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§1. A previous conviction and its components

In the scientific literature on criminal law there is no unequivocal and uniform understanding of the legal nature of a previous conviction. The fullest definition of a previous conviction has been given in the Decision of the Constitutional Court of the Russian Federation.

The previous conviction in this certificate was understood as the legal condition of the person caused by the fact of condemnation and appointment to it on a sentence vessels of punishment for the committed crime and attracting at repeated fulfilment with this person of a crime legal effects established by the criminal legislation; the outstanding for person outstanding or not removed previous conviction generates special, its public relations developing on the basis of criminally-legal regulation with the state which at fulfilment by this person of new crimes form the basis for an estimation of its person and the crimes made by it as possessing the raised social danger and consequently assume application to it of more strict measures of the criminal liability [2]. However the Decision was accompanied so

The given reason and powerful separate opinions of judges N.V.Vitruka and A.L.Kononova, that the problem of definition of legal nature of the considered criminally-legal phenomenon looks unresolved [3].

Deterioration of position of the person who has made most blamed

Infringements of rules of behaviour, has the difficult historical and legal nature. Necessity for change of position of the person who committed a crime and have left in this occasion punishment under criminal law, extensive enough theoretical substantiation in works of criminologists has received.

Despite a long way which has been passed by considered institute, possibly, it yet has not finished the development as till now in the criminal legislation the concept of a previous conviction is not fixed, and the list of consequences of a previous conviction continues to extend. So, in the first edition of item 86 UK the Russian Federation did not connect directly a previous conviction with the consequences provided by other acts. Such norm has appeared only in 84th edition of the criminal law with introduction of addition that the previous conviction «involves other legal effects in cases and is perfectly in order, which are established by federal acts» [4].

Studying of any legal concept or institute demands the generalised characteristic of its essence and the maintenance. The doctrine has developed set of definitions in which the previous conviction is opened from the most different parties. Polyphony of the points of view first of all is connected with what the previous conviction for this or that scientist is represented. That is previous conviction definition is one of the main components, allowing to open its nature and the maintenance.

All variety of opinions on the given question is necessary for dividing first of all into two kinds, according to that previous conviction definition appreciably depends on in what quality of the juridical fact to consider a previous conviction — single as the condemnation fact, or long-term — as the certain status [5].

In minority there is a point of view which considers a previous conviction as the single fact of condemnation, namely condemnation of the person by court. One representatives of this branch adhere to that the previous conviction is the fact of condemnation for the committed crime [6].

Others express, that the previous conviction is the fact not so much condemnation, how many enduring the punishment [7]. Considering a previous conviction place in system ugolovnopravovyh measures, A.J.Sobolev comes to conclusion, what not the previous conviction is a punishment consequence, and, on the contrary, punishment there is one of forms of realisation of the criminal liability which occurrence is connected with condemnation of the person [8]. That is condemnation of the person leads to appointment to it punishments. Its similar conclusion results from this, that it considers a previous conviction only in one it ipostasi — as the one-stage fact, instead of lasting with what to agree rather inconveniently.

The most widespread position is that which focuses attention to lasting character of a previous conviction. It is reduced to that the previous conviction is a certain element of the status of the person, set of its rights and duties which in a statutory measure differ from a legal status of other persons. So, within the limits of this direction one consider, that the previous conviction is, first of all, the legal status of the person created by the fact of its condemnation to the certain punitive measure [9]. Others believe, that the previous conviction is the legal condition of the person caused by its condemnation [10]. In turn G.J.Zinin considers as the previous conviction maintenance defined pravoogranichenija the rights, freedom and legitimate interests condemned, defined by rules of law. The specified restrictions form a special legal status of the person having a previous conviction which represents its form [11]. Within the limits of a considered position of a disagreement are observed in what to consider a previous conviction - a condition or position, in what some scientists see one of vital issues of a considered phenomenon [12].

The lack of definition of the previous conviction based on features of a legal status of the person, having a previous conviction, consists that such definition describes not so much previous conviction, how many its action on volume of competences of the certain person. Not casually in similar definitions a legal status describe as something "created", "caused" by that fact, that the person has a previous conviction. As a result the consequence, instead of the reason is exposed to the description. On the contrary, in our opinion, the previous conviction creates or causes special position of the person and limits its rights.

In this sense previous conviction definition not as result and as certain process, action, would be more correct. Deterioration of a legal status of the person having a previous conviction, occurs owing to presence at it a previous conviction. Therefore the sight at a previous conviction as on the belittling of the rights established by court created for the person by the fact of condemnation by its Soviet court to any punishment for a concrete crime, is represented to more exact [13]. It is the second position concerning a previous conviction. It is possible to carry to its representatives also F.R.Sundurova in which opinion the previous conviction is the criminally-legal encumbrance caused by the fact of real condemnation of the person to fixed penalty which predetermines the exhaustive list of interbranch adverse consequences [14].

