CC BY
43№ 2 (38) 2015 m. K,a3aK,cmaH Pecnyônumcbi 3aHflaMa UHcmumymuHUH^ MMprnbicbi
36
Kymlyk Roman Vladimirovich,
associate professor of the department criminal law, process and criminology National University of the State Tax Service of Ukraine, candidate of juridical sciences (Irpen, Kiev region)
SPECIAL STATUS MINOR OF THE SUBJECT OF ADMINISTRATIVE RESPONSIBILITY
Ukrainian state its main priority, the highest social value recognized the human, his life and health, honor and dignity, integrity and security (Art. 3 of the Constitution of Ukraine). That's why current national juvenile policy is the part of the concept of Ukrainian society.
Ratified in 1991 the Convention on the Rights of the Child and voting for the World Declaration on the Survival, Protection and Development of Children [1], Ukraine has assumed international legal obligations to implement international standards of child rights, according to which it must ensure the well-being, health, housing, education for every child without any discrimination and ensure protection against any form of violence and exploitation.
According to Art. 1 of the UN Convention «On the Rights of the Child» a child means every human being below the age of 18 years of age, unless under the law applicable to the child, majority is attained earlier [1, p. 125].
Normally the Constitution of Ukraine also coined the term «children» whose content its identical to the contents of international legal instruments, in particular in Art. 52 declared - «Any abuse of a child and its operation shall be prosecuted by law.»
By Law of Ukraine «On the promotion of social advancement and development of young people in Ukraine» minors are defined as persons under 18 years of age. The Law of Ukraine «On Protection of Childhood» concept «child» practically coincides with the provisions of the UN Convention «On the Rights of the Child". Thus, according to the Art. 1 mentioned law child is a person under the age of 18 years (age), if the law applicable to it, it will acquire the rights of an adult before [1].
Comprehensive analysis of the use of the term «minor» in various areas of law suggests that this concept is used in respect of persons aged 14 to 18
years. However, it is clear that the terms «child» and «minor» is the same as the same age limits, and therefore, in our opinion, in order to increase the effectiveness of the law it is advisable to adhere to common terminology, namely that the term «minor»
Administrative law of Ukraine also uses the term «minor», identifies features of its responsibility (Art. 13 CAO) of administrative influence (art. 24-1 CAO), although it sets too high age limit - 16 to 18 years.
An administrative offense is not an abstract concept that is beyond time and space, and the person who physically exists and its illegal actions causing harm to the object of attack [2]. Controversy in administrative and legal science is referring questions to the juvenile subjects varieties of administrative offense. Some scientists say the juvenile as a special subject [2], others - as a special entity [3, p. 11; 4, p. 266]. In addition, it is believed that the separation of specific subject not directly related to the peculiarities of administrative misconduct as features that characterize a particular subject, do not affect the fact of warehouses and qualified administrative offenses and have value only when individualization administrative responsibility [5, p. 69].
The legal status of minors is characterized by features that comes out of their age characteristics (lack of experience, inability to properly assess individual events, to foresee the consequences of their actions, etc.). Accordingly, the law provides for an independent commission some minor limitation of actions, which is associated with the onset of legal consequences. The obligation to perform these actions on behalf of and in the interests of a minor or control them rely on parents or persons in loco parentis. However, in some cases provided by the CAO, minors have administrative responsibility for acts committed by them as adults (Articles 44, 51,
173). That is, legally defined (although not a direct indication) the possibility of recognizing a minor administrative offense subject.
The current legislation does not provide administrative generalized definition of the subject of an administrative offense and does not operate this term. CAO uses the term «offender» (Articles 256, 259), «detained person» (p. 261), «a person who is attracted to administrative responsibility» (p. 268), the latter term legislator is not explained.
