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As manuscript
Moser Sergey
ADMINISTRATIVE-LEGAL REGIME OF THE CUSTOMS ACTIVITY
OF TRANSDNIESTRIAN MOLDAVIAN REPUBLIC
Speciality 12.00.14 – administrative law, financial law, informational law
THE AUTHOR’S ABSTRACT OF DISSERTATION
Doctoral thesis
Lyubertsy – 2010
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The work is executed in the Research Center of the State Educational Institution of the Higher Professional Education «The Russian Customs Academy».
Scientific adviser: Professor
Mr. Shuruhnov Nikolay Grigorevich, Ph.D
Official opponents: Professor
Mr. Petrov Simeon Mihajlovich, Ph.D
Mr. Kravtsov Victor Mironovich, Ph.D
The leading organization: «The Moscow Academy of business of Moscow
Government»
The defense will take place on October, 20th, 2010 at 14 o’clock at session of the Council on defense of doctor’s and Ph.D theses Д 310.001.02 at The State Educational Institution of the Higher Professional Education «The Russian Customs Academy» by address: 140009, Lyubertsy Moscow Region, Komsomol prospect 4, audience 233 (Academic Council boardroom).
It is possible to familiarize with the dissertation in the library of the State Educational Institution of the Higher Education «The Russian Customs Academy».
The author’s abstract is distributed on September, 13th, 2010.
Scientific secretary of The Dissertational Council
Doctor. I.S.Barzilova
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GENERAL CHARACTERISTIC OF THE WORK
Actuality of scientific research. The need of research of the administrative-legal regime of the customs activity of Transdniestrian Moldavian Republic (TMR)[1] is caused by absence of complex analysis of the administrative-legal and organizational-technological measures applied concerning export-import transactions of Transdniestria in the context of customs law, and also of existing regional precedents.
It is necessary to underline that for years a number of measures of administrative influence were applied to the organization of customs activity of TMR by customs bodies of Republic of Moldova (RМ), such as customs blockade or its separate elements interfering moving of the goods. In this connection since 1996 a special administrative-legal construction, allowing Transnistria to carry out customs regulation independently, was created in the region with assistance of the countries-guarantors. Despite it the measures of economic isolation periodically continued to be applied in respect of Transnistrian Moldavian Republic, what affects its administrative-legal regime of the customs activity (ALR CA TMR).
The administrative-legal specificity of regime of the customs activity in the region, caused by Moldova-Transnistrian contradictions in this question, is studied insufficiently; there are no integrated recommendations about this problematic. In this connection a considerable part of the experts of customs profile has no systematized materials; there is no generalized experience of the activity of the foreign states in Russian administrative and customs law.
The performance of complex scientific research of the operating administrative-legal regime of the customs activity of TMR, the analysis of administrative-legal approaches to the resolution of existing problems, the development of recommendations on activity of customs bodies in conditions of
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specified mode are of interest for the activity of Russian customs bodies, and also customs bodies of the countries with legal status similar to Transnistria.
The specified circumstances cause an actuality of a dissertational research theme.
Degree of developing of a research theme. Specificity and features of the special administrative-legal regimes in Russia are considered in dissertational works executed last years: Blagov A.D. Administrative-legal regime of weapon turnover in Russian Federation. – М, 2007; Vasilevskaya D.V. Administrative-legal regimes of subsoil in Russian Federation: problems of theory and practice. – М, 2008; Dolgopolov A.A. Theoretical and organizational bases of administrative-legal regimes of the weapons and explosives circulation in Russian Federation. – М, 2007; Zdorovtseva A.A. Administrative-legal regime of water objects. – Khabarovsk, 2002; Lagutkina N.B. Administrative-legal regime of the especially protected natural territories. – Khabarovsk, 2006; Lermontov N.V. Administrative-legal regime in the public management system. – М, 2009; Mailjan S.S. Administrative-legal regimes in the theory of administrative law and practice of the government of law-enforcement activity. – М, 2002; Popova N.N. Administrative-legal regimes of special territories in the Russian Federation – М, 2004; Rushailo V.V. Special administrative-legal regimes in the Russian Federation. – М, 2004.
Some aspects of the customs activity are also considered in dissertational researches: Ivanov M. K. Perfection of activity of the customs service of Russia at present stage: sociological analysis. – М, 2002; Kochubey M. A. Criminological and criminally-legal maintenance of economic safety of the Russian Federation in sphere of the customs activity. – М, 2005; Samoilov A.V. Administrative-legal status and perfection of the activity of customs service in conditions of administrative reform. – М, 2008; Jun A.E. The adaptive mechanism of creation of information infrastructure of the customs activity management. – М, 2001.
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Separate aspects of the declared theme are considered in the following dissertations: Vershinina I.M. Feature of interstate cooperation on the settlement of the conflicts on the post-Soviet territory: the example of Abkhazia, South Ossetia, Transnistria: 1992-2007 – М, 2008; Zhuravlyov V. E. The administrating by social processes in conditions of conflict: example of Transnistria. – М, 2005; Kolosov V. A. The USSR, the Russian Federation and the Transnistrian conflict. – Rostov-on-Don, 2007; Tolkachyova A.N. Ethno-regional conflicts in Ukraine and Moldova in the early nineties: comparative analysis of Crimea and Transnistria. – Perm, 2005; Umanets S.A. The formation and realization of mechanism of development of industrial production: on the materials of Transnistria. – St. Petersburg, 2005.
