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§ 2. Objective signs of default by parents and persons, their replacing, duties under the maintenance and education of minors

One of basic elements of default of duties under the maintenance and education of minors by parents and persons, their replacing, are signs of the objective party of a considered offence. And it is natural, as all offences are individualised first of all to objective signs to which it is accepted to carry: socially dangerous act, the come consequences, a causal relationship, ways, a place of fulfilment of an offence.

In aggregate named signs allow to define: as illegal act is shown; to what signs it is necessary to state it a legal estimation; by what criteria to delimit this or that offence from other adjacent structures.

Considering structures of administrative violations,

Provided items 5.35 KoAP the Russian Federation, it is necessary to notice, that given article provides administrative responsibility actually for three structures of an offence. The first structure is provided by a part 1 where in a disposition default or inadequate execution by parents or other legal representatives of minor duties under the maintenance, education, training, protection of the rights and interests of minors »is reflected«.

The part 2 provides a liability of infringement parents or other legal representatives of the minor rights and interests of the minors, expressed in deprivation of their right to dialogue with parents or close relatives if such dialogue does not contradict interests of children, in intended concealment of the location of children besides their will, in default of a judgement on definition of a residence of children, including a judgement on definition of a residence of children for the period before becoming res judicata of a judgement on definition of their residence, in default of a judgement on a procedure of the parental rights or about a procedure of the parental rights to the period before becoming res judicata of a judgement or in other hindrance to realisation by parents of the rights to education and formation of children and on protection of their rights and interests. The given structure has the qualifying sign provided ch. 3 items 5.35 KoAP the Russian Federation. If an offence provided ch. 2 items 5.35 KoAP the Russian Federation, are perfect parents or other legal representatives of minors repeatedly within a year there comes the raised administrative responsibility.

Certainly, each structure has the individualised signs in this connection we will carry out the analysis of their objective signs with reference to everyone, provided by item 5.35 KoAP the Russian Federation of administrative violations.

The first structure is provided ch. 1 items 5.35 KoAP the Russian Federation. In a disposition default or inadequate execution by parents or persons, their replacing, duties under the maintenance, education, protection of the rights and legitimate interests of minors »is a question about«. In this case illegal act default of the constitutional duty on education minor (item 38 of the Constitution of the Russian Federation) admits.

KoAP the Russian Federation does not contain the list of duties of parents and other legal representatives of minors on education and the maintenance of children in this connection at application of considered administrative norm it is necessary to address to norms SK the Russian Federation as to the basic document reflecting and concretising duties of parents in territory of the Russian Federation.

In the absence of parents or at deprivation of their parental rights and in other cases of loss of parental care the right of the child to education in a family is provided with guardianship body in an order established by chapter 18 SK the Russian Federation.

For accurate understanding of the objective party of an analyzed offence we will try to allocate blocks of duties for which inadequate execution administrative responsibility is established, and we will analyse them more in detail.

To the first block of duties of parents we will carry what are connected with education of minors. According to item 63 SK the Russian Federation parents have the right and are obliged to bring up children. They are obliged to care about health, physical, mental, spiritual and moral development of children. Parents have the right of priority to education of children before all other persons. At the same time freedom of choice of means and methods of education of children with observance of the restrictions provided by item 1 of item 65 SK the Russian Federation is given parents. So, parents have not the right to harm physical and mental health of children, their moral development. Ways of education of children should exclude scornful, rough, degrading human advantage the reference, oskarblenie or operation.

Important for application ch. 1 item 5.35 KoAP the Russian Federation is the fact of understanding of the process of education. According to the Federal act from December, 29th, 2012 № 273-FZ «About formation in the Russian Federation» [46] education is understood as the activity directed on development of the person, creation of conditions for self-determination and socialisation trained on a basis sotsiokulturnyh, spiritually-moral values and the rules accepted in a society and norms of behaviour in interests of the person, a family, a society and the state.

About in what degree parents care of high-grade physical and mental development of the child, it is possible to judge on following moments:

On appearance of the child (the child is dressed not on a season, a thing dirty, zanoshennye, for a long time not stirannye, not on the size). The given data can be received from the educational institution characteristic where the minor is trained, or from a preschool institution;

On behaviour of the child (the child starves and it is forced to beg, collect and hand over bottles to search for meal in the garbage container to steal from schoolmates, independently to earn to itself for a life, selling newspapers in an electric train). The given data can be received from the educational institution characteristic where the minor is trained, or from a preschool institution, from interrogations of neighbours, relatives;

On lexicon of the child (obscene words used by the child, a slang, adopted from parents or persons, their replacing). The given data can be received from the characteristic of the psychologist or the social teacher;

On skills which the child (for example owns, whether the child of preschool age is able to clean a teeth, independently to put on, clasp buttons, to fasten laces). The given data can be received from the characteristic of the psychologist or the social teacher, from the characteristic of the tutor of a kindergarten, etc.