The position of those who names a previous conviction a certain consequence - either condemnation, or punishment execution is close to them. So, JU.M.Tkachevsky considers, that a previous conviction - legal effect of condemnation of the person for the committed crime that generates its special legal condition [15]. And A.A.Gertsenzon believed, that the previous conviction is a consequence of execution of punishment [16]. From position N. G.Ivanov the previous conviction is sotsialnopravovoe a consequence of a recognition of the person guilty of committing a crime and its condemnation to fixed penalty [17]. On the other hand, E.V.Medvedev writes, that the previous conviction is legal effect of application of all measures of the criminal liability [18]. An intermediate position A.V.Naumov, in which opinion occupies a previous conviction - special legal effect of a verdict of guilty with the punishment application, defining special legal status of the person recognised as court guilty of committing a crime and condemned to punishment under criminal law [19].

The position about that the previous conviction is a consequence (condemnation or serving or punishment execution), is not deprived vulnerability to criticism. The previous conviction, certainly, arises according to the certain sequence established in the criminal law. However it appears as the independent legal phenomenon with the difficult nature, and that it operates at performance of certain conditions and chronologically follows any other legal phenomena does not characterise in its exhaustive image. Besides, as it has already been told, the previous conviction is a source of consequences of a legal status or the status of the person, and not just a consequence.

There are other points of view about the previous conviction nature. So, P.S.Dagel wrote, that the previous conviction is the certain legal characteristic condemned [20]. It is easy to agree With it, considering, that at executing a process-verbal of interrogation convicted according to item 8 ch. 2 items 174 UPK the Russian Federation at instructions of data on the person convicted are underlined presence or clean record [21]. Besides, according to item 73 UPK the Russian Federation, the circumstances characterising the person guilty, and also promoting guilty committing a crime, can be presence of a previous conviction [22]. Nevertheless, it is obvious, that essence of a previous conviction it not

It is limited.

A number of authors makes an attempt to deduce the previous conviction nature, having defined its place in system of criminally-legal measures. One consider, that the previous conviction is a separate measure of criminally-legal character. For example, A.I.Chuchaev and A.P.Firsov approve, that the previous conviction is a measure ugolovnopravovogo reactions at the committing a crime which social danger allows to apply appointment of concrete punishment [23]. G.H.Shautaeva insists that the previous conviction is an independent form of realisation of the criminal liability [24]. A.A.nechipurenko's point of view that a previous conviction - the measure of the criminal liability consisting in aggregate of restrictions of the rights and freedom, imposed in equal volume on all condemned [25] is similar. Others consider, that the previous conviction is other measure of criminally-legal character along with clearing of the criminal liability, amnesty, the pardon and t.d [26]. Others connect a previous conviction with criminal liability stages. For example, S.G Kelina argued: «the Previous conviction - a final stage of the criminal liability as previous conviction presence is connected with a number of disablements of the person who have committed a crime» [27]. The close position is occupied with it with A.V.Ulyanov, specifying, that the previous conviction is a part of the criminal liability and,

Accordingly, continuation of punishment [28].

There is also other point of view. So, And. V.Naumov approves, that the criminal liability is settled by departure condemned punishments, and consequently a previous conviction not an element of the criminal liability [29]. With it V.C.Pesljakas as «previous conviction presence means does not agree, that the person not completely was responsible for a crime and continues to remain the subject criminally-legal relations». He adds, that having separated a previous conviction from the criminal liability, it will be inconvenient to explain its essence, criminally-legal value and a role which it carries out [30]. V.C.Pesljakasa's arguments are represented insufficiently convincing. First, not clearly, whether continues the person to be the subject criminally-legal relations if criminally-legal and ugolovnoispolnitelnye previous conviction consequences concern it only in case it will commit a new crime before the termination of terms of a previous conviction. Consequences obshchepravovogo character, meanwhile, are fixed in laws of other branches of law, and conducting the register of the persons having a previous conviction, concern more likely administrative law. Secondly, would be not absolutely correct to carry a previous conviction to criminal liability elements in such a way to explain its essence. More proved the position therefore is represented And. V.Naumov that the previous conviction does not concern the criminal liability.

Undoubtedly, all presented definitions in own way adequately reflect the previous conviction nature as the previous conviction represents the difficult, many-sided legal phenomenon which is social-legal nature remains opened not up to the end. Nevertheless, it is possible with sufficient

Confidence to tell, that the previous conviction includes both the condemnation fact, and a legal status, and a legal ground for an establishment of the postcriminal is social-legal control over behaviour

Condemned [31].

In our opinion, the previous conviction represents the legal tool expressing disapproval by the state of behaviour of the criminal which norms regulate speed of returning to the persons recognised as criminals, legal status with which they possessed to their recognition those and defining the strengthened criminal liability at fulfilment of new crimes by them. Returning of initial position is carried out with various speed for various spheres of ability to live. In some areas the given speed zero (for example, law-enforcement activity). In some - it is restored quickly enough. This speed is differentiated depending on what crimes were made by the person, and what punishment to it has been appointed. Proceeding from it the volume pravoogranicheny for the person having a previous conviction, gradually decreases.