However the analysis of mentioned researches shows that the theme designated by us has not been yet investigated in complex. Administrative-legal regime of the customs activity of Transdniestrian Moldavian Republic wasn’t an object of independent consideration in the context of theoretical and legal questions of crisis settlement in customs sphere.
Object of dissertational research is legal relationships developing at realization of the customs and foreign trade activities of Transdniestrian Moldavian Republic, stipulated by autonomy of Transdniestria in the external economic sphere, and also by special order of moving of the goods and vehicles across the administrative (customs) border.
Subject of the research consists of the administrative-legal rules, regulating the mode of the customs activity of the state-territorial entity, not authorized with international legal personality — Transdniestrian Moldavian Republic.
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Research frames. The subject of the research is considered in two aspects – territorial and temporal. In the first case the research subject is the administrative territory of Transdniestrian Region, to which the special regime rules of realization of the foreign trade activity are applied. Temporal borders consist of two time intervals: 1) period 1992-2001 is characterized by the active work of the Moldavian and Transdniestrian parties on creation of legal regulation of the customs activity of TMR; 2) 2001 until now – the unilateral introduction by the Republic of Moldova of the new regime rules relating the Transdniestrian export and absence of a progress in a current situation settlement.
Purpose and tasks of research. The purpose is the working out of theoretical and practical recommendations directed to perfection of administrative-legal regime of the customs activity of Transdniestrian Moldavian Republic.
Achievement of the specified purpose is provided with solution of the following tasks, namely:
1) carrying out of analysis of the system of administrative-agreements in customs sphere of TMR, and also projects of the documents connected with stabilization and legal fastening of administrative-legal regime of the customs activity of Transdniestrian Moldavian Republic;
2) revealing of the conditions and grounds of changing of administrative-legal regime of the customs activity of TMR, and also legal consideration of the administrative-legal acts, which have entailed such changes;
3) studying (within the limits of comparative administrative jurisprudence) the specificity of regional precedents of administrative-legal regimes of the customs activity of the state-territorial entities, which have not been granted the international legal personality: Taiwan, Hong Kong, Macao, Turkish Republic of Northern Cyprus, etc.;
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4) generalization of theoretical and scientific resources on the investigated questions;
5) substantiation of the general signs, character for Transdniestrian Moldavian Republic and other state-territorial entities, the availability of which is enough for granting a region (territorial entity) a special legal personality to administer independently the export-import transactions;
6) working out the scientifically-proved recommendations on perfection of administrative-legal regime of the customs and foreign trade activities of TMR.
Methodology and research technique. Methodological basis of scientific research was a dialectic method of cognition, and also the system of general scientific and private-scientific methods based on it, in particular: historical, comparative-legal, logic, a method of content-analysis and others.
The historical method is used at research of the process of formation of the system of administrative agreements in customs sphere of Transdniestrian region (chapter 1, §2), conditions and the grounds of changing of administrative-legal regime of the customs activity of TMR (chapter 1, §3), comparative-legal – at studying of the question of harmonization of customs relations of Transnistria and Moldova (chapter 2, §2), regional precedents (chapter 3, §1), and also contradictions of administrative-legal regulation of the joint customs control (chapter 2, §3), logic – during the theoretical analysis of maintenance and definition of the concepts constituent the object of research (chapter 1, §1; chapter 2, §1), a content-analysis method – at studying of the normative and other legal acts (chapter 1, §2, §3; chapter 2, §3; chapter 3, §1).
Legal base of research includes the laws and the regulatory legal acts applied in the sphere of the settlement of emergency situations, customs-tariff regulation and foreign trade activities of the Russian Federation.
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The resources of the conducted research were the norms of the legislation of Transdniestrian Moldavian Republic and the Republic of Moldova containing the administrative-legal rules, regulating legal relationships connected with the order of moving of the goods and vehicles across the customs border of TMR. The accompanying legal regulation includes the Moldova-Transdniestria arrangements (agreements, reports) and other regional acts, regulating administrative-legal regime of the customs activity of Transnistria, and other state-entities (formations) which have not been granted an international legal personality.
The empirical base of the research is presented by archival materials of the State Customs Committee of Transdniestria Moldavian Republic, statistical data reflecting the process of customs clearance of Transdniestrian goods and vehicles in customs bodies of TMR, the materials of briefings and boards on the object of research, the express analysis of the projects of decisions of The Federal Customs Service of Russia related to the settlement of the Transdniestrian foreign trade activities procedure. Besides, the materials of working meetings of the customs experts of Transdniestrian settlement (reports of the meetings, projects of agreements, reports, analytical materials, official correspondence of the parties) have been analyzed and generalized.
