Illegal adoption under articles of the Criminal Code and Code of Administrative Offenses of the Russian Federation

ST 154 of the Criminal Code of the Russian Federation.

Illegal actions of adopting children, placing them under guardianship (trusteeship), to be raised in foster families, committed repeatedly or for mercenary reasons, are punishable by a fine in the amount of up to forty thousand rubles or in the amount of the wages or other income of the convicted person for the period up to three months, or compulsory labor for a term of up to three hundred and sixty hours, or correctional labor for a term of up to one year, or arrest for a term of up to six months.

What is illegal adoption?

Adoption is a legal procedure, after which the same rights and obligations arise between adopted minors and between adoptive parents as between biological children and mother/father. Thus, this is the acquisition of parental rights in relation to children with whom there is no connection by blood.

The main goal of the procedure is to establish guardianship, that is, to protect the property and moral interests of each child left without the attention of his parents. Therefore, when choosing an adoptive family, first of all, the possibilities for proper upbringing of the adopted child are taken into account.

Features of the composition

In the case when an adoption or transfer into guardianship occurs that goes beyond the scope of legal norms, the qualification of the act is given in accordance with Article 154 of the Criminal Code of the Russian Federation.

Objective side

The objective side of the crime under consideration consists of illegal actions aimed at adoption, transfer of children into guardianship or trusteeship, and upbringing in foster families.
Such actions have a sign of repetition. Adoption is interpreted as a legal fact, according to which the same rights and obligations exist between the adoptive parent and the adopted child as between persons who have family ties. Important! Adoption is understood as the adoption into the family of someone else’s child, whose parents have died or been deprived of parental rights. Guardianship is a form of protecting the rights of minors who have lost their family. The transfer for adoption, guardianship, or foster care of children who cannot be transferred there is understood as illegal actions.

Such persons include:

• persons who have reached the age of eighteen;
• children whose parents are alive and fulfilling their duties;
• if the parents are not deprived of parental rights;
• if the parents are not recognized in court as deprived of legal capacity, missing, or dead;
• when the parents did not express their consent to the procedure.

Such a requirement should not be observed in a situation where the parents are deprived of their rights regarding the child in accordance with the established procedure, or have lost their legal capacity.

The objective side also includes actions aimed at transferring children to persons who cannot be adoptive parents. The list of such persons is enshrined in Article 127 of the Family Code.

An object

The object is the family relationship that develops between the adoptive parent and the adopted child regarding their normal development and formation.

Subjective side

The subjective side can be characterized by guilt, which is represented by direct intent. This means that the guilty person understands that he has repeatedly carried out illegal activities related to adoption, and also wants to commit such actions.

Subject

The subject in this case is a sane individual who performs the functions of adoption, transfer of children into guardianship, trusteeship, and foster care.

Legal characteristics of the adoption procedure

According to the legislation of the Russian Federation, the following categories of minors can be adopted:

• parents died;
• mother and father are deprived of parental rights;
• dad and mom are declared incompetent (there is a corresponding court decision);
• there is a court decision recognizing the parents as missing or dead;
• the child is abandoned/abandoned (a corresponding document is required);
• the mother/father lives separately from the child and does not participate in his upbringing for at least 12 months, and has also provided written consent to transfer the child to the care of third parties.

Important! Citizens of Russia have the primary right to transfer children into guardianship. If it was not possible to find a suitable family for the baby on the territory of the Russian Federation, then adoption of children by foreign citizens is allowed.

Illegal actions aimed at transferring children into the guardianship of third parties can be understood as all types of violations of the requirements for the adoption procedure, which entailed socially dangerous consequences.

The danger of illegal actions lies in the fact that the well-being of the child is jeopardized, children’s rights are violated, and there is a risk of committing crimes against children (in 2013–2015, the problem of the unknown disappearance of adopted Russian children outside the Russian Federation was widely discussed on television). It also undermines trust in government bodies (the guardianship and trusteeship service, the municipality, which confirms the legality of transferring a child to a family), and provokes the development of corruption.

