10.7256/2454-0595.2024.6.72031
Concepts of customs law
DOI: 10.7256/2454-0595.2024.6.72031EDN: BVQJEQReceived: 19-10-2024Published: 03-11-2024Abstract: The subject of this study are the concepts used to regulate public relations related to the realization of ownership of goods transported across the customs border, power relations between customs authorities and persons exercising ownership of goods, as well as public relations related to the regulation of customs affairs. The authors consider in detail the established legal and scientific approaches to the definition of the basic concepts of customs law, the analysis of which reveals their essential features, essence and content. The authors study in detail such concepts as customs legal relations, customs control, customs regulation, customs business, customs administration, customs policy, customs law, customs legislation and others. Special attention in the framework of the study is paid to providing a comprehensive analysis of these concepts, taking into account the specifics of approaches to their understanding in various spheres of public relations. The authors used general scientific methods (abstraction, induction, deduction, hypothesis, analogy, synthesis, typology, classification, systematization, generalization and others) as well as special methods of scientific cognition characteristic of jurisprudence (comparative law, historical, formal law, legal hermeneutics, system-structural, legal modeling and others). The scientific novelty of the research lies in the conclusions and proposals aimed at improving the basic terminology of customs law, based on ensuring uniform approaches to the unambiguous definition of the basic concepts of customs law, which do not contradict the current legislation and are aimed at its development. The authors substantiate the critical importance of unifying the understanding of customs law terms in order to achieve a unified customs regulation, uniformity of law enforcement practice during customs control and customs operations both in the customs territory of the Eurasian Economic Union and in the Russian Federation. A special contribution of the authors is the realized attempt to integrate the approaches of the legislator, representatives of legal and economic sciences to the definition of customs law concepts as the only guarantee of effective regulation and management of public relations in the field of foreign economic activity. Keywords: customs legal relations, customs control, customs regulation, customs business, administration of customs law, customs policy, customs law, customs legislation, customs supervision, customs sphereThis article is automatically translated. The Federal Customs Service of the Russian Federation (FCS of Russia) is a federal executive authority that performs functions of control and supervision in the field of customs affairs (customs control), as well as other functions assigned to it.[1] The principles of the customs authorities are: the principle of legality[2], which implies strict and unconditional guidance of the customs authorities in their activities by normative legal acts; the principle of uniformity of law enforcement practice in customs control and customs operations[3], implying a unity of approaches to the interpretation and application of customs law; the principle of clarity, predictability, transparency of actions of customs officials, clarity of requirements of customs authorities during customs control and customs operations,[4] arising from the first two principles, and others. These principles, considered together, show that the norms of law constitute the essence of both customs authorities and their activities. However, due to the fact that so far the most active development of concepts of customs law, the search for ways to improve them "is carried out by representatives of economic, not legal science"[5], there is an unjustified imposition of economic provisions on the legal basis, which leads to the emergence of new or distortion of the meaning of existing definitions of concepts that do not correspond and even contrary to the regulations. This trend has a negative impact on the interpretation, enforcement and improvement of customs law norms. For example, in scientific research, representatives of economic science admit a mixture of scientific, legal, including those enshrined in outdated or invalid sources of law and other documents (such as the Agreement dated 11/18/2011 "On the Eurasian Economic Commission" (expired on 01.01.2015), the Concept of development of the customs authorities of the Russian Federation (approved by Government decree Of the Russian Federation dated 12/14/2005 No. 2225-r), and other concepts along with the erroneous representation and use of subjectively formulated concepts as legal ones.[6][7]Finally, the economic approach to the generalization of legal concepts does not take into account the established practice in the legal field, when individual normative and other acts provide their own terminology. Finally, in the scientific works of representatives of economics, there is also an ill-considered use of legal terms when formulating definitions of concepts without taking into account their current legal meaning and the established practice of normative use. For example, a number of authors define the concept of "customs administration" as "organizational and managerial activities of a state body authorized in the field of customs affairs aimed at implementing control and supervisory functions", which, in terms of defining the subject of such activities ("state body authorized in the field of customs affairs") contradicts the previously stated positions that that customs administration is carried out by the Eurasian Economic Commission, which is not a state, but a supranational body, and also does not take into account the legally established distinction between federal executive authorities authorized in the field of customs affairs, performing functions for control and supervision in the field of customs affairs (FCS of Russia) and for the development of state policy and regulatory regulation in the field of the field of customs affairs (Ministry of Finance of the Russian Federation).[8] First of all, it should be noted that the movement of goods across the customs border of the Eurasian Economic Union causes the emergence of specific social relations. Such specificity naturally determines the need to introduce a special terminological apparatus for the purposes of state regulation. At the same time, the further natural development of such public relations, as well as the need for their advanced development, makes it necessary to ensure the improvement of state regulation and, above all, in terms of customs law norms. The norms of customs law are an external form of expression of the will of the legislator. Their interpretation "directly affects the specifics of the law enforcement of such norms, the degree of its uniformity, the effectiveness of state regulation of public relations, the completeness of the implementation of the will of the legislator, laid down in specific normative legal acts."[9] In this regard, the completeness and accuracy of reflection by abstract legal concepts of certain aspects (phenomena, objects, processes, etc.) of real reality, the unambiguity of their understanding by subjects of legal relations is of critical importance for the organization of the activities of customs authorities, increasing with the deepening of economic integration and the development of supranational law. The purpose of this article is to improve the basic terminology of customs law by developing unified approaches to the unambiguous definition of the basic concepts of customs law that do not contradict current legislation and are aimed at its development, based on the analysis and generalization of currently established approaches in the scientific and legal fields. The basic terminology of customs law is a system of legal concepts that are abstractions arising from the generalization of certain aspects of the surrounding reality based on the unity of their essential features. In this regard, the primary task within the framework of this study is to conduct a comprehensive analysis of existing (current) and historical legal concepts in the customs sphere and approaches to their definition by the widest possible range of subjects.
