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ž 3. Criminalisation and a general characteristic of evasion of parents from the maintenance of children or from the reimbursement, spent by the state on the maintenance of children who are on the state maintenance

Most widespread of all crimes of the considered chapter is evasion of parents from the maintenance of children or from the reimbursement, spent by the state on the maintenance of children who are on the state maintenance, provided by item 174 UK.

Annually in Belarus it is condemned under given article UK over 6 thousand persons (in 2008 – 2013 under item 174 UK 6616, 6801, 7375, 6872, 7375 and 5372 people have been condemned accordingly). The data Social danger

203 Woman's N.A.criminal law of Byelorussia. The general part: the textbook. 2010. With. 213.

Crimes it is caused by that harm which is caused or can be caused the child regarding realisation of its right to the worthy standard of living necessary for physical, intellectual, spiritual, moral and social development of the child, fixed both in the international documents, and in the national legislation.

Criminalisation of the specified inactivity has been carried out during Soviet time and that is far not at once from the moment of creation of the Soviet state. For the first time the norm providing responsibility for non-payment of means awarded by court for the maintenance of children as it was specified earlier, has been entered in UK in 1924 the Specified interdiction remained and in the subsequent legislation. In item 120 UK of 1960 responsibility for malicious evasion from payment of the alimony or from the maintenance of children was provided. In initial edition of item 174 UK of 1999 evasion of parents from the maintenance of children was provided. In the subsequent given article repeatedly changed. But its essential change consisted that criminalisation of such act as evasion of parents from the reimbursement has been carried out, spent by the state on the maintenance of children who are on the state maintenance (ch. 2 items 174).

Therefore, in spite of the fact that in the pre-revolutionary legislation the specified interdiction was absent, preservation its long time in the Soviet and Post-Soviet criminal legislation also testifies to its traditional character of what convinces us and the legislation of other countries. UK all states of the so-called near abroad, except Republic Moldova, provide responsibility for evasion of parents from performance of the alimentnyh duties. Are not an exception in this question and the far abroad states.

The social danger of the crime provided ch. 1 item 174 UK, is predetermined first of all by value of protected object.

As it has been already told, default alimentnyh duties parents directly is connected with threat to a survival of the child, to its healthy and safe development. If to mean the social danger of the crime fixed in ch. 2 specified articles it is predetermined by the harm caused not only healthy and safe development of the child, but also to economic interests of the state. It would be possible to believe, that from nonpayment by parents of means for the maintenance of children level and quality of their maintenance with the state will not decrease at all. And in this case it would be possible to recognise as object of the given crime only interests of the state. However the analysis of certificates of the legislation regulating financial security of children in such cases, says that at evasion of parents from payment of means for the maintenance of children who are on the state maintenance, their well-being too is restrained.

As the state is underlined in the literature, incurs the obligation under the maintenance of children who are on its maintenance, irrespective of repayment by parents of a debt. But such children cannot count, that their right to a worthy standard of living will be realised to the full. Here it is a question only of satisfaction of basic needs of children averaged by norms of the legislation where everything is counted, up to daily requirement of bread in граммах204. The author considers, that increase of a standard of living of children who are on its maintenance depends on compensation by parents of expenses to the state.

Owing to told the fact of criminalisation of the given act does not cause a question. It was a consequence of the measures undertaken by the state on increase of responsibility of the parents who are not carrying out duties on education and the maintenance of children. In accepted from 24

204 Osipenko O. A See. Evasion of parents from a duty on financial security of children: criminally-legal and kriminologicheskaja the characteristic//the Bulletin of Academy of the Ministry of Internal Affairs of Byelorussia. 2010. № 2. With. 44.

November, 2006 the Decree of the President of Byelorussia № 18 źAbout supplementary measures on the state protection of children in unsuccessful families╗ the social danger of the specified act in force, first of all its harm for economic interests of official bodies, that is managements (departments) of formation – in cases when children are on the state maintenance in children's homes of family type, tutorial families, reception families, and children's internatnyh establishments, children's villages (small towns), the state specialised agencies for the minors requiring the social help and rehabilitation, the official bodies providing reception professional, average special, of higher education, – in cases when children are on the state maintenance in these учреждениях205 has actually been established. Influence on the social danger of the specified act was rendered also by the negative characteristic of its subject. According to item 8 of the specified Decree to the persons, obliged to refund expenses under the maintenance of children, parents in cases concern: otobranija at them children under the Commission on Juvenile Affairs decision; otobranija at them children on the basis of the decree without deprivation of the parental rights; deprivations of their parental rights; their findings in search, medical-labour dispensaries or in holding in custody places; endurings the punishment in the establishments executing punishment in the form of imprisonment, restriction of freedom, arrest.