More than 76 documents of Moldova-Transdniestria negotiation process, relating to some extent to external economic and customs aspects of regional interaction, are investigated by the author; 23 projects of agreements between Transdniestria and Moldova aimed at perfection of administrative-legal regime of the customs and foreign trade activities of Transdniestria; official correspondence of Transnistrian Moldavian Republic with Moldova Republic, including with countries-guarantors and intermediaries of Transnistrian settlement (96 documents) are systematized; for the purpose of comparative administrative jurisprudence (regional precedents) 66 statutory acts of local and 75 of external character are analyzed.
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The personal author’s experience of participation in the work of the Moldova-Transnistria working groups (expert-groups), and also carrying out of an expert work on stabilization of administrative-legal regime of the customs activity of Transdniestrian Moldavian Republic, has found reflection in dissertation
The authenticity of theoretical and scientifically-practical positions, conclusions and offers of the author of the dissertation is provided by methodology and research technique. Association of various methods has allowed to study the investigated questions comprehensively, to carry out their complex analysis, to prove the received results.
The theoretical basis consists of the ideas relating to the theme of the research, reflected in the works of national and foreign scientists. Essential influence on the scientific position of the author is reflected by the works of law-scientists A.B.Agapov, O.J.Bakaeva, D.N.Bahrah, E.V.Beljakovich, O.A.Berzin, A.D.Blagov, A.G.Bolshakov, A.M.Voronov, I.I.Veremeenko, E.E.Vylegzhanin, A.V.Gasumjanov, E.A.Gejn, I.V.Deljagin, B.M.Yemelyanov, O.S.Zhigalin, D.V.Zajats, A.N.Kozyrin, V.A. Kolosov, A.P.Shergin.
While writing a dissertation the works of the Russian experts in considered area were used: A.M.Voronov, A.Kynev, A.V.Malko, M.N.Marchenko, N.I.Matuzov, O.N.Novikov, A.F.Nozdrachev, D.N.Panasenko, S.A.Travkin, S.V.Pchelintsev, M.A.Rylskaya, N.V.Rumjantsev, E.V.Saunin, O.S.Sokolov, Shtefan Talmon, I.A.Tsvetkov, N.V.Shtanski, A.JU.Shumilov and others, and also foreign authors: Abi-Saab and E.Devid, F.Kalshoven, R.Rinaldo, P.Regan, Z.Fishel, Tomas Kottier, V.Singrid, Krista Shefer, U Tsjuan Lej, Chamovits Steve, where some legal aspects of the investigated question are covered.
Scientific novelty of dissertational research consists in that the given work is the first complex research of question of the legal regulation of administrative-legal regime of the customs activity of Transdniestrian Moldavian Republic.
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The writer of a thesis considers the new approaches to the resolution of legal contradictions which have arisen from changing of administrative-legal regime of the customs activity of Transdniestrian Moldavian Republic.
Proceeding from a complex study of the actual normative-legal base, the data of law-enforcement practice, the regional experience (precedents), the working materials of the expert meetings and scientific works on the given subjects are systematized in the dissertation; an assessment of a special order of regulation of the foreign trade activity of Transdniestrian Moldavian Republic is given here reflecting a set of legal and organizational means, providing customs control over moving of the goods and vehicles across the administrative (customs) border of Transdniestrian Moldavian Republic.
As a result of research of administrative-legal regime of the customs activity of Transdniestrian Moldavian Republic in context of existing precedents (Taiwan, Northern Cyprus, Macao, Hong Kong, Ceylon, Burma, Southern Rhodesia, Manchukuo, etc.) the signs, the presence of which is enough for the administrative and territorial unit, state-territorial-entity to be granted a special legal personality in the external economic relations, are revealed.
The following basic provisions are submitted to defense:
1. The «administrative-legal regime of the customs activity of Transdniestrian Moldavian Republic» is a special order of foreign trade activities, regulated by complex of agreements (treaties) and interstate administrative-legal means, terminating the performance of the customs activity on the territory of Transdniestrian Moldavian Republic in the conditions of its full autonomy in external economic sphere.
2. The special powers in external economic sphere assumes an independent realization of the customs activity on its customs (administrative) territory and performing of export-import transactions on the base of the administrative-legal agreements and regulations, regulating the customs activity in Transnistria.
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3. The administrative-legal regime of the customs activity of Transnistrian Moldavian Republic is dynamical. The grounds and conditions of its alteration are defined as not corresponding to the administrative-agreement system in customs sphere of Transnistria, caused by the political reasons and economic crisis in the Republic of Moldova.
4. Under the status for TMR for the customs purposes it is considered a separate customs territory, a special legal personality of which is based on the competences of a full economic autonomy given to the region in the external economic relations and the right of the independent customs clearance of the goods and vehicles in own customs bodies.
5. The criteria (signs) which allow giving to a state-territorial formation (an administrative and territorial unit) the special right-ability to participate independently in the external economic relations and to carry out the customs regulation on the under-control territory are:
— actual autonomy in the foreign trade relations or legal fastening of the independence at the realization of the economic and trade policy;
— actual status of a separate customs territory;
— application by the territory of separate tariffs, other measures of trade regulation;
— independent customs and judicial systems;
— independent control of the customs (administrative) border;
-regional legislation regulating customs and trade relations.