Customs legal relations
Customs law is a product of customs legal relations – relations regulated by the norms of customs law. Customs law is understood, respectively, as a set of sources of law (international treaties and acts, national normative legal acts, etc.) regulating customs legal relations. Customs legal relations mainly include three groups of relations regulated by the norms of customs law: a) between customs authorities and persons exercising ownership rights in respect of goods (customs operations, customs control, law enforcement activities of customs authorities, etc.), etc., that is, the power relations of customs authorities and these persons; b) other matters related to the realization by persons of the right of ownership of goods (relations between the customs representative and the declarant, the customs carrier and the sender of goods, their recipient or forwarder, the owner of a temporary storage warehouse and the declarant, etc.), that is, properly regulated foreign economic activity; c) related to the regulation of customs affairs, that is, with the establishment, modification and abolition of methods and means used by customs authorities in order to ensure compliance with customs and other legislation. The content of customs legal relations are the rights and obligations of subjects in relation to each other, the rights and obligations of persons in relation to goods that are realized through the commission of actions or inaction by these subjects, that is, in any case, volitional acts implemented in one form or another within the limits provided for by customs law. Customs control, therefore, acts as a kind of customs legal relationship. For example, customs inspection, like other forms of customs control, has all the signs of customs relations (see Fig. 1). Figure 1. Customs inspection as a kind of customs legal relations
Other types of customs relations are, respectively, customs operations, relations related to the calculation, payment, collection, provision of customs duties, reporting by the owner of a temporary storage warehouse to the customs authority on goods in temporary storage, etc., etc. Meanwhile, public relations arising on the basis and in the process of implementation by customs authorities of currency, export, and other types of state control, consideration of cases of administrative offenses, investigation of criminal cases of crimes, etc. They are administrative, but not customs legal relations, despite the presence of a subject in them in the person of customs authorities, since such relations are regulated by sources of non-customs law (such as federal Laws No. 173-FZ dated 10.12.2003 "On Currency Regulation and Currency Control", dated 07/18/1999 No. 183-FZ "On Export Control", the Code Of the Russian Federation on Administrative Offenses dated 12/30/2001 No. 195-FZ, the Criminal Procedure Code of the Russian Federation dated 12/18/2001 No. 174-FZ, etc.). At the same time, public relations related to the conduct of these types of state control may be customs only in the case of customs control. So, for example, customs control is a method of export control.[10] Similarly, the presence of one of the subjects of the customs authority in them is not an exhaustive sign of customs relations in the case of relations between customs authorities and customs or other authorities of foreign states, customs authorities and the Eurasian Economic Commission, customs authorities and international organizations, customs authorities and the Ministry of Finance of the Russian Federation, other federal executive authorities, etc. Such legal relations also have the character of administrative, but not customs, legal relations, since they do not arise in connection with the realization by another subject of ownership rights in respect of goods. Thus, the essential features of customs relations are: 1. Regulation by the norms of customs law; 2. The basis for the emergence and termination of such legal relations is the movement of goods by one of the subjects across the customs border of the EAEU[11] and the recognition by the state of the ownership right of such subjects to such goods in full or the recognition of the disappearance of this ownership right on appropriate grounds,[12] as well as the expiration of the established period for customs control; 3. The customs authorities are responsible for checking and ensuring compliance with such standards.
