§ 1. Essence of punishment. A punishment under criminal law and criminal liability parity

In the domestic theoretical literature questions about criminal nakazayonii and its essence are considered already more than two hundred years. Thus kolicheyostvo the points of view does not decrease, and on the contrary, — constantly increases.

PrakYOticheski each researcher of problems of punishment results extensive klassiyofikatsiju views of the predecessors about essence of punishment so it is possible not to repeat this titanic work, and to take advantage of already ready results. The underground group is resulted by V.K.Dujunov, by data kotoroyogo punishment in the criminal law theory is understood as follows:

- It is reaction of the state to the committed crime;

- Committing a crime legal effect (a variant: condemnation for committing a crime);

- Way (form) of the criminal liability;

- Means (the tool, a measure) criminally-legal influence on guilty of committing a crime;

- Means (the tool, the tool) criminally-legal struggle with prestupleyonijami;

- Penalty (requital) guilty for sodejannoe;

- The form (measure) of the state compulsion applied in otnosheyonii of the guilty;

- Pain (deprivations, sufferings), the certain damage caused on a basis suyodebnogo of a sentence guilty of committing a crime [72].

Last years in the theoretical literature one more original approach to an establishment of essence of punishment, which predstavyo is offered
ljaet itself, according to its supporters, collective activity gosudaryostva on restoration suffered from a crime public otnoyoshenija by means of appointment and application to the person guilty of it preyostuplenii, specified in a verdict of guilty of court of measures of compulsory influence on deprivation or restriction of its rights and свобод1.

From all listed above definitions to essence of punishment it is possible to carry only two according to which punishment is 1) a penalty (requital) and 2) caused guilty sufferings (a pain, deprivations). The others characterise, more likely, legallistic signs, in soyootvetstvii with which punishment, undoubtedly, it is possible to consider and as reyoaktsiju the states, and as crime legal effect, and as means of criminally-legal struggle against crimes or restoration obshchestvenyonyh relations.

In the criminal law theory, since the earliest researches, ugoyolovnoe punishment was understood as the suffering caused to the criminal. In the beginning of XIX century P.A.Fejerbah defined it as angrily, threatened by the law from the Government and on force of this law caused [73 [74]. After hundred years N.D.SergeYoevsky approved, that punishment is a harm or the sufferings caused pre - stupniku [75], and And. P.Mokrinsky wrote, that as the fact of a sensual life nakazayonie is the compulsion certificate to suffering [76]. We believe, that empirical display of punishment, that is its essence, svoyobodnaja from formal definitions in this case meant.

The similar understanding of punishment under criminal law is represented to us pravilyonym, opening its essence without attraction legallistic termiyo
nologii. Not casually, in explanatory dictionaries the violence is defined with ispolzovayoniem the term "compulsion": violence — compulsory influence on somebody, infringement personal неприкосновенности1, and "compulsion" — cheyorez "violence": «compulsory — carried out violently, on prinuzhde - niju» [77 [78].

On a level with belief and encouragement punishment is a universal method of regulation of behaviour. And, if the belief is not connected with kayokimi-or restrictive and incentive measures, being in this sense neutral punishment and encouragement — methods, is direct protivopoyolozhennye on the influence. Encouragement consists in investment of the person doyopolnitelnymi, to already available, the rights or the blessings. Punishment — naoboyorot consists in compulsory restriction of any rights and freedom nayorushitelja.

Compulsory character in this case means, that punishment vseyogda has violent character concerning the infringer and inherently itself is violence. Essence of violence — causing of sufferings, liyosheny, pains.

Certainly, not all components of punishment pursue the aim prichineyonija sufferings. However even not retaliatory elements present at it, such as belief or encouragement, do not cancel its violent sushchnoyosti as can be applied only after the condemned will undergo to violence (for example, compulsory isolation from a society).

Thus, the violence is a compulsory measure, which is applied to prevent new crimes, and sufferings, a pain, caused nayorushitelju, act as levers on its behaviour in the future. Differently, the same maintenance can be expressed in the formula «nakazayonie is a regulation of behaviour a pain». Naturally, speech does not go about a pain
The physical. G.V.Verina speaks in this connection about experience condemned social and moral страданий1. However only business is not limited to sincere torments. Punishment execution — uncontested for osuyozhdennogo process. Malicious default of punishments or evasion from them otyobyvanija attracts replacement of punishment under criminal law with more strict, as a rule, liyosheniem freedom. In turn, at serving of this punishment neispolneyonie valid claims of administration of corresponding establishment vleyochet and a physical pain. According to item 86 Wick the Russian Federation and positions of the chapter of V Law of the Russian Federation from July, 21st, 1993 № 5473-I «About establishments and bodies, ispolnjayojushchih punishments under criminal law in the form of imprisonment» (in red. From July, 19th, 2018) [79 [80], employees correctional facilities are allocated by the application right fiyozicheskoj forces, spetssredstv or the weapon in relation to infringers of a mode of the maintenance.

The in itself mechanism of action of punishment (it is a question not only about ugolovyonom punishment, and of punishment in general, understood as universal reguljayotor) is primitive, however for all history of a civilisation it was not possible to construct the societies which functioning could be provided without primeneyonija those or other kinds of sanctions for infringement of operating rules.

Separate attempts of creation of small exemplary settlements, such, for example, as Nju-Lenark R.Ouena, or a colony for juvenile prestupniyokov with which supervised over Ampere-second. Makarenko, showed possibility korenyonogo crisis in crime control by social transformations. So, R.Ouen, estimating results more than quarter-century management of this settlement, specified, that from «lazy, dirty, betrayed to drunkenness, confused and immoral» the population became rather diligent, trezyovym, active, clean and moral. It was possible to reach prekrashcheyonija aggrievings of the property of neighbours, to establish benevolent and
Goodhearted relations between various religious groups. GraYOzhdane began to promote by weekly donations to support and a consolation ailing and aged, necessity for the tax in favour of poor and in charity from the party посторонних1 has disappeared. The got experience allowed R.Ouenu to approve, that crimes are an education product, and social system change according to razraboyotannymi it offers is capable already to the second generation so to improve customs, that any punishments not only will be not necessary, but vsjayokomu their harm [81 [82] becomes obvious.

Even more convincing achievements has shown the tutor - naja system Makarenko. Anybody from its pupils did not make subsequently crimes. In a colony headed in Ampere-second. Makarenko, it has been mastered izgoyotovlenie difficult technical devices, for example, cameras. poluchenyonaja the gain from their realisation allowed not only to contain a colony, but also to equip in it theatre, to render material aid to graduates, to pay wages to pupils, many of which steels vpoyosledstvii known people.

At all persuasiveness of the received Ampere-second. Makarenko and R.Ouenom reyozultatov is not present any bases to approve, that the experience got by them is universal also a criminality problem can be solved only social system change. It is necessary to consider, that in similar cases poseleyonija there was small (in Nju-Lenarke lived 2 500 persons), owing to it an authority and a personal example of such outstanding figures, as R.Ouen or Ampere-second. Makarenko, made huge improving impact on poselentsev. Besides, such settlements existed separately from usual naselenyonyh points that reduced degree of negative foreign influence. VozmozhYO
nost successful distribution of results of similar activity on all society it is represented rather problematic as in that case complexity and number of interrelations of separate elements obshcheyostvennogo devices sharply increase, conflicts of the interests which are representing itself as krimiyonogennyh factors. And, at last, to take simple the necessary number ideyoalnyh disinterested heads of the highest professional level whom, certainly, were Ampere-second is no place. Makarenko and R.Ouen. Therefore follows ishoyodit from this what completely to refuse the state violence sovremenyonye societies are not capable.

