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the Chapter II. The Punishments under criminal law applied to the minors under the legislation of foreign countries: history and the present

Studying of the foreign criminal legislation and its comparison with zakoyonodatelstvom Russian is important enough from a position of possible prospects of the account of its positive experience at perfection criminally-legal inyostitutov the domestic law.

To concept of legal systems have devoted the nauchyonye works: R.David, G.A.Esakov, K.Zhoffre-Spinozi, H.Kyotts, L.L.Kruglikov, N.E.Krylov, A.V.Malko, A.V.Naumov, A.H.Saidov, A.J.Salomatin, A.V.SeYorebrennikova, K.Tsvajgert, etc. Comparison Russian and foreign zakonoyodatelstva about punishment of minors it is reflected in works of the following avtoyorov: O.N.Bibik, A.Bogdanovsky, L.E.Vladimir, A.V.Vishnjakova, V.V. EsiYopov, V.A.Zhabsky, V.A.Zajchenko, A.G.Kibalnik, I.D.Kozochkin, L.L.KrugliYokov, N.E.Krylov, N.F.Kuznetsova, A.A.Malinovsky, A.V.Malko, A.A.MalYotsev, J.A.Maharamov, N.P.Meleshko, A.V.Naumov, B.S.Nikiforov, F.M.ReshetYonikov, A.H. Saidov, A.J.Salomatin, A.V.Serebrennikov, E.G.Tarlo, etc.

Within the limits of the given research there was a task in view to analyse the foreign legislation on punishment under criminal law of minors, chtoyoby on the basis of the comparative analysis to draw a conclusion on, whether probably impleyomentirovat certain positive experience in Russian criminal zakonoyodatelstvo.

By consideration of problems of formation of system of punishment for nesoveryoshennoletnih in the Russian criminal legislation it is represented nevozyomozhnym to avoid available foreign experience. As it was already mentioned, the Russian experience in the given area is rather insignificant, because actually the system of punishments under criminal law for minors in Russia is generated rather recently - in 1996 that is marked by acceptance operating UK the Russian Federation. Before the domestic legislation gave to this question nedostayotochno attention. Also there are no bases to believe, that formation ways rossijyoskogo legislations are so unique and self-sufficient, that zarubezhyonyj experience in this area was inapplicable. Especially actual the given question

58 becomes in the light of the processes occurring in last decades leading to unification of the legislation of the various countries, including Russian FedeYOratsii, on the basis of positions of international treaties. It is necessary to find opyotimalnye ways of perfection Russian criminal zakonodatelstyova about punishment of minors. Therefore it is represented reasonable and obosyonovannym studying within the limits of the present research not only Russian, but also the foreign legislation.

Abroad there are the most different approaches to a question on what obyorazom should be reflected in the legislation of feature criminal otvetyostvennosti minors. In some countries the question on punishment ukayozannoj groups of persons is allocated in the separate chapter of criminal laws (for example, UK Holland, UK Bulgaria), in others (Spain, France) is available special zayokonodatelstvo about the criminal liability of minors.

Considering some differences in structure of the legislation of the various countries of the world, it is represented correct to investigate criminal law of each country not separately, and to consolidate them in some groups by sign otneyosenija to one of the basic legal systems (legal families).

For this purpose at first it is necessary to be defined, that such legal system (a legal family) and as this concept corresponds with concept of legal system of a society.

Scientists differently answer this question. Finding-out of what approach is the most correct, is not a problem of our research; therefore we take A.H.Saidova's position which believes for a basis, that «isyosledovanie legal system should cover, first, system of sights, ideas, representations, theories, i.e. pravoponimanie in data historical periyood; secondly, the analysis of a standard basis, its structure; thirdly, system of realisation of the right». [101]

Legal family - concept wider. A.H.Saidov defines it as more or less wide set of national legal systems, ob -

59 edinennyh a generality of historical formation, structure, sources, veyodushchih branches and legal institutions, pravoprimenenija, ponjatijnoyokategorialnogo the device legal науки.1

Concept «a legal family» widespread among scientists - komparativistov. About legal families speak, in particular, R.David and K.Zhof-fre-Spinozi, K.Tsvargejt and H.Kyotts, N.E.Krylov and A.V.Serebrennikov, G.A.Esakov. [102 [103] more correct the concept "legal system", ispolzueyomoe A.V.Naumov in which it puts the same maintenance, that others issleyodovateli in concept «a legal family» sees. [104] Same terminology it is inclined priderzhiyovatsja by L.L.Kruglikov. [105]

Concerning criteria of classification of legal systems among scientists also there is a divergence. Therefore, being based on various criteria, researchers allocate the legal systems differing both by quantity, and under the maintenance.