Legal problems of adoption of children by foreign citizens

As practice shows, the courts of the Russian Federation regularly consider issues of adoption of children by foreign citizens. In most cases, such applications are satisfied, but there are a number of features that must be taken into account:

1. The transfer of children to foreigners is possible only in the absence of Russian candidates for guardianship rights.
2. Adoption by foreign nationals of a child with Russian citizenship occurs in accordance with the legislation of their state. If spouses (adoptive parents) are of different citizenship, then the procedure takes place according to the laws of both states. If the adoptive parent is stateless, then the procedure takes place according to the law of the country in which he has permanent residence.
3. Foreign nationals can act only through representative offices determined by their state, which are licensed and operate on the basis of the family legislation of the Russian Federation.
4. Along with the documents required for all citizens to submit to the court, foreigners are required to provide an opinion from the competent authority of their state on the living conditions and the possibility of permanent residence of the child.

Government Decree No. 275 of March 29, 2000 - what actions will be considered a violation

Thus, persons who have committed the following types of violations may be held legally liable:

• the beginning of the adoption procedure for persons who cannot be transferred to the care of third parties (the list is presented above);
• allowing adoption by same-sex parents;
• transfer of consent to adoption by partners who are not in an official relationship;
• attracting intermediaries who, for an additional fee, facilitate the procedure (distribution of information in the media, search for applicants).

This list is not complete, since at each stage of the process violations may occur that jeopardize the well-being of the baby. Each individual conflict is considered personally.

Article 154. Remuneration for work at night

Determination of the Presidium of the Supreme Court of the Russian Federation dated November 19, 2003 N 48пв-03 Article 154 of the Labor Code of the Russian Federation regulates wages for work at night. This time is defined by the Labor Code of the Russian Federation as the time from 22 o'clock to 6 o'clock (Article 96). Based only on these norms, the court of first instance concludes that the amounts of payment for work on night and evening shifts are not defined in the articles of the Labor Code of the Russian Federation and, therefore, additional payments for multi-shift work should not be made.

Determination of the Constitutional Court of the Russian Federation dated November 24, 2005 N 418-O

In his complaint to the Constitutional Court of the Russian Federation, N.S. Kolpakov asks to check the constitutionality of articles , , , , , , 122, 123, 135, 154, 166, 167, 168, 169, 236, 237, 394, 395 and 396 of the Labor Code of the Russian Federation, indicating that his constitutional rights have been violated not by these - corresponding, in his opinion, to the Constitution of the Russian Federation - provisions of the Labor Code of the Russian Federation, but by the employer and the courts of general jurisdiction, which did not apply in his case those norms of the Code that were subject to application, and thereby denied him judicial protection. In addition, N.S. Kolpakov asks the Constitutional Court of the Russian Federation to interpret Article 154 of the Labor Code of the Russian Federation, since he believes that it was incorrectly interpreted by the judicial panel for civil cases of the Moscow City Court when considering his cassation appeal.

Review of judicial practice of the Supreme Court of the Russian Federation dated May 28, 2008

Question 4: Is compensation subject to compensation in accordance with Art. 152 - 154 of the Labor Code of the Russian Federation to employees of internal affairs bodies sent on a business trip to the North Caucasus region and participating in counter-terrorism operations and performing tasks to protect public order, their performance of official duties at night, weekends and holidays, as well as work beyond the statutory working hours?

Decision of the Supreme Court of the Russian Federation dated May 21, 2002 N GKPI2002-353

The procedure for calculating the time worked on the night shift, subject to additional payment, established by the same paragraph of the Resolution also does not comply with Art. 154 of the Labor Code of the Russian Federation. In accordance with the appealed paragraph, additional payment for work on the night shift must be made if at least 50 percent of its duration occurs at night (from 10 pm to 6 am).