Customs control
Customs control is a basic concept in the field of customs. The implementation of customs control is the key and exclusive authority (function) of the customs authorities.[13] Currently, customs control is defined as "a set of actions of customs authorities aimed at verifying and (or) ensuring compliance with international treaties and acts in the field of customs regulation and legislation on customs regulation."[14] In accordance with the Regulations on the Federal Customs Service of Russia, the concepts of "customs control" and "control and supervision in the field of customs affairs" are identical.[15] This feature is directly reflected in the above definition of the concept of "customs control", the content of which are two types of actions: a) aimed at verifying compliance with the law (proper control) and b) aimed at ensuring compliance with legislation (supervision). This logical approach is consistent with the lexical meanings of these words given in explanatory dictionaries, where "control" is defined as "verification", and "supervision" is defined as "observation for the purpose of verification".[16] That is, the object of control (verification) are already committed actions, and the purpose is to establish the presence or absence of a violation of customs law by a person, and the object of supervision (supervision) are actions committed in the present, and the purpose is to prevent violations of legislation, that is, to ensure its compliance. For example, the most relevant to the concept of supervision are such customs control measures as customs escort, establishment of a transportation route, customs surveillance, identification of goods, documents, vehicles, premises and other places (using seals, seals, digital, letter and other markings, identification marks, stamps, safe bags, etc.), as well as the introduced customs monitoring[17], etc. The generalization of control and supervision in the field of customs affairs by one concept of "customs control" corresponds, if not conditioned, to international standards, in particular, the International Convention on Simplification and Harmonization of Customs Procedures of May 18, 1973 (ratified by Federal Law No. 279–FZ of 03.11.2010), which does not contain such a concept as "customs supervision", and customs control refers to almost any measures carried out by customs authorities and aimed at ensuring compliance with customs legislation. It is worth noting that in the European Union there is a standard practice of distinguishing the concepts of "customs control" ("customs control actions", "customs controls") and "customs supervision" ("customs supervision"). Both of these actions are aimed at ensuring compliance with legislation within the competence of customs authorities ("in order to ensure compliance with the customs legislation and other legislation" – in the first case and "with a view to ensuring that customs legislation and, where appropriate, other provisions "..."are observed" – in the second) with the only difference is that customs control actions imply specific actions of customs authorities ("specific acts"), such as inspection of goods, sampling and sampling, verification of the reliability and completeness of the information provided, inspection of vehicles, etc. ("examining goods", "taking samples", "verifying the accuracy and completeness of the information", "inspecting means of transport", etc.), and customs supervision – actions (activities) customs authorities in general ("action taken in general") and fully corresponds to the concept of "customs control" of the EAEU law (see Table 2).
Table 2 The use of the concepts of "customs control" and "customs supervision" in the customs codes of the EAEU and the EU
Finally, in the Russian language, the word control ("controle") is a borrowed word that came into use (including normative) much later than the word "supervision", which has ancient Russian roots.[18] This fact, as well as the absence of the concept of "customs supervision" in the modern customs law of the EAEU and the Russian Federation, allows us to conclude that the concept of "customs control" is a successor in relation to "customs supervision". Control and supervision in the field of customs affairs are currently generalizing concepts and include all established and legally established forms and measures of customs control. However, there was no need for such a generalization at the beginning and in the period before the 20th century. Thus, in the Customs Charter of 1910, customs supervision meant (taking into account the norms of modern customs law) customs authorities ("... it is allowed only under the supervision of customs supervision"), and the rank of customs supervision – an official of the customs authority ("... with an inventory signed by the rank of customs supervision ..."), while The forms and measures of customs control were not distinguished, but their varieties were used separately and independently (for example, inspection, surveillance, etc.). Similarly (without highlighting the forms and measures of customs control), customs relations in the USSR were regulated (the Customs Charter of the USSR (approved by the Central Executive Committee of the USSR on December 12, 1924), the Customs Code of the USSR (approved by By Resolution of the Central Executive Committee of the USSR, the Council of People's Commissars of the USSR dated December 19, 1928), the Customs Code of the USSR (approved by Decree of the Presidium of the Supreme Soviet of the USSR dated May 5, 1964), the Customs Code of the USSR (approved by the Supreme Soviet of the USSR on March 26, 1991 No. 2052-1). Conclusions about the current lack of semantic boundaries between the concepts of "control" and "supervision" are also drawn by many scientific researchers who claim that "the concept of "control" in the Russian language is identical to the concept of "supervision"", and also that "in a number of state documents " ..."these concepts are not separated" at all.[19][20][21] The available studies devoted to identifying and substantiating the differences between the concepts of "control" and "supervision" nevertheless confirm their semantic similarity up to the point of being used in the same meaning at the legislative level.[22][23][24] Finally, in the Russian Federation, the concept of "customs control", despite changes in the main source of customs law – the Customs Code, "has not undergone significant changes."[25]
Customs regulation
Another key concept of customs law is customs regulation. Currently, the unified customs regulation is one of the fundamental principles of the functioning of the EAEU.[26] In this regard, it is advisable to conduct a study of this concept in conjunction with the deepening of trade and economic integration, its reflection in the legal plane, the peculiarities of the transition from national to supranational law, in particular, by legally consolidating the transfer of relevant powers of national state bodies to supranational bodies. Thus, with the deepening of trade and economic integration, the creation of supranational bodies and the consistent expansion of their powers took place. It is worth noting that the Customs Union, unlike the previous form of trade and economic integration (free trade zone), involves the creation of permanent regulatory supranational bodies (such as the Customs Union Commission, the Eurasian Economic Commission), however, such structures are not law-forming at this stage. The legal basis for the functioning of the customs union, as well as the free trade zone, continues to be international treaties regulating certain aspects of this form of trade and economic integration (for example, the Agreement dated 02/26/1999 "On the Customs Union and the Single Economic Space", the Agreement dated 06.10.2007 "On the creation of a single Customs territory and the formation of the Customs Union", the Agreement on 06.10.2007 "On the Customs Union Commission", the Agreement dated 18.11.2011 "On the Eurasian Economic Commission", etc.). However, with the formation of a deeper form of trade and economic integration - the economic union – the concept of the law of such an economic union (the law of the EAEU), a single customs regulation arises, a supranational body (the Eurasian Economic Commission) acquires a rule–making function, a judicial body (the Court of the EAEU) is created, etc. (see Table 3).
