SENTENTIA. European Journal of Humanities and Social Sciences - Law
SENTENTIA. European Journal of Humanities and Social Sciences
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Law
Vinogradova P.A. - Legal regulation of restrictions on the jurisdictional immunity of a foreign state c. 1-11

DOI:
10.7256/1339-3057.2015.3.16113

Abstract: The subject of this paper is social relations relevant to consideration by Russian courts of disputes related to a foreign state’s property. The paper deals with the issues of the jurisdictional immunity of a foreign state and its property. The purpose of this work is examination of the innovations in the Russian legislation on jurisdictional immunity. The objectives of  include analysis of jurisdictional immunity concepts, provisions of international treaties in this field and practice of various states for jurisdictional immunity restriction. The methodological basis for this research consisted of systemic and comparative approaches and methods of analysis.Academic novelty of the paper stems from the coming changes in the legal regulation of these issues in Russia. In 2015, the Government of Russia submitted to the Russian parliament draft Federal Law On the Jurisdictional Immunity of a Foreign State and Foreign State’s Property in the Russian Federation.The results of this study make it possible to generalize the requirements of the Russian legislation in the field of restriction on the jurisdictional immunity of a foreign state and the legal grounds for consideration of disputes in this field by Russian courts.
Cheprasov K.V. - Interpretational role of the Constitutional Court of the Russian Federation as a factor of institutionalization of the traditional family values in Russia c. 1-10

DOI:
10.7256/1339-3057.2016.3.19771

Abstract: The subject of this research is the public relations associated with the constitutional-interpretational role of the Constitutional Court of the Russian Federation (CCRF) within the Russian legal system. In addition to that, the author examines the process of institutionalization of the traditional family values by the Constitutional Court in the context of opposition to the forming gender-tolerant social trend in the Western countries. In justification of his hypothesis, the author suggests an extensive sociological material, which representatively reflects an attitude of the Russian citizens towards various issues pertaining to family, motherhood, fatherhood, and childhood. Examination of the presented sociological material is correlated to the analysis of jurisdiction of the Constitutional Court. The scientific novelty consists in explanation of the presence of a traditional (conservative) value trend in the area of family among the citizens of Russia, as well as in determination of an institutionalization mechanism of this trend by the CCRF. The author is first to analyze such sociological data from the perspective of the constitutional legal science.
Samoylenko E.A. - The structure of international-legal regime regarding the navigational usage of international rivers

DOI:
10.25136/1339-3057.2015.1.14972

Abstract: This article deals with issues of basic components of international-legal regime of shipping on international inland waterways. The author begins the analysis of this problem from the theory of law and presents elements that should be represented in the structure of any legal regime. The author thinks that international-legal regime of navigational usage of international rivers must be aimed at fixing the procedure and conditions of passage through the waterways. Particular attention is given to the issues of content of freedom of navigation on international rivers. A variety of methods of research are used in this article. The application of dialectical method of cognition allowed exploring the typical structure of international-legal regime of navigational usage of international rivers. Historical method was used in studying the formation processes of freedom of river navigation. Formal-legal, systemic, structural-functional methods of cognition were used during the interpretation of norms of international law. With help of inductive method, methods of analysis and synthesis the practice of states, international organizations and international courts was researched. The author argues that as a primary step for distinguishing of the structural elements of the international-legal regime of the navigation on international rivers must be the projection of the basic principles of the international law on the problem of river navigation. The common structure of the international-legal regime of the navigational usage of international rivers consists of a number of typical (main) regime-creating elements. There are significant and non-significant components among them; elements, related to the subjects of the international law, and elements, related to the direct participants of river navigation. Intergovernmental treaty – as an international document, where these elements are shown, – should define the scope of regime of navigation on the international river, contain material and procedural norms concerning its navigational usage, institutional mechanisms of cooperation in this sphere between countries, and the mechanism of dispute settlement between them.
Kuznetsova V., Kargovskaia E. - Legal regulation of Russia-Spain relations in the area of adoption of Russian orphans by Spanish citizens c. 5-11

