Уголовное наказание: понятие, система, объект назначения, состав отбывания. Монография - [70]

в) не желает, самонадеянно рассчитывает на то, что наказание не будет отбыто и последствия не наступят.

Conclusion

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

I. The list of the 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 43 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 criminal penalty), characterizing its object, objective side, subject and the subjective side;

IV. The system of the criminal penalty is characterized by seven basic features: 1) the system of penalty is a legal consequence of the system of crimes; 2) the system of penalty is characterized by definite contents; 3) the system of penalty possesses a definite issue; 4) the system of penalty has a definite form; 5) the system of penalty is characterized by a definite order and conditions of application and functioning; 6) the system of penalty brings definite consequences; 7) the system of penalty is applied for definite socially positive aims: restoration of social justice, and for the correction of the convict and prevention of new crimes;

V The contents of the system of penalty is characterized by the following elements: 1) the system of penalty is socially conditioned by contemporary conditions of social life; 2) the system of penalty represents a complex (variety) of elements (measures of punishment, definite sub-systems); 3) elements of the system of penalty are interdependent and interact with each other (are interchangeable, mutually exclusive and compatible); 4) elements of the system of penalty are defined only by the criminal legislation and only this way they could bee amended and liquidated; 5) the number of elements is full and is not to be expanded;

VI. A number of types of punishments and other measures, provided by the foreign legislation, could be also applied in Russia. They are: 1) punishments for the legal entities (liquidation, term-less or term restriction of activities for the legal entity, performance of definite obligations by the legal entity within a definite term, appropriation, fine, promulgation of the sentence, etc.), applied in Belgium, Lithuania, Moldova, the USA, France, etc.; 2) penalty in the form of deprivation of some political or civil rights, suchlike measures are applied in Argentine, Belgium, Netherlands, P.R. of China, Lithuania, Norway, Poland and other states; in order to modernize the system of penalty, it is advisable to use the penal impact of definite types of penalty, applied in Russia for a number of years (i. e. deprivation of right to take definite positions or restriction of activities, fine, etc.);

VII. The system of the criminal penalty should be understood as a legal consequence of the system of crimes, characterized by definite contents, essence, form, order and conditions of application, functioning, bringing definite consequences and taking for definite socially useful purposes: restoration of social justice, correction of the convict and prevention of new crimes;

VIII. The object of imposition of the penalty should be understood as elements of legal status (situation) of a person, adjudged guilty in a crime, i. e. rights, obligations and legal interests, provided with the penal impact by the criminal legislation;

IX. The Article 43 of the Criminal Code of the Russian Federation should be amended by the fourth part, including the following, “objects of imposition of the criminal penalty could not be: human’s right for life; human’s right to defense his health; human dignity of a person, guilty in a commitment of a crime; nationality of a person and exile from the country; freedom of conscience and religion; right of access of the convict; right of the convict to communicate with the outer world;