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Monitoring of the Federal Legislation dated 29.12.2006
Ruling of the Constitutional Court of the Russian Federation No. 407-O of October 3, 2006 on the Appeals of Citizens M.K.Vandaryeva, N.A.Zhurba, V.A.Kondrashova and Z.I.Marchenko against Violation of Their Constitutional Rights by Item 8 of Article 12 of the Federal Law on the Obligatory Social Insurance against Industrial Accidents and Occupational Diseases
The Constitutional Court of the Russian Federation recognised that the provision of Item 8 of Article 12 of the Federal Law on the obligatory social insurance against industrial accidents and occupational diseases (in the wording of the Federal Law No. 118-FZ of July 7, 2003) may not be regarded as depriving of the right for the monthly insurance payment in case of death of the insured not engaged in labour relations as of the moment of death for the incapacitated persons being his dependants or having received such aid from him that appeared to be their permanent and main source of existence. The Decision was stipulated by the available practice when the regional bodies of the Social Insurance Fund of the Russian Federation refused monthly insurance payments because of the death of the husband to citizens receiving labour pensions in the amounts lower than the monthly insurance payments and labour pensions paid out to their husbands stating that they do not have the right for such payments.
The court explained that the right for insurance payments because of the death of the insured is associated with the disability of this person and being dependent on the deceased, with the normative content of the notions of "disability" and "dependence" being defined in other Federal Laws. Nevertheless, the Federal Law on the obligatory social insurance against industrial accidents and occupational diseases proceeds from the notion of "dependence" accepted in the actual legislation as being fully supported by the breadwinner or receiving the aid from him being the permanent and main source of existence.
The challenged provision, proceeding from its position in the Federal Law and the normative content, specifies only the procedure of calculation of the amount of the monthly insurance payment and does not define either the event where the federal legislator associates opportunities of getting insurance payments by the persons nominated in the Federal Law or the circle of subjects of this right.
The provision while specifying that the legal regulation contained in it pertains to persons entitled for insurance payments in case of death of the insured refers the judicial bodies to Article 7 of the Law specifying the circle of subjects and the terms of obtaining of the mentioned right. The circle of subjects of the mentioned right envisaged in Article 7 of the Law in the basic wording did not change later.
Provisions of the given Article did not change also when the Federal Law No. 118-FZ of July 7, 2003 was adopted. Hence, excluding the words "pension, life-time subsistence and other similar payments received during his life" from the provision of Item 8 of Article 12 of the Law may not be regarded as implying the change, as compared to the previous legal regulation, of the circle of subjects of the right for insurance payments in case of death of the insured, as well as the terms of its occurrence.
The court explained that the right for insurance payments because of the death of the insured is associated with the disability of this person and being dependent on the deceased, with the normative content of the notions of "disability" and "dependence" being defined in other Federal Laws. Nevertheless, the Federal Law on the obligatory social insurance against industrial accidents and occupational diseases proceeds from the notion of "dependence" accepted in the actual legislation as being fully supported by the breadwinner or receiving the aid from him being the permanent and main source of existence.
The challenged provision, proceeding from its position in the Federal Law and the normative content, specifies only the procedure of calculation of the amount of the monthly insurance payment and does not define either the event where the federal legislator associates opportunities of getting insurance payments by the persons nominated in the Federal Law or the circle of subjects of this right.
The provision while specifying that the legal regulation contained in it pertains to persons entitled for insurance payments in case of death of the insured refers the judicial bodies to Article 7 of the Law specifying the circle of subjects and the terms of obtaining of the mentioned right. The circle of subjects of the mentioned right envisaged in Article 7 of the Law in the basic wording did not change later.
Provisions of the given Article did not change also when the Federal Law No. 118-FZ of July 7, 2003 was adopted. Hence, excluding the words "pension, life-time subsistence and other similar payments received during his life" from the provision of Item 8 of Article 12 of the Law may not be regarded as implying the change, as compared to the previous legal regulation, of the circle of subjects of the right for insurance payments in case of death of the insured, as well as the terms of its occurrence.