DOI:
10.25136/1339-3057.2020.3.33255

Abstract: This article analyzes the legal regulation of relations between the Kingdom of Spain and the Russian Federation in the field of adoption of Russian orphans by Spanish citizens. The authors examine the history of development of the bilateral Russia-Spain cooperation; normative legal framework and order of adoption of the Russian orphans in Russian and Spanish legislation. The article provides statistical data on the adoption trends of the orphans in the Russian Federation by the citizens of the Kingdom of Spain. The relevance of the selected topic is substantiated by the fact that for many years Spain has demonstrated steady interest in this regard, holding a second place among the countries that adopt children from Russia. However, the legislative and bureaucratic framework for cooperation in this field requires improvements. The conclusion is formulated that despite the decrease in the number of adopted Russian orphans by Spanish citizens in recent years, it is necessary to continue developing cooperation in this area, as well as improve the existing normative legal framework.
Shakhbazian S.V. - Humanization and liberalization of the criminal legislation of the Russian Federation c. 6-12

DOI:
10.7256/1339-3057.2016.4.21606

Abstract: This article examines the provisions of the Federal Law No. 323-FZ "On Amendments to the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation on the improvement of the grounds and order of exemption from criminal responsibility" in terms of making changes to the Criminal Code of the Russian Federation on decriminalization of battery and default in paying money for maintenance of children and physically disabled parents, establishment of criminal liability for minor larceny (Article 158.1), and introduction of such ground for exemption from criminal responsibility as the release from criminal liability in connection with the infliction of judicial fine (Article 76.2). The scientific novelty consists in the comprehensive research of provision of the aforementioned federal law regarding the adoption of amendments to the Criminal Code of the Russian Federation. Analyzing the new law, the author focuses attention on its positive and negative aspects, as well as makes a number of remarks, which can be applied by a legislator for further improvements in the criminal legislation.
Shakhbazian S.V. - Criminal law and criminal procedure aspects of application of Section 6 of Article 15 of the Criminal Code of the Russian Federation c. 9-22

DOI:
10.7256/1339-3057.2016.1.17634

Abstract: This article explores the criminal procedure and criminal law aspects of application of Section 6 of Article 15 of the Criminal Code of the Russian Federation (CCRF). The author carefully examines such aspects of the topic as consequences of reconciliation of the parties to a dispute in cases of change of the category of a crime, application of the positions from Chapter 11 of the CCRF in cases of change of the category of crime, limitations of court of cassation in application of Section 6 of Article 15 of the Criminal Code of the Russian Federation, as well as change of the category of a crime in hearing of a criminal case according to Chapter 40.1 of the Criminal Procedure Code. Among the main conclusions is that application of Section 6 of Article 15 of the CCRF causes a number of criminal law and criminal procedure issues that can produce corruption in the judicial process during the evaluation of the gravity of a crime. Section 6 of Article 15 of the Criminal Code of the Russian Federation expands the boundaries of the principle of judicial discretion and defines dispositive regulation of criminal law relations.
Dementyev V.A. - Application of proportional electoral system at municipal elections: some aspects of the constitutional law c. 11-21

DOI:
10.7256/1339-3057.2016.3.21259

Abstract: The subject of this research is the separate aspects of constitutional law on application of proportional electoral system at municipal elections. The issues of application of proportional electoral system at municipal elections are characterized by especially high relevance. The questions of bases, conditions and limitations of the application of this electoral system on the local level is the subject heated debates in the scientific community, the participants of which hold diametrically counterpoising points of view. The very possibility of application of such electoral system on the local level is often being doubted due to its potential discord with the nature of local self-governance and its inability to reflect the maximal spectrum of interests of the local community within the representative branch. At the same time, the recent changes to the legislative base that regulates the order of application of proportional electoral system at the local elections, carried a brightly expressed multi-vector character, which often did not have sufficient conceptual justification. This work offers a brief overview of the process of establishment of the proportional electoral system as the channel of formation of public authority at the local level, and provides characteristics of its current status and analyzes the legislative base and the corresponding legal positions of the Constitutional Court of the Russian Federation. Among the main conclusions of the conducted research are the criteria formulated based on the legal positions of the Constitutional Court of the Russian Federation that determine the allowability of the application of proportional electoral system at the local level, as well as possible directions and specific measures on improvements to the Russian model of the application of proportional electoral system at municipal elections.
Chirkin V.E. - Interaction of international, supranational (supra-state), and constitutional laws c. 12-40

