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§ 3. The prevention of crimes as the punishment under criminal law purpose. The mechanism of precautionary influence of punishment under criminal law

Historically in the theory of criminal law the prevention of crimes was considered as the basic, and sometimes — and the unique purpose criminal on - kazanija [212 [213].

During M.D.Shargorodsky's Soviet period noticed, that a punishment ultimate goal is only and exclusively prevention of crimes (the general and special prevention) [214].

To the same position it is declined and With. V.Polubinskaja, in which opinion the given purpose — the most important on otnosheyoniju to other purposes of punishment [215]. We will not develop discussion about hierarchy of the purposes of punishment under criminal law as were already defined by that prakticheyoski to estimate realisation degree it is possible only for the prevention purpose. OtYOmetim only, that such position corresponds to the conclusions made us earlier.

Punishment under criminal law in theory of law is traditional was perceived as fixed assets of counteraction of criminality. Rather recently in the scientific literature has appeared and types popularity discussion of essence and the mechanism of criminally-legal influence on criminality in which the role and a punishment under criminal law place considerably vary depending on vzyogljadov this or that scientist. In this connection we believe, that it makes sense to consider the maintenance of the general and special prevention in a context
The mechanism of criminally-legal counteraction.

As a rule, this influence is described as process. So, V.K.Duju-is new understands it as «special activity of the state reacting to the facts of infringement of criminally-legal interdictions established by it posredyostvom of use of possibilities, put in pawn in criminal law» 1. On mneyoniju With. V.Veklenko, criminally-legal influence represents spetsiyoalnuju state activity on protection of the most important public relations against criminal trespasses and regulation of relations, vozniyokajushchih as a result of infringement of criminally-legal interdictions [216 [217]. M.V.Bavsun considers, that it is necessary to recognise as criminally-legal influence not only special activity of the state on regulation public otnoyosheny, crimes arising concerning fulfilment, but also actual activity pravoprimenitelnyh bodies on practical application of the means of counteraction formulated at the state level pre - stupnosti [218].

In models of criminally-legal influence offered by theorists the place, taken away to punishment under criminal law essentially differs. So, And. P.Firsova understands as essence of criminally-legal influence the answer, reakyotsiju the states on infringement criminally-rules of law [219]. V.K.Dujunov reduces essence of criminally-legal influence to a penalty (though does not equate it only to punishment). To [220] It oppose A.I.Chuchaev and and. P.Firsova in which opinion the penalty cannot act as essence of such influence as
The last assumes the elements which have been not connected with censure осужденного1. Supports last point of view and M.V.Bavsun including in soderyozhanie this influences, besides a penalty, also forced measures mediyotsinskogo character, and the control over the persons condemned conditionally, etc.

[221 [222]

According to N.A.Lopashenko, concept «criminally-legal influence» includes as basic elements criminal law, ugoyolovnoe the legislation and the criminal policy [223].

Small digression to the theory of criminally-legal influence pokazyvayoet, that this concept has not settled and requires yet in additional teoyoreticheskoj to study. Nevertheless undoubtedly one: at all disagreements of authors punishment under criminal law acts as its basic element without which loses sense and practical value not only concept criminally-pravoyovogo influences, but also the elements connected with it, such, for example, as ugolovyonaja a policy.

Now in the criminal law theory representation about the mechanism of precautionary influence of punishment under criminal law which N.Kristi names "neoclassical" — Russo, Voltaire's to going back to ideas, Bekkaria to sights that the punitive measure should be defined by weight of perfect act [224] prevails. As marked C.Bekkaria, value of punishment consists in fastening in minds of people of indissoluble communication between a crime and punishment following it, conformity of punishment to the nature prestupleyonija, severity of punishment of magnitude of offence [225]. Thus, criminal nayokazanie it should be realised by all people as the factor, it is constant uchityvaeyo
myj them at planning the деятельности1.

