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§ 1. Problems of application of norms of the criminal law at awarding punishment for plurality of crimes

In the criminal code of the Russian Federation it is provided only two variants of fulfilment by one person of several crimes: set and relapse. OsobennoYOsti awardings punishment for them are reflected in item 68 item, 69 UK the Russian Federation.

However glayova 10 UK the Russian Federation is added by rules of awarding punishment and other cases soyovershenija several crimes, for example, under cumulative sentences - item 70 UK the Russian Federation. It does not concern cumulative offences, and with retsidiyovom is connected only partially. It is easy to notice, that fulfilment prestupyolenija before condemnation for the previous crime at presence sudiyomosti, but for lack of relapse in the criminal legislation not reguliruyoetsja in itself, in aspect of awarding punishment. It is possible to consider it as a blank of criminally-legal regulation of questions of punishment at razyolichnyh displays of plurality of crimes.

It is right ST. Semibinsky, that the analysis of problems of awarding punishment with reference to institute of plurality of crimes should not svoyoditsja to ascertaining, and furthermore bezago the thief to the internal justification of that is; it should reveal public requirements, problems, sushchestvuyojushchie in practice of application of institute of plurality and punishment, tenyodentsii and development prospects in this области229.

At the heart of awarding punishment at various forms mnozhestvennoyosti crimes the requirements formulated in item 60 UK the Russian Federation lay: 1) appointment of fair punishment in the limits provided sootvetyostvujushchej by article of the Special part of the Criminal code; 2) the account of positions of the General part of the Criminal code; 3) application of more strict punishment

See: the Semibinsky ST. Purposes of punishment under criminal law. M, 1990. С.4.

From among provided for the committed crime only in a case, esyoli less strict kind of punishment cannot provide achievement of the purposes of punishment, and also in case of cumulative offences and set priyogovorov; 4) the account at character and degree awarding punishment obshchestvenyonoj dangers of a crime; 5) the account at awarding punishment softening and aggravating circumstances; the account at awarding punishment of the person of the guilty; 7) the account at awarding punishment of its influence on correction condemned and on conditions of a life of his family.

Feature of application of general principles of awarding punishment at mnoyozhestvennosti crimes consists in unity and interrelation of the rules fixed in item 60 and item 68, 69 UK the Russian Federation, but as it has already been noted, these norms do not cover all variety plural criminal dejayotelnosti.

In ch. 1 item 60 UK the Russian Federation is placed emphasis that to the person recognised viyonovnym in committing a crime, fair punishment is appointed. In the legal scientific literature to a justice principle as a whole and otyodelnym to its displays in particular it is devoted much работ230. We will note the following: the justice principle is basic at awarding punishment (knowingly from it the legislator establishes obyoshchie the awarding punishment beginnings), as all other rules konkretiziyorujut it.

«Justice - according to V.V. Maltsev, - as a principle kateyogorii"punishment"not only consolidates general principles of appointment of the order -

231

nija, but also acts as their basis ». At the same time the remark, that instructions of the legislator on necessity of appointment of the fair order - is true also

See: Galaktionov S.A.principle of justice (criminally-legal aspect): avtoref. dis... kand. jurid. Sciences. Ryazan, 2004; Kruk V. A. Circumstances aggravating punishment in principle realisation spravedyolivosti: avtoref. dis.... kand. jurid. Sciences. Volgograd, 2004; Lazutkin A.I.realisation of a principle spravedyolivosti at awarding punishment in the form of imprisonment: avtoref. dis.... kand. jurid. Sciences. Ryazan, 2004; Rjasov A.I.principle of justice in awarding punishment at plurality of crimes: dis.... kand. jurid. Sciences. Stavropol, 2004; Bunin O. JU realisation of a principle of justice at ustanovyolenii sanctions criminally-rules of law. M, 2006; Yudin V.V. n of awarding punishment as an implementer of a principle of justice: avtoref. dis.... kand. jurid. Sciences. Krasnodar, 2009.

231 See: Maltsev V.V. Printsipy of criminal law and their realisation in pravoprimenitelnoj dejatelyonosti. SPb.: Publishing house «the Legal centre the Press», 2004. With. 500.

nija in item 60 UK the Russian Federation would be excessive duplication of item UK the Russian Federation which gives concept of a principle of justice. Appointment fair nakazayonija is a principle, instead of the general beginning of appointment наказания22.

The legislator would fix a justice principle in item UK the Russian Federation and opredeyolil two its substantial aspects: «1. Punishment and other measures ugolovnoyopravovogo the character, applied to the person who has committed a crime, should be fair, that is correspond to character and degree of the social danger of a crime, circumstances of its fulfilment and the person of the guilty. 2. Nobody can bear the criminal liability twice for the same crime». At awarding punishment for mnozheyostvennost crimes the first of the specified aspects to the full otyorazhaetsja in the requirement of the account of character and degree of the social danger of again perfect crimes at relapse (ch. 1 items 68 UK the Russian Federation) and naznayochenija punishments separately for each committed crime at them sovoyokupnosti (ch. 1 items 69 UK the Russian Federation).

Justice of punishment should be co-ordinated and with public opasyonostju criminal action, and to the person guilty, and with others obstojayotelstvami affairs (softening and aggravating punishment). From the point of view of justice punishment should not be as unduly severe, and neyoopravdanno soft. Expedient punishment will be when it provides achievement of the purposes of the general and private prevention. SpravedliYOvost and expediency of punishment can be reached only on the basis of correct application of the law. In our opinion, the important condition naznacheyonija fair punishment at plurality of crimes is the correct legal estimation sodejannogo.

As shows the analysis of judiciary practice, the errors connected with neprayovilnoj by qualification at fulfilment of several crimes, svideyotelstvujut about incorrect interpretation, for example, continuous crime

See: Nepomnjashchaja T.V., Stepashin V.M.Problemy of awarding punishment: the manual. Omsk, 2011. With. 56; Blagov E.V.application of criminal sentencing general principles. M: JUrlitinform, 2013. With. 34.

And it otgranichenija from cumulative offences (12 %), or an establishment of signs of relapse (36 %), calculation of terms of repayment ugolovnoyopravovyh consequences of perfect crimes (27 %) etc. As a result wrong qualification of act attracts awarding punishment, not sootyovetstvujushchego sodejannomu.

We support opinion, that fulfilment of several crimes dolzhyono to come under to the unconditional account at appointment as punishment court as it, first, can be considered as the circumstance aggravating nakazayonie, and secondly, can have certain influence on application or not -

233

Application of the certain circumstances aggravating punishment In our opinion, quantity and uniformity of made crimes should influence the size of punishment appointed court. Also that term which has left condemned for previous preyostuplenie is not indifferent also. And if degree of danger of the person is that, that earlier naznachennoyogo punishments it has appeared insufficiently for relapse prevention court with good reason can extend term appointed this time. Besides, it is impossible to deny that fact, that fulfilment of several crimes renders bolshee negative influence on mentality of associates, than a crime made for the first time. Finally the establishment more a strict liability at plurality of crimes pursues also achievement of one of the punishment purposes - restoration social spravedyolivosti.

The instruction provided ch. 1 item 60 UK the Russian Federation, fixes objazanyonost vessels to appoint punishment within the sanction of norm of Special part UK the Russian Federation. This position to the full corresponds to awarding punishment for an individual crime and at relapse of crimes (ch. 2 items 68 UK the Russian Federation the bottom limit of punishment to Ouse from most strict establishes punishments, but within the sanction of article of Special part UK). At other kinds mnozhe -

See: SHkredova E.G.pluralit of crimes under the criminal legislation of the CIS countries. Smolensk, 2005. With. 95.

stvennosti crimes the general rule fixed in ch operates. 2 items 60 UK the Russian Federation which is supplemented with special rules, predusmotrennyyomi ch.ch. 2, 3 items 69 UK the Russian Federation, fixing appointment possibility okonchayotelnogo punishments in the size exceeding no more than half makyosimalnuju the sanction, and also formulated in item 70 UK the Russian Federation.

Fixed in ch. 1 item 60 UK the Russian Federation a rule that more strict kind of punishment from among provided for the committed crime naznachayoetsja only in case less strict kind of punishment not can obespeyochit achievement of the purposes of punishment, also has an exception at awarding punishment by rules ch. 2 items 68 UK the Russian Federation as the legislator has predetermined a choice of a kind of punishment by the most strict kind of the punishment established for the committed crime.

The general beginning of the awarding punishment consisting in the account of influence of appointed punishment on correction condemned and on conditions of a life of his family, at awarding punishment for plurality of crimes can be realised only in aggregate with other general beginning of awarding punishment specifying in necessity of the account of the person

The guilty.

The raised degree of the social danger of the person guilty of fulfilment of several crimes, is caused by that repetition of crimes testifies about bolshej degrees of the criminal propensity of the person or to a variety of such bents in this connection more strict punishment both for correction of this person is required, and for achievement of the purposes of the general and private предупреждения234. This property of the person (the is social-psychological characteristic of the person of the criminal) should receive a certain estimation at awarding punishment for plurality of crimes as it specifies in degree of social neglect guilty and, hence, on severity of the measures necessary for it resotsializatsii.

2 3 4 See: SHvets KN. Ukaz.soch. With. 115.

Responsibility and punishment strengthening - one of ways of rendering of more effective retaliatory and corrective influence on persons, soveryoshivshih some crimes. This way will quite be adjusted with a principle of equality of citizens before the law and at the same time is real projavyoleniem a principle of an individualization of responsibility. Establishing general rules of strengthening of punishability at plurality of crimes and opreyodeljaja a range of sanctions in the Special part, the law thereby embodies in these norms of the requirement of an individualization of punishment. In this sense it is important to observe balance between the competence of the legislator and court competences of sphere of definition of measures of criminally-legal influence on the criminal at presence in its act of signs of plurality of crimes.

No doubt, features of awarding punishment for mnozheyostvennost crimes can be called special rules on otyonosheniju to general principles. First, special rules develop, concretise and detail awarding punishment general principles, podchiyoneny the last. Secondly, they differ concreteness and clearness. In - tretygh, in them admissible limits and requirements are regulated at appointment of separate kinds of punishments, specificity of their integration in okonchayotelnoe punishment. Accordingly qualification of crimes, rezultayotom which is an establishment of signs of any kind mnozheyostvennosti, should attract application of special rules of appointment nakayozanija.