6. The basic directions of development of mutual relations of the subjects of international law with unrecognized state-territorial formations (administrative and territorial units) are the customs activity, trade, banking, the participation in the international financial and investment projects, the tax sphere, organization of cargo transportation by air, the organization of quality control of the goods.
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7. The substantive provisions on perfection of administrative-legal regime of the customs and foreign trade activities of Transnistrian Moldavian Republic are:
— Exercising foreign trade activities of Transnistrian Moldavian Republic according to the earlier reached arrangements, including the right of Transnistria to establish and support independently the international contacts in the economic area;
— Moving of the goods and vehicles across the Transnistrian part of the Moldova-Transnistria border, and also their transit across the territory of Ukraine in free regime, excluding the distinctions based on the place of origin, registration, departures, import, export, appointment and other circumstances concerning the property on the goods and vehicles;
— Moving of the goods from the territory of Transnistria or intended for its companies without collection of the taxes, charges and other obligatory payments into the budget of Moldova Republic.
The theoretical importance is that the theoretical positions developed in dissertation expand the maintenance of concepts of «the administrative-legal regime of the customs activity of Transnistrian Moldavian Republic» and «the full economic autonomy of the administrative-territorial formation (entity)» (in external economic relations), what in turn, is a principle question at the working out of a set of legal and administrative-technical means for the regulation of export-import transactions of the state-territorial formation (administrative and territorial unit), which legal status is in a process of developing.
The results of the dissertational research expands a scientific base concerning the development of multilateral customs and trading cooperation with special administrative-territorial formations (entities), opens the specificity of their regime of the customs activity.
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The practical importance of the executed research consists in that the theoretical positions containing in the work, the conclusions and recommendations are necessary for the further perfection of the theoretic-legal and the applied maintenance of administrative-legal regime of the customs activity of TMR.
Besides, the implementation of conclusions and recommendations received during research, can promote the increasing of productivity of experts activity, who are taking part in a process of stabilization of administrative-legal regime of the customs activity of Transnistrian Moldavian Republic.
For customs experts, involved in the subjects of stabilization of export-import transactions of TMR, the appearance of a complex research allows to comprehend in a new fashion the existing contradictions of Transnistrian problem in the customs activity, to receive objective information for the working out of necessary offers.
Approbation and introduction of research results. The basic theoretical conclusions, the practical offers and recommendations were reported by the author at the scientific-practical conferences organized by The Russian Customs Academy («The Role and the place of The Russian Customs Academy in the development of customs» on May, 15th, 2008; «The state and prospects of the customs: a sight of the young» on June, 30th — on July, 2nd, 2008). The author of the dissertation has published 2 monographs («Administrative-legal regime of the customs activity of Transdniestria in a context of international precedents», «The organization of joint control in check points on the Ukrainian-Moldavian border (Transdniestrian factor)», 18 scientific articles, 4 of which — in reviewed editions of The Highest Attestation Committee of the Ministry of education and science of Russia.
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The new scientific-practical positions formulated in the dissertation are introduced in scientific activity of The Russian Customs Academy, educational process of The Transnistrian State University named after T.G.Shevchenko, what is proved by the application acts.
The structure of dissertation is determined by its theme, the purpose, the tasks and corresponds to logic of the research. The work consists of the introduction, three chapters, including nine paragraphs, conclusion, list of resources used and 9 appendices.
THE CONTENT OF DISSERTATION
In introduction it is given an explanation of the actuality of a theme of dissertational research, the object and subject of the research, and also its purpose and tasks are defined, the methodological, theoretical and empirical bases of research are revealed, scientific novelty is proved, the basic provisions, which are submitted to protection, are formulated, the theoretical and practical importance of the work is defined, the data on approbation of the results and the structure of the dissertation are given.
Chapter 1 — Administrative-legal grounds of the customs activity of Transdniestrian Moldavian Republic» — consists of three paragraphs.
In the first paragraph — «The concept of administrative-legal regime of the customs activity of Transdniestrian Moldavian Republic in the conditions of economic autonomy of the region» — the works of Alekseev S.S., Bahrah D.N., Blagov A.D., Deljagin I.V. Matuzov N.I , Malko A.V., Nozdrachev A.F., Rodionov O. S, Rylskaya M. А, etc. devoted to research of the administrative-legal regimes, are analyzed .
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The author notices that the uniform scientific position concerning the legal characteristic of administrative-legal regime of the customs activity of Transdniestrian Moldavian Republic is absent in these works.
Despite the existing status quo, Transnistrian Moldavian Republic performs the customs regulation and customs control over goods and vehicles crossing the customs border of Transnistria. For these purposes in 1996 with the assistance of the countries-guarantors and intermediaries of a negotiating process (Russia, Ukraine, the Organization on security and cooperation in Europe (OSCE)) Transnistrian Moldavian Republic and Republic of Moldova have created a special administrative-legal construction (administrative-legal regime), allowing TMR to carry out customs regulation on its under-control territory.
