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§ 1. Concept and value of object of a crime for ordering and structurization of crimes (general provisions)

One of properties as the rights as a whole, and its separate branches is sistemnost, based on system character of the world surrounding us and existing objectively, out of our consciousness.

"System" as the philosophical category, reflects the important feature of a reality in which there is a mankind.

According to A.N.Averyanov, "system", being the objective form of existence of a matter, is reflected, fixed by consciousness in concept which is a philosophical category. It can act and as concrete scientific and general scientific concept. Such status gives to the given concept generality as the basic sign, allowing to translate scientific and general scientific concept of a rank of the philosophical category which function to reflect laws, properties, the phenomena, the processes inherent in all systems of a reality, the world in целом56.

It is quite natural, that the general concept "system" is that basis on which the system approach in the right is under construction, defining sistemnost the rights as objectively existing, but its necessary property. As marks D.A.Kerimov, the system approach, a method, research are categories gnoseological and consequently enter as compound components into an arsenal of the theory of knowledge, penetrate its organic laws and категории57. The given words of the known theorist show exclusive importance, including

56 Averyanov A.N.system world knowledge: methodological problems. M: Publishing house of the political literature, 1985. With. 27, 29.

57 Kerimov D.A.methodolog of the right: a subject, functions, legal philosophy problems. M: Avanta, 2000. With. 2, 245, 247.

And for legal science, system researches. But for this approach primary is sistemnost the right which the author successfully defines as objective association (connection) to substantial signs of certain legal parts in structurally ordered complete unity possessing relative independence, stability and autonomy of functioning. In a context of our research signs sistemnosti the rights to which D.A.Kerimov has paid attention matter also. The following, in particular, is carried to them:

1) legal system whole it is necessary for a part are consolidated and by that are in the connected condition; 2) parts system legal whole are connected among themselves on the certain substantial bases which characterise substantsionalnye features of their properties and communications; 3) the system legal whole forms unity as a result of the structural orderliness of its parts defining them functional dependences and interaction; 4) objective association and connection to substantial signs of certain legal parts in structurally ordered complete unity cause presence at system legal whole property of relative independence; 5) structural orderliness gives system legal whole relative stability, only in which limits changes of properties of its parts and their communications are admissible; 6) relative independence of the system legal whole causes relative autonomy of its functioning which degree defines level given системы58. The philosophical and general-theoretical concept sistemnosti the rights is projected and on its concrete branches.

Undoubtedly, that the above-stated signs sistemnosti the rights extend and on criminal law, formation

58 In the same place. With. 251, 252, 253.

And which research should be under construction on the system approach.

Sistemnost the rights it is inevitably connected with such concept, as

"Ordering". «According to objective unity of legal system and its differentiation on branch of law in this unity the legislation system is under construction also. In the course of law-making is expressed, develops and general objective property of the right – it sistemnost» 59 is concretised. However ordering is already subjective process which depends on will of the legislator and which happens far not always faultless. Ordering represents volume enough process beginning with distribution of rules of law on branches of the legislation and proceeding in its concrete branches where in strictly logic sequence their structural elements are built.

But sistemnost in the right it is more and more considered in a combination to its structure that is based on obshchefilosofskih categories: sistemologii and structuralism. Therefore invaluable value is got by global workings out by scientists-jurists of the problems connected with system and structure of concrete branches of law and, in particular, of criminal law. Thereupon it is impossible to ignore the three-volume work of Russian scientist A.I.smartly devoted to system and structure of criminal law in which it is accurate sproetsirovany on the given branch philosophical views about sistemologii and structuralism and it is shown tesnejshaja interrelation of its system and structure. At system definition as whole, consisting of parts, – the author underlines, – is thought, that it possesses a strong internal skeleton. It will organise object in whole as though from within … Structure is understood ordinary as poelementnoe the device of object and stability of communications between maintenance elements. Therefore the system method is everywhere supplemented with structuralism or they even are consolidated in one

59 In the same place. With. 274.

The tool direction called system-structural подходом60. The structure in system is, according to A.I.smartly, – a guarantee of stability, self-preservation and функционирования61.

