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§ 2. The Punishments under criminal law applied to the minors under the legislation of the countries of the Anglo-Saxon right

The second large legal system which cannot be ignored within the limits of our research, is a system of the Anglo-Saxon right. As sleduyoet from the name, the given legal system historically has arisen in England; further it was retsipirovana other countries, is the brightest - in the USA, Canada and Australia.

As scientists mark, the most ancient source of the English right - suyodebnyj precedent, i.e.

decisions of vessels which soon began to be consolidated in collections and to extend among судей.1

Thus, in the Middle Ages rules about the criminal liability have been developed. Subsequently decisions of vessels have joined parlamentyoskie the statutes, especially which considerable quantity it was accepted in the second poyolovine the XX-th centuries. [198 [199] most typical line of Anglo-Saxon legal system is an absence of any codification. In the beginning of the XX-th century of L.E.Vladimir marked: «V England nt the code; the operating criminal law is based on common law, statute law, case law and konsolidirovannyh statutah under the criminal legislation... Sostavleshe the code it is not possible; препятствiемъ is... Inherent agnlshskomu to the people недовtрiе k izgotovleshju tslnago

3

The code ». [200]

Agreeing with N.E.Krylovoj and A.V.Serebrennikovoj, it is important to allocate sleyodujushchie the major features of the legislation of the countries belonging to ukayozannoj to legal system: 1) right division not on branch and not on public and chayostnoe, and on a general law and the equity law; 2) the big lack of general rules of rules of law; 3) use of judiciary practice as one of sources prayova; 4) sources of law are also Parliament certificates, absence of accurate ordering of the legislation; 5) auxiliary sources of law - custom,

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The doctrine and sense of justice. [201]

The named features of the Anglo-Saxon legal system have predetermined its such line marked by many researchers, as a considerable quantity of sources of criminal law and their extreme запутанность.1

Within the limits of dissertational research it has been analysed ugolovyonoe the legislation of England, the USA and Australia about punishment nesovershennoletyonih for the purpose of revealing of specificity of punishment of the specified group of persons on sravneyoniju with a category of adults.

In England development in HH century of the statute law has led to that in nastojayoshchee time exists enough considerable quantity of statutes which to some extent regulate criminal law questions. As specifies A.G.ki balnik, in number of the laws regulating punishment of minors, Laws on children and teenagers of 1933, 1963 and 1969, the Law on powers ugoyolovnyh vessels of 1973, the Law on magistrate courts of 1980, Laws on the punitive justice of 1982, 1988 and 1991, the Law on the punitive justice and public poyorjadke 1994, the Law on a crime and other infringement of an order 1998 [202 [203] enter

In the USA also there is case (general) and the statute law. Thus there is a difficult system of the legislation. As marks I.D.Kozochkin, «in the USA there is no uniform, national criminally-legal system, that obuslovyoleno features of the American federalism...

In territory of each staff the right of the given staff, and under certain conditions - the right federal - noe» operates. [204] it is not obviously necessary to go deep into studying of the regional criminal legislation, we will result only as an example of norm UgolovYOnogo of the code of the State of New York, included in Chapter 40 of the Code of laws of staff.

As to the legislation federal to the USA norms about ugolovyonoj responsibility are included in the Code of laws of the United States of America.

The most part of articles establishing punishment under criminal law, is located in Section 18 «Crimes and criminal trial».

Australia, being during long time a colony of the Great Britain, has adopted Anglo-Saxon legal system. Nevertheless, unlike England where the Criminal code and has not been accepted, and the USA where process of codification of the criminal legislation is not finished till now, in Australia in 1995 have been accepted the Criminal code.

Question on age of the criminal liability in the specified countries dare unequally. So, in England persons, not dostigyoshie age of seventeen years are considered as minors, but at awarding punishment to them priravnivajutyosja the persons who have not reached twenty one years. At the same time minors are divided on two groups: children - persons are elderly till fourteen years, and podrostyoki - persons at the age from fourteen till seventeen years.

The age of the criminal liability in the USA is defined ambiguously. As specifies I.D.Kozochkin, on a general law of the person till seven years cannot bear the criminal liability for a crime, and concerning persons from seven to cheyotyrnadtsati years there is an inability presumption to commit a crime which weakens with the years. Besides it the specified presumption can be confuted the proof of that the person understood abnormality of the act. 1

However not all states lean against a rule established in the federal legislation. Many states specify age of the criminal liability in own legislation: Colorado and Louisiana - ten years, Georgia and Illinois - thirteen years, Minnesota - fourteen years, New Hampshire and TeYOhas - fifteen years, New York - sixteen years, and also thirteen and chetyryonadtsat on separate categories of crimes. [205 [206] position at which vozyorast criminal liability approaches in different parts of the country differs, is represented unacceptable, and established in the legislation of states To -

85 lorado and Louisiana - in general absurd and breaking the rights of children as it is obvious, that the child in so early age cannot realise still to the full character sodejannogo and bear responsibility for the acts.