As is known, special rules of awarding punishment are the major tool of its individualization. At the same time practice of application of the item of item 68, 69 UK the Russian Federation testifies that the potential of a guarantee of strengthening of punishment put in pawn in them is realised not to the full therefore the specified rules not always carry out the straight line zadayochu the account of the form of plurality of crimes and features of the person of the criminal, their made.

So, we will consider special rules of awarding punishment from the point of view of specificity of separate kinds of plurality of crimes and those problems which arise in connection with their punishability.

Awarding punishment under cumulative offences

According to ch. 1 item 69 UK the Russian Federation punishment is appointed separately for each committed crime. It, in turn, means, that court, being guided by requirements of general principles of awarding punishment, considers character and degree of the social danger of a concrete crime, lichyonost guilty, the circumstances softening both aggravating punishment, and other positions of the General part of the Criminal code, the kind and the size of punishment on each of entering into cumulative offences defines.

At cumulative offences two basic ways are applied

Awarding punishment (principle): absorption of less strict punishment bo - 23S

lee strict and full or partial cumulative sentence. The system pogloyoshchenija considerably simplifies an appointment procedure of punishments, but causes general exceptions as the person, making some crimes, actually bears responsibility only for one of them. Application only an addition principle also has the lacks: at addition of the big terms of imprisonment, punishment cannot be executed completely, nevozyomozhno to combine lifelong imprisonment or a death penalty with srochyonym imprisonment and т.д.236

In the literature recommendations concerning a choice of principles of awarding punishment on совокупности23 ’ time and again expressed, but the legislator and has not come to a common opinion. Therefore the decision of a question on in what sluyochajah to apply this or that way of definition of definitive punishment,

2 3 5 Some authors allocate three ways (principle): 1) absorption of less strict punishment boyolee the strict; 2) partial cumulative sentence; 3) full cumulative sentence. See, napr. SI Barrows. Awarding punishment and clearing of punishment. M: JUrlitinform. 2014. With. 79; ZHevlakov E.N.NaznaYochenie of punishment. M, 2014. With. 56;, etc.

In more details about it Kruglikov L.L., Vasilevsky A.V.differentiation otvetyostvennosti in criminal law see, e.g. SPb.: Publishing house «the Legal centre the Press», 2003. With. 102-103.

2 2 2 See: Nikiforov A.S.cumulative offence. M, 1965. With. 124-126; Malkov V.P.SovokupYonost of crimes. With. 245-246; Stanovsky M.N.Ukaz.soch. With. 334.

Completely depends on judicial discretion. From containing in item 69 UK the Russian Federation

Awarding punishment rules under cumulative offences it is difficult to understand,

By what additional criteria the court should be guided at

Choice of a concrete way of awarding punishment. In this connection some

Researchers approve, that courts not always obosnovanno select that 238

Or other principle of definition of definitive punishment

Really, it is influenced by set of circumstances: number prestupyoleny, a combination of their social danger, a time interval, proyoshedshy between them, the form of fault of perfect crimes etc.

In the literature various algorithms of that definition or 239 are offered

Different way of appointment of definitive punishment. So, V.N.Burlakov recommends in a case provided ch. 2 items 69 UK the Russian Federation (if the criminal concerns to easy and sredne ispravimomu to type) to apply a way pogloshcheyonija and if concerns to difficult or especially difficult ispravimomu to type - a way of partial or full addition. In a case provided in ch. 3 items 69 UK the Russian Federation (if the criminal concerns to easy and sredne ispravimomu to type), are offered to apply a way of partial addition and if concerns to difficult and especially difficult ispravimomu to type - a way full сложения240.

The given offers in practice cannot be realised for some reasons. First, the account of the person of the criminal occurs at a stage opredeyolenija a kind and the size of punishment for each committed crime, vhoyodjashchee in set on the basis ch. 1 items 69 and ch. 3 items 60 UK the Russian Federation. In - the second to learn «type ispravimosti» the criminal it is possible only at a stage isyopolnenija concerning it concrete punishment. On sense of item 17 UK the Russian Federation, for one of perfect crimes the person has not been condemned yet, poyoetomu to define, the previous punishment has how much affected it is

231 See: CHernenko T.G.pluralit of crimes on the Russian criminal law: the Bottom. With.

371.

2 2 2 See, e.g., Lazutkin A.I.realisation of a justice principle at awarding punishment in the form of imprisonment: avtoref. dis.... kand. jurid. Sciences. Ryazan, 2004; Sadovnikova O. A. Awarding punishment under cumulative offences: theory and practice problems: dis....kand. jurid. Sciences. Volgograd, 2008.

2 4 0 See: V.N.Individualizatsija's Barge hauliers of punishment under criminal law: the law, the theory, judiciary practice. The Uchebno-practical grant. SPb.: Publishing house «the Legal centre the Press», 2011. With. 58.

lenie (as, for example, at relapse of crimes), it is impossible. Though the author, certainly, the rights, underlining, that at awarding punishment on sovokupnoyosti crimes to consider the person of the criminal follows more carefully.

According to some researchers, at awarding punishment lichyonostnye qualities of the defendant are considered by court enough но241. This conclusion proves to be true also practice: by regional court of of Lipetsk it is condemned B on ch. 1 items 176 UK the Russian Federation by 1 year of imprisonment and on ch. 1 items 176 UK the Russian Federation by 1 year to months of imprisonment, on the basis ch. 2 items 69 UK the Russian Federation under cumulative offences to it are appointed 2 years of imprisonment in koyolonii-settlement. Thus the court has cited in a sentence data that osuzhyodennyj earlier to the criminal liability was not involved, recognised the fault and has repented in sodejannom, actively promoted disclosing prestupleyony, on expense has the juvenile child, is characterised polozhiyotelno. At the same time in the presence of such data in a sentence there were no data on why condemned for correction isolation from a society is required. On this basis the Full court on criminal cases VerYOhovnogo of Court of the Russian Federation has changed judgements and Would appoint. Punishment in viyode the penalty for each crime and on set преступлений242.

The choice of this or that principle for definition definitive nakayozanija depends on a category of the crimes entering into set preyostupleny. Originally in ch. 2 items 69 UK the Russian Federation have been established, that if all crimes made on set, are crimes of small or average weight definitively punishment can be appointed by any of the listed ways. Thus, the major feature of cumulative offences of small and average weight javyoljalas possibility of application of a way of absorption of less strict nakazayonija more strict at definition of definitive punishment. Changes -

41 See: Laktaeva A.JU.principle of equality before the law, its realisation at awarding punishment: a bottom.... kand. jurid. Sciences. Samara, 2010.

See: Definition № 77-D11-6. The review of supervising practice of the Full court on criminal cases of the Supreme Court of the Russian Federation for the first half of the year 2012 [the Electronic resource] / URL: http: ∕∕ www. supcourt.ru∕second. php (date of the reference of 28.02.2013).

mi in the given part of article, brought by the Federal act from December, 7th, 2011 243, the absorption principle more strict punishment of less strict is offered for extending and to preparation to heavy or especially tjazhkoyomu to a crime, and on attempt at fulfilment of the specified crimes.

At the same time attempt at fulfilment heavy or especially heavy preyostuplenija at which act is interrupted on independent of the person obstojayotelstvam, possesses enough high degree of the social danger. Besides, in ch. 2 items 69 UK the Russian Federation the legislator has not specified attempt on preyostuplenija to small and average weight. After all it is known, that according to item 30 UK the Russian Federation (unlike preparation) is punished crime of any category, and not just heavy or especially heavy. As the question on criteria of a choice of this or that variant of definition of definitive punishment both in the theory, and in judiciary practice remains disputable, courts not always unequivocally solve these questions that leads to occurrence of miscarriages of justice.

So, on a court D sentence on the basis ch. 3 items 69 UK the Russian Federation by chastichyonogo cumulative sentences it is condemned to to years of imprisonment. The full court on criminal cases of the Supreme Court of the Russian Federation has changed a sentence in otyonoshenii D, having specified, that punishment should be appointed on ch. 2 items 69 UK the Russian Federation as all crimes entering into set, are pokusheniyoem on especially grave crime. Having applied a principle of absorption of less strict punishment by more strict, punishment would be defined in the form of 4 years of months of deprivation свободы244. In the given example the trial court neyoverno has referred to a part of article which has applied at definition okonchayotelnogo punishments. At the same time and in definition of the Supreme Court of the Russian Federation proved enough position why in it is given - in our opinion, does not contain

See: the Federal act from 07.12.2011 № 420-FZ «About modification of the Criminal code

The Russian Federation and separate acts of the Russian Federation »//Union of Right Forces the Adviser plus. URL: http √∕ base.consultant.ш (date of the reference 28.02.2013).

2 4 4 See: Definition № 1-012-29. The review of judiciary practice of the Supreme Court of the Russian Federation for the third quarter 2012//the Supreme Court of the Russian Federation. URL: Imp: ∖uu ⅝. supcourt.ru/second.php (date of the reference 28.02.2013).

nom a case it is necessary to apply an absorption principle, instead of partial cumulative sentence. Meanwhile the social danger made liyotsom crimes is high enough - attempt at murder and attempt at stealing of the car with application of the violence dangerous to a life and health of the person. It is thought, that the principle of merger of sentences should be kept only for preparation to heavy or especially to grave crime. And in case of attempted crime of any category such possibility is necessary for excluding.

The category of the crimes entering into set, is one of conditions at a choice of this or that principle of definition of definitive punishment. An absorption principle according to ch. 2 items 69 UK the Russian Federation can be applied, only if set is formed by crimes of small and average weight while the principle of full addition of punishment can be applied at any category of crimes.

So, M it is condemned on ch. 4 items 111 UK the Russian Federation by 9 years of imprisonment, on ch.

