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§2. A problem and the way of perfection of the legislation of the Russian Federation providing clearing of minors from the criminal liability, and practice of its application

With reference to the Russian legislation we will notice, that some problems concern general views of clearing of the criminal liability which can be applied to the minors who have committed a crime.

We believe, that perfection of the existing positions established by articles 75, 76,78 UK the Russian Federation, taking into account features of their application to minors is actual.

First, according to articles 75, 76, 90 UK the Russian Federation clearing of the criminal liability extends only on actions (inactivity certificates) which are carried to categories of crimes of small or average weight. We believe, that in articles 75 and 76 UK the Russian Federation that crimes of minors under the actual facts can essentially differ from penal acts of adult persons is not considered. Minors, as a rule, commit crimes not with low promptings, and with other dominating motives. For example, thefts, robberies, armed assaults sometimes are based at teenagers on mercenary motives in a combination to motives of mischief, aspiration to approve in a microhabitat, desire to fill the free

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Time or propensity to the imitation, the raised emotionality, a character unbalance. It is represented, that the differentiation of the perpetrator between adult persons and minors demands also differentiation in each concrete basis of clearing of the criminal liability between them.

At fulfilment of penal act to the minor about sixteen years difficultly are elderly (or even it is impossible) to realise distinction between a crime of average weight and grave crime. For example, usually [170] minor is elderly till sixteen years does not realise, that plunders from garage and from apartment are various under the social danger. According to positions of articles 75, 76, 90 UK the Russian Federation the minor is elderly till sixteen years, made theft from garage which is among crimes of average weight (the item ch. 2 items 158 UK the Russian Federation), can be released from the criminal liability. However the same category of the minors who have made theft from apartment, among grave crimes (the item "and" ch. 3 items 158 UK the Russian Federation), in the presence of the same preconditions it will be involved in the criminal liability and will incur it.

In the law some crimes are provided, which start to concern a category heavy, if they are made by a group of persons on preliminary arrangement (for example, the crimes provided by the item "and" ch. 2 items 161 UK the Russian Federation, the item "and" ch. 2 items 166 UK the Russian Federation and others). Though these crimes are made by the teenager in group, he can play an insignificant role in partnership or its participation in committing a crime can be a consequence of involving of adult persons. Besides, the act made by the minor, even carried to a category of grave crimes, not always represents the big public

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Danger.

Taking into account stated, we suggest to expand a circle of conditions of clearing of the criminal liability concerning the teenagers who have not reached shestnadtsatiletnego age. Consider expedient to provide position according to which the given persons can be released from the criminal liability not only for crimes of small or average weight, but also and for the grave crime made by them for the first time, on the basis of articles 75, 76, 90 UK the Russian Federation.

The specified addition of the criminal law will promote essential change of position of the minors who have committed crimes, and economy of criminally-legal reprisal. [171]

Taking into account edition of the Federal act from July, 6th 2016 № 375-FZ minors are elderly till sixteen years, can be involved in the criminal liability, for fulfilment of the crimes provided by articles 105, 111, 112, 126, 131, 132, 158, 161, 162, 163, 166, ch. 2 items 167, 205, 2053, ch. 2 items 2054, ch. 2 items 2055, 2056, 206, 207, ch. 2 items 208, 211, ch. 2 items 212, ch. 2 and ч.3 item 213, 214, 222.1, 223.1, 226, 229, 267, 277, 360, 361 UK the Russian Federation. Thus item 75 items, 76 and 90 UK the Russian Federation in edition offered by us will provide only possibility of clearing of the criminal liability of teenagers aged till sixteen years which have made grave crimes, depending on consideration of concrete business pravoprimenitelnom body. Besides, application of clearing of the minor from the criminal liability demands maintenance of the rights and interests of the victim, interests of the state and a society. Therefore it is offered to add point 31 of the decision of Plenum of the Supreme Court of the Russian Federation from February, 1st, 2011 № 1 «About judiciary practice of application of the legislation regulating features of the criminal liability and punishment of minors» with paragraph 3 of the following maintenance: «At the decision of a question on clearing of the criminal liability of minors about sixteen years which for the first time have made grave crimes are elderly, on the basis of article 90 UK the Russian Federations are considered following circumstances: presence of extenuations in the absence of aggravating circumstances; supporting role performance in fulfilment of such crime (for example, roles of the helper); incompleteness of grave crime (preparation, attempt) etc. For clearing of the given persons of the criminal liability on the basis of article 75 UK the Russian Federation it is necessary to establish the fact of compensation by them of a damage or other smoothing down of the harm caused by the corresponding crime».