Federal Law No. 241-FZ of December 27, 2006 on the Amendment to Article 8 of the Federal Law on the Entry into Force of the Code of Criminal Procedures of the Russian Federation
The time limit for introduction of the jury court on the territory of the Chechen Republic is shifted from January 1, 2007 as was envisaged earlier to January 1, 2010.
The need to shift the mentioned time limits is stipulated by the following reasons.
The lists of candidates in the jury court are compiled by the executive and administrative bodies of municipal formations separately for each municipal formation of the subject of the Russian Federation. Municipal formations are not yet created on the territory of the Chechen Republic and the bodies of local government are not yet formed. Organisational and legal measures and the necessary period of time are required for creation of municipal formations and their management bodies. In particular, it is necessary to create an appropriate legal basis at the federal level and the level of the Chechen Republic, carry out elections to the bodies of local government of municipal formations in the Chechen Republic, specify the time limits for the transfer of the authority from the Chechen Republic and their officials to implement the issues of local significance.
A result of the prolongation of the time limit of introduction of the jury court will include prolongation of the moratorium for the capital punishment until 2010, since, according to explanations of the Constitutional Court of the Russian Federation available in the Decision No. 3-P of February 2, 1999, the capital punishment may not be applied until the accused have opportunities to present their case in the jury court on the whole territory of the Russian Federation.
The Federal Law is entered into force from the day of its official publication.
The need to shift the mentioned time limits is stipulated by the following reasons.
The lists of candidates in the jury court are compiled by the executive and administrative bodies of municipal formations separately for each municipal formation of the subject of the Russian Federation. Municipal formations are not yet created on the territory of the Chechen Republic and the bodies of local government are not yet formed. Organisational and legal measures and the necessary period of time are required for creation of municipal formations and their management bodies. In particular, it is necessary to create an appropriate legal basis at the federal level and the level of the Chechen Republic, carry out elections to the bodies of local government of municipal formations in the Chechen Republic, specify the time limits for the transfer of the authority from the Chechen Republic and their officials to implement the issues of local significance.
A result of the prolongation of the time limit of introduction of the jury court will include prolongation of the moratorium for the capital punishment until 2010, since, according to explanations of the Constitutional Court of the Russian Federation available in the Decision No. 3-P of February 2, 1999, the capital punishment may not be applied until the accused have opportunities to present their case in the jury court on the whole territory of the Russian Federation.
The Federal Law is entered into force from the day of its official publication.
Federal Law No. 240-FZ of December 27, 2006 on the Ratification of the International Convention against Doping in Sports
Ratifies the International Convention against doping in sports adopted by the UNESCO General Conference at the 33d Session in Paris on October 19, 2005.
Before the adoption of the mentioned Convention, the only international legal document against doping in sports was the Convention against doping of the Council of Europe but, while being ratified by 46 states, mainly the European ones, it is not comprehensive.
The adopted International Convention against doping in sports provides the states with a legal basis for coordinated actions at the international level to combat this phenomenon affecting ethic and social values in sports and jeopardising the life of sportsmen. The adopted document goes beyond the anti-doping control and sanctions. It inspires the countries having adopted it to "support, work out and implement anti-doping programs" explaining the dangers of it to the population, promote ethic values in sports, inform sportsmen, coaches and doctors of the liability in case of use of prohibited preparations.
As to the control and sanctions, this international document envisages assuming uniform rules on the obligatory basis for all sportsmen in the world, regular control and the same liability for all in case of violations.
Before the adoption of the mentioned Convention, the only international legal document against doping in sports was the Convention against doping of the Council of Europe but, while being ratified by 46 states, mainly the European ones, it is not comprehensive.
The adopted International Convention against doping in sports provides the states with a legal basis for coordinated actions at the international level to combat this phenomenon affecting ethic and social values in sports and jeopardising the life of sportsmen. The adopted document goes beyond the anti-doping control and sanctions. It inspires the countries having adopted it to "support, work out and implement anti-doping programs" explaining the dangers of it to the population, promote ethic values in sports, inform sportsmen, coaches and doctors of the liability in case of use of prohibited preparations.
As to the control and sanctions, this international document envisages assuming uniform rules on the obligatory basis for all sportsmen in the world, regular control and the same liability for all in case of violations.
