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§ 2. Specific and direct objects of the crimes directed against the child, as criterion of their ordering

Taking into account the designated position about concept of object of a crime and

Classifications of objects we will try to define them in relation to the crimes directed against the child.

Proceeding from stated, against the child it is necessary to consider as patrimonial object of crimes the person.

And in this part we will note validity of the name of section VII UK «Crimes against the person». The person as a unit unites all its blessings (value) given to him by the fact of existence from the moment of a birth. It predetermines the approach to designing of heads of the specified section in which the person as the object is criminally-right protection presented to all it ipostasjah. Is not an exception and chapter 21 UK «Crimes against way of family relations and interests of minors». In it under protection such universal values, as a family and children are taken.

Association of crimes on signs two specific objects does not cause doubts owing to their affinity. The similar approach is marked in UK variety of other states. As marks J.E.Pudovochkin, association in one chapter of crimes against a family and minors speaks affinity of the specified social values, their interrelation. The family represents itself as the first institute of socialisation of the child, it regulates process moral and intellectual development of the person … Criminal influence on a family is by all means reflected in education of the minor and on the contrary, rendering of negative influence on process of formation of the person of the last is infringement of one of functions семьи93.

At the same time the analysis of the crimes included in the specified chapter, shows, that the unique crime directed

93 Pudovochkin JU.E.responsibility for crimes against minors. With. 84-85.

Directly against a family, evasion of children from the maintenance of parents (item 175 UK) is. Disclosure of medical secret (item 178 UK), is not directed absolutely not on injury to the specified objects.

Illegal collecting or distribution of the information on a private life (item 179 UK) "is drawn" to this chapter. In separate crimes the family acts not as the basic, and additional object (deliberate substitution of the child – item 180 UK, disclosure of secret of adoption – item 177 UK). As a result it turns out, that from 10 crimes provided in chapter 21 UK, it is direct against children 7 crimes (item 172 – 174, 177, 1771, 180 UK) are directed, that allows to agree with J.E.Pudovochkina's opinion on an exception of the name of the corresponding chapter of instructions on семью94. In our case evasion of children from the maintenance of parents (item 175 UK) is expedient for transferring to chapter 23 «Crimes against constitutional laws and freedom of the person and the citizen». As a variant: In the name of the head objects criminally-right protection to change places, having put on the first place interests of minors, considering, besides, and that the specified chapter opens articles providing responsibility for encroachments on minors.

It is necessary to note also available in the literature raznoboj concerning arrangement of priorities in definition of objects of considered crimes: a family or children that has the consequence of distinction in them классификации95.

But as in the name of chapter 21 UK as specific object interests of minors are named, we will try to state an estimation to concept as a whole "interest" and «interests of minors» in particular.

The term "interest" is often enough used in criminal law. Also it is used basically with reference to

94 In the same place. With. 85.

95 See ponomarev for criminal trespasses on a family and minors//Criminal law. 2005. № 8. With. 34.

To object of a crime. Frequency of its use is appreciable and in the criminal legislation. It has sounded as at object definition criminally - a right protection in item 2 UK devoted to problems of the criminal law, and in names of heads of Special part UK. Often it is used in articles of Special part UK where the legislator specifies in concrete object on which the given crime is directed, through instructions on crime consequences: injury to the state or public interests, legitimate interests of citizens. Thus legitimate interests are represented together with the rights and freedom of citizens. In particular, the mention of public or state interests or of legitimate interests of citizens in aspect of causing by it of harm a perfect crime takes place in 18 articles UK (26 times). Besides, the term interest is used and for motivation of crimes (for example, item 240 UK «Deliberate economic inconsistency (bankruptcy)».

In a science of criminal law the question on interest becomes a subject of attention of scientists at disclosing of the maintenance of object of a crime more often. Thus one authors identify interest with the public relation, others – deduce it for frameworks of those, the third consider, that interest is a structural element of the public relation and, hence, also can be considered as object of a crime. At the same time, the concept of the interest, its maintenance and essence authors actually does not reveal. And it is clear within the limits of a recognition object of a crime of public relations. However with reference to a supported sight at object of a crime as social value disclosing of an essence of interest represents special value. It is important to define also a parity of concept "interest" with such concepts, as "requirements" and values ».

According to interpretation of a word "interest" it can act in various values, namely: as to what the person aspires; or as prompting to action; or as advantage, self-interest, benefit; or as needs, потребности96. In the educational literature for schoolboys to the term

"Interest" is given 6 значений97.

The interest problem is developed by various sciences (philosophy, psychology, sociology, etc.) . A psychology science interest, first of all, as involves motive or prompting in action. Psychologists consider also concept of requirements, defining a parity of these concepts, but, as a rule, not identifying them. As writes E.P.Ilyin, the majority of psychologists connect interest with requirement, but understand this communication differently. One reduce interest to the certain form of the diversified requirements, others consider, that interest – more difficult and wide phenomenon, than simple requirement. The third consider, that interests (informative, aesthetic) develop into the first vital need of the person, the fourth – that interest grows from informative requirement, but is not reduced to it. However the affirmed interest can become потребностью98. But whatever was the interpretation of concept of interest, together with requirements for psychology, their estimation is given in a plane of motives of behaviour of the person. But this aspect for the theory of object of a crime is actually indifferent, except for the statement of psychologists about objective character of requirement and subjective character of interest.

A little in other foreshortening concepts of interest and requirement for philosophy are considered. Definition of their status already is more connected with their valuable estimation. Requirement – in the general meaning of it

96 the Explanatory dictionary of Russian with inclusion of data on an origin of words / otv See. red. N.J.Shvedova. M: Publishing centre "Азбуковник", 2007. With. 303.

97 the Social science See. 9 – 11 classes: 1500 concepts and terms. Minsk: "Aversev", 2009. With. 54.

98 Ilyin E.P.motivation and motives. Sankt-Peterburg-Moskva-Harkov-Minsk: Peter, 2000. With. 167.

Words, – A.G.Zdravomyslov writes, is a certain need of the subject in some set of external conditions of its life, claim to the external circumstances, following of its intrinsic properties of the nature. However, thus, the author places emphasis on social character of requirement. The requirement is there is something demanding the satisfaction, and this satisfaction is carried out in the course of active interaction of an organism with the world, surrounding средой99. As objects of interests the author names material and cultural wealth, institutes and the public relations, the established customs and порядки100.

And, at last, that itself represent values? The same author convinces us that the requirements transformed to interests, in turn "turn" to values. The maintenance of values is caused by cultural achievements общества101.

The estimation of the specified concepts is given and in legal science, but taking into account their understanding by psychologists and sociologists. So, V.N.Vinokurov writes: the concept "interest" is considered in psychological (subjective) and sociological (objective) aspects. In the first case interest is considered as a product of activity of a brain, as the impulsive cause to action in which basis the realised requirement – interest (subjective interest) lays. In sociological (objective) aspect interest acts as the concept designating and characterising something objectively significant for individual, a society. And, agreeing with P.V.Zamoskovtsevym, the author considers, that interest is the objectively-subjective category expressing an orientation of a society, the state, the person

99 Zdravomyslov A.G.requirement. Interests. Values. M: Publishing house of the political literature, 1986. With. 12-13.

100 In the same place. With. 74.

101 In the same place. With. 160-161.

On subjects and the objects, capable to satisfy defined потребность102.

The resulted statements of scientists in the field of philosophy, psychology, and also help to solve the rights, but do not solve a question on interests as pravoohranjaemyh objects and, in particular, about interests of the minors designated in UK as specific object of group of crimes. Considering close interrelation of requirements, interests and values in which scientists specify, we will allow to interpret some their sights at the given concepts of aspect criminally-right protection minor. We will agree that interest and requirement are not identical concepts though are closely interconnected. Interest as driving motive of behaviour of the person directly proceeds from the person and is interconnected with interests of a society and the state. Thus speak about interests we can only when it concerns the person. From the moment of a birth the child gets requirements for food, for favorable conditions of a survival, for the tender reference, etc. These requirements exist objectively and cannot admit interests in any way which personify the objective and subjective beginnings.