Let's pay also attention to an estimation the specified author of the importance of the system approach in law-making to which in modern conditions high activity (according to the author – «hazardous parliamentary law-making») is peculiar. «The system approach in these conditions – the irreplaceable fellow traveller and a conductor, it will rescue from odnostoronnostej in estimations of the right and will warn inexact assumptions of its future evolution» 62. We will agree also that complete character is peculiar to legal system, and it is shown in high level of organisation and orderliness of all its structural elements. It is necessary to take into consideration as well that sistemnost the rights assumes also achievement of corresponding level implementatsii the international norms in the national legislation, on what also is underlined in the literature. And that perfection of the criminal legislation in modern conditions quite often occurs to its infringement системности63 is, of course, indisputable.

UK Byelorussia, accepted in 1999, as well as other branch legislation, it is constructed by a system principle. It is divided on two basic parts: the General and Especial in which sections are designated, and in sections – heads. Thus feature UK is that the criterion for construction of structural elements of its Special part selects object of a crime (object criminally-right protection). We will notice also, that the given criterion is traditional both for national, and for the foreign legislation. More

60 Smartly A.I.system and criminal law structure: in Z t. Volume 1: Sistemologija and structuralism in modern informative culture. Rostov n/d.: Publishing house JUFU, 2007. With. 12-13.

61 In the same place. With. 151.

62 In the same place. With. 29.

63 See Ivantsova N. About perfection of the criminal legislation//Legality. 2009. № 3. With. 31, etc.

How it was specified earlier, one of advantages operating UK and the signs distinguishing it from earlier operating UK, is ordering of crimes against the child to what chapter 21 testifies.

But to state a full estimation to experience of the Belarus legislator on

Ordering of considered crimes, it is necessary to be defined, first, in concept and the maintenance of object of a crime in general, its classifications, and, secondly, in the maintenance of object of the group of the crimes encroaching on the child allocated in chapter 21 UK, in particular.

Well-known, that the question on concept of object of a crime in the domestic literature is the most discussed. It was a subject of attention of scientists both pre-revolutionary, and the Soviet period. Has not lost an urgency this question and now. But, unfortunately, a uniform sight at the given concept of a science and it is not developed. And if in the middle of the XX-th century the majority of scientists nevertheless have apprehended as a whole a position of that object of a crime

Is a public relation now the given concept more and more began to be called in question and as result, there were various judgements about concept of object, that again illustrates insufficiently full readiness of the specified problem.

The Belarus criminally-legal science developed in close interaction with views of scientists of Russia and other republics entering into the USSR, and it should affect preservation enough a steady sight at object of a crime as the public relation and now, reflected mainly in textbooks and manuals on the criminal law, published already on the basis of UK 1999

So, JU.L.Shevtsov approves, that in criminal law object of a crime are public relations which are understood as certain social communications between subjects concerning material and non-material values, societies in

Whole and separate people. Thus the author supports a position according to which public relations are defined as system of the interconnected elements: 1) subjects (carriers) of relations, 2) objective communication (interrelation) between them, 3) social interests (values) concerning which exist отношения64. Authors of the manual under the Special part of criminal law of Republic Belarus65 adhere to the Same sight at the maintenance of object of a crime, defining objects of concrete crimes. However, naming object of variety of crimes, authors specify not in public relations, and on concrete values (blessing): the life, health, safety, sexual freedom, etc. In the manual of E.A.Sarkisov published a little bit later has supported a position of scientists of that object of a crime are public relations. As to the social blessings, values and interests they, in her opinion, are components of public relations which in bolshej to a measure concretise object преступления66.

N.A.woman's has defined object of a crime as the public relations protected from their infringements by norms of criminal law and defining an order of behaviour of people in the course of their interaction with other people concerning certain social благ67.

Thus, the majority of the Belarus scientists adhere to a traditional sight at object of a crime as public relations which has been scientifically proved by such visible Soviet

64 the Criminal law of Byelorussia See. The general part: the textbook / under the editorship of V.M.Homicha. With. 87.

65 the Criminal law of Byelorussia See. The special part: the manual / under the editorship of N.A.Babija and I.O.Gruntova. Minsk: New knowledge, 2002. 902 with.

66 Sarkisovs E.A.criminal law. The general part: the manual. Minsk: Tesej, 2005. With. 115-116.

67 Woman's N.A.criminal law of Byelorussia. The general part: the textbook. Minsk: GIUST BGU, 2010. With. 99.

Scientists, as B.S.Nikiforov68, A.N.Trajnin69, A.A.Piontkovskij70, M.A.Gelfer71, N.I.Korzhanskij72, V.J.Tatsij73, etc.