However established KoAP the Russian Federation the norm about responsibility of parents and persons, their replacing, in some cases is insufficient for influence on careless parents. At times danger of infringements from their party exceeds a threshold of administrative torts and then it is necessary to talk about analogue of administrative violation,

Provided ch. 1 items 5.35 KoAP the Russian Federation - penal act - default or inadequate discharge of duties on education of the minor by the parent or other person to which these duties are assigned, and equally teacher or other worker of the educational, educational, medical or other establishment, obliged to carry out supervision of the minor if this act is connected to cruel treatment with the minor (item 156 UK the Russian Federation). With reference to the given research special attention we believe to turn on a parity administrative and the criminal liability for the purpose of definition of criteria of differentiation of adjacent structures

Offences which has essential value in pravoprimenitelnoj to practice and also to pay attention of qualification of the acts providing cruel treatment with minors.

Criminally - the rule of law provided by item 156 UK the Russian Federation, has rather certain character, being blanketnoj. The given circumstance generates difficulties in the course of application of the given criminal norm among practising lawyers beginning from employees of the law-enforcement bodies which are engaged in revealing and investigation of the given kind of a crime, organs of the Prosecutor's Office and representatives of the judicial case. All it, certainly, affects lacks of revealing, investigation and preventive maintenance of the penal act connected with cruel treatment with children, low level priventivnosti. The given kind of a crime possesses high level latentnosti. The persons who are not fulfilling duties on education of minors, quite often avoid bringing to criminal liability in connection with difficulties of gathering of demonstrative base, absence of witnesses, weak interaction of bodies of preliminary investigation with employees of divisions on affairs of minors,

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Criminal investigation department and district militia officers of police.

Spent by a number of researchers generalisation of practice of inquiry and investigation of crimes on the facts of cruel treatment with children shows, that the prevailing share of such facts remains not revealed or not proved, and revealed and proved - unpunished [47 [48]. The subjects legislatively allocated with duties on education of children and supervision of them, often duck out, though at their actions there are signs of tortures, a beating, regular humiliation of honour and advantage of minors, causing of serious harm to their physical and mental development. One of the reasons of such state of affairs is that item 156 UK the Russian Federation provides responsibility of parents or other persons for default or inadequate discharge of duties on education of minors if this act is connected to cruel treatment with the child. At the same time absence of accurate concept «cruel treatment with the minor» does not allow to develop a common opinion in a question of inadequate discharge of duties on education of minors between law-enforcement bodies, Offices of Public Prosecutor, the judicial authority. Thereupon the considerable part of materials with the signs of crimes provided by article 156 UK the Russian Federation, has no logic end in the form of criminal cases. As a rule, the measures applied to parents on the revealed facts of malicious default of duties on education of minors there is a deprivation of the parental rights or their restriction. In this connection we believe to pay attention to the basic problem in practice of application of existing criminal norm.

Vital issue in application of the named criminal norm is ambiguous interpretation of concept «cruel treatment with the minor». Presence of the given constructive element necessarily in a combination to default or inadequate discharge of duties on education of children for qualification of act as the crime made concerning the minor. In the decision of Plenum of the Supreme Court of Russia from May, 27th, 1998 № 10 «About application by legislation vessels at the resolution of disputes, children connected with education» it is defined, that cruel treatment with children can be shown not only in realisation by parents of physical or mental violence over them or in attempt at their sexual inviolability, but also in application of inadmissible ways of education (in the rough, scornful reference degrading human advantage with children, the insult or operation of children) [49]. Let's pay attention to that for the first time the term «cruel treatment with the child» in Russia has been put into circulation by the Code of Laws on Marriage and Family of RSFSR (further - KoBS) in 1968. Cruel treatment with the child was one of the bases of deprivation of the parental rights, but value concept KoBS did not open. The reference to the legislation of the countries - participants of the CIS has allowed to find out, that the concept «cruel treatment with the child» is given in joint order G osudarstvennogo committee of Ukraine on affairs of a family and youth, the Ministry of Internal Affairs of Ukraine, the Ministry of Education and Science of Ukraine, Ministry of Health of Ukraine from January, 16th, 2004 № 5/34/24/11 «About the statement of the Order of consideration of references and messages concerning cruel treatment with children or real threat of its fulfilment. The specified document under «severe the reference with the child» suggests to understand any forms of physical, psychological, sexual, economic and social violence over the child in a family or out of it. In 2002 the World organisation of public health services (further - the CART) masshtabno has spent work on research of violence and its influence on health. In the prepared report attempt to make violence definition is undertaken, to define its typology and determinants. In the international document the definition of cruel treatment with children is formulated. Experts suggest to understand the CART as cruel treatment: all forms of physical and-or emotional cruelty, sexual violence, neglect or the negligent reference, commercial or other operation from parents or their persons replacing, leading to actual or potential harm to health of the child, his life, development or advantage in a context of responsibility, trust or the power. On the basis of the given research it is obvious, that the concept "cruel treatment" joins all kinds of violence - physical, mental, sexual, and also the scornful relation.