But it is necessary to notice that circumstance, that the term "interests" as provoohranjaemyj object is applied widely enough and not only in criminal law. For example, about interests of the child it is spoken in item 15, 36, 661, 67, 68, 70, 73, 116, 140, 142, 157) KoBS, about interests of a family (item 24, 28, 65), about interests of other citizens (item 5, 13), about interests of a society and the state (item 5), about interests of spouses (item 15, item 201, 36, 47), etc. In the majority the specified interests act as pravoohranjaemye values. About protection of the rights and legitimate interests of citizens it is spoken in

102 Vinokurov V. N. Interests as a way of a concrete definition of direct object of a crime//Magazine of the Russian right. 2009. № 5. With. 85-86.

Constitutions of Byelorussia (item 22), and also in variety of the international documents.

Owing to told there is no necessity at definition of object of the crimes directed against the child, to divide such concepts, as requirements, interests and values. It is represented to us, that the term

"Interests" in considered aspect it should be treated widely enough, including and the requirements of the child which yet has not outgrown in interests as a social phenomenon, and interests to consider as social value protected by criminal law. Moreover, interests of the child should be treated not from a position of its concrete requirements (in subjective aspect), they can in some cases and not represent that value which is put in essence of this concept as an objective phenomenon, namely from positions of that particularly wishes to have or receive the state and a society regarding the relation both to children in general, and to the concrete child in particular on the basis of the developed moral representations about the relation to the childhood and its special protection. Support point of view A.M thereupon deserves. nechaevoj, considering essence of interests of the child in family - jural sphere, that interests in the given sphere carry difficult, as though "multilayered" character, consolidating interests of the state, parents and the child. Besides, they invariably co-operate with the rights of the child as they are consolidated by unity цели103.

Taking into account told, we believe, that «interests of the child» can be defined as objectively existing vital needs and legislatively the acquired rights corresponding to the standard requirements in a society on normal development of the child and its formation as the person. The given concept can be considered

103 nechaeva A.M.protection of interests of the child: family-legal preconditions//the State and the right. 2010. № 6. With. 77.

As the system-logic design covering direct objects of crimes, included in chapter 21 UK, allowing them to concretise taking into account features of objective signs of these crimes.

The told allows to state an estimation to the name of chapter 21 UK in which as specific object interests of minors appear.

In our opinion, such name not to the full meets the requirements of system construction of norms of the given chapter and section VII

«Crimes against the person». First, as earlier it has been told, the child is the independent individual demanding a special right protection and protection, that directly follows from international legal norms. It assumes also application of the term which has settled in international law "child". Secondly, in special chapter UK contain (or the crimes directed not only on interests of the child, but also for its other blessings granted to it by the nature, and also on its rights fixed as in international, and the national legislation should contain). Thirdly, the term "minor" not to the full opens essence of the term "child", leaving as though behind attention frameworks pravoprimenitelja juvenile children to whom even more differentiated approach is required.

All it testifies that the name of chapter 21 UK demands updating. In an ideal it could sound «Crimes against the child and a family». However with a view of maintenance sistemnosti construction UK it would demand transferring to the given chapter of all crimes directed against the child, including and encroachments for his life, health, sexual inviolability, sexual freedom, etc., that would cause at the developed approach to section structurization

«Crimes against the person» essential difficulties.

Therefore with a view of preservation of the developed approach to structurization of the given section we are inclined to name chapter 21 UK

«Crimes against interests of the child and a family», considering

«Interests of the child» as the generalised phenomenon which is coming under criminally - to a right protection.

Thereupon we will analyse names of corresponding chapters (sections) UK other states. In UK the Russian Federation, Kazakhstan, Tajikistan, Kyrgyzstan, Latvia, Georgia, Moldova corresponding heads are named «Crimes against a family and minors». Similar heads are named: «Crimes against minor and family relations» (UK Azerbaijan),

«Crimes against a family, youth and morals» (UK Uzbekistan), «Crimes against a family and interests of the child» (UK Armenia), «Crimes and criminal offences against the child and a family» (UK Lithuania).

Thus, in one of the states UK – the CIS countries and Baltic at definition of specific object of considered crimes the term "interests" is not used. Moreover, some UK (Armenia, Lithuania) used thus the international legal term the "child" to the full answering to object criminally-right protection. It is necessary to notice also, that in UK Azerbaijan priority position in system of two pravoohranjaemyh specific objects: families and minors are occupied with minors. The similar picture is observed and in the far abroad states UK. Allocating in UK the independent chapters (sections) consolidating separate crimes against children, legislators name them: « Crimes against marriage and a family »(Republics Bulgaria UK),« About encroachments on minors of persons or a family »(UK France),« Crimes against a family and guardianship »(UK Poland),« Crimes against family relations »(UK Denmark, Spain),« About crimes against a family »(UK

Sweden), «Criminal acts against a civil condition, marriage and a family» (UK Germany), etc.

Apparently, legislators, systematising and structuring crimes against children, in the majority absorb their such objects as the family and marriage, or specify directly in minors as pravoohranjaemyj object and anywhere in this plane do not mention their interests. At the same time, considering the aforesaid, we are not inclined to refuse at all interest as object of crimes against children, offering its generalised concept, first, and assigning on it a role, including direct object of separate crimes, secondly. Thereupon it is necessary to agree with V.N.Vinokurovym considering interest as a way of a concrete definition of direct object преступления104. The difference in positions consists only that the specified author connects interest c the public relation, supporting those authors who identify interest with the public relation. In our opinion, interest acts as independent pravoohranjaemaja value. But this value also represents itself as as specific, so direct object of this or that crime directed against the child. Its only qualitative maintenance with reference to a concrete crime varies.

The approach offered by us to a formulation of the name of chapter 21 UK, and also to generalisation of sense "interest", in our opinion, in bolshej to a measure will meet the requirements sistemnosti in classification of objects by a vertical and to matter for perfection of ordering and structurization of the crimes directed against the child, an adequate estimation of character and degree of their social danger in system of crimes against the person, and also in system of other crimes,

104 Vinokurov V. N. The decree. soch. With. 85-92.

Harming the child, for maintenance of reasonable balance in an establishment and application of criminally-legal sanctions for the specified encroachments.

The question on level and volume of ordering of considered crimes in UK Belarus very narrowly is connected with definition of their direct objects that matters and for classification of such acts.

Estimating all variety of definitions of objects of the considered crimes, presented to the literature, we are inclined to adhere, first of all, to accents on pravoohranjaemye the objects, traced in the international legal documents devoted to the rights of the child. They allow to define more precisely that value which is endangered at fulfilment of a concrete crime against the child. We will notice, that in the specified documents such concepts and terms, as full and harmonious development of the person of the child, its well-being, the best interests of the child, well-being of children, a survival and healthy development of the child, the social, spiritual and moral well-being, healthy physical and mental development of children, physical, intellectual, spiritual, moral and social development of the child (item 3, 6, 9, 17, 18, 20, 21, 23, 32, etc. Conventions on the rights of the child from November, 20th, 1989) are used . The similar toolkit is used and in the national legislation: physical, moral and spiritual health, national consciousness on the basis of universal values of a world civilisation; the rights and legitimate interests of the child; healthy development of the child; high-grade physical, intellectual and its spiritual development; high-grade development, education, formation, strengthening of health of the child, its preparation for an independent life in

Family and society, etc. (a preamble, item 1, 3, 8, 13, etc. the Law of Byelorussia from November, 19th, 1993 «About the rights of the child» 105.

It is necessary to mean also, that interests of the child are interconnected with their rights in this or that sphere of a life. In such interaction they are quite often used and in standard legal acts.

Taking into account the specified approaches we will try to define the basic and additional direct objects of the following crimes provided by articles 172, 173, 174, 176, 177, 1771 and 179 chapters 21 UK. Considering object of involving of the minor in committing a crime and its involving in antisocial behaviour, scientists on - a miscellaneous approach to its definition. We will result for an example some definitions. So, E.A.Sarkisov considers, that object of these crimes is normal moral formation and development несовершеннолетних106. V.V. Timoshchenko names object of the crime provided by item 172, normal moral and physical development of minors, and a crime provided by item 173, – the public relations providing

Normal moral and physical development несовершеннолетних107.

