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THE CONCLUSION

The carried out dissertational research gives the chance to formulate following theoretical and practical conclusions:

1. The institute of mitigation of punishment in domestic criminal law has begun in XI century at board of prince Yaroslav Mudrogo and has been generated to the middle of XV century as only in the Code of laws of 1497 the system of the interconnected norms regulating an order of appointment by court of punishment under criminal law is traced.

Up to October, 1917 there were general bases of mitigation of punishment and special. The general bases of mitigation of punishment operated under the relation bolshej parts of crimes. The court considered them at a punishment under criminal law individualization.

2. The system of the bases of mitigation of punishment during evolution has generated model of an individualization of criminally-legal influence, allowing thus to consider specific features of the committed crime and the person of the guilty.

3. In the criminal legislation of the foreign states the bases of softening of punishment under criminal law though separate foreign codes and do not allocate them in independent section or the head are provided. In a number of criminal codes punishment under criminal law softening is provided at the neoterminated crime (UK G ollandii, UK Denmark, UK Sweden, UK Germany, UK Bulgaria), at committing a crime at minor age (UK Holland), at committing a crime in a mental derangement condition (UK Austria, UK Poland). In UK Japan the court right at own discretion is settled to commute punishment in concrete litigation. In UK Bulgaria extenuations are defined without their concrete definition with reference to the criminal liability or punishment under criminal law.

4. Now many national legal systems are in certain dependence on operating international certificates. Implementatsija and convergence of the international standards in the field of criminal law, including in questions of mitigation of punishment - objective processes which characterise national law development including in the Russian legislative activity. On the basis of the analysis of the legislation of the separate foreign states, we consider possible dekriminalizirovat attempted crime of small weight (UK Denmark), as the extenuation to consider presence of the mental derangement at guilty (UK Austria, UK Poland).

5. System of the bases of softening of punishment under criminal law follows

To recognise set structurally certain connected with the purposes, problems and principles of the criminal law homogeneous criminally-rules of law, provided by the criminal legislation, and also

Applied by court in the presence of the bases on the concrete criminal case, containing positions about mitigation of punishment as owing to character of perfect criminal action, the person of the guilty person,

Postcriminal behaviour, and proceeding from remedial features of proceeding.

6. Necessity of extensive interpretation and deducing of concept of the bases of softening of punishment under criminal law for frameworks of head UK the Russian Federation about "Awarding punishment", by association of all bases of softening of punishment under criminal law, in one chapter 10.1 of the following name «Basis of mitigation of punishment» was designated.

7. The bases of mitigation of punishment can be classified as follows: the bases reducing term, the size of punishment under criminal law, taking into account properties of the committed crime, the person of the criminal and postcriminal behaviour (item 61, ch.

1 items 62, item 64, item 66 UK the Russian Federation); the bases reducing term, the size of punishment under criminal law, taking into account remedial features of trial in court on criminal case (ch. 2, ch. 4, ch. 5 items 62, item 65 UK the Russian Federation).

8. The system of the bases of softening of punishment under criminal law is characterised by following signs:

1) includes legislative and pravoprimenitelnuju the nature that is expressed in its conditionality by a uniform triad of the basic circumstances: character of the committed crime, the person guilty and its postcriminal behaviour;

2) has the interbranch maintenance which assumes close interrelation of the bases of mitigation of punishment with criminal procedure norms;

3) the universality consisting in necessity of the account of the bases of mitigation of punishment in all cases of their actual presence;

4) sistemnost, assuming communication of the given bases with the purposes, problems and punishment under criminal law principles;

5) an orientation on decrease in criminally-legal influence in the form of mitigation of punishment to the person guilty of committing a crime.

9. The list of the circumstances softening punishment under criminal law, provided by item 61 UK the Russian Federation, should be opened as such actual facts specify pravoprimenitelju in possibility of softening of a measure of criminally-legal influence and give competences on application criminally-rules of law to a concrete case. Thus judicial discretion limits cannot be boundless: the recognition of this or that circumstance to the softening should correspond to criminal law principles. At the same time, as has shown the judiciary practice analysis, courts, at a recognition of certain circumstance softening, not always properly investigate all actual facts of the committed crime and the person guilty, that is an occasion to change or cancellation of a sentence of the trial court.

10. The estimation of exclusive circumstances in pravoprimenitelnoj activity is various, as is based on subjective sights and the representations based on personal experience of judges. It testifies to absence of the uniform approach in the decision of the problems arising in activity of vessels on application of item 64 UK the Russian Federation. We believe expedient to define the list of exclusive circumstances, and also accurate criteria of decrease in appointed punishment at application of item 64 UK the Russian Federation. Postcriminal behaviour of the person who have committed a crime, testifying to its active repentance could become one of such circumstances. As to criteria of mitigation of punishment, that, in our opinion, optimum would be decrease in the minimum limit established in the sanction of article of Special part UK the Russian Federation, no more than on one third.

