<<
>>

§ 2. Concept, legal nature and social conditionality of is conditional-preschedule clearing of punishment

Disintegration of Soviet Union and occurrence of the Union of Independent states were accompanied by destruction of social institutes of the state existing earlier, a withdrawal from the administrative methods of its management which have created conditions for democratic development of the sovereign states.

Together with it the right as the social institute, was in great need in radical
transformations, in view of declaration of a principle of legality as Constitutions of Russia and Belarus as one of main principles of existence of a lawful state. The above-named reasons have led to revision of the purposes of the criminal policy, and also to reduction of the criminal legislation in conformity to the purposes accepted by new criminal codes of Russia and Belarus which are pursued by punishment under criminal law. The confidence grows in public consciousness, that mass application of imprisonment is not unique means of crime control. And punishment should be rigid, but not severe. In this connection kinds of punishments alternative to imprisonment for the persons who have broken the criminal law are considered. Is conditional-preschedule clearing of punishment also has undergone to steadfast attention from scientific community and the legislator. Thus, we will note, constants of modification of item 79 UK and 90 UK RB show the Russian Federation, that interest to the given kind of clearing of punishment does not weaken.

Speaking about the legal nature of is conditional-preschedule clearing, first of all we consider necessary to pay attention as a whole to punishment institute, as is conditional-preschedule clearing inseparably linked with it. For this purpose it is expedient to consider punishment maintenance, and also those restrictions which are imposed on condemned at adjudgment. Besides, besides achievement of the specified purpose it is necessary to consider the problem on definition and unification of terminology of institute of is conditional-preschedule clearing. In a context of the told we will notice, that there are divergences in the criminal legislation of Russia and Belarus where differences begin in the name of the specified institute. If according to item 79 UK the Russian Federation the given kind of clearing is called «as is conditional-preschedule clearing of enduring the punishment» in the criminal legislation of Belarus, in item 90 UK RB, the given kind of clearing is conditional-preschedule clearing of punishment »is defined as«. As a matter of fact, the term «clearing of enduring the punishment», specified in item 79 UK the Russian Federation, assumes clearing only from serving from punishment, but
not from the punishment. That is, according to the logic of the legislator the condemned is released only from enduring the punishment, but not from the punishment. However, the term "enduring the punishment" in the scientific literature means, that it is turned to condemned which should fulfil imposed on them a sentence of court of a duty, and also not to make actions of the actions forbidden by rules of law. [52] Thus, according to N.A.Struchkova «enduring the punishment is preterpevanie penalties condemned, submission pravoogranichenijam». [53] Told allows to draw a conclusion that on the term «clearing of enduring the punishment» narrow enough on the semantic value in relation to the term «clearing of punishment», that speaks about expediency of use of the given term in relation to is conditional-preschedule clearing.

Thus, in view of expediency term use «clearing of punishment» instead of «clearing of enduring the punishment» with reference to is conditional-preschedule clearing the author of dissertation suggests to use this term both in the scientific literature, and in pravoprimenitelnoj activity.

it is well-known, that crime control in a lawful state should be under construction on the basis of a principle of inevitability of punishment. And the system of measures of crime control should be built on such basis that the person potentially ready to fulfilment of punishable act, understood, that its wrongful acts will be punished. In a case when the person who has committed a crime, is detained according to the legislation, it comes under to criminal prosecution with application concerning it corrective measures of influence for its reintegration in a society. In case of the detention of the person which have violated the law and its recognition in a statutory order guilty of committing a crime, to it the measure
the punishments, corresponding to the social danger of a perfect offence should be appointed. The court, awarding punishment, considers set of the factors, one of which is the social danger of the person who have committed a crime. It is reference model of a criminally-legal policy of the state. At the same time, at awarding punishment the court not always can estimate degree of the social danger of the person who have committed a crime owing to what there is a possibility of adjudgment of more strict, than it is required. In that case in the course of departure of punishment the person has a possibility to prove, that its person has changed in a positive side and any more does not represent the social danger for a society. In the criminally-executive right there is a number of criteria at which presence the court comes to conclusion about inexpediency of the further enduring the punishment condemned in view of loss of the social danger of the last. After loss of the social danger of the person, condemned has the right to softening of conditions of the enduring the punishment appointed originally a sentence vessels, up to UDO.

At the same time in legal scientific circles there is no uniform understanding of essence of is conditional-preschedule clearing of punishment, that in turn generates inconsistent approaches to formation pravoprimenitelnoj experts. The specified problem questions are confirmed with the analysis of the scientific literature. A number of scientists carries UDO to incentive norms of legal influence on the condemned. So, V.V. Skibitsky writes, that the criminal policy assumes some variants of its realisation: in process of increase of the social danger of perfect crimes the legislator is guided by criminal liability strengthening, and in case of achievement of the purposes of punishment therefore problems of the criminal legislation return process - criminal liability softening are reached. [54] the Given treatment assumes wide use of a principle of the humanism, expressed not
only in softening of a mode of the maintenance for condemned and reduction of conditions of serving condemned according to the punishment purposes, but also use in practice of system of stimulus pravoposlushnogo behaviour condemned which includes is conditional-preschedule clearing. A.I.Rarog also holds the opinion that clearing of punishment is one of measures of economy of criminal reprisal, display of a principle of the humanism, which essence consists in stimulating correction of the person, and after achievement in the course of execution of punishment of the bases provided by the criminal law to the given person can be applied conditionally-parole from the further enduring the punishment [55] . Opinions, that ­ uslovnodosrochnoe clearing of punishment is the humanism certificate in relation to the person who has committed a crime also A.A.Smerdovym is supported also. [56]