Such nature of a previous conviction, in our opinion, speaks that the previous conviction is not exclusively legal phenomenon and is based on certain public relations, only the part from which is regulated by previous conviction institute. These public relations include stigmatizatsiju the criminal, its deterioration social and legal (there where the right exists) positions and if it is possible, its gradual restoration in the rights. The basis of such process is representation about danger which conceals in itself the person who has committed a crime and from which it is necessary to save most ability to live prominent aspects (in more details about it see in §1 chapters 2). The given position is supported with that some authors underline that previous conviction consequences are not limited legal - ugolovnopravovymi, criminally-executive and obshchepravovymi, - but also attract so-called moral consequences [32].

Hence, we more tend V.P.Malkova's to position that the previous conviction by the legal nature is not officially certificated fact of condemnation of the person in the past, not the legal condition of the person arising at condemnation, not the form (or a kind) criminal liability realisations, and a security measure which being consists in an establishment and realisation of the is social-legal control over behaviour condemned which has found out the social danger the fact of committing a crime [33]. Representations about danger of the person having a previous conviction, generate its special status with a number of restrictions. However, it appears, that maintenance of safety of a society is not unique appointment of a previous conviction. It brings us to the purposes of a considered criminally-legal phenomenon which are a following component.

Some authors write, that the previous conviction purposes coincide with the purposes of punishment or, anyway, are adjacent with them. So, A.J.Sobolev and V.V. Golina approve, that the previous conviction purpose is fastening of results of execution of punishment [34]. Those who insists on previous conviction inclusion in the criminal liability, consider, that the person who has served time, remains not corrected, and, hence, that previous convictions are peculiar the purposes put before punishment [35]. However such approach fairly is exposed to criticism as undermines belief in ability of punishment under criminal law to reach the purposes. Sometimes the previous conviction purposes name preventive and educational [36].

JU.M.Tkachevsky paid attention to the preventive nature of a previous conviction [37]. Its position was criticised by V.I.Gorobtsov in which opinion that drops ability of a previous conviction to "work" only at infringement by the subject of criminally-legal interdictions [38]. Therefore V.I.Gorobtsov suggested to consider as the previous conviction purposes the general and private prevention, and also threat of retaliatory influence which becomes more active in case of fulfilment sudimym the person of a new crime [39]. With it M.V.Grammatchikov [40] is solidary. This position is represented not absolutely true as threat of retaliatory influence of a previous conviction is the mechanism with which help the preventive purpose is realised. That is the prevention of crimes is reached because potential criminals will be kept from fulfilment of criminal actions because of desire to avoid that, than the previous conviction threatens. In it correctly specifies P.F.Grishanin, speaking: « If the condemned was not corrected and is intended to commit again crimes to hope to keep it from it it is possible, only threatening more a strict liability in comparison with that, that threatens persons with clean criminal record earlier to persons »[41].

Others adhere to that the previous conviction pursues own aims. For example, in representation And. V.Ulyanov at considered institute three purposes: 1. The educational; 2. Safety maintenance; 3. adaptatsionno-resotsializatsionnaja (creation of conditions for full correction of condemned and its further stay in freedom conditions) [42]. Its point of view is rather vulnerable for criticism.

So, adaptatsionno-resotsializatsionnaja the previous conviction purpose has been denied practically by all respondents interrogated by us (97 %). Really, hardly imposing of weight of interdictions in significant areas of a life promotes returning of the person by a normal life. Conclusions that the previous conviction not quite reaches the purposes of adaptation and resotsializatsii the persons who have committed a crime, are confirmed with statistics. So, all for the first half of the year 2016 the number of the condemned has constituted 379034 persons. From them had not removed, outstanding previous convictions of 116265 persons that constitutes 30,67 %. The number of persons at which the previous conviction has been removed or extinguished, has constituted 44628 persons — 11,77 % of the general number condemned. The statistics for previous years shows about the same parity. 733607 persons are condemned for 2015 of all, from them of 32,69 % (239794 persons) had not removed or outstanding previous conviction. The number of persons at which the previous conviction has been removed or extinguished, has constituted 11,16 % (81847 persons). For 2014 the share of recurrent criminality has constituted 34,32 % (246847 of 719305 condemned); a share earlier sudimyh - 10,58 % (76069 from 719305 condemned). For 2013 the share of recurrent criminality has constituted 34,70 % (255207 of 735590 condemned); a share earlier sudimyh - 10,73 % (78954 from 735590 condemned). For 2010 a share the condemned, having not removed or outstanding previous conviction, constituted 31,7 %, for 2009 - 30,6 %, for 2008 - 28,4 %, for 2007 - 27,9 %, for 2006 - 28,3 %, and, at last, for 2005года — 27,9 % [43]. Apparently, quantity of those who has committed a crime, having not removed or outstanding previous conviction, in times above those who has committed a crime after removal or cancellation of conviction. The previous conviction orientation on safety maintenance remains more likely hypothetical, and imposed obshchepravovye restrictions have more likely character precautionary, assuming negative succession of events. That is as a whole the specified purposes of a previous conviction are only assumed, but have not been proved.