11. As we managed to establish, requires specification position ch. 1 items 66 UK the Russian Federation, providing decrease in punishment for the neoterminated crime. In our opinion, the given position should consider character of circumstances in which force the crime has not been finished. In this connection it is offered ch. 1 item 66 UK the Russian Federation to state in the following edition: «at awarding punishment for the neoterminated crime the bases on which the crime has not been finished for the reasons, not dependent on will and desire of the subject should be considered».

12. Position about possibility of application of the basis of mitigation of punishment and non-use of the circumstances aggravating punishment, provided ch. 4 items 65 UK the Russian Federation, can be applied and in cases of an establishment of set of circumstances commuting punishment. In this connection we consider expedient, to add item 62 UK the Russian Federation, a part 1.1. The following maintenance: «If set of the commuting circumstances established on business punishment exceeds set of the established aggravating circumstances, the court at awarding punishment can not consider the circumstances aggravating punishment».

13. It is possible to recognise as the basic directions of perfection of system of the bases of softening of punishment under criminal law:

1.1. Necessity of allocation of all bases of softening of punishment under criminal law for independent chapter UK the Russian Federation with a view of formation of the uniform approach at interpretation and application of the given criminally-legal institute;

1.2. Necessity of an establishment of presence or absence of the bases of mitigation of punishment on criminal case as a duty not only court, but also the persons who are carrying out pre-judicial criminal proceeding;

1.3. Expansion of the list of the circumstances commuting punishment provided ch. 1 items 61УК the Russian Federation.

1.4. Inclusion in the criminal law of the positions providing rules of mitigation of punishment at an establishment by court of set of extenuations.

14. If the mental derangement which is not excluding responsibilities, has lowered ability guilty to the full to realise actual character and the social danger of made act or to supervise over it the given circumstance should be considered to court as the extenuation. With a view of formation of the uniform approach to an order of application of the given extenuation vessels at a criminal sentencing, it should be included in the list provided ch. 1 items 61 UK the Russian Federation.

15. We believe expedient, to enter legal criteria for an establishment of an additional guarantee of realisation of a principle of justice (item 6 UK the Russian Federation) and equalities of citizens (item 4 UK the Russian Federation) at awarding punishment in the presence of set of extenuations. Rules of application of set of the extenuations provided ch. The Russian Federation, it is necessary to fix 1 item 61 UK in ch. 1.2. Item 62 UK the Russian Federation and to state as follows:

«) in the presence of two extenuations specified in ch. 1 items 61 UK the Russian Federation, except for items« and "," to »specified article, term or the size of punishment cannot exceed 4/5 maximum term or the size most strictly a kind of the punishment provided by corresponding article of the Special part of the present Code;

In the presence of three extenuations specified in ch. 1 items 61 UK the Russian Federation, except for items "and", "to" specified articles, term or the size of punishment cannot exceed 3/4 maximum term or the size most strictly a kind of the punishment provided by corresponding article of the Special part of the present Code;

In the presence of four and more extenuations specified in ch. 1 items 61 UK the Russian Federation, except for items "and", "to" specified articles, term or the size of punishment cannot exceed 2/3 maximum term or the size most strictly a kind of the punishment provided by corresponding article of the Special part of the present Code ».

16. Perfection of practice of application of the bases of softening of punishment under criminal law is necessary for considering in following directions:

1.1. Vessels should differentiate application cases at once several positions about softening of the punishment under criminal law, provided items 62, item 65, item 66 UK the Russian Federation, concerning set and competition rules criminally-rules of law.

Rules of set of the account of the bases of softening of punishment under criminal law are applied in cases of an establishment of the rules provided by item 66 and item 62 UK the Russian Federation, item 66 and item 65 UK the Russian Federation, ch. 1 items 62 and ch. 5 items 62 UK the Russian Federation.

Rules of a competition of the bases of softening of punishment under criminal law are applied in cases of an establishment of the rules provided ch. 2 or ch. 4 items 62 UK the Russian Federation and ch. 1 items 62 UK the Russian Federation (punishment is softened by rules ч.2 or

ch. 4 items 62 UK the Russian Federation); ch. 1 items 62 and item 65 (punishment is softened by rules of item 65 UK the Russian Federation).

1.2. Vessels should state more carefully an estimation to proofs on criminal case at an establishment of presence or absence of circumstances commuting punishment. The basic errors of vessels at a recognition of this or that basis the softening consist: 1) in extensive interpretation of application of separate extenuations by the trial court; 2) neuchete presence of certain extenuations (in particular, minor age of the defendant at the moment of fulfilment of criminal action, contribution to disclosing and investigation of a crime of the defendant (condemned), appearances from the guilty; 3) in essential distinctions at an estimation of legitimacy of a recognition as the extenuations which have been not specified in item 61 UK the Russian Federation.

The presented dissertational research of system of the bases of softening of punishment under criminal law, in our opinion, can act as a complex teoretiko-applied basis for the further research of system of the bases of mitigation of punishment to the person who has committed a crime.

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A source: TASAKOV Vladimir Sergeevich. of the BASIS of SOFTENING of PUNISHMENT UNDER CRIMINAL LAW: THEORY And PRACTICE QUESTIONS. The DISSERTATION on competition of a scientific degree of the master of laws. Cheboksary -2018. 2018

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