At the same time neither the legislation studied by us, nor works issledovayotelej do not testify to any features of punishment under criminal law for the persons who have reached of age from which there comes the criminal liability. On - visible, it means, that minors bear criminal otvetstvenyonost in the same measure, as adult persons.

Article 7.1 UK of Australia establishes, that children are elderly till ten years do not come under to the criminal liability. Article 7.2 supplements with its position that children at the age from ten till fourteen years bear criminal otvetstyovennost only in the event that realise illegality of the behaviour. [CCVII] nevertheless, not clearly who establishes ability of the child to realise this illegality. Besides, UK Australia does not contain any instructions on necessity to consider ability guilty to realise the social danger sodejannogo, that looks, at least, strange as imenyono the social danger is a material sign of a crime and allows to differentiate it with other offences.

UK Australia does not contain any instructions on feature of punishment under criminal law of minors. Also in the given normative act completely there is no generated system of penalties, both for nesovershenyonoletnih, and for full age. It simply does not contain general provisions on punishment that is represented an essential lack given normativyonogo the certificate. Therefore for the purpose of the finding-out, what kinds of punishment are provided zayokonodatelstvom the given country, all norms UK of Australia, ustayonavlivajushchie responsibility for concrete crimes have been studied.

Punishment in the form of the penalty is allocated in England (for example, item 30 of the Law on powers of criminal courts of 1973) 1 and the USA (for example, article 80 UK of the State of New York), [208 [209] while UK Australia contains only one norm, preduyosmatrivajushchuju the given kind of punishment under criminal law, - item 477.1. [210] In England the size of the penalty constitutes from fifty pounds sterling to two thousand. [211] in the USA the penalty for different categories of crimes is established in size: to 5000 dollars, to 100000 dollars, or to 250000 dollars. [212] at this N.A.GolovaYonova mentions parents, «paying the penalty for children who have not reached 18 years», [213] however it is not clear, whether always the penalty is assigned to parents nesovershennoyoletnego the criminal. Probably, Russian legislator, entering in UK the Russian Federation poloyozhenie about possibility of exaction of a penalty from parents or lawful predstaviteyolej the minor, has taken advantage of the model existing in the USA.

Unlike the legislation of England and the USA, UK Australia not ustanavyolivaet the concrete size of the penalty.

Following punishment which is appointed the minor in the countries of Anglo-Saxon legal system, is an imprisonment.

In the USA according to § 3581 sections 18 of the Code of laws of the USA imprisonment (imprisonment) is appointed, depending on a category prestuyoplenija, for term: about five days, about thirty days, about six months, to one goyoda, till three years, till six years, till twelve years, till twenty five years, and for the most serious crimes - for life or for any term. [214] apparently from the given list, in the USA short-term imprisonment for crimes is applied

87 low severity levels. Actually imprisonment has minimalnoyogo no term and some days can be appointed to term. This decision predstavyoljaetsja rather doubtful. The American legislator instead of including for crimes of small weight alternative punishments, ispolyozuet short-term imprisonment. Imprisonment inherently is the most serious punishment in this connection unjustified its application to minors for fulfilment of crimes is represented, not javljajuyoshchihsja heavy.

Also the legislation of the USA in § 3584 provides an atypical case for other countries: possibility of appointment of several simultaneously or poyosledovatelno current terms of imprisonment, that in practice can entail, for example, condemnation of the person to several life-long terms tjuyoremnogo the conclusions. 1 second feature of the American approach to naznacheyoniju imprisonment is possibility of removal of the indeterminate sentence. So, the similar norm contains in § 70.05 UK the State of New York: « priyogovor to imprisonment for the felony made by the minor offender, should be the indeterminate sentence ». [215 [216] Thus preyodusmatrivaetsja, that term of the indeterminate sentence for minors should constitute not less than three years. The maximum term is established in zayovisimosti from a crime category, for the heaviest - in size pozhiznenyonogo imprisonment, and the minimum term for the least heavy prestupleyonie for which the indeterminate sentence is appointed, constitutes one third of a maximum of the appointed term. [217] besides it, § 60.02 provides, that neyosovershennoletnemu, committed a crime less heavy, than the felony, is appointed the same punishment that is provided for adults for given prestupyolenie, except the certain or interrupted imprisonment for more than to six months; to the minor who has made the felony

88 any categories, are appointed punishment which for adults is provided for fulfilment of the least heavy фелонии.1

Apparently, unlike the federal legislation, UK staff Nju - York contains special provisions about application to minors nakazayonija in the form of imprisonment, however it and is limited to it, not preduyosmatrivaja features concerning other kinds of punishment. It is thought, tjuremyonoe the conclusion is too rigid punishment for the persons who have not reached majority, therefore the norms supposing application to them given kind of punishment, also are far from idea of humanism.