The previous conviction purposes are not limited to prospective maintenance of safety. We tend to that the previous conviction has own purposes which are distinct from punishment. In our opinion, the previous conviction purpose only partially supplement the purposes of punishment and in very small degree are caused by its character. It is possible to notice, that the role criminally-legal and ugolovnoispolnitelnyh previous conviction consequences is insignificant, while the person has not committed again a crime. So, the fact of presence of a previous conviction suffices for approach of criminally-legal consequences of a previous conviction (at relapse definition, at clearing of the criminal liability under the item of item 75-76 UK the Russian Federation, clearing of punishment under criminal law under item 80.1 UK the Russian Federation). In addition for definition of a kind correctional facility or possibility the fact of serving by the person of punishment in the form of imprisonment conditionally-parole matters. On the other hand, approach of criminally-executive consequences of a previous conviction also depends on the fact of presence of a previous conviction, relapse and (or) servings before punishment in the form of imprisonment (for example, at the decision of a question on the separate maintenance condemned to imprisonment (item 80 Wick the Russian Federation).

In a word, criminally-legal and criminally-executive consequences of a previous conviction as it has already been told, are some kind of "sleeping", "dozing". As a result consequences which come for the persons having a previous conviction, immediately and for all without an exception, are obshchepravovye previous conviction consequences, and, actually, some authors consider as their most important at institute of a previous conviction [44]. But the volume of these consequences depends not on such person has been sentenced to what punishment, and often does not depend even on cancellation of conviction. Crucial importance has character of perfect crimes. From what penal act has made the person, the circle of the activity forbidden for it will depend. For example, the person who has committed a deliberate crime against a life and health, cannot be the trustee according to item 2 of item 35 GK the Russian Federation [45]. However, for example, for a member of the self-adjustable organisation of auditors absence of not removed or outstanding previous conviction for crimes in economy sphere, and also for the crimes of average weight heavy and especially grave crimes [46] is required. That is situations when for the person there is no possibility to become the adoptive father are possible, however there are no legal bars that the person became a member of the self-adjustable organisation of auditors.

We tend to that obshchepravovye previous conviction consequences take practically predominating place in system of consequences of a previous conviction. It is necessary to notice, that allocated with authors (and us) the previous conviction purposes are connected, first of all, with obshchepravovymi previous conviction consequences whereas criminally-legal consequences of a previous conviction remain threat not involved while the person will not commit a new crime within the meant term, and in any sense inefficient, judging by

To statistical data.

In our opinion, it is necessary to name the previous conviction purposes:

1. The purpose of maintenance of safety by means of decrease in that risk, that in especially important spheres of public ability to live the person who has shown ability to harm to public relations will be admitted and to break the accepted rules by committing a crime. The given purpose of a previous conviction has difficult and almost archaic nature, and it is represented to us, that public relations on deduction outside of socially considerable activity of the persons who have committed a crime, are historical "kernel" of a previous conviction. However, this question will be considered in other paragraph.

2. The purpose of the general prevention as the previous conviction is regarded as considerable blow on reputations and the undesirable circumstance worsening opinion of associates about the person of the person. The sociological interrogation of the condemned spent by G.J.Zinin has shown, that more than half from among the interrogated respondents does not see a social negative in the previous conviction fact: 37,6 % interrogated have specified, that the previous conviction will not affect their life after clearing from correctional facility, and 13 % approved, that the previous conviction raises authority on a society [47].

3. The purpose of expression of an uncooperative altitude of the state and a society to the person who has committed a crime (stigmatizatsionnaja the purpose). As wrote A.J.Sobolev, «the previous conviction problem — to express a state and society uncooperative altitude to system of reference points and values which the person who has committed a crime adheres. Presence of such destructive system of values at the criminal also allocates it as the person who can be characterised as socially dangerous». He names a previous conviction «the condemnation developed in time» [48]. Some authors believe, that censure of the person who have committed a crime, a society and the state is the basic maintenance of a previous conviction [49].

The questioning spent by us as a whole will be adjusted with the received conclusion. We had been spent interrogation of 124 respondents - 41 the practising lawyer and 83 student-master and the student of the fourth year of training under the higher education program on a speciality "Jurisprudence" (the Appendix № 3). To respondents some questions in which it was necessary to choose one or several variants of answers from the offered have been set. Answers of respondents about the previous conviction purposes were meted as follows: 66, 12 % interrogated consider, that the previous conviction pursues the aims of special prevention, thus prevention in connection with admission restriction sudimyh persons to some spheres of ability to live more likely means. Further, 50 % interrogated consider, that the previous conviction pursues the aim stigmatizatsii the persons who have committed a crime. Expression of an uncooperative altitude of the state and a society became the third answer on popularity (33, 87 %). At the same time 55, 64 % of the persons interrogated by us have answered negatively a question on fastening of legislative behaviour by means of a previous conviction.