DOI:
10.7256/1339-3057.2015.3.16800

Abstract: The article discusses the creation of integration regional international associations, which at times become not only international unions, but also acquire elements of certain public power, a particular public-legal form, and can create its regional supranational (“supra-state”) law. At this time it fully applies only to the European Union, but other integration unions can also follow this path (for example, the EAEU). Using the methods of political science, science of state, and comparative-legal methods of studying this new phenomenon, the author concludes that in the EU there is an incomplete public power sui generis, which is not a state power, but has elements of statehood, operates special supranational law, which takes precedence over the law of member-states, and changes the concept of state sovereignty. Its member-states retain state sovereignty, but self-restrict some of its elements. But all of this takes place only within certain framework: certain sovereign rights and government powers voluntarily transferred to the EU by the member-states.
.. - PHILOSOPHY OF THE RUSSIAN CONSTITUTION: Russian values and democracy

DOI:
10.7256/1339-3057.2013.2.10376

: This article discusses, for the first time in domestic scientific literature, the axiology of the Russian constitution in its connection to the Russian sense of justice. The author demonstrates that constitutionalism, as a public law ethic, streamlines the fundamental Russian values (such as the volya and pravda) so that these axial values of national justice become axiological bases of the constitutional model of private and public autonomy. On this basis, the article analyzes the causes of failure in the construction of the concepts of national identity in the form of the Russian idea in the past, and modern political interpretations of the Russian Constitution of 1993. The author does not agree with those who believe that its ideals are contrary to the national sense of justice and that it necessarily entails the issue of changing it. On the contrary, the contradictory constitutional practice of law enforcement has less to do with the inconsistent protection of the constitutional system, fixed in Chapters 1 and 2 of the Constitution of the Russian Federation and in the subsequent chapters of the text of the Basic Law, than it does with the ethos of the modern power elite and the peculiarities of its sense of justice, which, according to the author, are a major obstacle to the realization of ideals of the 1993 Russian Constitution.
.. - The Russia's 1993 Constitution: the principal advantages and some legal shortcomings

DOI:
10.7256/1339-3057.2015.1.14165

: On the basis of a comparison of foreign and Russian constitutions the article discusses the legal language of the Russian Constitution. The author especially tackles such questions enshrined in Russian constitution as: the constitutional provisions concerning economic, social, political and spiritual life of the community. However, the article also refers to some shortcomings of the Constitution that was integrated in the text during the adoption of the Constitution in 1993. The main method that uses the author is a comparative one. Other, classical legal methods are also were used during the research. The novelty of the research consist in the research of the value of the Russian Constitution in a comparative approach. Author developed the ideas of how the Russian conception should be modified in order to comply with modern standards of legal language used in contemporary connotations.
.. - Cosmic state: the forming and development of the idea in the history of thought