Russian scientist A.I.Chuchaev considers as object of involving of the minor in committing a crime the public relations providing normal development and correct moral education of minor, its right and legitimate interests. In fulfilment of antisocial actions the author considers as object of involving of the minor moral formation

105 About the rights of the child: the Law of Byelorussia from November, 19th, 1993//the National register of legal acts of Byelorussia. 2000. № 103. 2/215.

106 the Criminal law of Byelorussia See. The special part: the manual / under the general red. A.I.Lukashova. Minsk.: publishing house Grevtsova, 2009. With. 146, 148.

107 the Scientifically-practical comment to the Criminal code of Byelorussia, 2 izd See., with changes and additions / under the general red. A.V.Barkova, V.M.Homicha. Minsk: GIUST BGU, 2010. With. 372, 376.

Persons несовершеннолетнего108. V.S.Savelyev the object of involving of the minor in committing a crime as defines conditions of normal development and correct moral education of minors. The object of involving of the minor in fulfilment of antisocial actions by the author specially is not defined. Possibly, it is identified with resulted понятием109. E.B.Lazarev, adhering to the point of view according to which as object of an encroachment realised social possibilities of certain behaviour of the person as the participant of the relation in general act, considers, that with reference to the specified crimes it is necessary to speak about a certain condition of security, that is safety, the minor and a family. As specific object of involving of the minor in committing a crime the author suggests to consider the relations providing safety of development and formation несовершеннолетних110.

There is no necessity to stop on positions of the scientists stated in action UK on 1960 when the specified acts have been placed in chapter 15 «Crimes against the public safety, a public order and population health». But also then authors, trying

To "adjust" object of involving of the minor in criminal activity (item 205 UK) to a position of the legislator, in addition to a public order named normal development and education несовершеннолетних111. And, for example, A.N.Ignatov directly named object

108 the criminal law Complete course See: in 5 t. / under the editorship of A.I.Korobeeva. Volume II. Crimes against person. SPb.: R.Aslanova's Publishing house «the Legal centre the Press», 2008. With. 665, 669.

109 the Comment to the Criminal code of the Russian Federation See. The edition 4. Processed and added / otv. Editor A.I.Rarog. M: "Prospectus", 2006. With. 265.

110 Lazarev E.B.involving of the minor in committing a crime: a problem of definition of object of a crime//the Russian justice. 2009. № 10. With. 61.

111 the Comment to the Criminal code of RSFSR (izd See. The second, dop. And the reslave. / otv. red. JU.D.Severin. M: «the Legal literature», 1985. With. 429.

This crime normal development and correct moral education несовершеннолетних112.

Now overwhelming majority of scientists including taking into account a position of legislators, have refused a recognition object of the specified crimes a public order. Though, however, not all legislators have nowadays changed the 1960 which have developed in action UK the approach.

Acquaintance with the points of view presented in the literature on object of considered crimes nevertheless allows to establish their affinity. The majority of authors object of the given crimes normal moral formation and development of minors admits. And actually nobody mentions interests of minors in considered aspect. It, possibly, speaks that they are not specified in UK, for example, the Russian Federation as specific object. However, as we specified earlier, the sense of object «interests of minors» can be understood as the wide phenomenon including in the maintenance objectively existing vital needs and legislatively acquired rights, corresponding to the standard requirements in a society on normal development of the child and its formation as persons. Therefore and in the given context this concept does not contradict sense of object on which the specified encroachments are directly directed.

For specification of object of the crimes provided by item 172 and

173 UK, especially it is necessary to stop on J.E.Pudovochkina's not ordinary position according to which it is the right of the minor to protection against the information, propagation and the propagandas, harming to its health, moral and spiritual development. The specified definition

112 the Course of the Soviet criminal law in six volumes / red See. Board: A.A.Piontkovsky, P.S.Romashkin, V.M.Chhikvadze. A part Especial. Volume VI. Crimes against machinery of state and a public order. Military crimes. M: the Science, 1971. With. 363.

It is entered in the general concept of system of protection of the rights of the child, offered by the author who as object and any of the crimes directed against the child, considers its right to reception of any certain blessings. In this case it is a question of the right of defence from the negative information for the child, propagation and propaganda. However, having presented the list of the rights broken by concrete crimes against the child, the author writes, that all specified crimes (except for provided ch. Items 157) break those or other interests of minors. And further the author notices, that chapters 20 UK of the right of minors broken by crimes anyhow are connected with process of formation of its person, its development and воспитанием113. In our opinion, the author has identified the rights of minors with their interests that looks not absolutely successfully. Besides, the author recognises, that all rights specified to it are connected with process of formation of its person, its development and education. In that case there are questions: first, whether expediently such heap in definition of objects of concrete crimes against minors and whether, secondly, all crimes against minors are connected with the specified process of formation of its person? Moreover, it is necessary to consider and that the author, possibly, started with developed in the theory of the Russian criminal law and judiciary practice of an estimation of the objective party of the given crimes recognised ended already from the moment of so-called information (psychological) influence of the adult on consciousness of the child. In such cases, it is obvious, that the social danger of the given crimes consists already in the breach of law of the child on protection against the information, propagation and the propaganda, harming to its health, moral and spiritual development. However the Belarus judiciary practice (and now and

113 Pudovochkin JU.E.responsibility for crimes against minors. With. 91.

Russian), and also the theory recognises involving of the minor in committing a crime from the moment of its actual involving in that. And if to start with to what it is particularly damnified in this case it is necessary to specify what exactly harm and is caused to normal moral development of the minor. By data

Selective researches, behaviour more than 25 % of minors which have been involved by adults in committing a crime or in antisocial behaviour, and in the future had negative character, and many of them repeatedly committed crimes, already being adults. Differently, correct development of the minor in the moral relation in the specified cases has not been provided, and as to social value essential harm has been done to the most such development.

It is necessary to note also, as J.E.Pudovochkin as objects of involving of the minor in the committing a crime, connected to violence or threat of violence (ch. 3 items 150 UK the Russian Federation), name development of the minor (instead of the right of defence from the information, propagation and propagandas), and health or the physical integrity of others лиц114.

Thus, using terminology of international legal certificates and the national legislation obshchepravovogo regulations, and also considering developed opinion of the majority of scientists, direct object of the crimes provided by item 172 and 173 UK, it is necessary to recognise high-grade and harmonious development of the person of the child, corresponding to moral-legal values of a society and the state.

As to the considered crimes made with application of violence or with threat of its application (ch. 2 items 172 and ch. 2 items 173), that, undoubtedly, here there should be a speech and about additional,

114 In the same place. With. 98.

Acting in a role obligatory, object – health or the physical integrity of the minor.

Such object is in what parity with interests of the minor? Certainly, high-grade and harmonious development of the person of the child is carried out in its interests, but also interests of the state put before self a problem of maintenance of such development about what it was spoken above here are directly mentioned. Therefore if to recognise as object of the specified crimes interests of minors as narrower, than offered by us, the concept, – means essentially to narrow sphere pravoohranjaemyh values in such cases. As is known, interests of the person and, in particular, the child, can have various character and an orientation, including the negative. Interest of the child can be deformed owing to costs in its education or other circumstances. Probably, that such interests are not covered pravoohraneniem.

In item 174 UK responsibility for 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 is established. Such criminally-legal interdiction follows from vseobshchepriznannoj at the international and national levels of a duty of parents or other persons who are bringing up the child, to provide its maintenance. In Convention item 27, in particular, it is underlined, that the state-participants recognise the common right of the child on a standard of living necessary for physical, intellectual, spiritual, moral and social development of the child. As a guarantee of maintenance of this right the Convention has provided, that the basic responsibility for maintenance of conditions of the life necessary for development of the child, the parent or other persons who are bringing up the child bear within the abilities and financial possibilities. Moreover, in the given document it is spoken about financial responsibility

The specified persons for the child. The specified duty is fixed and in the national legislation: Constitutions of Byelorussia (item 32), the Law of Byelorussia «About the rights of the child» (item 17), in the Code of Laws on Marriage and Family of Byelorussia (item 91).