Decision of the Government of the Russian Federation No. 803 of December 25, 2006 on the Amendment to the Decision of the Government of the Russian Federation No. 863 of December 28, 2004
Introduces additional amendments to the Decision of the Government of the Russian Federation No. 863 of December 28, 2004 specifying the rates of the customs duties for the customs registration of commodities, including the transport vehicles, moved across the customs border of the Russian Federation as commodities.
Specifies the procedure of determination of the rates for exported commodities, where the customs duties and taxes are not specified, proceeding from their customs cost.
For the given commodities, the price is used that was actually paid or due for payment for the mentioned commodities and indicated in the invoice drawn up for the transaction which is recalculated into roubles. When declaring the customs regime of export for the mentioned commodities in other transactions, the cost of these commodities is used as provided in the commercial and other documents pertaining to these commodities which is recalculated into roubles.
The Decision is entered into force no sooner than one month after the day of its official publication.
Specifies the procedure of determination of the rates for exported commodities, where the customs duties and taxes are not specified, proceeding from their customs cost.
For the given commodities, the price is used that was actually paid or due for payment for the mentioned commodities and indicated in the invoice drawn up for the transaction which is recalculated into roubles. When declaring the customs regime of export for the mentioned commodities in other transactions, the cost of these commodities is used as provided in the commercial and other documents pertaining to these commodities which is recalculated into roubles.
The Decision is entered into force no sooner than one month after the day of its official publication.
Decision of the Government of the Russian Federation No. 800 of December 25, 2006 on the Amount of the Lumpsum Allowance That May Be Handed out to Convicts Released from the Places of Imprisonment
The amount of the lumpsum allowance that may be handed out to convicts released from the places of imprisonment is fixed in the amount of Rbl 720.
The Decision is entered into force from January 1, 2007.
The Decision is entered into force from January 1, 2007.
Decision of the Government of the Russian Federation No. 798 of December 23, 2006 on the Endorsement of the Procedure of Submission of the Notification of Attraction and Use of for the Purposes of Employment of Foreign Citizens Having Arrived to the Russian Federation According to the Procedure That Does Not Require a Visa
Specifies the procedure of submission by the employer and/or the party ordering works (services) of the notification of attraction and use for the purposes of employment of foreign citizens having arrived to the Russian Federation according to the procedure that does not require obtaining the visa.
The employer and/or the party ordering works (services) must notify within the time limits not greater than 10 days from the day of conclusion of the contract with the mentioned workers the territorial body of the federal body of executive power in change of migration and the body of executive power in charge of employment issues according to provided form.
The Decision is entered into force from January 15, 2007.
The employer and/or the party ordering works (services) must notify within the time limits not greater than 10 days from the day of conclusion of the contract with the mentioned workers the territorial body of the federal body of executive power in change of migration and the body of executive power in charge of employment issues according to provided form.
The Decision is entered into force from January 15, 2007.
Decision of the Government of the Russian Federation No. 797 of December 23, 2006 on the Endorsement of the Regulation on the Licensing of Activities Pertaining to Employment of the Citizens of the Russian Federation Abroad
Endorses a new Regulation defining the procedure of licensing of activities pertaining to employment of citizens of the Russian Federation abroad carried out by Russian legal entities. The authority of licensing of activities of employment abroad is vested in the Federal Migration Service. The licensing applies to the following types of activities of employment abroad: assistance to the citizens of the Russian Federation in finding a paid job with a foreign employer abroad, obtaining employment permission in the foreign state, concluding a labour contract with a foreign employer.
The Decision specifies the license requirements and terms to carry out activities of employment abroad. Provides a new list of documents sent by the applicant to the licensing body: apart from the application, the applicant submits copies of labour-books; copies of diplomas of education; copies of documents confirming the presence with the applicant of the rooms for the licensed activities possessed by him on the proprietary basis or on other legal grounds.
The Decision regulates the procedure for the licensing body to carry out the check of completeness and correctness of information on the applicant contained in the presented documents, as well as the check of opportunities to fulfil the license requirements and terms with the applicant.