Table 3. Customs administration and customs regulation as the spheres of implementation of the powers of the Eurasian Economic Commission commissions in their interrelation with forms of trade and economic integration
The definition of the concept of "customs regulation" is contained in the main sources of customs law in the EAEU member States.
Table 4. The concept of customs regulation in the member States of the Eurasian Economic Union
Customs regulation is a type of legal regulation and is carried out "by issuing regulatory legal acts affecting relevant public relations."[27] The specifics and the most controversial aspect of customs regulation is its object, which can be (taking into account the data presented in the above table) the following types of public relations: - public relations related to the regulation of customs affairs (Russian Federation); - public relations related to the implementation of customs affairs (Republic of Armenia); - public relations related to the establishment of the procedure and conditions for the movement of goods across the customs border of the EAEU, their location and use in the customs territory of the EAEU and beyond, the procedure for customs operations, etc. (Republic of Belarus, Republic of Kyrgyzstan, Republic of Kazakhstan). At the same time, in the latter case, the definition of the concept of customs regulation is fully consistent with that given in the EAEU Customs Code[28], while the Russian Federation and the Republic of Armenia have put a different meaning into this concept, namely regulation and implementation of customs affairs, which, in turn, is aimed at ensuring compliance with the established as a result of customs regulation of customs law norms. It is worth noting that in the Russian Federation, the concept of customs regulation became an integral part of legal regulation almost immediately after its formation, the development of market relations, and the liberalization of foreign economic activity[29] (see Table 5). Table No. 5 The concept of customs regulation in the customs codes of the USSR, the Russian Federation and the EAEU
It is worth noting that under the USSR, the concept of customs regulation was absent in customs codes, as well as in constitutions.[30] This is due to the fact that under the conditions of the state monopoly on foreign trade, "the issue of customs policy was not raised" and, consequently, there was also no need to introduce a separate type of legal regulation.[31] Taking into account the above, as well as due to the fact that the implementation of customs business takes place through and within the framework of the implementation of the power relations of customs authorities and persons moving goods across the customs border, customs regulation is the legal regulation of three main groups of relations: - related to the realization of the right of ownership of goods transported across the customs border (their movement across the customs border, their presence and use in the customs territory or beyond, etc.); - power relations between customs authorities and persons exercising the right of ownership of goods; - related to the regulation of customs affairs. At the same time, the legal regulation of the first two groups of relations has been transferred mainly to the supranational level, while the regulation of customs affairs has been left almost entirely within the competence of the EAEU member states. This is due to the presence of different approaches to the definition of customs regulation in the law of the EAEU and the legislation of the EAEU member States on customs regulation (see Fig. 1).
Figure 1. Customs regulation as a legal phenomenon in the context of the Eurasian Economic Union
At the same time, taking into account the fact that the legal regulation of relations in the field of customs affairs in the Russian Federation is carried out by the sources of the EAEU law and the legislation of the Russian Federation on customs regulation, to which only federal laws apply [32], the subjects of customs regulation are the bodies of the EAEU, as well as subjects of the Russian Federation endowed with the right of legislative initiative. Meanwhile, customs regulation is also carried out by the Federal Customs Service of Russia within its competence by issuing individual legal acts. However, such legal regulation is included in the concept of "control and supervision functions".[33]
Customs business
As mentioned earlier, one of the objects of customs regulation is public relations related to the regulation of customs affairs. The works of representatives of economic science do not contain any unambiguous approach to the definition of the concept of customs. Thus, V.V. Makrusev, E.A. Stepanov, I.P. Mikhailova, K.Y. Nesytykh, N.P. Paseshnik, N.V. Sumina and others considered customs business as "a system of customs institutions, organizations (customs authorities), processes (activities of customs authorities), customs services and customs personnel", in particular in this connection, customs business was naturally presented to these authors as a "phenomenon of a complex nature".[34][35][36] Meanwhile, in accordance with Federal Law No. 289-FZ of August 3, 2018, customs is a "set of methods and means" used by customs authorities to ensure compliance with customs and other legislation within the competence of customs authorities (see Figure 2). The substantive part of the customs case was also disclosed in the Customs Code of the USSR (approved by the Supreme Soviet of the USSR on 03/26/1991 No. 2052-1). In accordance with article 1 of this normative legal act, the customs case was "the procedure for moving goods and other items across the customs border of the USSR, customs taxation, clearance, control and other means of implementing customs policy." However, at present, customs "implements" not only customs policy, but also a wide range of other areas of state regulation (monetary policy, nuclear deterrence, etc.), which is reflected in the existing definition of customs as methods and means aimed at ensuring "compliance with the procedure and conditions for the import of goods into the Russian Federation, export of goods from the Russian Federation".[37] For example, the condition for moving dual-use goods across the State Border of the Russian Federation (performing a foreign economic operation) is to obtain a license or other permit document, the availability of which is checked, including through customs control, which in this case is the method of export control.[38] Conditions of a similar nature are veterinary, sanitary quarantine, quarantine phytosanitary, technical and other requirements. Finally, when using the concepts of "methods" and "means" together, in the first case, a technique, a method is meant [39], while in the second case, objects of the material environment necessary for carrying out any activity [40] (see Fig. 2).