The offer on possibility of clearing of the teenager is elderly till 16 years from the criminal liability for grave crime fulfilment mentions a question on definition of term of application «transfers under supervision..."Or"restrictions of leisure and an establishment of special requirements.», which can be appointed in this case. With one party, the given term should not admit an unnecessary tightening of execution of a measure, optimum promote realisation of educational influence. On the other hand, definition of the given term should express differentiation of terms of application of the named measures appointed at committing a crime of small or average weight. Term of application of the measures provided by the item and the item « g »ch. 2 items 90, are established by duration from six months till three years at committing a crime of average weight (ch. 3 items 90 UK the Russian Federation). And term of a premise of minors in special teaching and educational establishments of the closed type does not exceed three years which is applied at fulfilment of a crime of average weight by them or grave crime (ch. 2 items 92 UK the Russian Federation). It is thought, that the maximum term of application of forced measures of educational influence is expedient for keeping and in an offered case, having made differentiation by means of increase in the minimum term till 1 year.

Smoothing down by the person of the harm caused to the victim admits to one of compulsory conditions of clearing of the criminal liability under item 76 UK the Russian Federation. In our opinion, the in itself fact of compensation of harm not always testifies to the insignificant social danger of the person of the minor who has committed a crime.

So, the Stupinsky city court has ceased criminal case concerning Alfeeva, committed a crime provided ch. 1 items 166 UK the Russian Federation, at reconciliation with the sustained. Alfeev - the pupil 9 classes of high school, could not indemnify itself the caused loss for the sum of 290 000 roubles. The victim had been declared requirements possibility of achievement of reconciliation after vozme -

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shchenija a damage. Therefore, actually the damage has been compensated by his parents.

Let's notice, that in practice there can be cases of reconciliation with sustained in which result last can not demand to indemnify the caused loss or to smooth down harm in any maintenance and the size. Then it is formal on the basis of item 76 UK the Russian Federation the answer - [172] stvennosti the person who for the first time has committed a crime of small or average weight though it was already consiliated with sustained cannot be released from criminal, but did not smooth down damnified. Besides, if the crime has not harmed or a damage, whether that for clearing of the criminal liability necessarily to smooth down harm?

In judiciary practice there are cases of the termination of criminal case in connection with reconciliation with sustained when guilty «should not smooth down the harm caused to the victim».

For example, T at excess of requirements of justifiable defence has deliberately done to the health which has sustained heavy harm therefore last has deceased in hospital. By agencies in charge of preliminary investigation T it has been accused on ch. 1 items 114 UK the Russian Federation. In session of the court the wife of victim K.O. Has declared the petition for dismissal of action concerning T in connection with reconciliation. In the petition it has specified, that did not wish to involve T in the criminal liability, had no claims to it, has refused the claim about damage compensation. T the Russian Federation have been released from the criminal liability on the basis of item 76 UK.

On other criminal case G has deliberately done heavy harm to health to the husband of P in a condition of suddenly arisen strong mental disturbance caused by violence from its party. It was convicted under item 113 UK the Russian Federation. In session of the court of P has declared the petition for dismissal of action concerning G in connection with reconciliation with it. He has declared in court that has forgiven her as the event reason - its behaviour, has refused the claim about damage compensation. G the Russian Federation has been released from the criminal liability on the basis of item 76 UK.

In Podolsk city court case in the relation of teenager Vasilevoj - convicted on ch has been considered. 2 items 158 UKRF which repeatedly made thefts of things at mother (4 facts). Mother tried to solve education questions, addressing at the next theft with the statement for attraction of the daughter [173]

To the criminal liability. However after business receipt in court, to it became

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The daughter is a pity, and she has asked «not to judge it» and to cease business by manufacture.

G ovorja about value of application of item 76 UK the Russian Federation, A.A.Magomedov has noticed, that «application of clearing of the criminal liability in connection with reconciliation with the sustained gives the chance to resolve a conflict situation between sustained and the person who has committed a crime, without additionals, with menyttimi remedial and moral expenses» [174 [175] [176]. Agreeing with this opinion, V.N.Tkachev has noticed, that «to consider the given form of interaction between sustained and the person who has committed a crime, it is wider - in a context of measures of the criminally-legal influence forming material wasps -

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novu realisations of the concept of regenerative justice ».

Proceeding from the above-stated, in our opinion, the formulation «also has smoothed down damnified the victim» in item 76 UK the Russian Federation is excessive. With a view of distribution of regenerative justice we suggest to consider, that «the fact of achievement of reconciliation with sustained» is a sufficient condition for the decision on possibility of clearing of the criminal liability of adult persons or the teenagers who for the first time have committed crimes of small or average weight, and equally minor, for the first time made grave crimes is elderly till sixteen years. We believe, that the given question is worthy the legislator. As possible edition of article 76 UK the Russian Federation we offer the variant of the formulation of conditions of clearing of the criminal liability: «the Person who for the first time has committed a crime of small or average weight, can be released from the criminal liability if it was consiliated with sustained».

On the basis of results of the carried out research it suggested to change the name of item 90 UK the Russian Federation «Application of forced measures educational influence to" Clearing of the criminal liability of minors »and to state parts the first and the second given article in the following edition:« 1. The minor who for the first time has committed a crime of small or average weight, and equally minor, for the first time made grave crime is elderly till sixteen years, can be released from the criminal liability in an order provided by a part of first article 75 or article 76 of the present Code.