Thus, the concept cruel treatment with the minor contains in the subordinate legislation, judiciary practice, but in the legislation is not fixed and does not carry official interpretation. For the purpose of accurate understanding of the given term for qualification of crimes as those, and also otgranichenija criminally - punishable act from administrativnopravovogo the tort it is expedient to allocate signs of cruel treatment with children.

Being limited to frameworks of concrete research, we will try to define signs of cruel treatment with minors. [50]

1. Cruel treatment with minors is expressed in essential injury of a life and to health of the child. It can be and isolated facts of evasion from performance of duties on education of the minor or application of inadmissible ways and methods of education, training, the maintenance of the minor and the reference with the minor. Cruel treatment displays in some cases, can simultaneously form and structure of other crimes [51].

2. The neglect is regarded by needs and the rights of the child as cruel treatment with the minor though, at first sight, it not seems dangerous against physical or sexual violence, but the child deprived of normal emotional relations, formations, the health services, regularly testing food deprivations, cannot successfully be socialised in a society. There are some forms of the scornful relation among which are allocated ignoring, otverzhenie, terrorizirovanie, isolation, depravity.

Taking into account preliminary reservations concept «cruel treatment with the minor» requires more in-depth study, and subsequently in legislative fastening of the term in FZ «About the basic guarantees of the rights of the child in the Russian Federation».

With a view of increase of efficiency of protection of the rights and legitimate interests of minors it is necessary to define criteria otgranichenija administrative violation from criminal punishable analogue.

In - the first, the administrative violation connected with default or inadequate discharge of duties under the maintenance, education, training, protection of the rights and legitimate interests of minors is made in the form of inactivity, and does not put physical harm to the minor; in - the second, absence of signs of cruel treatment with the minor; in - the third, subjects of administrative violation are only parents or persons, their replacing.

To the second block we will carry duties of parents on training of children. According to the Federal act «About formation» training is understood as purposeful process of the organisation of activity trained on mastering by knowledge, abilities, skills and the competence, acquisition of experience of activity, development of abilities, acquisition of experience of application of knowledge in a daily life and to formation at trained to motivation of reception of formation during all life.

Parents are obliged to ensure children of the basic general education and to create conditions for reception of the average (full) general education by them. Also taking into account opinion of children parents have the right of a choice for them educational institution and the form of reception of formation.

The important role belongs to duties of parents under the maintenance of minor children (item 80 SK the Russian Federation). Testify to the fact of default of duties on training of the minor by his parents can:

Progress of the child at school: discipline at school;

Attendance of employment, etc.

To the third block we will carry duties of parents and persons, their minors replacing under the maintenance. Parents are obliged to contain minor children. Parents have the right to make agreement about the maintenance of minor children (the agreement on payment of the alimony) according to chapter 16 of the present Code. The law does not provide any special conditions for duty occurrence under the maintenance parents of children (for example, presence at parents of necessary means, work capacity and capacity of parents). The order and the form of granting of the maintenance to minor children are defined by parents independently. The main objective - to provide requirements of the child for a food, clothes, leisure subjects, in rest, treatment, etc.

According to ch. 1 item 5.35 KoAP the Russian Federation is provided administrative responsibility for acts which are expressed in the form of inactivity of parents and other legal representatives of minors. Research has shown, that in the suppressing majority of cases the report on administrative violation on ch. 1 item 5.35 KoAP the Russian Federation is constituted by employees of police for such concrete actions which default or inadequate execution by parents or other legal representatives of minor duties under the maintenance, education, protection of the rights and legitimate interests of minors »as abusing alcohol parents or other legal representatives of minors, conditions of residing of the minor mismatch requirements fall under«: neubrano houses, are absent a foodstuff, the minor financially is not provided, does not visit an educational institution [52 [53].