At the same time, placing in one article of two independent crimes though also relatives under the legal maintenance, cannot be recognised by successful from the point of view of designing rules

205 About supplementary measures on the state protection of children in unsuccessful families: the decree of the President of Byelorussia from November, 24th, 2006 № 18//the National register of legal acts of Byelorussia. 2006. № 198. 1/8110.

Structures of crimes, from a position of their criminally-legal estimation. It is necessary in this connection to agree with V.V. Marchukom, that allocation in ch. 1 and ch. 2 items 174 UK of independent kinds of crimes contradict not only the legislative technics of designing criminally-rules of law, but also generates serious problems for qualification of a crime and definition of measures criminal ответственности206.

Let's notice, that unlike regulation of responsibility for a considered crime in UK 1960, the legislator has refused a "malignity" sign, that, in our opinion, facilitates to establish illegal character of the given act. In this part UK of 1999 has apprehended the recommendation of the Modelling Criminal code for the state-participants CIS, not considering, however, the term of evasion established in the law a malignity indicator as it takes place in Modelling UK. For comparison: in UK the Russian Federation the given structure without an establishment of deadlines of evasion as malicious evasion of the parent from payment under the decree of means for the maintenance of minor children, and equally invalid children who have reached of eighteen-year age (item 157) is formulated. It causes ambiguity and difficulties in interpretation of malicious character of such evasion. Similar definition of the objective party of this crime contains in UK Georgia (item 176), Azerbaijan (the item 176), Kyrgyzstan (item 162), Turkmenistan (item 160), Ukraine (item 164). In the same UK where there are instructions on 3-3 - monthly term of evasion, there are no instructions that such evasion should take place within a year.

Thus, to definition of the objective party of a considered crime in UK Belarus it is possible to recognise the approach optimum. And practice shows, that difficulties in a formal establishment of presence of punishable evasion, as a rule, not

206 Marchuk V.V. Novaja edition of article 174 UK of Byelorussia (criminalisation questions, penalizatsii and qualifications)//Веснік Віцебскага dzjarzhaunaga універсітэта. 2009. № 4. With. 41.

Arise. It admits when the person to whom the duty on financial security of children is assigned, without valid excuse such duty does not carry out under condition of judicial decision presence about collecting from it the concrete sum of means in favour of the child.

Evasion can be expressed in passive behaviour (inactivity) in those cases if the party liable has no place of work and deliberately does not find a job at real possibility to get a job. It can be expressed in active inactivity when a party liable hides the site or a work place, falsifies accounting documents, represents falsehoods about a place of work or about the size of the wages, etc. Thus all similar actions should proceed in total more than three months within a year (it is not required to a continuity of such evasion) and to have the result nonpayment of means relying to monthly payment on the maintenance of children. Moreover, in our opinion, too it is necessary to recognise incomplete payment of the alimony as punishable act that proves to be true at system interpretation of norm ch. 1 and norms ch. 2 items 174 UK in which incomplete compensation of means for the maintenance of children is considered as socially dangerous consequence.

With a view of correct qualification of a considered crime it is necessary to establish the moments of its beginning and the termination. In the literature this question dares ambiguously. So, according to E.A.Sarkisovoj, this crime reaches stages of the three-monthly term ended with the expiration estimated in aggregate for year during which the person did not carry out a duty established by the judicial decision, proceeds at this stage and admits ended from the moment of fulfilment guilty the actions directed to the termination of continuation of a crime (for example, payment of the specified means), or approaches of the events interfering the further fulfilment

Crimes (for example, its attraction as convicted on ch. 1 items 174 UK) 207. V.V. Timoshchenko considers, that ended this crime admits under the decree (judge) from the moment of the expiration of three months of evasion from payment of means for the maintenance of children at finding of fact of non-payment without valid причин208. Osipenko recognises this crime ended if after the three-monthly term estimated in aggregate for year, the person has not executed a duty established by the judicial decision about collecting of means for the maintenance детей209.

Thus, the main different interpretation in a case in point consists that in one cases the moment of the termination of the specified crime does not contact a judgement on an evasion recognition criminal (enough that actual non-payment of means lasting three months within a year took place), and in others – the decision of this question contacts a recognition court of evasion to the criminal.