In the beginning of XIX century G.I.Solntsev, defining punishment under criminal law, otmeyochal, that it is angrily, caused for the found out illegal acts to the originator for satisfaction of the law of justice and for disgust of other citizens from similar crimes [226 [227]. Thus, the mechanism criminally-prayovovogo preventions was reduced to fear before possible punishment. Hardly later the generalised theoretical representation about the given mechanism was successfully expressed by the Hell. Franc which saw in punishment such manner with the enemy obyoshchestva which would take away from it hunting to repeat an attack, and at others — desire to imitate it. Besides, sufferings of the criminal return obshcheyostvu that was the trust which it inspired to itself, respect for laws and their patronising activity [228] is taken from it, that is.

Has passed almost one and a half centuries, and in the criminal law theory printsipiyoalnyh changes in the given question it is not observed.

To M.D.Shargorodsky's Soviet period wrote, that preventive vozdejyostvie punishments it is formed by addition of two elements entering into it: poyoritsanija on behalf of the state acting as a necessary element nakazayonija which influences vospityvajushche on guilty and surrounding themes, that an authoritative voice of the state approves, that is good and that is bad; intimidation which grows out caused by punishment stradayonija that creates constraining the subjects inclined to fulfilment prestupleyony, braking, keeps them from committing a crime [229].

In the newest time in the similar image describes A.F.MitsYokevich's specifying in formation under the influence of punishment strong kontryomotivov to criminal activity this mechanism, connected with aspiration to avoid nepriyo
jatnyh the sensations connected with наказанием1. And if individual predupreyozhdenie it is reached by experience of the condemned sufferings directly obshchepredupreditelnoe punishment influence as this author marks, has especially information character. Therefore efficiency increase preduyoprezhdenija contacts perfection of mechanisms of finishing to naseyolenija information on application of punishments under criminal law [230 [231].

With. G.Olkov on the basis of representation about necessity of dependence between severity of punishment under criminal law, on the one hand, and the social danger of a crime and the person, its made, — with another, has constructed mayotematicheskuju the model of punishment having for an object mathematical obosnovayonie for removal of sentences [232].

In other work this author spends idea that if will be possible to understand dependence of size of fear on number of the same punishments and zavisiyomost sizes of pleasure from number of the same encouragements we will have an opportunity to answer a key question on efficiency limits otdelyonyh kinds of legal responsibility [233].

Some authors try to leave from similar rectilinear ponimayonija. So, according to V.K.Dujunova, the sense of a penalty consists not in that by means of suffering «to frighten the criminal and to influence unstable elements», and in rendering on justice to each guilty: osuyo
dit the committed crime and the persons guilty of its fulfilment, with primeneyoniem to them in case of need statutory restrictions and by that to render on them demanded retaliatory, educational and predupreyoditelnoe influence that henceforth they of crimes not совершали1. VproYOchem, from the specified definition it is not so clear, why restrictions and strayodanija, caused to the criminal, should not frighten its and other grayozhdan.

In works of the Soviet period theorists included in the mechanism obshcheyopredupreditelnogo influences not only intimidation unstable (sklonyonyh to fulfilment of crimes) persons, but also educational influence, kotoyoroe renders application of punishments under criminal law, as in the sanction vyrazhayoetsja a negative estimation sodejannogo, perceived both unstable, and conscious citizens [234 [235]. Presently a number of scientists also adheres to this position [236].

It is necessary to notice, that the certain properties having keeping influence are really inherent in punishments under criminal law. Theorists of the right mark, first of all, such of them, as physical isolation from vozyomozhnosti continuations of criminal activity. Especially brightly this sign is shown in imprisonment for certain term though it is inherent and druyogim in kinds of the urgent punishments accompanied by the control for condemned from specialised bodies [237]. This property nayokazany for the persons regularly committing crimes is the Most actual. Besides, from
All kinds of punishments only imprisonment can render solving vlijayonie in business of dissociation of the organised criminal groups, criminal soobyoshchestv (the criminal organisations). Isolation of their organizers and key participants leads to the termination of activity and the further disintegration tayokih groups.

Also isolation from a society is irreplaceable to exclude if necessary adverse influence of the microhabitat which existence acts as the leading factor of committing a crime by the concrete person. Determinatives of the prevention of the future crimes in such cases are: the educational influence applied to condemned in establishments, isyopolnjajushchih punishment in the form of deprivation свободы1 (probably, the most important element is formation reception), and also neutralisation kriminoyogennyh factors on a residence condemned [238 [239].

