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§ 1. JUvenalnaja justice of Russia: historical aspects of formation, the maintenance, the purpose and problems

In the modern world the increasing urgency is got by problems of child care, protection of the rights and interests of children and teenagers. One of displays of such concern can consider a new impulse in development juvenalnoj justices.

Owing to some is social-psychological and individually-personal features of minor persons the international community paid attention time and again to necessity for special protection of such persons and care of them, including an appropriate legal protection, both to, and after a birth [222]. In this connection both on international, and at national level projects are developed, experiments on creation (or to a reconstruction) specific system - juvenalnoj the justices which appointment is juvenile delinquency resolution of problems, protection of their rights, freedom and legitimate interests etc. are made. However the question on constituting elements of system is not resolved till now unequivocally: one scientists suggest to limit system juvenalnoj justices to exclusively bodies of the judicial authority [223 [224], others consider necessary to add

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Its other bodies and establishments, officials.

It is necessary to tell, that this problem is not new. It has historical roots. Still P.I.Ljublinsky in the beginning of XX century wrote: «... Hardly probable it is possible to name in the modern European legal and pedagogical literature a theme more fashionable, than the question on the American juvenile courts, XX century put forward from the beginning Ideas of this movement are full works of lawyers of all European countries. Almost in each state experiments of practical realisation of these establishments become, and the new types, new forms» [225 [226] [227] [228] are outlined.

In Russia such changes were outlined in the end XIX - beginning HH century and references in corrective shelters and maintenances in them juvenile criminals »communicate first of all with laws from May, 20th, 1892« About change of the decisions, concerning; from February, 8th, 1893 «About change of an order of the conclusion and transfer of the minors consisting under a consequence and court»; from June, 2nd, 1897 «About change of forms and legal proceedings ceremonies on affairs about criminal actions juvenile and minor, and also statutes about their punishability».

Last law has caused the sharpest discussions as had revolutionary enough character the then in scientific community: in it the approach to minors in the field of criminal law and criminal trial has been transformed. It was showed, in particular, in introduction of institute of obligatory participation of the defender on affairs minor (item 566.1, 591.1), and also legal representatives (item 581.1); expansion of a circle of the circumstances which are coming under to an establishment («degree of intellectual and moral development and consciousness of criminality of the act made by it, and also the reasons which have led to its committing a crime» - item 356.1). Besides it the law has provided possibility of commutation by the minor on «responsible supervision, at judicial discretion, or their parent, or to persons on which care they consist, or to other reliable people who have expressed on that consent». The given supervision as it is represented, further and has received development as institute probatsii (a probation kind in which term the condemned was under supervision).

These and other changes were ambiguously enough estimated both scientific community, and the public as a whole [229]. The technique of a statement of the law, and a defect of the separate moments were criticised also. Nevertheless the specified legislation of end ХІХ a starting point in working out became qualitative century other approach to minors and in our country, and all over the world. In 1910, for example, at the initiative of the Petersburg Society of patronage in St.-Petersburg there was a first juvenile court; later similar courts have been created and in other cities of Russia. They however have existed not for long: in 1918 juvenalnye courts have been replaced with the commissions for minors that has been caused by increase of a threshold of the criminal liability till 17 years in this connection about punishment of minors of speech did not go any more. The commissions could apply to them only measures of educational influence.

Despite fundamental nature of the made changes, whether it is possible to establish the existence fact in Russia XIX century juvenalnoj justices? Answers to it are ambiguous enough and depend on representations of the concrete researcher concerning concept, essence and system juvenalnoj justices.

Discussion about expediency of existence juvenalnoj justices in general and maintenances of its separate aspects - legislative, sudo - ustrojstvennyh, sudoproizvodstvennyh - lasts throughout many years. Thus has not received uniform interpretation even the term «juvenalnaja justice». Raznoboj in understanding of essence juvenalnoj justices are brought by confusion not only in the jurisprudence theory. It becomes the reason mitingovyh displays: in many cities of the Russian Federation (Moscow, Sankt - Petersburg, Nizhni Novgorod, Ekaterinburg, Saratov etc.) there have passed mass actions against introduction in Russia juvenalnoj justices which in mass consciousness associates with illegal and unreasonable withdrawal of children from a family and even fascism [230]. Besides, incorrect vision juvenalnoj justices and its appointments serves as a considerable obstacle for creation of uniform system juvenalnoj to justice and in practice.