Speaking about object of the crime provided by item 174 UK, scientists define it differently. It – and public relations on the financial security of children defining their normal развитие115; both interests детей116; and material conditions of existence minor or full age, but invalid children. As additional object relations on realisation judicial акта117 and the public relations protecting interests of a family and minor citizens are called. As additional object it is underlined also interests of the person, a society and the state, the judicial certificates interested in strict execution, including on disputes on collecting алиментов118, the public relations providing guaranteed Convention of the United Nations about the rights of the child its right to a standard of living, necessary for physical, intellectual, spiritual, moral and social development ребенка119 etc.

In our opinion, in this case really the right of the minor to a worthy standard of living is exposed to infringement in

115 the Scientifically-practical comment to the Criminal code of Byelorussia / under the general red See. A.V.Barkova, V.M.Homicha. With. 378.

116 the Criminal law of Byelorussia See. The special part: the manual / under the general red. A.I.Lukashova. With. 146, 151.

117 the criminal law Complete course See: in 5 t. / under the editorship of A.I.Korobeeva. Volume II. Crimes against person. With. 662.

118 dangerous consequences and their value for qualification of crimes (the scientifically-practical and analytical comment of the criminal legislation of Russia)//Electronic base of standard legal acts «ConsultantPlus See Zavidov B.D.socially: Russia». Technology 3000 [the Electronic resource]. Mn.: Open Company "ЮрСпектр", 2008.

119 See Pudovochkin JU.E.responsibility for crimes against minors. With. 196.

Wide sense, and in narrower – the right to reception of means to its maintenance as far not always received from the father or mother of means can create a basis for maintenance of a worthy standard of living in the material relation. However, more approximately to a crime provided in item 174 UK, in our opinion, it is necessary to speak about a survival, healthy development and well-being of the child as the social values provided with satisfaction of its valuable interests. It is necessary to consider also and that circumstance, that in current edition of item 174 UK there is an independent corpus delicti which is expressed in evasion of parents from the reimbursement, spent by the state on the maintenance of children who are on the state maintenance (ch. 2). Object of the given crime interests of children in any way as its fulfilment harm to that cannot be caused (level of the state maintenance of the child cannot already admit does not depend on the fact of payment by his parent of means for the maintenance of children placed in nurseries internatnye of establishment, the state specialised agencies for minors, etc.). Interests of the state which incurred expenses on the maintenance of children and have not received compensation of such expenses In this case suffer.

Crime against the child is also abusing the rights of the trustee or the trustee, expressed in guardianship or guardianship use in mercenary motives, or cruel treatment with wards, or their deliberate leaving without supervision or the necessary help, the rights which have entailed essential infringement and legitimate interests of wards (item 176 UK). Proceeding from legislative terminology, it is possible was recognise as object of this crime of the right and legitimate interests of wards as here it is a question of their infringement. But in this case they have the appointment a concrete definition only socially dangerous consequences, which

Act in a role of an obligatory sign of the objective party of this crime. However, unfortunately, the valid concrete definition neither consequences, nor especially direct object of the given crime here, as a matter of fact, is absent. It can be carried out only on the basis of the analysis of signs of the acts described in the law. Taking into account them enough a wide spectrum it is necessary to recognise, that at fulfilment of a considered crime can suffer both property well-being of the child, and its harmonious and healthy development. The specified social values also are object of the given crime.

In system of crimes against the child it is necessary to allocate the crimes connected with adoption (udochereniem). The first is disclosure of secret of adoption traditionally existing in the legislation (item 177 UK) and the second – the crime which has appeared in 2003 called by illegal acts on adoption (udochereniju) of children (item 1771). To define objects of the specified crimes, it is necessary to address first of all to international legal establishments concerning protection of the rights of adopted (adopted) children. According to item 7 of the Convention of the United Nations «About the rights of the child» the child after a birth and from the moment of a birth has the right at once to a name and on citizenship acquisition, and also, how much it is possible, the right to know the parents and the right to their care. Convention item 16 fixes an interdiction of any or illegal intervention in realisation of the right of the child on personal both home life and the right of the child to protection of the law from such intervention or an encroachment. The similar interdiction is established in item 28 of the Law of Byelorussia «About the rights of the child».

With a view of realisation of this interdiction the Code of Byelorussia «About marriage and a family» enters concept «secret of adoption» and defines guarantees of its preservation (item 136), as has caused an establishment of the criminal liability for disclosure of the specified secret.

The review of opinions concerning object of the given crime also illustrates some raznoboj. As that name: the right of adoptive fathers and the adopted (adopted) child on nondisclosure of secret of adoption (udocherenija) 120; the public relations providing normal functioning семьи121; secret of adoption (udocherenija) and normal conditions of formation of the person несовершеннолетнего122; normal development of the person несовершеннолетнего123 etc.

Differently, one authors consider the given crime as directed against interests of a family, others – against minors, the third – against a family and against interests of minors.

In our opinion, at definition of object of the given crime it is necessary to consider both values: both a family and the child. However, we believe, that here it is necessary to give a priority to the child. According to item 120 of the Code of Laws on Marriage and Family adoption is supposed concerning minor children and only in their interests, and also taking into account possibilities to provide to children high-grade physical, mental, spiritual and moral development. At disclosure of secret of adoption when the consciousness of the child still completely is not generated, it can incorrectly estimate the fact of that it is brought up by nonnative people, than its moral and psychological condition which can outgrow in unjustified sufferings and moral tortures is threatened. Certainly, it

120 the Criminal law of Byelorussia See. The special part: the Manual / under the editorship of N.A.Babija and I.O.Gruntova. With. 157.

121 the Scientifically-practical comment to the Criminal code of Byelorussia / under the general red See. A.V.Barkova, V.M.Homicha. With. 381.

122 the criminal law Complete course See: in 5 t. / under the editorship of A.I.Korobeeva. Volume II. Crimes against person. With. 660.

123 the Comment to the Criminal code of the Russian Federation (article by article) / under the editorship of G.A.Esakova See. M: "Prospectus", 2010//Electronic base of standard legal acts «ConsultantPlus: Russia». Technology 3000 [the Electronic resource]. Mn.: Open Company "ЮрСпектр", 2010.

It will be reflected and in family relations, but besides regarding the educational process which is carried out concerning the child. Differently, harm first of all from similar disclosure will be caused the child.

Therefore we are inclined to consider a crime provided by item 177 UK, as directed first of all against the child. Also we believe, that object of this crime is high-grade physical, mental, spiritual and moral development of the child.

The object of illegal acts on adoption (udochereniju) children also is defined in the literature ambiguously: it or the public relations providing the established order of adoption (udocherenija) of children, the right and interests of the child and усыновителей124, or the public relations providing a special order of the device of children at adoption (udocherenii), established with a view of protection, first of all, the rights of the child, and also others interested лиц125; or relations on family creation according to the current legislation, its normal functioning, the established order of adoption and удочерения126; or family way, interests семьи127; the right of the minor deprived of a family environment, on special защиту128 etc. All business in to what it is given at definition of object of the given crime a priority: to a family or the child.

At the same time, regulating standards and adoption principles, the United Nations Convention «About the rights of the child» priority in existence

124 Criminal law BSSR See. Volume II. A part Especial / under the editorship of I.S.Tishkevicha. Minsk: Vyshejshaja school, 1978. With. 159.

125 the Scientifically-practical comment to the Criminal code of Byelorussia / under the general red See. A.V.Barkova, V.M.Homicha. With. 382.

126 the criminal law Complete course See: in 5 t. / under the editorship of A.I.Korobeeva. Volume II. Crimes against person. With. 657.

127 the Comment to the Criminal code of the Russian Federation (article by article) / under the editorship of A.V.Brilliantova See. M: "Prospectus", 2010.//Electronic base of standard legal acts

«ConsultantPlus: Russia». Technology 3000 [the Electronic resource]. M: Open Company "ЮрСпектр", 2010.