Determination of the Supreme Court of the Russian Federation dated May 21, 2010 N 8-B10-2

As can be seen from the case materials and established by the court when resolving the dispute, T. has been working as a teacher of technological labor at the Municipal Educational Institution "Kamennikovskaya Secondary School" since June 1, 1990; since June 1, 2006, the plaintiff has also been performing part-time duties as a guard, in a 12-hour work shift according to the schedule approved by the defendant. The official salary (tariff rate) for the work of a watchman performed by T. is 1,913 rubles, which corresponds to the tariff rate (salary) of the 2nd category of the Unified tariff schedule for remuneration of employees of municipal institutions of the Rybinsk municipal region. Additional payments for work at night and on holidays were made to the plaintiff in accordance with the Regulations on remuneration of workers of the Kamennikovskaya Secondary School and the provisions of Art. Art. 153, 154 of the Labor Code of the Russian Federation. The law does not prohibit setting an official salary below the minimum wage. Additional payments to the plaintiff for work at night and on holidays are legally calculated in relation to the salary, while the plaintiff’s monthly salary as a watchman is no less than the minimum wage, there were no violations of the plaintiff’s labor rights.

Determination of the Supreme Court of the Russian Federation dated April 30, 2009 N 21-В09-10

By virtue of Articles 152 - 154 of the Labor Code of the Russian Federation, work at night, on weekends and holidays, as well as work outside normal working hours, must be compensated by increased pay. The court found that Aramisov A.Z. is an employee of the Ministry of Internal Affairs for the Kabardino-Balkarian Republic. From February 2, 2004 to November 30, 2006, he was involved in heavy duty duty, as well as work at night, weekends and holidays, but he was not paid for the specified time.

Determination of the Supreme Court of the Russian Federation dated April 30, 2009 N 21-В09-6

By virtue of Articles 152 - 154 of the Labor Code of the Russian Federation, work at night, on weekends and holidays, as well as work outside normal working hours, must be compensated by increased pay. The court found that Dogov Kh.M. Since December 23, 2002, he has been serving in the position of ... patrol regiment of the Ministry of Internal Affairs for the Kabardino-Balkarian Republic. During his service, he was repeatedly involved in overtime work, work on weekends and holidays, but this work was not paid.

Determination of the Supreme Court of the Russian Federation dated May 21, 2009 N 21-В09-5

By virtue of Articles 152 - 154 of the Labor Code of the Russian Federation, work at night, on weekends and holidays, as well as work outside normal working hours, must be compensated by increased pay. The court found that the plaintiffs, while serving in the riot police of the Ministry of Internal Affairs of the Kabardino-Balkarian Republic, on the basis of orders of the Minister of Internal Affairs of the Kabardino-Balkarian Republic, as well as orders issued on their basis by the commander of the riot police of the Ministry of Internal Affairs of the Kabardino-Balkarian Republic, were repeatedly subjected to overtime work and work on weekends and holidays, but the specified work was not paid.

Determination of the Supreme Court of the Russian Federation dated December 12, 2008 N 69-В08-12

Dyachok S.V. filed a lawsuit against the riot police of the Department of Internal Affairs for the Khanty-Mansiysk Autonomous Okrug - Ugra for the recovery of monetary payments for work beyond normal working hours, on weekends and non-working holidays, at night, compensation for moral damage, indicating that he During 2002 - 2004, he went on a business trip to the North Caucasus region and, while participating in counter-terrorism operations, performing tasks to protect public order, carried out his official duties overtime, on weekends and holidays, at night, therefore he has the right to receive compensation in accordance with with articles 152 - 154 of the Labor Code of the Russian Federation.