2. The minor who has committed a crime of small or average weight, and equally minor, for the first time made grave crime is elderly till sixteen years, can be released from the criminal liability if it will be recognised, that their correction can be reached by application of following forced measures educational воздействия:... ». 80,7 % of the interrogated respondents have agreed With these offers in the Russian Federation.

Secondly, as we already specified earlier, the concept «the person who for the first time has committed a crime», used in item 75 item, 76, 76 and 76 UK the Russian Federation, is interpreted by Supreme Court Plenum widely and not absolutely correctly. A lack of the specified explanation containing in the decision of Plenum of the Supreme Court of the Russian Federation from June, 27th, 2013 № 19, is possibility of numerous clearing of the criminal liability of the same person on the same basis or on other of these bases. For example, by Podolsk city court from the criminal liability it has been released Vasileva - convicted on ch. 2 items 158 UKRF, which repeatedly made (4 facts) thefts of things at mother. However, concerning Vasilevoj earlier business stopped behind reconciliation on the facts of 5 similar thefts. [177]

In a science of criminal law of Socialist Republic Vietnam concept «the person who for the first time has committed a crime» is considered in a context of circumstances softening the criminal liability and provided as that in the item «h» ch. 1 items 46 UK SRV. And, «presence of many extenuations» is one of compulsory conditions at clearing of teenagers of the criminal liability. Therefore, it is necessary to make uniform definition of concept «fulfilment for the first time crimes».

In the criminally-legal literature, and also in practice there are various opinions on definition of the given concept:

Supporters of the first opinion consider, that for the first time committed a crime it is necessary to consider the person who has committed a crime, earlier not having a previous conviction and also not subjected administrative or a disciplinary responsibility for fulfilment of act which formally contains signs of any act provided UK SRV, but represents the insignificant social danger. In SRV the given interpretation is used in practice most often. The following person admits not having a previous conviction: the person has not made any crimes; the person has made one or several crimes, of which it has not been condemned earlier for one (as one or not - how many crimes are not revealed, or it is released from the criminal liability, or the limitation period has expired); the person is condemned, but accusatory prigo - the thief has not become effective.

However there is a second opinion that for the first time a crime the person who has committed a crime admits committed, earlier not having a previous conviction when it could undergo earlier administrative or a disciplinary responsibility for fulfilment of act which formally contains signs of any act provided UK SRV, but possesses the insignificant social danger.

For example, Nguen Van Min (16 years), once have been involved in administrative responsibility for secret plunder of another's property in cost less than 2000000 Vietnamese dongov (under criminal legislation SRV the person, is exposed to the criminal liability for theft if the sum of the stolen constitutes not less than 2000000 Vietnamese dongov - 100 US dollars are equivalent). On May, 23rd, 2014 it has made theft of property in cost 38 000 000 Vietnamese dongov (1900 US dollars). In a verdict of guilty Juan has established regional court Than, that Min, subjected to administrative responsibility, has no previous conviction. Therefore, it has been recognised by the person who for the first time has made pre -

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stuplenie.

In the third opinion, for the first time a crime the person who did not have a previous conviction or were condemned, when a previous conviction is committed has been removed or extinguished. The given understanding of concept «the person, the first the committed crime» is similar to the interpretation resulted in the decision of Plenum of the Supreme Court of the Russian Federation from June, 27th, 2013 № 19.

Explanations in the decision of Plenum of the Supreme Court of the Russian Federation, and also various scientific opinions of scientists SRV on concept «the person who for the first time has committed a crime» are not absolutely true and very wide for compulsory condition of clearing of the criminal liability of the person who have committed a crime. As depending on concrete circumstances of business and an estimation of competent state bodies, «the person who has committed a crime» can be not involved in the criminal liability or come under to condemnation, admit guilty committing a crime, be released from punishment or undergo punishment and a previous conviction. Undoubtedly, the question of clearing of the criminal liability concerning any person arises only in a case when it has already committed any crime, but it has this or that basis of clearing of the criminal liability. And in case of clearing of punishment of the person who have committed a crime, it already admits a guilty sentence of court with appointment or without appointment of any punishment. To us sees, that though the person and was released from the criminal liability and punishment, or its previous conviction has been removed, actually it has made pre -

See: Ho so sha Toa an nhan dan quan Thanh Xuan - 2014. Vu an so 25-2014/06. (The Source is translated by the author: Archive of the people's court of area Than Juan - 2014. Business № 25-2014/06).

stuplenie, hence, it is impossible to recognise the given person as "the person who for the first time has committed a crime» if it commits other crime. And item 75 items, 76, 76 and 76 UK the Russian Federation contain the formulation «the person who for the first time has committed a crime», instead of «the person who earlier was not condemned, committed crime», «the person, earlier not sudimoe, the committed crime» or «the person, the previous conviction with which is removed or extinguished, the committed crime». In this connection at concept definition «the person who for the first time has committed a crime» is necessary to lean against the committing a crime fact, instead of on the form of its legal effects, i.e. to define «for the first time made» as «earlier not making». Besides, we believe, that should not be considered as the person who for the first time has committed a crime, the one who did not make earlier penal act, but for the concrete moment has made cumulative offences.