The previous conviction attracts, as is known, criminally-legal, ugolovnoispolnitelnye and obshchepravovye consequences. In the given work we accent research on obshchepravovyh previous conviction consequences as other consequences have been sufficiently studied by other authors.

The consequences of a previous conviction lying outside of UK the Russian Federation and Wick the Russian Federation, as a rule, name obshchepravovymi. In their scientific literature also name "kriminologicheskimi" or "neugolovno-legal" consequences судимости50. Some authors name them obshchegrazhdanskimi previous conviction consequences as they constitute is administrative-legal aspect [50 [51]. Studying of these consequences usually suffers the lacks, consisting that their research in the majority is limited to their transfer and classification by one or two bases.

Concept obshchepravovyh consequences of a previous conviction inseparably linked with concept of a previous conviction as the last includes all consequences established as UK the Russian Federation and Wick by the Russian Federation, and other laws. As a rule, their definition is given with instructions that they are not provided by the criminal legislation. For example, S.I.Zeldov understood under obshchepravovymi consequences «such legal restrictions of a certain circle sudimyh persons who are provided by norms of various branches of law, except criminal and criminally-executive, and are applied throughout all or a part of term of a condition of a previous conviction, but do not constitute the maintenance of a left concrete kind of punishment» [52]. The made definition full enough reflected essence obshchepravovyh consequences, however now, in connection with allocation in separate institute of measures of the postpenitantiary control, including administrative supervision occurrence, it has a little lost an urgency.

In our opinion, obshchepravovye previous conviction consequences is a complex component of institute of the previous conviction, reflecting decrease in social value of the person recognised made socially dangerous act. That is the fact of committing a crime established by the state undermines trust of a society to the member who has shown ability not to observe of a norm of behaviour accepted in society that finds reflexion in a legal status of the subject.

Further, we believe, that it is necessary to define the legal nature obshchepravovyh previous conviction consequences. In their literature name interdictions or the restrictions established concerning persons, having a previous conviction more often. Meanwhile concepts "restriction" and concept "will lock" essentially differ among themselves. The concept «restriction of the rights and freedom» is fixed in the Constitution of the Russian Federation and used in a context ch. 2 items 19,

ch. 2 items 23, ch. 3 items 55, ch. 1, 3 items 56. Item 79 of the Constitution of the Russian Federation. In theory of law legal restriction is defined as «the legal restraint of illegal act conditioning for satisfaction of interests of the countersubject and public interest in protection and protection; these are the borders established in the right in which limits subjects should operate, this exception of certain possibilities in activity of persons» [53].

Right restriction should be distinguished from legal ways used in legislative practice, receptions of fixing of borders of legal freedom. Reservations concern their number, notes, interdictions, exceptions (for example, item 21, 26, 29, 34, 37 Constitutions of the Russian Federation). According to V.I.Gojmana, difference of ways of fixing of borders and freedom from restrictions consists that fixing of limits of the right does not assume narrowing of its volume; «specification of its maintenance, a designation of borders with which this right» [54] is connected in this case takes place. If is more exact, restrictions of the rights do not lead to reduction of rights, that is at imposing of restrictions the volume of rights remains [55].

As to an interdiction it is one of ways of legal regulation, along with upravomachivaniem and objazyvaniem [56]. The interdiction assigns duties to the person not to make defined action and is directed on bar of claim by lapse of time of the actions, capable to harm the separate person or a society as a whole. This such constraining means which under the threat of responsibility should prevent the possible illegal acts harming both personal, and public relations [57].

On the other hand, A.G.Bratko expressed, that exists also the fourth way of legal regulation — legal restriction. The basic distinction between them that interdictions specify in legal impossibility of any action which is actually possible whereas restriction basically cannot be broken as it is restriction of the right which is provided with duties of the corresponding official. That is restriction

Is a narrowing or deprivation of the right [58]. S.S.Alexey Disagreed with it. He considered, that restriction or, on the contrary, expansion of the rights

Is not ways of legal regulation, and border, volumes of the adjustable rights which characterise result of legal regulation. Such result by means of new prohibitions, narrowings of permissions and additional objazyvanija [59] is reached.

We consider as more true the point of view stated by A.G.Bratko as presence only an interdiction, upravomachivanija and objazyvanija not in a sufficient measure allows to describe the restrictions connected with a previous conviction. If the interdiction provides certain responsibility for its infringement restriction though and it is close to an interdiction, but is calculated not on full oppression of this or that public relation, and on its deduction in strictly limited frameworks [60]. That is restrictions — statutory withdrawals from a legal status of the person owing to the certain circumstances, restraining freedom and interests of the person, but always having preventive character, osteregajushchy from possible adverse consequences both these persons, and other subjects [61 [62]. As a whole, though the purposes obshchepravovyh restrictions are defined differently, in the literature, the purpose of maintenance of safety of a society and государства62 is underlined.