In theoretical works on criminal law of the Soviet period by consideration of a question on essence of punishment the word "penalty" was applied. Its occurrence in works of theorists of I.S.Noj explained use of terms "punishment under criminal law" and "penalty" in item 1 [83] sanctions, 12, 13 Positions about prestupyolenijah state (counterrevolutionary and especially for USSR opasyonyh crimes against a management order) in connection with acceptance of the Central Electoral Committee of the USSR on June, 8th, 1934 decisions «About Position addition about prestupleniyojah state (counterrevolutionary and especially for USSR dangerous crimes against a management order) articles about change to the Native land» 1.

However application of this concept has caused certain difficulty in theorists as it is not specifically criminally-legal. SleYOduet to notice, that it is possible to name a weak place of the criminally-legal theory disclosing of special criminally-legal concepts by means of the terms which are not accurately defined, multiple-valued, and also giving of new values to settled concepts. As a result on separate base polozheyonijam the criminal theory the long-term debate complicating and confusing analyzed questions proceeds. To the full it concerns and to voyoprosu about "penalty".

Solving a question on a parity of concepts "penalty" and "punishment under criminal law", scientists in some cases identified them. So, according to A.L.Remensona nayokazanie also there is a penalty, that is deliberate causing guilty sufferings and the deprivations, specially calculated that it will undergo nakazayonie as deprivation, suffering for caused to a society зло1. In other cases, the penalty was considered as one of elements of punishment [84 [85]. And on the contrary: punishment was offered to be understood as one of forms of realisation of a penalty [86].

Differently the essence of a penalty was understood also. B.S.Utevsky B.S.Nikiforov — as compulsion to suffering, and not to any suffering as to suffering force also the habitual alcoholic when it subject to compulsory medical treatment defined it as compulsion [87], and. The penalty is priyonuzhdenie to such suffering which on the character and duration is proportional, in proportion to the malicious business made by the criminal, pre - stupleniju [88].

In B.S.Nikiforova's resulted opinion the requirement about proportsionalnoyosti, harmonies of the suffering caused to the criminal, weight sovershenyonogo it of a crime, means not that other, as revenge, the talio. About lacks of the similar approach wrote in the pre-revolutionary literature much,

Later, during I.S.Noj's Soviet period has come to conclusion, that the penalty-it compulsion on purpose to cause suffering. Only such understanding of a penalty, in its opinion, allows to distinguish practically it from other kinds of compulsion, vhoyodjashchih in punishment, but not being a penalty [89].

At the same time the scientist did not reduce essence of punishment only to a penalty. In its opinion, punishment is the system consisting of a criminal penalty (an element connected with causing of sufferings) and убеждения1. And the belief for I.S.Noja is not a minor element. Negation of a role of belief reduces punishment to reprisal, that, according to this researcher, deforms representations about the Soviet criminal policy [90 [91].

However, he also marked, what even in the bourgeois countries punishment in the form of imprisonment [92] is not purely retaliatory measure. A penalty here socheyotaetsja with some educational means, certainly, essentially other character, than in the Soviet right. They are expressed in religious vozyodejstvii and in various kinds of bourgeois propagation. The various sense put in concept of punishment in the Soviet and bourgeois right [93] also consists in it, in effect.

The special orientation of a penalty on causing of sufferings was marked by S.I.Dementyev. Reducing essence of punishment to a penalty, it meant by it deliberate causing guilty statutory sufferings and the deprivations, specially calculated that it will undergo them [94].

In the Post-Soviet theory attempts of carrying over of concept kayory on the criminal liability are undertaken.

In particular, V.V. Crickets notices, that the penalty takes place at primeneyonii not only punishments, but also any other measures criminally-legal harakyotera [95]. Differently, any form of realisation of the criminal liability javyo
ljaetsja a penalty.

According to V.K.Dujunova, penalty expression is criminal otvetyostvennost, connected with censure guilty and condemnation of the crime committed by it, and also realisation of other purposes criminally-legal vozdejyostvija. Punishment is the realisation form кары1.

According to this author, the penalty is such reaction to a crime, kotoyoraja corresponds to the representations which have developed in a society about justice. And in it difference of concept "penalty" from concept "punishment", which can be (and quite often happens) unfair. The fair penalty is natural reyoaktsija healthy community on infringement of the norms established by it. SpraYOvedlivost — the integral property of a penalty. Unfair punishment remain punishment as constituting its maintenance pravoogranichenija priyomeneny, but here a penalty such punishment to recognise it is impossible. Unfair, nezayosluzhennoe punishment is not a penalty, and punishment, reprisal [96 [97].

According to F.B.Muljukova, the penalty is the integral sign of punishment, but is not its essence. Punishment, in turn, is external way of expression of a penalty [98].

Apparently from the resulted points of view, the position of the legislator has made strong impact on the theorists forced somehow "implementirovat" alien concept in the criminally-legal theory, that negatively affects the theory owing to uncertainty of the term "penalty". Insufficiency sloyovarnyh definitions leads to subjectivity in an estimation of the given term and its extreme razmytosti.

At the same time it is represented, that use by the legislator of the term "penalty" was not casual (however, we think, it concerns and use of any other terms). The legislator, entering into the legislation new ponjayo
tija, is in a certain semantic and symbolical field, freely scoops symbols and terms from a cultural and political context. poetoyomu their analysis is necessary for carrying out not only and not so much on etimologiche - skim to dictionaries and legal sources (and the last, as shown above, it is inherent subjectivity in the phenomenon description), and on the literary, newspaper and journal materials opening a position of contemporaries and typical application of analyzed terms during the considered epoch.

In literary works the penalty was considered as attribute bozheyostvennoj the authorities:

But tremble the future penalty, Fear a threatening finger: Yours of pleasure and fires — All — ashes, all — a decay, all — vanity

A.Blok. Two loves.

And when —

All the same! —

vyharknula a crush on the area,

Having got rid of a church porch which has attacked a throat,

It was thought:

In choruses arhangelova a choral

The god plundered, goes to punish!

V.Majakovsky. A cloud in trousers

«... At it shot, but arrows could not pierce its body closed neyovidimym by a cover of the higher penalty...».

M.Gorky. Old woman Izergil

«... Under complaint Sinjugina the watchman nadral vihry to the little boy, and ours zakonoyouchitel father Gennady during a lesson of the Law Divine has told disapprovingly:

— Monuments are put for memoirs about deceased, instead of for any other purposes, and to place on monuments traps and other extraneous adaptations it is not necessary — guilty and blasphemously.

There and then it has resulted some cases from mankind history when similar blasphemy involved tjagchajshie penalties of heavenly forces... »

A.Gaydar. The River of Century With.

In mass media of 30th 20 century are available following hayorakternye passages:

«... The Sentence is taken out, — speaks shtampovshchik forge shop t. EreYOmin. Is — a fair sentence, it is people sentence. But now, when the contemptible gang has incurred the deserved penalty, we cannot on it uspoyokoitsja. We demand immediate indictment right — Buharin, RykoYOva, Uglanova, — all those who is exposed by the process which has ended today...» 1.

«... In the press the explanation of the text of the military oath, the law on a penalty for change to the native land and propagation of questions of preservation of military secret, vigilance, moral shape of the soldier of Red Army should be strengthened...» [99 [100].

