Уголовное наказание: понятие, цели, состав исполнения. Монография - [96]

2. Means of general prevention of crimes are: restoration of rights, on of social justice, deprivation, limitation, exchange and addition of rights, obligations and legal interests of the convict, correctional impact onto the convict, deterrence by the fact of legislative recognition of the penalty for illegal acts, sentencing of the penalty to the convict for the committed crime, inevitability of application of the criminal penalty to the convicts.

3. Criteria of the attaining the goals of the general prevention of crimes could be moral and juridical index, such as:

a) attitude of the society to the legislative recognition of penalty and to the sentencing of penalty: admission by the members of the society the court-appointed penalty to be adequate, presence of a sense of fear to the penalty within the members of the society by the recognition of the very fact of the law and the imminent penalty for the commitment of crimes, its inevitability, its gravity, etc.;

б) attitude of the society to the order and conditions of servicing the criminal penalty: admission by the members of the society the order and conditions of servicing penalty to be just;

в) attitude of the society to the correctional impact onto the convict, and educational impact of a criminal penalty: admission by the members of the society of the corrective potency of the convict, the presence of re-educative potency within some juvenile convicts; recognition, but not fear of the members of the society, of inexpediency of crime because of its punishability.

4. Existence of general prevention of crimes should be evaluated according to the following degrees:

1) high level, i.e. the aim of the penalty in the type of general prevention of crimes is practically achieved – the members of the society admit the court-appointed penalty to the convict to be just, they don’t commit crimes because of the fear for penalty, because of the recognition of the existence of the very fact of the law, thundering by the penalty for committed crimes, its inevitability, gravity, etc.;

2) middle, i.e. the aims of the penalty in the form of the general prevention of crimes is partially achieved – the members of the society admit the court-applied penalty to be just, don’t commit crimes only because of the fear for penalty;

3) low, i.e. the aim of the penalty in the type of the general prevention of crimes is partially achieved – the members of the society don’t commit crimes only because of the fear for penalty, don’t follow the requirements of a number of legal norms;

4) zero, i.e. the aim of the penalty in the form of the general prevention of crimes is not achieved – the members of the society, regardless of the appointed penalty to the convict, are intend to commit crimes”;

VIII. It is necessary to make changes and amendments to the Part 2 Art. 43 of the Criminal Code of the Russian Federation, “The penalty

should be applied in order to reestablish criminological justice, correction of the convict, its re-socialization, prevention of commitment of crimes both by the convicts and others, involved to counteraction to criminal delinquency, and in order to maintain criminological safety”;

IX. The structure of criminal penalty execution is a complex of law-provided objective and subjective features (elements), characterizing execution of measures of state compulsion as a type of a concrete form of penalty (for example, executing of compulsory working, correctional working, deprivation for freedom for a definite term, etc.);

X. The structure of executing of a criminal penalty has a definite sense: first, compulsion, possessing all the features of the structure all penalty execution, is a basis for achievement of aims of the criminal penalty; second, compulsion, possessing all the features of the structure of penalty execution, provided by the Criminal and Criminal Procedural Code of the Russian Federation, is a basis for penalty execution (as a result); third, the structure of penalty enables to limit and perfect the procedure of execution of a concrete type of a criminal penalty:

XI. The object of penalty execution should be understood as elements of legal status (state) of the convict, i.e. rights, obligations and legal interests of the convict, provided by the court for penal impact on the side of the institution or an organ, official, executing criminal penalties;

XII. The conducted analysis of the objects of the execution of the criminal penalty enables to point out a number of problems: first, rights, obligations and legal interests, applied by the court for penal impact, according to the criminal executive legislation, could be changed by an institution or an institution, executing this or that type of penalty, which is downright illegal to the Part 1 Art. 43 of the Criminal Code of the Russian Federation, according to which the penalty is a provided by the acting Code deprivation or limitation of rights or freedoms of this person; second, within the execution of the criminal penalty,