liability in determining the legal status of underage persons

Subject of legal liability is one of the central places in the general theory of law. As one of the most important measures to ensure the maintenance of the established in the sovereign state rule of law, legal liability is particularly relevant, for when it comes to violations of children's rights.

As a manifestation of communication and mutual responsibility of the individual and the State, legal liability as one of the essential guarantees of the nde of law, an important measure to protect the interests of individuals, society and the state, "is an adequate expression primarily in the provisions of the Constitution, and they, in turn, receive a specification and development in the current (branch) legislation "[3: p.21 ].

Traditionally, legal liability is defined as the legal relationship between the State, through its competent bodies and the offender, who would be obliged to undergo certain hardships and adverse effects for violations of regulatory requirements. This concept is normally used in legislation as well and in the application of measures against offenders provided by the sanctions of legal norms (criminal, administrative, disciplinary, property liability).

Legal liability is established by specific normative legal act emanating from the public authorities. The essential basis for its implementation is a crime - guilty wrongful action (inaction) of a person causing or capable of causing harm to society, the state or individuals.

For the offender the legal liability is expressed in a sanction of a certain legal norm stating adverse effects in the form of restrictions or limitations of the rights and interests, imposing additional responsibilities on him. The implementation of the established measures of liability has always been provided by the power of state coercion, which is strictly regulated by law and has its own legal framework. In addition, legal liability is a kind of social responsibility.^[1] Legal responsibility is divided into types based on various grounds. Depending on the nature of the offense and the measure of liability provided for it there are the following types of legal liability: family law, civil, administrative, criminal, disciplinary, material and others. Such kind of legal liability as constitutional is equally important.

To determine the extent to which a particular type of legal liability is applicable to minors and persons who are their legal representatives, we must first focus on the concept of the legal status of minors, which covers the large-volume range of legal relations due to the nature and special social importance of this category of citizens in comparison with others.

In this regard, we note the main thing: the legal status of minors is characterized not only by the establishment of a special procedure for the realization of their rights, but also a special procedure for liability due to limitations of legal liability of minors, along with the recognition of the full extent of their rights.

With regard to the problems arising in the implementation by the child of belonging to him fundamental rights and freedoms, their quantity is much greater than that of an adult. First of all, it is due to incomplete legal capacity of a minor as a subject of law. With the "right to the right", because of lack of physical, mental and social maturity, "so misguided," the child is not in a position to properly implement the right. Supplement its partial capacity by full capacity of legal representatives do not solve the problem, because their (the children and their legal representatives) interests, as the reality shows do not always coincide [2: p. 17].

The Constitution of the Russian Federation as the basis of the legal status of minors does not actually contain any provisions defining the legal status of at least one specific subject of law. Flowever, in Chapter 2 of the Constitution of the Russian Federation there is called a complete list of rights and obligations, covering "everyone" or a "citizen of the Russian Federation." It seems that a citizen of the Russian Federation, who is under 18 can count on dissemination of these standards and on him. The only ground for restricting the above rights and duties of minors is the recorded in the law age, with the occurrence of which the law binds the emergence of certain rights and obligations.

Thus, the basic human rights and freedoms, according to the article 17 of the Constitution, are inalienable and belong to everyone from birth, that is, the child possesses all the rights and freedoms of an adult.

Flowever, due to insufficient age of physical and psychological development, "so misguided", and therefore of non-full capacity, the child requires increased legal protection. Even compensation by capacity of his legal representatives (parents or persons substituting them, including representatives of state guardianship authorities) does not allow a child to stand a full subject of law, as their interests do not always coincide. In determining the legal status of minors one must take into account the peculiarities of their mentality and behavior that led, respectively, and to the specificity of the legal status of minors.

It is stated in international law and national law: the Convention on the Rights of the Child, the Constitution, the Family Code, the Civil Code of the Russian Federation, and others. The Convention on the Rights of the Child considers the child as a special demographic group in need of special protection system, the creation of favorable conditions for survival, healthy and harmonious development of every child as an individual, recognizing him as a separate subject of law.

At the time, trying to work out and adopt a single legislative act on the rights of the child at the national level - the Federal Law "On the Rights of the Child" was not successful; in the early 90s there was a draft Law "On the basis of the sovereign, public policies for the protection of children's rights", it also remained unfulfilled. As a result, in 1998, the Federal Law "On Basic Guarantees of the Rights of the Child in the Russian Federation" was adopted, where the mechanism of implementation, the specific interests of children were not finally indicated, or it had to be developed in accordance with governmental regulations. Stated in the name of the law a priority "standards, guarantees" to ensure the maximum protection of the rights of the child did not find further development.

