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§ 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

Ascertaining of imperfection of modern legislative model sisteyomy punishments for minors leads to a conclusion about necessity of its perfection. And it is necessary to notice, that to changes should podvergyonutsja both the list of punishments under criminal law, and their limits, and also some aspects of awarding punishment of the specified category of persons.

The first kind in the system of penalties for minors names the penalty. According to ch. 2 items 88 UK the Russian Federation the penalty are appointed as in the relation nesoveryoshennoletnih, having own income or property on which penalty can be imposed, and not having it. Thus penalty payment can be assigned to parents or legal representatives condemned with them soyoglasija. The size of the penalty is considerably reduced in comparison with the size, ustanovyolennym in item 46 UK the Russian Federation: to the persons who have not reached majority, the penalty can be appointed only from one thousand to fifty thousand roubles or at a rate of wages or other income of the condemned minor for the period from two weeks about six months.

As a result of the spent analysis of verdicts of guilty of regional vessels and world judges of the Saratov and Volgograd areas for 2011-2015, taken out concerning minors, it has been revealed, that last years the penalty share on the Saratov area constituted 13,4 %, on the Volgograd area this indicator a little bit more low and constitutes 10 %.

In the special literature the question on efficiency of the penalty as punishment under criminal law remains for a long time debatable. So, P.P.Osipov believed, that application of the penalty to achieve correction and perevospitayonija condemned невозможно.1 Till now some scientists adhere to this position. [392 [393]

It is impossible to agree with such statement. In a modern society money plays the important role as an instrument of payment and a way of satisfaction of escalating requirements of the individual. The penalty which is the least strict punishment, should be applied concerning the persons who do not have expressed criminal propensities. At observance of this condition it is capable to render corrective and preventive influence on the condemned. Most considerably corrective influence of forfeiture should be shown concerning the persons who have made profit-motivated crimes. A.M.Ibragimova polayogaet, that at appointment of a considered kind of punishment for crimes proyotiv properties «essence of punishment is shown in« pure "kind", 1 i.e. vozyodejstvie punishments concentrates in that sphere in which motives of fulfilment of criminal action have arisen. The given position is represented proved regarding the statement about efficiency of the penalty as punishment for profit-motivated crimes though the author, it appears, too close approaches in the rassuzhdeyonijah to thought, that the punishment essence consists in requital by a principle «an eye for an eye». Such treatment of essence of punishment is incorrect in a root.

At application of punishment in the form of the penalty to minors at once there is appreciable a presence of set of the disputable moments. First of all it is question widely discussed in the press on that, it is how much lawful vozlayogat execution of punishment under criminal law to which is exposed nesovershennoletyony condemned, on his parents or legal representatives.

As it was marked earlier, reaction of the scientific environment to introduction of the given position in the criminal law was basically negative. [394]

The carried out research basically has confirmed this tendency though has revealed diskussionnost the lifted problem. So, 68 % of respondents from among scientists have expressed negatively concerning possibility of putting on of the penalty on parents or legal representatives of the minor. 20 % opposite, believe, that the given position should be fixed in the law, however upoyominanie about necessity of reception of the consent of parents or lawful predstayovitelej it is necessary to exclude. At the same time among the interrogated experts suzhdeyonija were meted a little differently. Third from them (35 %) believes, that anything to change does not follow, and about half (45 %) has spoken against putting on of the penalty, appointed to the minor, on his parents or legal representatives. From the interrogated students more than half (57,9 %) have considered zakoyonodatelnuju a design unsuccessful. The conversations spent after questioning with respondents-experts, have established the reason of such difference in opinions at the answer to the asked question. In their opinion, the penalty to collect from the adult cheyoloveka, than from the minor easier, thus the question of observance of principles ugoyolovnogo the rights recedes into the background.

At the same time the main argument in favour of return to initial redakyotsii ch. 2 items 88 UK the Russian Federation consist that in present edition it protivoyorechit to a fault and personal responsibility principle. The given principle, in sootvetstyovii from item 5 UK the Russian Federation, consists that the person comes under to the criminal liability only for those socially dangerous actions (inactivity) and come obshcheyostvenno dangerous consequences in which relation its fault is established. In itoyoge as marks J.I.Bytko, it leads nedostizheniju the punishment purposes. [395] and the assumption of putting on of a duty on penalty payment on parents of the guilty person, even from their consent, means putting on on them duties to incur nakayozanie for its act. Besides, given legislative guideline protivoreyochit fixed in the item item 6, 4 UK the Russian Federation to a principle of justice and a principle rayovenstva citizens before the law, as teenagers from safe in imushcheyostvennom the relation of families, whose parents are ready to pay to relieve from liyosheny and restrictions of children, have an opportunity to "pay off" from prayovosudija, that gives them advantage before what families are less safe. According to G.V.Verinoj which is represented proved, such approach to awarding punishment does not maintain criticism not only owing to the protivoyorechija to a principle of fault and other principles of criminal law but also because forms at minors feeling of impunity and вседозволенности.1

The following problem connected with the penalty is an ambiguity formulirovyoki which consists in the following. The legislative design, ustanavliyovajushchaja possibility of an infliction of penalty to the minor irrespective of presence at it independent earnings or property on which collecting can be turned, does not define precisely, in what cases absence at neyosovershennoletnego independent earnings or property does not interfere

To 153 appointment to it of the penalty. As the given formulation has appeared in the law odyonovremenno with position about possibility of putting on of payment of the penalty on roditeyolej or legal representatives, probably, the resulted norm follows trakyotovat as possibility of appointment to the minor of the penalty only in the event that his parents or legal representatives agree putting on of payment of the penalty on them. If to admit other treatment appears neopreyodelennost in a question on how can collect the penalty, appointed to the minor, at absence at it own property or dohoyoda.