Determination of the Supreme Court of the Russian Federation dated October 3, 2008 N 59-B08-2

Thus, under normal conditions of service, police officers receive compensation for work at night, on weekends and holidays, as well as for work beyond the statutory working hours in accordance with Articles 152 - 154 of the Labor Code of the Russian Federation.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated February 15, 2021 N 69-KG20-17-K7

Artemyeva L.V. believes that by virtue of the provisions of Article 22 of the Law of the Russian Federation of June 26, 1992 N 3132-I “On the status of judges in the Russian Federation”, Articles 153, 154 of the Labor Code of the Russian Federation in the event of an employer’s refusal to provide days of rest (time off) for work on weekends, she has the right to double pay for work on these days. The Office of the Judicial Department in the Khanty-Mansiysk Autonomous Okrug - Ugra, exercising the powers of a representative of the employer (employer) in relation to justices of the peace, illegally refused to pay her double for work on the weekends on which she was involved in the performance of her duties in the administration of justice.

Corpus delicti

Illegal adoption is punishable under Article 154 of the Criminal Code of the Russian Federation. In order to qualify the actions of guilty citizens under this article, it is necessary to prove the presence of the full corpus delicti.

Optional characteristics

Additional signs - allow you to understand the mechanism and reasons for committing a criminal act, as well as its legal consequences. But they do not affect the possibility of bringing a citizen to justice. These include:

1. Victims under Art. 154 of the Criminal Code of the Russian Federation can only be a minor child, since his interests are violated and his well-being is called into question. But persons who have been denied adoption and persons who have become aware of a violation of the adoption procedure can contact the police in order to initiate a criminal case.
2. The motive may be selfish or not. If a criminal violates legal requirements in order to obtain personal gain, then the provisions of Article Art. 154 of the Criminal Code. If the reason for the violations is to speed up the adoption process in the interests of children, then criminal liability will not be applied.

Article 154 of the Criminal Code of the Russian Federation provides for the same punishment when an unlawful act is repeated and when it is committed for the first time. All sanctions are imposed within the framework of Art. 154. The exception is cases of facilitating illegal adoption (adoption) carried out without selfish motives, but to protect the interests of the children themselves. Then the guilty person will be released from criminal liability with the subsequent drawing up of a protocol under the article of the Code of Administrative Offenses of the Russian Federation (more details below).

Main cast

These are mandatory signs. The absence of at least one element excludes the possibility of bringing a citizen to criminal liability. These include:

1. The object of the crime is the sphere of social legal relations that the criminal encroaches on. In this case, these are the relationships that arise between adoptive parents and adopted children, a foster family and a person placed in foster care.
2. The objective side is a list of actions that may entail criminal liability. The norm does not provide a strict list of actions that indicate a criminal offense. In its clarifications, the Supreme Court points out that any violation of the procedure may become the basis for initiating a criminal case.
3. Subject is the person who committed the illegal actions. Thus, individuals, changeable citizens who have reached the age of 16 years can be held liable under this article (Article 20 of the Criminal Code of the Russian Federation). These include officials who prepare documents for adoption, adoptive families wishing to obtain custody of children, and other participants who contribute to the violation of adoption legislation.
4. The subjective side is the attitude of the perpetrators to the crime. Such violations can only be committed in the form of direct intent. That is, the criminal knew about the illegality of his actions, knew about their consequences and possible punishments, and wanted them to occur.

The corpus delicti is formal. This means that the offense is considered completed after the commission of illegal actions. For liability to occur, it does not matter whether the consequences occurred or not.

Illegal adoption of a baby: crime or offense

According to the Code of Administrative Offences, liability is established for illegal actions committed for the purpose of adopting children, placing them under guardianship or foster families.
Also, the punishment for this act is contained in the criminal law. Article 154 of the Criminal Code of the Russian Federation lists the types of sanctions that can be applied to the violator. However, it is worth noting that criminal legislation places emphasis on the fact that such an act is committed by a person repeatedly or they have selfish goals.

Penalties for illegal adoption under Art. 154 of the Criminal Code of the Russian Federation

If convicted, the judge may impose one of the following penalties:

• up to 40,000 fine (or the total amount of official income for a maximum of three months);
• no more than 360 hours of compulsory work;
• up to a maximum of 12 months of correctional labor;
• arrest up to 6 months.