Obshchepredupreditelnoe influence of isolation of criminals consists that the society has an opportunity to normalise relations between people who have been broken or deformed criminal dejatelnoyostju, to restore action antikriminogennyh factors and, thereby, uderyozhat a part of citizens from fulfilment of crimes. Thus, preduprediyotelnoe punishment under criminal law influence is not reduced only to intimidation or education.

At studying of theoretical representations about the mechanism preduprediyotelnogo punishment under criminal law influences are surprised, first of all, chrezvychajyonaja with simplicity of the theory of deduction from a crime by intimidation and naivety
The basic arguments resulted in its advantage, sharply contrasting with slozhyonostju the phenomena to which punishment resists.

In this connection N.Kristi writes, that also simply earlier spoke teoyorija not retaliatory restraint (application of preventive measures to persons, nahoyodjashchimsja in a dangerous condition). While this author marks, was ocheyovidno, that criminals need to be cured, that they did not continue the antiyosotsialnuju activity. Now as it is obvious, that examples of suffering of sinners should keep those who has taken a slippery way [240].

Certainly, in itself complexity or simplicity of any theory yet are not certificates of its validity or lozhnosti. However if to speak about the standard representations about the prevention mechanism confuses not only it, but also a number of the hypotheses accepted by default, and as a matter of fact, javljajuyoshchihsja only speculative reasonings.

In the generalised kind of the claim to the deduction theory it is possible sformuliroyovat as follows.

1. (Habitual, acquired from the very beginning of training in colleges of law) the statement that the severity of appointed punishment should correspond to weight of the committed crime is conventional. Intermeal that full conformity between these phenomena is not present and cannot be. GraYOdatsija punishments depending on weight of crimes it is based on subekyotivnyh estimations. As it will be shown more low, by separate kinds of crimes courts regularly do not choose the top limits of sanctions, being guided on empirically defined, sufficient for the prevention of crimes softer punishments. Therefore it is possible to approve, that legislative definition of the size of the sanction for committing a crime which proishoyodit ostensibly on a scientific basis, is frequent anything the general with the scientific approach has no.

Essential toughening of punishments under criminal law for a number of the most dangerous crimes against sexual inviolability maloletyonih, against the public safety, the world and safety of mankind is observed. In particular, according to the changes brought in item 56 UK the Russian Federation, maksiyomalnoe punishment in the form of imprisonment under cumulative offences moyozhet to reach thirty five years of imprisonment [241].

It is absolutely clear, that any empirical facts, I testify - shchih to necessity of such terms of imprisonment, the legislator at the moment of acceptance of respective alterations had no. For example, after okonyochanija counterterrorist operation in the Chechen Republic in 2009 of the person condemned to imprisonment for crimes on which the maximum terms reach twenty years, had not time to leave yet them and, especially, povtoryonym fulfilment of crimes to prove their inconsistency. Therefore neyovozmozhno to explain the made decision it is rational.

Attracts attention that fact, that toughening of sanctions by separate kinds of crimes occurs against intensive illumination of separate criminal displays in mass-media and warmed up thus reyoaktsii societies. Process of criminal lawmaking now priyoobretaet lines of political show: the legislator creates visibility of reaction to wishes of voters and toughens punishment. However with real povyyosheniem efficiency of precautionary influence of punishment under criminal law this process is not connected in any way and no scientific base under itself has. The same terrorist crimes for which the legislator strengthens otvetyostvennost, have been eradicated in the Chechen Republic not by measures criminal reyopressii, and persevering and consecutive improvement of a standard of living naseyolenija, creation of workplaces and reduction of a social base for terroriyostov.

The forcible approach to definition of the sizes of punishments predstavyoljaet certain threat to interests of crime control. While real measures are necessary, their visibility as suyoshchestvennogo unreasonable change of sanctions cannot render influence on a criminality condition is created only.

However, the choice of the sizes of punishments for less grave crimes is hardly more proved also. Division of crimes into categories vkljuyochaet in itself "round" figures — 5 and 10 years of imprisonment is not casual. We believe, that in this case can play a role a certain psychological mechanism, at kotoyorom the person subconsciously tends to a choice certain numerical znayocheny. For example, during the questioning spent by us condemned obrayotilo on themselves attention that circumstance, that courts award punishment in the form of imprisonment in one sizes more often, than in others. So, appointing nakazayonija for term less than two years of imprisonment, courts chose znacheyonija 1 year or 1 year and 6 months more often. While punishments for 1 year and 8 (and it is equal 2, 4, 5 or 7) months of imprisonment meet much less often.