128 See Pudovochkin JU.E.responsibility for crimes against minors. With. 91.

Adoption systems recognises the best interests of the child which should be considered in a paramount order (item 21).

It is necessary to mean also the occurrence reasons in UK item 1771. It

It has been entered by the Law of Byelorussia from July, 14th, 2003 129 soon after the statement on May, 2nd, 2003 the Decree of the President of Byelorussia of the Convention on protection of children and cooperation concerning the international adoption, the Hague concluded in on May, 29th, 1993 130. Besides, for this period many facts of adoptions, including international which result were the roughest infringements of the rights and interests of adopted children, injury to their health and even a life have come to light. Therefore the main appointment the protection of adopted or adopted children from negative influence already in the conditions of a new family criminally-rule of law was specified.

Taking into account stated there is no necessity to consider as object of the crime provided by item 1771 UK, interests of a family. The main thing and, perhaps, unique object of this crime is the child and, in particular, its normal physical and moral development.

And, at last, the object of the crime provided by item 180 UK, – substitutions of the child demands an estimation. It is treated in the literature also ambiguously: or as the rights and interests of the child and родителей131; or as the public relations providing protection of the rights of the child and interests семьи132; or as relations on normal functioning of a family, preservation by the child of family ties with

129 About entering of additions and changes into some acts of Byelorussia: the Law of Byelorussia from 14.07.2003 № 220-Z//the National register of legal acts of Byelorussia. 2003. № 80. 2/969.

130 In the same place. 1/4580.

131 Criminal law BSSR See. Volume II. A part Especial / under the editorship of I.S.Tishkevicha. With. 164.

132 the Scientifically-practical comment to the Criminal code of Byelorussia / under the general red See. A.V.Barkova, V.M.Homicha. With. 387.

The blood family; or as family way, interests семьи133 and as right of the minor to live with parents and to be brought up in семье134 etc. And in this case authors differentiate object of substitution of the child depending on that, to a family or the child is caused or can be damnified at fulfilment of this crime. We will refer again to the United Nations Convention «About the rights of the child». In it it is fixed, that the child from the moment of a birth has the right to a name and on citizenship acquisition, and also, how much it is possible, the right to know the parents and the right to their care (item 7), that the right of the child to preservation of the individuality, including citizenship, a name and family communications demands respect (item 8), that the child should not be separated from the parents contrary to their desire (item 9). The specified positions allow to draw a conclusion that at substitution of the child its right to know the parents and the right to their care, and also the right to preservation of the individuality is broken. Here again the right of the child represents itself as value protected by the criminal law as to its normal development harm can be and is not caused. Certainly, at fulfilment of the specified crime interests of parents or as a whole a family suffer also. And, perhaps, unique crime where equal balance of its objects to establish rather inconveniently, but, nevertheless, its "transfer" in group of the crimes directed against the child hardly it is possible to recognise it unreasonable.

Thus, we have defined direct objects of the crimes directed against the child, included in chapter 21 UK.

But criminally-right protection the child it is not settled by the specified ordering. In other sections or heads UK interdictions for fulfilment of the acts which object is the child also take place.

133 the Comment to the Criminal code of the Russian Federation (article by article) / under the editorship of A.V.Brilliantova See. M: "Prospectus", 2010.//Electronic base of standard legal acts

«ConsultantPlus: Russia». Technology 3000 [the Electronic resource]. M: Open Company "ЮрСпектр", 2010.

134 See Pudovochkin JU.E.responsibility for crimes against minors. With. 91.

Let's try to define legitimacy and expediency of their branch from the group of crimes considered by us.

First of all, it will be a question of independent structures of crimes, namely about:

1) inadequate discharge of duties on maintenance of safety of a life and health of children (item 165 UK);

2) notorious leaving without the aid of the person who are in dangerous to life and health a condition and deprived of possibility to take measures to self-preservation on the early childhood (ch. 2 items 159 UK);

3) sexual connection and other actions of sexual character with the person who has not reached shestnadtsatiletnego age (item 168 UK);

4) dissolute actions (item 169 UK);

5) manufacturing and distribution of pornographic materials or subjects of pornographic character with the image of the minor (item 3431 UK).

Responsibility for the specified crimes is provided in various heads or sections UK (gl. 19 «Crimes against a life and health», gl. 20 «Crimes against sexual inviolability or sexual freedom», consolidated in uniform section VII «Crimes against the person», gl. 30 «Crimes against a public order and public morality».

Responsibility for inadequate discharge of duties on maintenance of safety of a life and health of children has been introduced for the first time in UK 1999 According to item 165 UK this crime expressed in inadequate discharge of duties on maintenance of safety of a life and health juvenile the person to whom such duties are assigned on service, or the person who carrying out these duties under the special commission or has voluntary taken up such duties. And responsibility for the specified act comes only in the event that it has entailed causing juvenile on

Imprudence of less heavy physical injury (ch. 1) either death juvenile or causing of a heavy physical injury and if in sodejannom there are no malfeasance signs. The given crime concerns the crimes which are not representing to the big social danger (ch. 1), and to less grave crimes (ch. 2).

Introduction of given article was caused, in our opinion, aspiration of the legislator in bolshej to a measure to reflect specificity criminally - legal regulation of responsibility for the crimes harming to children, and also the problems of their all-round protection put by the international community. But this article in chapter 19 is placed

«Crimes against a life and health» in which the so-called general structures of crimes directed in general against a life and health of the person are concentrated, irrespective of features of victims from their fulfilment. And as an obligatory sign of the crime provided in item 165, consequences in the form of causing of less heavy, heavy physical injury or death are, the design of given article objectively predetermines its place in specified chapter 19. The feature concerning the victim, does not allow to include this crime in chapter 21 UK owing to absence of features of protected basic object. At the same time specified article is of interest in a context of definition of the bases of criminalisation of the act provided in it of what it will be a question a little bit later.

Does not cause a question an arrangement in chapter 19 UK and structure of notorious leaving without the aid of the person who are in dangerous to life and health a condition and deprived of possibility to take measures to self-preservation on the early childhood, an old age, illness or owing to the feebleness (ch. 2 items 159 UK). First, because object of the given crime are life and health of the person which are put in danger. And, secondly, also because a circle of victims

From this crime it is not limited only to juvenile children, other persons who have appeared in a helpless condition are included in it.

As to the crimes provided by item 168 and 169 UK it is necessary to note the following.

First, a question on, whether sexual freedom or sexual inviolability of the person who have not reached 16 summer age are objects of these crimes, for a long time is challenged in the literature. Analysis of the points of view on the given question in the Russian literature, the spent J.E.Pudovochkinym135, has shown, that is far not all authors positively express on the given question. One – in the positions start with an arrangement of such structures in UK more, and others – estimate object of the specified crimes, proceeding from its valid maintenance, considering those concrete values by which it is damnified at fulfilment of the specified crimes. We will refer to the fundamental literature of the Soviet period. So, A.A.Piontkovsky considered, that object of nonviolent sexual connection with the person who has not reached the puberty (item 119 UK RSFSR 1960) is sexual inviolability of such persons. Object of dissolute actions (item 120 UK RSFSR 1960) He considered normal sexual development несовершеннолетних136. And to definition of objects of the specified crimes it is possible to recognise such approach proved. In the first case it is a question of children who have not reached the puberty, and, certainly, even nonviolent sexual connection with them should be considered as an encroachment on sexual inviolability. In the second case, even at affinity of an arrangement of specified articles, the author names as object of dissolute actions not sexual freedom or sexual inviolability, and normal sexual development of minors.

135 Pudovochkin JU.E.responsibility for crimes against minors. SPb: the Legal centre the Press, 2002. With. 209-210.

136 the Course of the Soviet criminal law in six volumes See. Volume V. Crimes against person, its rights. Economic crimes. M: "Science", 1971. With. 166, 173.