As a general rule for recognition as a subject of administrative offense it should be endowed with legal personality (capacity and capability) to be able fully to defend their rights, freedoms and legitimate interests. Juridical persons in administrative tort process - is the property of the subject of administrative tort relations to have subjective rights and legal responsibilities and carry them through their actions. Individuals and legal entities that have legal personality, are subjects of law. With respect to the person against whom the case is an administrative offense to distinguish capacity and capability, since the latter enables them to fully exercise the right to self-defense. [6] If the said person is a minor or suffers physical or mental disabilities that make it impossible to realize their right to self-defense, it can not refuse keeper. That is the subject of an administrative offense is dysfunctional and only sane person who has reached a certain age and has full mental health [7, p. 19]. Minor and mentally ill do not have the necessary consciousness and will to adequately assess and solve life situations: children -because of lack of mental and physical development, and the mentally ill - due to abnormal development or degradation of consciousness. At the same time, these people, although they are not the subjects of an administrative offense, are the subjects of security features as entitled to protection, have the right to defend themselves, but can not for various reasons to implement it yourself.
Thus, the analysis of individual articles CAO indicates that a person may be the subject of an administrative offense only attained a certain age, which is, according to the legislator at the time of committing the offense should have a level of consciousness, physical and mental development, allowing it to properly assess social significance and meaning of the offense. According to Art. 12 CAO administrative responsibility to those individuals who at the time of the wrongful act was 16 years old, and sometimes - only a person of full age - 18 years (for example, Articles 207 and 211 of the CAO, etc.). It means, not every person who commits an administrative offense, is recognized for his
subject in terms of the composition of the offense. According to the law and the opposite cases where the person actually falls under the administrative features of criminal offense, but for some reason can not personally bear administrative responsibility, in particular for minors. For example, Art. CAO 184 provides that committed by minors aged 14 to 16 years of administrative offense, punishable by a fine on parents or persons in loco parentis. Article 307 Administrative Code, which regulates the timing and sequencing of the imposition of a fine, provides a fine parent people aged 16 to 18 who have committed an administrative offense, but are unable to pay his own. In such cases, as noted by V.K. Kolpakov, traced responsibility for the actions of third parties blame [4, p. 199].
Psychologists consider age as a stage of mental development of the individual, in which there are natural physiological and psychological changes associated with specific historical conditions of personality, peculiarities of its activities, communication and education [8, p. 43-44]. The age in this case is seen not only as a physiological, but rather as a social fact, acting in place of the individual in the system of social relations, the degree of formation and nature of the needs, interests, values, etc.
Nowadays worldwide initial age of responsibility for crimes and administrative offenses defined differently. Suffice it low limits established in Egypt, Iraq, Lebanon and several other countries of North Africa and the Middle East - 7 years. In some states (in some states in the US, France, Uzbekistan, etc.), the minimum age of administrative tort liability established 13 years (with a minor is recognized, usually a person aged 10 to 18 years: 13 years - used exclusively educational measures of 13 - punishment [9, p. 40]). From 14 years ofestablished administrative tort liability in most civil law countries: Austria, Italy, Czech Republic, Slovenia, Croatia, Serbia, Latvia, Estonia, Belarus. However, a minor between the ages of 14 and 18 are generally recognized as a special subject of administrative misconduct of certain features on the use of administrative influence. For example, minors in Italy can be used administrative security measures include placement in agricultural colonies or house labor, prohibition to reside in certain places, placement in a correctional prison [9, p. 81]. In Austria, a minor under the age of 14 and 18 can be released from liability if it is established fact his inability awareness of existing restrictions and actions in compliance with these restrictions [9, p. 30]. In the Republic of Belarus administrative responsibility of 14 years can occur
№ 2 (38) 2015 m. K,a3aK,cmaH PecnydnuKacu 3aHflaMa UHcmumymuHUH^ MMprnbicbi
only by law offenses (16 syllables - Art. 4.3. Of the Administrative Code) [10].