DOI:
10.7256/1339-3057.2014.1.11412

: The article considers the philosophical-legal issues when forming and developing the idea about the cosmic state made by thinkers during different periods of time, starting from the Ancient World till Russian cosmism in the 20th century. It includes interpretations of ideas about the cosmic state in ancient mythology, in works of such thinkers as Antisfen, Diogenes of Sinope, Krates, Zeno, Platon, Iambulos, Seneca, Cicero, Dante, Augustine of Hippo, Thomas Paine, N.F. Fyodorov, K.E. Tsiolkovsky, A.F. Agienko, P.I. Ivanitsky, V.I. Vernadsky, N.K. Roerich, etc. Logical, historical, and comparative methods were used. The evaluation of the offered information contained in works of different thinkers was given from the position of a modern vision of the questions being studied, taking into consideration the level and prospects of the technical development of humanity, and the challenges of the XXIst century. It is observed that more intensive understanding of the potential of the state as a historical phenomenon took place while understanding cosmic aspects of the state in the history of political thought. Thinkers of different countries started to comprehend more deeply the unity of the world, the cosmic nature of a person and humanity, the foresight and comprehension of the coming cosmic human era and its appropriate political organization. The ideas about the cosmic state played a particular role in the liberation of the individual, and contributed to the development of the conception and forms of economic, political and legal integration, thereby extending the historical horizons of political consciousness.
Samoylenko E.A. - The structure of international-legal regime regarding the navigational usage of international rivers

DOI:
10.7256/1339-3057.2015.1.14864

Abstract: This article deals with issues of basic components of international-legal regime of shipping on international inland waterways. The author begins the analysis of this problem from the theory of law and presents elements that should be represented in the structure of any legal regime. The author thinks that international-legal regime of navigational usage of international rivers must be aimed at fixing the procedure and conditions of passage through the waterways. Particular attention is given to the issues of content of freedom of navigation on international rivers. A variety of methods of research are used in this article. The application of dialectical method of cognition allowed exploring the typical structure of international-legal regime of navigational usage of international rivers. Historical method was used in studying the formation processes of freedom of river navigation. Formal-legal, systemic, structural-functional methods of cognition were used during the interpretation of norms of international law. With help of inductive method, methods of analysis and synthesis the practice of states, international organizations and international courts was researched. The author argues that as a primary step for distinguishing of the structural elements of the international-legal regime of the navigation on international rivers must be the projection of the basic principles of the international law on the problem of river navigation. The common structure of the international-legal regime of the navigational usage of international rivers consists of a number of typical (main) regime-creating elements. There are significant and non-significant components among them; elements, related to the subjects of the international law, and elements, related to the direct participants of river navigation. Intergovernmental treaty – as an international document, where these elements are shown, – should define the scope of regime of navigation on the international river, contain material and procedural norms concerning its navigational usage, institutional mechanisms of cooperation in this sphere between countries, and the mechanism of dispute settlement between them.
.. - Peculiarities of the initial investigation of human trafficking

DOI:
10.7256/1339-3057.2013.1.9383

: the article contains information about the initial investigation practices and peculiarities of the criminal case opening in russian law on matters related to human trafficking . The article draws attention to what is understood by the phase of initial investigation in criminal investigation. The author determines it as a quite independent segment in the work on a criminal case, during which, along with the general tasks, some specific and casual tasks are being solved, meaning the tasks related to the crime detection and investigation and which are characteristic of this particular phase in this investigation. Author gives a number of criminalistics recommendations on investigation of human trafficking; tackles practical peculiarities of investigatory actions and special investigation activities; consider several practical cases. Author also points out that currently human trafficking has become one of the most dangerous and widely spread crimes committed by the organized international criminal communities.
.., .. - Corruption prevention in state administration and civil service system in the Russian Federation

DOI:
10.7256/1339-3057.2013.1.9381

: the article views legal and organizational issues in corruption prevention in state administration and civil service system. The article calls attention to how most of the organizational and administrative issues cause corruption growth in the civil service system. As of today, we have to acknowledge that the existing legislative measures are not sufficient to prevent corruption, and in anticorruption policy we can see domination of the political factor and political orientation. These issues hinder the implementation of all existing legislative means aimed at corruption prevention.The question of corruption prevention throughout the activities of public au-thorities and state administration has acquired a global and systemwide character. Corruption is an immediate threat to the national safety. It hinders democratic and civil society institutions to develop; the citizens to realize their constitutional rights in the sphere of education, public healthcare, social maintenance and property relations. Besides, corruption has a negative impact on the growth of economic and financial sector and all infrastructure of the Russian state.
.., .. - Proceedings with Participation of Foreign Persons in International Procedural Law of Russia and Ukraine