On the one hand, positions ch. 3 items 46 UK the Russian Federation provide vozmozhyonost instalments of payment of the penalty till five years. Nevertheless, at appointment nakayozanija court, according to ch. 3 items 60 UK the Russian Federation, should consider its influence on conditions of a life of a family of the condemned. Plenum of the Supreme Court of the Russian Federation explains: «the Size of the penalty is defined by court taking into account weight made prestupleyonija, a property status condemned and his families, and also with the account vozyomozhnosti receptions condemned wages or other income... In these purposes it is necessary to find out presence or absence of a place of work at condemned, the size of its wages or other income, employment possibility, presence of property, dependents, etc.». [CCCXCVI]

Hence, an infliction of penalty to the minor who does not have own income or property, even with execution instalments, rather zayotrudnitelno. In practice of the judge find out, what property status of the defendant before to leave in the deliberation room that does not remove the mentioned problem as a whole.

So, in time , having entered in an apartment house located to the address: and not having found out in it A.E.G., having seen a mobile phone «Nokia X1-01», belonging A.E.G., sforyomirovala the criminal intention directed on its secret plunder. Vospolzo -

vavshis absence in dwelling of the mistress, having convinced, that its actions remain not noticed, P.V.V. by an easy approach took a mobile phone maryoki «Nokia X1-01» in cost . After that, P.V.V. with pohishchenyonym a mobile phone has disappeared from a scene of crime. That P.V.V. the wrongful acts has caused A.E.G. A property damage in size . in the evening P.V.V., being in a condition of alcoholic intoxication, in common with girlfriends K.A.A. And A.N.P. Walked on . Approximately in specified number K.A.A. And A.N.P. Have fallen during snow. At falling K.A.A. The mobile phone of mark belonging to it has dropped out of a fur coat pocket poyoslednej «Nokia С3-00». K.A.A. And A.N.P. It have not noticed. Then P.V.V. by an easy approach to a mark mobile phone «Nokia С3-00» took his hands and has secretly stolen the given mobile phone. That P.V.V. has caused K.A.A. imushchestvenyonyj a damage in size . approximately in by P.V.V., being in a condition of alcoholic intoxication, has generated the criminal intention directed on illegal penetration into a premise for the purpose of secret plunder commodity-material assets. Then approximately in by P.V.V. has arrived to zdayoniju , located on the address: . Here P.V.V. through a window aperture has illegally got in a corridor. pohiyotila money resources in the sum and a bottle of house wine. Then Ponomaryova V.V. took keys from cases with medicines, has approached to cases with medical preparations and by means of keys them has opened, secretly having stolen medical preparations . Having made the above-stated actions, Ponomareva V.V. through a window has left a premise and has disappeared from a scene of crime.

By court of action of P.V.V. are qualified on ch. 1 items 158, ch. 1 items 158, the item ch. 2 items 158 UK the Russian Federation. In session of the court it was investigated material and imushcheyostvennoe position of the defendant which has explained about presence of the circumstances testifying to its possible solvency. By partial slo -

155 zhenija P.V.V.'s punishments punishment in the form of the penalty at a rate of 6000 is appointed rub - pour. [CCCXCVII]

Ambiguity of analyzed position of the law can lead to different interpretations and entail in practice an infliction of penalty to the person who has not reached soyovershennoletija, despite of absence at it own earnings or imuyoshchestva.

Rather important the question on the size of the penalty is represented. According to ch. 2 items 88 UK the Russian Federation the penalty can be appointed to the minor at the rate from one thousand to fifty thousand roubles or at a rate of wages or other income of the minor condemned for the period from two weeks about six months. At the same time ch. 2 items 46 UK establish the Russian Federation, that under the general rule the penalty is appointed in the sum from five thousand to five millions roubles or at a rate of wages or other income condemned for the period from two neyodel till five years or estimated in size, multiple cost of a subject or the sum of commercial payoff, a bribe or the sum illegally moved deyonezhnyh means and (or) costs of monetary tools (it should sostavyoljat not less than twenty five thousand and no more than five hundred millions roubles).

At comparison of these two norms it is necessary to notice, however the huge precipice divides the penalty appointed the minor and adult persons. Even esyoli to consider position that to adult persons the penalty in the sum more than five hundred thousand roubles or at a rate of wages or other income condemned for the period over three years can be appointed only in cases, specially preduyosmotrennyh corresponding articles of Special part UK the Russian Federation, maksimalyonyj the size of the penalty provided for minors, ten times less than this sum. The minimum size of the penalty, according to ch. 2 items 88 UK the Russian Federation, less the than minimum size of the penalty for adult persons five times.

Such approach is represented inconsistent and inexpedient. So sharp decrease in the size of punishment under criminal law cannot be justified even minor age of the guilty. It is thought, it levels isyopravitelnoe penalty influence on condemned as punishment perestayoet to be perceived seriously.