We consider, that in the decision of Plenum of the Supreme Court of the Russian Federation from June, 27th, 2013 № 19 unduly wide definition of concept «the person who for the first time has committed a crime» who can reduce efficiency of preventive maintenance and crime control is resulted, and also to promote corruption displays during investigation and consideration of criminal cases as creates preconditions for increase in limits of the discretion pravoprimenitelja at acceptance of corresponding decisions. Therefore, we suggest to change concept «the person who for the first time has committed a crime» in the decision of Plenum of the Supreme Court of the Russian Federation from June, 27th, 2013 № 19.

On the basis of the positions set forth above, on the bases provided by articles 75, 76, 76 and 76 UK the Russian Federation, we offer following definition of the allocated concept: «for the first time committed it is necessary to consider a crime, the person who has committed one crime, provided in the Criminal code of the Russian Federation if earlier it did not commit a crime». The given point of view of the author was supported by 69,3 % of respondents. [178]

Thirdly, we believe, that decrease half a limitation period for the minors who have committed a crime of small weight, is unreasonable as actually excludes possibility of full realisation of the criminal liability for the given acts.

At realisation of investigation, proceeding of criminal case concerning the minor who has committed a crime of small weight, one year can quite not suffice, especially if the teenager is convicted of several crimes of given or higher category. In a year the limitation period comes to an end, that assumes a possibility exception to condemn the minor for committing a crime of small weight. We can list preconditions for manufacture extension on business in time: this time for revealing of a crime and the person, its made, investigation and observance of all procedures, a legal investigation in court and the period of the introduction of a sentence in force, besides, the defender is artificial can to tighten time various complaints and petitions. If the legislator defines a prescription year it gives an occasion to abusings from those who protects this person. Besides, on many crimes even happens so, that the minor convicted simultaneously commits a crime small weight, average weight and grave crime, and corresponding business is in one manufacture. The given circumstance can lead to the termination of criminal cases regarding charge in crimes of small or average weight. For example, as it is established from business materials, SH has been convicted for fulfilment of nine crimes. However, on February, 2nd, 2012, when SH the minor was, it has made one of the crimes provided ch. 1 items 158 UK the Russian Federation. According to item 78 item, 83, 94 UK the Russian Federation, a year of statute of limitation in criminal cases for the committed crime has expired on February, 1st, 2013. Therefore criminal case concerning committing a crime, it is provided - [179] nogo ch. 1 item 158 UK the Russian Federation, court has ceased. SH punishment for fulfilment of other eight crimes is appointed.

In judiciary practice there are many examples of clearing from ugo - lovnoj responsibility of minors after a prescription year.

For example, on June, 5th, 2011, minor B has made a beating (ch. 1 items 116 UK the Russian Federation). According to item 78 item, 94 UK the Russian Federation, a year of statute of limitation in criminal cases for the committed crime has expired on June, 5th, 2012, that is before criminal case receipt in court and the beginnings of session of the court. Therefore, criminal case has been ceased on the basis of item 3 ch. 1 items 24 UPK the Russian Federation.

On September, 3rd, 2013, minor P has committed a crime provided ch. 1 items 282 UK the Russian Federation (on edition FZ the Russian Federation from 07.12.2011 № 420 FZ). However the year of statute of limitation in criminal cases for the committed crime has expired on September, 3rd, 2014, that is at the moment of excitation of criminal case, presentation P of charge and signing by the public prosecutor of the bill of particulars on December, 11th, 2014 Therefore criminal proceeding was

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It is ceased.

We believe, that at a substantiation of reduction of limitation periods by the legislator the above-stated circumstances should be considered. Besides, it is expedient to provide, that a question on application of reduction of limitation periods to the minor who has made especially grave crime, should dare court taking into account concrete circumstances of business. Also the reservation that on minors the interdiction for application of limitation periods to certain kinds of crimes against peace extends is necessary and it is safe - [180 [181] [182] sti mankind and connected with terrorist activity as it is established by articles 78 and 83 UK the Russian Federation.

Let's stop on some existing problems of clearing of minors from the criminal liability with application of forced measures of educational influence.