And such approach too was entered in the concept of object of considered crimes as their patrimonial object has not been accurately designated in UK (chapter 3 UK RSFSR 1960 carried the name «Crimes against a life, health, freedom and advantage of the person»). Specified, as well as other crimes made in sphere of sexual relations, in the literature were called as sex crimes. But also it is at that time far not always even with reference to sexual connection with the person who has not reached the puberty, the object was considered as sexual inviolability. For example, I.M.Galperin specified, that such crime represents danger to sexual development and health подростков137.

The Belarus authors those years too were not inclined to consider as objects of the specified crimes sexual inviolability of children. According to I.I.Gorelika, sexual connection with the person who has not reached the puberty, no less than dissolute actions concerning minors (item 117 and 118 UK BSSR 1960) Encroached on normal sexual development of persons female or male, not reached sexual зрелости138. But even now, in the conditions of action UK of 1999 when the description of signs of similar crimes has a little exchanged, authors do not aspire to recognise sexual inviolability of the child their direct object. According to E.A.Sarkisovoj, object of sexual connection and other actions of sexual character with the person who has not reached shestnadtsatiletnego age, is normal sexual development of minors, and object of the dissolute actions made concerning the person, not reached 16-year-old age – normal sexual and moral development of children is elderly to 16 лет139.

137 the Comment to the Criminal code of RSFSR / otv See. red. JU.D.Severin. With. 268.

138 Criminal law BSSR See. Volume II. A part Especial / under the editorship of I.S.Tishkevicha. 1978. With. 139, 140.

139 the Criminal law of Byelorussia See. The special part: the manual / under the general red. A.I.Lukashova. With. 135.

However, other Belarus scientist N.A.woman's at a formulation of object of the crime provided by item 168 UK, names sexual inviolability of the teenagers who have not reached 16-year-old age, however on the first place it nevertheless puts normal moral and their physical development that he names and as object dissolute действий140.

There is no necessity to consider the point of view of many other things of authors. They as it is told above, fluctuate between «two poles»: or it is sexual inviolability, or this normal sexual (either plus moral or physical) development of the child who has not reached 16 summer age, or both that and another. In a word, variety of authors does not see a close coherent chain between specific and direct objects of the specified crimes that allows them to make offers on moving of these structures in the chapter containing crimes, directly directed against the child.

In our opinion, such offers answer a principle of system construction of Special part UK depending on features of object, and with it and the victim from made crimes, in quality kakovogo the child acts. Definition of object of the crimes provided by item 168 and 169 UK as normal moral development of minors, pulls together them with crimes against the child, provided in chapter 21 UK, and demands proportional and their balanced criminally-legal estimation. Additional argument in favour of the given point of view, we believe, it is possible to consider a position of Russian scientist L.V.Lobanovoj about "reserve" value of item 135 UK the Russian Federation (analogue of item 169 UK of Belarus). According to the author, from the point of view of objective signs sexual character of the dissolute

140 the Scientifically-practical comment to the Criminal code of Byelorussia / under the general red See. A.V.Barkova, V.M.Homicha. With. 360, 361.

Actions is not obvious. As an obligatory sign of such actions other sign – their ability to make corrupting impact on moral and 9ИЛИ0 physical development of the minor in sexual сфере141 acts.

From the specified positions it is necessary to estimate a site and item 3431

UK, providing responsibility for manufacturing and distribution of pornographic materials or subjects of pornographic character with the image of the minor.

Let's notice, that item 3431 has appeared in UK rather recently. It

It is entered by the Law of Byelorussia from November, 10th, 2008 142. Occurrence of such corpus delicti has been caused, first of all, by the become frequent cases of distribution of a so-called children's pornography. In our opinion, mattered for introduction of this corpus delicti and the arisen necessity of strengthening criminally-right protection the child in the given sphere, caused by international legal approaches and the principles connected with acceptance of universal and complex measures on protection of children. But the legislator has placed specified article in chapter 30

«Crimes against a public order and public morality» near to item 343 providing responsibility for manufacturing and distribution of pornographic materials or subjects of pornographic character (the general in relation to item 3431 the corpus delicti). Certainly, the logic in this arrangement too was. It as though corresponded to a principle sistemnosti constructions of Special part UK. But it broke the specified principle at system construction of higher level. Here mattered, first of all, observance of the uniform approach to differentiation of responsibility

141 Lobanova L. About reserve value of item 135 UK the Russian Federation//Criminal law. 2014. № 5. With. 69.

142 About entering of additions and changes into some laws of Byelorussia concerning counteraction of illegal migration, to distribution of a slave labour, a children's pornography and prostitution: the Law of Byelorussia from November, 10th, 2008 № 451-3//the National register of legal acts of Byelorussia. 2008. № 277. – 2/1547.

For encroachments on the child and the account of features of objects of such encroachments.

Proceeding from a site of given article, we are forced to recognise, that specific object of the crime provided in it is public morality on which basis it is necessary to establish and its direct object. Many authors define through this concept and the basic direct object of data преступления143. As a result moral development of the child to that, as a matter of fact, also it is damnified at fulfilment of this crime, is covered with a certain general and indistinct concept "public morality". The given norm owing to the arrangement does not focus pravoprimenitelja on the special approach to responsibility for a children's pornography.

Moreover, in initial edition of item 173 providing responsibility for involving of the minor in antisocial behaviour, involving of the child in fulfilment of the actions connected with manufacturing of materials and subjects of pornographic character admitted criminal also. In such edition the given norm testified to a recognition the legislator of a priority of moral development of the child as pravoohranjaemogo object. Therefore, in our opinion, the criminally-legal interdiction established in item 3431, it is expedient to transfer to chapter 21 UK, accordingly having corrected and its edition with a view of optimum differentiation of responsibility for the specified act.

As it was already specified, for a designation of features criminally - a right protection of the child in UK 3 ways have been used: 1) allocation in UK the independent chapter consolidating group

143 the Scientifically-practical comment to the Criminal code of Byelorussia / under the general red See. A.V.Barkova, V.M.Homicha. With. 798.

The crimes as which object the child acts; 2) a formulation of independent structures of the crimes directed against the child, but located in other heads or sections UK; and 3) giving to the child as to the victim from other crimes, the status of a qualifying or especially qualifying sign.

Estimating the first and second ways of differentiation of responsibility for encroachments on the child, we have noted positive and negative, from our point of view, approaches to designing of criminally-legal interdictions and definition of their location in system of norms of Special part UK.

As to the third way it is necessary to note the following.

We support those authors who are not inclined to include the crimes directed against the child as the victim, in special group of the crimes considering with the major criterion for such isolation of feature of object, instead of потерпевшего144. Its designation as a qualifying sign in the general structures of the crimes encroaching for a life, health, freedom of the person, its sexual freedom etc., answers both a problem with the person criminally-right protection the child, and to a principle of ordering of construction of Special part UK. Otherwise (at association and those and other crimes in one group) there would be an infringement of the specified principle and at all would not correspond to logic of designing of norms.

At the same time, entering the qualifying signs, concerning the child, abreast articles UK the legislator far not always is consecutive. First of all, it is necessary to notice, that for these purposes it uses two concepts – "minor" and "juvenile". But when in article there are instructions only on the minor, mean, that the given concept covers also the juvenile. In same cases,

144 See Pudovochkin JU.E.responsibility for crimes against minors / SPb: the Legal centre the Press, 2002. With. 90.

When in same article (but in different parts) there are instructions both on the minor, and on juvenile, it is a question of division of these concepts with a view of maintenance of the differentiated approach to responsibility for the crimes made against them, with accent on the raised responsibility for an encroachment on juvenile. But such position takes place only in articles 166 and 167 UK. In all other cases the law or allocates only juvenile, or contains instructions on more general term "minor".

Let's consider the specified statutes with reference to concrete articles UK.

1. The instructions on minor and juvenile as qualifying signs with differentiation of responsibility for encroachments on them take place: in item 166: in ch. 2 – rape obviously minor and in ch. 3 – rape obviously juvenile; in item 167: in ch. 2 – violent actions of sexual character concerning obviously minor (minor) and in ch. 3 – the same actions made concerning obviously juvenile (juvenile).

