Уголовное наказание: понятие, цели, состав исполнения. Монография - [94]

Conclusion

The conducted study of the notion, contents, aims, issue of the executing criminal penalty and its features (elements) led to the following basic conclusions:

I. The list of features of the criminal penalty includes the following:

1) penalty is a legal consequence of a crime; 2) penalty is characterized by definite contents; 3) penalty possesses definite issue; 4) penalty possesses a definite form; 5) penalty is characterized by a definite order and causes of application (sentencing and executing) and servicing; 6) penalty brings definite consequences; 7) penalty is applied for definite socially positive aims: restoration of social justice, and for the correction of the convict and prevention of new crimes;

II. The Article of the Criminal Code of the Russian Federation needs to be amended by the following, “Bases for achievement of the aims of the criminal penalty is compulsion, bringing all the features of contents of sentencing, executing, servicing the penalty”;

III. The criminal penalty should be treated as:

– legal consequence of a crime, characterized by definite contents, essence, form, order and conditions of application (sentencing and executing) and servicing, causing definite consequences and bringing definite socially useful aims: restoration of social justice, correction the convicts and prevention of new crimes;

– a complex of provided by the law, inter-depended and inter-related features and elements (contents of sentencing, executing and servicing the penalty), characterizing its object, objective side, subject and the subjective side;

IV. It is necessary to eliminate the contradictions between the criminal (material) law and the criminal executive (procedural) law by introduction of all the deprivations, limitations, exchanges and additions of rights, legal interests and obligations of the convicts to the Criminal Code of the Russian Federation. Moreover, the Criminal Code of the Russian Federation should be amended by other deprivations, limitations, exchanges and additions of rights, legal interests and obligations of the convicts to all the types or to a definite type of a criminal penalty, provided by other regulative legal acts;

V. The possibility to change the penal issue of the criminal punishment as a result of arising definite circumstances, provided by the law, within the procedure of the executing and servicing the criminal penalty, should be reflected, first of all, in the material, i.e. criminal, law and then in the procedural – criminal executive law;

VI. In the Part 1 Art. 43 of the Criminal Code of the Russian Federation, it is necessary to point out, that the criminal penalty is applied to a person, found guilty in the commitment of a crime, and manifests itself in deprivation, limitation, exchange or addition of rights, obligations and legal interests of this person, provided by the Code in action;

VII. It is necessary to amend Chapter 9 of the Criminal Code of the Russian Federation by Articles 43¹, 43², 43³, 43⁴, including the following:

“Article 43¹. Restoration of Criminological Justice

1. Restoration of a criminological justice as a procedure is a rendering of legal rights, obligations and interests of a physical or legal person, society, state and the world community, violated by a criminal encroachment.

2. Means of the restoration of a criminological justice are: deprivation, limitation, exchange and addition of rights, obligations and legal interests of the convict, compensation of harm, being the result of a crime, denial to physical cruelty and abasement of human dignity as a purpose of the penalty.

3. Criteria of the potency for restoration of a criminological justice are the following moral and juridical index: a) attitude of a legislator to the committed criminal act and corresponding criminal penalty; b) attitude of the court towards the crime committed and the corresponding criminal penalty; c) attitude of the organ or instituting, executing the corresponding penalty for the committed criminal act, to the order and condition of its execution; d) attitude of a victim to the committed criminal act and the corresponding criminal penalty; e) attitude of the convict to the criminal act and a criminal penalty, provided for it; f) attitude of the society to the committed criminal act and order and condition of application (sentencing and executing) the corresponding penalty; g) attitude of the world community to the committed criminal act and order and conditions of application (sentencing and executing) of the corresponding penalty.

4. Restoration of a criminological justice is evaluated according to the following degrees:

1) high, i.e. at the level of sentencing and/or executing of the criminal penalty, the social justice is restored mostly – when achieving the aim of the criminal penalty in the form of the social justice, most of the legal rights, obligations and interests of a person, legal person, state and the world community are taken into account, and the convict does not need to service the full term of the penalty, sentenced by the court;