One of the reasons of the situation which have developed in a society is, in our opinion, plurality of the points of view of scientists concerning understanding of the maintenance juvenalnoj justices and its missions. Does not add clearness and separate interpretation of terms "justice" and "juvenalnyj" as uniform definition of a word-combination «juvenalnaja the justice» neither in legislative sources, nor in literary works (in an indisputable kind), at present it is not offered. As earlier it has already been fairly noticed [231], such definition is absent not only in Russia. Germany and France, other states having developed enough systems of bodies and establishments, applying juvenalnye technologies in work with minors (including juvenile courts), also do not use in the legislation of the term «juvenalnaja justice».

The separate understanding of these terms is that for today: justice (an armour. justitia - justice, legality) - all set of judicial tribunals, their activity on justice realisation, and also the judiciary, the Ministry of Justice [232];

juvenalnyj (English juvenile - enc. young, youthful, unripe, remained undeveloped; intended for children, youth) [233].

In the Russian authentic text «Peking rules» «juvenalnaja the justice» is deciphered as «justice concerning minors». Certainly, it is a word-combination literal translation «juvenile justice» which, in our opinion, cannot be considered in quality to it adequate.

In the scientific literature by present time the set of the points of view on the given question was generated. According to E.A.Belikovoj, all representations are classified on two groups: criminally-jurisdiktsionnyj the approach with accent on legal proceedings on criminal case concerning minor (E.Melnikova) and the interbranch approach consolidating various services on a departmental accessory, directed on protection of interests of minors not only at the permission was put court, but also during realisation of their rights within the limits of usual legal relations (V.Ermakov). In the second case juvenalnaja the justice is considered as the certain social institute consolidating a number of subsystems, norms and structures [234]. Not pressing in questions of validity of allocation of such approaches, we will shine the basic positions of their supporters.

JUvenalnaja the justice is first of all certain system of bodies and establishments. In this connection practically all representations about juvenalnoj justices vary depending on system elements constituting it.

For example, the representative jurisdiktsionnogo E.B.Melnikova's approach within the limits of the project of the corresponding law approves, that «juvenalnaja the justice is the judiciary carrying out justice on affairs about minors and having problems: judicial protection of the rights and legitimate interests of minors and proceeding of affairs about offences and crimes of minors» [235]. Thus, according to the project any other bodies and establishments in system juvenalnoj justices do not enter.

It is possible to assume, that such opinion is justified by the problems put by the author of the project before juvenalnoj by justice: judicial protection and proceeding of affairs with participation of minors. In our opinion, such understanding juvenalnoj justices is a little narrowed, as problems and the purpose, facing it, much more widely and can be realised only during activity of the whole system of bodies and establishments, and not just judicial.

Certainly, not all researchers have gone on a way of restriction of concept juvenalnoj justices exclusively courts of justice. Some scientists quite obosnovanno include in its system both other bodies and establishments, various on a departmental accessory. So, I.I.Martinovich writes: «... It is the whole system organisation-legal and sotsialnopsihologicheskih institutes and not state structures, capable to guarantee the optimum decision of questions of judicial protection of the rights and legitimate interests of children and teenagers, maintenance of their safety, physical and psychological well-being» [236]. As such institutes and I.I.Martinovich's structures suggests to consider «... juvenalnuju Office of Public Prosecutor and legal profession, service of the qualified psychologists and social workers and other experts, and also special educational and penitantiary establishments for minors» [237] which should constitute system juvenalnoj justices.

I.I.Martinovich's position is represented to us to the most proved. Developing these ideas, we consider possible to expand a circle of bodies and the establishments constituting system juvenalnoj of justice that is caused set as before last purpose and problems.