Nevertheless, such tendency is observed in pravoprimenitelnoj to practice. At its studying cases of appointment of the least strict punishments (penalty) for fulfilment of several grave crimes, kvalifitsiyorovannyh on ch have been revealed. 3 items 158 UK the Russian Federation, on set. In particular, nesovershennoyoletny I.O. Has made secret plunder of the property belonging D.N.E., for the sum 4574 roubles, made with illegal penetration into dwelling. Besides, it has made secret plunder of the property belonging D.N.E., for the sum of 1500 roubles, made with illegal penetration into dwelling. I.O. Also has made secret plunder of the property belonging A.I.O., for the sum of 2000 roubles, made with illegal penetration into dwelling. DejYOstvija I.O. By court are qualified under the item « And »ch. 3 items 158 (3 episodes) UK the Russian Federation. The sentence from 10.02.2011 to it appoints punishment with application of item 64 UK the Russian Federation in the form of the penalty at a rate of 1000 roubles on each episode of theft; on osnovayonii ch. 3 items 69 UK the Russian Federation definitive punishment are appointed in the form of the penalty in razmeyore 2500 roubles. [CCCXCVIII]

In the resulted sentence the tendency to minimisation nakayozanija was brightly reflected. Court, aspiring to show humanism concerning the minor, peyorestupaet a rationality side, and for fulfilment of three grave crimes naznachayoet punishment referring to item 64 UK the Russian Federation in the form of the penalty on so small sumyomu which is not comparable even to the caused damage. Thus in a sentence the court considers as extenuations only infancy of the defendant, an appearance with guilty and active contribution to disclosing and rassleyodovaniju crimes. It is represented, such practice can is fatal skazy -

157 vatsja on achievement of the purposes of punishment under criminal law also should not have povsemestyonogo distribution.

At the decision of a question on what should be minimum and maksiyomalnyj limits of the penalty for minors, again there is a problem ediyonogo the approach to all kinds of the punishments provided for them.

As it was already mentioned, it is represented expedient to establish the uniform sizes of all kinds of punishments for minors who, depending on their age, should constitute: one third of the sizes provided for adult persons, - for persons at the age from fourteen till sixteen years, and one second from the sizes provided for adult persons, - for persons at the age from sixteen till eighteen years. At the same time at calculation of the size of the penalty we it is necessary to consider not the maximum size of punishment provided for adult persons under the general rule, and the size in five hundred thousand roubles, as, according to ch. 2 items 46 UK the Russian Federation, the penalty at the rate from five hundred thousand roubles or at a rate of wages or other income condemned for the period over three years can be appointed only in the cases specially provided sootvetstyovujushchimi by articles of Special part UK the Russian Federation, except for cases of calculation of the size of the penalty proceeding from size, the multiple sum of commercial payoff, a bribe or the sum of illegally moved money resources and (or) costs of monetary tools.

In this connection it is expedient to establish the next size of the penalty: for persons at the age from fourteen till sixteen years the size of the given punishment should constitute from one and a half roubles to hundred fifty thousand or at a rate of wages or other income condemned for the period from one week till one year of eight months. For persons from sixteen till eighteen years - from two with poyolovinoj to two hundred fifty thousand roubles or at a rate of wages or other income condemned for the period from two weeks till two years of six months.

Nevertheless, it is necessary to notice, that at an infliction of penalty pravoprimeniyoteljam it is necessary to check attentively presence of possibility at nesovershennoletyonego to penalty payment as punishment should be feasible.

The following kind of punishment which can be appointed nesovershennoyoletnim, is a debaring to be engaged in certain activity. Here takyozhe there are complexities.

Application possibility to minors of punishment in the form of the debaring to be engaged in certain activity is established the item ch. 1 items 88 UK the Russian Federation. However in the law there are instructions on feature of its appointment to persons, not dosyotigshim no majority. In it its difference from other kinds nakayozany, provided for the given group of persons also consists.

For today it is not clear, whether the debaring defined dejayotelnostju can be engaged to be appointed the minor only as the core nakayozanija, or it can be appointed also as the additional? What its deadlines? Whether distribution on minors of positions ch is possible. 3 items 47 UK the Russian Federation about possibility of application of the given kind of punishment as additional punishment in case it are not provided sootyovetstvujushchej by article of Special part UK the Russian Federation? All these questions wait for the reyoshenija.

Actually, contrary to fixed in item 3 UK the Russian Federation to a legality principle, absence in the legislation of norm on how the given punishment to minors should be applied, puts pravoprimenitelej in a situation when they are forced to address to other norms regulating similar otyonoshenija, that is cases when similar punishment is applied to adults liyotsam. Sees, in it one of the reasons of unpopularity of the given kind nakayozanija concerning minors is covered.

Researchers state the different points of view on the given problem. So, for example, M.I.Koltsov considers expedient to establish in the law konkretyonye activity kinds on which the interdiction is imposed, in particular, what demand licensing. [CCCXCIX]

It is impossible to agree with such opinion. Insufficiently simply to alter punishment which concerning minors practically are not applied. The opinion of those researchers, which nastaivayojut on necessity of an exception of the debaring to be engaged defined dejayotelnostju from the system of penalties for minors Is represented proved. [CD] the Considered kind of punishment under criminal law is inexpedient concerning minors as its appointment makes sense only in cases of the committing a crime connected with a certain kind of activity. Minors in osyonovnom commit the crimes which have been not connected with realisation of any activity. Besides, they frequently owing to the age have no vozmozhyonosti to be engaged in that activity on which the ban could be imposed, for example, licensed, or rendering certain professional usyolug. The reason for that is absence at minor sufficient professioyonalnyh skills owing to age.