The lack of provisions in the Law on the liability of bodies not fulfilling the obligation to assist in the implementation and protection of the rights of the child, in fact negates the "no" the basic guarantees of the rights of minors. Methods of fixing liability in the law are different: the liability may be contained in the rule itself, based on its meaning; sometimes it will be fixed by another piece of legislation; it may be provided by law of other branch. Since the nature of the guarantees is in the presence of liability for non-compliance, the lack of accountability mechanism in the rules that reinforce safeguards to protect the rights of minors makes them declarative. It is guarantees that may be the key concepts in the development of the legal status of the child at this time. It is not just about the legal guarantees, social and economic guarantees are essential requiring legislative consolidation; a special role here is played and by the welfare state.

Returning to the Constitution of the Russian Federation, we highlight the fact that the status of the child in the vast majority of the constitutional precepts is implied in the definition of universal status of any citizen of Russia, which is a guarantee of the principle of equality of all citizens, regardless of any of the grounds including age. At the same time the specific age-related features do not allow the child to implement adequately the majority of the proclaimed rights by the Russian Constitution on his own, as well as act.

History of the "child" of legislation shows that until certain time, a minor in Russia was considered only in the context of family relations, where his legal status was partially absorbed by the legal status of his parents.

Measures of family liability are applied for the non-fulfillment of proper parenting responsibilities. These include: deprivation of parental rights and restrictions, taking away a child at imminent threat to his life and health.

The most severe measure is deprivation of parental rights. This measure of state coercion entails loss of all the rights of the parents arising on the basis of relationship with the child, while maintaining the property duties. We emphasize that the termination of parental rights terminate the legal relationship between parents and children. Parents lose all rights and obligations, except for one - they are not exempted from the obligation to support their children. Therefore, considering a claim for deprivation of parental rights, the court must at the same time resolve the issue and for the recovery of maintenance for the minor child.

Another measure of family liability is the restriction of parental rights. Previously, the Code of Marriage and Family of the RSFSR contained no clear boundaries between the bases of the deprivation of the parenting rights and taking away a child without deprivation of parental rights. The Family Code of the Russian Federation partially eliminated this gap. If leaving the child with the parents is dangerous for the child due to circumstances beyond the control of the parent (mental disorder exceptional circumstances, etc.), the parents may be limited parental rights (Article 73 of the Family Code of RF).

However, the restriction of parental rights is possible in cases where the parents' behavior is dangerous for the child, but there are no sufficient grounds for deprivation of parental rights. Thus, the risk may present the environment of parents and their desire to use children in asocial aims, etc.

As in the case of restriction of the parental rights the legal status of the child becomes uncertain, it is difficult to protect his rights and interests. For this reason, the law gives the right to the guardianship authorities within six months from the date of the court's decision to restrict parental rights by presenting a lawsuit against the deprivation of parental rights, if the parents do not change their behavior (paragraph 2 of Article 73 of the Family Code of RF). If, however, the grounds on which parents were restricted in their rights ceased to exist, the court at the suit of the parents (one of them) may decide to return the child to his parents (Clause 1 of Article 76 of the Family Code of RF).

The legal basis for confiscation (seizure) of the child from the parents or persons in loco parentis, may serve the established and appropriately decorated facts of residence of the minor in a situation that threatens the life or health. After confiscation of a child guardianship authority is obliged to inform the prosecutor, to provide temporary placement of the child and within seven days to file a lawsuit on restriction or deprivation of parental rights.

Recognizing the reasonableness under family law, in the event of an emergency, crisis situation, the urgent removal of the child from the family, confiscation from parents, we pay attention to the fact that further actions with this child are not clear. In most cases it depends on the integrity and personal qualities of employees of the guardianship authorities, their careful attention to the situation. The child may be sent to a shelter or to relatives, neighbors, and sometimes it is better for him to stay home.

In the process of legal regulation of relations between the parents (or persons in loco) and children the legislation should take into account the personal-confidential nature of the relationship of these persons, so government intervention in this area should be minimal. On the other hand, the threat to the interests of children from parents or other family members, not to mention the actual violation of the rights of minors effective legal mechanisms for the protection of these rights must be included. It should also be recognized by many experts in the field of family law, the actual legal inequality of children and their legal representatives. Even in terms of age, psychological, social and other characteristics, the ratio of parent - child relationship can not be considered of equal subjects [1: s.37-38].

Hence the demand is the creation of a legal framework for timely informed preventive influence on the family. It is necessary to introduce into legislative acts provisions on the liability of public bodies and officials authorized to protect the rights of the child in the event of inactivity, which leads to a violation of the rights of minors. For example, in the Federal Law "On Basic Guarantees of the Rights of the Child in the Russian Federation," the liability of officials is listed only as a principle of public authorities (Article 4), without specifying the types of liability of a specific official.

