classification of punishments in the system of penalties

Classification of kinds of punishments has fundamental value and acts as one of bases of the system of penalties, forming its structure at level of the subsystems [134] developing from related each other to this or that sign of kinds of punishments.

Such subsystems have sufficient features for their differentiation, keeping thus close interrelation, supplementing each other and being elements of the complete system of penalties.

Theoretical and practical value of classification of punishments is defined, first of all, by that classification of punishments helps the legislator with construction of the system of penalties, and also serves as auxiliary means at a standard formulation of many
Institutes of the General part of the criminal law (in particular, awardings punishment, probation, clearing of punishment etc.) also promotes accurate designing of sanctions in articles of the Special part [135].

As it was marked above, in the current legislation kinds of punishments are classified on three groups - the basic, additional and mixed, i.e. such which can be applied in quality as the basic, and additional. This classification is fixed in the Russian and South Korean criminal laws, besides in UK the Russian Federation is available the special article accurately defining a place of each of kinds of punishments in classification (item 45 UK the Russian Federation).

As the basis for the named classification of kinds of punishments awarding punishment rules in this connection it is possible to name it praktikoyoorientirovannoj serve. The basic punishments are the centre of retaliatory influence, being appointed independently whereas additional punishments play an auxiliary role, allowing most precisely to consider features of a concrete crime and in the best way to individualise responsibility for made his face [136]. Allocation of a subsystem of the mixed punishments gives to the system of penalties the big flexibility of application, giving to court possibility to define the basic or additional character of this or that punishment depending on circumstances of business in cases, statutory.

Division of punishments into the basic and additional is peculiar for the continental law countries (the romano-German legal family) to which number it is quite possible to carry as the Russian Federation, and Republic Korea (at least, to the given sign). Except the basic and additional punishments accessory punishments which are are allocated also
"Automatic" consequence of some the basic punishments [137], besides they are included into the system of penalties as separate punishment, however can not be specified by court in a sentence, relying something self-evident.

According to classification of kinds of punishments in the Russian legislation the cores are nine of thirteen punishments, namely: obligatory works, correctional labour, restriction on military service, forced hard labour, arrest, the maintenance in disciplinary military unit, imprisonment for certain term, lifelong imprisonment and a death penalty (ch. 1 items 45 UK the Russian Federation). One punishment - deprivation special, military or an honorary title, a class rank and the state awards (ch is additional only. 3 items 45 UK the Russian Federation) [138]., that is applied in quality as the basic, and additional, three remained punishments - the penalty are mixed, the debaring to occupy certain posts or to be engaged in certain activity and freedom restriction (ch.

2 items 45 UK the Russian Federation). The resulted classification is closed and exhaustive [139].

The criminal legislation of Republic Korea formally carries to number of the cores all punishments, except a confiscation (^^), specifying on additional character of last in separate article (item 49 UK RK). However at the analysis of the South Korean system of penalties it is possible to conclude, that the basic punishments are only a death penalty (L} ^), a hard labour (^^), imprisonment without corrective work (^^) and arrest (^^). Practically all other punishments can be applied as as the cores, and additional.

The reservation has "practically been used so far as, as
Punishment in the form of the deprivation (7} ^^ - ^) is even not additional, and accessory, "automatically" supplementing a death penalty (that in connection with the moratorium operating in Republic Korea on death penalty execution is completely not superfluous - the person can be condemned to a death penalty and in this case is exposed to imprisonment with a special mode of the maintenance, it is termless being in execution expectation), a lifelong hard labour and lifelong imprisonment without a hard labour (ch. 1 items 43 UK RK), never meeting independently in articles of Special parts of South Korean criminal laws and not demanding for application of special instructions in a court sentence. Here pertinently to notice, that automatic character of punishment in the form of the deprivation is characteristic line of the criminally-legal systems which have tested influence of the French legislation [140] to which, thanks to taking place "intermediary" of Japan, it is possible to carry to a certain extent and the Korean legal system.

Punishment in the form of stay of the rights) is mixed.

So, for example, the sanction of item 105 UK RK (^7], ^; violation over

National flag or the arms) provides as one of alternative punishments stay of the rights for the term up to ten years, i.e. the given punishment in this case can be appointed as the core. At the same time in the sanction of item 124 UK RK (^^ I] H, the arbitrary arrest

Or false arrest) stay of the rights is established as the additional punishment appointed together with a hard labour for the term up to ten years (a hard labour under given article can be appointed for the term up to seven years). Besides, here it is necessary to notice, that punishment in the form of stay of the rights has certain accessory lines, as at condemnation of the person to imprisonment (in any form) for certain term of its right stop before punishment departure even without appointment of additional punishment in the form of stay of the rights.