The statistics analysis for six months 2017 shows, that the basic share of the crimes made by minors, constitute plunders (66 %). Further there are the crimes connected with narcotics and psihotropyonymi by substances (1 0,4 %), and also occupancy by a vehicle without the plunder purpose (10,1 %)? But even in case of stealing of vehicles when, apparently, the most natural would be to appoint to guilty persons the debaring of management a vehicle, application of the given punishment to nesoveryoshennoletnim is impossible, as persons are elderly till eighteen years have no such rights.

The similar result has been received at questioning carrying out. Among the interrogated scientific 48 % have considered necessary to exclude the given kind of punishment under criminal law from the system of penalties for minors, among experts takoyogo opinions adhere to 70 % interrogated, and among students - 59,7 % oproyoshennyh.

Awarding punishment in the form of obligatory works is regulated ch. 3 items 88 UK the Russian Federation. The fact of presence of the given kind of punishment in the system of penalties for nesoyovershennoletnih causes discussions in the scientific environment rather tselesoobrazyonosti its applications to the persons who have not reached majority.

So, one authors consider the specified punishment mismatching vozyorastnym to features of minors as it is perceived neyosovershennoletnimi as the feeling dishonouring and degrading them own dosto - инства.1 Such position is represented unreasonable, after all any punishment javyoljaetsja first of all deprivation or restriction of the rights and if condemned not isyopytyvaet any inconveniences in connection with the punishment imposed on it, it cannot be effective.

Others believe, that the given punishment is necessary for excluding, as it is unconstitutional. [CDI] [CDII] however and this opinion is represented oshibochyonym, after all the basic argument of representatives of a similar sight is the reference on ch. 2 items 37 of the Constitution of the Russian Federation establishing an interdiction on prinuditelyonyj work. However it is important to notice what to apply the specified norm to punishments under criminal law it is impossible, as any punishment under criminal law limits osuzhdenyonogo in constitutional laws. Besides, ch. 3 items 55 of the Constitution of the Russian Federation preduyosmatrivaet possibility of restriction of human rights and the citizen the federal act in that measure in what it is necessary with a view of protection of bases konstitutsionyonogo a system, morals, health, the rights and legitimate interests of other persons, maintenance of defence of the country and safety of the state.

The third hold the opinion about its high efficiency at naznacheyonii the minor as it promotes correction through priobshcheyonie to work, 1 and the given approach is represented correct as work razyovivaet self-organising of the teenager, raises feeling of responsibility for ployody work, are improved communicative competence and personal

161 qualities, ability rationally is formed to plan the activity, razyovivajutsja labour skills. Besides noted salutary influence of work, there is that important fact, that the specified kind of punishment under criminal law condemned at serving does not have a sensation of impunity.

Some interrogated teachers specify in necessity naznayochenija this punishment by the pupil condemned with carrying over on a vacation that punishment has not affected negatively their study. [CDIII] it is doubtless, at naznayochenii to the minor of punishment in the form of obligatory works the court should consider level of its employment among other factors: study at school or on internal branch of other educational institution.

In pravoprimenitelnoj to practice of the Saratov and Volgograd areas for 2011-2015 the given kind of punishment is the most demanded in otnoyoshenii minors. In particular, among the sentences studied by us suyodov the Saratov area the share of sentences to obligatory works constitutes 21 %, a share of sentences of the Volgograd area accordingly - 20 %.

According to ch. 3 items 88 UK the Russian Federation obligatory works can be naznayocheny for the term from forty till hundred sixty o'clock, consist in performance rayobot, feasible for the minor, and are executed by it in free from ucheyoby or the basic work time. Duration of execution of the given kind nayokazanija persons is elderly till fifteen years cannot exceed two hours per day, and persons at the age from fifteen till sixteen years - three hours per day. Thus, by consideration of the given kind of punishment two disputable moments are evident. The first consists in the penal term established for neyosovershennoletnih, the second concerns duration of its execution.

As to the penal term here the legislator has to the full shown the inconsistency. It becomes obvious at comparison of norms, soyoderzhashchihsja in ch. 3 items 88 and ch. 2 items 49 UK the Russian Federation as the bottom limit of punishment for minors is reduced in comparison with adults to one third, and the top limit - on two third. The position of the legislator is represented to us otra -

162 zheniem crudity of a criminally-legal policy concerning punishment of minors.