However the humanism is not the basic argument of granting of clearing conditionally-ahead of schedule. The criminal legislation fixes, that the person condemned to punishment can be released even if it and was not corrected, therefore the punishment purposes are not reached - having reached the expiration of sentence appointed court. However, for stimulation pravoposlushnogo behaviour condemned the criminal legislation establishes possibility of its parole that allows to lift efficiency of the appointed punishment on new level. Thus we will notice, that the given norms are called as incentive [57] . Hence, specified in criminally-rules of law desirable acts of the condemned influence possibilities of is conditional-preschedule clearing. Against told it is enough diskussionno the statement of the Belarus scientific M. of Century Homicha, concerning application of is conditional-preschedule clearing concerning condemned
to the imprisonment, approving, that the huge social costs connected with application of imprisonment (its appointment and the subsequent clearing), cause of optimisation of terms of imprisonment in such limits when imprisonment for certain term will be perceived by the criminal as is realised-effective suffering for the committed crime and will not lead to irreversible mental accustoming by a life in the conditions of isolation from a society, moreover and among similar criminals-condemned. At such approach the term of imprisonment defined by court should not be corrected - condemned should serve time completely and up to the end. Is conditional-preschedule clearing of punishment in the form of imprisonment should be applied in unusual cases, and the bases and conditions of its application should be changed (for application of the given kind of clearing it is necessary to leave in all cases not less than three quarters of the penal term, without fail to found a job and work or carry out feasible community works) [58] . The given statement about application of is conditional-preschedule clearing as parole sole penalty Is represented not absolutely true whereas condemned the administration correctional facilities effective, and the main thing of humane means on management of collectives spetskontingenta the establishments entrusted to it loses stimulus to positive, pravoposlushnomu to behaviour, and.

In this case it is visible, that is conditional-preschedule clearing acts as the lever by means of which on the condemned the influence stimulating it for work on psychophysical correction over self is carried out. At the same time for all-round studying of essence of is conditional-preschedule clearing it is necessary to consider it through a prism of institute of punishment.

Fixing a sentence is fixed in item 43 UK the Russian Federation and item 44 UK RB. [59] According to it punishment possesses a number of signs which matter for definition of the legal nature of is conditional-preschedule clearing. Them are: 1) punishment is a measure of the state compulsion; 2) punishment is appointed exclusively on a court sentence; 3) punishment is applied to the person recognised guilty of committing a crime; 4) punishment consists in provided UK the Russian Federation and UK RB deprivation and restriction of the rights and freedom of this person. The conventional position of a criminally-legal science is fastening of a principle of inevitability of punishment which is expressed that each person recognised guilty of committing a crime, comes under to punishment or other measures of the criminal liability. Positions UK the Russian Federation and UK RB regarding a formulation of the purposes of punishment are similar [60] . The punishment purposes are: 1) social justice restoration; 2) correction of the person who have committed a crime and 3) prevention of fulfilment of new crimes. We will notice, that at awarding punishment to the person who has committed a crime, court defines penalty volume, sufficient for its correction. However the punishment purposes can be reached and before expiration of sentence. In the course of enduring the punishment the person can prove the correction before the expiration of the penal term appointed court, and also to prove readiness to lead pravoposlushnyj a way of life after clearing. At the same time, having corrected, the person of the condemned loses the social danger therefore measures of corrective influence on it lose the utility. In this case the further enduring the punishment is not represented
expedient. Somewhat the further serving by the corrected person will be harmful to it as it is far from a family, a habitual social environment and continues to undergo on itself retaliatory influence. It is necessary to note also and the restrictions imposed on condemned to imprisonment which are: 1) a premise condemned in a society of people with negative antisocial installations and the duty to live in this society not at own choice; 2) necessity to build the life according to a mode of enduring the punishment which is defined by the criminally-executive legislation; 3) absence of normal contacts to persons of an opposite sex; 4) absence of a choice of a sort of professional and other activity [61] . We will agree with JU.M.Tkachevsky who approves, that in case the punishment purposes have been reached and there will be no clearing such punishment becomes harmful for condemned: not only inhumane, but also unfair [62] .

