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§ 3. Administrative punishments for default by parents (other legal representatives) minor duties under the maintenance and education of children

The legislator makes legal definition of administrative punishment in ch. 1 items 3.1 KoAP the Russian Federation [132]. Administrative punishment for default or inadequate execution by parents (other legal representatives) duties under the maintenance and education of children is a measure of responsibility for offence fulfilment in sphere of realisation of the rights and legitimate interests of minors.

For the given illegal act of the specified subjects in KoAP the Russian Federation appointment of two traditional kinds of administrative punishment earlier has been provided: the prevention and the administrative penalty, and with modification of item 5.35 KoAP the Russian Federation in 2011 1 to them administrative arrest (for repeated fulfilment of the administrative violation provided ch was added. 2 present articles) [133 [134] [135].

According to requirements of the legislation of a measure of the responsibility, imposed on parents, trustees, trustees and other persons, obliged to carry out education and the maintenance of minors, for inadequate performance of the specified duties, should have for an object their stimulation to appropriate performance of the duties concerning minors, to the due maintenance and education of children (item 1 of item 3.1 KoAP the Russian Federation).

Preventive maintenance of neglect and offences of minors, the help to children who are in a difficult vital situation, can be provided only by formation in Russia the general complex system of protection of the rights of minors [136] in which it is necessary to include and influence forced measures on those parents (other legal representatives) who carry out in the inadequate image assigned on them the law and morals of a duty. Among the specified measures the important place, in our opinion, it is necessary to take away to measures of administrative responsibility as they carry more preventive, than punishing character, are softer in comparison with criminal liability measures, and not so cardinal, as responsibility measures in the family law.

The prevention as a measure of administrative punishment of the guilty parent (other legal representative) minor is a result of adjudication about the administrative violation, issued special jurisdiktsionnym the certificate — the decision about imposing of administrative punishment, irrespective of the concrete form of its expression.

As a measure of administrative responsibility the prevention has personal character, it is applied to the concrete parent, the trustee, the trustee, other person to which the law assigns duties under the maintenance and education of the minor.

The prevention as a measure of moral influence on mentality of the offender made accountable, provided ch. 1 item 5.35 KoAP the Russian Federation, has the specificity, as it is a question of close people (parents and children, adoptive fathers and adopted, etc.) and a moral component here especially strongly pronounced.

If as negative aspect of the given kind of punishment in general it is possible to note moral depression of the guilty subject from expectation of more severe administrative punishment, in case of prevention application for default of duties concerning minors it is possible to speak about stronger sincere discomfort caused by concern for children (sponsored, wards), absence of mutual understanding between parents and children.

The prevention is a self-sufficient measure of administrative punishment as its application means a result of administrative prosecution and does not demand any additional administratively-nakazatelnogo influence on the person recognised guilty of fulfilment of a concrete offence [137].

The analysis has put the minors considered by the commissions of administrative districts of of Omsk and municipal areas of Omsk area about administrative violations of parents (other legal representatives) shows, that the prevention is applied more often, than the administrative penalty. For example, in 2015 quantity of decisions about appointment of administrative punishment in the form of the penalty for an offence provided ch. 1 item 5.35 KoAP the Russian Federation, has constituted 2376, in the form of the prevention — 3888; for 2014 the territorial commissions it is taken out decisions about imposing of the administrative penalty on parents or other legal representatives of minors — 2213, decisions about the prevention — 3561 (enc. 4).

For today the parity of the prevention considered by us and the administrative penalty, according to members KDN and ZP, is defined by low living level of families in which the inadequate image carries out duties of parents and pravoprimenitel shchadjashche concerns such offenders not to put the affected party (child) in heavier financial position.