According to Article 1075 of the Civil Code persons deprived of parental rights shall be liable for damage caused by minors, in respect of which they are deprived of parental rights. This liability may be imposed on them for only three years after the termination of parental rights, if the child's behavior, which caused the harm by the improper exercise of parental responsibilities. It seems that the establishment of the said civil liability of parents testifies to the great importance attached by the legislator to faithful implementation of their child-rearing responsibilities.

In general civil liability of minors, possessing features of legal liability of other persons is different at the same time in a number of features related to the subjects of liability, which are the persons who have not attained the age of majority.

In accordance with the Civil Code certain age criteria of liability of minors are established. Under Part 3 of Article 28 of the Civil Code of the Russian Federation responsibility for transactions of a minor under the age of 14 is imposed on his parents, adoptive parents or guardian, unless they prove that the obligation has been violated not through their fault. These persons are liable for damage caused by minors, unless they prove that the harm arose not through their fault. This rule is established due to the fact that minors are not delictual therefore they cannot be subjects of the trial. Liability is incurred on the basis of an equal share of responsibility (Art.321 of the Civil Code). However, parents may be relieved of liability if through the fault of the other parent he was unable to take part in the upbringing of the child.

Parental responsibility for the damage of a minor is a responsibility for their own guilt, i.e. for failure of proper supervision of children, irresponsible attitude to the education or misuse of their rights in relation to children, which resulted in their misconduct, resulting in harm. In other words, the duty of parents to suffer the negative consequences in the form of recovery of damages is caused by their wrongful guilty inaction in bringing up children. It turns out that the civil-law regulation of parental responsibility for damage caused by minors is directly related to family and legal liability, as is for breach of the duty to raise their children. In this regard, the obligation to compensate for damage caused by a minor, does not end with the achievement of majority (p.4 Art. 1073), and the parents have no right to the requirements of recourse until a minor tortfeasor reaches the full capacity (p.4 st. 1081).

Minors between the ages of 14 and 18 are responsible for their own transactions (p.p.l, 2 Art.26). They also are responsible for the harm caused by them on a common basis (st. 1074). This means that the victim in the case of injury has the right to sue directly to a minor. However, given the financial situation of a minor (there is no profit, there is no other property sufficient to redress), the legislator provides for additional (subsidiary) responsibility of parents for the damage caused by a minor.

In this case, the minor and his legal representative act as a respondent in the case; judgment shall be made against both. Upon reaching by a tortfeasor of adulthood recovery from the legal representatives is terminated, as is the case with the introduction of a minor in the marriage or recognition him as fully capable of emancipation. In fact the decision is executed by the property of the legal representatives what does not meet the objectives of the civil liability of minors.

The study of measures of civil liability also allow to conclude that committing by children any offenses is usually a consequence of breach of the duty of parents in their upbringing, of failing to make children observe legal behavior.

Minors are responsible not only for violation of the rules of civil law. Responsibility can come and for offenses provided by administrative or criminal law. The hallmark of criminal and administrative liability is their public law character. Note that the particular civil and criminal liability of minors constitutes a separate subject of research and is not the subject of this article.

However, we consider it is necessary to draw attention to the debate on the age of the administrative and criminal liability of minors. This topic was widely discussed in the spring of 2012, it was about reducing the age of criminal liability to 12 years. It was proposed to reduce the age of criminal liability to 12 years, only for grave and especially grave crimes, such as murder of two or more persons. On crimes for which minors are currently prosecuted from 16, the offers were to send to prison from 14. And, accordingly, where today punishment is from 14 (murder, kidnapping, theft, act of terrorism, hostage-taking, rape, and other violent and property crimes), the bar could be lowered to 12.

The proposal to reduce the age of criminal liability was supported even by representatives of the Russian Orthodox Church. So, Archpriest Georgy Krylov, candidate of theology, a priest who works with children and has experience of teaching in various schools and communicates with young pre-criminals, supported the initiative of lowering the age of criminal liability for the most serious crimes. Since there is a trend of early maturation, in 14 they began to issue passports, and 12-year-old child is already fully responsible for his actions, "can be criminally punished. Another question is what kind of punishment is appropriate to apply to children. The easiest way to send a child to the colony, but the prison seems to have not re-brought anybody. Here I am close to view of Leo Tolstoy, one of the most capacious of its opinions, which is that the people who are serving a criminal sentence are not corrected, but become worse. If the system of penalties of minors is reasonable, I am supporter of lowering the age of liability. If you do not punish the offender in twelve, then get out of him a criminal in fourteen, sixteen ... ".^[2]

In 2014, the State Duma introduced a bill providing for a reduction of two years of age for administrative liability^[3] that is up to 14 years. The authors of the bill explain the initiative by the fact that in the age of 16 the child is already conscious of his actions, is able to assess the negative character of his actions and to accept and appreciate the adverse effects occurring in the event of prosecution. The arguments were the physical abilities of the child of 14, which allow him in some cases to enter into an employment relationship and commit acts recognized as administrative offenses. In addition, the cause for it was the essentially increased level of violence of children, while the level of liability remained the same. Again, the criminal law permits prosecuting persons under the age of 14 to the criminal liability for certain types of offenses (para. 2, Art. 20 of the Criminal Code).