2. The instructions only on juvenile sustained as a qualifying sign take place: in item 139: item 2 ch. 2 – murder obviously juvenile; in item 147: item 1 ch. 2 – deliberate causing of a heavy physical injury concerning obviously juvenile.

3. The instructions only on minor sustained as a qualifying sign take place: in item 146: ch. 2 – declination to suicide obviously minor; in item 154: ch. 2 – torture obviously minor; in item 157: ch. 3 – infection with a human immunodeficiency virus obviously minor; in item 158: ch. 3 – infection with a venereal disease obviously minor; in item 170: ch. 2 – compulsion to actions of sexual character obviously minor (minor); in item 171: ch. 2 –

Use for employment by prostitution or creation of conditions for employment by prostitution with use for employment by prostitution obviously minor; in item 1711: ch. 2 and 3 – involving in employment by prostitution or compulsion to employment by the prostitution, made concerning obviously minor; in item 181: item 1 ch. 2 – a human trafic concerning obviously minor; in cт. 1811: item 1 ch. 2 – use of a slave labour concerning obviously minor; in item 291: item 4 ch. 2 – the capture of the hostage made concerning obviously minor; in item 331: ch. 2 – declination to consumption of narcotics or the psychotropic substances, made concerning obviously minor; in item 343: ch. 2 – distribution or advertising of pornographic materials or subjects of pornographic character obviously minor either demonstration to it film-or video films of the pornographic maintenance.

At the same time, such legal regulation of features of responsibility for the crimes directed against the child, it is impossible to recognise optimum. It not to the full provides and the system approach.

It concerns, first of all, an inadequate estimation of committing a crime concerning minor and juvenile. Division of the child on minor and juvenile with reference to qualifying signs of some crimes has the bases. It will be adjusted with similar division with reference to an establishment of age of the criminal liability. The juvenile child cannot be recognised by the perpetrator owing to the

"nerazumenija". But the juvenile child requires a special right protection as the victim owing to the natural defencelessness.

It is necessary to tell, that the law has especially allocated juvenile with reference to murder and deliberate causing of a heavy physical injury,

But has actually equated it to the person who is in a helpless condition, that is a condition who as specifies Plenum of the Supreme Court of Byelorussia, deprives of the victim of possibility owing to its physical or mental condition to show to the criminal active resistance, to evade from an encroachment or otherwise to it противостоять145. Having allocated as especially qualifying sign juvenile as victims from rape and violent actions of sexual character, the criminal law, first, has put under special protection of the child aged till 14 years from sexual encroachments and, secondly, has besides considered their defencelessness, not capable to resist to the criminal.

In all other cases the law specifies in the minor, committing a crime which relation admits a qualifying sign, absorbing this concept and juvenile age of the child.

It is necessary to mean, that any encroachment on the juvenile child and especially violent, bears in itself a charge of the raised danger owing to obvious lowland of behaviour of the criminal, its impudence and cruelty. Therefore use by the legislator, as a rule, the generalised term «the minor, in our opinion, does not promote a correct criminally-legal estimation sodejannogo, its differentiations towards accurate expressiveness of degree of the social danger both the committed crime, and the person of the criminal who has encroached on sacred sacred.

In connection with stated introduction in variety of above-named articles UK of an additional part with instructions on committing a crime concerning juvenile as especially qualifying sign is represented to us expedient.

145 About judiciary practice on affairs about murder (item 139 UK): the decision of Plenum of the Supreme Court of Byelorussia from 17.12.2002 № 9//the National register of legal acts of Byelorussia. 2003. № 8. 6/353.

The second aspect of a considered problem concerns probelnosti the criminal law, that is those articles UK in which minor or juvenile are not provided absolutely not as qualifying signs. It is item 132 (recruitment, training, financing and use of mercenaries), item 145 (causing somebody to commit suicide), item 149 (deliberate causing of less heavy physical injury), item 163 (compulsion to a summer residence of bodies or fabrics for transplantation), item 183 (illegal imprisonment), item 328 (illegal circulation of narcotics, psychotropic substances, them prekursorov and analogues), item 332 (the organisation or the maintenance of brothels for consumption of narcotics, psychotropic substances, their analogues or other stupefying means), item 339 (hooliganism), item 394 (enforcement to testify), item 397 (obviously illegal detention or taking into custody), the item 404 (compulsion of the witness, the victim or the expert to refusal of evidence or the conclusion or to a summer residence of false testimonies or the conclusions).

Thereupon it is necessary to agree with the Russian authors considering necessary to carry out the system analysis of all structures of crimes about inclusion in them qualifying sign about committing a crime concerning minors (juvenile) 146.

The third aspect of a considered problem concerns necessity of allocation for independent structures of some the qualified structures in which the minor victim acts in an aggravating circumstance role (a qualifying sign).

In the given context are worthy an estimation of such structures of crimes, as use of employment by prostitution or creation of conditions for employment by prostitution (item 171 UK), involving in employment

146 See Kirshin V, Bagautdinov F.Differentsiatsija of the criminal liability for crimes against minors//Legality. 2010. № 4. With. 34.

Prostitution or compulsion to continuation of employment by prostitution (item 1711 UK), a human trafic (item 181 UK), declination to consumption of narcotics, psychotropic substances or their analogues (item 331 UK).

Let's notice, that in initial edition of item 171 UK provided a maintenance responsibility of brothels, procurement and a pimping. Simultaneously in item 173 UK providing responsibility for involving of the minor in antisocial behaviour, among kinds of antisocial behaviour prostitution appeared also. With acceptance of the Decree of the President of Byelorussia from March, 9th, 2005 № 3 «About some measures on counteraction to a human trafic» 147 active process on updating UK regarding regulation of responsibility for a human trafic and other crimes connected with it that was caused also by necessity implementatsii international legal positions which till that time in UK have not been reflected in general has begun or were reflected not in a sufficient measure. In particular, in UK actually there were no the norms actively counteracting struggle against operation of prostitution. Meanwhile, the United Nations Convention «About struggle against a human trafic and against operation of prostitution by the third parties», concluded in New York on December, 2nd, 1949, demanded to inflict to punishment of everyone who for satisfaction of lust of other person reduces, declines or seduces other person with a view of prostitution, even with the consent of this person or maintains prostitution of other person, even with the consent of this person (item 1), and also everyone who contains a brothel or operates it, or meaningly finances or takes part in brothel financing; or hands over in

147 About some measures on counteraction to a human trafic: the decree of the President of Byelorussia from March, 9th, 2005 № 3//the National register of legal acts of Byelorussia. 2005. № 40. 1/6300.

Rent or is removed by a building either other place, or a part of that, knowing, that they will be used with a view of prostitution by the third лицами148.

The responsibility establishment only for the brothel maintenance, procurement and a pimping not to the full answered is international - to legal requirements. Did not meet such requirements and a responsibility establishment only for involving of the minor in prostitution. Whereas the United Nations convention «About the rights of the child» (item 34) demands to protect the child from all forms of sexual operation and sexual seduction, taking all necessary measures for prevention of declination or compulsion of the child to any illegal sexual activity, and also uses with a view of operation of children in prostitution or in other illegal sexual practice. Therefore specification of the objective party of the crime provided by item 171 UK, and its expansion at the expense of introduction of responsibility for use of employment by prostitution by other person, and also punishment toughening for this crime was quite defensible. In ch. 2 given articles which has appeared along with the specified innovations, contain now a set of qualifying signs, including fulfilment of the specified actions with use for employment by prostitution obviously minor.

The Belarus scientists direct object of the given crime recognise public morality in sphere sexual отношений149. And according to the logic of construction UK it should take places in chapter 30 «Crimes against a public order and public morality». Allocation from the given corpus delicti of the acts directed against minors, not

148 Convention on struggle against a human trafic and with operation of prostitution by the third parties: utv. The resolution 317 (IV) General Assemblies of the United Nations from December, 2nd, 1949//Human rights: international legal documents and practice of their application. In 4 t. T. 1 / sost. E.V.Kuznetsova. Minsk: Amalfeja, 2009. With. 343.