«... We demand also to investigate Buharin's participation, Rykova and others right which have been connected with trotskistskoj a gang, and to involve them in severe responsibility. All who has been connected with dirty criminals-trotskistami, should incur a heavy penalty from proletariat dictatorship.,» [101].

In the newspaper «Pioneer truth» on one strip two have been placed stayoti about process over «the right-trotskistskim the block». In one of them it was informed on execution of traitors: «... The Sword of the Soviet justice has inevitably fallen on heads of those who has dared to lift the bloody hand on the Soviet people, on its happiness. A gang of murderers and the spies, calling„ the right-trotskistyo
skim by the block “, it is sentenced to execution. Only the court has found three defendants possible to sentence to different terms of imprisonment...» 1. Other article was eloquent is entitled «Enemies of the people have incurred deserved kayoru. The sentence on business anti-Soviet„ the block right-trotskistskogo ”» [102 [103] is pronounced.

Thus, in obshchesotsialnom a context the term "penalty" became rassmatyorivatsja as sacred duty of the state to exterminate (in the literal sense) the criminals encroaching on the higher value — the Soviet people, the Soviet state. We believe, what exactly in such sense this term and has been used in the decision «About Position addition about crimes state (counterrevolutionary and especially for USSR dangerous preyostuplenijah against a management order) by articles about change to the Native land». Not sluyochajno the word "is punished" used in sanctions of articles providing responsibility not simply for most dangerous, but also if so it is possible to be expressed, svjatotatstvennye encroachments. In particular, according to item 11 the higher punitive measure — execution punished change to the Native land, from item 1 2 — change RoYOdine made by the military man, and from item 13 — complicity of members of a family to the traitor of the Native land, and is equal nedonositelstvo about such crime.

It is characteristic, that in Position item 14 about crimes state (counterrevolutionary and especially for USSR dangerous crimes against a management order) in relation to the military men who have not informed about izyovestnoj by it to preparing or perfect change, expression "is punished" is not used any more, and the word-combination «is used involves imprisonment...».

Proceeding from told it is possible to assume, that the legislator has given teryominu "penalty" symbolical value, — at an encroachment on the most valuable to the Soviet person — the Soviet Native land the state protects a relic, exterminating the criminal.

From the practical point of view, use of this term of anything noyovogo, except mess, in the theory has not introduced. As a matter of fact, all sights prodolzhayoli to be based on understanding of punishment as punishments or compulsions to suffering, entering an intermediate element — a penalty. Therefore follows soglasityosja from V.D.Filimonovym in which opinion use of this term does not give anything for explanation of the maintenance of punishment as words "punishment" and "penalty" are синонимами1.

In the operating criminal legislation the concept of a penalty at opredeleyonii punishment under criminal law is not applied, the formula instead is used: «punishment is a measure of the state compulsion... Punishment... zakljuyochaetsja in... Deprivation or restriction of the rights and freedom of this person.».

However in this definition essence of punishment completely do not reveal, as the legislator is forced in legal fixing a sentence ukayozyvat the separate signs distinguishing this measure from other forms priyonuzhdenija: appointment on behalf of the state and only to the person guilty in soveryoshenii of a crime. Therefore it is not casual researchers again and again obyorashchajutsja to it would seem for a long time to the out-of-date term "penalty", expanding limits of its application. In particular, V.N.Orlov offers the new term «ispytyyovanie retaliatory influence», understanding as it process, as a result kotoyorogo the condemned tests deprivations, restrictions, replacement and additions of the rights, duties and legitimate interests [104 [105]. V.V. Crickets specifies, that the penalty appears at us anything other, as the maintenance of forced measures vozyodejstvija, including punishment under criminal law [106].

It is represented, that explanation of essence of punishment needs to be begun with the answer

On a question: whether it is possible to do without punishment in general? Or, being put into words B.T.Razgildieva, what mission of punishment? 1

Everyday experience, and also all history of mankind testify that never any community did without a regulation of the activity providing the sanctions for infringement of established norms of behaviour. Even in the voluntary associations arising because of common interests or hobbies, there is an order of their functioning, osnovanyonyj on observance of certain rules and an establishment of punishments for them nayorushenija, for example, by way of exception from numbers of such communities. Punishment acts as a universal regulator of human behaviour with most ranyonego the childhood when the child starts to realise itself as "I" who are distinct from druyogih, and to formulate own desires and requirements. Even in the tender age teachers cannot receive desirable result vospitayotelnogo process without punishment application (on a level with other methods).

The outstanding Soviet teacher of Ampere-second. Makarenko, whose experience and iskljuchiyotelnye merits in education of the most started in the pedagogical plan podyorostkov do not come under to any doubt, never refused from primeneyonija punishments. In particular, it challenged in the performances the position standard at that time that punishment brings up the slave. In its opinion until the collective and collective bodies while there are no traditions is created and primary labour and household skills are not brought up, the tutor has the right and should not refuse compulsion [107 [108]. In the memoirs it opisyyovaet the characteristic dialogue which has taken place at it with the inspector narkomprosa L.

S.Dzhurinskoj, when in reply to its claim about application of punishments to vosyopitannikam to colony Makarenko has answered what to bring up without punishment it is not able, and still it is necessary to learn him to this art [109].

At the same time Ampere-second. Makarenko does not absolutise a punishment role. Moreover, in the works he approves, that collective formation, pojavleyoniem traditions, development of demanded skills in pupils the teacher can (but is not obliged) to refuse punishment. At occurrence of such conditions the regulator role should pass from the teacher to collective which influences on poyovedenie the members, using an arsenal of measures of social influence. TaYOkim theoretical possibility of transition from measures gosudaryostvennogo (legal) influence to influence public appears in the image. We will notice, that replacement of the state compulsion with social censure predyostavljalas as ideal result of crime control. M.I.Kalinin in this connection declared, that «... Possibly, in the future at us at all will not be karayotelnogo institute, and there will be only a simple condemnation which, maybe, will be the most greatest penalty. Eventually we to it go» [110].

Unfortunately, the future about which spoke M.I.Kalinin, not nastupiyolo, and public condemnation has in many respects lost the value as the tool of the prevention of crimes. Influence of labour collectives on behaviour of the members has essentially decreased, so, the basic role in reyogulirovanii behaviour of citizens at preservation of current tendencies atomizayotsii societies the state influence, in particular, will play not public, but punishment.

During social development mankind empirical by priyoshlo to necessity of application of punishments for the most different spheres. Such demand of forced measures in the theory speaks existence of set of the reasons of the individual deviating behaviour leading to infringements of every possible rules. However, in our opinion, neobhodiyomost punishments, first of all, it is caused by existence of the major constant of human behaviour, about which criminologists for some reason seldom
Recollect. It is a question that people basically are not inclined to observe kayokie that there were norms, especially, if infringement it favourably and nothing грозит1.

There is a set of the data testifying in favour of such predpoyolozhenija. So, N.Kristi results memoirs Ralfa Darendorfa about situayotsii in Berlin in April, 1945 When it became clear, that in a city does not remain vlayosti, all to whom not laziness, bags and the boxes filled stolen doyobrom [111 [112] dragged home. It is indicative, that Germans, — the nation, assotsiiruemaja with the law and porjadyokom, — in the absence of punishment threat immediately in large quantities began to commit crimes.

The American criminologists I.Valerstajnom and K.Vajlom were proyovedeny interrogations of two thousand inhabitants of New York from which 91 % have declared, that they had to commit crimes for which they have not been condemned. High indicators of an involvement of citizens in criminal activity have been confirmed also by other researchers [113].