At the same time interrogation of members of the commissions and the analysis has put about the administrative violations provided by item 5.35 KoAP the Russian Federation, shows, that last years the characteristic of the persons made accountable for inadequate execution of parental duties has changed. The increasing quantity of the guilty subjects made accountable according to item 5.35 KoAP the Russian Federation, have stable earnings. In administrative-jurisdiktsionnoj to practice of the territorial commissions occurrence among the offenders made accountable on chch also is marked. 2 and 3 items 5.35 KoAP the Russian Federation, the parents who have the stable income and not executing the duties on education of the child because of absence of necessary knowledge in the field of pedagogics, children's or teenage psychology, absence of moral installations on dialogue with the former spouse and other relatives, absence of correct model of behaviour which should be pawned in their childhood. For the above-stated subjects the prevention as the punishment kind is a sufficient measure of responsibility as such parents do not put a family in socially dangerous position and explanations concerning illegitimacy of their behaviour and decision removal about preventions would serve for them as effectual measures of the responsibility, achieving the object private prevention, but the legislator does not provide in ch. 2 items 5.35 KoAF the Russian Federation such kind of punishment, as the prevention.

The administrative penalty, acting external pobuditelem, as well as the prevention, influences mentality of the person and has the purpose formation of correct legal model of behaviour of the person, obliged to bring up and contain the minor.

The penalty (it. Strafe — punishment) — one of legal sanctions in the form of the fine for fulfilment by the person of a guilty offence. The administrative penalty is a material influence on the offender which is expressed in the fine for wrongful offence [138]. For an offence provided ch. 1 items 5.35 KoAP the Russian Federation, it constitutes from 100 to 500 roubles, ch. 2 items 5.35 — from 2 thousand to 3 thousand roubles, for repeated fulfilment of the administrative violation provided ch. 2 items 5.35, — from 4 thousand to 5 thousand roubles.

The legislation of the separate CIS countries for fulfilment of considered illegal act provides the same administrative punishments.

For example, in the Code of Republic Kazakhstan operating till 2015 about item 111 administrative violations following measures of responsibility have been provided for parents or persons, their replacing, for failure in duties on education of children: the prevention or the penalty to 5 monthly settlement показателей1. In the operating Code of Republic Kazakhstan about administrative violations from July, 5th, 2014 № 235-V for default by parents or other legal representatives of duties on education of children the penalty at a rate of seven monthly settlement indicators (item 127) is provided only. Probably, the legislator considers such measure as the prevention inefficient for subjects of the given offence.

Regarding 1 item 9.4 of the Code of Byelorussia about administrative violations on parents or persons, their replacing, for failure in duties on education of children the prevention or the penalty to 10 base sizes is imposed. The part 2 same articles provides the penalty from 10 to 20 base sizes for «the same act made repeatedly within one year after nalozhe -

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nija the official penalty... ».

The administrative penalty is characterised by that its retaliatory influence is connected with known property pravoogranicheniem pravonarushi - telja [139 [140] [141] [142]. Importance of material interests for any person defines its unwillingness to face their restriction, as the legislator uses. The is relative-defined approach to an establishment of the sizes of the penalty what exists in KoAP the Russian Federation, has advantages before is absolute-defined as allows to differentiate the size of the penalty at awarding punishment in zavi - simosti from character of an offence, persons of the infringer, and also the circumstances softening or aggravating ответственность1.

As already it was marked above, among the citizens made accountable according to ch. 1 item 5.35 KoAP the Russian Federation a significant amount are constituted by the persons not having the stable income and putting the family in socially dangerous position. At the same time questioning of members KDN and ZP, and also the analysis has put about the administrative violation connected with default of parental duties concerning minors, allows to approve, that among the citizens having the stable high income also is guilty parents, not executing duties concerning children and made accountable according to ch. 1 items 5.35 KoAP the Russian Federation. This category of citizens, in our opinion, it is necessary to consider and increase the size of the penalty — from five hundred roubles to two thousand, proceeding from the is relative-defined campaign to an establishment of the size of the penalty. In the Draft federal law № 957581-6 «the Code of the Russian Federation about administrative violations» is offered such increase, therefore according to ch. 1 item 10.1 under the maintenance and education of minors can constitute the administrative penalty for default or inadequate discharge of duties from five hundred roubles to three thousand.

