Fiskalna krivična dela

Abstract

The fiscal system of a country consists of three systems: tax, customs and budget. They are governed by special laws and bylaws. The tax system is regulated system of tax collection and payment, which finance public expenditure. Customs system is a system of collection and payment of customs duties regulated by the law and the bylaws, and the budget system is regulated system of planning, collecting and spending of public revenues to finance public needs, which is done by investing in the so-called public goods and services. Payment of taxes and other duties reduces the economic ability of citizens to buy goods for their own expenditures. Therefore, it is not irrelevant how the collected funds will be spent. In addition to providing these funds, their rational use is also necessary . This goal is achieved by establishing financial discipline, which besides preventive measures is also influenced by criminal justice measures (criminal sanctions). Therefore, it is necessary to criminally sanction certain behaviours which violate financial discipline. The subject of this paper is examination of criminal law protection of the fiscal system in the Republic of Serbia, as well as other countries, which is contained in both criminal codes, and in the secondary laws (tax, customs or budget legislation). The paper specifically stresses out the social values protected by the criminal law protection of the fiscal system. Given that it is the only mechanism for strengthening the fiscal discipline in the public sector, special attention was also paid to prevention activities – especially to inspection supervision which controls the payment of taxes and spending of budgetary funds, as well as to other activities, such as the activity of the supreme audit institution and internal financial control carried out by the employees of public sector institutions. The doctoral dissertation points to the place of criminal law provisions that protect the fiscal system in the entire system of fiscal law and analyzes the content of the most important international and national legal acts regulating the criminal law protection of the fiscal system. It describes and analyzes the relevant criminal law provisions and points out the criteria that were used, or which have yet to be used for the proper and accurate classification and systematization of criminal offenses endangering the fiscal system to appropriate groups of criminal offenses. The aim of this paper is both theoretical and practical. In the theoretical sense, the results of the paper should provide a theoretical contribution to creating the foundations for a significant segment of the criminal law concerning the criminal protection of the fiscal system. On the other hand, practical goals are aimed at improving the existing legislation of the Republic of Serbia and encouraging good practice in application of the regulations of the Republic of Serbia that already exist in the field of criminal law protecting the fiscal system. For this purpose, the results of the doctoral dissertation should serve the development of an optimal model of precise criminal law determination of the scope and the ways in which state protects the fiscal system by criminal law regulations. The aforementioned model must be open, in order to eventually be improved and harmonized with the strengthening of fiscal discipline in the public sector. The aim of this paper is also to inform the wider professional public on issues of criminal law protection of the fiscal system, as well as on ways in which the Republic of Serbia can achieve the international legal standards in this area. Such paper could represent a basis that will provide enough information and knowledge to the taxpayers and public funds beneficiaries on their rights and obligations on the basis of existing regulations. In order to determine the level and needs of the of criminal protection of the fiscal system in the Republic of Serbia, its historical development through the provisions contained in the written sources was analyzed. Tax-related criminal offenses have long been exclusively a part of the secondary criminal legislation, and today they are stipulated by both the Criminal Code, and secondary criminal legislation. Such a solution can create great legal uncertainty. Same as tax-related criminal offences, both customs and budgetary criminal offenses have previously been stipulated by secondary criminal legislation, and now they are stipulated exclusively by the Criminal Code. In order to propose solutions which will improve the national regulations governing the legal protection of the fiscal system, the paper analyzes the solutions contained in the legislations of both EU member states and countries of the former Socialist Federal Republic of Yugoslavia, of which only the Republic of Slovenia and Croatia are members of the mentioned Union. Tax-related criminal offenses are only in the Federal Republic of Germany and Italy stipulated by secondary criminal legislation, while in all countries whose regulations are subject of this dissertation, are stipulated exclusively by basic criminal legislation. Nevertheless, only in the Republic of Serbia tax-related criminal offences are provided for in two rules: the Criminal Code and the Law on Tax Procedure and Tax Administration. It seems that in the future these criminal offenses should be envisaged only in one regulation. In addition to the analysis of regulations of the European Union member states and former members of the Socialist Federal Republic of Yugoslavia, the subject of the analysis in this dissertation are also the provisions of the legal documents of the United Nations and the European Union, which are of importance for the criminal law protection of the fiscal system, taking into account the impact of international standards on national legislation. In the dissertation, positive legal method was also used in order to address the deficiencies in the current regulations and suggest their improvement. In addition, statistical method was also used. Based on data from the statistical bulletins of the National Bureau of Statistics, it is possible to conclude what is the number of committed fiscal criminal offenses in a particular year, as well as what is the frequency of the phenomenal manifestation of fiscal criminal offenses in the structure of the total crimes committed. These data were also used as the basis for drawing conclusions on penal policy of the courts in the territory of the Republic of Serbia in particular period. A special part of the dissertation consists of statistical data from the questionnaires, which were completed by employees at budget beneficiaries. They responded to questions concerning the need to establish a criminal law protection of the fiscal system, as well as possible changes in the existing regulations. Their answers to questions are important to complement the views that can be taken on the basis of the application of the historical and legal, comparative law, positive legal and statistical methods. The dissertation also analyzed ten court judgments related to fiscal criminal offenses, which represents the basis for a conclusion on the need of improving criminal law provisions protecting the fiscal system. Considering that preventive action (ante delictum) is the most efficient for crime prevention, the dissertation specifically emphasizes the importance of the activities undertaken in that regard by the Tax Administration, Customs Administration, budget inspectorate and the State Audit Institution. In addition, it points out the importance of internal financial control of public funds beneficiaries.