American psychologist S.Milgrem has made experiment in which isyopytuemym said, that they should represent itself as the teacher and nakazyyovat "pupil" for incorrect answers an electric current, each time uvelichiyovaja pressure. Thus the actor playing the pupil, was behind a partition and shouted, staging shout of a pain from blow by an electricity. In separate series of experiments the majority of examinees (26 from 40) increased pressure to 450 In, that in a reality should lead to death of "pupil" [114]. PlaYOniruja experiment, S.Milgrem wished to show, that Americans are not capable
To participate in mass destruction of the fellow citizens, unlike Germans, from a tacit consent, and sometimes and direct potvorstvovanija which in days of war in concentration camps millions people have been destroyed. However after analiyoza results of experiment he has refused idea to repeat it in Germany.

The well-known Stenfordsky prison experiment spent by F.Zimbardo is indicative also. The part of volunteers was carried out by functions of prison protection, and remained — prisoners. In some days of experiment in every third security guard sadistic bents were found out, and eksperiyoment it was necessary to interrupt ahead of schedule [115].

The reasons on which people easily enough make pravonarusheyonija, are a subject of independent scientific research. We believe, that they are covered as in our biological nature allocating us with the most various requirements, and for features of our consciousness, tvoryocheskogo the imagination, allowing to overcome every possible obstacles for realisation of the requirements, etc. It is rather probable, that if propensities to deviating behaviour at people were not, there would be no so developed system of sanctions in various spheres of legal regulation of a public life; there would be no need in public morals; there would be no the religious beliefs which are carrying out among other and reguljativnye funkyotsii. Quite probably, that there would be no also a right in that kind in what it exists today.

At the same time the punishment role in a public life, on all verojatnoyosti, is underestimated. As is known, absolute freedom of behaviour corrupts, permissiveness turns around an arbitrariness, injustice, infringement of the rights weak, blossoming of every possible defects. Therefore punishment under criminal law is not only a criminality warning facility. It quite often in a literal sense rescues the infringer from moral degradation, from
Movements downwards, the self-damage, generated by impunity.

Taking into account the above-stated it is possible to conclude, that in system regulirovayonija behaviour of the person punishment, along with belief and encouragement, remain and will remain in the foreseeable future the integral element, not sayomym to the best, but absolutely necessary. To the full this conclusion rasproyostranjaetsja and on punishment under criminal law, despite doubts separate teoreyotikov concerning ability of the given institute to affect on преступность1.

As legal fixing a sentence in item 43 UK the Russian Federation, understood as a measure of the state compulsion was already marked, does not open sushchnoyosti this phenomenon.

Compulsion is always accompanied by violence. According to filoyosofskoj the encyclopaedia, the violence is an application by that or other class (soyotsialnoj group) various, up to the armed influence, forms priyonuzhdenija concerning other classes (social groups) on purpose priobreteyonija or preservations of economic and political domination, a gain of those or other rights or privileges [116 [117]. Proceeding from this definition, the measure gosuyodarstvennogo compulsions is a form of display of violence in relation to the person who has committed a crime, applied in interests of the majority nayoselenija. However the concept of violence, no less than a word-combination «a measure priyonuzhdenija», do not open sense of punishment under criminal law as it is not clear to what compulsion to what in relation to prestupyoniku the state applies violence is carried out. Does not bring clearness and instructions zakonodayotelem the purposes of punishment under criminal law in view of their discrepancy at which reyoalizatsija to one of the purposes can interfere with achievement of others. For example, the long terms of imprisonment corresponding to gravity of punishment, moyogut negatively to be reflected in the person condemned, to lead to its destruction
Related and other social communications and, thereby to provoke soveryoshenie this condemned new crimes in the future. Thus, nakayozanija which on the severity answer the restoration purpose sotsiyoalnoj justice, can contradict interests private predupreyozhdenija and corrections condemned.

Therefore the purpose of application of violence (coercive measures) should be proyojasnena, starting with most the general representations about to what punishments are applied. So, punishing the child, parents, first of all, try zayostavit to observe it behaviour rules; to the schoolboy put the two that he studied is better; the infringer of a labour discipline punish, that it was not late henceforth; the motorist is exposed to the administrative penalty for toyogo that in the future it did not break a high-speed mode. In all cases nakayozanie it is applied to compulsion to observance of those or other norms. polayogaem what pertinently to draw an analogy with the person who has broken the criminal law whom punish, first of all, that it did not suppose henceforth the similar. Therefore in the concentrated kind the essence criminal nakazayonija is an application to the criminal of violence for the purpose of its compulsion to observance criminal закона1или as Would mark. T. Razgildiev, prednayoznachenie punishment under criminal law consists that it is one of the means forming criminally-legal mechanism deduction of persons from prestup - leny [118 [119].

In the criminal law theory the opinion was expressed, that punishment be punishment to the criminal, requital or a payment for fulfilment prestupleyonija [120]. In turn, concept "punishment" by some authors rassmatrivayolos as a version to sweep. In particular, N.A.Beljaev wrote, that punishment
Acts as punishment when sufferings and deprivations are caused viyonovnomu for perfect act for the purpose of satisfaction of feeling spravedlivoyosti societies against which it is made преступление1. Other point of view has been stated T. G.Ponjatovskoj in which opinion and vozyomezdnym justice it is necessary to understand the classical formula of punishment as punishment as proportional requital for fault [121 [122].

Thus, the maintenance of concept "punishment" was understood on-raznoyomu. However for all cases of interpretation of this term it is characteristic it obyorashchennost to the past, to the dangerous acts made earlier socially.

Understanding of punishment as punishments for the committed crime voshoyodit to the Old testament containing a number of instructions according to which to the person harming, the same harm should be done in the answer. NapriYOmer, some similar instructions are available in book Levit: « Who will kill any person, that will be betrayed death »(the Lion. 24:17),« crisis for crisis, an eye for an eye, a tooth for a tooth; as it has made damage on a body of the person, and to it dolzhyono to make »(the Lion. 24:20), etc. Similar positions contain and in the Koran [123]. In the European philosophical doctrine the idea of punishment by punishment in frameworks konyotseptsii retributivizma was formulated by I.Kant. Sense of punishment at it vyteyokaet from a moral imperative according to which the person should otyonositsja to mankind or other person only as to the purpose, but not as to means. A consequence of it is necessity of causing to the criminal of the same harm which it causes another [124]. All other purposes which are beyond of a categorical imperative, for example, considering prichineyonie of sufferings to the criminal for prevention of new crimes, when
The criminal acts as means of achievement of any purposes, on the Edging, amoyoralny.

However, the similar understanding of punishment was exposed to the proved criticism. F. R.Sundurov marked, in particular, not constructive "zatsiklenyonost" punishments on прошлом1. In our opinion, this nekonstruktivnost consists in the following: 1) provided by operating criminal code nerazyoryvnaja the interrelation between weight of the act made in the past and intenyosivnostju sufferings condemned in the future, undoubtedly, is raznovidyonostju to sweep, despite attempts to present it in other quality; 2) creating punishment, the state applies strict measures which are chrezmernyyomi or even, maybe, harmful, from the point of view of the prevention of the future crimes. V.L.Chubarev has obtained data according to which tjayozhest crimes only in 7,2 % of cases corresponds to danger of the person of the criminal [125 [126]. It turns out, that only by such insignificant quantity of criminal cases the severity of appointed punishments corresponds to all purposes ugoyolovnogo punishments while the sanctions applied to the majority osuyozhdennyh, on the severity mismatch what are necessary for achievement of the purposes of correction and special prevention.