In contrast to the earlier available Regulation, there is a list of major violations of the license requirements and terms. The new Regulation does not contain information on the procedure of keeping of the register of licenses.
The Decision of the Government of the Russian Federation No. 424 of June 14, 2002 on the endorsement of the Regulation on the licensing of activities pertaining to employment of citizens of the Russian Federation abroad is invalidated. Also invalidated are provisions of amendments pertaining to the state registration of legal entities; the list of the documents presented by the applicant to the licensing body will not include copies of constituent documents and the document confirming the entry of the record of the legal entity in the Joint State Register of Legal Entities, as well as the register of licenses will not show such information on the license holder as the name and organisational and legal form, number of the document confirming the fact of entry of the record of the legal entity in the Joint State Register of Legal Entities, place of location.
The Decision specifies the license requirements and terms to carry out activities of employment abroad. Provides a new list of documents sent by the applicant to the licensing body: apart from the application, the applicant submits copies of labour-books; copies of diplomas of education; copies of documents confirming the presence with the applicant of the rooms for the licensed activities possessed by him on the proprietary basis or on other legal grounds.
The Decision regulates the procedure for the licensing body to carry out the check of completeness and correctness of information on the applicant contained in the presented documents, as well as the check of opportunities to fulfil the license requirements and terms with the applicant.
In contrast to the earlier available Regulation, there is a list of major violations of the license requirements and terms. The new Regulation does not contain information on the procedure of keeping of the register of licenses.
The Decision of the Government of the Russian Federation No. 424 of June 14, 2002 on the endorsement of the Regulation on the licensing of activities pertaining to employment of citizens of the Russian Federation abroad is invalidated. Also invalidated are provisions of amendments pertaining to the state registration of legal entities; the list of the documents presented by the applicant to the licensing body will not include copies of constituent documents and the document confirming the entry of the record of the legal entity in the Joint State Register of Legal Entities, as well as the register of licenses will not show such information on the license holder as the name and organisational and legal form, number of the document confirming the fact of entry of the record of the legal entity in the Joint State Register of Legal Entities, place of location.
Decision of the Government of the Russian Federation No. 784 of December 22, 2006 on the Endorsement of the Regulation on the Licensing of Activities in the Sphere of Aviation Safety
Defines the procedure of licensing of activities in the sphere of aviation safety carried out by legal entities and independent entrepreneurs. The licensing of the mentioned activities is vested in the Federal Service of Enforcement in the Sphere of Transport, the license is granted for 5 years.
Specifies the license requirements and terms to carry out the activities in the sphere of aviation safety. Among them are: observation by the license holder of the rules and international standards of aviation safety; presence with the license holder (applicant) of an endorsed program of aviation safety, as well as equipment and technical means to ensure aviation safety; presence on the payroll of the official in charge of the aviation safety.
Lists the documents necessary for obtaining the license, defines the cases of major violations of the license requirements and terms implying calling to account. These include, in particular, violations having resulted in casualties, damage to health, capture of the air vessel, damage to the environment.
Information pertaining to activities in the sphere of aviation safety shall be placed free of charge on the gratuitous basis in the official electronic and printed media of the licensing body.
Specifies the license requirements and terms to carry out the activities in the sphere of aviation safety. Among them are: observation by the license holder of the rules and international standards of aviation safety; presence with the license holder (applicant) of an endorsed program of aviation safety, as well as equipment and technical means to ensure aviation safety; presence on the payroll of the official in charge of the aviation safety.
Lists the documents necessary for obtaining the license, defines the cases of major violations of the license requirements and terms implying calling to account. These include, in particular, violations having resulted in casualties, damage to health, capture of the air vessel, damage to the environment.
Information pertaining to activities in the sphere of aviation safety shall be placed free of charge on the gratuitous basis in the official electronic and printed media of the licensing body.