In Denmark, Finland, Sweden age administrative tort liability provided for in 15 years, in Poland - 17 years [9, p. 82]. Belgium, with administrative and tort legislation does not set age at which comes responsibility. And Switzerland has a separate juvenile criminal code in 2003, which a person aged 10 to 18 considered minor. In the Russian Federation, Bulgaria, Kazakhstan, as well as in Ukraine, administrative liability is 16 years. Meanwhile, Russia provides administrative law provisions that minors between the ages of 16 and 18 can be released from administrative responsibility to the specific circumstances of the case [11]. Law of the Republic of Bulgaria «On Administrative Offences and Punishment» (1969) stipulates that persons 16 years of age may be subject to administrative liability if they can understand the nature and significance of the offense and manage their works [9, p. 108].
In Ukraine in different historical periods of formation and development of Ukrainian administrative law approach to determining the age of the person bringing to justice nor was unequivocal: 7 years - Code of 1649 year (which is recognized to some extent the historical source of administrative liability [4, p. 64]), 10 years - on the statute books in 1832, 14 years - by Decree SNK RSFSR in 1918 «O commission for minors», 16 - the Code of Laws on public education SSR 1925 - and enshrined in the current Code of Ukraine Administrative offenses in 1984 16 years (Article 12 of the Code to date not changed).
Thus, the approach to determining the initial age of administrative responsibility was defined differently in different historical periods and in different countries. As for the upper limit recognition as minor, as the analysis of Ukrainian and foreign laws, for almost the entire existence of administrative responsibility, it does not exceed 18 years - in Europe. In the Anglo-Saxon legal system known cases of minors the recognition of 21: three US states, the UK [9].
In the theory of criminal law increasingly express an opinion on lowering the age criterion bringing man to justice. V.N. Kudryavtsev notes that between the ages of 12 - 14 years capacity for conscious control of behavior in important criminal cases based on individual positions on moral claims are sufficient to attract the subject of teen guilty behavior [12, p. 167-171]. V.F. Moroz, exploring delinkventnist of children expresses doubts about the presumption of insanity adolescents aged 11 to 14 years, and reasonably suggests advisability
of bringing criminal charges with the replacement of punishment compulsory educational measures, appropriate noting here that the ability to realize the danger of his actions and manage them must be installed in each case by an examination involving psychiatrists and psychologists [13, p. 8-9].
The administrative and legal science recently also noted that under current conditions administrative responsibility does not perform its functions in the fight against deviant behavior of juveniles, since the latter bringing to administrative responsibility for them (in most cases) measures of educational influence provided c. 24-1 CAO non-administrative charge and does not lead to the onset of the legal consequences for the offender. To respond to juvenile offenders does not desired result, because impunity leads to irresponsibility [3, p. 12]. Therefore, scientists justified reduction (in some cases) age administrative responsibility to 14 years as minors in the specified age, because of their physiological and psychological development, fully understand the nature and consequences of their actions and behavior and can manage it.
As a general rule reached the age of 00 hours the day after the birthday person. If the birthday person unknown, the results of forensic examination determined the year of her birth, and is considered the birthday of December 31 experts designated born. Thus, in this age of man comes with 00 hours of January 1st next year.
In our view, especially the psychological processes of each age period can not be ignored in law enforcement and they must be taken into account when describing the individual juvenile offender. That is the main task authorized by the administrative jurisdiction of should not be to ascertain the age of a juvenile offender and the level of awareness committed unlawful acts, in other words - its capacity. Last governed by different areas of law, including civil, administrative, criminal and so on. In the capacity as administrative law should be understood the ability of individuals to acquire their actions to themselves rights in administrative justice field and carry out their own, and the ability through their actions create for themselves the duties of their own performance and respond in the event of their failure. Administrative deliktozdatnist recognized for minors who are aware of the significance of their actions can manage and bear legal responsibility. Minors in the field of administrative tort endowed with incomplete capacity.