Acquaintance with the literature of other authors of the Soviet period, and also with modern works of the Russian authors do not give optimism regarding unambiguity of understanding of object of a crime. But their positions force to penetrate more deeply into an essence of this concept, especially in a context of crimes considered by us against the child. Thereupon it is necessary to mention A.V.Naumov's opinion according to which in some cases the theory of object of a crime of the public relation "does not work". Especially it concerns crimes against person, first of all to murder. The author subjects to criticism confessing in a science of the Soviet criminal law the theory of understanding of essence of the person as to set of all public relations according to which object of murder is human life not as that in itself, namely in sense of set

Public relations, that obviously belittles absolute value of the person as biological phenomenon as the person from independent absolute value turns in the carrier of public relations (labour, defensive, office, family, properties etc.). In this connection the author believes, that the object theory

68 crimes on the Soviet criminal law See Nikiforov B.S.object. M: gos. Publishing house of the legal literature, 1960. 230 with.

69 the doctrine about the corpus delicti See Trajnin A.N.general. M: the State publishing house of the legal literature. 1957. With. 125.

70 the Course of the Soviet criminal law in six volumes See. A part the General. Volume II. A crime. M: Publishing house "Science", 1970. With. 111-112.

71 Gelfer M. A See. Object of a crime. M: JUrizdat, 1960.

72 Korzhansky N.I.object and a subject criminally-right protection See. M: Academy of the Ministry of Internal Affairs of the USSR, 1980. 248 with.

73 Tatsy V. JA See. Object and a crime subject in the Soviet criminal law. Kharkov: «Vyshcha school», 1988. 198 with.

Crimes as the public relations protected by the criminal law, cannot be recognised by universal теорией74.

Shortly before it article of Russian scientist N.I.Zagorodnikova in which approach which has actually affirmed as the literature to definition of concept of object of a crime as the public relation has been subjected to the serious criticism has been published. Recognising as a source of such theory the approach of the legislator of the first years of the Soviet power, defined, that a criminal law problem is protection of system of public relations, and a crime is infringement of an order of the public relations protected by the criminal law, N.I.Zagorodnikov has convincingly proved, that the recognition object of a crime of public relations belittles value, deforms a role of the person in a civilised society life, from the main and not varying universal value of the person transform into a minor component of a society. For this reason the author considered as object of a crime not public relations, and those blessings for which protection it is used criminal закон75.

It is necessary to pay attention thereupon and to G.P.Novoselova's original enough position which considers, that as object of any crime, and not just directed against the person, people who in one cases represent itself as separate physical persons, in others – in the form of some sort of set of the persons who have or not having the status of the legal person, in the third – as are

74 the criminal law Textbook See. The general part: the textbook / under the editorship of V.N.Kudryavtsev and A.V.Naumov. M: Publishing house "Spark", 1996. With. 84-85.

75 Zagorodnikov N.I.object of a crime//Scientific, scientific schools and ideas: the anniversary collection of proceedings. M: MJUI the Ministry of Internal Affairs of Russia, 1995. With. 4-5, 11.

Society (society) 76. The author defends the position and in later изданиях77.

According to V.D.Filimonova, object of a crime is not the public relation, and its maintenance, thus the author includes in structure of the public relation: 1) the social blessing as object of the public relation; 2) subjects of the public relation; 3) their requirements for the social blessing; 4) them взаимосвязь78.

Specified, as well as other positions of authors, represent the big scientific interest in respect of consideration of a question not only on ordering of crimes investigated by us, but also their legal essence.

Not less the great value has a question on classification of objects of a crime as criteria of construction of Special part UK (classification by a vertical). We will notice, that in the criminal law theory classification of objects on the general, patrimonial and direct was traditional. Thus the general object was understood as all set of the public relations protected by the criminal law. Under patrimonial – group of homogeneous (related) public relations which is protected by a complex criminally-rules of law. Under direct – the public relation to which it is caused or can be damnified (damage) as a result of fulfilment guilty concrete преступления79.