The first problem consists in the ratio applications of clearing of the minor from the criminal liability on the bases of the item of item 75, 76, 761,

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76, 90 UK the Russian Federation. Clearing of the minor of the criminal liability on the basis of item 75 item, 76, 76,76 UK the Russian Federation admits unconditional, that is assumes the full termination of criminal legal relations without dependence from the subsequent behaviour of the released teenager. And clearing of the criminal liability of the minor on the basis ch. 1 item 90 UK the Russian Federation admits conditional, i.e. the decision on it depends on its subsequent behaviour in application to it of forced measures of educational influence. However clearing of the criminal liability on ch. 1 item 90 UK the Russian Federation does not demand from the minor to make a number of positive postcriminal acts which should be present at clearing of the criminal liability under item 75 item, 76, 76,76 UK the Russian Federation. Therefore we consider, that after committing a crime for the first time and performance of some the positive postcriminal acts established by the item of the item 75, 76, 76, 76 UK the Russian Federation, the teenager can be released from the criminal liability not under item 90 UK the Russian Federation, and under item 75 item, 76, 761, 762 UK the Russian Federation. Only when there are no the sufficient conditions established by item 75, 76, 76, 76 UK the Russian Federation then the competent body should consider possibility of its clearing of the criminal liability on ch. 1 items 90 UK the Russian Federation. We agree with H.D.Alikperova's opinion that presence or absence of positive postcriminal acts of the minor, essentially and directly influence decisions of competent bodies on clearing of the criminal liability as on the basis of these materials it is possible otse - nivat possibility of correction and re-education of the teenager by application of forced measures of educational influence to it.

It is necessary to notice, that the legislator expresses the humane criminal policy of the state an establishment of a special kind of clearing of minors from the criminal liability. In comparison with the adult, at the teenager who has committed a crime, is more chances for independent correction without preterpevanija condemnation and punishment. For example, the teenager who committed a crime and has not compensated damnified it, can be released from the criminal liability with duty putting on to smooth down such harm on the basis ch. 1 items 90 UK the Russian Federation.

However we suggest to establish the instruction, according to which clearing of the concrete teenager of the criminal liability on ch. 1 items 90 UK the Russian Federation it would be carried out only once. It will mean, that if the teenager was relieved from earlier responsibility under item 75 item, 76, 761, 762, 78, ch. 2 items 84 UK the Russian Federation, but again commit a crime, to it the basis ch can be applied. 1 items 90 UK the Russian Federation. However if the teenager was released earlier from the criminal liability on the basis ch. 1 items 90 UK the Russian Federation repeated application of such basis at least and with other forced measures of educational influence by which earlier have not been applied will not be supposed. We consider, that fulfilment of a new crime to the minors earlier released from the criminal liability with application of forced measures of educational influence, testifies about nedostizhenii concerning such person of the purposes of educational influence, and, hence, the teenager requires application to it of criminal liability measures.

The second problem of clearing of minors from the criminal liability on ch. 1 item 90 UK the Russian Federation is the permission of a question at issue on, whether but - [183] sjat forced measures of educational influence retaliatory character and as selective forced measures are effectively combined.

According to a number of authors, forced measures educational vozdej - stvija, unlike punishment, are completely deprived elements of a penalty [184 [185] [186]. Other authors believe, that forced measures of educational influence are not deprived a penalty element (therefore and are called as compulsory), however it occupies in them not main, but the minor place and plays only subordinated role. In opinion I. V.Moiseenko, «application of forced measures of educational influence is not the form of realisation of the criminal liability, and the legal nature of forced measures of educational influence does not allow to consider as their measures of the criminal liability (or measures criminally - legal character) in close sense of a word","on the essence forced measures of educational influence are not retaliatory compulsory is social-pedagogical and specially - preventive measures. In the form they represent the realised measure of clearing of the criminal liability ». We will agree with the first point of view and opinion I. V.Moiseenko. Forced measures of educational influence under item 90 UK the Russian Federation are not punishments. This results from the fact that application of forced measures of educational influence is directed on education of the minors who have committed a crime, by principles and pedagogics methods (belief, suggestion, pereuchivanie, encouragement, and others). Unlike it, punishment on is social-psychological aspect is« the coercive measure to a measure of mental experience »[187]. Thus, forced measures of educational influence have character of compulsion, but are not punishment or a penalty for the act made by the minor. Investigated measures express the big orientation on resotsializatsiju the teenager. They represent the best conditions for development of merits of the person at which allows to reach corrections and re-education of teenagers most successfully. As fairly marks S.J.Oloventsova, forced measures of educational influence are one of versions of other measures of criminally-legal character as their application leads to change criminally-legal status minor, committed a crime at which it though it is released from a duty to incur the criminal liability or to undergo punishment, however the certain duties provided by the corresponding measure [188] are assigned to it. Therefore, proceeding from the above-stated, including value of such measures, all is necessary to keep listed in ch. 2 items 90 UK the Russian Federation forced measures, and simultaneously to improve their maintenance.

According to ch. 3 items 90 UK can appoint the Russian Federation, court to the teenager simultaneously some such measures. Therefore we consider, that for effective achievement of the purpose of correction and education of the minor the court should combine some such measures taking into account an expediency principle. Their joint application is represented natural because the result owing to versatile rendered educational influence can become above.