1 items 116 UK the Russian Federation by 160 o'clock. Obligatory works. By full cumulative sentence 9 years of 20 days of deprivation свободы245 are definitively defined. In other example S has committed crimes of small and average weight and has been sentenced on ch. 1 items 115 UK the Russian Federation to to months of correctional labour from 10 % of deduction from wages, on ch. 1 items 161 UK the Russian Federation - by 1 year isprayovitelnyh works from 10 % of deduction. Definitive punishment would constitute 1 year of months of correctional labour from 10 % удержаний246. We will notice, that in naruyoshenie the requirements fixed in the decision of Plenum of the Supreme Court of the Russian Federation from December, 22nd, 2015 247, in sentences of vessels practically otsutstvuyoet a formulation of motives of the decision made by court: why in a concrete case the court chooses this or that principle of definition definitive

24i See: the Sentence on business № 22-20/12 Lesozavodsky city courts of Primorye Territory [elektronyonyj a resource] ∕∕ https7∕rospravosudie.coriVcourt-primorskii-kraevoi-sud-primorskii-krai

See: the Sentence of Sverdlovsk regional court of of Irkutsk [the Electronic resource]//http s 7∕ro sprav osud і e. With om∕c ourt-s verdl ov skij-raj onnyj - sud-g - irkutska - irkutskaya-oblast-s/act-104691854/

147 See: the Decision of Plenum of the Supreme Court of the Russian Federation from December, 22nd, 2015 № 58 «About practice of appointment by vessels of the Russian Federation of punishment under criminal law» [the Electronic resource]//Union of Right Forces the Adviser Plus.

Punishments. According to our research, such motives were absent in 73 % sentences.

The sense of a principle of merger of sentences consists that less strict of the appointed punishments is absorbed by more strict. Thus appointment of more strict punishment is defined by instructions of item 44 UK the Russian Federation establishing the system of penalties by a principle of their increase stroyogosti. As a whole complexities with the definition, what punishment is more strict, in practice does not arise, but in the literature the attention to the given problem concerning punishment in the form of correctional labour is paid, koyogda they differ on terms and the sizes of deduction from earnings osuzhdenyonogo. If correctional labour is appointed to longer term at the equal sizes of deduction more strict punishment are isprayovitelnye works with longer term. If corrective rayoboty are appointed to identical term, but with the various size of deduction correctional labour with the big size uderyozhany from earnings condemned will be more strict. If for one of crimes smaller term, than for another, but with the big size of deduction, that, on mneyoniju some authors is appointed, the severity of punishment should be defined on dliyotelnosti term to which are appointed corrective работы24 8.

Let's admit, for one crime condemned are appointed ispravitelyonye works for a period of 1 year from 20 % by deduction from earnings, for the second preyostuplenie - correctional labour for 1,5 years from 10 % deduction. We will settle an invoice deduction, proceeding from earnings of the rbl. condemned in 20 Open Company in a month: 20 % a month will constitute 4 thousand rbl.; 10 % - 2 thousand rbl. TaYOkim in the image, for a year of correctional labour at 20 % will be withheld 48 thousand rbl., and for one and a half year of correctional labour at 10 % - 36 thousand rbl. OchevidYOno, that the severity of punishment at longer term is enough sporna. A.M.Jakovlev in due time paid attention To this circumstance, believing, that comparison of punishments should be made on a total sum of deduction for
All period: more strict punishment will be that correctional labour where in total there will be bolshej a sum of deduction from заработка249.

On the basis of item 50 UK the Russian Federation correctional labour is appointed osuzhyodennomu both taking the basic place of work, and not having it. Condemned, not having the basic place of work, serves time in the places defined by local governments in coordination with criminally-executive inspections. Therefore until osuzhyodennyj it is not employed, the court does not know, from what sum to proceed to estimate deduction. It is impossible to agree and with opinion separate avtoyorov about necessity of increase in percentage deduction from earnings osuzhyodennyh. So, V.N.Orlov suggests limits of deduction to establish from 10 to 50 %, and I.G.Kydyjakov - at cumulative offences at the rate to 25 %, at cumulative sentences - to 30 %

Correctional labour basically is provided for crimes of small and average weight, and at awarding punishment under cumulative offences the absorption principle is usually applied, therefore protsentyonye deduction cannot develop. Besides, the low income osnovyonoj weights condemned to correctional labour can seriously affect applicability of the given kind of punishment. With a view of uniform primeneyonija the law in judiciary practice it is necessary to choose only one criterion of definition of weight of correctional labour. In the given situation tselesoobyorazno to compare severity of punishments in the form of correctional labour not on a total sum of deduction, and on duration of term to which correctional labour as except deduction from earnings osuzhdenyonyj tests also others pravoogranichenija are appointed, established ugolovnoyoispolnitelnym the legislation. In item 16 of the decision of Plenum VerYOhovnogo of Court of the Russian Federation from December, 22nd, 2015 it is specially underlined, that at

See: JAkovlev A.M.cumulative offence on the Soviet criminal law. With. 99-100.

”See: V.N.Problemy's Eagles of appointment and execution of correctional labour: dis.... kand. jurid.

Sciences. Stavropol, 2000. With. 148; Kydyjakov IT. Application of punishment under criminal law in the form of correctional labour: avtoref. dis.... kand. jurid. Sciences. Krasnoyarsk, 2002. With. 7.

Application of a rule of full or partial cumulative sentence addition is come under only by terms of correctional labour, instead of percent of deduction from zayorabotnoj payments.

In judiciary practice the principle of merger of sentences is applied doyostatochno seldom (on our data, no more than in 1,7 % of cases). That not meyonee the part of authors supports still bolshee its restriction primeneyonija, i.e. only at certain situations: when one of crimes is obviously insignificant in comparison with another; at set umyshyolennogo and careless crimes; at ideal set preyostupleny and other 251 In our opinion, it is not absolutely true, as the court in ljuyobom a case should discuss a question on application of this or that principle of appointment of definitive punishment, and the establishment additional ograyonicheny can promote infringement of a principle of an individualization of punishment under criminal law.

So, in ch. 2 items 69 UK the Russian Federation are established the bases of application of a principle of merger of sentences at cumulative offences. However instructions in ch. 3 items 69 UK on a method of definition of definitive punishment only with isyopolzovaniem principles of full or partial cumulative sentence at all do not mean the Russian Federation, that the principle of merger of sentences cannot be applied at set heavy and especially grave crimes. The given position is not fixed in the criminal legislation, but applied in judiciary practice. The matter is that instructions ch. 3 items 69 UK do not work the Russian Federation when for one of the crimes entering into set, punishment in the form of lifelong imprisonment as ocheyovidno, what to combine lifelong imprisonment with urgent imprisonment is appointed it is impossible. The absorption principle meyonee strict punishment by more strict is in that case applied, and it contradicts the imperative rule fixed in ch. 3 items 69 UK the Russian Federation.

So, with a view of observance of a principle of justice appointment nakazayonija under cumulative offences by absorption of less strict nakayozanija more strict in judiciary practice should be applied: if all preyostuplenija, made on set, are crimes neyobolshoj either average weight, or preparation to heavy or especially to grave crime if the court on all made to the defendant preyostuplenijam establishes the circumstances provided by points both"and (or)"to"ch. 1 items 61 UK the Russian Federation in the absence of aggravating circumstances, esyoli for a crime, entering into set, punishment in the form of lifelong imprisonment or a death penalty is appointed. For uniform understanding and criminal law application it is possible to reflect this rule in

UKRF.

When at least one of the crimes made on soyovokupnosti, is heavy or especially heavy, awarding punishment proyoishodit only by partial or full cumulative sentence (ch. 3 items 69 UK the Russian Federation). The essence of a principle of partial cumulative sentence consists that court at definition of cumulative punishment to the most strict punishment partially attaches the punishment appointed for another preyostuplenie, entering into set. Thus the judge is guided by item 71 UK the Russian Federation on which basis less strict punishment is recalculated in more strict and then partially develops. For example, one day of imprisonment is equal to three days of correctional labour or eight hours objazayotelnyh works.

When one punishment cannot be transformed"in druyogoe, the addition principle is not applied also each of punishments executed independently. For example, punishments in the form of the penalty, debaring to occupy certain posts or to be engaged in certain activity, deprivations special, military or an honorary title, a class rank and the state awards, it agree ch. 2 items 71 UK the Russian Federation, at their addition with freedom restriction, arrest, the maintenance in

Disciplinary military unit, by imprisonment are executed independently. However the legislator does not answer a question on how punishment under cumulative offences in the cases which have been not provided by item 71 UK the Russian Federation should be appointed. For example, at punishments in the form of the penalty, obligatory works and correctional labour it is not known, from what proportions to proceed that these punishments in full or in part developed with each other. In practice in such cases courts order to execute each punishment independently.

E.G.Vasileva notices, that such appointment of punishments does not concern

Neither to an absorption principle, nor to a principle full or partial

Cumulative sentences, and the version of a way 25 2 represents

With a view of perfection of rules of appointment of punishments under cumulative offences it is necessary to regulate cumulative punishments the named way directly in the criminal law text.

In judiciary practice of vessels of Primorye Territory, on our data, predyopochtenie it is given to a principle of partial addition of the appointed punishments (95 %), principles of full addition nakazayony (3,3 %) and absorption of less strict punishment by more strict (1,7 %) are much less often applied. The explanation to it can be found in the criminal law according to which corrected about partial cumulative sentence more universally, poyoskolku it can be applied at any combination of crimes of a various category. Thus the court does not have necessity to calculate, whether exceeds definitive punishment more than half the maximum term or razyomer the punishment provided for heaviest of made preyostupleny (ch.ch. 2 and 3 items 69 UK the Russian Federation). As a rule, partial addition nakayozany is in limits of the maximum sanction for heaviest of crimes.

The judiciary practice analysis shows, that incompleteness of addition

Punishments under cumulative offences has nominal character. So,

By sentence Primosrkogo of regional court N it is condemned under the item ch. 2 items 105 UK

The Russian Federation by 12 years of imprisonment, under items "and", "g", "in", ch. 2 items 126 UK the Russian Federation

To to years of imprisonment, on ch. 1 items 161 UK the Russian Federation by 2 years of deprivation

Freedom, on ch. 1 items 131 UK the Russian Federation by 4 years of imprisonment, on ch. 1 items 119 UK

The Russian Federation by 1 year lishlenija freedom. By partial cumulative sentence 25 3

15 years of imprisonment are definitively appointed. If recognise that the maximum punishment in this case could to constitute 25 years of imprisonment (by full addition) partially combined punishment has appeared for 10 years less. In other example F it is condemned for eight crimes, qualified on ch. 3 items 159 UK the Russian Federation by 4 years of imprisonment, thus for each of them have been separately appointed 2 years of deprivation свободы254. Such practice as a whole is extended on all country and she allows to reveal a problem, an essence a kotra consists in absence of "incompleteness" of cumulative sentence.