DOI:
10.7256/1339-3057.2013.1.8806

: This article is dedicated to one of the most interesting aspects of International Procedural Law litigation with participation of foreign persons. Authors focused on a comparative analysis of Russian and Ukrainian legislation concerning the regulation of international procedural relations. Article includes two paragraphs: the first one considers international jurisdiction of Russian arbitrazh courts and Ukrainian economic courts on commercial matters; the second one examines the recognition and enforcement of foreign judgments in commercial matters on the territory of Russia and Ukraine. Authors deeply scrutinized a wide range of legal documents including domestic legislation and international treaties embracing either bilateral Treaty between Russia and Ukraine on legal assistance and legal relations on civil, matrimonial and criminal matters, or multilateral international treaties of regional character in the framework of the CIS in order to show the convergences and divergences in Russian and Ukrainian law concerning participation of foreign persons in international commercial litigation.
Borisova A.S. - Right to religious feelings: legal aspects of protection of believers

DOI:
10.7256/1339-3057.2015.2.15594

Abstract: The subject of this research is the competitive analysis of the approaches of the European Court of Human Rights, the Parliamentary Assembly of the Council of Europe (PACE), and Venice Commission towards the notion of “religious feelings” and the necessary level of its protection by the government. A special attention is given to the essence of the concept of religious feelings and whether or not it is possible to give a legal definition to this notion, which is the reason for an assessment of the comparability between Article 148 of the Criminal Code of the Russian Federation on insulting the religious feelings of believers, with the European standards in the area od requirements for legal certainty. The main conclusion is that it is impossible to set a normative definition for “religious feelings”. The author justifies the need for a clear delineation of incitement of hate and intolerance by difference of religion, and insulting the feelings of believers, including blasphemy and sacrilege, as well as the reasonableness of decriminalization of “insult of religious feelings of believers”.
.. - Difficulty Understanding the Being of Criminal Law

DOI:
10.7256/1339-3057.2014.2.12463

: The article attempts to bridge the gap between philosophic and legal experience and theory of criminal law on cognition of the nature of this law and highlights the complications of their rapprochement. The article raises the problem of comparability and synthesis of these two lines of legal thought. In this respect, the research reviews the narrative of philosophic and legal thoughts in the sphere of cognition of the Being. The author stresses the role of modernity in interpreting the Mode and the Being of criminal law as a reason for reflection and as a timely object of understanding the philosophic and legal thought. In general, thoughts apprehend themselves and understand their self-sufficiency. The same is with the so called modern thought. Whatever its dreadful state, it remains a means of social linkage. Each of these thoughts finally constructs its own Babylon. Mutual misunderstanding is then referred to the imperfection of its nature or prejudices of its subjects. However the stumbling point is in the level of aloofness of thoughts from each other and from a man in general. They no longer weigh and counterbalance, but divide it. In their interpretation the subject seizes to possess its own being.
Rosalba A. - Unfair terms, protective nullity and Courts powers: certain reference points after JőrÖs and Asbeek Brusses rulings.

DOI:
10.7256/1339-3057.2015.2.15603

Abstract: The article examines the cases of Jőrös (Case C- 397/11,) and Asbeek Brusse,(case C-488-11), both dated 30 may 2013, as a starting point for a more general analysis of the ECJ’s approach to the legal consequences to be drawn by the national Court from finding that a contractual term is unfair. The work focuses on the question of whether the interest of the consumer – at the basis of the remedy under consideration – is compatible with the general public interest and with the duty of the National Court to declare the nullity of its own motion, perhaps in contrast with the individual interest of the party. The paper criticizes the “Pannon ruling”, and points out how the more recent Banif Plus judgment (2012) has refined that ruling, even when the partial nullity is concerned. If the duty of the National Court to declare the nullity of its own motion aims to guarantee general interest and the values held by the Constitution – the A. argues – there is no way the consumer can “oppose” the declaration and express his own interest to preserve the contract. Consistently with this idea of consumer protection, in the recent Jőrös judgment the ECJ partially reviewed the so called Perenicova jurisprudence, and clarifies that the National Court is required to determine whether or not the contract can continue to maintain its effects on the basis of objective criteria.
Chirkin V.E. - Three global legal systems of modernity: convergence and antagonisms