In UK Australia as it was already mentioned, sanctions of all articles, ustanavliyovajushchih responsibility for crimes, contain punishment in the form of imprisonment. And all sanctions are formulated as the is absolute-defined, not giving possibilities for the judicial discretion. [218 [219] moreover, it does not allow vozyomozhnosti to consider the person of the guilty at adjudgment. It predstavljayoetsja wrong as the person of the criminal is of great importance for differentiation of its responsibility. As to limits criminal nayokazanija in the form of imprisonment under the legislation of Australia, they variyorujutsja from six months till twenty five years, and for some crimes preyodusmotreno lifelong imprisonment. It is possible to assume, that precisely tayokie sanctions are applied to minors.

But if in the legislation of Australia there are instructions on feature dannoyogo no punishment kind at its application to minors, in England siyotuatsija essentially other. At studying of accessible English zakonodayotelstva about punishment under criminal law of minors the conclusion that in England there are essential differences in application to specified kategoyorii persons of the punishment connected with isolation from a society in comparison with kategoriyoej of adults has been drawn.

So, according to Laws on the punitive justice of 1982 concerning the person who have not reached twenty one years, the sentence about imprisonment cannot be pronounced. Instead to persons from fifteen till twenty one years - a premise in establishment special punishment is applied to young criminals, if imprisonment for the term of more than four months predstavljayolos to court by unique suitable punishment for the given person. Thus to the person who has not reached seventeen years, youth imprisonment is appointed for the term up to twelve месяцев.1 If the person who has not reached twenty one years, convicted of murder or other crime, the sanction for which predusmatriyovaet lifelong imprisonment, to it can be applied pozhizyonennoe imprisonment, that is punishment with other, softer conditions of the maintenance. The same rule operates concerning minors from semyonadtsati till twenty one years for fulfilment of other crime which for adults attracts lifelong imprisonment. [220 [221] [222] the similar decision anglijyoskogo the legislator cannot cause approval in view of the severity which concerning minors should be regarded as excessive.

Other kind of punishment connected with imprisonment, is a premise in the centre of detention of criminals from fourteen till twenty one years. Term of stay in such centre constituted according to the resulted Law from

3 twenty one days about four months.

The law on the punitive justice of 1988 provides instead of deprivation svoyobody youth and a premise in the detention centre other punishment - a premise in establishment for young criminals for term: for persons from fifteen to vosemyonadtsati years - from two about twelve months and for persons from eighteen to dvayodtsati one year - from twenty one days about twelve months. Also children from ten years, made murder, and teenagers there are located from chetyrna -

90 dtsati the years, condemned for crimes, the sanction for which constitutes chetyrnayodtsat years of imprisonment and более.1 It is represented, that similar polozheyonie things at which the teenagers of the different age who has made so razlichyonye acts, are exposed as a matter of fact to the same punishment, unacceptably and does not promote differentiation of responsibility of minors.

Punishment in the form of a death penalty exists to England and the USA. That concern a death penalty in the USA it is provided in 38 states. Everything as otmeyochaet I.D.Kozochkin, in the USA «53 independent systems - 50 shtayotov, federal operate, District of Columbia... And« freely joined gosudaryostva "Puerto Rico". [223 [224] Disputes concerning a death penalty, including about vozmozhyonosti its application to persons are younger than eighteen years, do not stop for a long time already, but definitively question and is not solved. Therefore in the USA persons to shestnayodtsati can be condemned years to a death penalty. [225] legislation of England

4 forbids death penalty application to the persons who have not reached eighteen years. [226]

In England also there is a punishment in the form of granting of free services to a society. To the minor persons who have reached of sixteen years, it naznayochaetsja for the term from forty till hundred twenty o'clock, unlike adults, in otnosheyonii which can be extended till two hundred forty o'clock. The given measure primeyonjaetsja only with the consent of the defendant and on the basis of information studying about preyostupnike and its personal circumstances. [227]

One more measure which cannot be avoided by consideration of the system of penalties for minors in the countries of Anglo-Saxon legal system, is probatsija. probatsija in England consists in appointment osuzhdenyonomu is more senior sixteen years of certain duties which it should

91 to carry out during certain term - from six months till three years. Thus according to point (3) of a part 2 Laws on powers of criminal courts of 1973 the court is not connected in a choice of duties, however they should provide good behaviour condemned or the prevention of fulfilment with it of return to crime. 1

In the USA probatsija it is appointed depending on a crime category to term: till one year - for infringement, till five years - for the misdemeanour, and from one year till five years - for the felony (§§ 3561, 3563). [228 [229] During term probatsii osuzhyodennyj is under supervision of the official of service probatsii. [230]

