THE RELEVANCE AND IMPORTANCE OF IMPROVING THE CRIMINAL LAW PROTECTION OF THE FAMILY

ABSTRACT

The article describes the relevance of criminal legal protection of the family, analyzes the legal framework in the Russian Federation. Particular attention in the article is paid to the analysis of existing legislative acts in the family law, as well as the practical foundations of its implementation in the modern legal system are studied. The article mentions the consequences that may occur due to violation of family law.

Keywords: protection, the prevention of crimes, family, criminal activities, criminal legislation, human rights, adoption secrecy.

Theoretical aspects of legal protection

One of the priorities of the social policy of the Russian Federation is the protection of the rights of families and children. Thus, Part 3 of Article 16 of the Universal Declaration of Human Rights of December 10, 1948 states that the family "has the right to protection from society and the state." And in paragraph 1 of Article 10 of the International Covenant on Economic, Social and Cultural Rights of 1966 It is stated that "The family, which is the natural and basic unit of society, should be provided with the widest possible protection and assistance, especially in its education, and while it is responsible for taking care of the 3 children who are not independent and their upbringing." The Constitution of the Russian Federation (Article 38) also proceeds from the fact that human rights and freedoms are inalienable and belong to everyone from birth, and motherhood and childhood, the family are protected by the state. Realizing the importance of this problem, the State is taking various measures to create the most favorable conditions for the existence of families and minors, including measures to provide social support to large and young families, assistance in providing housing, measures aimed at protecting the health of mothers and children, various programs to reduce child homelessness and improve children left without parental care.

Serious attention in State policy is paid to the prevention of crimes against the family and minors. This aspect is relevant due to the significant prevalence of this category of crimes, the level of which in the aggregate of crimes committed remains consistently high. The number of cases of minors being involved in criminal activities, the commission of crimes by minors themselves, including serious ones and as part of organized groups, is increasing. According to the statistics, over the past three years, the number of minors recognized as victims of crimes remains high.

This follows from the updated data of the Ministry of Internal Affairs of the Russian Federation posted in the Unified Interdepartmental Information and Statistical System [EMISS].

Tabl. 1

Statistics of crimes committed against the family

The trend of victimization and criminalization of the child and adolescent contingent is greatly facilitated by the expanding practice of abuse of minors in the family and in educational institutions, neglect of the basic needs of children by individuals, and reduced care for children who are legally responsible for their upbringing, maintenance and supervision. Systematic manifestations of physical and mental violence on the part of such persons contribute to an increase in the level of aggressiveness of children, the assimilation of violent ways of resolving family conflicts and raising children as normative behavior, and their reproduction of patterns of behavior perceived in childhood in communication with others. In such a situation, special attention should be paid to improving the legislative framework that ensures the protection of the family, motherhood and childhood, including criminal law.

Legislation on liability for crimes against the family has been further developed in the current Criminal Code of the Russian Federation. The Criminal Code of the Russian Federation contains a number of articles regulating family legal relations, namely, substitution of a child [6, p. 83], illegal adoption [6, p. 83], disclosure of the secret of adoption [6, p. 83], failure to fulfill duties for the upbringing of a minor [6, p. 83], non-payment of funds for the maintenance of children or disabled parents [6, p. 83-84].

Practical aspects of legal protection

At the same time, the study of statistics and judicial practice indicates insufficient elaboration of legislation, the lack of explanations on certain issues of qualification of this group of crimes, the difficulty of identifying and consolidating the evidence base of crimes committed against the family and minors.

In accordance with Article 1 of Federal Law No. 124-FZ dated 07/24/1998 "On the basic guarantees of the rights of the child in the Russian Federation" [10] indeed, there is an indication that "a child is a person before he reaches the age of 18 (majority)", which is the correct interpretation of the term, but not in relation to the corpus delicti provided for in Article 153 of the Criminal Code of the Russian Federation. As the researchers correctly point out, "in relation to Article 153 of the Criminal Code of the Russian Federation, the concept of a "child" should be interpreted more narrowly, namely as a newborn child." In this case, the key aspect that determines the possibility of The commission of a crime is the absence of pronounced individual signs in a newborn (a child under the age of 1 month), by which the child is easily distinguished from other children of a similar age. To eliminate such ambiguity of interpretation, taking into account the above, it seems advisable, by amending Article 153 of the Criminal Code of the Russian Federation, to name the act "substitution of newborn children" and in the disposition of the article, similarly replace the phrase "substitution of a child" with a more precise phrase "substitution of newborn children".

Thus, the wording of Article 156 of the Criminal Code "Non-fulfillment of duties for the upbringing of a minor" requires improvement, which does not always allow to bring to criminal responsibility persons who are charged with the responsibility for the upbringing of minors for non-fulfillment or improper fulfillment of this duty due to the lack of clear criteria for ill-treatment and the difficulty of obtaining evidence.  In order for the act to constitute a crime, evidence is needed that there was also ill-treatment of a minor, only in this case there will be grounds for criminal prosecution. Meanwhile, failure to fulfill parenting duties in it already significantly violates the rights and interests of a minor and may constitute an independent crime, while ill-treatment of a minor or the use of violence against him should be considered as qualifying signs.