Responsibility for total violations

Often, the actions of the perpetrators contain elements of several offenses. In this case, several articles are applied, and the punishment is chosen taking into account the sanctions of each norm by partial or complete addition of punishments - for the totality of crimes. So, liability under Art. 154 of the Criminal Code can go along with the following types of crimes:

• abuse of official duties – Art. 285 of the Criminal Code (for example, when an employee of the guardianship authorities gives preference to the applicant family due to personal interests contrary to the protection of the interests of the child);
• receiving a bribe - art. 290 (committing actions by officials for selfish motives, which includes not only the actual receipt of remuneration, but also the expectation of such by prior agreement);
• production of false documents or distortion of their contents – Art. 292 (will be applied only if there is a mercenary motive);
• adoption of a deliberately illegal decision by the court – Art. 305 (unreasonable refusal of adoption or satisfaction of an application contrary to the requirements of the law);
• drawing up false documents – Art. 327 (for example, producing false certificates stating that children have already been taken into the care of other persons).

Punishment under the Code of Administrative Offenses of the Russian Federation

If the act was committed for the first time and without a mercenary motive, then a protocol on an administrative offense under Art. 5.37 Code of Administrative Offenses of the Russian Federation. All participants who have committed a deliberate violation of the procedure - parents, potential adoptive parents, officials, as well as legal entities - can be held accountable under this rule.

The only penalty applied is a fine , which will differ for the following categories of violators:

• individuals (1000–2500 rubles);
• officials (4–5 thousand rubles);
• legal organizations (200,000–500,000 rubles).

Qualifying features

Article 154 of the Criminal Code of the Russian Federation contains two qualifying criteria:

• repeated commission of the actions in question, which means committing the act 2 or more times;
• selfish goal.

The court must establish:

• what norms the culprit violated;
• how exactly self-interest was manifested, for example, it could be a gift, reward, service;
• Are there any crimes that accompanied this act?

When these signs are not present, the act is considered an administrative offense and liability for it is provided for in Article 5.37 of the Code of Administrative Offenses of the Russian Federation.

Download for viewing and printing:

Article 5.37 of the Code of Administrative Offenses of the Russian Federation “Illegal actions to adopt a child, transfer him to guardianship (trusteeship) or to a foster family”

An example from judicial practice under Art. 154 of the Criminal Code of the Russian Federation

In 2005, a criminal case was considered in Vladivostok, initiated at the request of citizen A., the child’s mother (six months). The defendants in the case were a representative of the guardianship authorities and a hospital doctor in whose care the child was. The basis for going to court was a violation of the priority right of Russian citizens to adopt children over citizens of other states.

The woman filed an application with the guardianship authorities, wanting to regain her parental rights to the previously abandoned child. She was denied this opportunity, citing the fact that applicants for adoption had already appeared and the process of collecting documents had begun. As it turned out during the pre-trial investigation, the adoptive parents are US citizens.

As a result of the dispute, the child remained in Russia and was not transferred to the care of foreign citizens. Officials were held legally liable with penalties.

Crime concept

Responsibility for committing the act in question is provided for in the sanctions of Article 154 of the Criminal Code of the Russian Federation. In practice, lawyers claim that the norm in question refers to a type of blanket. This means that the norms enshrined in various legislative acts are violated. These include:

• chapters included in the Family Code, which deal with the identification of children who were left without parental care and their adoption;
• Convention containing the rights of children (ratification of this act applies to the USSR);
• Resolution No. 275, adopted by the Government in 2000.

Attention!
As a rule, the perpetrators of this category of crimes are persons who are involved in the transfer of children for adoption. Download for viewing and printing: Decree of the Government of the Russian Federation of March 29, 2000 No. 275 “On approval of the rules for transferring children for adoption and monitoring the conditions of their life and upbringing”