First, the prevention is executed directly by court right after decision removal about applications of such measure. Prevention application has only formal character. The given measure does not assume vozlozhe -

nie on the minor of any duties [189 [190] [191] and, hence, does not force it to fulfilment of any actions. The prevention is a unique single kind which will come to an end after an explanation with court to the teenager of the harm caused by its act, and consequences of repeated fulfilment of crimes. Taking into account it the teenager cannot carry out «regular default». S.A.Borovikov marks that, the prevention should be considered as the essential tool of preventive restraint of juvenile delinquency. Therefore, we offer, that at a choice of forced measures of educational influence to each released minor the court should appoint simultaneously in aggregate a measure of the prevention with other measure provided ch. 2 items 90 UK the Russian Federation. N. Andrjuhin by results of the research has noticed, that relative density of a combination of the prevention with transfer under supervision of parents has constituted about 90 %.

Secondly, we consider, that at appointment under supervision of specialised state body it is expedient to minor of transfer to apply it together with a measure established by the item "g" ch. 2 items 90 UK the Russian Federation.

In comparison with transfer of the minor under supervision of parents or persons, their replacing, in transfer of the teenager under supervision of specialised state body there are complexities. Parents of the teenager and the person, their replacing, living with the minor, can not only carry out constantly regular the control over its behaviour, around and time of its dialogue, and from that to exclude from sphere of dialogue of the persons influencing it from a negative side, but also to bring up it with authority on his eyes. In the status of relatives they can independently define and carry out various restrictions and requirements as, for example, restriction of visited places, time and a circle of contacts, an interdiction of management of a vehicle, etc. And, the worker of specialised state body does not live together with the minor for children and usually is for it the unfamiliar person. Therefore such competent person cannot constantly make supervision of the teenager and experiences difficulties at discharge of duty on educational influence on it and to the control over its behaviour. Actually, they can carry out supervision, the control and educational influence only in certain periodic time, according to the frameworks designated by court. At the same time specialised state bodies, as a rule, have more the impartial assessment of behaviour and psychological character of the minor. Hence, joint application «transfers under supervision of specialised state body» and «restrictions of leisure and an establishment of special requirements to behaviour of the minor» allows the competent person of specialised state body to protect more effectively the teenager from negative influence and to provide normal formation of the high-grade person.

Main objective of clearing of the criminal liability of the teenager by transfer under supervision of parents or persons, their replacing, or specialised state body its correction and realisation of educational influence on it admits. Such purpose can be reached or not depending on sphere of education which influences directly the teenager. Hence, application of such measure demands deep studying of a way of life of the teenager in a family, its mutual relations with associates. In legislation SRV, there are education forced measures in a family, in establishments or public organisations (ch. 2 items 69 UK SRV); in communes, settlements, cities; in special teaching and educational establishments of the closed type (ch. 1 items 70 UK SRV). We consider, that except education by parents or persons, their replacing, specialised state body, it is necessary for minor to be brought up and «in the sphere» where conditions and an environment are already familiar to it where he lives or studies, as, for example, in children's homes, boarding schools, in others state or municipal authorities of controls formation.

Judiciary practice of the Russian Federation shows, that application of a measure in the form of transfer under supervision of the listed establishments, bodies is a rule. For example, the decision of the Vologda city court minor P, the pupil 7 classes of the correctional boarding school, stolen money, have been released from the criminal liability with application of forced measures of educational influence: preventions and establishments of special requirements, transfers under supervision of the director of children's home, with putting on on it duties on educational influence on the minor pupil and to the control over its training [192].

We consider necessary to add in the item ch. 2 items 90 UK the Russian Federation a transfer measure under supervision state or municipal authority of controls formation. Thus, as a rule, at appointment of such measure, the court should receive the consent of the employee in one of the listed bodies who shows the petition of collective for acceptance of the minor under supervision. If the person who will directly supervise the minor, does not express the voluntary consent to realisation of this duty the court can assume in advance an inefficiency of application of this measure and even constant and its regular default.

Thirdly, at measure comparison in a kind «duty putting on to smooth down damnified» with the penalty which under the decree can be collected from parents or other legal representatives of the teenager, sees, that «a duty to smooth down damnified will lay down on shoulders of parents or persons, their replacing, other relatives of the minor that brings to nothing educational influence of this forced measure directly on the teenager» [193]. The penalty, appointed to the minor condemned, recognising that parents or other legal representatives will try to lower burden of duties and experiences to the teenager, assumes, that adults in a deadline will compensate damnified. In that case the minor who has harmed, can not feel to the full a consequence of the criminal behaviour. That is in an ideal measure performance in a kind «duty putting on to smooth down damnified» it should be carried out by the minor independently. Besides, clearing of the teenager of the criminal liability with duty putting on to smooth down damnified after an explanation to the minor of the reason of application to it of this measure, its kind and volume (its money's worth or type of works which is necessary for executing), can effectively reach the corrective and educational purposes.