So, R.David and K.Zhoffre-Spinozi on the basis of ideological kriteyorija and criterion of legal technics allocate three legal families: romanoyogermanskuju, Anglo-Saxon and socialist, and also adjoining them «religious and traditional systems» to which carry Muslim prayovo, the Hindu right, the right of the countries of the Far East and the right of Black Africa and Madagascar. [106]

A.V.Naumov offers classification of legal systems on romanoyogermanskoe, Anglo-Saxon, socialist and Muslim право.1

A.H.Saidov names three groups of criteria of classification legal sisyotem: «system of sources of law; legal system structure; leading legal institutions and branches of law». [107 [108] By the given criteria it allocates following prayovovye families: romano-German in which it includes also the Scandinavian right, the Latin American right and the right of Japan; the socialist; a family obyoshchego the rights; so-called religious and traditional legal families (muyosulmanskaja a legal family, the Hindu right, legal systems of the countries of the Far East, the African legal family); and also so-called mixed prayovovye systems (Israel, the republic of South Africa, American state Louisiana, Canadian provinyotsija Quebec etc.). [109]

K.Tsvajgert and H.Kyotts deduce concept of the "style" inherent legal sisyoteme. On the basis of criterion «legal style» researchers have come to conclusion about existence of eight legal families: 1) the Romance; 2) the German; 3) skandiyonavskaja; 4) a general law; 5) the socialist right; 6) the rights of the countries of the Far East; 7) the Islamic right, 8) the Hindu right. [110]

As A.V.Malko and A.J.Salomatin consider the given classification of the most convincing, but at the same time notice, that «to speak about a uniform romano-German legal family», [111] thus, bringing in this classification the corrective amendments more correctly. Nevertheless they suggest «not to absolutise any of classifications», [112] specifying that legal systems of the various countries zayochastuju change under the influence of other countries as a result of loans.

N.E.Krylov and A.V.Serebrennikov as criteria of classification names «right principles, ways of expression and fastening of rules of law

61 (receptions of legal technics), their interpretation, etc. ». 1 On this basis they allocate only two legal families which name the cores: romanoyogermanskuju and Anglo-American, consolidating all other legal systems in one group under the general name of" system of the religious right ». [113 [114]

G.A.Esakov believes, that at the heart of typology of criminally-legal systems the criterion of the idea dominating in the given country should lay, that is «that (who) is a dominant in criminal law... It is possible to allocate ugolovnoyopravovye families of the continental law, a general law, the religious right, obyoshchinnogo the right and a common law». [115]

L.L.Kruglikov as a whole agrees with the classification offered by A.V.Naumov, however in the research it goes further, aspiring to consolidate national systems to such groups where intragroup distinctions would be minimum. So, concerning continental legal system L.L KrugYOlikov specifies, that it is divided on two branches: western (actually romanoyogermanskuju system) and east (in which it includes basically evropejyoskie the post-Soviet territory countries). In turn, within the limits of the western branch it allocates some groups: French, German, italoyoiberijskuju, thus specifying, that the given list is not full. It also is inclined to subdivide the Anglosaksonyosky legal system on British and amerikan -

4

I will hold down branches. [116]

The problem consists in investigating from the point of view of comparative jurisprudence system of punishment for minors in Russia and other countries of the world, therefore it is represented quite comprehensible to allocate following groups of the countries. First, the countries of continental legal system (to which we carry, first of all, the country of continental Europe. Also, on nayoshemu to belief, here it is necessary to include the countries of Latin America, as