So, the interdiction and restriction — are not synonymous each other. On the legal nature obshchepravovye consequences of a previous conviction are closer to restrictions as for their infringement by the person who have or having a previous conviction for this or that crime, sanctions are not provided. The measures undertaken in such cases, are directed first of all on restoration of a condition of public relations existing before their infringement, and also on the person responsible for maintenance of an order in similar relations. So, the person who should not hold a certain post owing to previous conviction presence, comes under to dismissal, and the weapon given out to it — to withdrawal. For this reason not quite correct will name obshchepravovye consequences of a previous conviction interdictions.

Some authors allocate the signs inherent obshchepravovym in consequences of a previous conviction. For example, A.V.Ulyanov to such signs ranks that: 1) action obshchepravovyh consequences

It is regulated by a complex of the norms concluded in various branches of law; 2) indefiniteness of some consequences; 3) occurrence owing to concrete corpuses delicti, magnitudes of offence and intention forms;

4) before the termination of a previous conviction the behaviour of the subject cannot influence the termination or stay obshchepravovyh consequences. Practically same signs, except for the first point, G.J.Zinin [63] allocates.

Meanwhile for a concept sign including concepts «obshchepravovye previous conviction consequences», set of essential signs, that is signs is characteristic, it is necessary belonging to it under all conditions. Without such sign the subject which the concept describes, cannot exist; this sign reflects the radical nature of a subject and by that distinguishes from other kinds and sorts [64].

It is obvious, that the signs allocated with specified authors are not inherent in all without an exception obshchepravovym to previous conviction consequences. Now the first allocated sign dependent on a way selected the legislator of fastening of the rule of law in regulatory legal acts is indisputable only. The second allocated sign, we believe, it is inconvenient to consider essential as it describes only some from obshchepravovyh previous conviction consequences. So, the corresponding interdiction, concerning candidates on a post of the deputy of the State Duma, is limited by ten or fifteen years after repayment or removal of a previous conviction [65]. Action obshchepravovyh consequences is frequent is limited by the terms adjusted with ch. 3 items 86 UK the Russian Federation [66]. The third allocated sign, in our opinion, is not essential for obshchepravovyh previous conviction consequences as is not it inherent only to one. For example, this sign approaches and for criminally-legal punishment. The fourth allocated sign will not be adjusted with norms ch. 5 items 86 UK the Russian Federation which establish possibility of removal of a previous conviction, and also, for example, from subitem 10 of item 1 of item 127 of the Family code of the Russian Federation.

We consider what probably to allocate following signs obshchepravovyh previous conviction consequences: 1. Fixedness in various branches of law with what we agree with A.V.Ulyanov and G.J.Zinin's offer. 2. These are restrictions as by us earlier it has been shown. For infringement by the person having a previous conviction, established in its relation obshchepravovyh previous conviction restrictions any sanctions, unlike an interdiction are not applied. 3. The basis of their imposing is presence at the person of a previous conviction. 4. Chronologically terms obshchepravovyh consequences coincide with terms of a previous conviction or exceed it, but never come to an end before removal or cancellation of conviction.

obshchepravovyh previous conviction consequences in the literature the sufficient attention is paid to classification. So, criteria of classification of F.V.Gabdrahmanov names action in time and in space, a kind of the subject (carrier) pravoogranicheny, degree of compulsion of observance

Previous conviction consequences, degree (levels) of restrictions, a validity of the standard legal acts regulating consequences of a previous conviction, a branch accessory, structure (a way of the description), sphere

применения67.

More often classification is spent by kinds of public relations in which sphere those or other interdictions operate. For example, A.V.Ulyanov divides obshchepravovye consequences into areas: [67]

1) protection of the constitutional system, law and order and delivering justice protection;

2) labour activity (pedagogical), including economic;

3) the legal relations regulating a legal status of the person as which the author understands interdictions for entrance and departure from the country;

4) military service;

5) the suffrage;

6) protection of a family, motherhood and the childhood [68].

Lacks of the offered classification is that fact, that in it have found reflexion some existing interdictions. For example, restriction regarding acquisition of the weapon by the persons having not removed or outstanding previous conviction for a crime, made deliberately, or having the removed or extinguished previous conviction for heavy or especially the grave crime made with application of the weapon, does not concern one of the kinds allocated with A.V.Ulyanov. Or, for example, will lock to become the member of the board of a housing co-operative also difficultly to carry to this classification as such activity does not concern neither to labour, nor to any to other of the reflected areas. However, changes about requirements to officials of housing co-operatives have been entered after some years after A.V.Ulyanov's writing of its dissertation.

Other authors, spending practically same classification, specify that for the characteristic obshchepravovogo values of a previous conviction essential value has differentiation of criminally-legal and social its aspects. On this basis classification obshchepravovyh restrictions on what obshchepravovye restrictions are cancelled with repayment or previous conviction removal and what — are not present [69] is offered. Considering the actual legislation, in the given classification it is necessary to add a kind of consequences which continue the action and after the expiration of terms of a previous conviction. Classification obshchepravovyh previous conviction consequences on the purposes, offered by G.J.Zinin, also does not possess their universal character [70].