Besides, considering, that duties of trustees (trustees) are imposed by the legislator and on the organisation where there are children who have remained without care (item 155 SK the Russian Federation), together with a liability of infringement of duties under the maintenance and education of children (item 4 of item 26 of the Federal act «About guardianship»), it is necessary to provide separately penal actions for default of duties under the maintenance and education of children and for such juridiche - [143 [144] skih persons. The educational organisations, the medical organisations and the organisations rendering social services in which children are located under supervision concern the organisations for children-orphans; and on a pattern of ownership they can be state, municipal and частными1. The modern state policy concerning children and a family as a whole is directed on the maximum reduction of such organisations and the device of children to families [145 [146], nevertheless it is process long and for today the specified organisations are obliged to carry out properly duties concerning minors and to bear responsibility for inadequate of execution.

In article 2.10 KoAP the Russian Federation the modern legislator provides administrative responsibility for legal bodies, in the Draft federal law № 957581-6 «the Code of the Russian Federation about administrative violations» (ch. 2 items 3.8) are provided, that state establishments do not come under to administrative responsibility. At the same time the legislator does not specify, that the organisations for children who have remained without care of parents are organised only in the form of state or municipal authorities, it can be and private establishments (subitem 8 of item 3 of item 50 GK the Russian Federation). In due time, the Typical position which has lost today a validity about educational institution for children-orphans and children who have remained without care of parents, provided, that such organisations can be created and in the form of not state educational institutions. Thus, even considering the interdiction offered in the Project for attraction to administrative responsibility of state establishments, it is possible to speak about impeachment on ch. 1 items 5.35 KoAP the Russian Federation of the organisations for children who have remained without care of parents. In this connection it is offered to establish separately for such legal persons-organisations for children who have remained without care of parents, the administrative penalty at the rate from one thousand to five thousand roubles.

As shows the analysis has put about the administrative violations provided ch. 1 item 5.35 KoAP the Russian Federation, considered by the commissions of Omsk area, is more often levied the minimum sum of the administrative penalty because it is frequent parents such minor are the persons who are not working or not having stable earnings. Such persons daily show the sample asotsialnogo behaviour for children. For example, the statistics of foreign countries shows, that more than 40 % of criminals — natives of the lower class on - селения1. We believe, that more such measure of responsibility, as obligatory works in socially useful purposes will be punishment effectual measures.

It is necessary to notice, that parents (other legal representatives) the minors, involved in administrative responsibility according to item 5.35 KoAP the Russian Federations which do not have stable earnings because of unwillingness to found a job, show to the child the scornful relation to work, to the norms established in the given state at the expense of which payments such subject and lives. While necessity inculcation to work, be useful to the society are constituting components of appropriate education of the child parents [147 [148].

The legislator in Strategy of development of education in the Russian Federation for the period till 2025, allocating as an education direction labour education (item 2 of section III), marks necessity of education at children of respect for work and people of work, formation at children of requirement to work, etc. At the same time performance of the specified actions by parents (other legal representatives) will not be effective without demonstration them to children of own example. As shows interrogation of the citizens involved in administrative responsibility on ch. 1 items 5.35 KoAP the Russian Federation and not having a constant place of work, the majority of them in the childhood had a negative example of parents which ignored employment and did not aspire to take a constant place of work, stable earnings, thereby have not imparted to children of the due relation to work.

It is difficult to speak about labour education of the adult person and that obligatory works will impart to offenders requirement to work is doubtful, but to perform the work useful to a society for which account lives such citizens, in our opinion, it is necessary. Interrogation of the parents who properly are carrying out parental duties, constantly working both participating in subbotnikah and other similar actions in the educational organisations which are visited by their children, gives the chance to draw a conclusion, that on their such community works with success parents, with inadequate image bringing up the children and not working could replace.

Under "public" it is meant «concerning a society», «proceeding in a society», «connected with activity of people in a society» 1. From sense of norm of the Law of the Russian Federation from April, 19th, 1991 № 1032-1 «About population employment in the Russian Federation» [149 [150] [151], and also Position item 2 about the organisation of community works [152] it is clear, that it is necessary to understand the activity having socially useful orientation as community works, i.e. Useful to a society. But obligatory works as a kind of administrative punishment carry obligatory, inevitable, «unconditional for execution» 1 character.