DOI:
10.7256/1339-3057.2015.2.15082

Abstract: The author examines the classifications of legal systems and legal families that exist in the Russian and foreign literature, and notices their inaccuracies. The terms “legal system” and “legal family” are often used interchangeably, different social essence of the major legal systems is ignored. Anglo-Saxon law and totalitarian socialist legal system are in the same classification unit. It is offered new approaches and synthesis. The author uses the historical, logical, deductive, inductive and comparative research methods, applies the formational-civilizational approach and, on this basis, identifies three major legal systems in the modern world: the Muslim system, liberal semi-social capitalist system and the totalitarian socialist system. On the basis of socio-culturological legal approach within each of the global systems, the author highlights the legal families. In the Moslem system there are fundamentalist (radical) and modernized (upgraded) legal families, but also for another reason - the Sunni and Shiite communities legal families, in the liberal semi-social capitalist system there are Anglo Saxon, the Romano-German and other families, in the totalitarian socialist system - orthodox Leninist-Bolshevik and modernized partly, upgraded (but only in the area of economic regulation) family.
Le Bot O. - La qualification juridique de lanimal : dune conception classique dépassée à la recherche dune nouvelle catégorie juridique

DOI:
10.7256/1339-3057.2014.3.12906

: La question du statut juridique de lanimal a fait son irruption dans les débats politiques et juridiques contemporains.Le phénomène doit être étudié dun point de vue tant théorique que comparatiste, afin de mesurer lampleur du phénomène et étudier les réponses apportées.La doctrine comme les responsables politiques saccordent sur un point : la qualification de lanimal comme un simple bien ne correspond plus aux représentations que sen fait la société. Il en résulte que la catégorie juridique de lanimal est à réinventer. A cet égard, des formules novatrices ont semblé être retenu par certains ordres juridiques. Toutefois, un examen minutieux de celles-ci conduit à relativiser très largement la portée de lévolution réalisée. En réalité, faire correspondre lanimal à ce quil est un être vivant et sensible nécessiterait que le changement de qualification saccompagne dun changement de régime juridique.
Riekkinen M.A. - Residence Registration as a Condition for the Implementation of Human Rights and Freedoms: International Legal Aspect

DOI:
10.7256/1339-3057.2014.4.14156

Abstract: International law provides us with a large amount of political, socio-economic and cultural rights. However, most of the rights are provided only if a person has official documents and registration. Residence registration is one of the necessary conditions for fundamental human rights.The article provides an overview of the legal issues related to residence registration, both in the former Soviet Union and in Europe. In the former Soviet Union, the issues of residence registration are associated with the remnants of the propiska system in the legal systems of individual states, as well as with the imperfection of modern population registration systems. In the European context, such problems are related mainly to the issue of irregular migrants.The author systematizes the recommendations of international human rights bodies in relation to the optimization of the residence registration system. She uses examples of legislative solutions found by Scandinavian countries.
Abgarjan D. - The Place of the International Tribunal for the Law of the Sea in progressive development of the law of the sea

DOI:
10.7256/1339-3057.2014.4.11624

: The author of this presentation sees it her task to find out, whether the ITLOS has helped to systematize the law of the sea, to make its rules more clear and obligations of states stemming therefrom more precise. The methodology of this paper is to undertake the analysis of the following questions: to begin with the general capacity of international courts to promote development of international law; then to light up the special place of ITLOS in the development of the law of the sea; to analyze the work by ITLOS on the law of the sea rules in different spheres of the ocean activity case by case; and to conclude. A very special place occupied by the International Tribunal for the of the Sea in progressive development of the law of the sea is dicussed in the article. It is submitted that ITLOS follows the ways and methods of the ICJ in the process. No other judicial body is capable to analize in detail rules of the law of the sea neither can influence positions of states.
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