A number of authors suggests to define legislatively, what part

The punishment appointed for a separate crime, it is necessary to include in 25 5

Total punishment. It is necessary to recognise this idea justified. It is expedient to fix in UK the Russian Federation the position establishing, that at partial cumulative sentence the court should define parts (sizes) of the punishments appointed for a separate crime, subjects for inclusion in total punishment. At such approach will receive essential restriction the judicial discretion, and also procedure will become simpler

See: Criminal case № 2-72/10//Archive of Seaside regional court for 2010

See: Criminal case № 1-25/10//Archive of Anuchinsky regional court of Primorye Territory for 2010 See: Dzhagrunov A.A.correct of awarding punishment at set and relapse of crimes

Require additional formalisation//the North Caucasian legal bulletin. 2013. № 3. With. 69 77; Tarbagaev A.N., Letnikov JU.S.problem of awarding punishment under cumulative offences by partial the cumulative sentences appointed for separate crimes, entering into set Kriminologichesky magazine of the Baikal state university of economy and the right. 2014. №2. With. 105-115.

Penal term calculations at an exception of a part of charge or criminal law softening.

The principle of full addition consists in definition of definitive punishment by summation of the punishments appointed for each of vhodjayoshchih in cumulative offences. For application of a principle full sloyozhenija punishments are not present the unequivocal answer what to understand as the maximum limit of this or that punishment at their full addition. Absence reyoglamentatsii (at awarding punishment under cumulative offences) the maximum definitive punishment of less strict, than deprivation svoyobody, is a blank of operating edition of item 69 UK the Russian Federation.

As an example it is possible to result the following situation. By court peryovoj instances S it is condemned for three crimes to correctional labour for a period of 2 years months. The supervisory authority has changed a sentence on sleyodujushchim to the bases. According to requirements ch. 2ст. 50 UK the Russian Federation correctional labour is established for the term from 2 months till 2 years. As it is seen from business materials, S it is appointed definitive nakazayonie under cumulative offences in the form of correctional labour to the term exceeding extremely statutory, namely 2 years mesjayotsev that the legislator - is material breach criminal

256

stva

After ours to the opinion, the given decision is unreasonable. From foryomulirovki ch. 2 items 69 UK the Russian Federation follow, that definitive punishment cannot exceed more than half the maximum term or the size of the punishment provided for heaviest of perfect crimes. The heaviest in the resulted example is the act provided ch. 2 items 158 UK the Russian Federation where correctional labour can be appointed for the term up to 2 years. Hence, definitive maximum punishment can be defined at a rate of three years of correctional labour, though according to the item

See: the Decision of presidium of Seaside regional court on business № 44-y ∕∕ l 1//Archive of Primoryosky regional court for 2011

50 UK the Russian Federation the given kind of punishment is established for the term from two months till two years.

In earlier operating decision of Plenum of the Supreme Court of the Russian Federation from January, 11th, 2007 true position according to which «definitive punishment under cumulative offences by full or partial cumulative sentence cannot exceed more than half the maximum term or the size of the punishment provided for heaviest of perfect crimes (a part the second) or more than half the maximum penal term in the form of imprisonment, preduyosmotrennyj for heaviest of perfect crimes (a part treyotja)» 257 contained, in our opinion. Any reservations about the maximum limits, predusmotrenyonyh in General part UK the Russian Federation, in the given explanation was not.

Thereupon incorrect the statement of those authors is represented, kotoyorye approve, that the maximum limit of punishment on set preyostupleny should not exceed the maximum sizes for concrete kinds of the punishments provided in item 46-56 UK the Russian Federation as ustanavliyovaja them, the legislator considered what exactly in such quantitative vyrazhe -

258

nii they are capable to reach the purposes. In the new decision of Plenum from December, 22nd, 2015 the Supreme Court of the Russian Federation has fixed this thesis, but only concerning two punishments: «definitive punishment in a kind objazayotelnyh works or the correctional labour, appointed on set preyostupleny or cumulative sentences, cannot exceed the deadlines established for these kinds of punishments in ch. 2 items 49 and ch. 2 items 50 UK

The decision of Plenum of the Supreme Court of the Russian Federation from January, 11th, 2007 № 2 «About practice of appointment by vessels of the Russian Federation of punishment under criminal law» (in red. 29. 10.2009) [ElekYOtronnyj a resource]//URL: http://base.consultant.ru (date of the reference of 28.02.2013).

2J! See: Larin L.JU.definition of the maximum limit of punishment under cumulative offences//the Person: a crime and punishment. 2010. № 1 (68). With. 31-33; Djadkin D.S.Ukaz.soch. With. 373.

' Item 16 the Decision of Plenum of the Supreme Court of the Russian Federation from December, 22nd, 2015 № 58 «About practice of appointment by vessels of the Russian Federation of punishment under criminal law» [the Electronic resource]//Union of Right Forces the Adviser Plus.

If to follow the given position and opinion of criminalists loses any sense existence of rules of awarding punishment under cumulative offences as a whole and principles of full or partial addition nakayozany in particular. Will enough appoint punishment for one of preyostupleny within the maximum sanction, and all other crimes entering into set, remain unpunished.

Moreover, concerning punishment in the form of imprisonment neposredyostvenno in ch.ch. 4 and 5 items 56 UK the Russian Federation are established restrictions on maksiyomalnyj term at awarding punishment under cumulative offences till 25 years, and in the presence of separate structures of crimes - till 30 years of imprisonment. In articles UK the Russian Federation regulating other kinds of punishments, tayokih restrictions are not present (by the way as there are no they and in specified decision PlenuYOma of the Supreme Court of the Russian Federation, except for obligatory works and ispravitelyonyh works), hence, at awarding punishment on set preyostupleny the rules provided by item 69 UK the Russian Federation should be applied.

However at such understanding criminally-rules of law in more privileyogirovannom position there are persons whom punishment under cumulative sentences (item 70 UK the Russian Federation), as in the law directly ustanovleyono, that definitive punishment, if it less strict is appointed, than deprivation svoyobody, cannot exceed the maximum term or the size, predusmotyorennogo for the given kind of punishment by the Criminal code General part. To observe a justice principle, it is necessary to reform prayovila awardings punishment under cumulative sentences of what it will be a question

More low.

Besides, the establishment of a limit of definitive punishment in polutoryonom the size of the maximum sanction is represented underestimated. PrimechaYOtelno, that in many criminal codes of foreign countries the two-multiple increase in the sanction at cumulative offences is a minimum from which it is necessary to make a start. For example, in UK Thailand, UK Japan, Republic Korea UK, UK the Chinese National Republic, as well as in

UK the Russian Federations, are provided two main principles of awarding punishment on soyovokupnosti crimes: absorption of less strict punishment more stroyogim and partial or full cumulative sentence. In the latter case okonyochatelnoe punishment should not exceed the sum of all combined nakazayony, appointed for each crime, but should exceed maksiyomalnyj the term appointed for one of crimes (UK the Peoples Republic of China), or okonyochatelnoe punishment can exceed half the maximum term provided for most grave crime, but not to exceed the sum of all terms of the punishments provided for these crimes (UK Japan, UK RK). In UK Thailand more accurate borders of the maximum punishment for cumulative offences are fixed: till ten years if most tjazhyokoe the crime is punished for the term up to three years of imprisonment; dvayodtsat years if the grave crime is punished for the term from three till ten years of imprisonment; Fifty years if the heaviest prestupleyonie is punished for term over ten years of imprisonment, for iskljucheniyoem when the court sentences the criminal to life imprisonment.

In our opinion as the person is made accountable for two or more crimes, the establishment at least two-multiple uveyolichenija sanctions at full or partial addition of punishment for sovoyokupnost crimes is pertinent and not contradicting a principle with pr avedlivo sti.

In judiciary practice quite often there are the problems connected with opredeyoleniem of definitive punishment under cumulative offences at naliyochii of extenuations. So, N it is condemned on ch. 1 items 105 UK the Russian Federation - by 10 years of imprisonment with restriction of freedom on 1 year, on ch. 2 items 167 UK the Russian Federation - by 4 years to 3 months of imprisonment, on ch. 1 items 30, items "and", "g" ch. 2 items 111 UK the Russian Federation - by 3 years to 4 months of imprisonment and restriction svoyobody for 1 year. By full cumulative sentence 16 years of 8 months of imprisonment with restriction of freedom on 2 years are definitively defined. NaznaYOchaja punishment for each of perfect crimes, court considered smjagyo
chajushchee circumstance also was guided ch. 1 items 62 UK the Russian Federation therefore punishment has not exceeded two thirds of maximum term or the size of the most strict kind of punishment for each of perfect crimes. In this part the court had been observed all rules of awarding punishment, but at definition of definitive punishment, according to supervising instanyotsii, the error has been admitted. Motives of such decision the following. OkonchaYOtelnoe punishment according to ch. 3 items 69 UK the Russian Federation in the form of deprivation svoboyody the maximum penal term in the form of the imprisonment, provided for heaviest of sovershenyonyh cannot exceed more than half crimes. And as heaviest of made prestupleyony is the act provided ch. 1 items 105 UK the Russian Federation, but punished with the account ch. 1 items 62 UK the Russian Federation also definitive punishment for all crimes should not exceed 15 years of deprivation свободы260.

About that similar decisions are not based on the law, the author dokazyyovalos even in action of the former decision of Plenum of the Supreme Court of the Russian Federation 2007 261 In our opinion, from ch. 3 items 69 UK the Russian Federation do not follow a conclusion that definitive punishment should not exceed more than napoloyovinu the maximum penal term appointed court for heaviest of perfect crimes. Softening, aggravating or iskljuchitelyonye circumstances are considered by court at awarding punishment primeniyotelno to a separate crime, that completely corresponds polozheniyojam ch. 1 items 69 UK the Russian Federation. At definition of definitive punishment court ishoyodit from punishments already appointed for separate crimes, which vyyorazhajut the general for all cumulative offences their characteristic obyoshchestvennoj dangers.

It is laudable, that following the equitable construction of norms criminal zakoyona, Plenum of the Supreme Court of the Russian Federation has extended this rule to other cases

2,0 Decision of Presidium of the Supreme Court of Republic Tatarstan on business 44-y-462 [elektronyonyj a resource]//https://rospravosudie.com/court-verxovnvi-sud-respubliki-tatarstan-respublika-tatarstan-s/act-105918445/

2,1 See: Short N.N.principle of full cumulative sentence at awarding punishment on sovokupyonosti crimes//Criminal law. 2015. №6. With. 22-28.