Another essential feature is the subject of an administrative offense sanity. As a special administrative law definition of insanity is
38
missing. The corresponding term in the theory of administrative law is derived from the opposite concept of «insanity» as set out in Art. 20 CAO. When sanity in administrative law the ability to understand a person while committing an administrative tort aware of their actions and control them [2]. The notion of sanity is characterized by the presence of binding two main aspects inherent objectively existing mental properties persons - intellectual and volitional characteristics. Intellectual sign of sanity critically determines the possibility of the subject to perceive the surrounding reality. The scope critical (analytical) perception of reality in the science of law include a person realizes how actual aspects of his behavior, actions, effects and causal link between them and socially harmful nature exerted act. Strong-willed feature is the ability to consciously control their individual actions, actively manage and overcome obstacles to the goal. In volitional actions (inaction) of a person is reflected its relation to the environment, reveals an active role consciousness. The absence at the time of the wrongful act of at least one of the features that define the subject automatically demonstrates his insanity. Thus, analysis of national and international administrative law to determine the minor subject of administrative responsibility leads to the following conclusions. We agree with the fact that minor administrative responsibility - is regulated by administrative rules of tort reaction by authorized subjects to act minors who appeared in violation of their statutory prohibitions or default of their duties, which is applied to perpetrators interventions in the form of deprivation of personal, property or physical nature [3, p. 11]. The main features of the subject minor administrative offense is his age and sanity.
Age has always characterized and accompanied by conscious volitional behavior, and at the time
of the offense - and even causing any harm. In this respect, it should be noted that the concept of the common signs associated with juvenile offender characteristic intellectual and volitional relation to the actions and consequences. So, considering the age of the various legal, psychological, medical items, above all, to talk about the will of a person who is at the heart of its perceived illegal behavior and is particularly important for the study of administrative and legal age administrative liability of the offense. Foreign experience of most European countries indicates the possibility of bringing minors to the administrative tort liability under the age of 14 years. Therefore, in our opinion, it is necessary to consolidate the general rule that persons subject to administrative liability under the age of 16 years, and for certain types of offenses (which entail more serious consequences) - 14 years. At the same time, requires legislative provisions, in our opinion the fact that if during adolescence (14 to 18) there is a lag in mental development, the teenager is not subject to administrative responsibility. It is necessary to consider not any «lag», but is not associated with mental disorder and which determines the inability to fully realize the illegality of their actions and to manage them. Therefore, the law should take into account not only quantitative but also qualitative indicators of mental development.
The inclusion of such provisions of national administrative tort law meets international Convention on the Rights of the Child (1989), the United Nations Standard Minimum Rules for Juvenile Justice («The Beijing Rules», 1985) and European practice. In determining the possibility of bringing to administrative tort liability of a minor should be guided not only formal basis of «age», but the principle of «understanding» - understanding the actual nature and wrongfulness of the act.
References
1. Mezhdunarodny'e aktbi of human rights. Sbornyk documents. - M .: NORMA-INFRA, 1999. - 756 p.
2. Install signs Gurzhiy T. subject of administrative offense in the administrative and legal qualification / TV // Right Gurzhiy Ukraine. - 2006. - № 4. - P. 32 - 35.
3. A. Gorbach administrative responsibility of minors, a parent or person in loco parentis: Author. Thesis. for obtaining sciences. degree candidate. Legal. sciences specials. 12.00.07 "Administrative Law and Procedure; finance; information law "/ OV Gorbach. - K.: National Academy, 2006. - 18 p.
4. caps VK Administrative tort legal phenomenon: [monograph] / VK caps. - K: Yurinkom Inter, 2004. - 528 p.
5. Mykolenko AI Administrative Process and admynystratyvnaya responsibility in Ukraine: [Textbook posobye]. - Ed. 2nd, Advanced. / AI Mykolenko. - X: Odyssey, 2006. - 352 p.
6. Implementation Goshovsky VM security features in the process of administrative tort Ukraine / VM Goshovsky // European path of Ukraine: plans and realities materials fourteenth international. molodizh.
№ 2 (38) 2015 ж Цазакртан Республикасы Зацнама институтыныц жаршысы
Scientific and practical. Conf. (Kyiv, 16-17 May 2009). - K., Kim, 2009. - S. 254 - 256.