It is represented correct, in our opinion, JU.M.Tkachevsky's position of that imprisonment (and on it the most part of cases of clearing of punishment conditionally-ahead of schedule is necessary) possesses as positive, so negative qualities. The scientist carries to the positive moments that: 1) in the places of confinement for the purpose of correction realisation of educational process both on separate condemned, and on groups is possible; 2) in the places of confinement probably attraction to work and training of the condemned; 3) imprisonment pursues also the purpose of the prevention of fulfilment of new crimes. Negative properties of imprisonment concerns: 1) the condemned is isolated from a habitual environment with sharp change of conditions of a life and work; 2) the collective to which the condemned gets develops not of the best individuals owing to what upon its mentality puts pressure as the fact of imprisonment, and
negative influence of supporters of underworld. However the scientist does a conclusion - the mankind yet has no possibility to refuse imprisonment application, as punishment under criminal law. Hence, the primary goal is easing of negative properties of the given kind of punishment and increase of its efficiency [63] .

Thus, for effective influence of punishment on the person condemned, and also for achievement of the purposes of punishment the measure of retaliatory influence on the condemned has defining value. Application UDO in the course of punishment execution "registers" the fact of achievement of the purposes of punishment. Simultaneously there is a clearing condemned from pravoogranicheny the retaliatory character, imposed on it a court sentence.

the Aforesaid allows to draw a conclusion that UDO allows to individualise punishment. Also application UDO allows to execute better punishment, reducing thus its karatelno-repressive component.

Definition of the legal nature of is conditional-preschedule clearing of punishment is expedient for beginning with the analysis of positions on this question of scientists of pre-revolutionary Russia, the Soviet state, and also the period after disintegration of the USSR and formation sovereign Russia and Belarus. However at definition of the legal nature of the given kind of clearing of punishment the main difficulty consists that among researchers there is no common opinion on this question, and also that they use not absolutely identical terms, describing the given legal kind of clearing of punishment: « Clearing of punishment » [64] ,« clearing of enduring the punishment » [65] ,« clearing from
the further enduring the punishment » [66] ,« clearing of enduring the punishment continuation » [67] ,« clearing of punishment execution ». [68] Therefore in the term« is conditional-preschedule clearing »is pawned other semantic value. It is possible to explain such situation to that historically ­ uslovnodosrochnoe clearing has appeared as criminal law institute, however subsequently norms about to be regulated began conditionally-parole other branches of law: criminally-executive and criminal procedure. It is represented, that with evoljutsionirovaniem criminal law, transformation of sights about essence of the given institute in scientific community occurred allocation from it other branches also. The criminal policy constantly develops, entering into practice of its realisation new methods that leads to occurrence of the opposite points of view, concerning the legal nature of is conditional-preschedule clearing. In special researches opinions that the institute of is conditional-preschedule clearing of punishment is a stage of progressive system of enduring the punishment, by the form of clearing of enduring the punishment, a stimulus of positive behaviour condemned, a legitimate interest condemned were expressed.

Attempts of definition of the legal nature have started to be undertaken in pre-revolutionary Russia. From the very beginning of institute occurrence ­ uslovnodosrochnogo clearings of punishment in Russia experts saw in it the criminally-legal sanction encouraging positive behaviour condemned. So, already by Law working out «About conditional parole» 1909, the given institute considered as an element of progressive system of serving
punishments. In particular, at bill representation «About conditional parole» in G osudarstvennuju the Duma in an accompanying note it was said, that «Is conditional-released before the certain moment is under special threat of return to prison and under obligatory supervision; Thus, conditional release on the one hand, does not relieve guilty of retaliatory influence, and on the other hand, serves as means of test of durability of results of the prison maintenance, keeps condemned from relapse and hardens in it a habit to a fair and respectable life on freedom » [69] . Following further to the logician of the legislator,« is conditional-released it is laid down in such conditions when returning to a defect and crime way becomes the extremely inconvenient to it in a term current neotbytogo » [70] . Thus, essence of institute ­ uslovnodosrochnogo clearings of punishment the legislator of that time saw in an establishment of threat of return back in prison which should keep the person released from punishment is conditional-ahead of schedule, from unlawful conduct and to develop at it a habit to pravoposlushnomu to behaviour which by the end of term of conditional release should be fixed in its consciousness.

A.A.Piontkovsky named institute of is conditional-preschedule clearing of punishment by a light product of criminally-legal evolution and has defined it as a final stage of execution of punishment in the form of imprisonment [71] . Agreed with it and M.A.Efimov who considered, that retaliatory influence of execution of punishment proceeds, though and in softer form [72] . K.A.horned owl writes, that the legal nature of institute of is conditional-preschedule clearing of punishment consists that it interrupts or stops process
the negative legal effects coming for condemned, committed crime. Condemned ahead of schedule it is released from punishment not certainly, and on certain conditions. Therefore the given scientist joins the point of view of the authors approving, that UDO possesses penalty signs, that is is capable to limit a legal status conditionally released, not being thus to punishment [73] . According to S.M.Rashidova, the point of view concerning is conditional-preschedule clearing of punishment as enduring the punishment forms it is insolvent as in case of fulfilment by the person released from punishment it is conditional-ahead of schedule during not left part of punishment of the new deliberate crime, the given person will partially serve time for the same crime [74] twice.