Applications of special conditions of awarding punishment. In item 51 of the decision of Plenum of the Supreme Court of the Russian Federation from December, 22nd, 2015 «About practice of appointment by vessels of the Russian Federation of punishment under criminal law» it is underlined, that in case of fulfilment by the person of several crimes, for each of which punishment with application of positions of item 62 UK the Russian Federation or item 65 UK the Russian Federation is appointed, term or the size of punishment under cumulative offences cannot preyovyshat more than half the maximum term or the size of punishment, koyotoroe can be appointed for heaviest of made prestupleyony without the rules established by specified articles.

Let's agree with opinion of those authors which consider, that in okonchatelyonom punishment each of the appointed punishments for separate crimes should be presented without illegal strengthening (toughening) or decrease (softening). Thus should not have value severity nakayozanija, appointed for a separate crime as these parametres are already considered at awarding punishment for separate преступления262.

In operating edition ch. 4 items 69 UK the Russian Federation are fixed, that dopolniyotelnye punishments «can be attached» to the cores. On neudachnost formulations of the given part of article the attention in литературе26 ’ repeatedly was paid. At definition of the definitive additional punishment attached to the core for cumulative offences, its size cannot exceed the maximum term provided for the given kind of punishment by the General part of the Criminal code (ch. 4 items 69 UK the Russian Federation). The attention once again is specially paid To it prayovilo in item 60 specified postanovyolenija. And if the court applies a rule of partial addition of the basic punishment concerning additional punishment also should primeyonjatsja the same principle though directly such requirement in UK the Russian Federation not zayokrepleno. So, on a court A sentence it is condemned under the item "and" ch. 3 items 132 UK the Russian Federation to 8

See: Tarbagaev A.N., Letnikov J.S.Ukaz.soch. With. 112.

See: Rogova N.Osobennosti of awarding punishment under cumulative offences//Criminal law. 2013. № 6. With. 63; Sadovnikova O. A. Problems of the theory and awarding punishment practice on sovokupyonosti crimes//the Leningrad legal magazine. 2007. № 4. With. 204.

To years of imprisonment with restriction of freedom on 1 year, on and. "To" ch. 2 items 105 UK the Russian Federation by 13 years of imprisonment with restriction of freedom on 1 year. On the basis ch. 3 items 69 UK the Russian Federation are definitively appointed punishment in 16 years of imprisonment with restriction of freedom on 2 years. The full court on criminal cases of the Supreme Court of the Russian Federation has changed a sentence on the basis toyogo, that as the court applies a principle of partial addition of the basic punishments also the size of additional punishment should be defined puyotem partial сложения264. It is necessary to recognise the given decision logical for at awarding punishment under cumulative offences it is necessary to be guided by a uniform principle of definition definitive as osyonovnogo, and additional punishment.

In practice there are also return situations when courts "forget" to attach additional punishments. In particular, D it is condemned for two crimes on ch. 2 items 290 UK the Russian Federation by 3 years of imprisonment with the debaring to be engaged in the activity connected with realisation of examination of temporary incapacity for work of citizens, for the term of 1 year for everyone prestupleyonie. Definitive punishment D is defined in 3 years months of imprisonment. Cassation definition the court above has attached to osyonovnomu to punishment also additional punishment by term in 1 year mesjayotsev debaring to be engaged defined деятельностью265.

Rule of full addition of additional punishments extend only on punishments of one kind. In the decision of Plenum of the Supreme Court of the Russian Federation from December, 22nd, 2015 it is told, that if «the court appoints different kinds of additional punishment they with reduction of the corresponding sizes and terms should be specified in a sentence and at appointment

The review of judiciary practice of the Supreme Court of the Russian Federation for January-July, 2014 (utv. Presidium of the Supreme Court of the Russian Federation 1 сент.2014) Appeal definition № 81-APU14-1 [elektronyonyj a resource]//the Supreme Court of the Russian Federation - http://www.vsrf.ru/Show pdfphp? Id=9449 (date obyorashchenija 28.04.2015).

1,5 Cassation definition of the full court on criminal cases of Seaside regional court on business № 22-1635/2010//Archive of Seaside regional court for 2010 g.

Definitive punishment under cumulative offences ». Differently, addition of additional punishments of different kinds is not supposed.

Awarding punishment for relapse of crimes

To the most difficult the conformity establishment printsiyopu is represented to justice of a rule of strengthening of punishment for relapse of crimes. Even after sharp reduction of the importance of the given kind of plurality of crimes in 2003 in the scientific literature continue to express soyomnenija in expediency of relapse in general.

The doctrine and absolutely obosnovanno considers for a long time relapse by the most dangerous version of plurality преступлений266. One of the major legitimised postulates is position that the person comes under to the criminal liability for concrete, specified in the law dejayonie - act or omission. Neither views, nor any condition of the person, property of its person in itself cannot form the basis for application of criminal reprisal. Nevertheless, as truly marked A.M.Jakovlev, «at the decision of a question on the criminal liability basis the firm priority of the corpus delicti, concrete socially dangerous act at all does not mean, that the person of the criminal in all mnogoyoobrazii its properties drops out of criminal law sphere» 267.

As the Criminal code of the Russian Federation starts with a concept priority "retsiyodiv" the person guilty is estimated not, and such objective factor, as fulfilment of certain number of these or those socially dangerous acts. But nevertheless studying of the corresponding data characterising condemned, shows, that degree of danger of the person of the criminal should influence in a sufficient measure definition of the size of appointed punishment. In ch. 1 items 68 UK the Russian Federation are listed criteria of awarding punishment at relapse of crimes.

™ See: ZHevlakov E.N.Ukaz.soch. With. 54.

267 JAkovlev A.M.struggle with recurrent criminality. M: Publishing house "Science". 1964. With. 92.

The first of rules provides a court duty to consider character and degree of the social danger before made condemned preyostupleny, circumstances in which force corrective influence of the previous punishment has appeared insufficient, and also character and steyopen the social danger of again perfect crimes. Given poyolozhenie concretises instructions ch. 5 items 18 UK the Russian Federation, providing doyopolnitelnye criteria of election of punishment at relapse. As soyoderzhaniem the first additional criterion of awarding punishment ohvayotyvaetsja before perfect crimes, it is necessary to establish weight, for what crimes before the person was sudimo, to what punishment prigoyovarivalos (to a kind, terms or the sizes), and at plurality prestupleyony - whether there were they identical, homogeneous or diverse. VaYOzhen also age in which these crimes were committed, and whether the guilty person was condemned. In particular, in force ch. 4 items 18 UK the Russian Federation criminal records for crimes of small weight either with probation or with otyosrochkoj executions of sentence, and also for the crimes made liyotsom are elderly till 18 years, no less than the extinguished and removed previous convictions, are not considered at a recognition of relapse of crimes and consequently, in tayokoj situations of position of item 68 UK the Russian Federations are not applied at all.

If instructions in ch. 1 item 68 UK the Russian Federation on the character and degree account obshcheyostvennoj to danger before perfect crimes really obosyonovanno as reflects specificity of definition of danger of relapse preyostupleny and corresponds to real possibilities of court concerning two other criteria of it to approve it is impossible. Finding-out of circumstances in which force former corrective influence has appeared nerezultayotivnym, certainly is important for forecasting of the further behaviour osuzhyodaemogo and definitions of sufficiency of selected punishment as means of achievement of its purposes. It means an establishment of data about measures and duration ispravitel but-voe is nutritious go the influences, applied

Corresponding body of execution of punishment, about reaction to they be 187

ry from J.I.Bytko condemned etc. not unreasonably considers, that «in session of the court it is practically impossible dostovernoyosti to establish at level, in which force of circumstances corrective vozdej -

268

stvie the previous punishment it has appeared insufficient »

The second rule defines the formalized limit of punishment in the presence of relapse of crimes. According to ch. 2 items 68 UK the Russian Federation the penal term at relapse any kind cannot be less one third chayosti the maximum term of the most strict kind of punishment, predusmotrenyonogo for the committed crime, but within the sanction of article of Special part UK the Russian Federation. Fixing a sentence in these limits a duty, instead of prayovo vessels. Thus the court cannot leave for the top frameworks of the sanction of article, except cases, especially statutory. The reservation «in limits sankyotsii», under E.N.Zhevlakova's true remark, is caused by that in proyotivnom a case the idea which has been put in pawn in ch can be perverted. 5 items 18 UK the Russian Federation where it is said, that relapse of crimes attract more strict punishment on the basis and in the limits provided UK РФ26 ’. Thus, uzheyostochenie punishments it is carried out by quantitative increase nizhyonego a threshold of the sanction and qualitative increase in a retaliatory component as it is necessary to apply more strict measure of the state compulsion from among the measures provided in the sanction of article for the given

Crime.

Relapse in criminal law of Russia inseparably linked with a previous conviction and deliberate character of acts. The basic role of institute of a previous conviction zayokljuchaetsja in the prevention of recurrent criminality, and a previous conviction is the major exponent of danger of the criminal. This teyozis is confirmed in the decision of the Constitutional Court of the Russian Federation from March, 19th

270

2003 In connection with the stated causes bewilderment legislative reyoshenie about an exception of the Criminal code in 2003 of positions about sudimo -

Bytko JU.I.doctrine about relapse of crimes in Russian the head right. With. 206.

See: ZHevlakov E.N.Ukaz.soch. With. 54.

1,0 See: the Bulletin of the Constitutional Court of the Russian Federation. 2003. №3. With. 34.

sti as a qualifying sign of some structures of crimes, koyotoroe it was proved by that the establishment of more strict punishment to the person who has committed a crime in the presence of outstanding or not removed suyodimosti, means not that other as its repeated punishment for former preyostuplenie for which it has already undergone retaliatory influence.

Punishment strengthening occurs not at the expense of fulfilment repeated (reyotsidivnogo) crimes as punishment is in limits sankyotsii for this crime (ch. 2 items 68 UK the Russian Federation), and at the expense of raised obshcheyostvennoj dangers of the person, its made. It is necessary to notice, that relapse of crimes is established not in all cases of presence of a previous conviction at the person. On law express indication at a relapse establishment previous convictions for careless crimes (ch are not considered. 1 item 18 UK the Russian Federation), for umyshlenyonye crimes of small weight, a previous conviction for crimes, soveryoshennye the person is elderly till eighteen years, a previous conviction for crimes, condemnation for which admitted conditional or on which predostavyoljalas respite (ch. 4 items 18 UK the Russian Federation), i.e. in those situayotsijah at which presence, according to the legislator, the antisocial orientation of the person of the criminal should not be shown. Therefore even in the presence of a previous conviction repeated committing a crime in the above-stated situations does not attract punishment strengthening. Hence, the antisocial orientation of the criminal-recidivist is kriminologicheskim osyonovaniem its raised responsibility.