In our opinion, there will be justified a division existing pravoogranicheny on those which observance is guaranteed by bodies state and municipal authority, on those which observance is supervised by public authorities, and others (the Appendix № 1). Such classification will show degree and control possibility over observance obshchepravovyh previous conviction consequences more visually, and also will allow to estimate efficiency of such control. Such classification also will allow to estimate possible severity of observance of norms about obshchepravovyh previous conviction consequences, and also their probable excessiveness or, on the contrary, insufficiency.

So, warranting by public authorities means, that restriction cannot be broken owing to that the corresponding field of activity is carried out or in power structures, or is rigidly supervised by granting of licences and permissions. Restrictions on employment of posts of the state civil service, restriction concern them in service in law-enforcement and courts of justice, the restrictions established in sphere of licensed kinds of activity and acquisition of subjects and substances under the strict control (the weapon, medical products), for example. The guarantee means an establishment of the filter fixed in the law, in the form of the obligatory requirement which infringement is possible only in case the similar will be admitted by public authority. So, receipt on public service is accompanied by granting by the candidate on a certain post of data on presence or absence at it a previous conviction, and also carrying out of verifying actions concerning it [71]. Weapon acquisition is possible after check carrying out on presence or absence at the citizen of a previous conviction for a crime made deliberately, or having the removed or extinguished previous conviction for heavy or especially the grave crime made with application of the weapon which is carried out by the authorised employee of the Ministry of Internal Affairs of Russia [72]. Infringement of similar restriction will lead to a statutory disciplinary responsibility of serving state body.

Obshchepravovye the restrictions which observance is supervised by the state, mean execution of their instructions by controls of not state legal bodies. Completeness of realisation of these interdictions is provided with activity of supervising bodies, and default of instructions of the law leads to attraction to administrative responsibility of officials of the corresponding organisations. This kind of restrictions concern, for example, will lock to be engaged in pedagogical activity. The control over observance of norm of item 331 of the Labour code of the Russian Federation is assigned to Office of Public Prosecutor of the Russian Federation, on the territorial Commissions on Juvenile Affairs and protection of their rights, the Ministry of Education and Science of the Russian Federation and other public authorities of the Russian Federation, subjects of the Russian Federation and municipal unions.

Others obshchepravovym to previous conviction consequences concern, in our opinion, for example, an interdiction provided FZ «About meetings, meetings, demonstrations, processions and piketirovanijah», that the person having not removed or outstanding previous conviction for fulfilment of a deliberate crime against bases of the constitutional system and safety of the state or a crime against the public safety and a public order cannot be the organizer of public action [73]. According to item 7 of the specified Law, carrying out of public actions has notifying character. Therefore, despite the fixed requirements about clean record to its organizer and a number of the established conditions, their observance cannot be guaranteed power structures, and the control over its observance is complicated. It is caused by that the right of participation in the similar actions, regulated by this Law, is guaranteed item 31 of the Constitution of the Russian Federation.

It is necessary to specify, that the restrictions extending on employment by certain kinds of activity, in our classification settle down non-uniformly as the state control over some spheres is stronger, than in others. For example, the activity connected with a turn of narcotics, the psychotropic substances, entered the List I prekursorov, and (or) kultivirovaniem narcocontaining plants, is under steadfast supervision of the state. The legal body can carry out such activity only in the presence of the conclusion of law-enforcement bodies about absence at workers who according to the official duties should have access to the specified narcotics, outstanding or not removed previous conviction for the crime of average weight heavy, especially grave crime or a crime connected with illegal circulation of narcotics, psychotropic substances, them prekursorov or with illegal kultivirovaniem narcocontaining plants, including for a crime made outside of the Russian Federation [74]. Similar requirements are established in FZ «About the weapon» [75]. On the other hand, requirements about absence of those or other previous convictions, for example, in such fields of activity as a securities market, bank activity, insurance business, activity of investment funds and the organisation and carrying out of gamblings extend only on controls of corresponding legal bodies [76].

Further, it is necessary to pay attention to structure obshchepravovyh previous conviction restrictions. In the literature to them carry actually all laws to which sends blanketnaja norms ch. 1 items 86 UK the Russian Federation. That is to them carry also the consequences defined by subitem 4 p 1 item 15 FZ «About an order of departure from the Russian Federation and entrance to the Russian federation» [77]. However we consider, that as this norm extends on the persons condemned for committing a crime, at the moment of time, limited to departure (execution) of punishment and before clearing of punishment it cannot concern to obshchepravovym to previous conviction consequences. Terms of cancellation of conviction start to flow after departure by the person of punishment whereas the specified norm operates prior to the beginning of a current of this term.