Despite the urgency of the problem and the socially dangerous consequences of crimes committed against the family and minors, attention should be paid to the fact that in the current criminal law, responsibility for this category of crimes is set lower than in the previous Criminal Code and significantly lower than abroad for similar crimes. For example, the involvement of a minor in drunkenness, in begging, i.e. in committing antisocial acts under Article 210 of the Criminal Code of the RSFSR was punishable by imprisonment for up to 5 years. Currently, the same punishment is possible under Article 151 of the Criminal Code of the Russian Federation only for actions if they are committed by parents, a teacher or another person who is legally responsible for the upbringing of a minor, i.e. a special subject, qualifying circumstance is needed to impose imprisonment for up to 5 years.  Also, Article 154 of the Criminal Code of the Russian Federation does not provide for imprisonment as a punishment, whereas the Criminal Code of the RSFSR (Article 162.9) provided for imprisonment for up to one year for illegal activities for the adoption of children.

In recent years, the institute of adoption secrecy has been vigorously discussed in Russian legal science. Disputes about what is considered a secret of adoption, what is its legal nature, what means should be used to protect it, and whether further preservation is advisable do not stop for a minute. There is also a dispute about what kinds of relations in relation to this type of secret are protected by criminal law. In practice, crimes under Article 155 of the Criminal Code of the Russian Federation are rare.  The complexity of the qualification of a crime under Article 155 of the Criminal Code of the Russian Federation is due to the fact that the disposition of this norm is blank, since the provisions on the secrecy of adoption are contained in Article 139 of the Family Code of the Russian Federation [7] and in Article 47 of Federal Law No. 143-FZ dated 11/15/1997 "On Acts of Civil Status"[9]. At the same time, based on the provisions of Article 155 of the Criminal Code of the Russian Federation, it follows that responsibility under this norm is borne either by a special subject or by a general one if he acts from base motives.

Perhaps the legislator proceeded from the principle of humanism, introducing such changes to criminal legislation and it is impossible to say unequivocally that this led to an increase in crimes. At the same time, it should be noted that new violent crimes are being committed against both families and minors, especially in the field of sexual relations, and the legislator does not have time to criminalize most of them.

Conclusion

The problem of protecting families and children has always been one of the most acute, attracting the attention of the widest public not only in Russia, but also at the international level. The new legislation, including on the rights of the child, contains norms designed to protect and protect the rights of the child. And one of the main obstacles in their implementation is the ignorance of these norms by those responsible for the upbringing of minors and the lack of elaboration of legislation, as well as explanations on certain issues of qualification of this group of crimes. Thus, issues related to criminal liability for acts committed against the family and imperfect children remain relevant and require further scientific and practical developments.

References:

1. Savelyeva, N. N. Problems of qualification of crimes against the family and minors // Young scientist. — 2022. — № 45 (440). — Pp. 175-177. — URL: https://moluch.ru/archive/440/96216 / (date of access: 04/25/2024).
2. Morozova Yu. V. Crimes against the family and minors (Articles 150-157 of the Criminal Code of the Russian Federation): textbook. — St. Petersburg: St. Petersburg Law Institute (branch) University of the Prosecutor's Office of the Russian Federation, 2020 / 93p.
3. Resolution of the Constitutional Court of the Russian Federation dated 06/16/2015 No. 15-P "On the case of checking the constitutionality of the provisions of Article 139 of the Family Code of the Russian Federation and Article 47 of the Federal Law "On Acts of Civil Status" in connection with the complaint of citizens G. F. Grubich and T. G. Gushchina // Collection of Legislation of the Russian Federation. 2015. No. 26. St. 3944.
4. A.I. Myasnikova Actual problems of qualification of crimes against the family and minors dissertation. master's degree - M., 2021 – 93 p.
5. EMISS: The number of registered crimes committed against minors. URL: https://www.fedstat.ru/indicator/60899?ysclid=lvfcmdqsji47372861
6. The Criminal Code of the Russian Federation dated 06/13/1996 No. 63-FZ//SZ RF. 1996. No. 25. St. 2954.
7. The Family Code of the Russian Federation dated 12/29/1995 No. 223-FZ // SZ RF. 1996. No. 1. Art. 16.
8. The Constitution of the Russian Federation (adopted by popular vote on 12.12.1993) (with amendments approved durin the all-Russian vote on 07/01/2020)
9. Federal Law No. 143-FZ "On Acts of Civil Status" 11/15/1997.
10. Federal Law No. 124-FZ "On the basic guarantees of the rights of the child in the Russian Federation” 07/24/1998.