The Proportionality Principle as a Tool for Achieving Balance of Interests in Tax Relations: Theory and Law Enforcement in Russia and abroad
Abstract
One of the problems of Russian tax science that we have to face in practice is the lack of clear legal mechanisms and forms of coordination of antinomic interests. The “balance of interests” construct is used as often as it is unintelligent in legal literature and judicial acts. Many questions remain unanswered: what exactly is the balance of interests and what are its criteria, how it is achieved, what tools and algorithms exist for this. The balancing itself is almost always implicit. Both in the theory of tax law and in practice, it is something new (terra incognita). Due to a lack of understanding of the essence of the balance and how to achieve it, in the absence of a developed methodology for assessing and weighing interests, tax hard cases are resolved more intuitively, based on the law enforcement officer's own ideas about what is due. This approach does not add legitimacy and openness to judicial acts, and often causes misunderstandings in the professional law community. The problem of subjectivism creates a real threat of infringement of the legitimate interests not only of the parties to tax relations, but also of the rule of law in general. The subject of this study is the principle of proportionality, which is considered as a methodological basis for achieving a balance of private and public interests in tax relations field. The aim of the work is to identify possibilities of the proportionality doctrine hidden from the Russian law enforcement, and thereby to add rationality to the issue of achieving (justifying) legal balance in the resolution of tax conflicts. With the help of dogmatic, comparative legal and other methods developed by legal science, instrumental potential of principle of proportionality is revealed. The article considers possibility of receiving achievements of foreign legal thought in the domestic theory of tax law and adapting it to practice of tax relations. The article analyzes the proportionality test (the structure of criterion and the content) in foreign and Russian jurisdictions. Additional requirements for the court to substantiate the conclusions of the decision are identified. With the help of a mathematical model, a problem of the commensurability of weight of the value of interests, as well as issue of formalization of the process of weighing interests, is investigated; the concept of the weight formula promoted by Robert Alexy is critically evaluated. The article analyzes application of principle of proportionality in foreign practice and in Russia. It is concluded principle mentioned is the legal embodiment of the Pareto-optimum principle.
References
Alexy R. (2010) A Theory of Constitutional Rights. N.Y.: Oxford University press, 462 p.
Alexy R. (2014) (a) Constitutional Rights, Democracy, and Representation. Ricerchegiuridiche, no 2, pp. 197-210.
Alexy R. (2014) (b) Constitutional Rights and Proportionality. Revus, no 22, pp. 51-65.
Alexy R. (2009) (a) On Constitutional Rights to Protection. Legisprudence: International Journal for the Study of Legislation, no 1, pp. 1-17.
Alexy R. (2017) Proportionality and Rationality In: Proportionality: New Frontiers, New Challenges. V. Jackson and M. Tushnet (eds.). Cambridge: University Press, 343 p.
Alexy R. (2009) (b) The Reasonableness of Law. In: Reasonableness and Law. G. Bongio-vanni et al (eds.). New York: Springer, 464 p.
Aristotle (2020) Nikomahovian ethics. Moscow-Berlin: Direct-Media, 222 p. (in Russian)
Avila H. (2007) Theory of legal principles. Berlin: Springer, 154 p.
Barak A. (2012) Proportionality. Constitutional Rights and their Limitation. Cambridge: University press, 612 p.
Barak A. (2005) Purposive interpretation in law. Princeton: University Press. 423 p.
Barak A. (1999) The Judicial Discretion. Moscow: Norma, 376 p. (in Russian)
Barak А. (2010) Proportionality and Principled Balancing. Law & Ethics of Human Rights, no 1, pp. 1-18.
Bazhanov A.A. (2018) Implementing principle of proportionality in judicial practice. Proceedings of the Institute of State and Law, no 6, pp. 124-157 (in Russian)
Belov S.A. (2012) The axiological justification of decisions as a manifestation of judicial activism of the Russian Constitutional Court. Sravnitelnoe konstitutcionnoe obozrenie, no 2, pp. 140-150 (in Russian)
Belov S.A. (2016) Rationality of judicial balancing of constitutional values with using proportionality test. Petersburgskiy jurist, no 1, pp. 63-75 (in Russian)
Blokhin P.D. (2012) Secretariat of the Constitutional Court of Russia and consideration of citizens and their associations complaints: issue of competence. Zhurnal konstitutcionnogo pravosudia, no 1, pp. 14-22 (in Russian)
Contreras P. (2012) National Discretion and International Deference in the Restriction of Human Rights: A Comparison Between Jurisprudence of the European and the Inter-American Court of Human Rights. Northwestern Journal of International Human Rights, issue 1, pp. 28-82.
Daragan A.V. (2018) Application of proportionality test when considering constitutional complaints. In: Research trends — jurisprudence. Materials of International Conference. Saint Petersburg: MOAN, pp. 17-20 (in Russian)
Dolzhikov A.V. (2015) A world of ideas and world of shadows: a historical-legal analysis of proportionality and the emergence of the phenomenon in a primitive society. Istoria gosudarstva i prava, no 15, pp. 14-19 (in Russian)
Dolzhikov A.V. (2020) Constitutional principle of proportionality: interdisciplinary approach. Vestnik Permskogo universiteta, no 47, pp. 6-27 (in Russian)
Dworkin R. (1975) Hard Cases. Harvard Law Review, no 6, pp. 1057-1109.