If the court assigns a duty to the minor to smooth down damnified, but its property status will not allow to make it in aggregate to the teenager the measure in a kind «can be applied...ustanovlenija special requirements to behaviour of the minor». At presence at the teenager of corresponding labour skills to it the demand can be made - to found a job by means of specialised state body, and from a part of the means earned by it to smooth down damnified. If the teenager has no speciality, to it the demand can be made - to receive a speciality, and already then to found a job. If employment for any reasons is impossible, how a variant, court can take out definition with the requirement of performance of any temporary job [194]. We consider, that application of a complex of forced measures of educational influence promotes high productivity of their performance to minors.

Besides, among kinds of forced measures of educational influence there are no measure subspecies on fulfilment of actions of non-property (moral-ethical) character concerning the victim. Hence, we suggest to provide putting on on the teenager of a duty of bringing of public apology to the victim. « Public apology bringing »can be applied to the minor as independent means of moral-educational influence. Thus, concerning the harm caused to the victim, to the minor putting on of a duty of bringing of public change or a duty can be applied to smooth down damnified by performance of work in favour of the victim or (monetary indemnification. In this connection at scoping of smoothing down of the caused harm or term of performance of any work in favour of the victim or community works it is necessary to consider a parity with volume of the caused harm and the purposes of such measure.

Generalisation of practice of consideration by vessels of the Moscow area in 1st half-year 2010 of criminal cases about the crimes made by minors, has shown, that a duty to smooth down damnified has been assigned to 4 teenagers. However only on 1 business the court has specified in the decision, that damnified comes under to smoothing down «by bringing by the minor of public apology to the victim», and in other cases the minor should solve itself, what way and in what term. Therefore we offer, that at application of the given measure the court with necessity specified in the decision a way and term of its execution to promote effective performance of a duty from the party of the released teenager.

On the basis of the resulted positions ch. 3 items 91 UK the Russian Federation can be stated as follows: «3. A duty to smooth down damnified it is assigned taking into account a property status of the minor and (or) presence at it corresponding labour skills. Smoothing down of the caused harm can be carried out by means of bringing of public apology to the victim, work performance on elimination of harmful consequences or (payments of monetary indemnification».

As the crime made by the minor, not always harms the concrete person, and can harm a society or gosu - [195] darstvu (in cases when the corpus delicti is formal) perspek - tivnym the research devoted to possibility of smoothing down of such harm by means of performance of socially useful works (services) sees.

The third problem consists in preservation in UK the Russian Federation clearings of teenagers of the criminal liability and punishment with application of the same forced measures provided ch. 2 items 90 UK the Russian Federation. However clearing of the criminal liability on ch. 1 item 90 UK the Russian Federation assumes possibility of cancellation corresponding pravoprimenitelnogo decisions in case of regular default or evasion of the teenager from the duties assigned to it thus, that is there is a question on that, its simultaneous improvement and potential deterioration of position is how much proved. However, clearing of teenagers of punishment on ch. 1 item 92 UK the Russian Federation has unconditional character. It is represented, that the convention in bolshej degrees can be carried to clearing of punishment that the Russian Federation follows and from the maintenance of the given institute in norms UK.

Condonation under a condition, on the one hand, has on teenagers educational influence without their condemnation and awarding punishment and give them chance to prove the correction without those. Thus, he knows, that in case of regular default or evasion of forced measures by it, the criminal liability can be realised in full, and it stimulates it to adhere to the duties assigned to it. On the other hand, the renewed business can stop again on not reabilitirujushchim or reabilitirujushchim to the bases. It is connected by that, first, the inspector and court have not considered the problem earlier on guilt of the person, did not take out the decision about dismissal of action. After investigation and consideration of the renewed business the court can take out the verdict of "not guilty", or release the teenager from punishment on ch. 1 items 92 UK the Russian Federation or to appoint to it punishment it is conditional. Secondly, the current of limitation periods does not interrupt and not priosta - [196] navlivaetsja on clearing of the criminal liability. As we already marked earlier, limitation periods for committing a crime of small or average weight, ustanovljajutsja accordingly 1 and 3 years. Hence, on the expiration of these terms in an investigation or proceeding stage competent bodies should release the teenager in which relation criminal case renews. Besides, in case of regular default by the teenager of a forced measure of educational influence, proceedings come back to an investigation stage, at which end criminal case with the bill of particulars (or the indictment) goes to court on charge in the same crime which, as a matter of fact, has already been considered. The court considers again the same criminal case that can negatively influence the minor and reduce efficiency of law-enforcement system.

On ch. 4 items 90 UK the Russian Federation during term of application of forced measures of educational influence, fulfilment by the minor of administrative violation or a new crime do not admit the basis of cancellation of the decision on its clearing of the criminal liability. Whether it is fair in cases when the teenager does not break performance of the forced measures of educational influence appointed to it, but deliberately commits a new crime, administrative violation, to keep its previous clearing of the criminal liability, but in the meantime for regular default of such measures by it the minor should come back to process of its attraction to the criminal liability? It is represented, that the answer to this question can be only negative.