In spite of the fact that obshchepravovye previous conviction consequences are differentiated on various branches of law, they form uniform system. Their association is carried out on the basis of following signs. First, it is a sign of intersystem unity. The given sign is expressed in absence of contradictions between separate obshchepravovymi restrictions, available the general for all set obshchepravovyh consequences of the purposes, methods and a legal ground in the form of norm ch. 1 items 86 UK the Russian Federation. Besides, obshchepravovye consequences frequently supplement each other. For example, the aspiration to protect minors from negative influence of the persons who recognised in the past guilty of committing a crime and have left in this occasion punishment under criminal law, is expressed in a complex of the corresponding restrictions fixed in item 127 of the Family code of the Russian Federation, item 331 of the Labour code of the Russian Federation, item 35 of the Civil code of the Russian Federation and others. In the same way the aspiration to neutralise injury possibility to public relations in sphere of economy and the finance, directed concerning the persons who have committed crimes against specified legal relations, is expressed in a complex of the restrictions provided FZ «About the general principles of the organisation and activity kontrolno-schetnyh bodies of subjects of the Russian Federation», «About banks and bank activity», «About not state pension funds» and others.

Briefing the maintenance of the given paragraph, we consider necessary to formulate following conclusions:

2. The previous conviction is the legal tool expressing disapproval by the state of behaviour of the criminal which norms regulate speed of returning to the persons recognised as criminals, legal status with which they possessed to their recognition those and defining the strengthened criminal liability at fulfilment of new crimes by them.

3. The previous conviction purposes are: the purpose of maintenance of safety by means of decrease in that risk, that in especially important spheres of public ability to live the person who has shown ability to harm to public relations will be admitted and to break the accepted rules by committing a crime; the purpose of the general prevention extending, mainly, on persons, earlier not committing a crime; the purpose of expression of an uncooperative altitude of the state and a society to the person who has committed a crime (stigmatizatsionnaja the purpose).

4. Obshchepravovye previous conviction consequences is a complex component podinstituta the previous convictions, reflecting decrease in social value of the person recognised made socially dangerous act, by restriction of possibilities of its realisation in a number of spheres of a public life.

5. Signs obshchepravovyh previous conviction consequences are: 1. Fixedness in various branches of law; 2. Right restriction; 3. The basis of their imposing is the fact of presence at the person of the removed or extinguished previous conviction; 4. Chronologically terms obshchepravovyh consequences coincide with terms of a previous conviction or exceed it, but do not come to an end before removal or cancellation of conviction.

6. Obshchepravovye previous conviction consequences are expedient for classifying on those which observance by the state is guaranteed; on those which observance the state is supervised; and those which observance by the state is legislatively declared.

7. Obshchepravovye previous conviction consequences represent legal restrictions, instead of interdictions as mean reduction of volume of rights, instead of their full interdiction.

8. Do not concern to obshchepravovym to previous conviction consequences will lock to leave for limits of borders of the Russian Federation as this interdiction operates during the punishment time of performance, instead of during previous conviction terms. Besides, this interdiction is not restriction as for certain term liquidates the right given ch. 2 items 27 of the Constitution of the Russian Federation.

9. Obshchepravovye previous conviction consequences form uniform system of restrictions which are consolidated by an overall aim, the complementarity factor, a uniform method of legal regulation and a legal ground.

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A source: Arhengolts Ilona Arkadevna. PREVIOUS CONVICTION And IT OBSHCHEPRAVOVYE CONSEQUENCES. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg,. 2018

More on topic §1. A previous conviction and its components:

  1. §3. A previous conviction and condemnation consequences in foreign countries
  2. § 2. A place of a previous conviction and it obshchepravovyh consequences in system of institutes of criminal law
  3. §2. An estimation of efficiency of a complex of norms about obshchepravovyh previous conviction consequences
  4. § 1. Preconditions of occurrence of norms about a previous conviction in a human society
  5. §1. Main principles of a complex of norms about obshchepravovyh previous conviction consequences
  6. §2. History of development of a previous conviction in the Russian right
  7. Chapter 1. The theoretical bases of a previous conviction and it obshchepravovyh consequences
  8. Chapter 2. A previous conviction and it obshchepravovoe consequences in prostranstvennovremennoj matters
  9. Chapter 3. Perfection problems obshchepravovyh previous conviction consequences
  10. Arhengolts Ilona Arkadevna. the PREVIOUS CONVICTION And IT OBSHCHEPRAVOVYE CONSEQUENCES. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg,, 2018 2018
  11. § I. Cancellation of conviction at probation
  12. Comparison of efficiency of stimulation with previous reports EKO
  13. 1.2 Previous researches of metaphors about transfer
  14. § 1. Concept, essence and kinds of the interrogation previous a presentation for an identification
  15. § 1. Check and an estimation of the indications received during interrogation, previous a presentation for an identification
  16. CHAPTER 2. FEATURES OF THE INTERROGATION PREVIOUS SOME KINDS OF THE IDENTIFICATION
  17. § 2. Features of the interrogation previous a presentation For an identification of subjects
  18. CHAPTER 2. OBSTACLES To the MARRIAGE And the RELATIONS PREVIOUS ITS CONCLUSION
  19. application of the procedures previous the reference in ORS of the developing states
  20. § 1. An order of carrying out of the investigation previous an establishment of countervailing duties