Many researchers carry institute of is conditional-preschedule clearing of punishment to the progressive form of enduring the punishment, So, O.I.Bazhanov in particular, has defined progressive system «as the certain, precisely regulated order of execution of imprisonment with classification and the separate maintenance condemned in different kinds ITU, at which for the condemned enduring the punishment conditions in the best (or the worst) the party depending on its correction (or neispravlenija) with granting of possibility of parole with the help organisation released (patronage) and an establishment behind it of supervision and supervision» [75] change. According to the Island of Century Konkinoj, is conditional-preschedule clearing of punishment is a kind of clearing of the punishment, being a measure of the state encouragement and the higher step of progressive system of the enduring the punishment, applied only court to condemned with steady positive behaviour and having the purposes correction stimulation, fastening of results
corrections and the prevention of fulfilment by them of new crimes. In this connection the scientist does a conclusion, that the institute of is conditional-preschedule clearing of punishment the difficult independent institute concerning the category interbranch, for equally mentions questions of the material (criminal) right (the maintenance, a condition and the basis of application of this institute), the criminally-executive right (preparatory procedure of representation to is conditional-preschedule clearing of punishment) and ­ ugolovnoprotsessualnogo the rights (procedure of is conditional-preschedule clearing of punishment) [76] . The M. Item Malines also considers clearing of punishment conditionally-ahead of schedule as the higher step of progressive system of enduring the punishment concerning the condemned, general in corrective colonies general, strict and special modes [77] . Supporters of progressive system of enduring the punishment result at first sight sensible arguments in favour of that the institute of is conditional-preschedule clearing of punishment concerns the progressive form of enduring the punishment. For example O.V.Konkina approves, that is conditional-preschedule clearing of punishment is a measure of the state encouragement which is applied only by court. In this connection the researcher does a conclusion that the specified kind of clearing of punishment is a measure of the state encouragement at the level, concerning progressive system of enduring the punishment (so-called system of social lifts) [78] . According to P.M.Malina to get under action ch. 1ñò. 79. UK the Russian Federation the condemned should prove administrations corrective
intention establishments to the prompt clearing, and correctional facility administration on the basis Wick the Russian Federation is obliged to find out and estimate its correction: « And only the finding condemned in “the higher stage”, or in facilitated, or concessionary terms can testify to possibility of application of is conditional-preschedule clearing » [79] . S.V.poznyshev in this occasion wrote the following«... Possibility to reduce the term, appointed condemned, is strong stimulus of good behaviour in prison, deduces the criminal from apathy and forces it to aspire actively to transition in that higher category or a class, stay in which grants the right to count on conditional freedom » [80] . So, on sense of the given statement possibility of clearing of punishment conditionally-ahead of schedule stimulates condemned independently and actively to work over itself and to try to deserve the right to pass in« the higher class », as constitutes an essence of progressive system of enduring the punishment.

And all the same, it is represented, that is unfair to carry is conditional-preschedule clearing to the progressive form of enduring the punishment. Acknowledgement told is the following: the concept of progressive system of punishment has appeared in England where the branded or star, progressive system of enduring the punishment has been created. It consisted of three parts: the solitary confinement, the joint conclusion and is direct clearing ­ uslovnodosrochno. According to the founder of the given prison system (Mekonochi), application of is conditional-preschedule clearing meant continuation of enduring the punishment and consisted in the strict supervision for conditional-ahead of schedule
the released and numerous restrictions of their rights and freedom [81] . The opponent of that the given kind of clearing of punishment is an element of progressive system of enduring the punishment the supporter of the given system Tkachevskij J.M. is Which considers, that the point of view concerning is conditional-preschedule clearing of punishment as an element of progressive system of enduring the punishment it is erroneous. Proving the position, he approves, that progressive system of execution of punishments is the order of change of conditions of execution of the punishments under criminal law established in the law, an improving or worsening legal status condemned depending on its behaviour and the relation to left punishment. Accordingly, when the condemned is released from punishment necessity of application to it of measures of corrective influence disappears [82] . JU.M.Tkachevsky's rights, approving, that on the same position concerning system Mekonochi there are the lawyers considering, that the court ruling about UDO forms the juridical fact generating criminally-executive legal relations. However, it continues, the specified court ruling does not generate the given kind of legal relations, and on the contrary, - ceases them whereas real enduring the punishment as a result stops. The control over the condemned is carried out in sphere of is administrative-legal legal relations. In case of infringement by the person conditionally-ahead of schedule released the instructions assigned to it by court, summary punishment measures according to the criminally-executive legislation to it are not applied [83] .