In turn, we note that the Federal Law "On Principles of Prevention of neglect and juvenile delinquency"³¹” includes measures for juvenile offenders under the age of criminal liability. Persons between the ages of eight and eighteen years, requiring special pedagogical approach, based on the decision of the commission on affairs of minors and protection of their rights and psychological, medical and pedagogical commission, and with the consent of minors under the age of fourteen, their parents or other legal representatives, are taken for education and training by special educational institutions of open type (Article 15).

In the special educational closed institutions, in accordance with the legislation on education juvenile aged from eleven to eighteen years old may be placed, in need of special education, training, and requiring a special pedagogical approach in cases where they are: 1) not subject to criminal liability due to the fact that at the time of committing a socially dangerous act they had not reached the age of criminal liability (item 4 of Article 15). Grounds for the content of such juveniles in special educational establishments of closed type are the judge's riding (p 1, p.5).

No objections are currently expressed as to the orientation of children's legislation to humanization in relation to the younger generation, which at the same time does not mean the refusal of the state to use coercive measures for juveniles in general. There is a long-felt need for an integrated scientific approach to the problem of establishing a reasonable balance of the participation of law enforcement agencies in the punishment of children and the education of minors in the educational institutions. Today, the legal framework of interventions on children is too little and mostly limited to the scope of criminal law, since other legal bases, which could include measures which are not related to the punitive do not exist.

With regard to another kind of liability, namely, constitutional advancing for the improper exercise of public authority, at the present time its application in minors is not possible, because it occurs in relation to any state agency or official, or with respect to an adult citizen. ^[4]

It is clear that the current situation calls for strengthening the responsibility of parents and other legal representatives, from which children are dependent (teachers, guardians, and others). But at the same time we cannot neglect the issue of obligations of minors themselves.

The issue of liability of minors as an element of its legal status remains open. The Constitution of the Russian Federation in 1993 structurally does not distinguish responsibilities of citizens, moreover, they should be "sought out". In previous constitutions it was different. Thus, the Constitution (Fundamental Law) of the RSFSR in 1937 included Chapter 11, "Basic rights and duties of citizens." Chapter 6 of the Constitution (Fundamental Law) of the RSFSR in 1978 was called " Basic rights, freedoms and duties of citizens of the Russian Federation ". In its turn, the project of the Russian Constitution prepared by the Constitutional Commission in May 1993, also contained a chapter VI « Obligations ", included in Section Two "Fundamental rights, freedoms and duties of man and citizen."

Article 64 of the Constitution (Fundamental Law) of the RSFSR in 1978 secured not only the duty of citizens of the RSFSR to take care of the education of children, preparing them for socially useful work, raise them as worthy members of socialist society, but also the duty of the children to take care of their parents and help them.

In the context of this article, we emphasize that the formation of the responsibility is laid before adulthood. Ignoring the obligations of minors, we "habituate" them to dependency and immaturity. As a result, both society and children themselves loses as the legal liability of minors is a means to ensure lawful behavior of juveniles themselves.

Literature

• 1. Borisova N.E. The legal status of minors in the Russian Federation. - M .: Publishing House of the Russian State Social University, 2007.
• 2. Borisova N.E. Historical and theoretical basis of "children's" rights // Bulletin of Moscow City Pedagogical University. A series "Legal science". Publishing House of Moscow City Pedagogical University (Moscow) ISSN: 2076-9113.- 2014.- N 13.-pp. 14-24
• 3. Vitruk N.V. Speech at the round table // State and Law. 2000. N 3. P.21.

• [1] Forms of social responsibility: moral, political, organizational, social, party and others.
• [2] http://www.religare.ru/2_93040.html (the date of treatment 13 March 2012)
• [3] http://www.garant.ru/news/523474/(the date of treatment 14 February 2014)
• [4] Federal Law of June 24, 1999 N 120-FZ "On the basis of prevention of child neglect andjuvenile delinquency" (as amended) (in version of Federal Law of 02.07.2013 N 185-FZ).http:/ftase.garant.ru/12116087/2/