149 Scientifically-practical comment to the Criminal code of Byelorussia / under the general red. A.V.Barkova, V.M.Homicha. With. 365.

Is justified owing to that the given crime has more general character. As to a crime provided by item 1711 UK the analysis of its signs allows to come to a conclusion about necessity of isolation for independent structure of actions in the form of involving of the minor in employment by prostitution or compulsion to continuation of employment by prostitution. Entering given article in UK, the legislator put a problem to criminalise some acts, in any measure connected with a human trafic, but that not being. In particular, in ch. 1 given article responsibility for nonviolent involving in employment by prostitution or compulsion to continuation of employment that, irrespective of age of the victim is established. Differently, the law provides now an instigation special case, but not to committing a crime, and to fulfilment of administrative offence. Thus punishment for the given crime is established rigid enough: Imprisonment for the term from one year till three years. Involving by the adult person of the minor in employment by prostitution or its compulsion to continuation of employment that began to be considered as one of the qualifying signs specified in ch. 2 given articles, which sanction provide punishment in the form of imprisonment for the term from 3 till 5 years. According to earlier operating edition of item 173 UK involving of the minor in prostitution attracted punishment in the form of arrest for the term up to 6 months or imprisonment for the term up to 3 years.

Thus, along with criminalisation of the considered acts made concerning adult victims, there was also an essential strengthening of the criminal liability for their fulfilment concerning the minor, necessity of that hardly can be called into question, considering activization for that time in our country of counteraction to a human trafic and other crimes connected with it.

However, the principle sistemnosti criminally-legal regulation in this case is not observed by the law: involving of the minor in committing a crime is punished according to ch. 1 items 172 UK restriction of freedom for the term up to 5 years or imprisonment for the same term. And its involving in prostitution attracts only punishment in the form of imprisonment for the term from 3 till 5 years. And even fulfilment of the specified crime concerning the persons who have reached of 18-year-old age, is punished more strictly, than involving of the minor in committing a crime. And this yet main. The maintenance of item 1711 UK says that the specified criminally-legal interdiction should protect, first of all, minors. Among especially qualifying signs of the given corpus delicti its fulfilment by the parent, the teacher or other person to which duties on education of the minor are assigned, concerning obviously minor appears first of all. The given crime made concerning the minor, does essential harm to moral and physical development of the child, it is fraught for it with irreversible heavy consequences. Therefore, not bringing in the present work an attention to the question on possibility of decriminalization of the act provided ch. 1 items 1711 though he also deserves discussion, we believe, that, first, the given norm should settle down in chapter 21 UK containing crimes, directed against minors, secondly, its dispositions thereupon should be corrected and, thirdly, its sanctions should be balanced with sanctions of other articles of this chapter providing responsibility for crimes, harming moral and physical development of the child. (Offered edition of corresponding article see in the Appendix № 1).

In our opinion, the question on allocation from the item deserves discussion

181 UK "Human trafic" of the independent corpus delicti

«Trade in children». This question already rose in the Belarus science. According to N.I.Retnevoj, allocation of trade by minors in independent structure will allow to fix signs specific to a given kind, including qualifying depending on age потерпевших150. It is possible to agree With the specified opinion. It is supported also with approaches of legislators of other states which along with human trafic structure provide also structure of trade in children. So, for example, UK Georgia the human trafic (trefiking), and in item 1432 provides in item 1431 trade in minors (trefiking). Republics Moldova UK in item 165 provides a human trafic, and in item 206 – trade in children. Trade in minors is provided and UK Kazakhstan by) (item 133), UK Tajikistan (item 167). Thus, in a number of UK the structure of trade in minors takes places in the heads providing crimes against children and a family.

As argument in favour of the specified offer should serve and that circumstance, that now in the House of Representatives of National assembly of Byelorussia there is a Law bill «About entering of additions and changes into Criminal, criminally - remedial, Criminally-executive codes of Byelorussia, the Code of Byelorussia about administrative violations and the Remedially-executive code of Byelorussia about administrative violations» which acceptance is supposed in 2014. In the given project the disposition ch is essentially changed. 1 items 181 "Human trafic" in which it is offered to understand recruitment as the given crime, transportation transfer, concealment or reception of the person with a view of the operation, made fraudulently, either breach of confidence, or applications of violence, not dangerous to a life or health of sustained,

150 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. 68.

Or under the threat of application of such violence. Constituting the objective party of this crime of action in the form of purchase and sale of the person or fulfilment of other transactions concerning it (irrespective of the purposes), provided in operating edition of the given norm, in the project are not mentioned. It means, that they will not admit criminal. However if to talk about trade in the child non-recognition by its criminal action in cases of absence of the purpose of operation contradicts as international legal requirements according to which should recognise as a crime trade in children or their contraband in any purposes and in any form, and to the norms of the morals which have developed in our society. The permission to trade in children, in our opinion, will put an irreparable harm to society moral principles.

And, at last, in our opinion, it is necessary to isolate in the independent corpus delicti declination to consumption of narcotics, psychotropic substances or their analogues, provided now as qualifying sign in the item

331 UK and to transfer it also to chapter 21 as in this case it is necessary to consider as the basic direct object also moral and physical development of the child, instead of population health.

The stated allows to draw following conclusions.

1. Against the child, carried out in UK by allocation of the independent chapter, certainly, it is necessary to consider ordering of crimes as advantage of the operating criminal law. The system arrangement of the norms providing responsibility for encroachments on the child, allows to define more accurately their signs including qualifying, promotes the balanced formation of criminally-legal sanctions as legal consequences of these crimes presented in the ratio with the general and special criminally-legal interdictions.

2. The child as especially protected value conventional at world level should be considered as the independent specific object understood as composed system of higher level in which quality the patrimonial object of the crimes consolidated in section VII UK «Crimes against the person» acts. However with a view of preservation of the developed approach to structurization of the given section it is offered to name chapter 21 UK of Byelorussia «Crimes against interests of the child and a family», considering «interests of the child» as the generalised phenomenon which is coming under criminally-right protection.

Thus interests of the child it suggested to define as objectively existing vital needs and legislatively the acquired rights corresponding to the standard requirements in a society on normal development of the child and its formation as the person.

The made definition meets the requirements sistemnosti in classification of objects by a vertical and matters for perfection of ordering and structurization of the crimes directed against the child, an adequate estimation of character and degree of their social danger in system of crimes against the person, and also in system of other crimes harming the child, for maintenance of reasonable balance in an establishment and application criminally - legal sanctions for the specified encroachments.

3. The analysis of the basic direct objects of the crimes consolidated in chapter 21 UK, has shown, that the majority of such crimes encroaches on normal moral and physical development of the child that should be preferred at ordering of crimes. Thereupon us it is offered to transfer a number of the crimes having similar direct object to chapter 21 UK: sexual connection and other actions of sexual character with the person who has not reached 16-year-old age (item 168), dissolute actions (item 169 UK), manufacturing and distribution of pornographic materials or

Subjects of pornographic character with the image of the minor (item 3431). Besides, it is offered to formulate independent structures of crimes on the basis of qualifying signs in which quality committing a crime concerning the minor acts: involving in employment by prostitution or compulsion to continuation of employment by prostitution (item 1711)), a human trafic (item 181), declination to consumption of narcotics, psychotropic substances or their analogues (item 331).

4. At use of such way criminally-right protection the child as giving to it of the status of the victim from other crimes and a recognition as a qualifying or especially qualifying sign, the legislator is not always consecutive. It concerns differentiation of responsibility depending on, whether there was a child minor or juvenile. In this connection us introduction in variety of articles UK in which is available qualifying signs is offered: committing a crime by the minor, an additional part with instructions on committing a crime concerning juvenile as especially qualifying sign (item 146, 154, 158, 170, 171, 1711, 181, 1811, 291, 331, 343 UK).

6. During research it is revealed also probelnost the criminal law, consisting that in variety of articles UK minor or juvenile as special victims are not provided absolutely not as qualifying signs (item 132, 145, 149,

163, 183, 328, 332, 339, 394, 397, 404).

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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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