It turns out, that the law gives to court alternative possibility of application of forced measures of educational influence. On ch. 1 item 92 UK the Russian Federation of the infancy, condemned for committing a crime of small or average weight, can be released court from punishment with application of these measures, but consequences of evasion from performance of the appointed measures formally are not provided. Hence, if the teenager has been condemned, its position after decision-making on unconditional clearing of punishment on the basis ch. 1 items 92 UK the Russian Federation favorable, than after the decision on conditional release from the criminal liability.

With reference to clearing of punishment on ch. 1 item 92 UK the Russian Federation initially is present a blank in the form of absence of position about legal effect of regular default by the minor of the appointed measures. At the same time in practice the criminal law apply by analogy, extending positions ch. 4 items 90 UK the Russian Federation on clearing of the criminal liability and punishment. In case of clearing of the minor of punishment with application of forced measures of the educational influence provided ch. 2 items 90 UK the Russian Federation, court are considered by criminal case up to the end, hence, he accurately sees, what kind of punishment to the teenager can be appointed and in what size. However if during a legal investigation it is found out, that correction of the minor defendant can be reached without punishment application it is released by court from punishment with application of forced measures of educational influence. After that the court warns the minor about concrete consequences of regular default of the appointed measures in the form of fixed penalty specific performance.

Proceeding from stated, we suggest to keep alternative application of forced measures of educational influence when it is imperfect - summer before the termination of process of investigation or trial can be released from the criminal liability, or when trial process is completely spent-is released from punishment with application of the same forced measures of educational influence.

Let's notice, that it is necessary to understand infringement of the assigned duties (requirements) as regular default by the minor of a forced measure of educational influence two or more times during the appointed term. Open refusal of obligation execution will be evasion from application to it of a forced measure educational.

In ch. 2 items 90 UK the Russian Federation contain two measures, namely «duty putting on to smooth down damnified both" restriction of leisure and an establishment of special requirements »which directly speak about a duty (requirement) which the teenager should execute and on representation of specialised state body can be cancelled."Prevention"has"single"character, and« transfer of the minor under supervision... »Speaks about a duty of subjects to which teenagers are transferred under supervision. Sees, that a measure provided by the item ch. 2 items 90 UK the Russian Federation, as a matter of fact, are shifted by responsibility for behaviour of the teenager on adults. They should be responsible for behaviour of minors in the course of application of such measure. In the item« »ch. 2 items 91 UK the Russian Federation at definition of the maintenance of a measure is not considered necessity of putting on of a duty on the minor to be under the control of parents or persons, their replacing, or specialised state body. Therefore we suggest to add ch. 2 items 91 UK the Russian Federation following position:« During term of application of the given measure the minor is obliged to be under the supervision of parents or persons, their replacing, or state or municipal authority of controls formation, or specialised state body ». 83,6 % of the interrogated respondents have agreed with such offer. Thus, the formulation« regular default or evasion of the minor from application to it of a forced measure of educational influence »can be applicable concerning such measures provided by points« "," in "and" g »ch. 2 items 90 UK the Russian Federation.

Consider expedient to regulate clearing of the criminal liability with application of forced measures of the educational influence provided ch. 2 items 90 UK the Russian Federation, as an unconditional kind, and clearing of punishment with application of the same measures - as a conditional kind. At unconditional clearing of the criminal liability the decision on clearing in the subsequent remains and does not attract any negative criminal legal effects. However this offer does not mean, that the minor can regularly not execute or evade from application to it of a forced measure of educational influence or during term of performance of the appointed measures can commit a new crime or administrative violations without the caused consequence. We offer, that in case of regular default or evasion of the minor from the forced measure of educational influence appointed to it or in case of fulfilment of administrative violation by it or a new crime the appointed measure on representation of specialised state body is replaced or supplemented with court other measure provided by a part of second article 90 UK the Russian Federation. In this case the measure, appointed to the minor released from punishment, is cancelled by court and concerning this teenager punishment from which it has been released is executed.

Finishing the present paragraph, we will notice, that perfection of positions UK the Russian Federation, minors concerning clearing of the criminal liability, it is expedient to carry out with the account sistemnosti the criminal legislation and its interrelations with norms UPK the Russian Federation. Thus it is necessary to pay attention not only to clearing of the criminal liability with application of forced measures of the educational influence, peculiar to minors, but also on the general provisions considering possibility of active repentance, reconciliation with sustained and the expirations of limitation periods.

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A source: TUB Thj That An. CLEARING of MINORS OF the CRIMINAL LIABILITY UNDER the LEGISLATION of the RUSSIAN FEDERATION And SOCIALIST REPUBLIC Vietnam. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2016

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