Thus, reference of institute of is conditional-preschedule clearing of punishment to progressive system of enduring the punishment is incorrect, as
assumes its use within the limits of enduring the punishment process. Also, according to item 172 Wick the Russian Federation and item 186 Wick RB the given institute is carried to a kind of clearing of punishment that shows as well a position of the legislator. And whereas clearing of punishment conditionally-ahead of schedule assumes correction condemned it is obvious, that the punishment purposes are reached also criminal prosecution in this connection is ceased. Accordingly after clearing of punishment the person released from punishment is conditional-ahead of schedule from correctional facility is conditional-ahead of schedule, loses the status condemned and is restored in the civil rights that does not mean carrying out with it of educational work and the disciplinary practice provided by the criminally-executive legislation.

the Part of researchers carries institute of is conditional-preschedule clearing of punishment to the form of clearing of punishment. In A.M.Nosenko's given context approves, that such kind of clearing of punishment is not a step of the progressive system of penalties and the above-named form of parole corrected condemned means clearing not only of a penalty which finds the expression in punishment, but also from certain measures of educational influence which constitute an essence of process of execution of punishment. The given clearing is full whereas releases condemned from all restrictions constituting the maintenance of punishment, but with threat of renewal of those restrictions from which the condemned was released in case it will break conditions of the clearing [84] . According to S.V. SHevelevoj, is conditional-preschedule clearing of punishment concerns one of kinds of clearing of punishment as reflects idea of the compromise between the criminal and the state [85] . N.E.Safronov considers conditionally-parole from punishment of one of forms of end of process of correction
the condemned. In particular, he notices, that the specified institute is applied after departure not only a certain part of punishment but also if the condemned has ceased to be socially dangerous, has firmly followed a correction way owing to what its maintenance in correctional facility is represented inexpedient [86] . According to V.V. Stepanova, is conditional-preschedule clearing of punishment is the complex legal institution which essence consists in parole from punishment condemned in case of approach of the statutory bases, with putting on on it of the duties which non-observance can be the basis of cancellation of is conditional-preschedule clearing of punishment [87] . At the same time V.V. Stepanov considers, that the given institute is one of forms of differentiation of execution of punishment [88] . Belarus scientist N.A.woman's considers, that the essence of institute of is conditional-preschedule clearing of punishment consists in realisation of correction of duration of application of punishment depending on degree of efficiency of its influence on the concrete condemned. Simultaneously it has stimulating value for correction condemned. [89] N.G.Kadnikov, considering the given question, writes: « ­ uslovnodosrochnoe clearing consists in disposal of the principal view of punishment under criminal law condemned from serving before the expiry of the term appointed a sentence vessels » [90] . Agree with N.I.wind's such approach [91] , V.F.Karaulov [92] , A.A.Ahmadeev and A.I.Vasilev [93] .

According to A.M.Pljusnina, the institute of is conditional-preschedule clearing of punishment is first of all, by criminal law institute but which is served also by norms criminal procedure and ­ ugolovnoispolnitelnogo the rights and is applied to all categories of the condemned. At the same time, according to the given scientist, the given institute includes a significant amount of the subjects realising the purposes of is conditional-preschedule clearing of punishment, and also object (condemned) between which there are organizational relations which also are realised by norms of the criminal, criminal procedure and criminally-executive right. Thus, A.M. Pljusnin does a conclusion, that the institute of is conditional-preschedule clearing of punishment is a complex organisation-legal formation with which help not only the purposes and conditions of the given kind of clearing of punishment are defined, but also organizational preconditions for their realisation 92 93 [94] are created.

the Institute of is conditional-preschedule clearing of the punishment, directed on effective stimulation pravoposlushnogo behaviour condemned and their social reorientation, according to A.F.grey, concerns incentive rules of law. Incentive norms, in its opinion, represent a certain version of legal instructions and on the social function qualitatively differ from other norms (obliging, upravomachivajushchih, imperative and so forth) [95] . S.L.Babayan considers
institute of is conditional-preschedule clearing of punishment by the complex legal phenomenon, recognising, that the given institute is interbranch as it is regulated by norms of various branches of law (criminal, ­ ugolovnoispolnitelnogo and criminal procedure), and is applied at a stage of execution of punishment under criminal law. At the same time, the researcher carries the given institute to incentive institutes of criminal law. It is represented, that the given point of view optimal reflects its legal nature, consisting that is conditional-preschedule clearing of punishment is fixed in the criminal legislation as one of kinds (bases) of clearing of punishment and concerns the important stimulus condemned and that complex legal influence which is rendered on condemned by prospect will be released from punishment conditionally-ahead of schedule, is the important stimulant pravoposlushnogo behaviour condemned [96] .

At the same time it is necessary to notice, that the legal nature, concept and essence of is conditional-preschedule clearing of punishment are interconnected with social, political and legal realities of the period of development of a society, criminal law as a whole, including system and character of punishments. Occurrence of new kinds of punishments under criminal law is reflected and in the maintenance of their retaliatory properties and the purposes. As a vivid example absence of a mention of a penalty, as the punishment purposes in UK the Russian Federation and UK RB can serve. [97] But this circumstance influences and definition of kinds of clearing of punishment.

So, having generalised various sights at the legal nature ­ uslovnodosrochnogo clearings, it is visible, that opinions of scientists were divided on two basic positions defining it:

1) as an element of progressive system of the punishment, providing at clearing conditionally-ahead of schedule transition condemned to which it is applied in other legal condition, but not cancelling application of retaliatory tools of educational influence or, in other words, as the form of punishment which it is necessary for condemned to leave;

2) as a kind of an incentive measure in the form of clearing of punishment with clearing of the person in which relation it is applied from pravoogranicheny, provided by a court sentence.