It is necessary to notice especially, that the legislator tries to soften it protiyovorechie, providing possibilities for parole from nakazayonija. For example, according to ch. 1 item 79 UK the Russian Federation the person can uslovnoyodosrochno be released from serving of a part or all punishment, if it not nuyozhdaetsja in full enduring the punishment. Thus, rupture between the sizes of the punishments demanded for achievement the various purposes is somewhat reduced.

The following moment which causes objections, is connected with nravstvenyo
nymi qualities of the subject who is carrying out punishment. Is known bibyolejsky a plot when scribes and Pharisees have led to Jesus the loose woman, prizyyovaja to beat its stones. In the answer Jesus has told it: «Who from you without a sin, that peryovyj throw in it a stone» (John 8:1-12). Thus, in novozavetnoj tradiyotsii the moral should be not only the punishment basis, but also the subject, its applying. In a certain measure the resulted bible plot hayorakterizuet and the moral beginnings of the punishment, which non-observance oborachiyovaetsja hypocritical punishment also causes contempt for the law and it ispolniteyoljam, expressed at Ampere-second. Griboedov a phrase «And judges who?».

So it has turned out, that formation of the modern Russian state occurred against the privatisation accompanied unprecedented earlier ekoyonomicheskim by stratification of a society, unfair distribution imushcheyostvennyh the blessings, decrease in level and quality of a life of huge number of ours soyograzhdan. Stratification has concerned not only an economic aspect of life grayozhdan. Now the differentiation by kinds and the sizes of punishments which are appointed, for example, to thieves of another's property, on the one hand, and to the high-ranking bribe takers — with another is observed. Various level of security from criminal reprisal predyostavitelej various social groups actually takes place. In such conditions to speak about ugolovyonom punishment as about punishment to the criminal from the state, probably, it would be incorrect.

But, maybe, punishment is managed on behalf of the people? Here again also otyovet will be, most likely, negative. As follows from resulted above reyozultatov researches, the considerable part of people is inclined to fulfilment prayovonarusheny. High level latentnosti separate kinds of crimes is quite often connected with loyalty of the population to separate kinds criminal posjayogatelstv. Results testify To it kriminologicheyoskogo experiment when under the police control "thefts" in a department of self-service of the big shop were made, in particular. As it was found out, in those cases,
When extraneous buyers fixed the plunder fact, they have never addressed in this occasion to protection of shop or in law-enforcement орга­ны1. During the interrogation of students of not legal profile of 29 % spent by us interrogated have declared, that made offences, and 21 more % — that soyovershali the acts which legal nature was not clear to them. Besides, 69 % interrogated had the acquaintances committing crimes from whom only 41 % questioned them tried to dissuade. And only 39 % have declared, that do not suppose for itself committing a crime possibility.

Thus, the punishment and punishment identification is represented not quite correct from the ethical point of view as the subject, it osushcheyostvljajushchy (state), does not possess for this purpose faultless moral avtoyoritetom, and the people not in all cases of this punishment demand.

At last, punishment in our representation is closely connected with spravedliyovostju punishment under criminal law, its conformity of weight of perfect act.

However separate positions UK the Russian Federation mismatch criterion sprayovedlivosti. So, for example, the constitutional Court of the Russian Federation recognises nesootvetyostvujushchimi Constitutions of Russia of position of item 159 [127] UK the Russian Federations according to which punishment for this crime made in especially large size, znachiyotelno it is less than for swindle in especially large size under item 159 UK the Russian Federation [128 [129] [130]. As a matter of fact, the Constitutional Court of the Russian Federation has established infringement criminally-pravoyovyh principles of equality of citizens before the law and justice, dopushchenyonoe the legislator.

In other case unfair is, in our opinion, differentsiayotsija citizens on social and to a property status at clearing of the criminal liability on affairs about economic crimes in soyootvetstvii from item 761 UK the Russian Federation. A clearing condition in this case is
Not weight of the committed crime, that is a universal category ugoyolovnogo the rights, and an accessory of the subject to certain social group (businessmen or the citizens possessing high incomes).

Scandalous proceeding on the facts multi-billion hiyoshcheny in the Ministry of Defence of the Russian Federation, terminated in bringing to criminal liability of several figurants by which have been appointed simvolicheyoskie punishments, has shown, that the modern judiciary in RosYOsii cannot realise in full criminally-legal principles rayovenstva and justice. In particular, judgements concerning one of figurants of this business, E.Vasilevoj, in a press named not differently, as «pleyovok in the person of a society» 1.

Thus, in modern Russian realities to consider nakayozanie as punishment does not allow the criminal a number stubborn moralyonyh contradictions.

O.N.Bibik has expressed interesting opinion on the punishment essence, based on positions of the theory of the social exchange offered by E.B.Pashukanisom. Last considered justice as a barter equivalent, at kotoyorom the crime exchanges on equivalent harm (punishment), prichinjaeyomyj to the criminal [131 [132]. O.N.Bibik, being based on the theory of a social exchange, considers punishment as a symbolical payment for fulfilment prestuple - nija [133].

Rational grain in this position, certainly, is. Really, direct conformity between weight of perfect act and severity nayoznachennogo punishments is not available and, as a rule, cannot be. Therefore zakoyonodatel, designing the system of penalties, creates an original scale uslovyo
nogo conformity between the social danger of a crime and degree of restriction of the rights and freedom condemned for its fulfilment. The convention of such comparison also means symbolical essence of punishment: often size of punishment not so is important, as the fact of its application.

For us matters that 1) a scale of conformity of weight prestupleyonija and punishments rather izmenchiva during the various periods; 2) in a society, as a rule, there is a consensus concerning such conformity. For example, in 1934 after murder With. M.Kirova on the country has swept a wave of meetings on which workers demanded a death penalty to murderers, and already later 70 years relatives of victims as a result of explosions of houses in to Moscow (1999) zajavyoljali, that they are satisfied by removal to terrorists of punishment in a kind pozhizyonennogo imprisonments.

The increase in terms of imprisonment for murder in the operating Criminal code of the Russian Federation can be other example of a similar sort of variability. If on UK 1960 the maximum punishment for second-degree murder (item 103 UK RSFSR) constituted RSFSR 10 years, and for qualified under item 102 — till 15 years in UK the Russian Federation the sizes of punishment are increased till 15 and 20 years of imprisonment accordingly. Practical necessity of such increase in terms has not been scientifically proved. However the statistics of murders in the USSR was enough safe, that speaks about sufficiency of applied punishments. KoeffiYOtsient murders counting on 100 thousand persons for 1956-1991 did not exceed 8,8 (average for this period — 6,6) 1, that is comparable to indicators of the Russian Federation (for example, in 2013 the factor of murders was equal 8,6 [134] [135]). Therefore sense of this certificate, in our opinion, exclusively symbolical: Along with change of structure of Special part UK the Russian Federation according to which it begins with "Crime against person" section, increase in terms liyo
shenija freedom the basic change of system of values, poyovyshenie should reflect roles and values of the separate person and degree of its protection by the new Rosyosijsky state [136].

Thus, symbolical value has any ignoring zayokonodatelem optimum, from the point of view of the prevention of crimes and nayogruzki on corrective system, the sizes of punishments in favour of conformity of their weight to the representations which have developed in a society about the fair sizes of punishment.