7. Malenyn NS offenses: concept, Causes, responsibility / NS Malenyn. - M., 1985. - P. 19.
8. Aseev VG Vozrastnaya Psychology / VG Aseev. - Irkutsk, Irkutsk unyv Publishing Press, 1989. -129 p.
9. Administrative tort law: international experience and suggestions reform in Ukraine / authored by OA Banchuk. - Karl Books for Business, 2007. - 912 p.
10. The Code of the Republic of Belarus ADMINISTRATIVE about offenses from 21.04.2003 g № 194-3: [electronic resource] // Access: http://etalonline.by/?type=text®num=Hk0300194#load_text_ none_1_.
11. The Code of the Russian Federation about ADMINISTRATIVE offenses from 12.30.2001 № 195-g FZ: [electronic resource] // Access: http://www.zakonrf.info/koap/.
12. VN Kudryavtsev law concessions responsibility / VN Kudryavtsev. - M., 1986. - S. 265 - 266.
13. Frost VF Delinkventnist children to the 14th century (criminological problems): Abstract. Thesis. for obtaining sciences. degree candidate. Legal. sciences specials. 12.00.08 "Criminal Law and Criminology; penal law "/ VF Claus. - HUVSU, 1999. - 18 p.
Мацала зюмшШк цуцыц бузушылыц жасаганы ушгн жауапты субъектга реттде кэмелетке толмаган аныцтау цуцыцтыц аспекттерт царайды. Нег1зг1 жасы, осы тулгалардыц жеке басын цозгайтын, психологиялыц, тарихи жэне этникалыц факторлар. Осы саладагы эюмштк жауапкерштк жэне нацтылау теориялыц жас шегт аныцтау агымдагы цуцыцтыц ережелер талдау. Субъектгшц нацты жасы, сонымен цатар, оныц гс-шаралар, оныц мацыздылыгын туану ушгн мумктдт гана емес есепке алу жвнтдег1 зацнаманы жетыдгру бойынша усыныстар.
TYuin свздер: эюмштк жауапкерштк бар кэмелетке толмаган тулга, жауапкерштк.
В статье исследованы юридические аспекты определения понятия несовершеннолетнего как субъекта ответственности за совершение административного проступка. Определены основные возрастные, психологические, историко-этнические факторы, влияющие на правосубъектность указанных участников процесса. Проанализированы действующие нормы законодательства, определяющие предел возраста, с которого наступает административная ответственность и доработки теоретиков в данной сфере. Даны рекомендации по совершенствованию законодательства по учету не только фактического возраста субъекта, но и возможности его осознавать значение своих действий.
Ключевые слова: несовершеннолетний, административная ответственность, правосубъектность, вменяемость.
The paper studied the legal aspects ofthe definition of a minor, as the actor responsiblefor an administrative offense. The main age, psychological, historical and ethnic factors affecting these legal actors. Analyzed the existing rules of law that determine the threshold age at which comes administrative responsibility and portfolio theorists in this field. Recommendations for improving the legislation to incorporate not only the actual age of the subject, but the possibility to realize the significance of their actions.
Keywords: juvenile, administrative responsibility, legal, sanity.
Роман Владимирович Кимлык,
Украинаньщ мемлекетпк сальщ ^ызмет ^лттьщ университетшщ ^ылмыстьщ ^^ыщ, ic жYргiзу жэне криминалистика кафедрасыныц доценп, з.г.к. (Ирпень Киев облысы)
Э^мшьшк жауаптылык; субъектю болып табылатын кэмелетке толмаFандардыц ерекше мэртебеа
Кимлык Роман Владимирович,
доцент кафедры уголовного права, процесса и криминалистики Национального университета государственной налоговой службы Украины, к.ю.н. (г. Ирпень Киевская обл.)
Особый статус несовершеннолетних субъекта административной ответственности
Kymlyk Roman Vladimirovich,
associate professor of the department criminal law, process and criminology National University of the State Tax Service of Ukraine, c.j.s., (Irpen, Kiev region)
The special status of minors subject of administrative responsibility