Thus in pravoprimenitelnoj to practice happens also such when to the person who is the pupil of 9 classes, the court appoints a maximum of hours of the given kind nayokazanija. So, for example, S.D.N. On May, 18th, 2013 about at 13.00 ch. Was in the street where has seen going along the house earlier to it the unknown person of N.A., which at itself had a bag with property belonging to it. At S.D.N. There was the criminal intention directed on open plunder of property, prinadleyozhashchego N.A. S.D.N., carrying out the intention, has openly stolen, having pulled out at it from a hand a bag which is not representing for N.A. Material assets, with nahodjayoshchimisja in it money resources in the sum of 7000 roubles. Court of action S.D.N. Are qualified on ch. 1 items 161 UK the Russian Federation. The sentence from 14.06.2013 to it appoints punishment in the form of 160 hours of obligatory works. [CDIV] condemned osvoboyozhden from under guards in a court hall, time of its maintenance on guards since 18.05.2013 for 14.06.2013 zachteno in time endurings the punishment. Probably, in the resulted example the judge has appointed so big penal term on purpose "pereyokryt" term of holding in custody to a sentence, however it at all opravdyyovaet appointment to the minor of punishment proceeding from its maximum limit.

In some cases at fulfilment by defendant of several prestupleyony average weight the court is limited to the same punishment (obligatory rayoboty), as well as at fulfilment of an individual crime. For example, SHCH together with the full age brother, having entered a collusion, it is deliberate, in common and in coordination, have come to the uninhabited house on site E where by an easy approach, have illegally got in data pomeshcheyonija, whence have stolen belonging E property. With stolen property SHCH from the crime scene have disappeared, having caused to sustained mother -

alnyj a damage for a total sum of 1050 roubles. In in the afternoon brothers SHCH there were in gardening association , located on , and, having entered in preliminary arrangement, operating deliberately, in common and in coordination, data have come on a site then puyotyom an easy approach have illegally got in a premise, whence have stolen belonging *** property. With stolen property SHCH from a place soveryoshenija crimes have disappeared, having caused sustained a material damage for a total sum of 1800 roubles. In in the afternoon, brothers SHCH were in sayodovodcheskom association , and, having entered in preliminary sgoyovor, operating deliberately, in common and in coordination, data have come to a site where by an easy approach have illegally got in a house basement, belonging property in cost. From a fulfilment place preyostuplenija have disappeared, having caused sustained a material damage for a total sum of 1100 roubles. By court of action of brothers SHCH are qualified under items "and" and ch. 2 items 158, items "and" and ch. 2 items 158, items "and" and ch. 2 items 158 UK the Russian Federation. nesoyovershennoletnemu SHCH the court appoints punishment in the form of obligatory works for the term of 40 hours on each of episodes, and on the basis ch. 2 items 69 UK the Russian Federation on sovoyokupnosti crimes by partial addition of the appointed punishments are definitively appointed punishment in the form of obligatory works for the term of 50 hours. [CDV] similar sentences meet in the Saratov area, in Volgograd obligatory works for similar crimes are not applied.

With a view of reduction of the list of punishments for minors in uniform system what earlier it was already mentioned, it is necessary to establish other terms objazayotelnyh works for minors: from twenty till hundred sixty o'clock concerning persons at the age from fourteen till sixteen years and from thirty till two hundred forty o'clock concerning persons at the age from sixteen to vosemnadtsa -

164 ti years, i.e. at a rate of one third and one second from the punishment provided for adults, accordingly.

Question on duration of execution of obligatory works predstavyoljaetsja to us not less important, than a question on their deadlines. The legislator establishes restriction on duration of serving of a considered kind of punishment under criminal law by minors aged till fifteen years and from fifteen till sixteen years - till two and three o'clock per day according to. As any instructions on restrictions for minors at the age from sixteen till eighteen years is not available, hence, they should otyobyvat obligatory works on a level with adults, i.e. according to ch. 2 items 49 UK the Russian Federation, not over four hours per day. It means, that the persons who have not reached soyovershennoletija, are actually equalised by the position with sovershennoyoletnimi, that the Russian Federation contradicts spirit and sense of chapter 14 UK. It is thought, given poyolozhenie requires correction.

On the basis of stated it is obviously necessary to allocate poloyozhenija about punishment in the form of obligatory works in separate article - item 885 UK the Russian Federation, having formulated it as follows:

«The obligatory works consisting in performance of works, feasible for the minor, are appointed to persons at the age from fourteen to sheyostnadtsati years for the term from twenty till hundred sixty o'clock, and to persons at the age from sixteen till eighteen years - for the term from thirty to two hundred forty chayosov. Obligatory works are executed by the minor in free from ucheyoby or the basic work time. Duration of execution of the given kind nayokazanija persons at the age from fourteen till sixteen years cannot prevyyoshat two hours per day, and persons at the age from sixteen till eighteen years - three hours per day».

Application to minors of correctional labour is regulated ch. 4 items 88 UK the Russian Federation. According to the text of the given norm, the specified punishment is appointed the minor condemned for the term up to one year. More any pojasneyony concerning features of application of correctional labour to persons, not

Reached majority, it is not resulted, that does not give possibility to make odyonoznachnyj conclusion concerning conditions of serving of the given kind criminal nayokazanija, however gives the bases to assume, that it is necessary to be based on prayovilah, established items 50 UK the Russian Federation for adults condemned. Here again proyojavljaetsja inconsistency of the legislator which, establishing sokrashchenyonyj the penal term, does not go further and does not reduce the size of deduction from zarabotyonoj a payment guilty, or does not specify in others discriminating from punishment for adults of line. At the same time, such lines should be absent if to consider, that correctional labour is the punishment connected hardly, and labour zakoyonodatelstvo the Russian Federation characterises minors as the special group of persons which work is especially protected. Thus, the legislator, bypassing a question on the size of deduction for minors, accepts, it is possible to tell, "poloyovinchatoe" the decision concerning the given category of persons.