The alternating cast of a considered offence, is provided ch. 2 items 5.35 KoAP the Russian Federation. Its objective party is formed by the actions connected with infringement by parents or other legal representatives of the minor rights and interests of minors, characterised as follows:

Deprivation of the minor right to dialogue with parents or close relatives if such dialogue does not contradict its interests;

Intended concealment of the location of children besides their will; in default of a judgement on definition of a residence of children, including a judgement on definition of a residence of children for the period before becoming res judicata of a judgement on definition of their residence;

Default of a judgement on a procedure of the parental rights or about a procedure of the parental rights to the period before becoming res judicata of a judgement or in other hindrance to realisation by parents of the rights to education and formation of children and on protection of their rights and interests.

For example, mother or the father deprive of the minor right to dialogue though it does not contradict interests of the child, intentionally hide the location of children besides their will. In this case it is a question of concrete actions of special subjects in relation to minors, it and includes illegal act for which administrative responsibility is provided. Qualification of this administrative violation represents considerable complexity.

The main problem of default of judgements on definition of a residence of the child consists that "defeated party" - one of the former spouses - after divorce is not ready to recognise the decree,

As such decision in her eyes and understanding is equated to

To voluntary return of own child to "the hated spouse/spouse» contrary to interests of the child (children).

It is necessary to notice, that at all stages of the proceeding mentioning the rights and interests of the child, interests of the minor come under to priority protection. Accordingly, and at a final process stage on the given category of affairs very important in the maximum degree to observe interests of the child which are understood as creation of the conditions excluding causing to the minor of a sincere and physical trauma at the moment of execution of judgement. In particular, the Supreme Court of the Russian Federation obliges courts at definition of an order of participation of separately living parent in education of the child to warn other parent about possible consequences of default of the decree.

The analysis of judicial certificates on an analyzed category has shown, that a vital issue of diligent execution of requirements of court is absence of children on a certain residence and there is no information on their site. In such cases judicial police officers - executors take measures to their search. We will give an example from pravoprimenitelnoj practice of bailiffs UFSSP of Russia on the Vladimir area where the court has obliged the debtor (father) to transfer the juvenile son vzyskatelju (mothers). During enforcement the finding of the child in Israel has been established. But absence of the bilateral international treaty with Israel concerning a recognition and execution of judgements on civil cases with the Russian Federation does impossible execution of the given decree.

In 2012 in comparison with 2011 the quantity being on execution in territorial bodies FSSP of Russia of final processes about otobranii the child was reduced with 1707 to 1318. Till now debatable there is a question of enforcement of a judgement on definition of a residence of the child.

The requirements of the executive document containing the formulation «to define a residence of the minor child», not

Provide putting on on the debtor (one of parents) duties on transfer of the child to other parent and do not contain any other requirements of obliging character provided by item 6 ch. 1 items 13 of the Law on final process. Hence, judgements with such formulation of the substantive provision carry

pravoustanavlivajushchy character. Thereupon it is represented to Russia quite proved position FSSP that the judgements which are not providing putting on on the debtor of any duties, do not demand enforcement.

The Supreme Court of the Russian Federation in 2011 prepares the Review of practice of the permission by vessels of the disputes connected with education of children (utv. Presidium of the Supreme Court of the Russian Federation on July, 20th, 2011) [54] in which explanations about necessity of instructions for judgements on a duty of the parent are made to vessels to transfer the child to that parent with whom the residence of the minor is defined. However problems continue to meet. So, in 2012 the quantity of final processes about definition of the place of residence of the child has increased and has constituted 415 (in 2011 - 326).

It is established, that in course of execution of the specified category of final processes judicial police officers-executors face following complexities:

Absence in the executive document of accurately certain criteria allowing unequivocally to define the moment of actual execution of requirements;

Necessity of personal presence of the judicial police officer - of the executor at dialogue of the parent with the child in case of absence

Arrangements between the final process parties;

Definition by vessels of time of dialogue with the child in the days off, that complicates the control over appropriate execution of judgement even more. So, in UFSSP Russia on the Astrakhan area on execution there was a final process about a dialogue order vzyskatelja with the daughter, providing, in particular, that on the first and third Sunday or Saturday of month from 10 o'clock till 18 o'clock it can communicate with the daughter, visit with it cultural-sports actions, places of carrying out of leisure taking into account a mode of day of the child; in the second days off of month from 10 o'clock Saturday till 17 o'clock Sundays vzyskatelju it is authorised to take away the daughter to itself home with the right of a night dream. For today the legislation on final process does not contain the criteria allowing unequivocally to define the moment of actual execution of requirements, containing in the executive document.