Figure 2. The content of the customs case
There is no separate concept of "customs business" in the law of the EAEU, it is widely referred to only as part of the concept of "activities in the field of customs", given in the EAEU Customs Code, the distinctive feature of which is its control by customs authorities, as well as regulation of the EAEU Customs Code and the legislation of the EAEU member states. Meanwhile, the concept of "customs business" is contained in the main sources of customs law of the EAEU member States (with the exception of the Republic of Kazakhstan) and is generally defined as a set of methods, means, measures ensuring compliance with customs (and other) law and the implementation of customs policy (see Table No. 6).
Table No. 6. The concept of customs in the member States of the Eurasian Economic Union
The customs business has also undergone a number of changes within the framework of the customs law of the USSR, the Russian Federation and the EAEU. Table No. 7. The concept of customs in the customs codes of the USSR, the Russian Federation and the EAEU
Thus, customs business, customs policy and customs regulation are mutually dependent, jointly emerging, existing and developing phenomena. Customs business is a set of methods and means of conducting customs policy, objectified in normative legal acts through customs regulation, in practice.
Customs administration
The concept of "customs administration" is currently not legal or has a generally accepted meaning. Meanwhile, it is widely used in scientific literature, short-, medium- and long-term planning documents, documents on the results of the activities of customs authorities, judicial practice and other sources. Thus, in the Strategy for the Development of the Customs Service of the Russian Federation until 2030 (approved by Decree of the Government of the Russian Federation dated May 23, 2020 No. 1388-r, hereinafter referred to as the Strategy), achieving high–quality customs administration is indicated as part of the mission of the Federal Customs Service of Russia. At the same time, subsection 1 "Improving customs administration" of section IV "Main strategic directions for the development of the Customs Service of the Russian Federation" of the Strategy is devoted mainly to the model of an "intelligent" checkpoint based on a developed material and technical component, the introduction of promising technological solutions, that is, in other words, means of ensuring compliance with customs and other law within the competence of the customs authorities. The Strategy also states that "one of the priority areas for improving customs administration <...> is the introduction of modern integrated digital information technologies aimed at security and simplification of customs procedures," and the purpose of such administration is "to improve the mechanisms for automating customs operations and customs control based on the integration of information resources of the national data segment." In the Public Declaration of the Goals and Objectives of the Federal Customs Service of Russia for 2024, the achievement of high-quality customs administration is fixed as one of the four components of the mission of the Federal Customs Service of Russia. Speeding up and simplifying customs administration through digitalization and automation, and improving its quality are considered as tools to promote the development of foreign economic activity and ensure the completeness and timeliness of transferring customs and other payments to the federal budget, the collection of which is entrusted to customs authorities. Thus, the Final Report on the results and main activities of the Federal Customs Service of Russia in 2023 contains a separate section dedicated to improving customs administration. The measures implemented by the Federal Customs Service of Russia in this area include: - electronic declaration of the customs transit procedure; - creation of a promising risk management system model; - improvement of the system of categorization of participants in foreign economic activity; - increasing the capacity of checkpoints; - implementation of the mechanism of traceability of goods; - protection of intellectual property rights; - introduction of labeling of goods by means of identification; - digitalization of legal activity, etc., etc. Thus, the improvement of customs administration consists mainly in the introduction and development of promising technical and technological solutions, that is, means and methods of ensuring compliance with customs and other law, as well as the implementation of power relations between customs authorities and individuals, that is, customs affairs. In other words, customs administration is the performance by customs authorities of their assigned functions, specific actions aimed at implementing customs policy, customs and other law norms. As is known, the rule of law only "outlines a model of behavior" of persons, while "its direct implementation is provided by the state administration", this implementation is administration.[41] These theses are also confirmed in the scientific community. Thus, R.V. Davydov pointed out the performance of customs operations and customs control as indicators of customs administration. In addition, he shared the concept of "management processes" and "customs administration".[42] I.V. Minshina, M.S. Arabyan, T.V. Skudalova, O.A. Repushevskaya and other scientists also considered electronic declaration; automation of decisions made by customs authorities; the introduction of advanced technologies and the development of interdepartmental interaction and others as tools for improving customs administration and in other scientific works. [43][44] Meanwhile, a number of authors (S.F. Prushchak, O.Y. Bakaeva, M.V. Ivashchenko, V.A. Chernykh, M.V. Boikova, Meshechkina R.P., Vorona A.A.[45]) defined customs administration as "organizational and managerial activity" of customs authorities. However, this statement is not justified because: management is a purposeful influence of the subject of management on the object of management. Since the Federal Customs Service of Russia is an administrative body, that is, public administration bodies, all its activities are managed either within the system/structural divisions of customs authorities, or in relation to a controlled area – foreign economic activity; Management includes four components: planning, organization, motivation and control.[46] In this regard, from a logical and practical point of view, the concept of "organizational and managerial activity" will be a tautology within itself. For example, in this regard, some authors purposefully avoid the joint use of the concepts of "management and administration" in their works.[47] In addition, management in general is carried out mainly through the implementation of the "executive and administrative function"[48], that is, through the adoption of decisions and (or) orders that are mandatory, but not normative, and not through the improvement of customs affairs. Finally, the concept of "administration" is borrowed for the Russian language and even more so for the legislation of the Russian Federation on customs regulation. Meanwhile, the generalization of the results of the analysis of foreign sources of customs law, international documents in the field of customs affairs allowed us to conclude that the concept of "customs administration" (unlike the concept of "administration") is not borrowed, as was mistakenly indicated in the scientific community.[49] One of the illustrative examples confirming this thesis are the provisions of the Memorandum of Understanding dated June 17, 2016 between the Eurasian Economic Commission and the World Customs Organization (hereinafter referred to as the Memorandum) (see Table. № 8).