Interest represents quality of a substantiation of necessity of change of laws. So, before modification in UK the Russian Federation, connected with small hishcheyoniem, in the State Duma have been introduced the bill «About entering izmeneyony in article 158 of the Criminal code of the Russian Federation and article 7.27 KoYOdeksa of the Russian Federation about administrative violations», podgoyotovlennyj the State Meeting — Republics Kurultaem Bashkorto - a camp [242], in point 2 of notes to article 158 UK the Russian Federation was offered the top limit of the sum below which the damage to the citizen does not admit considerable, uveyolichit with 2,5 to 4 thousand roubles. Itself «the scientific substantiation» looked so: «we Believe, that the given change will promote maintenance neotvrayotimosti and justice of the criminal liability, and also achievement tayokih the punishment under criminal law purposes, as restoration social the fair
sti, correction condemned and the prevention of fulfilment new prestupyoleny ». How the increase in the considerable size of plunder in the conditions of an economic crisis can promote restoration of social justice and achievement of other purposes of punishment, legislators RespubYOliki do not explain Bashkortostan. It is obvious, that real, instead of the declared problem of the bill consisted in decrease in quantity condemned to imprisonment and economy of money resources (and it has been reached subsequently by redefinition of the considerable size of plunder). Against it it is difficult to object. But so superficial relation to a substantiation of necessity of the laws mentioning destinies of hundreds thousand of persons, devalviruet concepts« social justice "," inevitability of the criminal liability "," correction condemned »with which similar legislators so easily and easy juggle.

2. N.Kristi which ideas are rather close to us, specifies, that for the neoclassical theory of deduction the committing a crime fact has absoyoljutnoe значение1. For court danger of perfect act and lichyonosti the guilty is important only. However at such approach lose any value of desire of the victim concerning destiny guilty [243 [244], the reasons concrete prestupleyonija and similar crimes, circumstances of a life of the criminal, a role obshcheyostva, the sympathy which has not shown in due time a shred for the future pravonaruyoshitelju and, thereby, hardened it, inactivity of officials, not priniyomajushchih measures for improvement of social conditions etc. As a result nakazayonie gets properties of a cudgel which with this or that force strike on the criminal. Such approach cannot promote, as marks N.Kristi, to moral perfection of a society [245].

Theorists of the right realise that punishment under criminal law javyo
ljaetsja not the only thing and not the best means of struggle with prestupnoyostju. As is known, there are two basic forms of the prevention preyostupnosti by compulsion to pravoposlushnomu to behaviour: gosudarstvenyonoe and public compulsion. The last is more preferable, poskolyoku its reaction is instant, it possesses the richest arsenal of every possible means and methods, is more flexible and is arranged under concrete features of the person of the offender, the reasons of an offence and all konyofliktnoj situations as a whole.

These kinds of compulsion are antagonists in a known sort: nayolichie the developed public control reduces necessity in intensivyonom the state compulsion. Fairly and the return: after potrjaseyony 1990th the society in Russia is split on property, class, political structure, therefore it cannot render serious counteraction of criminality. In a similar situation the state is forced to lean against naked compulsion. Thus, according to a principle of economy of criminal reprisal, the following parity should be observed: the splochennee and the society, the more softly system of punishments under criminal law is more active. And on the contrary.

However, the legislator has a possibility to start mechanisms obyoshchestvennogo influences by systematic reduction of number kriminaliziyoruemyh acts and reduction of the size of sanctions for already provided preyostuplenija.