Decision of the Government of the Russian Federation No. 783 of December 22, 2006 on the Procedure of Determination by the Executive Bodies of State Power of the Need to Attract Foreign Workforce and Generate the Quotas for Employment of Foreign Workforce in the Russian Federation
Attracting foreign workforce is arranged on the basis of quotas generated by the bodies of executive power of the Russian Federation and subjects of the Russian Federation for invitations handed out to foreign citizens for employment and the quotas for permissions to work handed out to foreign citizens having arrived to the Russian Federation according to the procedure that does not require obtaining the visa. The quotas are generated on the basis of proposals of employers and the parties ordering works (services), including the foreign citizens registered as independent entrepreneurs, attracting foreign citizens for employment.
For this purpose, employers shall submit on the annual basis before May 1 to the authorised bodies of the subjects of the Russian Federation a request for the needed foreign workforce to occupy vacant and created positions in the next year drawn up to the form endorsed by the Ministry of Public Health and Social Development of Russia.
The Decision provides the rules of adjustment of quotas.
The Decision is entered into force from January 15, 2007.
For this purpose, employers shall submit on the annual basis before May 1 to the authorised bodies of the subjects of the Russian Federation a request for the needed foreign workforce to occupy vacant and created positions in the next year drawn up to the form endorsed by the Ministry of Public Health and Social Development of Russia.
The Decision provides the rules of adjustment of quotas.
The Decision is entered into force from January 15, 2007.
Decision of the Presidium of the Higher Arbitration Court of the Russian Federation No. 11253/06 of November 14, 2006
The dispute was stipulated by the challenged Letter of the Federal Tax Service of Russia No. MM-6-03/18@ of January 13, 2006 having explained the legality of reimbursement of the value added tax paid at the purchase of services of transportation of exported commodity. The Presidium of the Higher Arbitration Court of the Russian Federation recognised that the lower instance could not process the dispute, since the challenged act is not of normative legal nature having specified the following.
In the actual system of legal regulation, the Federal Tax Service of Russia may not adopt (issue) normative legal acts in the sphere of taxes and fees. Moreover, according to Item 2 of the rules of preparation of the normative legal acts of the federal bodies of executive power and their state registration endorsed by the Decision of the Government of the Russian Federation No. 1009 of August 13, 1997, adoption of normative legal acts in the form of letters and telegrams is not permitted.
By sending the mentioned Letter to the territorial tax bodies, the Federal Tax Service conveyed to them their position on the issue of legality of reimbursement of the value added tax paid at the purchase of services of transportation of exported commodity. Therefore, the provisions of the Letter may not be regarded as the ones specifying the rules of conduct obligatory for the tax bodies to be applied on the permanent basis while implementing the functions of tax control.
The tax bodies may not demand observation of these rules by the taxpayers (tax agents). Thus, by virtue of Article 4 of the Tax Code of the Russian Federation, the challenged Letter must not entail legal consequences, since it does not meet the criteria permitting to recognise it as a normative legal act.
In such circumstances, application for the invalidation of individual provisions of the mentioned Letter should not have been processed in the Higher Arbitration Court of the Russian Federation, their sphere of reference being the cases of normative legal acts of the federal bodies of executive power.
In the actual system of legal regulation, the Federal Tax Service of Russia may not adopt (issue) normative legal acts in the sphere of taxes and fees. Moreover, according to Item 2 of the rules of preparation of the normative legal acts of the federal bodies of executive power and their state registration endorsed by the Decision of the Government of the Russian Federation No. 1009 of August 13, 1997, adoption of normative legal acts in the form of letters and telegrams is not permitted.
By sending the mentioned Letter to the territorial tax bodies, the Federal Tax Service conveyed to them their position on the issue of legality of reimbursement of the value added tax paid at the purchase of services of transportation of exported commodity. Therefore, the provisions of the Letter may not be regarded as the ones specifying the rules of conduct obligatory for the tax bodies to be applied on the permanent basis while implementing the functions of tax control.
The tax bodies may not demand observation of these rules by the taxpayers (tax agents). Thus, by virtue of Article 4 of the Tax Code of the Russian Federation, the challenged Letter must not entail legal consequences, since it does not meet the criteria permitting to recognise it as a normative legal act.
In such circumstances, application for the invalidation of individual provisions of the mentioned Letter should not have been processed in the Higher Arbitration Court of the Russian Federation, their sphere of reference being the cases of normative legal acts of the federal bodies of executive power.
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