It is represented, that the purpose juvenalnoj justices is resotsializatsija the minor (from an armour. re - a prefix specifying in repeated, renewed action, and socialis - public) - English resocialization; it. Resozialisierung. - a kind of personal change at which the mature individual accepts the type of the behaviour which distinct from is accepted it before [238]. The concept resotsializatsii should be considered within the limits of the so-called new theory of social protection («humanistic movement in the criminal policy»), generated after the Second World War in connection with necessity of struggle against criminality growing in all capitalist countries. Representatives of this direction speak about "dejuridizatsii" litigation, i.e. About preference in crime control not legal, but various social measures (treatment, supervision, re-education, etc.) But with observance of fundamental principles of criminal law, bourgeois legality, formal guarantees of the personal rights. A lot of place is given to a problem of the prevention of crimes, studying of their structure, groups of criminals (first of all crimes of minors) etc.

In our opinion, in frameworks juvenalnoj the combination both legal, and social measures that the minor came back in a society the high-grade individual in the social plan, observing established by the legislator and the norms accepted in a society and principles is necessary for justice. Achievement of this purpose will be promoted by true statement of problems, accurate fastening of system of bodies and their establishments carrying out, and also creation of corresponding techniques by which bodies and establishments in the activity should be guided.

First of all, as it is fairly underlined in the literature, «the policy in the field of justice concerning minors is not a policy if it does not include preventive maintenance» [239]. Within the limits of preventive work with minors in item 2 of the Federal act from June, 24th, 1999 № 120-FZ «About bases of system of preventive maintenance of neglect and offences of minors» following problems are designated:

Maintenance of protection of the rights and legitimate interests of minors; the prevention of neglect, homelessness, offences and antisocial actions of minors, revealing and elimination of the reasons and the conditions promoting it;

Is social-pedagogical rehabilitation of the minors who are in is social-dangerous position;

Revealing and suppression of cases of involving of minor crimes in fulfilment and antisocial actions [240].

Realisation of tasks in view is provided by means of fastening of the whole system of bodies and establishments (the Commission on Juvenile Affairs and protection of their rights, controls with population social protection, controls formation and educational institutions; bodies of guardianship, etc.) (item 4 of the specified Law).

Certainly, preventive maintenance - not a unique direction juvenalnoj justices. The most indisputable is inclusion in it of activity under the permission of legal conflicts to participation of minors. Besides some of already listed bodies and establishments participation in such activity is accepted by Office of Public Prosecutor, legal profession, investigation agencies bodies and, of course, court.

As one more vector in activity juvenalnoj, in our opinion, it is necessary for justice to designate is social-psychological rehabilitation of minors which is realised in activity of many of the named bodies and establishments, and in penal system activity, and also systems of the establishments executing forced measures of educational character.

All named bodies and establishments in aggregate also form system juvenalnoj justices. Each element is a system integral part, omission in work of one link can bring to naught the further work of all system. Thus juvenalnoj justices can join in system public organisations and the charitable organisations authorised under human rights and representatives by the rights of the child, the reconciliation centres etc.

Besides it as we already marked, juvenalnaja the justice means use by the specified system of bodies and establishments in the activity of specific receptions, ways and means. Separate researchers even have gone on a way of restriction of the maintenance juvenalnoj justices exclusively such receptions and in the ways. V.N.Tkachev directly approves, that juvenalnaja the justice is «... New legal mechanisms, medikosotsialnye, psihologo-pedagogical, rehabilitation procedures (including and judicial), the programs directed on the maximum maintenance of the rights and freedom minor, not only appeared in conflict to the law, but also the civil rights requiring protection judicially» [241].

It is represented, that in this case it is possible to talk about achievement means juvenalnoj justice of the purpose - so-called juvenalnyh the technologies which application is caused, first of all, a subject of activity of system what public relations with participation of minor persons are. And it does necessary working out of exclusive, distinct from general techniques, technologies [242]. We believe, that such technologies will differ also depending on in what frameworks of a direction are applied (sudoustrojstvennogo, remedial, material, psihologo-pedagogical and other character), and also under the maintenance - depending on the model accepted in this or that state juvenalnoj justices.

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A source: Nadeljaeva Tatyana Viktorovna. of FEATURE of the REMEDIAL FORM of DELIVERING JUSTICE ON CRIMINAL CASES With PARTICIPATION of MINORS In the TRIAL COURT. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg -. 2018

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