It is represented, that one of the general signs with whom it is necessary to allocate for definition of the legal nature of is conditional-preschedule clearing of punishment is integrated approach of the rules of law containing in various branches of law (criminal, criminally-executive, ­ ugolovnoprotsessualnogo) and regulating its application.

Studying of opinions of various researchers has shown, that nesmotrja, on it would seem the various points of view on the legal nature of institute UDO, they converge that the given institute allows to influence behaviour of the positive behaviour condemned by means of encouragement. Reference UDO to a kind of clearing of the punishment, containing the incentive norms Is represented, that, allowing to regulate behaviour condemned both in the course of enduring the punishment, and after clearing of punishment by means of stimulation pravoposlushnogo behaviour threat of cancellation UDO, most full reflects essence of the given institute. Thus, essence UDO consists in parole condemned from punishment as encouragement measures for pravoposlushnoe behaviour and active work on independent psychophysical correction over itself. The told allows to say that the institute of is conditional-preschedule clearing in the basis possesses the corrective function, allowing to influence behaviour condemned in the course of enduring the punishment and is socially caused. The carried out research allows to draw a conclusion, that social conditionality
institute of is conditional-preschedule clearing of punishment is caused by the limited possibilities of influence of retaliatory potential of punishment on change of sense of justice condemned. The prospect of is conditional-preschedule clearing of punishment positively influences behaviour condemned, and also on its relation to applied cures in the course of enduring the punishment [98] in this connection the court can recognise, that the punishment purposes basically are reached and condemned does not require its further serving. Social conditionality of existence of is conditional-preschedule clearing of punishment in the Russian and Belarus legislation is connected and with other circumstances, in particular, with realisation of principles of humanism and economy of criminally-legal reprisal. Besides, it is impossible to forget and about a business factor: the maintenance of a numerous contingent condemned, for example, in the places of confinement, demands from the state of considerable means which could be used for the decision of other challenges facing to the Russian Federation and Byelorussia.

we Will notice, that defining criteria on which the condemned can be released from punishment ahead of schedule, the formal and material bases are. Condemned can be released conditionally-ahead of schedule from punishment by court only at conformity achievement on both bases.

In the criminal legislation of Russia and Belarus the general is application of is conditional-preschedule clearing of punishment under the decree. In this connection the question on is debatable, whether is ­ uslovnodosrochnoe clearing of punishment by the right or a court duty? To answer this question, it is necessary to analyse a legal status condemned regarding presence at it the rights to application concerning it clearings of punishment conditionally-ahead of schedule. Such category as "legitimate interest" will be the first of the considered legal categories of legitimate claims condemned for any blessing,
. In the given context we will find difference of concepts of "legitimate interest" and "right".

the Legitimate interest is possibility of the interested person with a view of satisfaction of the interests which are not contradicting nation-wide, reflected in legislation or following from its general sense and in what those of degree guaranteed state legal dozvolennost, finding the expression in intentions of the subject to take advantage of the certain social blessing, and in certain cases to address for protection to competent structures [99] .

According to V.V. Geranina, the legitimate interest, is such requirements of the person which come under to protection from the state and are protected by rules of law, however are not regulated by the maintenance of the rights established by the legislation and freedom. Performance of claims of their owners is not unconditional, unlike the rights, they are not resisted by direct legal obligations of corresponding persons as they have no firm legal guarantees. [100] N.V.Kijko understands as a legitimate interest fixed in the rule of law and the possibility guaranteed by the state condemned to apply for reception of the certain blessing, and also in case of need to address to competent bodies for protection [101] . Thus key difference between a legitimate interest and the right the researcher sees that «a legitimate interest not korrespondiruet someone's duty to satisfy last or to promote its realisation» [102] , however, nobody has the right and to interfere to operate to the person in realisation of the
claims [103] . Concerning the maintenance of legitimate interests G.L.Minakov has allocated three its components of an element: 1) aspiration to use the certain social blessing. The given element occupies a leading position in relation to other elements constituting it whereas the aspiration to use the blessing is the central element in the maintenance of a legitimate interest condemned as only it is capable to give to what to aspire the condemned; 2) as the second element possibility acts to petition (not to demand) from the authorised subject. In Russian explanatory dictionary «the petition - the official request». [104] the Given element allows condemned to lay claim on any blessings. However, whereas degree of claim below degree of claim regarding rights the blessing constituting object of legitimate claims, can be given it only after approach of certain set of juridical facts, an estimation which gives administration of the body executing punishment (in other cases other bodies and establishments); 3) possibility to address in necessary cases behind protection to competent bodies and public organisations. The given element acts as a guarantee of realisation of legitimate claims condemned considerably hardening the first element [105] . According to item 175 Wick the Russian Federation condemned to which can be applied conditionally-parole from punishment, has the right to direct the petition for application of the given kind of clearing of punishment to court. As in given article it is spoken about the petition it is represented, that the right condemned on application to it is not present is conditional-preschedule clearing of punishment. According to V.V. Geranina, the legislator has purposely allocated condemned instead of
the rights with possibilities which are interconnected with the requirement of good behaviour of the condemned. Thus the possibilities condemned can defend, leaning against the law. The researcher notices, that legitimate interests are not resisted by administration duties. [106]