By consideration of theoretical bases of the customs administrating of export-import transactions of TMR it is underlined that the direct subject of legal regulation of administrative-legal regime of the customs activity of Transnistria is the sphere of customs management of TMR, which consists in the purposeful activity of Transnistria on regulation of foreign trade exchange by means of establishment of the order and conditions of the moving of the goods and vehicles across the customs border, the collection of customs payments, customs control, customs clearance and other means of realization of customs policy.
The author underlines that the structure of administrative-legal regime of the customs activity of TMR includes such elements as the mode bearer, the regime legal means, regime rules, legal statuses of the subjects of regime regulation, the system of organizational-legal guarantees. The bearer of special administrative-legal regime is the territory of Transnistrian Moldavian Republic. The regime rules are established as by Moldova – Transnistria agreements, as national legislation of TMR.
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A developed analysis of considered scientific positions of the Russian and foreign scientists in combination of the use of legal acts and law-application materials have allowed to formulate the author’s definition of concept of «administrative-legal regime of the customs activity of Transnistrian Moldavian Republic» as the special order of foreign trade activity regulated by complex of agreements and interstate administrative-legal means, defining the realization of customs in the territory of Transnistrian Moldavian Republic in conditions of its full autonomy in external economic sphere.
In the second paragraph – «Establishment of the administrative-agreement system in customs sphere of Transnistrian Moldavian Republic» — the author, based on considerable empirical base, analyzes the legal means regulating administrative-legal regime of the customs activity of Transnistria, which were generated thanks to the developed administrative-agreement system in customs sphere of TMR during the period of 1992 – 2001.
The author of dissertation notices that the basic element of specified system are regional Moldova-Transnistria arrangements (agreements, reports), containing the regime rules in the field of the customs for regulation of export-import transactions of TMR, concluded as at a higher level of the parties, as at the level of the customs experts.
On the basis of the carried out analysis it has been established that the administrative-agreement system promoted the formation and legal securing of administrative-legal regime of the customs activity of Transnistria. The author of dissertation notices that the shortcomings of the considered administrative-agreement system are the absence of a guaranteed mechanism of execution of Moldova and Transnistria obligations under the reached agreements. This circumstance has allowed the Moldavian part to alter unilaterally the regime rules for Transnistrian export in 2001-2010.
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The conducted research has allowed to reveal the problems connected with stabilization of administrative-legal regime of the customs activity of TMR. In particular, it is unacceptable the situation, when the subject of legal relationship on the one hand confirms the validity of the reached arrangements in customs sphere (within the frames of Transnistrian settlement), and on the other — violates them. According to the author’s opinion, such tactics postpones the effective decision of all complex of regional questions on the settlement of administrative-legal regime of the customs activity of Transnistrian Moldavian Republic.
The results of the research allow to come to a conclusion that unrecognized status of TMR didn’t interfere before the 1st of September 2001 (introduction of new regime rules for Transnistrian export) with formation of agreement system in customs sphere of Transnistrian region, and also forming of mutually advantageous relations in customs sphere with customs bodies of Ukraine and Republic of Moldova – the states bordering with Transnistria.
In the third paragraph — «The conditions and grounds of altering of administrative-legal regime of the customs activity of Transnistrian Moldavian Republic» — the reasons and dynamics of introduction of the new order of regulation of export-import transactions of Transnistria are considered.
The research has shown that economic instability in the Republic of Moldova in the middle of 2001 was a principal reason of altering the regime rules of administrating of Transnistrian goods flow. For these purposes on the 1st of September 2001 the Department of Customs control of Moldova introduced new means of customs, and subsequently — new regime rules and mechanisms of the customs administrating of the foreign trade operations of Transnistrian Moldavian Republic companies.
In considered paragraph the conclusion is made that an attempt of external influence on the realization of Transnistrian export had unproductive character, and seriously complicated the prospect of creation of the Moldova –Transnistria system of uniform customs administrating, and gradual harmonization of relations of the
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parties in customs sphere. The Ukraine’s involvement in March, 2006 to Moldova measures of administrative character concerning Transnistria has acted as additional reason of altering a procedure of TMR export-import transactions.
As a result of the given actions the double customs clearance and additional obligations related to the customs payments in customs and near-customs sphere to Moldavian budget have been entrusted to the exporters of Transnistria.
The second chapter – «Theoretical and legal aspects of administrative-legal regime of the customs activity of Transnistrian Moldavian Republic» — includes three paragraphs.
In the first paragraph – «The role of independent right in external-economic relations and customs activity» — the independent right of the separate administrative regions – unrecognized state-territorial entities to participate in the external economic relations independently is investigated on the basis of methods of comparative jurisprudence.
As analysis has shown, the administrative-legal regime of the customs activity of TMR is based on the full independent right of the region to participate in external economic relations independently and on the reached arrangements in customs sphere. The Moldavian party adheres to another position, insisting on priority of constitutional norms of the Moldavian legislation, the reintegration of uniform customs territory or Republic of Moldova and refers to the requirements of the World Trade Organization (WTO).