Such classification was spent taking into account a design of Special part UK, heads were basic which structural units,

G.P.Uchenie's 76 New settlers about object of a crime: methodological aspects. M: Publishing house Norm, 2001. With. 60.

77 the criminal law Complete course See: in 5 t. / under the editorship of A.I.Korobeeva. Volume 1.: the Crime and punishment. SPb.: R.Aslanova's publishing house «the Legal centre the Press», 2008. With. 342.

78 Filimonov V.Obekt of a crime and crime consequences//Criminal law. 2010. № 3. With. 67.

79 Criminal law BSSR See. A part the General / under the editorship of I.I.Gorelik and I.S.Tishkevicha. Minsk: Publishing house «Vyshejshaja school», 1973. With. 60, 61.

Consolidating crimes with uniform patrimonial object, and the majority of the Russian authors adhered to it.

Now, when the design of Special part UK has a little become complicated by its division into sections and chapters as components of sections, there was a necessity to establish other classification of objects of a crime which existed only in the criminal law theory earlier. Now taking into account construction UK classification of objects of a crime is offered more complicated, chetyrehchlennaja. However and in this question there are essential disagreements.

So, already mentioned JU.L.Shevtsov specifies on chetyrehchlennuju classification of objects of a crime: the general, patrimonial, group and direct. The author considers as patrimonial object group of the related and interconnected public relations protected by the criminal law. All crimes which encroach on the same patrimonial object, are consolidated in one chapter of Special part UK. Object of the crimes consolidated in section of Special part UK, he names групповым80. N.A.woman's also considers as patrimonial object set of the public relations protected by articles of one chapter. However the author considers as group object set of the public relations protected by several articles of same head UK. He considers as direct object that concrete public relation which is protected by separate article Criminal кодекса81. E.A.Sarkisov subdivides objects into four kinds: the general, patrimonial, specific and direct. Thus the author understands group of the homogeneous or identical relations protected by the criminal law from a certain circle of criminal trespasses as patrimonial object. The crimes having uniform patrimonial object, in its opinion,

80 the Criminal law of Byelorussia See. The general part: the textbook / under the editorship of V.M.Homicha. With. 92-93.

81 Woman's N.A.criminal law of Byelorussia. The general part: the textbook. With. 101.

Are consolidated in sections. On specific object as to narrower circle of public relations heads УК82 are under construction. Such position as a whole will be adjusted with the position of Russian scientist A.V.Pashkovsky which has supported authors, considering, that the specific object occupies intermediate position between patrimonial and direct and is thus a part, a subsystem of patrimonial object, being with it in the ratio «a sort – a kind» 83. But it is necessary to pay attention and to G.P.Novoselova's in general denying classification of objects of a crime on a vertical position (the general, patrimonial, direct) and recognising only classification of those across (the basic, additional, facultative). According to the author, supporters of classification of objects on a vertical actually mean a parity not the general – especial – separate, and another kategorialnogo a number: an element, a subsystem and system (or a number close to them: parts and whole). All set of objects of the crimes, taking place actually, according to G.P.Novoselova, actually appears not as the general object of an encroachment, and some system (whole) in which frameworks certain subsystems and elements (parts) can be allocated. The subsystem role is played by any version of objects of the crimes, including encroachments homogeneous for an orientation. Separately taken object of a crime acts as an element of system of objects as a whole and, simultaneously, its any subsystem 84.

Let's try to estimate approaches of scientists to definition of essence of object of a crime and classification of objects in a context of an investigated problem criminally-right protection the child.

82 Sarkisovs E.A.criminal law. The general part: the manual. With. 118–119.

83 the criminal law Course in five volumes See. Volume 1. The General part. The doctrine about a crime / under the editorship of N.F.Kuznetsovoj and I.M.Tjazhkovoj. M: Zertsalo Th, 2002. With. 215.

84 the criminal law Complete course See: in 5 t. / under the editorship of A.I.Korobeeva. Volume 1.: the Crime and punishment. SPb: R.Aslanova's Publishing house «the Legal centre the Press», 2008. With. 349.