In the criminal legislation of Republic Korea punishments in the form of the penalty (and the small penalty (^^) are mixed also. The penalty can be appointed as the basic punishment, acting as alternative to imprisonment to certain term (as a rule, having low enough źthe bottom lath╗ - from one year). For example, the sanction of item 115 UK RK (^^; participation in disorders) provides possibility of appointment of imprisonment (in any form) or the penalty. The penalty can be defined and as unique punishment in article sanction that takes place, for example, in item 170 UK RK (^^; ignition owing to a negligence). Possibility of an infliction of penalty as additional punishment is separately reserved in a number of articles of Special part UK RK. So, for example, in item 204 UK RK it is underlined, that the penalty can be appointed in addition to imprisonment for fulfilment of the crimes connected with illegal circulation of opium (░} ^7 7; chapter 17 UK RK) [141].

The small penalty, in turn, is established as the basic punishment in a number of sanctions of articles of Special part UK RK. For example, in the sanction of item 245 UK RK (^7 ^^; public obscene action) the small penalty can be appointed on a level with a hard labour, the penalty and arrest. At the same time in the Republic Korea law źAbout offences╗ (777 777; is somewhat analogue of the Russian Code about administrative violations), leaning against the system of penalties from UK RK, contains position that in certain circumstances (depending on the person condemned etc.) can be applied simultaneously arrest and the small penalty, besides arrest in such situation represents itself as the basic punishment, and the small penalty - as additional (item 5 of the Law of Republic Korea about offences).

Thus, in the criminal legislation of Republic Korea
Classification of kinds of punishments looks as follows: the death penalty, a hard labour, imprisonment without corrective work and arrest are the basic punishments; a confiscation - additional punishment; stay of the rights, the penalty and the small penalty - the mixed punishments; the deprivation - accessory punishment.

It is necessary to repeat, that the South Korean criminal legislation does not contain accurate classification of kinds of punishments, and the classification presented above is received on the basis of the independent analysis of the various norms concerning area of criminal law. At the same time the Russian criminal legislation fixes classification of punishments in one norm that the Russian Federation is important advantage UK. Probably, it is a consequence of the high degree of theorization of the Russian criminal law absolutely alien to the South Korean law, not containing, for example, even concepts of a crime and punishment.

Likeness or, otherwise, similarity of separate kinds of punishments to the diversified signs, whether it be affinity of the retaliatory maintenance (i.e. type and volume of the rights condemned, which are limited to punishment), or features of appointment besides that has been considered above (for example, on a circle of persons to which they can be applied), can form set more or less independent bases of classification of the punishments which are allocated, first of all, in the doctrine of criminal law and not being legal (fixed in the law).

For example, as the classification basis character of deprivations (pravoogranicheny) to which the person is exposed at appointment and punishment execution (it, in particular, moral influence, restriction of the rights, material deprivations, restriction or imprisonment etc.) can be selected. By the classification basis the perpetrator who is punished also can be selected, and then punishments are divided into the general and special, where the general are appointed to any person (i.e. to the general perpetrator), and special - a certain category of persons (i.e.
To the special subject) [142].

Classification of punishments by character of deprivations or, otherwise, under the maintenance of a retaliatory element, can assume the laconic and as much as possible generalised division of all kinds of punishments into two groups - property and personal. The most widespread now examples property and personal punishments are the penalty and imprisonment, accordingly. It is important, that the given classification admits at the international level and finds reflexion in the international legal acts, in particular, in item 73 of the Convention of the United Nations on a marine law from December, 10th, 1982 [143]. Named article of the Convention fixes an interdiction of application by the state-participants of the agreement concerning infringers of laws and fishery rules in the exclusive economic area of imprisonment and other forms of personal punishment [144], carrying thereby imprisonment (imprisonment) to number of personal punishments and on sense of some other positions of the Convention contrasting these punishments material (to the penalty, confiscation, etc.).

It is necessary to mention also classification of punishments by character of penitantiary influence in which frameworks the punishments connected with attraction condemned to obligatory work are allocated, and punishments, with attraction to work not connected [145]. This classification is based that (to be exact - labour activity as that) traditionally is considered socially useful work one of the major means
resotsializirujushchego influences on condemned [146], that finds reflexion in the criminal and criminally-executive legislation of many countries, including the Russian Federation and Republic Korea.