The theory of a social exchange is rather interesting also to that allows to resolve some question of criminal law or it is essential to simplify them. For example, within the limits of this theory the question on conformity stroyogosti punishments of weight of the committed crime can be removed. From the point of view of the theory of an equivalent exchange the state establishes "price" of offences on svoeyomu to an arbitrariness, and any "auction" in this occasion becomes inappropriate.

Despite the fact that what O.N.Bibik has truly noted symbolism criminal nayokazanija, to reduce its essence only to an equivalent «payments for a crime» nevertheless it is represented incorrect. Having accepted a similar position, we will inevitably face problems at a theoretical substantiation of such settled criminally-legal institutes, as clearing from criminal otvetstvennoyosti and from punishment, the circumstances commuting punishments. Are possible situayotsii when at the equal price of "goods" (values on which encroaches prestupyonik) "payment" in each case it will be essential to differ, and the price which the criminal pays, can depend on properties of its person (for example, to the persons who for the first time have faced the charges, the crime will manage "more cheaply", than earlier sudimym). And if the crime remains not opened it soveryoshaetsja in general is free". Absolutely not clear there is a place which in an equivalent exchange is occupied with forced measures medical or vosyo
The nutritious character, applied to minors.

One more lack of this theory essential, in our opinion, javyoljaetsja that the price establishment for a crime is an offer version, with that only a difference, that the consent of the second party to its conclusion not trebuyoetsja. For any transactions extremely important that the parties operated strictly rayotsionalno, realising all significant legal circumstances. However povedeyonie criminals, no less than usual citizens, frequently is neratsioyonalnym. During the interrogation spent by us condemned the overwhelming majority has declared, that crimes (the appendix 1) did not think of possible negative consequences goyotovjashchegosja them.

In connection with stated it is possible to conclude, that now the theory of an equivalent exchange of practical value in criminal law cannot have, as the quantity of questions resolved with its help is less than number of questions arising. Though, undoubtedly, it represents teoreticheyosky interest and is worthy the further discussion.

Unlike this theory and others considered above the points of view, the understanding of punishment under criminal law as the violence applied to the criminal, in our opinion, has a number of advantages.

First, such approach excludes any subjectivity in treatment of essence of the punishment, connected with author's interpretation of those or others termiyonov. Secondly, punishment consideration as violence allows theorists to refuse masking by its other terms, such as "penalty", "vozmezyodie", "compulsion" and to avoid errors at explanation of essence not only nayokazanija, but also other positions of criminal law. An example of a similar sort of errors, in our opinion, is the statement With. V.Polubinskoj that data of essence of punishment to deliberate causing guilty sufferings and deprivations contradict a principle of humanism [137]. The position of the scientist is caused by belief of the Soviet criminologists in existence kachestvenyo
nogo differences of punishment under criminal law in socialist and capitalist societies. In the first case the punishment maintenance form belief and priyonuzhdenie while in the world of the capital it is reduced exclusively to goloyomu to compulsion [138].

If to recognise that punishment is a violence any proyotivorechija with a humanism principle does not arise as causing stradayony is not the purpose, and the integral property of violence.

At the same time by consideration of punishment from the point of view With. V.Polu-binskoj its essence reduced to two essentially various methods of influence on behaviour of the person, is washed away. Presence of elements ubezhdeyonija and even encouragement in punishment under criminal law does not cancel that fact, that they become possible only as a result of application to condemned prinuyozhdenija, that is violence. So, realisation of educational actions concerning condemned to imprisonment becomes possible only poyosle compulsory isolation of such persons. Thus, in punishment initially violence.

I.S.Noj has correctly raised the question about the purpose of compulsion distinguishing a criminally-legal penalty from other kinds of compulsion (however, predlozhenyonoe it understanding of punishment as compulsions on purpose to cause sufferings it will not quite be adjusted with the principle of humanism fixed in item 7 UK the Russian Federation). OdYOnako neither it, nor someone another has not raised the question about that, for what purpose prichiyonjajutsja suffering to the criminal. We believe, that the unique answer, pozvoljayojushchim to justify the violence applied to the criminal, and not contradicting a humanism principle, the purpose of its compulsion to observance ugolovnoyogo the law, to refusal of fulfilment of new crimes is. Only rescue of the majority of the population from the sufferings caused by crimes, gives gosuyodarstvu the moral justification for causing of sufferings to minority (preyo
stupnikam). At such approach the sufferings transferred by the criminal, not javyoljajutsja the purpose. They — only extreme means of its compulsion to opredelennoyomu to an image of behaviour when other measures of influence are settled or neeffekyotivny.

Thus, essence, quintessence of punishment under criminal law javyoljaetsja symbolical violence which makes the state over prestupyonikom.

It is obviously important to specify a parity of concepts «criminal nakayozanie» and "criminal liability". In a context considered in nastojayoshchem research of a problem it is necessary for differentiation preduprediyotelnogo influences of various criminally-legal measures: punishments, other measures of criminally-legal character, the criminal liability.

Into criminal law theories sometimes in a turn are entered special termiyony, having special sense at the moment of their occurrence, adhered to outwardly - and internal political situation, allocated owing to it by special value for contemporaries. Subsequently, when the situation in the country changes, these termiyony continue the existence in the theory and the legislation, and new poyokolenija theorists try to explain them on the basis of modern it of theories, without history of occurrence of these concepts. Similar it is observed with isyopolzovaniem the term "penalty" arisen during the special period of existence nayoshego of the state and bearing, owing to it, the big symbolical loading. This word by inertia is applied in the legislation and in the criminally-legal theory till now, though former semantic loading any more neyoset. Meanwhile, as shown above, till now forces and attention of theorists distract on finding-out of essence of this term and an establishment of its any new semantic nuances. Such approach is represented neproyoduktivnym, if not counterproductive.

The similar picture is observed and with attempts of explanation of the maintenance ponjayotija "criminal liability". The spectrum of opinions is extremely wide. UgolovYO
naja responsibility is identified with criminally-legal санкциями1, with goyosudarstvenno-compulsory influence [139 [140], with a duty of the person, sovershivyoshego a crime, to come under to action of the criminal law [141], to answer before goyosudarstvom for sodejannoe [142]. In the latter case it sometimes supplement objazannoyostju to bear for committing a crime certain personal or imushcheyostvennyj a damage specified in the sanction corresponding criminally-rule of law [143].

Sometimes responsibility is understood not only as the personal duty to undergo negative consequences of unlawful conduct, but also as real them preterpevanie [144], following of criminal law requirements osuyozhdenie persons with application of statutory measures criminally-pravovoyogo influences [145].

A.I.Rarog considers the criminal liability as the complex phenomenon consisting from: 1) based on norms of the criminal law and vytekajuyoshchej from the fact of committing a crime of a duty of the person to give the report in sodejanyonom before the state in the name of its authorised bodies; 2) the negative estimation expressed in the adjudication (condemnation, a recognition prestupyonym) perfect act and censure of the person who has made this act; 3) nayo
Values guilty punishment or other measure of criminally-legal character; 4) previous convictions as consequences of condemnation with serving of the appointed order - ния1.

In opinion And. V.Naumov, under the criminal liability follows poyonimat all measures of criminally-legal influence applied to the person, soveryoshivshemu a crime, including and forced measures medical harak - tera [146 [147].

There is a point of view according to which the criminal liability is criminally-legal relations, arising between the person, recognised guilty of committing a crime, and the state [148].