In our opinion, supporters of a position «object – the public relation» constrains the traditional thinking, not allowing to depart from enough taken roots concept which founders were authoritative scientists. Therefore each of them, trying and to this day to keep its skeleton, string on it various nuances to harden belief in the validity and firmness of the given concept. From here there are specified concepts of object. For example, not denying a role of social values and the blessings, authors include them in the maintenance of public relations, etc. But, unfortunately, the corrected definitions of object of a crime as public relation get a boomerang effect more and more: belief in artificiality of the similar approach, in it nezhiznennosti, abstractnesses from realities, abstraktnosti, not perceived by human consciousness. Unreality of the concept «object – the public relation» it is possible to explain attempts of authors at definition of objects of concrete crimes to leave from this design and to define them really enough and it is realised. They are reflected and in most UK at a formulation in sections and heads of objects of crimes. Also has put at all that «the legislator, defining some patrimonial objects of crimes, names not public relations, and social values, for example, a life and health (gl. 19 UK), or interests, for example, interests of minors (gl. 21) or interests of service (gl. 35), etc.», resorting to such description of object only for maintenance of simplicity of perception of positions of the code with private soldiers гражданами85. The aspiration reason to similar formulations of object of a crime is, in our opinion, unreality of the phenomenon «public relations», difficulty of its adaptation to

85 Woman's N.A.criminal law of Byelorussia See. The general part: the textbook. With. 99.

To this or that object which is actually threatened injuries as a result of fulfilment of a concrete crime.

Let's not forget as well that the concept «object – public relations» has arisen in bowels of the Soviet science of criminal law when it was a question not simply of public relations, and about relations of socialist type, the especial relations considered as the most valuable blessing, any feeble effort on which it was regarded as criminal behaviour.

Moreover, as it was already repeatedly specified in the literature, sources of such concept were the legislative installations directly entering the term «public relations» as object protected by criminal law. And in bolshej parts referred to these installations authors – supporters of the specified concept. Especially it concerned «the Supervising beginnings on criminal law of RSFSR» 1919 in which positions about system of public relations of a class society which it it is necessary be for protecting by means of reprisal (item 3, 4, etc.) most often sounded . And though in the subsequent criminal laws public relations in quality pravoohranjaemogo object were not mentioned, authors interpreted their separate norms in the specified context. To subject to criticism legislative dogmas was at that time not only it is not accepted, but also it is dangerous, as they had more political character, underlining a criminal law role in protection of the Workers' and Peasants' power, in struggle against class enemies, in construction of a communistic society. Therefore aspirations of modern scientists to create new theories about object of a crime look quite natural or to return to earlier existing still in dosovetskoe time.

Not putting a problem of the global analysis of modern theories about object of a crime as independent and enough a difficult theoretical problem, we will try to formulate the vision on the maintenance

Object with reference to considered crimes against the child.

Let's note, first of all, that the specified crimes are included in section VII UK, called «Crimes against the person». The name of the given section allows to judge that scientists – developers UK of Belarus have not been attached to the theory «object – public relations». Otherwise in the name the term not "person", and "person" as it is made, for example, in UK the Russian Federation, Ukraine, etc., possibly, taking into account that the person was understood as the subject of public relations would appear. At such definition the person as a biological being drops out of a circle of objects or for a way out it is necessary to identify the person and the person. Meanwhile, such identification hardly has the bases. And quite often it is underlined it in литературе86.

The identification of the person and the person does not promote finding-out of a question on object criminally-right protection in that relation, writes JU.A.Demidov, – that the criminal law equally protects a life and the most active persons – participants and carriers of public relations, and newborns which comprise only potential possibility to get line of the person in the course of their future socialisation, and the people, which steels a victim of utter defeat of their person болезнью87. To the specified categories of the persons, not allowing them to consider as the person, it is necessary to carry and degrading people on the basis of full disintegration of moral personal installations. Referring to K.Marx's words that the essence of the person is constituted not by its beard, not its blood, not its abstract physical nature, and its social quality,

86 Vishnevskij A.F., Gorbatok N.A., Kuchinsky V. A See. The general theory of state and law: the textbook. Minsk: "Integralpoligraf", 2009. With. 466-468.

87 Demidov JU.A.social value and an estimation in criminal law. M: the Legal literature, 1975. With. 52.

A.V. Smiths wrote, that the term "person" is used more often when wish to underline social lines of the person, and the term

"Person" – in a more comprehensive sense, as the concept covering and its natural признаки88.