According to item 4 of the Labour code of the Russian Federation from December, 30th, 2001 № 197-FZ forced labour in Russia is forbidden, according to item 2 of item 1 of the Law of the Russian Federation from April, 19th, 1991 № 1032-1 «About population employment in the Russian Federation» citizens posess the exclusive right to dispose of the abilities to productive, other work. At the same time the legislator provides cases when work is not forced labour (item 4 of the Labour code of the Russian Federation), and also supposes compulsion to work if it is statutory (item 2 of item 1 of the Law of the Russian Federation «About population employment in the Russian Federation»).

According to item 3.13 KoAP the Russian Federation obligatory works consist in performance by the physical person who has made administrative violation, in free from the basic work, service or study time of free socially useful works.

Obligatory works are a principal view of punishment for the offenders involved in administrative responsibility. The basic difference of obligatory works from community works already defined by the legislator is that fact, that obligatory works are carried out on a gratuitous basis.

Pravoprimenitel (commissions), coming to conclusion about inexpediency of removal of the decision about the prevention or of imposing of the administrative penalty, should transfer business materials in court (ch. 1 items 3.13 KoAP the Russian Federation). The judge, considering a property status, a state of health of the person involved in administrative responsibility and other circumstances, can pass the decision on attraction of the guilty parent (other legal representative) of the minor to obligatory works.

In the Draft federal law № 957581-6 «the Code of the Russian Federation about administrative violations» is offered introduction of obligatory works [153 [154]

As punishment kind for default or inadequate discharge of duties concerning minors, namely: for the repeated fulfilment of administrative violation expressed in deprivation of the child of the right to dialogue with parents or close relatives, and also in other hindrance to realisation by parents of the rights to education and formation of children and on protection of their rights and interests (ch. 3 items 10.11 ^ for repeated default by parents or other legal representatives of minors, for example, a judgement about

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Definition of a residence of children (ch. 5 items 10.1).

Obligatory works are established for the term from twenty till two hundred o'clock and left no more than four hours per day according to ch. 2 items 3.13 KoAP the Russian Federation, item 5 of item 109.2 of the Federal act from October, 2nd, 2007 № 229-FZ

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«About final process».

Regarding 3 items 3.13 KoAP the Russian Federation restriction of application of such works to separate categories of citizens is established. For example, on a state of health invalids of 1 and 2 groups, pregnant women cannot be inflicted a similar sort to punishment. Besides, in our opinion, involving offenders to obligatory works, it is necessary to consider that fact, that the parent (other legal representative) is not released from performance of the duties on education and the maintenance of the minors, thereby the specified persons are obliged to spend the greatest possible period of time with children. According to it it is considered possible to involve in works of a similar sort of the parents having children about five years, only are elderly if the child visits the preschool organisation as such parent can execute punishment during a finding of the child in this organisation.

If the child does not visit the preschool organisation to involve the parent in which relation the decision about performance of obligatory works is taken out, follows, only if the child has reached eight years and visits obrazova - [155 [156]

telnuju the general education organisation as the parent (other legal representative) can be occupied on community works during the period when the child is under the supervision of the corresponding organisation.

Besides, the legislator in ch. 3 items 3.13 KoAP release the Russian Federation from the given kind of punishment of the women having children till three years. We believe, that it is necessary to understand women-mothers as such persons, trustees, patronatnyh tutors, tutors in reception families. In a situation when the lonely parent — the man brings up the child or, for example, the grandfather of the child is its trustee and one brings up the minor till three years, it is represented, that on a legal status these persons do not differ from women about whom the legislator speaks in ch. 3 given articles. In this connection, we believe, that ch. The Russian Federation it is necessary to add 3 items 3.13 KoAP with words: «to lonely parents (other legal representatives) the minors, bringing up children about three years are elderly».

On the basis of the aforesaid is considered expedient to make addition and to state: 1) the norm sanction ch. 1 items 5.35 KoAP the Russian Federation in the following edition: «attracts the prevention, or imposing of the administrative penalty on citizens at the rate from five hundred roubles to two thousand roubles, or obligatory works for the term up to twenty five hours; on legal bodies — from one thousand to five thousand roubles»;!) the norm sanction ch. 2 items 5.35 KoAP the Russian Federation in the following edition: «attracts imposing of the administrative penalty at the rate from two thousand to three thousand roubles, or obligatory works for the term up to fifty hours».