Well and, at last, there is a point of view according to which the criminal liability is expressed in a court sentence a negative estimation obyoshchestvennogo dangerous act and censure of the person, its made [149].

We believe, that at such variety of various positions formulirovayonie own predecessors based on the critic, will be maloeffek - tivnym [150] and will allow to design, at the best, one more definition of the criminal liability, so vulnerable for the critical analysis, as well as all other [151].

Meanwhile in the criminal legislation and the criminally-legal theory
The given concept has appeared, to historical measures, more recently, less hundred years ago. Thus the context of its use, otrazhajuyoshchy the maintenance which the legislator in sootvetstvuyojushchy put in this term time period constantly changed. Therefore the analysis of history of occurrence and development of this concept of the domestic legislation will be the most productive by for opredeleyonija essence of the criminal liability.

In the pre-revolutionary right the term "criminal liability" not vstreyochalsja. At the initial stages of formation Soviet criminal zakonodatelyostva when criminally-legal terminology has not settled yet, the term «ugolovyonaja responsibility» was not used. The legislator designated application of the criminal legislation by terms "punishment" or «criminal represyosija». So, for example, Decision SNK RSFSR from September, 19th, 1918 nazyyovalos «About strengthening of criminal reprisal for transportation besides post veyodomstva letters, money and invaluable parcels» 1.

In article 2 of the Supervising beginnings on criminal law of RSFSR 1919 ugoyolovnaja reprisal was interpreted as a punishment under criminal law synonym: «Criminal law the system of public relations of the given class society ohrayonjaetsja from infringement (crime) by means of reprisal (punishment)» [152 [153] has the maintenance rules of law and other legal measures, koyotorymi.

The term "responsibility" has appeared for the first time in criminal zakonodatelyostve in UK RSFSR 1922 thus its application carried limited hayorakter: it met only in item 141 and 207 UK RSFSR 1922 and acted in kayochestve a synonym of the term "punishment under criminal law". In particular, according to item 141 UK «Infringement of rules about trade in these or those products or products when in them responsibility on suyodu is established, is punished by imprisonment or forced hard labour for term not niyo
Six months or the penalty to 500 rbl. gold »1.

The complex analysis of corresponding rules of trade and positions UK RSFSR shows, that terms "responsibility" 1922, «criminal otvetyostvennost» and "punishment" were considered as synonyms. In quality sinoniyomichnyh word-combinations «were used also to make accountable» and "is punished", meaning it is literally «to appoint punishment». So, in UK RSFSR 1922 in all articles of the Special part the disposition of corresponding norms zayokanchivalas "is punished" by a word, then in the sanction measures soyotsialnoj protection were listed. The sending containing in item 141 UK to rules of trade «... When in them legal liability is established...», shows ravnoyoznachnoe use in corresponding rules of terms «it is involved in the criminal liability» and "is punished". For example, in decision NarodYOnogo of a commissariat of public health services of RSFSR from November, 13th, 1922 « About dopolneyonii and instruction change about the right of opening and trade manufacture mediyokamentami »there was item 6, according to which«... For non-observance... prayovil owners of the enterprises are involved in the criminal liability under Criminal code item 141 »[154 [155] (it is allocated by us, S.B.), and in item 6 of Decree SNK RSFSR from January, 2nd, 1923« About measures to settlement of trading operations goyosudarstvennyh establishments and the enterprises »[156] infringement prayovil, stated in the present Decision was said, that«, punished with reference to item 106 of the Criminal code concerning officials and item 141 of the Criminal code concerning private persons »[157].

In Fundamental principles of the criminal legislation of USSR and Union republics of 1924 there are word-combinations «responsibility on the criminal
mu to the law »(item 1),"responsibility"(item 3),"criminal liability"(priyomechanie 3 to item 10),« the judicial responsibility for fulfilment of a certain crime »(item 22 1). Such terminological inconsistency svideyotelstvuet that the term"criminal liability"during this period has not been theoretically worked and yet did not represent itself as independent institute of criminal law, and it was considered as a term synonym« measures of social protection (punishment) ». Acknowledgement to this conclusion we nayohodim at authors of the monography« Criminal law. The jurisprudence history »which specify, that just in this period, first half 20th HH century is necessary the beginning of working out of theoretical questions on the bases ugolovyonoj to responsibility. Thus serious influence on this process representatives of a sociological direction in the criminal law have rendered, dangers of criminal action connecting an estimation with character of the perpetrator and, as consequence, considering a crime only as an occasion to acceptance of measures of influence against the person who have made criminal action [158 [159].

In UK RSFSR 1926 terminology is used more strictly. Perhaps, for the first time at legislation level it is possible to speak about system application of the term "criminal liability" and to do some conclusions about the reasons of its inclusion in the legislation.

First, under the influence of ideas of sociological school of the right there was a refusal of concept of punishment. If in UK RSFSR 1922 the term "punishment" priyomenjaetsja together with the term of "measure of social protection" in UK RSFSR 1926 the legislator uses for a designation of criminal reprisal only measures of social protection. There was a necessity for replacement of terms "nakayozyvaetsja", "is punished", as they did not keep within the new semantic number connected with application of measures of social protection.

Secondly, in UK 1926 under the influence of ideas of sociological school prayova indissoluble unequivocal communication «a crime — punishment» has definitively affirmed existing before in domestic zakonoyodatelstve. It was shown in the following: on the one hand, as the basis for application of measures of social protection according to item 7 UK of 1926 acted not only soyovershenie crimes, but also danger of the separate persons, caused them svjayozju with the criminal environment or last activity, on the other hand, ugoyolovnaja reprisal has ceased to be unique legal effect soveryoshenija crimes. Along with it the person could be completely released from application to it of measures of social protection (item 8 UK RSFSR 1926) [160]. VozYOnikajushchaja the polysemy of relations absolutely different in the legal nature between set of juridical facts «on an input» criminally-prayovovoj systems and set of criminally-legal consequences «on an exit» has caused requirement of the expression for the new term, for a transfer link between these sets, the certain legallistic indicator designating presence of legislative grounds for occurrence of ugoyolovno-legal relations between the figure and the state. We believe, what exactly in such quality the term "criminal liability" and was applied in UK RSFSR 1926 to Involve the person in the criminal liability meant, with odyonoj the parties, to establish presence of good causes for application of ugoyolovno-legal measures, and with another — to authorise for their application.

In conditions when the court could accept opposite on the soderzhayoniju decisions in the form of appointment to the person of measures of social protection or osvobozhdeyonija from them it was impossible to fill the term "criminal liability" with any real maintenance in the form of the rights, the duties, the specific measures applied to the guilty. Otherwise we would be forced to establish, for example, that the criminal liability consists as in naznayo
chenii guilty measures of social protection (punishment), and in clearing of them. It is obvious, that practical value of such definition extremely nevysoyoka, and its information capacity approaches zero.

Wrong attempts to define criminal otvetyostvennost through any duties assigned on guilty, as these duties at a criminal sentencing (measures social zashchiyoty) are represented also and at clearing of it (them) will be protivopolozhennymi, that also will null substantial value of this term.

We believe, that the maintenance of concept "criminal liability" in nastoyojashchee time means only a recognition court of the person guilty of fulfilment preyostuplenija in a verdict of guilty.

It is necessary to give explanatories and on one moment. In the domestic literature the opinion has been expressed, that introduction preventive administrayotivnoj dispatches (item 49 UK RSFSR 1922) testified to revival of methods imperial юстиции1. In that case there can be a question: whether pravomeyoren our approach to criminal liability definition, or "mnogoyoznachnost" which expresses this term, existed and earlier?