So, sees, that the considered norm possesses essential nedosyotatkami. First, it that for minors correctional labour is appointed with the same volume of deduction from wages, as well as for vzrosyolyh persons. Therefore it is necessary to lower the maximum size of deduction from zarayobotnoj payments guilty to 10 %, 1 and also the bottom limit of deduction to - 2,5 %. The given opinion proves to be true that the "vague" decision of the legislator concerning punishment in the form of the correctional labour, existing now, contradicts spirit and sense of chapter 14 UK the Russian Federation concerning softening of the criminal liability of minors.

Secondly, there is a problem of expediency of appointment ispraviyotelnyh works concerning the persons who have not reached majority. On it issleyodovateli also cannot come to a common opinion. One consider, that the given kind of punishment is inadequate for the specified group of persons as does not bear in itself retaliatory essence. [406 [407] it is necessary to agree with A.M.IbraYogimovoj's opinion which believes, that appointment of correctional labour the imperfect
Summer about sixteen years are elderly is inexpedient whereas at this age their consciousness is insufficiently generated also punishment will not have due corrective influence. For persons from sixteen to vosemnayodtsati years, according to the author, the given punishment could be rather effektivyonym. [408] It is thought, that the minor of younger age group yet in a condition to realise the work price, for more senior, on the contrary, already capable to it on the mental development, each rouble of earnings is important, and potoyomu corrective influence of the given kind of punishment favorably affect concerning the specified category of minor persons. At sravyonenii two kinds of punishment - obligatory and correctional labour - nesomnenyono that unlike obligatory works, the situation with corrective rabotayomi is more difficult for understanding of the minor. Obligatory works is completely free work, the duty to leave certain quantity of hours. At appointment of correctional labour the payment from which withdrawals become is paid to the condemned zayorabotnaja, thus, if it worked before, punishment can be left in a former place of work. Naturally, rises voyopros about that, how much minor at the age from fourteen to shestyonadtsati years in a condition to realise value of punishment at which 5 % of the sum are monthly subtracted from it zarayobotka, say. Whether at such age the person worries about a condition of pay-sheets in general? We think, no. These persons understand questions of accounts department owing to age too little. Other business - persons is more senior sixteen years which aspire to earnings and more zaintereyosovany in the paid sums.

At research pravoprimenitelnoj practice of regional vessels and miroyovyh judges concerning minors Saratov and Volgograd obyolastej for 2011-2015 it has been revealed, that the given kind of punishment is appointed in extremely rare: 1,5 % of the taken out sentences are sentences to correctional labour conditionally in the Saratov area. In the Volgograd area a share issledo -

167 bathing sentences to correctional labour constitute 1,7 %, and to ispravitelyonym to works is conditional - 5 %.

Really correctional labour is appointed only in one of issledovanyonyh cases - Krasnooktjabrsky regional court of of Volgograd. During the period vreyomeni with , B.P.D., being nearby by of Volgograd, realising suddenly arisen criminal intention directed on nepravomeryonoe occupancy by a vehicle - a motor scooter belonging gr. The River of B, without the purpose plunders (stealing) on purpose to drive on streets of of Volgograd, neyosovershennoletny B.P.D. Has approached to a motor scooter, has got its engine, after cheyogo, sowing on it, from a scene of crime has disappeared, carrying out movement on streets of Krasnooktjabrsky area of of Volgograd. During movement at nesovershennoyoletnego B.P.D. There was the criminal intention directed on secret plunder of the above-stated motor scooter and for the purpose of realisation of the criminal intention it approximately in in the shop located on Volgograd, has got two ballonchika with a black paint, poyosle that in a court yard of one of houses along the street by of Volgograd, pereyokrasil the motor scooter case in black colour then with stolen motorolleyorom has disappeared, having caused to the sustained River of B a considerable material damage for the sum . [CDIX]

In judiciary practice of the Saratov and Volgograd areas concerning correctional labour probation is applied also. However at isyosledovanii sentences of vessels of the Saratov area for last five years vyyojavlen only one case of condemnation of the minor to corrective rayobotam was conditional. So, on January, 1st, 2012 K.S.A. Has come to the house 231 in which prozhiyovaet the Island of Century N, began to be knocked on an entrance door of the house which has been closed with vnutyorennej the parties. At K.S.A. There was the criminal intention directed on nezakonyonoe penetration into dwelling, against the will of the person living in it. K.S.A.

Has broken an elbow of a hand glass of the window close to an entrance door and 01.01.2012, about 23 hours, has illegally got into inside houses on a verandah, naruyoshiv the inviolability of home of the Island of V.N.Osoznavaja, that the permission to come into and to be in it to it gave nobody, K.S.A. Was in the house about one minute then, being the overtaken Island of Century N in its house, from a place prestuyoplenija has disappeared. Actions K.S.A. By court have been qualified on ch. 1 items 139 UK the Russian Federation and to it punishment in the form of correctional labour has been appointed. In sootvetyostvii from item 73 UK the Russian Federation the appointed punishment is recognised by conditional. [410]

It is represented, that it is necessary to formulate positions about punishment in the form of correctional labour in separate article UK the Russian Federation - item 886 UK the Russian Federation: «IspraviYOtelnye works are appointed the minor condemned, reached vozyorasta sixteen years, for the term from one month till one year. From wages of the minor condemned to correctional labour, proizvoyodjatsja deduction in the state income in the size established by a sentence vessels, but in limits from two and a half to ten percent».