Concerning the institute nature probatsii among the Russian scientists davyono discussions are led. So, if N.A.Golovanova names probatsiju in number ugoyolovnyh punishments in England, [231] that N. P.Meleshko considers it «most rasprostrayonennoj as the probation form»; [232] A.G.Kibalnik also see in probatsii a kind of clearing of the punishment, having many the general lines with domestic institute of probation. [233] similar it is observable and in the USA: F.M.ReshetYonikov and N.P.Meleshko include probatsiju in number of punishments under criminal law, [234] A.G.Kibalnik consider as its clearing of punishment, [235] and I.D.Kozochkin specifies, that «probatsija is not punishment, since in the decree it... At all are not specified». [236] sees, that probatsija is, more likely, a measure of educational influence, neyozheli close to probation, as, in spite of the fact that it nazna -

92 chaetsja instead of imprisonment, execution probatsii is not provided with threat of application of punishment under criminal law.

Certain interest represents such punishment, as house arrest which is applied in the USA. In England similar restriction can nakladyyovatsja within the limits of such measure as the order on supervision is an interdiction condemned poyokidat at certain (night) o'clock the established place of residence. 1 but it has received wide development in the USA. As specifies N.P.Meleshko, house arrest with electronic monitoring is applied to «to persons till 30 years, committed a nonviolent crime. To children from 7 till 10 years., mennym to women. The penal term - till 3 months». [237 [238] Application of punishment under criminal law to the persons who are in so early age, is represented narusheyoniem the rights of the child. As to possibility of application of house arrest in Russia, it appears, at the moment in the conditions of punishment existence in de freedom restrictions for this purpose are not present necessity as freedom restriction has partially something in common with house arrest.

Nevertheless, V.A.Zajchenko's statement is fair, that house arrest in a combination to electronic monitoring not only represents real alyoternativu to imprisonment, but from all variety existing alternayotiv is the most successful. [239] given point of view is represented, in this connection it is necessary to agree with the researcher.

On the basis of the carried out research it is possible to establish, that ugoyolovnoe the legislation of the countries of Anglo-Saxon legal system excessively zayoputanno and is badly systematised. Accordingly, it is impossible to talk about uporjayodochennoj to the system of penalties. In all considered countries, namely England, the USA and Australia, are undertaken attempts to codify criminal zakoyonodatelstvo, however is thought, this process is far from end.

It is important to notice, that in the countries of the Anglo-Saxon legal system to nesoveryoshennoletnim basically the punishments, known Russian zakoyonodatelstvu, in particular, such as the penalty and imprisonment, hence, in this part is not available possibilities to lean against experience of the given countries at formiyorovanii offers on perfection of our legislation are applied. probayotsija also it is represented an excessive measure in the Russian conditions, considering, that in the Russian criminal code is available not only punishment with similar obeyomom pravoogranicheny - freedom restriction, - but also probation, kotoyoroe, as a matter of fact, is a kind of clearing of punishment under criminal law, however bears in similar pravoogranichenija, as well as probatsija, and freedom restriction.

Summing up, it is necessary to notice, that as a whole Anglo-Saxon legal sisyotema has a number of essential differences from the Russian legal system. First of all it concerns its sources, right structure as a whole, and others rather vazhyonyh institutes. Basically the quantity of punishments for minors in the countries of English-Saxon legal system is insignificant. All of them are known to our legislation or in UK the Russian Federations are available similar norms that does not give possibility implementatsii foreign experience of the countries of the given legal system.

Representing the system of penalties for minors in the countries angloyosaksonskogo in the form of theoretical model, it is necessary to notice the rights, that it vkljuyochaet in itself rather limited circle of punishments under criminal law: the penalty, house arrest, imprisonment, imprisonment, a premise in the detention centre, a premise in establishment for young criminals. For England granting of free services to a society is characteristic also.

The stated testifies that system of punishment for nesovershenyonoletnih, characteristic for the countries of Anglo-Saxon legal system, as a whole goyorazdo already, than in the countries of continental legal system.

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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 § 2. The Punishments under criminal law applied to the minors under the legislation of the countries of the Anglo-Saxon right:

  1. the Chapter II. The Punishments under criminal law applied to the minors under the legislation of foreign countries: history and the present
  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. the criminal legislation of Anglo-Saxon legal system the Great Britain.
  5. the review of representations about admissibility of evidence in the criminal trial and practice of law enforcement bodies of the states of the Anglo-Saxon legal system
  6. § 1. Corporate responsibility in the countries of the Anglo-Saxon right
  7. § 2. Evolution of system of punishments under criminal law for minors during the Post-Soviet period
  8. § 2. An error available the circumstances excluding criminality of act, in the criminal legislation of the countries of English-Saxon, continental legal systems
  9. 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
  10. legal regulation of conditional wills in the countries of the Anglo-Saxon right (the Great Britain, the USA, Canada, Israel)
  11. § 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