According to the Decision of Plenum of the Supreme Court of the Russian Federation from July, 31st, 2015 in the State Duma of the Russian Federation has been brought zakoyonoproekt about modification in UK the Russian Federation and UPK the Russian Federation [246]. Us it interests, prezhyode everything, because Supreme Court Rfpredprinjal attempt to change tradiyotsionnuju, rectilinear model of deduction by punishment. To make it, on mysyoli developers of the bill, it is possible by application alternative nayokazaniju ways of influence on the criminal (in terminology of authors zakoyonoproekta — «the measures of criminally-legal character applied at osvoboyozhdenii from the criminal liability»). Thus the important condition osvoboyozhdenija from punishment and application of such measures is compensation of a damage or smoothing down of the caused harm by a different way. It is possible to assume, that value of opinion of victims concerning destiny of the criminal will increase a little, that will give additional flexibility to system of deduction from preyostupleny punishment.

In the given bill there is also one more position according to which it was offered to raise the size of petty theft to five thousand ruyoblej, that, according to representations dominating in the theory about nayokazanii, would lead to essential easing of legitimate rights and interests of citizens.

Really, there is a category of offenders which sisteyomaticheski make petty thefts and, thereby, provide to itself neployohoj a standard of living. The risk of possible capture for them is softened with blanks of the administrative legislation, in particular, neuregulirovannostju moyomenta the terminations of such offence in item 7.27 KoAP the Russian Federation «Small hishcheyonie». Therefore the persons, not had time to dispose stolen on the usmotyoreniju, for example, arrested persons at attempt of a pronose of property by cash desk, to responsibility are not involved [247]. Has not changed situations and addition UK the Russian Federation article 1581. As a bringing to criminal liability condition
Repeated fulfilment of petty theft by the person is, earlier inflicted to administrative punishment on ch. 2 items 7.27 KoAP the Russian Federation (petty theft for the sum exceeding one thousand of roubles but no more two thousand five hundred ruyoblej), offenders try not to make plunders for the sum, prevyshayojushchuju one thousand roubles. For all 2017 under item 1581 UK the Russian Federation to responsibility it has been involved only 1258 persons.

Great bulk of petty thefts thefts constitute of shops with siyostemoj self-services in a trading hall. Employees of the organisations and predyoprijaty make them in a place of the work much less often. The reason etoyogo, according to researchers of such offences, is connected with rasprostranenyonoj practice of dismissal on the basis of fulfilment by the worker small hiyoshchenija (item 81 of the Labour code of the Russian Federation) 1. This circumstance is represented rather important as shows efficiency vozmozhyonogo distributions of such practice not only on small, but also on penal plunders (thefts, assignments or wastes), works made in a place as by the nature these phenomena are rather close.

According to V.M.Mironov, 77 % of petty thefts are made from magaziyonov, 11 % — from premises and storehouses of the organisations (economy) agropromyshyolennogo a complex, 12 % — from other objects (premises and storehouses druyogih the organisations of various patterns of ownership, dwellings etc. [248] [249]). obyorazom, now the basic victims from the given kind pravonayorusheny citizens, and trade enterprises that predetermines tolerance of a great bulk of the population to similar offences are such not.

The large network shops which are most attractive miyoshenju for thieves, suffer, first of all, because of the organisation trading proyostranstva by a self-service principle: the huge areas, labyrinths of the racks which have been filled up with the various goods, and absence of the control for posetiyo
teljami in a hall.

On the one hand, it raises convenience to buyers. With another — such shops do huge harm to a society: with them cannot konkuriro - vat and local manufacturers are ruined; set of sellers possibility to receive the favourable price for the goods as networks deprive of their possibilities of alternative sale of production lose. From here follows obyoostrenie unemployment and the negative social consequences connected with it. Network shops and supermarkets (hypermarkets) have unlimited vozyomozhnosti a dumping in competitive struggle against small dealers, and after vyyotesnenija the last from the market essentially overestimate the prices for commodity output principal views. The assortment offered by networks is, as a rule, repeating commodity positions, quite often doubtful quality.

Could lower shops quantity of plunders? Probably, could — by change of a principle of the organisation of trading space, having established a traditional way of dialogue of the buyer with the seller through a counter, ograyonichiv number of commodity positions etc. But, most likely, such situation is tolerant for proprietors as they have possibility to cover poyoteri from plunders for the account nakruchivanija the prices, that is, finally, at the expense of the consumer.

However the possible increase in cost stolen at small hiyoshchenii to five thousand roubles can essentially change structure poterpevyoshih from such offences. First of all, in a category of administrative plunders will pass equipment thefts (players and video registrars) from personal cars of citizens, spare parts of motor vehicles (wheels, the tool) from garages, the small cattle belonging to countrymen.