Thus, answering a question concerning that, application ­ uslovnodosrochnogo clearings of punishment - a duty or the court right it is possible to draw a conclusion, that the right for such kind of clearing of punishment condemned do not possess. The right of the condemned is expressed in a legitimate interest which essence is reduced in claim on possibility ­ uslovnodosrochnogo clearings of punishment by petition giving. At the same time the court by petition consideration is not obliged to make the positive decision. In this connection we consider proved to believe, that clearing of punishment is conditional-ahead of schedule - the court right.

Consideration of a question on the legal nature of is conditional-preschedule clearing of punishment will be incomplete without the analysis concerning, whether application of the given kind of clearing impact on stability of a sentence of court makes. In this respect there are various points of view. So, there is a point of view according to which application of is conditional-preschedule clearing of punishment shakes stability of a sentence. There is no necessity to prove, neediness of the law and order and frequent changes in the legislation and pravoprimenitelnyh documents which sentences of vessels are also are how much harmful to a life of the state and people. It is negatively it is reflected in functioning of the state institutes. The law and order should be strong. For this purpose there should be reliable its regulators. Necessity of stability of a sentence as one of such regulators from here follows. However it is necessary to understand as stability not an invariance of term of enduring the punishment, and the purpose which it pursues. In this case point of view E.T is interesting
. Borisov which noticed, that parole from punishment anyhow breaks stability of a sentence, on whatever bases such clearing was made. In all these cases the condemned ceases to serve time, appointed to it court, or leaves it in other form, than is enacted by a court sentence, and, hence, the sentence does not appear steady [107] . A.Mihajlov who notices develops this point of view, that clearing of punishment ­ uslovnodosrochno undermines the major principle of the criminal legislation: conformity of punishment of weight of the committed crime. In view of what practice of application of such kind of clearing of punishment promotes fulfilment conditionally-ahead of schedule released new crimes [108] . It do not agree with the given treatment of given institute I.D. Pearls which wrote, that the court does not confute neither guilts of the person, nor justice of punishment. The court though makes essential changes to an order and terms of actual execution of punishment, however understanding of stability of a sentence cannot be based on an invariance of the penal term appointed court. After all if effect from the appointed punishment it is possible to reach before the term appointed court it testifies to success of execution of sentence and at all does not undermine its stability [109] . According to JU.M.Tkachevsky, the sentence at is conditional-preschedule clearing of punishment continues to be carried out in the form of a trial period [110] . Interest is represented by V.V. Stepanova's point of view which writes: « The decree does not cancel punishment in general, and only stops its execution. And the criminal code provides possibility again to return to punishment execution if
the released conditionally-ahead of schedule breaks clearing conditions. Hence, at is conditional-preschedule clearing of punishment, the sentence essence, its legality and validity remain invariable, the time suspension of specific performance of punishment however is possible, at observance released conditionally-ahead of schedule certain duties assigned to it by court ». [111]

Thus, research shows, that application ­ uslovnodosrochnogo clearings of punishment does not shake stability of a sentence as the essence of a sentence which includes such concepts as thus is not mentioned: legality and justice. Execution of sentence in a part pravoogranicheny and the penal term whereas the purposes of the criminal liability with which according to item 43 UK the Russian Federation and item 44 UK RB are correction of the person who have committed a crime, the prevention of fulfilment of new crimes the condemned and other persons, and also social justice restoration are reached stops only. At the same time, for the released person always there is a return threat to execution of the punishment appointed court in case of non-observance by it established court of duties. Thus, it is visible, that is conditional-preschedule clearing of punishment is applied only concerning the person if by court it will be recognised, that the person does not require full departure of the punishment appointed court conformity from item 79 UK the Russian Federation and at the good behaviour of the person proving its correction according to item 90 UK RB. And time the person was corrected, the criminal liability purpose is reached also the further finding of the person in correctional facility is inexpedient. It is necessary to notice, that ­ ugolovnoispolnitelnoe the legislation of Russia and Belarus (ch. 2 items 1 Wick the Russian Federation and ch. 1 items 2 Wick RB) put the problems besides correction condemned
serving time as well its social adaptation and it means that application of is conditional-preschedule clearing of punishment should be applied only in case of possibility of social adaptation of the person released conditionally-ahead of schedule from punishment. We consider, that correction condemned, and also possibility of its social adaptation causes application of is conditional-preschedule clearing of punishment.