Based on existing practice the author of the dissertation, notices that the full independent right of the administrative-territorial formation (entity) to participate in the foreign trade relations independently depends on such signs, as:
— availability of the territory, where separate tariffs or other measures of trade regulation are applied concerning other territories;
— granting the independence at realization of economic and a trade policy;
— availability of independent legislative and judicial systems.
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In the context of dissertational research it is established that the World Trade Organization didn’t lay down the requirements to the Republic of Moldova on reintegration of the customs territory of Moldova in borders of the former Moldavian Soviet Socialist Republic, and also to the restriction of the goods traffics across Transnistrian region, which is out of a legal field of the Moldavian party. The research has shown that Transnistrian Moldavian Republic satisfies to the above-stated criteria (signs).
The received results of the research allow drawing a conclusion that Transnistrian Moldavian Republic in its customs borders for today is a separate customs territory. According to author’s opinion, the understanding of this given reason fact allows to abstract from political context of a Moldova-Transnistria question for creation of practical recommendations on perfection of administrative-legal regime of the customs activity of Transnistria. At the same time the author of the dissertation notices that the concept on consideration of Transnistrian Moldavian Republic as a separate customs territory has not been suggested before.
In the second paragraph – «The bases of harmonization of customs relations of Transnistrian Moldavian Republic and Republic of Moldova» — the problematic of approximation of customs legislations of Transnistria and Moldova and also the harmonization of relations in the field of customs for mutual administrating of export-import transactions of Transnistria and Moldova is investigated. In the dissertation the offers of Transnistrian and Moldavian customs are analyzed in various directions of harmonization of customs legal relationship.
In the course of studying of this question the conclusion has been drawn, that the settlement of customs legal relationship in Moldavian Soviet Socialist Republic borders could act as a reliable mechanism of maintenance of administrative-legal regime of the customs activity of Transnistrian Moldavian Republic.
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However, despite the reached Moldova-Transnistria arrangements to accept as a basis for the administrating by the parties of the export-import transactions the tax and customs legislations (taking into account the requirements of the World Trade Organization, World Customs Organization, and also legislations of the states-participants the Commonwealths of Independent States (CIS) and the European Union (EU), the Moldavian part adhered to a single position – to extend the customs legislation of Moldova Republic to the customs territory of TMR.
In Moldova’s understanding the harmonization of mutual customs relations is only the spreading of the Moldavian customs legislation on the customs territory of Transnistrian Moldavian Republic. According to the author of the dissertation, such position contradicts the regional Moldova-Transnistria agreements and is one of the principal causes of absence of dynamics of harmonization of relations between Moldova and Transnistria customs services .
In the third paragraph – «Contradictions of the administrative-legal regulation of the system of the joint customs control of Transnistria and Moldova» — the contradictions, which have resulted while introduction of new regime rules concerning TMR goods turnover, are considered
The analysis of the archival materials of the State Customs Committee of Transnistrian Moldavian Republic has allowed the aspirant to establish that on the 1st of September 2001 the Republic of Moldova has made an attempt to alter administrative-legal regime of the customs activity of Transnistria with a view to organize joint control in the check points on Transnistrian side of the Ukrainian-Moldova border. In a work it is proved that such actions and directly — the Regulation of Moldova Government of August, 30th, 2001 № 904 «On the organization of joint control in the check points across the Ukrainian-Moldova border» contradicts the Agreement signed between the Government of Ukraine and the Government of Moldova Republic «On the organization of joint control in the check points across the Ukrainian-Moldova border» of 03.11.1997 and shouldn’t have legal consequences.
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The author of dissertation comes to a conclusion that (in the presence of the positive dynamics and intentions of Moldova and Transnistria to build and harmonize the regional relations in the field of customs) the legal regulation of the system of the joint customs control is one of the elements of the legal regime means providing the necessary administrative control over the goods, moving to the economic agents of Transnistria and Moldova across the administrative (customs) borders of Moldova and Transnistria.
The third chapter – «The basic directions of the use of experience of other states in perfection of administrative-legal regime of the customs activity of Transnistrian Moldavian Republic» — includes also three paragraphs.
In the first paragraph – «The Analysis of administrative-legal regime of the customs activity of Taiwan and its use in Transnistrian Moldavian Republic» — the author within the frames of comparative administrative jurisprudence investigates the precedent of unrecognized Taiwan as an administrative and territorial unit of the Peoples Republic of China, but a member of the World Trade Organization in status of «a separate customs territory».
The presence of the status of Taiwan as a specific administrative and territorial unit of the Peoples Republic of China allows the region (Taiwan) to regulate the customs activity independently on its own territory and thus to participate freely in external economic relations on the basis of Taiwan legislation and the reached arrangements of not international character with other states.
Especially it is necessary to underline that the regime rules established by the countries of the European Union, the United States of America (USA), Moldova and Ukraine for the realization of export-import transactions with unrecognized Taiwan, presume an exception of restrictions in the external economic relations and legalize the existing administrative-legal regime of the customs activity of Taiwan.
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Despite it, as for the administrative-legal regime of the customs activity of Transnistria, the same countries take an opposite position, qualifying created by Transnistrian customs (till 2001) mechanisms of administrative control of Transnistrian goods turnover as illegal.