Thus, the person acts as wider concept including it both social, and biological properties. Such understanding of the person as object of a crime allows to consider as that and juvenile child. And though it yet did not become the person, it has got the right to the protection from the moment of a birth as the person.

Thereupon again we will return to object definition as public relation. At a recognition of such concept we will be forced to recognise, that, for example, at murder of the juvenile or minor child or injury to its health, abduction, trade, etc. harm will be caused not to the above-named blessings, and public relations concerning possession by these blessings. But after all these blessings given to it from the moment of a birth, are protected without dependence from public relations or an order of their realisation. Therefore true the antithesis sounded by N.I.Zagorodnikovym, that the modern society represents not so not abstract communications and relations between individuals is represented to us, it consists of concrete persons with their individual, physical and spiritual lines, with different sights, belief, abilities, possibilities. The person in this society acts as its basic beginning and the highest value. And the person – not as abstract set of all public relations », and the person, created these

88 Smiths A.V.criminal law and the person. M: the Legal literature, 1977. With. 14.

Relations, in process of the development improved them and placed in the service to all человечеству89.

Of fidelity of this position convince us and norms of the Constitution of Byelorussia accepted in refusal of socialist estimations of social values. According to item 2 of the Constitution the person, its rights, freedom and a guarantee of their realisation are the higher value and the society and state purpose. Specified and other articles of the Constitution devoted to protection of the rights and freedom of the person, do not bury human values in depth of public relations, and directly put them under protection as something real and visible. On pravoohranjaemye universal values we find express indications and in the known international documents devoted to human rights.

That already and among the Belarus scientists there are supporters of a sight at object not as the public relation and as social ценность90 is characteristic also.

Proceeding from told, the approach to definition of concept of object of a crime of those authors which put human values in its maintenance that does not exclude on occasion is represented to us more proved to consider as similar values and public relations.

As to classification of objects of a crime, that, in our opinion, the so-called vertical classification of objects specified above carries purely auxiliary (instead of scientific) character. It serves, first of all, for system designing of Special part UK. And refusal of it hardly is obviously necessary. The Another matter what to put in concept of the general, patrimonial, specific and

89 Zagorodnikov N.I.object of a crime//Scientific, scientific schools and ideas: the anniversary collection of proceedings. M: MJUI the Ministry of Internal Affairs of Russia, 1995. With. 13.

90 See Retneva N.I.criminal liabilit for a human trafic: [monography] / under obshch. red. E.A.Sarkisovoj. M-in vnuren.del Resp. Belarus, Akad. Ministry of Internal Affairs Resp. Belarus, 2009. With. 33-34.

Direct objects. Here again it is necessary to agree with G.P.Novoselovym considering with the major sign of similar classification sistemnost that allows to consider all set of objects of crimes as some system (whole) in which frameworks certain subsystems and elements (parts) 91 can be allocated. Such point of view focuses on strict observance of a system principle at designing UK even more. Moreover, it obliges the legislator to build similar systems in logic sequence, that, it is the unconditional, extremely important not only for external perception of structure UK, but also for a legal estimation of the crimes consolidated on certain system: from the general to the particular.

However we are not inclined to refuse the traditional terms defining kinds of objects of a crime, and we join opinion of those authors which offer chetyrehzvennuju classification of objects, considering, at the same time, that on patrimonial object sections of Special part UK, on specific – it главы92 should be under construction. The patrimonial object, from a position of the system approach, is a system of the homogeneous values protected from defined (enough big) a circle of crimes, and specific object – a subsystem including a circle of more concrete (too homogeneous) values. The direct object is a concrete element of the same system, that is the concrete value subjected to danger of injury as a result of committing a crime, provided in this or that article included in the head of Special part UK.

91 the criminal law Complete course See: in 5 t. / under the editorship of A.I.Korobeeva. Volume 1.: the Crime and punishment.

– WITH. 349.

92 We start with the standard concepts of systematisation: a sort – the group consolidating close kinds. A kind – the division which is a part of the higher section – sorts (the Explanatory dictionary of Russian with inclusion of data on an origin of words / otv. red. N.J.Shvedova. M: the Publishing centre

"Azbukovnik", 2007. With. 835, 91).

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A source: Guljakevich Dmitry Leonidovich. CRIMINALLY-RIGHT PROTECTION the CHILD In REPUBLIC Belarus. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2015. 2015

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