Besides, it is necessary to provide administrative punishments for structure of administrative violation to which was offered to add item 5.35 KoAP the Russian Federation in the previous paragraph — default or inadequate execution by parents (other legal representatives) minor duties on education of children, entailed fulfilment by the minor of the act containing signs of administrative violation or a crime, in a situation when the minor by time of fulfilment of such act has not reached age administrative or the criminal liability for perfect act. We believe, that for the specified offence the moustache - tanovit the penalty at the rate from three roubles to four thousand or obligatory works for the term up to fifty hours (enc. 5) follows.

Awarding punishment — obligatory works is absolutely fair — is carried to the competence of world judges as the choice of such measure of responsibility pravoprimenitelem is intrusion into a constitutional law of citizens on rest (chch. 2, 5 items 37 of the Constitution of the Russian Federation). Besides, in item 1.1 ch. 3 FZ from December, 17th, 1998 № 188-FZ «About world judges in the Russian Federation» 1 it is provided, that federal acts to jurisdiction of the world judge can be carried and another matters (except listed), and affairs about the administrative violations, carried to the competence of world judge KoAp of the Russian Federation, — and laws of subjects of the Russian Federation.

Serving of obligatory works is supervised by judicial police officers - executors according to FZ «About final process», except

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That, according to item 1 FZ from July, 21st, 1997 № 118-FZ «About bailiffs» on bailiffs problems on execution judicial certificates are assigned.

Thus, the analysis pravoprimenitelnoj experts territorial KDN and ZP allows to draw a conclusion on an inefficiency of the prevention and the administrative penalty for parents (other legal representatives) the minors who are not executing duties under the maintenance and education of children, thus not having the stable earnings, abusing alcoholic production or narcotic substances. That has in turn allowed to formulate the offer on application to such offenders of obligatory works and to modification and additions in KoAP the Russian Federation. [157 [158]

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A source: Banshchikova Svetlana Leonidovna. the ADMINISTRATIVE LIABILITY FOR NONPERFORMANCE PARENTS OR OTHER LEGAL REPRESENTATIVES of MINOR DUTIES UNDER THEIR MAINTENANCE. The DISSERTATION on competition of a scientific degree of the master of laws And to EDUCATION. Omsk 2016. 2016

More on topic § 3. Administrative punishments for default by parents (other legal representatives) minor duties under the maintenance and education of children:

  1. § 2. Legal investigation problems about administrative violation, revision and execution of decisions about default by parents or other legal representatives of minor duties under their maintenance and education
  2. § 1. Commencing a suit about default by parents (other legal representatives) minor duties under their maintenance and education
  3. CHAPTER 2. FEATURES OF MANUFACTURE ON AFFAIRS ABOUT THE ADMINISTRATIVE VIOLATIONS CONNECTED WITH DEFAULT BY PARENTS OR OTHER LEGAL REPRESENTATIVES OF MINOR DUTIES UNDER THEIR MAINTENANCE AND EDUCATION
  4. § 3. Subjective signs of default by parents or other legal representatives of minor duties under the maintenance and education of minors
  5. § 2. Efficiency of application of administrative punishments for default by parents or persons, their replacing, duties under the maintenance and education of minors
  6. CHAPTER 1. CONCEPT AND ESSENCE OF THE ADMINISTRATIVE LIABILITY FOR NONPERFORMANCE PARENTS OR OTHER LEGAL REPRESENTATIVES OF MINOR DUTIES UNDER THEIR MAINTENANCE AND EDUCATION
  7. Banshchikova Svetlana Leonidovna. the ADMINISTRATIVE LIABILITY FOR NONPERFORMANCE PARENTS OR OTHER LEGAL REPRESENTATIVES of MINOR DUTIES UNDER THEIR MAINTENANCE. The DISSERTATION on competition of a scientific degree of the master of laws And to EDUCATION. Omsk 2016, 2016
  8. Chapter 1. Default by parents and persons, their replacing, duties under the maintenance and education of minors as an administrative violation kind
  9. Chapter 2. Realisation of administrative responsibility of parents and persons, their replacing, for default of duties under the maintenance and education of minors
  10. § 2. Objective signs of default by parents and persons, their replacing, duties under the maintenance and education of minors