Gadzhiev G.A. (2019) On the principle of proportionality and constitutional cassation. Sudia, no 7, pp. 56-64 (in Russian)
Gartman N. (2002) The ethics. Saint Petersburg: Vladimir Dahl University, 707 p. (in Russian)
Grimm D. (2007) Proportionality in Canadian and German Constitutional Jurisprudence. University of Toronto Law Journal, no 2, pp. 383-397.
Harbo T. (2015) The Function of Proportionality Analysis in the European Law. Leiden — Boston: Brill — Nijhoff, 331 p.
Klatt M. (2011) Positive Obligations under the European Convention on Human Rights. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 71, pp. 691-718.
Korkunov N.M. (2010) General theory of law. Moscow: Rosspen, 520 p. (in Russian)
Kosla M. (2011) Proportionality: encroachment on human rights? Answer toTsakirakis. Sravnitelnoe konstitutionnoe obozrenie, no 5, pp. 58-66 (in Russian)
Lapaeva V.V. (2013) Criteria for restricting human and civil rights in the Russian Federation Constitution. Gosudarstvo i pravo, no 2, pp. 14-24 (in Russian)
Lazarev V.V. (2018) Restriction of law by court decision. Zhurnal rossiyskogo prava, no 6, pp. 5-16 (in Russian)
Leonov A.V. (2016) The concept, essence and genesis of the principle of proportionality in law. Yuridicheskaya mysl, no 4, pp. 18-23 (in Russian)
Lopatnikova E.A., Kucherov I. I. (eds.) (2012) Implementation of the principles of tax law. Moscow: Jurisprudence, 160 p. (in Russian)
Manzhosov S. (2019) Following precedent in the conditions of balancing. Sravnitelnoe konstitutcionnoe obozrenie, no 6, pp. 61-85 (in Russian)
Mikhailov A.A. (2016) The principle of proportionality: the essence, practice of application by the ECHR, the Constitutional Court of Russia and the significance for improving the system of evidence in the modern criminal process of Russia. Ugolovnaya justitcia, no 1, pp. 56-69 (in Russian)
Matskevich I.M. (2019) Intellektologiyaprava. Preliminary results of mathematical modeling of the law. Monitoring pravoprimeneniya, no 1, pp. 4-15 (in Russian)
Morozova L.A. (1998) Principles, limits, grounds for restricting human rights and freedoms under Russian legislation and international law: materials of the round table. Gosudarstvo i pravo, no 7, pp. 20-42 (in Russian)
Perju V. (2017) Proportionality and Stare Decisis: Proposal for a New Structure. In: Forthcoming Proportionality: New Frontiers, New Challenges. Cambridge: University Press, 343 p.
Petersen N. (2017) Proportionality and judicial activism: fundamental rights adjudication in Canada, Germany and South Africa. Cambridge: University Press, 258 p.
Sasov K.A. (2013) Tax justice in decisions of the Constitutional Court of the Russian Federation. Moscow: Norma, 256 p. (in Russian)
Shlink B. (2012) Proportionality to the problem of the balance of fundamental rights and public goals. Sravnitelnoe konstitutionnoe obozrenie, no 2, pp. 56-76 (in Russian)
Shustrov D.G. (2013) The hierarchy of constitutional values. Konstitutcionnoe i municipalnoe pravo, no 6, pp. 6-15 (in Russian)
Sullivan E., Frase R. (2009) Proportionality Principles in American Law: Controlling Excessive Government Actions. Oxford: OUP, 284 p.
Sultanov A.R. (2007) On taxation of income received from the sale of shares. Nalogovye spory: teoriya i praktika, no 7, pp. 34-38 (in Russian)
Timoshina E.V., Belyaev M.A. (eds.) (2016) Legal regulation in a situation of competition of human rights: the concept of “embroidery” of R. Alexy. In: Legal regulation: efficiency, legitimacy, justice: proceedings of the International Conference. Voronezh: UNIPRESS, 624 p. (in Russian)
Timoshina E.V., Krayevsky A.A., Salmin D.N. (2015) Methodology of judicial interpretation: weighing tools in the situation of human rights competition. Vestnik Petersburgskogo universiteta, no 3, pp. 4-34 (in Russian)
Troitskaya A. (2015) Limits of rights and absolute rights: beyond the principle of proportionality? Theory and practice of the Constitutional Court. Sravnitelnoe konstitutcionnoe obozrenie, no 2, pp. 45-69 (in Russian)
Tsakirakis S. (a) (2011) Proportionality: encroachment on human rights? Sravnitelnoe konstitutcionnoe obozrenie, no 2, pp. 47-66 (in Russian)
Tsakirakis S. (b) (2011) Proportionality: encroachment on human rights? Response to the article by Madhav Kosla. Sravnitelnoe konstitutcionnoe obozrenie, no 5, pp. 67-70 (in Russian)
Urbina F. (2017) A Critique of Proportionality and Balancing. Cambridge: University press, 267 p.
Wintr J. (2016) Alexy hovážící formuli. Pravnik, no 5, pp. 446-461.
Wöhrer V. (2018) Data Protection and Taxpayers' Rights: Challenges Created by Automatic Exchange of Information. Amsterdam: IBFD, 506 p.
Copyright (c) 2021 Law Journal of the Higher School of Economics
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.