Victims from penal plunders have higher chances of damage compensation in comparison with victims from pilferages as in case of committing a crime procedure of search of criminals is applied in details razraboyotannaja, provings of fault, withdrawal pohishchenyo
nogo property. Powers of law enforcement bodies in frameworks proizyovodstva on affairs about administrative violations essentially already. Therefore and probability of compensation of a damage victim from such acts buyodet more low. In similar conditions it is possible to expect occurrence new effekyotivnyh forms of counteraction to the plunders which initiators will be soobyoshchestva motorists, countrymen etc. We already have an example samoyoorganizatsii for independent protection of the rights, shown by the credit organisations involving kollektorskie agencies for vozyovrata of debts under delayed credits. Unfortunately, now this activity is often accompanied by abusings from the party kollektoyorov. The reason of it consists in neuregulirovannosti corresponding dejatelyonosti. Therefore the state problem in similar cases — to reveal narozhdajuyoshchiesja forms of self-defence of the rights and to direct them in favourable for obshcheyostva a direction. Occurrence and consolidation of separate groups of the population capable not only effectively to protect the property can become a collateral positive effect from restriction of sphere of criminal reprisal, but also to defend other civil rights and freedom.

However, show efficiency of similar measures for increase aktivyonosti societies in criminality counteraction practice can only.

3. At the description of the mechanism of precautionary influence of punishment under criminal law in the theory there are statements, that presence of experience of enduring the punishment reduces fear of responsibility for new crimes. In particular, in it specifies With. G.Olkov proving necessity of essential toughening of punishments for the second and subsequent crimes, made at relapse. As an example confirming such conclusion, this author results the letter of the skilled convict to the governor of gaol in whom osuyozhdennyj asks to reserve behind it a place for future serving nakazayonija as on an ox he cannot live. With. G.Olkov also gives an example from personal practice when the condemned expecially dangerous recidivist has started missing on
To freedom also has made theft again to get to the places of confinement [250].

Meanwhile interpretation of the data received by us about intensity of returns to crime during the various time periods after clearing allows to correct this conclusion some. As a result of the research carried out by us it has been established, that the probability of relapse very quickly decreases in time. In the first year after clearing of serving nakazayonija again commit crimes of 53,4 % from number of all unemployed, dopusyokajushchih returns to crime, and only 36,6 % — from among working grayozhdan, committing crimes repeatedly. On the sixth year after osvobozhdeyonija it is equal to probability of condemnation for earlier not involved to ugolovyonoj to responsibility (fig. 16).

If to recognise that fear before punishment facilitates fulfilment of new crimes it is possible to explain fast decrease in probability to that is direct after clearing fear of repetition of punishment it was not generated yet, the person adapted for existence in deprivation places svoyobody, but still nekomfortno feels on freedom. However, resoyotsializatsii such persons, apparently, pass in process return transformation, and after any time the unwillingness to come back in the places of confinement again begins the leader determinantoj behaviour.

We believe, mathematical model of punishment under criminal law, razrabatyvaeyomaja With. G.Olkovym, should be corrected taking into account the facts stated here. Besides, sharp decrease in intensity of relapse on the sixth year after clearing of enduring the punishment in the form of imprisonment pokazyyovaet possibility of restriction of terms of cancellation of conviction for this kind nayokazanija five years.

Fig. 16. Intensity of relapse in time

In the theory the opinion was expressed, that punishment under criminal law possesses three kinds of precautionary influence. Besides intimidation strengthening of a moral interdiction and stimulation concern them legislative поведения1. According to another, close, the point of view application of punishments under criminal law okayozyvaet educational influence on all citizens [251 [252].

Agreeing, as a whole, with the specified points of view, we will specify, that vozdejyostvie on a moral aspect of life of a society by punishment in modern conditions it is carried out not always in the necessary direction. For example, it is possible to assume safely, that developing superliberal practice naznacheyonija punishments for crimes of a corruption orientation renders not educational, but demoralising influence on a society expecting suroyovogo a sentence to the bribe taker and the embezzler of public funds while it through some meyosjatsev appears on freedom. The same it is possible to tell and about cases naznacheyonija punishments under item 264 UK the Russian Federation when one of the road accident parties occupies a high social standing. Therefore educational influence criminal nayokazanija is in direct dependence on validity of criminalisation and justice of appointed punishments.