Table No. 8 Memorandum dated June 17, 2016 on Mutual Understanding between the Eurasian Economic Commission and the World Customs Organization
Thus, the concept of "customs administration" is used to denote (literally translated) the following concepts of the English language "customs regulation", "customs", "customs sphere", "customs matters"), however, there is no direct correspondence of any concept in the English version of the Memorandum to the concept of "customs administration". At the same time, both copies (editions) of the Memorandum indicate that "in case of discrepancies, the text in English is used," in connection with which the English version has semantic and legal priority. Meanwhile, when using the literal correspondence to the concept of "administration", a completely different term is used when translating into Russian (see Table. № 9). Table No. 9 International Convention on Simplification and Harmonization of Customs Procedures of May 18, 1973 (ratified by Federal Law No. 279-FZ of 11/03/2010)
Taking into account the above, in confirmation of the previously mentioned theses, "customs administration" is presented as the application by customs authorities of customs and other legislation, that is, the implementation by customs authorities of the functions assigned to them. The unpopularity of using the concept of "administration" is also reflected in other international documents. Thus, in the SAFE Framework Standards of the World Customs Organization (WCO), the concept of "administration" is used only once, while in the Russian version of the document a literal translation of this concept is used (see Table No. 10). In other cases, the concept of "administration", despite the volume of the document, is not present in both its editions, and the concept of "Customs administration (-s)" is used 171 times exclusively in the meaning of "customs administration (-s)". Table No. 10 SAFE Framework Standards (World Customs Organization, 2021)
Similar translation features are observed when comparing the Russian and English versions of the General Agreement on Tariffs and Trade (GATT 1947) (see Table No. 11).
Table No. 11 General Agreement on Tariffs and Trade (GATT 1947) (together with the WTO Agreement on Protective Measures)
In view of the above, the concept of "customs administration" should be considered as a result of the inaccuracy of the translation of international documents into Russian, subsequently perceived in national practice as a "novelty" in the field of customs. The practical inexpediency of using the term "customs administration" is confirmed by its absence in the Russian editions of 374 international treaties and other documents concluded by the Federal Customs Service of Russia (and the State Customs Committee of the Russian Federation) with 74 countries.[50] Finally, the term "customs administration" is missing from the Glossary of International Customs Terms published by the WCO in June 2024 and containing more than 180 customs terms and definitions (hereinafter referred to as the Glossary) [51] Meanwhile, almost all other terms such as "customs law" are present in the Glossary, "customs law", "customs control" ("customs control"), "customs formalities" ("customs formalities"), "customs procedures" ("customs procedure"), etc. It is worth noting that the Glossary contains a provision clarifying the essence of the concept of "customs administration" – "regulatory provisions enforced or administered by Customs administrations" – reflecting the law enforcement ("enforced") and supervisory ("administered") functions of customs authorities. Taking into account the above, since the administration (application and enforcement) of customs and other legislation is carried out by customs authorities through customs business, it is advisable to understand the implementation of customs business by the term "customs administration". Such implementation (that is, the application of methods and means) occurs through actions performed by customs authorities aimed, like customs business, at ensuring compliance with customs and other legislation, that is, customs control, as well as the implementation of power relations between customs authorities and persons exercising ownership of goods. However, it should be noted that "in the professional activities of customs officials, customs administration is understood as a single mechanism for regulating and implementing customs policy or a management system for legal relations of entities operating in the field of customs affairs."[52] This position is consistent with the practice of using the concept of "customs administration" in judicial acts (see, for example, the decision of the Court of the Eurasian Economic Union dated 31.10.2019 No. CE-1-2/6-19- AP, the decision of the Court of the Eurasian Economic Union dated 02/21/2017 N CE-1-1/1-16- BK, "Generalization of legal positions and the practice of the Court of the Eurasian Economic Union" (approved by the Department for Systematization of Legislation and Analysis of Judicial Practice of the Supreme Court of the Russian Federation), decision of the Arbitration Court of the Moscow District of August 11, 2023 in case No. A40-141611/2022, decision of the First Arbitration Court of Appeal of July 7, 2023 in case No. A43-5246/2023, decision of the Arbitration Court of the City of Moscow dated March 29, 2023 in case No. A40-273232/2022, etc.).