Having studied a legal mechanism of realisation of institute of is conditional-preschedule clearing of punishment, it is necessary to notice, that the present legislation, establishing is conditional-preschedule clearing as a legitimate interest condemned, instead of the right to its application, not always guarantees clearing condemned if it was corrected, leaving the decision on clearing on judicial discretion. We consider expedient as one of signs of institute of is conditional-preschedule clearing to allocate its uncertainty of application caused by absence of legal guarantees, fixed in the legislation.

the Given institute which has passed in national legal systems of the sovereign states, has adopted from old legal system a number of positive properties and qualities which have found the fastening in criminal, ­ ugolovnoispolnitelnom and criminal procedure codes. Feature of institute of is conditional-preschedule clearing of punishment is wide scope of the standard base regulating its application. So, in the criminal legislation as Russia, and Belarus a legal basis of institute ­ uslovnodosrochnogo clearings of punishment accordingly constitute item 79 UK the Russian Federation and item 90 UK RB. Characteristic line of the specified norms is them blanketnost, sending to other acts which detail the bases and an order of is conditional-preschedule clearing of punishment.

Within the limits of our research we will allocate the following peculiar to the given kind of clearing of punishment signs, allowing to say, that ­ uslovnodosrochnoe clearing it: 1) the complex legal institution. Integrated approach
consists in regulation of the given institute by norms of various branches of law, and also bodies which realise its process; 2) incentive character of legal regulation. Is conditional-preschedule clearing of punishment has positive influence on behaviour condemned by possibility in the long term to be released ahead of schedule as a result pravoposlushnogo behaviour; 3) convention of clearing. Condemned it is released from punishment provided that it during not left part of punishment will observe the rules of behaviour ordered by the court decision about conditional-parole from punishment.

Thus, as a result of the carried out research it is possible to draw following conclusions:

1. Social conditionality of institute of is conditional-preschedule clearing of punishment is caused by the limited possibilities of influence of retaliatory potential of punishment on change of sense of justice condemned. The prospect of is conditional-preschedule clearing of punishment positively influences behaviour condemned, and also on its relation to applied cures in the course of enduring the punishment in this connection the court can recognise, that the punishment purposes basically are reached and condemned does not require its further serving. Social conditionality of existence of is conditional-preschedule clearing of punishment in the Russian and Belarus legislation is connected and with other circumstances, in particular, with realisation of principles of humanism and economy of criminally-legal reprisal. Besides, it is impossible to forget and about a business factor: The maintenance of a numerous contingent condemned, for example, in the places of confinement, demands from the state of considerable means which could be used for the decision of other challenges facing to the Russian Federation and Byelorussia.

2 Maintenance of institute of is conditional-preschedule clearing is constituted by the following inherent in it signs:

- the institute of is conditional-preschedule clearing regulates a measure of retaliatory influence on condemned by means of what the punishment individualization is reached;

- blanketnyj a way of fastening - legal regulation of institute of is conditional-preschedule clearing of punishment is carried out by fastening of the general bases in the criminal law with the further concrete definition in branch local legal acts;

- incentive character of influence on behaviour condemned - the institute of is conditional-preschedule clearing of punishment is applied only on reaching correction by means of which the punishment purpose is reached. The given circumstance assumes involving condemned in work on self;

- absence of guarantees at condemned in granting to it ­ uslovnodosrochnogo clearings of punishment - the right of application of the given kind of clearing possesses court at own discretion.

3. The carried out analysis of signs of is conditional-preschedule clearing of punishment has allowed to formulate author's definition of concept ­ uslovnodosrochnogo clearings of punishment as which it is necessary to understand the complex legal institution having stimulating influence on serving time condemned for committing a crime for its correction and consisting in clearing of such person from the further enduring the punishment under a condition of omittance by it new crime and performance of duties assigned by court during the remained penal term.

<< | >>
A source: Tit Alexander Aleksandrovich. CONDITIONALLY - PAROLE FROM PUNISHMENT In the CRIMINAL LEGISLATION of the RUSSIAN FEDERATION And REPUBLIC Belarus. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2018. 2018

More on topic § 2. Concept, legal nature and social conditionality of is conditional-preschedule clearing of punishment:

  1. § 1. The legal nature and the bases of is conditional-preschedule clearing of enduring the punishment
  2. § 3. A remedial order of realisation of is conditional-preschedule clearing of punishment
  3. § 1. The formal bases of is conditional-preschedule clearing of punishment
  4. Chapter 3. Is conditional-preschedule clearing of enduring the punishment and replacement of not left part of punishment with softer kind of punishment as interbranch incentive institutes
  5. § 2. The material bases of is conditional-preschedule clearing of punishment
  6. chapter 3. Problems of legal regulation of is conditional-preschedule clearing of punishment during the postpenitantiary period under the criminal legislation of the Russian Federation and Byelorussia
  7. chapter 2. Problems of legal regulation of is conditional-preschedule clearing of punishment during the penitantiary period under the criminal legislation of the Russian Federation and Byelorussia
  8. the Appendix ¹ 2 Analysis of data of expert interrogation by definition of directions of perfection of legal regulation of institute of is conditional-preschedule clearing
  9. § 2. Conditional stay of execution of punishment and is conditional-parole from enduring the punishment.
  10. chapter 1. Teoretiko-legal bases and social conditionality conditionally-parole from punishment in the Russian Federation and Byelorussia