Classification of kinds of punishments by their severity, being a logic consequence of classification of crimes on severity level is possible, at last. So, chetyryohurovnevaja classification of crimes by the severity level, accepted in the Russian criminal law (the crimes of small, average severity levels heavy and especially grave crimes) quite could become a basis for allocation in the system of penalties of four categories of kinds of punishments on severity degree - less strict, average severity, strict and especially strict [147]. Besides levels there can be any quantity, and N.S.Tagantsev noticed, that systems of penalties (operating in imperial Russia and foreign, accepted in the end of XIX - the beginning of XX centuries) supposed not only division źon floors╗, but also and the every possible branchings explained by set of foreign factors, besides only one criterion of forming of a direct ladder of punishments in compliance with property of the blessings knocked with them [148].

For classification of kinds of punishments by degree of severity compulsory condition is their correlation with severity levels of crimes. Here pertinently to mention, that discrepancy of the criminal law (and the basic criminally-legal institutes constituting it) to public consciousness reduces its value in crime control, and in public consciousness there is a representation about necessity of an establishment of an accurate parity between severity of punishments with the social danger of crimes [149], i.e. classification of punishments by severity degree is claimed.

Similar classification could be included in UK the Russian Federation (in
To republic Korea as it was already marked, the law does not contain accurately certain classification of punishments, and it is equal and kategorizatsii crimes) within the limits of the complex reform changing not only classification of kinds of punishments, but also kategorizatsiju crimes, allowing to order Special part UK the Russian Federation, having excluded from it many contradictions. To a category of crimes followed correlate with severity level of punishments, proceeding from social value of object of a crime, having established tryohzvennuju system. For example, crimes against a life could be recognised by heavy (the greatest social value; all crimes in that case would share on heavy, average and small weight), attracting punishment of high degree of severity (the greatest degree of severity to which followed carries the punishments connected with urgent and termless imprisonment; All punishments would share on punishments of high, average and low degrees of severity), and sanctions of articles of Special part UK the Russian Federation in that case would contain not the list of alternative punishments, and instructions on degree of their severity (i.e. ch. 1 item 105 UK the Russian Federation would be formulated so: źMurder, that is deliberate causing of death to other person, - attracts punishment of high degree of severity╗).

In the criminal law doctrine attempts to constitute universal and universal classification of kinds of the punishments, approaching to all existing national systems of penalties were undertaken also. So, similar classification can contain following punishments: (1) connected with the deprivation of life; (2) kalechashchie and painful (corporal punishments); (3) connected with imprisonment; (4) freedom connected with restriction; (5) property; (6) connected with deprivation or restriction of the rights; (7) connected with moral influence; (8) mixed (for example, exclusion of the foreigner from the country) [150].

Besides the considered bases of classification of kinds of punishments the bases defined on fundamentals of legislation and are allocated also
Depending from: possibility or impossibility of an establishment of punishment for certain term (i.e. urgent and termless, izmerimye and immeasurable); to possibility of replacement of one punishments by others, and it is equal also replacements of punishments with other measures of legal influence; possibilities conditional or uslovnoyodosrochnogo clearings condemned from enduring the punishment; possibilities of conditional awarding punishment [151].

For the present work pertinently to offer the classification of the punishments, allowing to group the Russian and South Korean kinds of punishments within the limits of rather-legal research. In such classification it is expedient to allocate four groups of punishments: the punishments connected with restriction and imprisonment, and also work condemned (imprisonment for certain term also is termless, freedom restriction, South Korean punishment in the form of arrest, various kinds of works); the punishments connected with restriction and deprivation of property and other rights (various kinds of penalties, a confiscation, deprivation and stay of the rights); military punishments (the Russian special military punishments and the South Korean punishments applied to the military men); inapplicable punishments (a death penalty and the Russian arrest). The offered classification has, first of all, local value and forms a basis of structure of the second chapter of the present research.

So, the South Korean criminal legislation, unlike Russian, does not contain accurate official classification of kinds of punishments (by rules of appointment or other basis) which can be received only at the analysis of norms UK RK and of some special laws. Thus, if in the Russian Federation such classification assumes division of kinds of punishments into three groups in Republic Korea of groups can be allocated four - the basic, additional, mixed and accessory punishments.

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A source: Dobryakov DENIS ANDREEVICH. SYSTEM And KINDS of PUNISHMENTS UNDER the CRIMINAL LEGISLATION of the RUSSIAN FEDERATION And REPUBLIC Korea (rather-LEGAL ANALYSIS). The DISSERTATION on competition of a scientific degree of the master of laws. Moscow - 2018. 2018

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