The question on an establishment of the moment of the termination of the given crime depends on it is necessary to carry to what kind of its difficult crimes: to lasting or continued. The majority of authors the considered crime admits lasting. Such position is proved, first, by definition of concept of the continuing crime given still in the decision of Plenum of the Supreme Court of the USSR from March, 4th, 1929 (in red. Decisions of Plenum of the Supreme Court of the USSR from March, 14th, 1963 № 1) which has defined continuing crime as the act or omission interfaced to the subsequent long failure in duties, assigned on guilty the law under

207 the Criminal law of Byelorussia See. The special part: the manual / under the general red. A.I.Lukashova. With. 152.

208 the Scientifically-practical comment to the Criminal code of Byelorussia / under the general red See. A.V.Barkova, V.M.Homicha. With. 379.

209 Osipenko O. A. The decree. soch. With. 44.

Criminal prosecution threat. Plenum also has specified, that continuing crimes are characterised by continuous realisation of structure of certain criminal action. They begin with any criminal act (for example, at the unauthorized absence) or from the criminal inaction certificate (at failure to report about a crime). Secondly, Plenum in the specified decision has directly carried malicious evasion from payment of the alimony or from the maintenance of children to continuing crimes.

The specified positions of Plenum are used by scientists as argument of reference of this or that crime to the lasting. And reference by the Russian scientists of malicious evasion from payment of means for the maintenance of children, provided by item 157 UK the Russian Federation, to the lasting has the bases owing to the design of the given structure in UK. Though, some Russian authors (for example, S.A.reason) consider this crime as continued which consider ended from the moment of the fact-finding, confirming signs of malignity of this act. In UK Belarus the considered corpus delicti is formulated with instructions of a deadline of default by the person alimentnoj duties. Thus for crime presence it is not required to a continuity of such evasion that is characteristic for continuing crime. On it there are instructions in legislative concept of the continuing crime defined, for example, in Republics Moldova UK (the item 29) according to which continuing crime the act characterised by continuous fulfilment of criminal activity during uncertain time admits. In case of continuing crime of plurality of crimes does not exist. Moreover, continuing crime begins when in act of the person the corpus delicti already contains. In a case of the crime provided ch. 1 item 174 UK of Belarus, the beginning of evasion from performance alimentnyh duties yet does not mean corpus delicti presence. It will be recognised only after three months.

Hence, the term which has exceeded 3 months will be the initial moment of this crime. It is necessary to consider this moment as the beginning of penal default alimentnyh duties, that is the beginning of the continuing crime provided ch. 1 items 174 UK. The voluntary termination of the specified inactivity by full repayment of the formed debts or excitation of criminal case against the guilty person will be the moment of its termination, probably. It concerns cases when the guilty person is continuous within three months did not carry out the alimentnye a duty. But the structure of the given crime will be and when within a year three-monthly term of non-payment of the alimony interrupted. In such cases the crime will consist of identical certificates of evasion, but ended for qualification it will be recognised only when in total there will come for such inactivity the term exceeding 3 months. Therefore with reference to the specified cases it is necessary to recognise a considered crime as the continued, which moment of the termination there will be a day which has come after the expiration in aggregate of three months. After a year evasion from payment of the alimony if the sentence concerning the guilty person has not been enacted, should be considered as return to crime.

The objective party of the evasion provided ch. 2 items 174 UK, form following alternative forms of evasion: 1) absence from work ten and more working days within three months; 2) concealment or understating of the size of wages and the incomes equal to it;

3) evasion from employment under the judicial decision. Thus unlike the corpus delicti provided ch. 1 items 174 UK, structure of the given crime it is formulated as material, an obligatory sign of which objective party is the consequence in the form of default or incomplete execution of monthly obligations under the reimbursement, spent by the state on the maintenance of children,

Being on the state maintenance. Moreover, the specified norm has got character administrative prejuditsialnosti: evasion from employment under the judicial decision admits criminal only in case of its fulfilment within a year after official penalty imposing for the same infringement which is provided item 9.27 KoAP.

Such features in legislative regulation of responsibility of parents for default alimentnyh duties have arisen, as it was specified earlier, in connection with the measures undertaken by the state on protection of children in unsuccessful families. The decree of the President of Byelorussia from November, 24th 2006 № 18 a task in view of the maximum attraction to work of parents-debtors that their earnings though somehow could cover debts under maintenance obligations. To execute the specified Decree the Ministerial council in approved by it Положении210 has defined an order of attraction of such parents to work, has established duties of bodies of public service of employment on maintenance of debtors with work according to the court decision, and also duties of employers on their employment.

The corpus delicti provided in ch. 2 items 174 UK, fulfilment of acts in any of three below the specified forms assumes.