The part 3 items 5.35 KoAP the Russian Federation provides qualifying sign of the given administrative violation. For it fulfilment of the administrative violation provided ch is necessary repeated within a year. 2 items 5.35 KoAP the Russian Federation.

Finishing the analysis of objective signs of default of duties parents and persons, their replacing, under the maintenance and education of minors, it is necessary to underline, that structure of considered administrative violation those signs which are specified in article disposition, except for the qualifying circumstances provided by the criminal law (form only cruel treatment with the minor).

Conclusions:

1. Design features of item 5.35 KoAP the Russian Federations considered in present article, have predetermined uniqueness of structure. In - the first, the considered structure of administrative violation has the adjacent structure provided by the criminal law. Article 156 UK the Russian Federation provides the criminal liability for default or inadequate discharge of duties on education of the minor by the parent or other person to which these duties are assigned, and equally teacher or other worker of the educational, educational, medical or other establishment, obliged to carry out supervision of the minor if this act is connected to cruel treatment with the minor.

2. Article 5.35 KoAP the Russian Federation is characterised by duration of unlawful conduct which proceeds during all time from the beginning of an offence and before its termination and connected by that the duty assigned to the person during the certain period is not executed. Thereupon the given administrative violation is lasting.

3. Criteria otgranichenija administrative default of parental duties from criminal punishable analogue are defined. First, the administrative violation connected with default or inadequate discharge of duties under the maintenance, education, training, protection of the rights and legitimate interests of minors, is made in the form of inactivity, and does not put physical harm to the minor; secondly, absence of signs of cruel treatment with the minor; thirdly, subjects of administrative violation are only parents or persons, their replacing.

Definition of default by parents and persons, their replacing, duties under the maintenance and education of minors which can be opened as follows is formulated. Under default by parents and persons, their replacing, duties under the maintenance and education of minors it is necessary to understand regular fulfilment by legal representatives

The minor illegal acts (acts or omissions) expressed in non-observance established international normative acts, the Constitution of the Russian Federation, the Family code of the Russian Federation, judgements of requirements under the maintenance, education, training, protection of the rights and legitimate interests of minors in the absence of the qualifying circumstances provided by the criminal law.

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A source: Dolgova Svetlana Igorevna. ADMINISTRATIVE RESPONSIBILITY of PARENTS And PERSONS, THEIR REPLACING, FOR DEFAULT of DUTIES UNDER the MAINTENANCE And EDUCATION of MINORS In the RUSSIAN FEDERATION. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2014. 2014

More on topic § 2. Objective signs of default by parents and persons, their replacing, duties under the maintenance and education of minors:

  1. § 2. Efficiency of application of administrative punishments for default by parents or persons, their replacing, duties under the maintenance and education of minors
  2. Chapter 1. Default by parents and persons, their replacing, duties under the maintenance and education of minors as an administrative violation kind
  3. Chapter 2. Realisation of administrative responsibility of parents and persons, their replacing, for default of duties under the maintenance and education of minors
  4. Dolgova Svetlana Igorevna. ADMINISTRATIVE RESPONSIBILITY of PARENTS And PERSONS, THEIR REPLACING, FOR DEFAULT of DUTIES UNDER the MAINTENANCE And EDUCATION of MINORS In the RUSSIAN FEDERATION. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2014, 2014
  5. § 3. Subjective signs of default by parents or other legal representatives of minor duties under the maintenance and education of minors
  6. § 3. Administrative punishments for default by parents (other legal representatives) minor duties under the maintenance and education of children
  7. § 1. Commencing a suit about default by parents (other legal representatives) minor duties under their maintenance and education
  8. § 1. Excitation and disposal of legal proceeding about administrative violations for default of duties under the maintenance and education of minors
  9. § 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
  10. 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
  11. CHAPTER 1. CONCEPT AND ESSENCE OF THE ADMINISTRATIVE LIABILITY FOR NONPERFORMANCE PARENTS OR OTHER LEGAL REPRESENTATIVES OF MINOR DUTIES UNDER THEIR MAINTENANCE AND EDUCATION
  12. § 6. About criminalisation of default or inadequate performance of duties on education of children