Fastening in the criminal law of concepts "relapse", «dangerous retsiyodiv», «expecially dangerous relapse» as specific aspect of classification prestupyoleny on their public harm characterises such classification logically finished and unequivocally understood. It is natural, that such division should not be limited to narrowly theoretical value, and

Should generate various legal effects of presence of this or that kind of relapse of crimes from the point of view of differentiation of appointment and punishment under criminal law execution.

At the same time it is inadmissible, in our opinion, superfluous differentsiayotsija, i.e. such legal situation at which the legislator independently, it is uncontested and simultaneously unreasonably defines possible criminally-legal consequences of the committed crime. Bewilderment causes ignoring by the legislator of the minimum frameworks of sanctions for soyovershenie grave crime. The federal act from March, 7th, 2011 № 26-FZ «About modification of the Criminal code of the Russian Federation» in 68 articles excludes the bottom limits of sanctions in the form of imprisonment, still on 118 the bottom limit of punishment in the form of corrective rayobot is excluded. Among them have appeared as well crimes against a life and health. Elimination of the bottom limit of sanctions in the form of imprisonment does vozyomozhnym appointment for heavy and especially grave crimes of punishment smaller, than for crimes of small weight. Considerable rasshireyonie borders of sanctions for heavy and especially grave crimes in the form of imprisonment from 2 months till 10-15 years does their absolutely uncertain, washes away borders of various categories on severity level преступле­ний271. At the same time the given innovation allows to make more aloud now strengthening at awarding punishment for relapse of crimes that is impossible in the majority cases when in the sanction it is provided nizhyony its limit.

One of awarding punishment general principles including for relapse of crimes, the account is at awarding punishment of character and degree of the social danger of a crime. Reforming criminal zakonoyodatelstva last decade has led to that the principle differenyotsiatsii the criminal liability taking into account character and degree obshchestvenyonoj dangers of criminal action was gradually transformed: proizoyoshlo equalising of criminally-legal consequences of fulfilment prestupleyony, carried by the legislator to various categories (item 15 UK the Russian Federation). In variety of norms it is possible to observe the tendency to equalising various ka -

2,1См.: Ovchinsky V.S.Liberalizatsiju UK will stop bespredel//the Free press. 2011. On March, 9th.

tegory crimes with each other. For example, identical criminally-legal consequences irrespective of magnitude of offence are established at awarding punishment for relapse of crimes (item 68 UK the Russian Federation). Relapse moyogut to form the deliberate crimes of average weight heavy and osoyobo the heavy. A combination in acts sudimogo persons of a quantity of deliberate crimes, according to ch.ch. 2 and 3 items 18 UK the Russian Federation, obrayozuet dangerous or expecially dangerous relapse.

At relapse of crimes it is shown antisocial napravlenyonost persons of the criminal. N.A.Kolomyttsev notices, that the basis poyovyshennoj the criminal liability of expecially dangerous recidivists is the bent generated in their consciousness to fulfilment of crimes which at numerous repetition of acts can outgrow in a habit to criminal behaviour. The bent of the subject of expecially dangerous relapse to fulfilment of crimes differs considerable stability. This sign increases danger guilty and demands application to it boyolee strict criminally-legal measures 272.

At the same time, it agree ch. 2 items 68 UK the Russian Federation, the penal term at any viyode relapse of crimes cannot be less the one third part maksiyomalnogo term of the most strict kind of punishment. Thus, nezavisiyomo from a category of crimes, irrespective of the person of the criminal all "reyotsidivisty" are in identical position at their attraction to ugoyolovnoj responsibility. In that case there is a question about tselesoobraznoyosti existence in the criminal law of classification of relapse on kinds and crimes on a category, to which legislator not prislushivayoetsja. It is obvious, that the social danger sudimyh persons, repeatedly soyovershajushchih especially grave crimes, more than the persons committing crimes of average weight so, this circumstance should uchityyovatsja at awarding punishment for relapse of crimes.

See: Kolomyttsev N.A.expecially dangerous relapse of crimes and struggle against it. With. 96.

Unfortunately, in the criminal law the order and limits such ucheyota are not specified. In practice there are funny enough situations when like all formalities are observed, but punishment as a result is appointed actually identical. So, SH, earlier three times sudimyj for crimes of various severity level, again has made two thefts and it is condemned under items. « "," in »ch. 2 items 158 UK the Russian Federation by two years of imprisonment for everyone. In the supervising complaint the condemned asked a sentence to change, referring that in its actions there is no expecially dangerous relapse of crimes. The full court on criminal cases of the Supreme Court of the Russian Federation has changed a sentence, uchiyotyvaja, that the first of three previous previous convictions at the moment of fulfilment of crimes has already been extinguished, therefore in actions SH is established not expecially dangerous, but dangerous relapse, and has commuted a penalty till one year of eleven months of imprisonment for everyone кражу273. It is not necessary to doubt, that if the court had a reference point in awarding punishment for reyotsidivnye crimes character of the changed sentence would be more notable.

Initial edition UK the Russian Federation differentiated punishment depending on a relapse kind 1996. However the changes brought by the Federal act from December, 8th, 2003, have established, that irrespective of a relapse kind appointed punishment should be not less Ouse the most strict kind or the size of the punishment established for the corresponding crime, but within the sanction of corresponding article of Special part UK the Russian Federation. With ucheyotom positions of the item "and" ch. 1 item 63 UK the Russian Federation relapse of crimes is otjagyochajushchim punishment by circumstance. On idea of the legislator punishment toughening at relapse of crimes should be carried out by koliyochestvennogo increases of value of the bottom threshold of the sanction and qualitative increase in a retaliatory component of punishment as the most strict measure of the state compulsion from number should primeyonjatsja

2,3 See: full court Definition on criminal cases of the Supreme Court of the Russian Federation from June, 26th, 2012 № 70-D12-12//the Bulletin of the Supreme Court of the Russian Federation. 2013. № 2. [An electronic resource] - URL:

http://www.vsrf.ni/second.php

Provided by article sanction. At the same time the limit establishment in size Ouse from the maximum term of value of the sanction, as a rule, only noyominalno toughens punishment for in most cases the bottom threshold of the sanction appears above, than Ouse from the established maximum.

Many researchers specified in a situation paradoxicality. Instead of strengthening of responsibility for fulfilment especially grave crimes the obvious indulgence to the given category of criminals is observed. UzheYOstochenie punishments, and rather essential, has concerned only persons, soyovershivshih the crimes which are not possessing high public опасно­стью274. Classification of relapse of crimes on simple, dangerous and expecially dangerous (item 18 UK the Russian Federation) reflects essential differences in its social danger which are necessary for considering at differentiation of the criminal liability. Accordingly it should receive an adequate estimation at an establishment of rules of awarding punishment at relapse of crimes. Overwhelming majority of the practical workers interrogated by us (87,8 %) consider, that the relapse kind should influence the size of punishment.

The decision of these problems sees in restoration of step rules of awarding punishment for relapse. But thus earlier operating rules also had certain lacks. In particular, the establishment in zakonoyodatelstve functional requirements at relapse of the most strict nakazayonija, being directed on strengthening of struggle with recurrent prestupnoyostju, quite often created problems as fastening in the law of shares of the most strict punishment has been made without a legislative design of sanctions of many articles. According to some authors, sudebyonaja practice has shown, that introduction of rigid formal rules of awarding punishment at relapse has led everywhere unjustified uzhestocheyoniju to reprisal, to appointment of such punishments which it is obvious not sootvet -

See: KrukV.A. Ukaz.soch. With. 20; Nepomnjashchaja T.V., Stepashin V.M.Ukaz. soch. With. 162.

stvujut weights sodejannogo and to the caused damage. Scientists predlagayojutsja various variants of perfection of edition ch. 2 items 68 UK the Russian Federation.

In our opinion, with a view of prevention of obviously disproportionate toughening of punishment expedient it is represented stated in liteyorature the offer on removal of an interdiction for application alternative lisheyoniju freedom of measures of the state compulsion provided sanktsiyoej, with distribution on all kinds of punishments formalizing коэффици­ента2 6. The given offer will allow to apply for relapse most stroyogoe from the provided punishments estimated not only in terms, but also the sizes and also if the most strict kind of punishment in a concrete case is not applicable.

We adhere to the concept according to which relapse of crimes represents the certain feature rooting in its subjective party. The account of this circumstance demands strengthening of reprisals. As from the objective party all crimes made by the person, having a previous conviction, remain identical at relapse the size should increase, but not a punishment kind. At relapse it is necessary to raise the bottom limit of the sanction provided for the committed crime, its top limit should remain without changes. Such approach that at relapse of crimes punishment first of all pursues the aim of private prevention to have the most effective influence on correction of the concrete guilty person speaks and not to admit fulfilment of new crimes by it.

Awarding punishment at other displays of plurality

Special consideration is deserved by a question on awarding punishment at other kinds of plurality of crimes. Fulfilment of several crimes far not always can be qualified only as their set or relapse. In practice quite often it is necessary to deal

2,5 See: Separate opinion of the judge of the Constitutional Court of the Russian Federation by A.L.Kononova//Meeting of the legislation of the Russian Federation. 2003. № 14. Item 1302.

See: Nepomnjashchaja T.V., Stepashin V.M.Ukaz.soch. With. 163.

Legal estimation of fulfilment of several prestuplenijsvyshe their one version. For example, fulfilment of a new crime, not ohvatyvaeyomogo concept of relapse of crimes (ch. 4 items 18 UK the Russian Federation), or fulfilment of a new crime after sentence declaration, but to its introduction into validity, or before full departure of the appointed core and dopolyonitelnogo punishments. Besides, there is a number of exceptions of the item of item 69 and 70 UKRF.

In ch. 5 items 69 UK the Russian Federation are reflected a combination of crimes, «if after vyyonesenija by sentence court on business will be established, that condemned vinoyoven also in other crime made by it before adjudgment vessels on the first business». We Will disagree, that a combination of crimes, ukazanyonoe in ch. 5 items 69 UK the Russian Federation, are accurately delimited from set and relapse преступлений277.