Customs law and customs legislation
Customs law, like law in general[53], is a theoretical and legal concept and represents a set of its sources, which include:[54][55] - regulatory legal acts (laws and by-laws);[56] - International agreements;[57] - Generally recognized principles and norms of international law; - legal customs;[58] - Judicial acts;[59] - documents adopted by international organizations;[60] - other sources. In modern conditions, the sources of customs law may also include consultations of customs authorities on the application of international treaties and acts in the field of customs regulation and other issues within the competence of customs authorities.[61] Thus, customs law is a set of all the sources that have developed to date (including individual provisions) that establish rules of conduct for subjects of the customs sphere. Customs legislation, as mentioned earlier, is a product of customs regulation. In this regard, the range of sources of customs legislation is limited by the normative acts of the subjects of customs regulation (the bodies of the EAEU, subjects of the Russian Federation with the right of legislative initiative, or the competence to adopt acts of a normative nature). It is worth noting that the concept of "customs legislation" is not enshrined in the law of the EAEU and the legislation of the Russian Federation. Meanwhile, in the law of the EAEU and the legislation of the Russian Federation, there is a concept of "legislation on customs regulation". Thus, the legislation of the Russian Federation on customs regulation consists of Federal Law No. 289-FZ dated 08/03/2018 and other federal laws adopted in accordance with it.[62] In other words, the concept of "legislation on customs regulation" refers exclusively to federal laws. However, the concept of "customs legislation" is widely used in international documents concluded by the Federal Customs Service of Russia (see Table 12).
Table 12 The concept of "customs legislation" in some international documents, prisoners of the Federal Customs Service of Russia (SCC of the Russian Federation)
Taking into account the above, customs legislation is a set of regulatory legal acts, the application and enforcement of which are entrusted to the customs authorities, including individual legal acts of a departmental nature adopted by customs authorities. In foreign experience, there are also cases of normative consolidation of the concept of "customs legislation". For example, in the European Union, "customs legislation" means a set of legislative acts that include: - The EU Customs Code and provisions supplementing or implementing it, adopted at the EU level or at the national level; - The Single EU Customs Tariff; - legislation establishing a system of exemption from customs duties within the EU; - International agreements containing customs provisions, to the extent that they are applicable in the EU. A similar definition of the concept of "customs law" is contained in the Glossary of International Customs Terms published by the WCO in June 2024[63] Thus, it is also advisable to include in the concept of "customs legislation" international treaties containing norms of customs law, the application and enforcement of which are entrusted to the customs authorities. Taking into account the above, the concepts of "customs law" and "customs legislation" in terms of their relationship can be presented as follows (see Fig. 3). Figure 3 Correlation of the concepts of "customs law" and "customs legislation"
Customs policy
A significant number of scientific papers have been devoted to the search for the essence and formulation of the most objective definition of the concept of "customs policy".[64][65][66][67][68] The results of their analysis and generalization of the positions of various authors allow us to formulate the following essential features of customs policy: - the customs policy comes from the state and is implemented by the state; - represents a system, on the one hand, of goals and principles, and, on the other hand, a set of measures (methods and means, i.e. customs) and actions for their implementation; - has a focus on the implementation, protection and promotion of the interests of the state, especially its economic policy; Customs policy is a part of economic, including foreign economic (foreign trade) policy. Thus, customs business is used to regulate foreign trade in goods openly (for example, the priority procedure for customs operations in relation to consumer goods and priority imports, reducing the frequency and frequency of application of forms of customs control, fixing the results of customs inspection indicating a reduced amount of information, etc.)[69], and behind the scenes (for example, the closure or suspension of the functioning of checkpoints across the customs border for political reasons, a purposeful increase in the timing of customs operations and customs control, depending on the country of origin of the goods, etc.). In other cases, under the conditions of the principles of equality of persons before the law, selectivity of objects of customs control based on a risk management system, etc., customs policy is limited only to customs business in terms of the implementation by customs authorities of their functions, which are: - fiscal (collection of customs and other payments); - control and supervision (conducting customs and other types of state control, ensuring compliance with customs and tariff regulation measures, prohibitions and restrictions, etc.); - law enforcement (prevention, detection and suppression of crimes and administrative offenses, anti-corruption, anti-money laundering); - maintaining customs statistics. The customs policy finds expression in a number of documents: - Strategies for the development of the Customs Service of the Russian Federation until 2030; - Public Declaration of the goals and Objectives of the Federal Customs Service of Russia; - Concepts of customs clearance and control in places close to the state border (appendix to the minutes of the meeting of the State Border Commission dated 07/09/2009 No. 1); - plans of activity of the Federal Customs Service of Russia, etc. In other words, customs policy is a conceptual reflection and practical embodiment of the will of the subject (state) in terms of a) regulation of foreign trade in goods through customs administration and b) customs administration proper.