Thereupon the author considers the bilateral customs agreements concluded between the USA, the EU countries and Taiwan containing the regime rules connected with the customs clearance and the customs control of the American, European and Taiwan goods, which are crossing their administrative (customs) borders at mutual trade.
The developed analysis of the materially-issued regional arrangements with Taiwan has shown that the agreements of such character play an important role, because they establish the regime rules for the customs activity of the special administrative region, which status should be defined in the future. Considering the features of an object of the research, the author came to a conclusion that the similar mechanism is admissible with reference to administrative-legal regime of the customs activity of Transnistrian Moldavian Republic.
On the basis of conducted research the author of dissertation made a conclusion on possibility of the use of positive experience of Taiwan precedent for the working out of theoretical and practical recommendations directed on perfection of administrative-legal regime of the customs and foreign trade activities of Transnistrian Moldavian Republic.
In the second paragraph – «The perfection of the regulation of administrative-legal regime of the customs activity of TMR on the basis of experience of the decision of the regional precedents» — the precedents of Macao, Hong Kong, Turkish Republic of Northern Cyprus, Manchukuo, Burma, Ceylon, Southern Rhodesia were investigated in context of comparative administrative jurisprudence.
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It is established by the author that the national customs legislation of Russia, Ukraine, Moldova, the USA, the EU countries, and also the norms of corresponding international law don’t interfere in most cases with the economic autonomy and mutually advantageous cooperation with the separate administrative and territorial units, state-territorial entities in such directions of mutual cooperation as the customs activity, the trade, the banking, the mutual investments, the participation in the international financial and investment projects, tax sphere, the organization of cargo transportation by air, the organization of quality control of the goods.
At the research of customs component of considered precedents the general signs have been revealed, characterizing the territories with a special status, and also the territories with special administrative-legal status, participating independently in the external economic relations:
1) de facto autonomy in the foreign trade relations;
2) presence of actual status of a separate customs territory;
3) presence of an independent customs system;
4) presence of the regional legislation regulating customs and trade relations.
The listed signs, according to the opinion of the author of dissertation, are the scientific innovation of the research-work, and the territory (administrative and territorial unit) applying for the reception of a full autonomy in the external economic relations, should correspond the criteria set forth above.
Thus the author notices that the following signs are revealed with reference to TMR:
1) autonomy in the foreign trade relations;
2) actual status of a separate customs territory;
3) possibility to confirm and change tariffs without the third party consent;
4) presence of the independent customs system;
5) possibility to supervise independently the customs border;
6) regional legislation regulating the customs and trade relations;
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7) readiness of the region to enter contractual relations with the foreign governments on trade questions.
As an additional sign it is specified the regional agreements of administrative character, including those noted in the WTO about Transnistria, which gave to the region (Transnistria) the right to carry out independently the foreign trade operations and customs registration of the goods and vehicles in customs bodies of Transnistria.
In the third paragraph — «Some aspects of solution of the problem of administrative-legal regime of the customs activity of TMR in conditions of operating of the customs monitoring groups» — the author investigates the activity of the monitoring groups created for analysis and maintenance of execution of the new regime rules for the Transnistrian goods turnover. The author has carried out legal analysis of administrative-legal regime of the customs activity of Transnistrian Moldavian Republic, taking into account the results of the work of the monitoring missions of the OSCE in 2002 and the EU on behalf of the European Union Boundary and Assistance Mission to Moldova and Ukraine in 2005-2010. According to the author, the comments of the western experts have inconsistent character, unilaterally positioning a problem of the administrating of the foreign trade activity of TMR.
The author of the dissertation also notices that both the role of the monitoring groups in context of administrative-legal regime of the customs activity of Transnistria settlement and the workings out of the new regime rules for the export-import transactions of TMR, are rather ambiguous. The European experts owing to the various reasons don’t intend to refuse the idea of reintegration of Transnistrian region into the legal field of Moldova in the nearest prospects and the reduction of administrative-legal regime of the customs activity of TMR in conformity with the legal and technology requirements of the Republic of Moldova. The author pays attention that all these happen on the background of the deliberate leveling of the administrative-agreement system in customs sphere of
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Transnistrian Moldavian Republic, which presumes unobstructed realization by Transnistria of the external economic operations, and also the customs activity.
In Conclusion of the dissertational work the author formulates the basic conclusions; the recommendations about stabilization of administrative-legal regime of the customs activity of Transnistrian Moldavian Republic are made.
In the Appendix the empirical and analytical materials are presented in context of the conducted dissertational research.
There are 20 works published by author on the theme of dissertation:
I. Articles published in reviewed editions of the Highest Attestation Committee of the Ministry of education and science of Russia:
1. Moser, S.V. The customs control: mutual relations of the Moldavian and Transnistrian customs / S.V.Mozer// Izvestija Tul. State University. Economic and jurisprudence. Edition. 2. P.I. – Tula: Publishing house Tul. State University, 2009. – Pages. 270-273.– 0,1 pr. p.
2. Moser, S.V. The legal collision of the regime of the customs activity of Transnistrian region: retrospective analysis / S.V.Mozer//«Black holes» in the Russian legislation. – 2010. – № 1. – pages. 180-183. – 0,1 pr. p.