Really, one of cumulative offences signs was and there is an absence of condemnation for any of crimes, but for a moment soyovershenija these crimes, instead of at the moment of definition of definitive punishment. In ch. 5 items 69 UK the Russian Federation are underlined, that punishment is appointed by the same rules (i.e. by rules ch.ch. 1, 2, 3, 4 items 69 UK the Russian Federation), and it means, that each crime separately is estimated, the kind and the size of punishment is defined, the principle of definition of definitive punishment etc. Feature is proved consists only that is necessary to consider the punishment left on the first sentence vessels.

Stumbling-block both in the theory and in practice at definition sovoyokupnogo punishments is the situation when guilty on the first sentence has been condemned to the conditional punitive measure. The Supreme Court of the Russian Federation continues to insist on the position. On the basis of the item 53постановления Plenum of the Supreme Court of the Russian Federation from December, 22nd, 2015 «About practice of appointment by vessels of the Russian Federation of punishment under criminal law» if concerning the probationeer of the person it will be established, that it is guilty also of other pre -

2 ”See: Blagov EVES. Qualification inakazanie at fulfilment of several crimes. With. 96.

stupleny, made before adjudgment on the first business, rules ch. 5 items 69 UK the Russian Federation are applied cannot be, as in item 74 UK the Russian Federation the exhaustive list of circumstances on which basis probation cancellation is possible is given. In such cases sentences on the first and vtoyoromu to affairs are executed independently. This position was sformuliroyovano and in earlier operating decision № 2 Plenums of the Supreme Court of the Russian Federation from 11 января2007 « About practice of appointment by vessels of the Russian Federation of punishment under criminal law »and practically without izmeneyony it is transferred to the decision of 2015 In judiciary practice, considering danyonye explanations, it is necessary vessels, literally reproducing decision formulations, to change sentences. So, the Full court on criminal cases of the Supreme Court of the Russian Federation has cancelled the decision of presidium of the Supreme Court of Republic Bashkortostan on business R, in which relation was priyomenena ch. 5 items 69 and item 70 UK the Russian Federation. It at first has been conditionally condemned to lisheyoniju freedom on November, 20th, 1997 for a crime made on October, 14th, 1997, and then regional court on March, 23rd, 1998 for crimes, sovershenyonye on October, 16th and 17, 1997 the Full court has specified, that punishment R cannot be appointed on the basis of item 69 both 70 UK the Russian Federation and sentences should be executed самостоятельно2”.

Let's assume, that the court for a new crime fixs sentence, not connected with imprisonment or probation, - then problems with execution of the first and second sentences independently do not arise. But what to do, if article sanction provides punishment only in the form of imprisonment (for example, item 105, item 111, ch. 4 items 122, item 126, item 131, item 150, item 162, item 164 UK the Russian Federation, etc.) and the court has appointed real term? That isyopolnit sentences independently, condemned simultaneously should is and in correctional facility, and to be considered conditionally osuzhdenyonym. The Full court has faced such situation on ugolov -

”See: the Bulletin of the Supreme Court of the Russian Federation. 2007. №4.

”See: the Bulletin of the Supreme Court of the Russian Federation. 2000. №6. With. 12.

nym to affairs of the Supreme Court of the Russian Federation, changing the decision of presidium of the Penyozensky provincial court concerning K which at first has been condemned on February, 24th, 1999 by three years of imprisonment conditionally for hooliganism, and zayotem on May, 13th, 1999 for assault with intent to rape - by five years of imprisonment. As the board, under such circumstances both sentences concerning K has specified should be executed самостоятельно280.

It is represented, that the trial period on the first sentence in such situation loses any sense, besides there is some question: what sequence of execution of sentences, or they are executed simultaneously, what body should supervise the probationeer if it be in the places of confinement, what consequences for the condemned come for default of the instructions assigned to it by court, priostanavlivayoetsja or not a trial period current, whether the trial period on the first sentence after real punishment endured etc. should renew on one of the put questions of the answer is not present either in criminal, or in the criminally-executive legislation.

According to item 74 UK the Russian Federation probation can be otmeyoneno in the event that condemned has committed a crime during the period ispyyotatelnogo term (ch. 4 and 5 items 74 UK), or during the period between sentence declaration about probation and to its introduction into validity (ch. Item 74 UK). In these cases punishment for again committed crime can be appointed under cumulative sentences (item 70 UK)., that neither item 69 UK the Russian Federation, nor item 70 UK the Russian Federation in a situation when after appointment of the conditional punitive measure it is found out Thus turns out, that the person is guilty of one crime made by it before adjudgment about ispolneyonii of punishment is conditional, cannot be applied. Whether but obosnovanno it from the point of view of legality? Actually we deal with circumstance, isyokljuchajushchim cumulative offences. That if the person on the first sentence will be condemned to any other kind of punishment is remarkable, instead of

See: the Bulletin of the Supreme Court of the Russian Federation. 2000. № 12. With. 7.

To a conditional measure, also it will be found out, that it has committed one more crime, ch. 5 items 69 UK the Russian Federation can be is absolutely defensible applied, as the cumulative offences take place. Why such exception sdeyolano for probation?

In our opinion, the fulfilment fact one person of two or more prestupyoleny, for one their which it for that moment has not been condemned, remains legally significant fact. Hence, according to item 17 UK the Russian Federation here is available the cumulative offences, no exceptions apropos uslovyonogo in it are present condemnation, also as there are no instructions in this respect and in item 69 UK the Russian Federation providing rules of awarding punishment on sovoyokupnosti of crimes. Concerning necessity of modification for item 74 UK the Russian Federations expressed various offers some исследовате­лями281.

It is represented to us, that on express indication of the law of position of item 74 UK the Russian Federations should extend only on cases of fulfilment new preyostuplenija in a trial period, and to a situation described above, they have no relation, is for this purpose provided ch. 5 items 69 UK the Russian Federation. It is thought, here even there is no necessity to make change or dopolyonenija in the Criminal code, and it is necessary to exclude corresponding point from the decision of Plenum of the Supreme Court of the Russian Federation as not based on the law.

Allocation of kinds of plurality of crimes in operating zakoyonodatelstve by legal criterion is not absolutely comprehensible, as in practice it generates many problems at awarding punishment. SforYOmulirovav in the given research besides set and relapse preyostupleny, independent kinds of plurality of crimes, imenue - mye "neodnokratnost" and «a criminal craft», it is necessary reglamentiyorovat and awarding punishment rules for them.

See: Gusejnov M. of of the-river Probation and tendencies in practice of its application: on materiayolam Republics Dagestans: avtoref. dis.... kand. jurid. Sciences. Makhachkala. 2003; earthen G.L.Realizatsija of the criminal liability in the form of probation: avtoref. dis.... kand. jurid. Sciences. SPb, 2006.

On the essence neodnokratnost in treatment offered by us it is connected with condemnation, but differs from relapse of crimes. That and druyogoj a kind of plurality of crimes is an indicator of the social danger of the person guilty and, as a rule, testifies about nedostayotochnosti the previous punishment. The persons who have committed the second crime after condemnation for first, should bear more strict punishment, than what have committed a crime for the first time. However punishability guilty of plurality of the crimes, covered by concept "neodnokratyonost", should be much less, than its punishability at retsidiyove crimes. Relapse of crimes shows defined tendenyotsiju in behaviour guilty, making only deliberate prestupleyonija, neodnokratnost is connected with fulfilment of returns to crime in the absence of relapse signs. Leaves, as degree of an antisocial orientation of the person of the criminal is a little bit less, than at relapse of crimes. Thus, neodnokratnost crimes is obyostojatelstvom, aggravating punishment. Certainly, within the limits of Criminal koyodeksa the previous conviction for earlier committed crime at absence retsidiyova should be considered through awarding punishment general principles, but at the same time have a concrete reference point for pravoprimenitelja. In our opinion, punishment strengthening should occur within not less one third of any kind of the punishment provided for the committed crime, but within the limits of article sanction.

Other not less important question is the appointment order nakayozanija for such version of plurality, as fulfilment prestupleyonija in the form of a craft. As this kind of plurality is allocated with us by one criterion with cumulative offences also social sushchyonost them it is approximately identical, accordingly and punishment limits for preyostupnyj a craft should be similar to cumulative offences. First, punishment can be appointed within maximum sroyoka, provided by the sanction of a part of article of Special part UK with nazvanyo
nym a qualifying sign, secondly, it is possible to establish spetsialyonye rules of awarding punishment in the absence of instructions on kvalifitsiyorujushchy a sign. In the first case all sodejannoe is qualified on sootyovetstvujushchej to article or a part of article of Special part UK the Russian Federation without instructions on the aggravating circumstance «committing a crime in the form of a craft». In the second case punishment can fall outside the limits maximum sankyotsii article, as under «committing a crime in the form of a craft»

Individual continuous crime, and set of independent identical crimes is meant not. Definitive punishment, by analogy to awarding punishment under cumulative offences, not moyozhet to exceed the two-multiple maximum penal term, predusmotrenyonyj for the committed crime.

The separate attention is deserved by consideration of a question on awarding punishment under cumulative sentences. In many researches podcherkiyovaetsja, that in UK the Russian Federation is absent definition of cumulative sentences and it is necessary for fixing. Meanwhile the cumulative sentences are not a kind of plurality of crimes, and an order of definition of definitive punishment for convenience of its execution concerning one person, at naliyochii several unsatisfied sentences.

In item 70 UK the Russian Federation it is fixed, that at awarding punishment on sovokupyonosti sentences to the punishment appointed on last sentence vessels, partially or completely not left part of punishment on the previous sentence of court joins. In article it is a question of definition okonchayotelnogo punishments in the presence of several independent sentences, therefore to speak about plurality of crimes it is represented neumestyonym. In itself item 70 UK the Russian Federation does not provide a strengthening rule otvetyostvennosti but only defines definitive punishment at presence neyoskolkih sentences, first of all for simplification of their execution in otnosheyonii the same person.

See: Rjasov A.I.Ukaz.soch. With. 158.

However the criminal law contains also variety of exceptions of a cumulative sentence rule under cumulative sentences. For example, in a case soyovershenija during a trial period at probation or is conditional-preschedule clearing of a new crime on imprudence or a deliberate crime of small or average weight (and sohraneyonii court of probation or it is conditional-parole) awarding punishment rules under cumulative sentences are not applied (ч.4 item 74, and. ch. 7 items 79 UK the Russian Federation). In such situations each sentence isyopolnjaetsja it is independent. Also each of sentences is executed samoyostojatelno if it is impossible to combine punishments, for example, on one priyogovoru the penalty, and on the second - imprisonment (ch is appointed. 2 items 71 UK the Russian Federation).