Simultaneously it is necessary to make changes in ch. 5 items 50 UK the Russian Federation, having stated it in the following edition: «Correctional labour is not appointed to persons, priznanyonym invalids of the first group, to pregnant women, to the women having children is elderly till three years, to the persons who have not reached shestnadtsatiletnego age, the military men, passing military service on an appeal, and also voennosluyozhashchim, passing military service under the contract on military posts rjayodovogo and serzhantskogo structure if they at the moment of removal by court of a sentence have not served statutory service life on an appeal».

It is thought, that by the present moment has ripened necessity to enter in sisyotemu punishments for minors one more kind of the punishment which have been not connected with deprivation or restriction of freedom condemned - harm indemnification.

So, N.V.Anisimkova considers the given measure within the limits of item 90 and 91 UK the Russian Federation as a duty to smooth down damnified. In its opinion, the named measure should be assigned «taking into account a property status of the minor and presence at it the corresponding labour skills defined grazhdanyoskim and the labour legislation of the Russian Federation».1

Under harm indemnification in the given research it is meant vozlozheyonie on the minor condemned for fulfilment property preyostuplenija or other crime, led loss or damage of property of the victim, duty by own strength and at the expense of own means to eliminate damnified.

In the scientific literature the question on necessity of introduction in the Russian criminal legislation of compensatory kinds of punishment for a long time is discussed. According to G.V.Verinoj, in the system of penalties it is expedient to include again vozyolozhenie duties to smooth down damnified as additional punishment, in particular, with reference to crimes against property. [411 [412] later and other researchers expressed in favour of introduction of similar norms in the system of penalties, specifying that in UK the Russian Federation not enough attention is given to restoration of the rights sustained, hence, the purpose vosstanovleyonija social justice practically is not reached, and that the punishment connected with compensation of harm to the victim, more would answer treboyovanijam a justice principle. 1 such position is represented proved as in the nature of compensation of harm deep communication with dostiyozheniem the purposes of restoration of social justice is put in pawn.

However on press pages the opposite opinion is stated also. So, A.A.Ivanov believes, that concerning minors similar punishment would be inefficient, insisting that it is not capable to render any corrective and consequently, and educational influence on osuzhdenno - го.1 to Agree with such statement it is not obviously possible. Concerning minors appointment of compensatory punishment plays a special role in correction of the guilty. It is connected with features of mentality neyosovershennoletnego, which valuable orientations else up to the end not sformiyorovany. Therefore frequently the teenager, committing a crime, attracting loss or property damage, simply does not understand, what harm causes poteryopevshemu, and does not realise the fault before it. At execution of punishment of compensatory type the guilty will be forced to reflect on what damage is caused them and as it to compensate. For this reason V.M.Voloshin's point of view which suggests to give more attention to labour influence on the minor within the limits of the maintenance similar мер.1 is represented obosyonovannoj

Similar opinion state by consideration of essence of compensation of harm the researchers, dealing with problems of forced measures vospitayotelnogo influences. They notice, that attraction of personal efforts of the teenager for compensation of the harm caused by a crime renders on it vospitayotelnoe influence, and vessels should a thicket use the given measure because minors commit crimes proyotiv properties more often. [413 [414]

The spent questioning has confirmed the importance of the lifted problem. About necessity of introduction for the system of penalties for minors nakazayonija compensatory character as the additional specifies 71,7 % of respondents from among experts, 64 % - from among scientists and 52,6 % - from number stuyodentov.

At introduction in action of punishment of compensatory type important sobljuyosti balance and to consider presence in UK the Russian Federation of the norms provided, in particular, in item 76, fixing possibility of clearing of the criminal liability in case of reconciliation with sustained if the person who has made socially opasyonoe act, has smoothed down damnified, and the item "in" ch. 2 items 90 where putting on objayozannosti to smooth down damnified are named among forced measures vosyopitatelnogo influences. It would Seem, there will be here a mess and dubyolirovanie norms, however it not so.

As to comparison of punishment of compensatory type and positions of item 76 UK the Russian Federation it is important to pay attention to rather essential differences. In - the first, it is not necessary to forget, that compensation of the damage caused poterpevyoshemu as the application condition to the minor of item 76 UK the Russian Federation podrazumeyovaet return of the stolen thing if it is possible, or payment monetary sumyomy, defined in coordination with sustained if the property was povreyozhdeno or is destroyed. This sum not necessarily coincides with property cost as with a view of reconciliation with sustained parents of the convicted can compensate and moral harm. Punishment in the form of harm indemnification should not include such actions. It should be based on that the minor himself compensated the stolen property or it stoiyomost at the expense of the forces and means. Secondly, legal effects at these two measures the different. If at compensation of harm within the limits of the item 76 occurs osvobozhdeyonie from the criminal liability in case of awarding punishment the person will bear the criminal liability and to undergo all legal effects ugo -

172 lovnogo punishments, including a previous conviction. It is one of the major factors confirming specificity of indemnification of harm as a kind of punishment under criminal law.