3. Moser, S.V. Some aspects of harmonization of the relations of Transnistria and Moldova in customs sphere / S.V.Mozer//The Administrative and municipal law. – 2010. – № 5. – pages. 28-33. – 0,1 pr. p.
4. Moser S.V. Perfection of regulation of the administratively-legal regime of the customs activity of Transnistria / S.V.Mozer//The Bulletin of the Russian customs academy. – 2010. – № 2. – pages. 37-43. – 0,1 pr. p.
II. Articles and the theses of reports published in other editions:
5. Moser, S.V. On the issue of the right of Transdniestria to carry out independently the foreign trade operations / S.V.Mozer//Customs bulletin. – 2008. – № 5 (107). – pages. 2-3. – 0,1 pr. p.
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6. Moser, S.V. Specifics of the foreign trade activity of Transnistria under present-day conditions/ S.V.Mozer//The Bulletin of The Russian Customs academy. – 2008. – № 2 (3). – pages. 98-102. – 0,1 pr. p.
7. Moser, S.V. Some problems of the administrative-legal regime of the customs activity in Transnistria / S.V.Mozer// The Role and the place of the Russian Customs Academy in the development of customs: collected articles of the international anniversary science conference of The Russian Сustoms Academy: In 2 parts. II. – М: The Russian Customs Academy Publishing house, 2008. – pages. 204-206. – 0,1 pr. p.
8. Moser, S.V. Some aspects of administrative-legal regime of the customs activity of Transdniestria in the context of work of the international monitoring missions/ S.V.Mozer// Customs bulletin. – 2008. – № 6-7 (108-109). – pages. 2-6. – 0,23 pr. p.
9. Moser, S.V. On the issue of customs seals in the context of changing of regime of the customs activity of Transdniestria / S.V.Mozer//Customs bulletin. – 2008. – № 9-10 (111-112). – pages. 1-11. – 0,24 pr. p.
10. Moser, S.V. Some aspects of harmonization of customs legislations of Transnistria and Moldova / S.V.Mozer// Customs bulletin. – 2008. – № 12 (114). – pages 1-11. – 0,23 pr. p.
11. Moser, S.V. The WTO obligations of Moldova and autonomous right of Transdniestria to participate separately in foreign trade relations/ S.V.Mozer // Customs bulletin. – 2009. – № 9 (123). – pages. 14-16. – 0,05 pr. p.
12. Moser, S.V.. On the issue of harmonization of customs legislations of Transdniestrian region and Moldova / S.V.Mozer//The State and Security. – 2009. – № 3. – pages. 46-49. – 0,15 pr. p.
13. Moser, S.V. Contraband from Transnistria: myths and reality (organizational-legal aspects of the customs regimes / S.V.Mozer// Teoretiko-methodological and applied aspects of law-enforcement activity in modern Russia: collected articles of ДВГУПС. – Khabarovsk, 2009. – pages. 110-116. – 0,11 pr. p.
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14. Moser, S.V. On the issue on the organization of joint control on the Ukrainian-Moldavian border / S.V.Mozer//Customs bulletin. – 2009. – № 10 (124). – pages 5-6. – 0,1 pr. p.
15. Moser, S.V. Transnistria and Taiwan. Some aspects of the American policy in customs sphere / S.V.Mozer//Customs bulletin. – 2010. – № 1 (127). – pages. 7-8. – 0,05 pr. p.
16. Moser, S.V. Administrative-legal regime of the customs activity of Transnistria. Controversies of the policy of Ukraine, Moldova and the European Union / S.V.Mozer//Customs bulletin. – 2010. – № 2 (128). – pages 7-8. – 0,1 pr. p.
17. Moser, S.V. Unrecognized Transnistria and Taiwan: the EU policy of double standards / S.Mozer//Customs bulletin. – 2010. – № 3 (129). – pages. 7-8. – 0,1 pr. p.
18. Moser, S.V. Transdniestrian customs and the EU projects on reintegration of Moldova. The retrospective analysis / S.Mozer //Customs bulletin. – 2010. – № 4 (130). – pages. 2-3. – 0,1 pr. p.
III. Monographies:
19. Moser, S.V. The organization of joint control in check points on the Ukrainian-Moldavian border (Transdniestrian factor): monograph. / S.V.Mozer. – Tiraspol: Tipar, 2009. – 176 pages. – 0,9 pr. p.
20. Moser, S.V. Administratively-legal regime of the customs activity of Transdniestria in a context of international precedents: monograph. / S.V.Mozer. – Tiraspol: Cagliostro, 2009. – 376 pages. – 1,52 pr. p.
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It is handed over in a set 10.09.2010. Signed for publishing 10.09.2010.
Format 60х84016. Авт. л.1,33. Circulation of 100 copies.
The edition № 462. The order № 495.
Publishing house of The Russian Customs Academy
140009, Lyubertsy, Moscow region,
Komsomol prospectus, 4
[1] The title of the Region — Transdniestria, Transnistria, Transnistrian Moldavian Republic are identical at present work