Plurality of crimes in its this or that display is considered at awarding punishment on last sentence: if there were signs reyotsidiva punishment taking into account requirements of item 68 UK the Russian Federation if after declaration of the previous sentence new crimes punishment taking into account item 69 UK the Russian Federation if after declaration of the previous sentence it it is made new prestupyolenie is appointed have been made some is appointed, forming neodnokratnost (in that its understanding in which it byyolo is stated in gl. 1), that, accordingly, this circumstance is considered at appointment of last punishment, and then to the punishment appointed in poyoslednem a sentence, not left part of punishment on the previous sentence in full or in part joins.

In judiciary practice awarding punishment possibility on sovokupnoyosti sentences is defined by the moment of declaration of a sentence, instead of its introduction into validity. In explanations of Plenums Supreme SuYOda it was repeatedly underlined: «awarding punishment rules on soyovokupnosti sentences (item 70 UK the Russian Federation) are applied and in a case, when on moyoment fulfilment by the condemned person of a new crime the first sentence
Has not entered validity ». The given decision is represented pravilyonym as defining definitive punishment in last sentence, suyodu it is not necessary to estimate again character and degree of the social danger before the committed crime, to award punishment taking into account requirements of item 60 UK the Russian Federation is all is already considered in the previous sentence, thereby ekoyonomjatsja both time and means of definition of the final sentence. Thus, awarding punishment rules under cumulative sentences nachiyonajut to operate in cases of fulfilment of a new crime as to vstupyolenija the taken out sentence in validity, and after, but before full departure of the core appointed on it and (or) additional nakazayonija.

The justice principle should be observed and at a formulation of rules of calculation of the definitive punishment appointed under cumulative sentences. In practice courts extremely seldom resort to full prisoediyoneniju neotbytogo on the previous sentence. On our data of studying of judiciary practice of awarding punishment with application of item 70 UK the Russian Federation, full addition of again appointed punishment and not left part nakayozanija on the previous sentence were constituted by 2,3 %, in the relation of 97,7 % condemned partial joining of not left part to the punishment appointed on last sentence has been carried out. On fair zayomechaniju K.V.Obrazhieva, applying a principle of partial addition, courts thereby as though call into question independence of the first sentence, fulfilment of a new crime as a matter of fact becomes circumstance, osvoyobozhdajushchim from a part of the punishment appointed for earlier made pre -

284

stuplenie

213 See: the Decision of Plenum of the Supreme Court of the Russian Federation от22 December, 2015 № 58 «About practice naznayochenija vessels of the Russian Federation of punishment under criminal law» (item 56); the Decision of Plenum of the Supreme Court of the Russian Federation from January, 11th, 2007 № 2 «About practice of appointment by vessels of the Russian Federation criminal nakayozanija» (item 36); the Decision of Plenum of the Supreme Court of the USSR from July, 31st, 1981 № 3 «About practice naznayochenija punishments at fulfilment of several crimes and on several sentences» (item 9)//Union of Right Forces the Game - sultantpljus. URL-www.consultant.ru (date of the reference of 14.02.2015).

2 2 4 See: Obrazhiev K.V.Ukaz.soch. With. 36.

It is represented, that appointment of definitive punishment on sovokupyonosti sentences should not lead to improvement of position of the person in comparison with at what the condemned serves time on each sentence independently. Proceeding from position about raised obshchestvenyonoj dangers of plurality of crimes, we consider, that fulfilment noyovogo crimes in enduring the punishment for earlier made preyostuplenie should not be regarded as the circumstance commuting punishment for the previous crime. Hence, partial cumulative sentence under cumulative sentences should be applied as iskljucheyonie when full cumulative sentence is impossible. According to item 70 UK the Russian Federation definitive punishment is limited by the certain frameworks provided by General part UK for softer punishment, than liyoshenie freedom, and thirty-year term for imprisonment. It is necessary to recognise that boundless addition of the punishments appointed on separate sentences is capable to deprive condemned of stimulus to ispravleyoniju. Does not raise the doubts, that the punishment leaving for reasonable limits on their duration, deprives condemned of any prospects and poyoetomu it is senseless.

At the same time to be limited to the frameworks established by General part UK (as it is provided in operating edition) for punishments, not svjayozannyh with imprisonment, also it is unreasonable, as, first, makyosimalnye limits of punishments in UK are provided for fulfilment of one crime, secondly, such approach deprives of any sense sushchestvovayonie awarding punishment rules for some crimes. If at sovoyokupnosti crimes punishment at full or partial addition moyozhet to exceed in one and a half time the maximum sanction and for cumulative sentence under cumulative sentences it is expedient to establish dvuhkratyonoe excess of a limit of the punishment provided for the given kind of punishment in General part UK the Russian Federation, except for punishment in the form of imprisonment.

Taking into account the stated it suggested to fix following position: at application of rules of cumulative sentences definitive punishment in the form of imprisonment cannot exceed thirty years, and punishment less strict, than imprisonment, cannot exceed two-multiple maksiyomalnogo term or the size provided for the given kind of punishment by the General part of the Criminal code. Thus probably separate ispolneyonie sentences at certain situations, for example, at impossibility ekvivaletnogo "transfer" of one of punishments in another by rules of item 71 UK the Russian Federation, and it should be independent way of execution nakayozany.

Research of rules of awarding punishment for plurality of crimes has allowed us to formulate following conclusions:

1. The strengthening of the criminal liability based on the account povyshenyonoj of the social danger of the person, does not contradict a principle of equality of citizens before the law. Thereupon legislative decisions about criminal liability strengthening at plurality of crimes in aggregate with other positions of the law allow individualiziroyovat responsibility guilty and are some kind of a criterion intensivyonosti the criminally-legal influence which are coming under to application to preyostupniku. Therefore equality of all before the law at all does not mean odinayokovuju degree of the criminal liability for identical acts, sovershenyonye different people.

2. Awarding punishment process at plurality of crimes is based on observance of general principles of awarding punishment under item 60 UK the Russian Federation. At the same time at plurality of crimes it is necessary to speak about special rules of awarding punishment which have opredelenyonuju specificity, considering social mission of the given institute and feature of the person of the criminal who has made of some acts.

3. The detailed and system analysis corrected also ways of appointment nakazayonija at various kinds of plurality of crimes allows sforyo
mulirovat offers on perfection criminal zakonodatelyostva at awarding punishment after cumulative offences and relapse of crimes and also to offer as it should be de lege ferenda rules naznayochenija punishments at other displays of plurality.

4. With a view of observance of a principle of justice awarding punishment under cumulative offences by absorption of less strict punishment by more strict should be applied: if all crimes made on set, are crimes of small either average weight, or preparation to heavy or especially to grave crime if by court on all crimes made to the defendant are established obstojayotelstva, provided by points both"and (or)"to"ch. 1 items 61 UK the Russian Federation, and in the absence of aggravating circumstances if for a crime entering into set, punishment in the form of lifelong imprisonment or a death penalty is appointed.

5. Independent way of awarding punishment under cumulative offences and cumulative sentences is absorption of less strict punishment by more strict at impossibility of full cumulative sentence: 1) owing to lifelong appointment of imprisonment for one of perfect crimes or on one of sentences, 2) owing to an infliction of death penalty; 3) vlsedstvie excess of the maximum term or the size of punishment, admissible at application of rules of definition of definitive punishment under cumulative offences or sentences.

6. It is necessary to recognise as separate way of fixing a sentence appointment of punishments to independent execution which is applied: 1) at preservation of the probation appointed for one of crimes, 2) at preservation of is conditional-preschedule clearing at awarding punishment under cumulative sentences, 3) at impossibility of addition of diverse punishments.

7. Division of relapse into the idle time dangerous, expecially dangerous should poyorozhdat various legal effects from the point of view of differentiation
Criminal sentencing. In this connection the penal term at proyostom relapse of crimes cannot be less than half, at dangerous relapse - less than two thirds, at expecially dangerous relapse - less than three chetyovertej the punishment provided for the committed crime.

8. Committing a crime at other displays of plurality of crimes (neodnokratnost, a criminal craft), being behind set and relapse frameworks, also should attract application

Special rules of awarding punishment.

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A source: KOROTKIKH Natal'ya Nikolayevna. THEORETICAL And APPLIED PROBLEMS of the DOCTRINE About PLURALITY of CRIMES: CRIMINALLY-LEGAL And CRIMINALLY-EXECUTIVE RESEARCH. The dissertation on competition of a scientific degree of the doctor of juridical science. Vladivostok,. 2016

More on topic § 1. Problems of application of norms of the criminal law at awarding punishment for plurality of crimes:

  1. § 2. Problems of allocation of forms and kinds of plurality of crimes in the theory of criminal law of Russia
  2. § 2. Problems of realisation of the purposes of punishment at its execution concerning the crimes condemned for plurality
  3. § 4. Features of application of the legislation on plurality of crimes at parole from enduring the punishment
  4. § 3. The prevention of crimes as the punishment under criminal law purpose. The mechanism of precautionary influence of punishment under criminal law
  5. problems of perfection of practice of application of the bases of softening of punishment under criminal law
  6. Chapter 3. THEORETICAL And APPLIED PROBLEMS of the DOCTRINE About PLURALITY of CRIMES In the CONTEXT of APPOINTMENT And PUNISHMENT EXECUTION
  7. §2. Problems of qualification of a crime of a genocide and awarding punishment for it in decisions of the Higher Iraq Criminal Tribunal
  8. § 1. Concept and is social-legal essence of plurality of crimes of criminal law of Russia
  9. § 4. Problems of perfection criminal and ugolovnoyoispolnitelnogo legislations in the field of counteraction of plurality of crimes
  10. Chapter 1. THEORETICAL BASES of the DOCTRINE About PLURALITY of CRIMES In CRIMINAL LAW of Russia
  11. 1.3 Concept and value of a verdict of guilty without awarding punishment in the modern Russian criminal trial
  12. 2.1 Bases of the decision of a verdict of guilty without awarding punishment in the Russian criminal trial
  13. § 3. Problems of qualification of crimes at other displays of plurality
  14. 1.1 Verdict of guilty without awarding punishment as an implementer of the regenerative approach in a modern paradigm of the criminal trial
  15. 1 Essence of a verdict of guilty without awarding punishment in the Russian criminal trial