All of them were earlier colonies of the European countries, mainly to Spain and Portugal, and their legal systems were generated under influence zakonodayotelstva the specified countries. As the researchers, dealing with the given problem, «mark criminally-legal systems of the Latin American states otnoyosjatsja to system hand-written and kodifitsirovannogo the rights. Custom, judicial resheyonija, doctrines, do not act as criminal law sources». [CXVII] Belief korenyonogo the population of Latin America, it appears, have not rendered serious influence on the right of the Latin American countries, unlike the Muslim countries which also were earlier European colonies (in particular, Algeria which was in the past a colony of France). Secondly, the countries of the general (Anglo-Saxon) prayova (the Great Britain, the USA, Australia). Thirdly, the countries of the Moslem law and other countries with traditional legal systems (Israel, China, Japan, Korea etc.) . At last, within the limits of the given research it is represented neobhodiyomym to analyse separately the criminal legislation of the countries postsovetskoyogo spaces as it though possesses the signs allowing suyodit about its similarity to the legislation of the countries continental legal sisteyomy, has in many respects kept in itself traces of the legislation of the Soviet period.

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A source: Kiselyova Ekaterina Sergeevna. SYSTEM of PUNISHMENTS UNDER CRIMINAL LAW FOR MINORS UNDER the RUSSIAN And FOREIGN LEGISLATION. The DISSERTATION on competition of a scientific degree of the master of laws. Saratov - 2018. 2018

More on topic the Chapter II. The Punishments under criminal law applied to the minors under the legislation of foreign countries: history and the present:

  1. § 2. The Punishments under criminal law applied to the minors under the legislation of the countries of the Anglo-Saxon right
  2. § 1. The Punishments under criminal law applied to the minors in the countries of continental legal system
  3. § 3. Punishments under criminal law for minors under the legislation of Muslim and other countries with traditional legal system
  4. Kiselyov Ekaterina Sergeevna. SYSTEM of PUNISHMENTS UNDER CRIMINAL LAW FOR MINORS UNDER the RUSSIAN And FOREIGN LEGISLATION. The DISSERTATION on competition of a scientific degree of the master of laws. Saratov - 2018, 2018
  5. § 3. Tendencies of construction of system of punishments under criminal law in the modern foreign legislation
  6. CHAPTER 1. HISTORY of DEVELOPMENT of the CRIMINAL LEGISLATION of Russia And the MODERN FOREIGN CRIMINAL LEGISLATION ON RESPONSIBILITY FOR DELIBERATE DESTRUCTION OR DAMAGE of ANOTHER'S PROPERTY
  7. punishments in history of the criminal legislation of Russia and Korea
  8. the Chapter I. Genesis and evolution of the Russian legislation on punishment under criminal law of minors
  9. Chapter 2. Criminally-right protection properties in history of Russia, Kyrgyzstan and the modern legislation of foreign countries
  10. § 2. Evolution of system of punishments under criminal law for minors during the Post-Soviet period
  11. § 2. Features of the modern criminal legislation of the foreign countries regulating clearing of the criminal liability on affairs about crimes in sphere of economic activities
  12. CHAPTER 2. DOMESTIC And FOREIGN EXPERIENCE of LEGISLATIVE FASTENING of SYSTEM of PUNISHMENTS UNDER CRIMINAL LAW
  13. 1.2. The characteristic of punishment in the form of arrest in the modern criminal legislation of foreign countries
  14. § 1.5. The Criminal liability for theft in the legislation of foreign countries
  15. §2. Concept and history of development of institute of clearing of minors from the criminal liability under the legislation of the Russian Federation and Socialist Republic Vietnam
  16. Chapter 1. Concept of punishment in the form of arrest in Russia and the characteristic in the criminal legislation of foreign countries
  17. § 3. The kinds of the punishments which have been not connected with deprivation or restriction of freedom, in the system of penalties for minors: teoretiko-applied problems
  18. 1.3. Active repentance of the criminal legislation of foreign countries
  19. Kinds and the maintenance of the punishments connected with the deprivation, in the foreign criminal legislation
  20. chapter 1. The comparative analysis of a regulation of responsibility for extortion and blackmail in criminal law of Russia and foreign countries