As to similarity offered for introduction in the system of penalties for minors of a kind of punishment with a forced measure vospitatelnoyogo the influences, fixed in the item « In »ch. 2 items 90 UK the Russian Federation (duty putting on to smooth down damnified) the following is important to note. So, it is expedient to have a similar measure both in the system of penalties, and in an arsenal of forced measures of educational influence. Punishment in the form of harm indemnification tselesoobyorazno to apply for fulfilment of crimes of small and average weight, and also grave crimes. At the same time it should be appointed in quality doyopolnitelnogo punishments, i.e. To strengthen responsibility of the guilty person when the court doubts sufficiency of corrective influence nayoznachennogo the basic punishment. The compensation of harm provided in kacheyostve of a forced measure of educational influence, is directed on other kayotegoriju the condemned. It those condemned minors who have committed crimes of small and average weight in which relation the court has come to conclusion about possibility of clearing of the criminal liability with primeneniyoem forced measures of educational influence. The court appoints harm compensation for he is convinced that the minor (taking into account its personal qualities) easily enough gives in to updating and does not require in more stroyogom criminally-legal influence, in particular by means of measures criminal nayokazanija. For this reason it is thought, that punishment in the form of harm indemnification pertinently to enter into the Russian criminal law not instead of, and along with preservation of a forced measure of the educational influence nowadays existing in the item "in" ch. 2 items 90 UK the Russian Federation.

Thus, harm indemnification as to smooth down punishment under criminal law and duty putting on damnified as a forced measure vospitatelyonogo influences could supplement each other. Similar position already suyoshchestvovalo in our criminal legislation earlier when one norm UK RSFSR provided punishment under criminal law in the form of putting on 1960 it is obliged -

173 nosti to smooth down damnified (item 32 UK RSFSR), and another - a measure vospitayotelnogo influences in the form of duty putting on to indemnify the caused loss (item 1 of item 63 UK RSFSR).

Entering into the system of penalties new punishment, is necessary to mention a question on its limits. Whether it is necessary to assign to the minor a duty kompenyosatsii the caused property damage in full? It is represented, that is not present. At an establishment of a considered kind of punishment it is necessary to consider, that we cannot charge the teenager who has already made, for example, prestuyoplenie against the property, too large fiscal obligations. SleYOduet to agree with N.J.Skripchenko, that it can provoke the teenager to new crime against property. [415] therefore it is necessary to limit the top limit of cost lost or damaged as a result prestuyoplenija the property which compensation can be assigned on nesovershennoletyonego. The sum of fifty thousand roubles can become the sufficient sum. Also it is necessary to limit time during which punishment should be executed. Six-monthly term can be that.

As to an arrangement of the given kind of punishment in the system of penalties for minors, it should take place above the penalty, as harm indemnification for which execution certain time is allocated, javyoljaetsja softer kind of punishment, rather than the penalty at which appointment condemned it is necessary to pay the determinate sum in the short term, nayoznachennuju a court sentence.

Thus, system of punishments under criminal law existing for today in the Russian legislation for minors it is necessary skorrektiroyovat. It concerns both systems as a whole, and each of fixed in it nyyone the punishments which have been not connected with deprivation or restriction of freedom. So, it is necessary to make changes to the list of punishments, having excluded the debaring to be engaged opyoredelennoj in activity and in parallel having included harm indemnification. Except

174

That, it is necessary to change an order of an arrangement of punishments in their system. KompensaYOtsija harm should take a place corresponding to its severity. As are represented, it should occupy the first step in a scale of ranks of punishments (item 88 UK the Russian Federation). Limits of all kinds of punishment should be differentiated in zavisiyomosti from age guilty: for persons at the age from fourteen till sixteen years - at a rate of one third of the limits established for adults, and for persons at the age from sixteen till eighteen years - at a rate of one second from preyodelov, established for adults. It is necessary to make changes to norm, usyotanavlivajushchuju features of exaction of a penalty from minors, iskljuyochiv the position supposing possibility of putting on of the penalty, appointed neyosovershennoletnemu, on his parents or legal representatives. Terms otyobyvanija obligatory works also should be differentiated taking into account age guilty. Thus it is necessary to establish, that obligatory works are left by persons aged till sixteen years no more than two hours per day, and persons in vozyoraste from sixteen till eighteen years - no more than three hours per day. IspraviYOtelnye works should be appointed to the minors who have reached of age sheyostnadtsati of years.

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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 § 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:

  1. § 4. The kinds of punishments connected with deprivation or restriction of freedom, in the system of penalties for minors: theory and practice problems
  2. the punishments connected by deprivation or restriction of freedom and obligatory work
  3. Kinds and the maintenance of the punishments connected with the deprivation, in history of Russia
  4. Kinds and the maintenance of the punishments connected with the deprivation, in the foreign criminal legislation
  5. rather-legal analysis of the punishments connected with restriction of freedom, in Russia and foreign countries
  6. § 1. Concept and signs of the system of penalties for minors and its place in the general system of penalties
  7. § 1. The Punishments under criminal law applied to the minors in the countries of continental legal system
  8. classification of punishments in the system of penalties
  9. § 4. The System of penalties for minors in the post-Soviet territory countries
  10. the Chapter II. The Punishments under criminal law applied to the minors under the legislation of foreign countries: history and the present
  11. § 2. The Punishments under criminal law applied to the minors under the legislation of the countries of the Anglo-Saxon right