The first form – absence from work ten and more working days within three months assumes full absence of the worker on a workplace within 10 and more working days without valid excuse. Absence from work can be identified with a prorumble but only in the event that the person completely was absent on a workplace. If the worker has made a prorumble, being absent on a workplace more than three hours

210 Position about employment of the parents, obliged to refund the expenses spent by the state on the maintenance of children, being on the state maintenance: utv. The decision of Ministerial council of Byelorussia from January, 26th, 2007//the National register of legal acts of Byelorussia. 2007. № 29. 5/24618.

Within the working day the given infringement of a labour discipline does not extend on the punishable form of evasion from alimentnyh duties. In sheets of use of working hours or in other documents time during which the worker actually worked should be specified on what the sum of its earnings and the sum of a deduction from it on the maintenance of the child will depend. In the Labour code (the item

42) as the basis of cancellation of the employment contract at the initiative of the employer it is provided, including occurrence on work in a condition of alcoholic, narcotic or toxic intoxication, and also drinking of spirits, the uses of narcotics or toxic substances in working hours or in a work place that is also the basis for application of measures of summary punishment for labour discipline infringement. In our opinion, occurrence on work in a condition of the alcoholic, narcotic or toxic intoxication interfering the person to carry out professional duties, in a context ch. 2 items 174 UK also should be regarded as the alternative form of evasion from payment of means for the maintenance of children.

The second form of evasion from alimentnyh duties – concealment or understating by the person of the size of wages and the incomes equal to it consists in full concealment of the size of wages and the incomes equal to it or in deliberate understating of their size. The list of the incomes equal to wages contains in from the item

520 Civil codes of practice of Byelorussia, and incomes on which collecting cannot be turned, – in item 525 GPK which on the persons, obliged to pay means for the maintenance of children, extends with certain restrictions.

The third form of a considered crime consists in evasion from employment under the judicial decision that follows from the Decree of the President of Byelorussia № 18, employment which have provided necessity of idle parties liable, and also

The working parties liable refunding expenses under the maintenance of children in a voluntary order under the statement, but not in full. Accordingly the Decree, and also in notes to item 9.27 KoAP and to item 174 UK defines evasion from employment.

Obligatory sign of the objective party of the crime provided ch. 2 items 174 UK, are presence of socially dangerous consequence to which default or incomplete execution of monthly obligations under the reimbursement admits, spent the state on the maintenance of children who are on the state maintenance.

The structures of crimes provided ch. 1 and ch. 2 items 174, consolidate the signs characterising their subject and the subjective party. In both cases as the subject of the given crimes parents are named. Whether the given term comes under to extensive interpretation? The authors investigating the given crime, differently approach to this question. So, V.I.Penkrat considers, that the subject of this crime are only parents and that impeachment under item 174 UK of adoptive fathers is not proved though the court on the basis of item 140 KoBS can oblige them to payment алиментов211. Only parents as the subject of a considered crime recognise also O.A.Osipenko though she does not mention adoptive fathers, and obosnovanno considers, that trustees, trustees, and also persons to whom the court has assigned a duty on education of children, agrees ch. 1 items 163 KoBS, are not subjects of data преступления212. Meanwhile, V.V. Timoshchenko carries to subjects of a considered crime of parents, including and that which paternity is established on the basis of item 52 and 53 KoBS; adoptive fathers who after adoption accept

211 Penkrat V. I. Criminally-legal protection families in Byelorussia: diss. On soisk. uch. step. kand. jurid. Sciences. Minsk, 2003. With. 54.

212 Osipenko O. A. The decree. soch. With. 46.

On itself duties of the parent (item 134 KoBS); the parents deprived of the parental rights (ch. 3 items 82 KoBS) 213. The question on the subject of a considered crime and in the Russian literature is ambiguously solved. So, for example, according to S.A.Razumova, the parents specified in the certificate of birth of the child, and also the person, legally it усыновившие214 can be the subject of a considered crime. And A.I.Chuchaev considers, that the perpetrator, provided ch. 1 items 157 UK the Russian Federation, can be only parents, i.e. the persons who have been written down by the father or mother of the child in a blotter of a birth, including those which paternity is established in an order provided by item 49 SK РФ215.

Thus, the main question consists in, whether there can be adoptive fathers subjects of a considered crime. We are inclined to agree with those authors who do not suppose extensive interpretation of the term "parents", namely they are defined in item 174 UK as the subject of the given crime. However as KoBS supposes possibility of collecting of the alimony and from adoptive fathers, reduction in conformity of item 174 UK from item 140 KoBS according to which the court, proceeding from interests of the child, has the right to oblige the former adoptive father to pay means for the maintenance of the child according to chapter 11 of the given Code is required.

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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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