Conclusion
Thus, based on the results of the conducted research, it is possible to formulate and present the following definitions of the basic concepts of customs law (see Table 13).
Table 13. Basic concepts of customs law
From a functional and practical point of view, the system of concepts of customs law can be presented as follows (see Appendix No. 1). Thus, the field of customs affairs acts as an area of public relations, in respect of which customs authorities apply methods and means of ensuring customs legislation. The field of customs affairs is equal to the field of customs relations. These areas include both administrative (power) relations between customs authorities and individuals, as well as relations between individuals, as well as individuals in the exercise of their ownership rights to goods transported across the customs border.
Appendix No. 1. Functional system concepts of customs law References
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2. Boikova, M.V. (Ed.). (2023). The terminological system of customs administration: methodology of formation and practice of application. Moscow, Russia: RIO of the Russian Customs Academy. 3. Boikova, M.V. (2019). The ratio of the categories "customs regulation" and "customs administration" in modern conditions. Bulletin of the Russian Customs Academy, 2, 126-133. 4. Skipper, A.A., & Kleimenova, A.N. (2024). Actual problems of interpretation of the sources of the EAEU law. Issues of Russian and international law, 4A, 256-266. 5. Skipper, A.A., & Kleimenova, A.N., & Burygin, A.A. (2024). The right of ownership in the system of customs procedures of the Eurasian Economic Union. Issues of Russian and international law, 2A, 106-121. 6. Agamagomedova, S.A. (2024). Customs supervision: options for administrative and legal justification. Bulletin of the Nizhny Novgorod University named after N.I. Lobachevsky, 3, 82-89. 7. Omelchenko, V.V. (2016). Systematization and analysis of the origins of the key concepts of public administration "supervision" and "control": Public administration: theory and practice. Bulletin of the RUDN, 7-19. 8. Kudilinsky, M.N. (2015). Control as a type of public management activity: towards the correlation of the concepts of "control" and "supervision". Sociology and Law, 1(27), 38-49. 9. Vitushkina, V.V. (2020). Correlation of the concepts of "state control", "state supervision" and their essence. Collection of scientific papers of the All-Russian student intramural scientific conference, 31-35. Rostov-on-Don. 10. Yachny, E.S. (2021). "Control" and "supervision" as categories of the theory of law: problems of definition and differentiation. Journal of Legal Studies, 1, 25-33. 11. Tsarkov, I.V. (2024) The concept and correlation of control and supervisory activities of executive authorities. 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Scientific notes of the St. Petersburg Bobkov World Bank branch of the Russian Customs Academy, 1(41), 89-104. 34. Chermyaninov, D.V. (2015). Decisions of the supreme courts of Russia as sources of customs law. Customs business, 1, 27-31. 35. Sidorov, V.N. (2012). Norms of "soft law" as a source of customs law of the Customs Union. State Audit. Right. Economy, 4, 161-165. 36. Boltochko, P.I. (2016). Customs policy: theoretical approaches. Materials of the XIV International Conference dedicated to the 94th anniversary of the Belarusian State University, 21-29. 37. Rogovets, K.N. (2018). Customs policy: essence and significance. Bulletin of the Grodno State University named after Yanka Kupala, 3, 101-114. 38. Bratsun, G.P., Dzyubenko, P. V., & Kislovsky, Yu. G. (1996) On the basic concepts of customs policy and current problems of its implementation. Theory, methodology and practice of customs affairs, 70-77. Mîscow, Russia: RIO MOUTH. 39. Saurenko, T.N. (2013) Customs policy as a tool for ensuring effective economic interaction of the member states of the Customs Union. Izv. S.-Petersburg. the University of Economics and Finance, 5, 74-79. 40. Lisov, A.F. (1996). Customs policy: a system of economic and administrative measures. Actual problems of modern customs policy of Russia, 15-19. Moscow, Russia: RIO MOUTH.
First Peer Review
Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
There are conclusions based on the results of the study ("Thus, according to the results of the conducted research, it is possible to formulate and present the following definitions of the basic concepts of customs law (see Table 13)"; "From a functional and practical point of view, the system of concepts of customs law can be presented as follows (see Appendix No. 1). Thus, the field of customs affairs acts as an area of public relations, in respect of which customs authorities apply methods and means of ensuring customs legislation. The field of customs affairs is equal to the field of customs relations. These areas include both administrative (power) relations between customs authorities and individuals, as well as relations between individuals, as well as individuals in the exercise of their ownership rights to goods transported across the customs border"), they are clear, specific, have the properties of reliability, validity and undoubtedly deserve the attention of the scientific community. The interest of the readership in the article submitted for review can be shown primarily by specialists in the field of customs law, provided that it is slightly improved: disclosure of the research methodology and elimination of violations in the design of the work.
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Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
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