Really, before October revolution of 1917, the reference which consisted at a distance extrajudicially in fikyosirovannye the places of residence of the persons which character of activity dispatch right administratively the persons harmful for state and the public peace [163] not sootvetyostvoval to requirements of the authorities, circumstances, etc. [161 [162] In particular, «by Position about measures to ohraneniju the state order and public peace» to the Minister of Internal Affairs was given took place adminiyostrativnaja. At the same time presence of extrajudicial dispatch in imperial Russia on the pravoyovym to features is not identical to dispatch as item 49 UK RSFSR 1922
First of all its bases were regulated not by the criminal law, and separate normative acts. As well volume of restrictions, koyotorym were exposed ejected, it was defined not criminal zakonodatelyostvom, and separate normative acts, in particular, «by Position about poliyotsejskom the supervision founded under the order of administrative authorities» 1. Therefore the direct analogy between positions of item 49 UK RSFSR and polozhenijayomi about administrative dispatch in imperial Russia is not present.

We believe, that it would be more correct to speak about revival of methods of imperial justice primenitelno not to item 49 UK RSFSR 1922, and to normativyonym to the certificates regulating an order of administrative dispatch in the USSR. Speech here goes about Decree SNK «About administrative dispatch» [164 [165], instructions of People's Commissariat of Internal Affairs «On application of the Decision All-Russia Central IspolYOnitelnogo Committee about administrative dispatch» from January, 3rd, 1923 [166], nayodeljajushchej the Special commission at People's Commissariat of Internal Affairs the right of administrative dispatch of persons, «which stay in the given district (and within RSFSR) predstavljayolos on their activity, the past, communication with the criminal environment from the point of view of protection of a revolutionary order dangerous».

The term of "measure of social protection" has not got accustomed in criminal zakonodayotelstve. The reasons of it as specified A.A.Gertsenzon, consisted that zayomena concepts "punishment" on concept of "measure of social protection" were not obuyoslovlena necessity and could lead «to known errors and errors» as the similar word-combination was used in burzhuazyonom the criminal legislation [167]. We believe that, speaking about «known zabluyozhdenijah and errors», the author means a categorical negative estimation of activity of the Soviet criminologists convicted in skatyvanii to lombrozi - anstvu and biologizatsii causes of crime in S.J.BulatoYo's well-known article
ва1. The given work reflecting opinion of management Komakademii, had tjazhyokie consequences for domestic criminology: liquidation of offices on studying of the person of the criminal and criminality, Institute reorganisation on studying of criminality and the person of the criminal, the termination of researches of the person of the criminal. As it was expressed in I.S.Noj's this occasion, kriminoloyogicheskaja the science has ceased the existence [168 [169].

Blow on criminology a ricochet a reserve and criminal law, a consequence of that became return to the criminal legislation to 1934 of the term "punishment", in separate articles UK expression «again began to be used...dejanie karayoetsja...». At the same time the concept "criminal liability" has remained. NaYOchinaja since this period it existed in the legislation near to the term "penalty", that, most likely, and has allowed to the future generations of theorists an occasion to connect these two concepts.

Meanwhile refusal of the term of "measure of social protection" and rehabilitation of the term "punishment" new have not added anything in sense available mnogoyoznachnosti, underlying concept "criminal liability". Moreover, in UK RSFSR 1960 the spectrum of measures of criminally-legal influence has even more extended. Besides clearing of punishment (item 50) appears probation (item 44), respite to the military man or voyoennoobjazannomu in a wartime (item 46), respite (item 461), an enduring the punishment delay to pregnant women and women, imeyojushchim juvenile children, application of forced measures of educational influence to minors (item 63).

Thus, the spectrum of possible measures of the influence applied to liyotsu, recognised guilty of committing a crime, included:

- Punishment;

- Awarding punishment is conditional;

- Delay of execution of punishment;

- Forced measures of educational character;

- Clearing of punishment.

As we see, criminally-legal consequences of committing a crime were rather various on volume of restrictions, and in case of clearing of punishment were not accompanied by restrictions in general, that confirms the thesis about impossibility to fill the term "criminal liability" with the actual maintenance.

It is curious, that in UK RSFSR has appeared the formulation «osvoboyozhdenie from the criminal liability in connection with the expiration of limitation periods» (item 48) 1960. Earlier in item 14 UK 1926 the legislator in this connection said RSFSR, that with the expiration of limitation periods «criminal prosecution cannot have a place», and in item 21 UK RSFSR was said 1922, that after terms davyonosti «punishment is not applied».

We believe, that in evolution of criminally-legal terminology consecutive expansion of a spectrum of measures of influence on the criminal in otecheyostvennom the criminal legislation, caused requirement in new teryomine, symbolising presence of legal grounds for their application was reflected.

In similar conditions it is represented impossible to consolidate within the limits of one concept opposite on volume of restrictions of a measure criminally-prayovovogo character. The conclusion therefore follows, that attraction to criminal otvetyostvennosti means the fact of a recognition court of the person guilty of fulfilment preyostuplenija. The given concept has no other legal maintenance.

For our research important the question about sootnoyoshenii concepts "punishment under criminal law" and "criminal liability", kotoyoryj, taking into account the above-stated analysis is represented, can be solved enough proyosto: punishment under criminal law is one of possible consequences of attraction liyo
tsa to the criminal liability (sometimes speak about the form of realisation of the criminal liability). Thus punishment is an extreme measure applied when other measure of criminally-legal influence are not capable to prevent new crimes.

Thus, ugoyolovnaja responsibility possesses independent precautionary potential only owing to that presence at concrete forms of its realisation. If to start with offered above understanding sushchnoyosti punishment, and also considering that it is the basic form realiyozatsii the criminal liability, it is necessary to conclude, what exactly the violence applied to the criminal, and forms an original ridge predupreditelyonogo potential of system of criminally-legal measures. All the ways long individualizayotsii responsibility are based on a dichotomy — to apply or not primeyonjat violence to the criminal.

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A source: Bytko Sergey Jurevich. EFFICIENCY of PRECAUTIONARY INFLUENCE of PUNISHMENT UNDER CRIMINAL LAW ON CRIMINALITY: THEORETICAL And APPLIED ASPECTS. The dissertation on competition of a scientific degree of the doctor of juridical science. Saratov - 2018. 2018

More on topic § 1. Essence of punishment. A punishment under criminal law and criminal liability parity:

  1. § 3. The prevention of crimes as the punishment under criminal law purpose. The mechanism of precautionary influence of punishment under criminal law
  2. 1.1. Essence, the maintenance and the form of punishment under criminal law in the form of arrest
  3. § 3. The account of a parity biological and social in criminal behaviour as one of directions of increase of efficiency of punishment under criminal law Discussion about biological and social in behaviour of the person and the precondition to its renewal.
  4. Chapter 2. Punishment under criminal law: essence, the purposes and the influence mechanism
  5. § 3.3. The special bases of clearing of the criminal liability (punishment) for granting of the false information dangerous to the criminal trial, under the legislation of Russia, the countries of continental Europe and the USA
  6. § 1. Concept of punishment and value of its purposes of criminal liability realisation in Somalia.
  8. 2.2. External properties of punishment under criminal law
  9. punishment institute in Sinai criminal law
  10. the characteristic of the separate bases of softening of punishment under criminal law
  11. § 4. The punishment purposes in criminal law of the Russian Federation