However, there is one more moment connected with definition of addressees obyoshchepredupreditelnogo of influence.


In the literature it is noticed, that it is practically impossible to distinguish neustojyochivyh the citizens inclined to fulfilment of crimes, from the steady. Poetoyomu T. Ju. pogosjan proves a conclusion, that the general prevention is addressed all without исключения1. This question and N.A.Petuhov and A.A.Tolkachenko which extend action of the general prevention to an uncertain circle of citizens [253 [254] do not concretise.

At the same time there is an opinion, that obshchepredupreditelnoe punishment under criminal law action is limited to circle of those citizens which not sovershayojut a crime from fear to undergo to punishment under criminal law [255]. A.F.MitsYokevich cites data that the share of such "fluctuating" citizens in obyoshchestve constitutes from 14 to 20-24 % [256].

Within the limits of the present research questioning stuyodentov the higher and average professional educational institutions nejuridicheyoskogo a profile in which course of the interrogated of 3 % have declared that committed before a crime has been spent, 24 % have told, that made administrative pravonarusheyonija and 28 more % interrogated have declared, that made offences, but their legal nature (crimes it or offences) to name were at a loss. Thus the most part of respondents supposes for itself possibility soveryoshenija crimes under favorable conditions. So, on a question: «Present - that you had a possibility absolutely with impunity to steal krupyonuju the sum of money (about it anybody never learns and will punish you nevozyomozhno). Whether you make theft in that case?» Have negatively answered only
39 % of respondents, and 61 % are considered for itself possible by plunder fulfilment in a similar situation. Thus on a question: «Present, that at you is vozmozhyonost to steal public funds for the sum of 500 million roubles that is more than you can fairly earn for all life, and hide poyohishchennoe so reliably, that the possible consequence will not find out this money and after departure of punishment you can dispose of them. What term verojatnoyogo punishments in the form of imprisonment can stop you from such postupyoka?» 58 % have declared, that essentially will not make plunder, and the others skayozali, that they will be kept by punishments of certain severity.

In this connection the position of those scientists is represented to us more true, koyotorye do not try to limit a circle of addressees of the general prevention. Except reyozultatov the spent questioning in favour of such position svidetelstvuyojut and some other reasons resulted more low.

1. The large quantity of citizens makes offences which have not outgrown in crimes only on happy coincidence of circumstances. For example, only infringements of rules of traffic annually fiksiruyoetsja about 30 million.

2. In some spheres of criminal activity the component is extremely high layotentnaja. For example, in weight of businessmen we with bolshej veyorojatnostju will meet those who pays taxes only from fear before possible punishment, instead of those who pays them from belief.

3. In connection with an economic crisis and some legislative innovations, for example, the bill of pension age increase neyovozmozhno to define, what quantity of nowadays working can join in the near future numbers of the unemployed and fill up with that a category of the citizens, which criminal activity essentially above, than at the employed citizens.

4. Degree prikosnovennosti citizens to criminal activity that can potentially outgrow in direct participation in it is extremely high.

So, in the interrogation of students of high schools spent by us and technical schools of 69 % oproshenyonyh have shown, that they have the acquaintances committing crimes. Thus 41 % of students from the given category have declared, that tried to dissuade them from committing a crime, that is were prikosnovenny to a crime, 45 more % have shown tolerance to fulfilment of crimes by other persons, having declared, that «it not their business».

Similar results testify not only to considerable degree of knowledge of the population about the processes proceeding in underworld, but also high intensity of return influence from the persons committing crimes, on legislative citizens.

However, it is possible to result still set of other arguments to limiting addressees of the general prevention.

Thus, a major factor of precautionary influence of punishment under criminal law is threat of causing of sufferings and their real causing. About it speak also results of the questioning spent by us. The majority accepted in it participation of students in the basic is correct ukazayoli kinds of applied punishments under criminal law. It can be a consequence vysoyokoj awarenesses on underworld, on what was spoken earlier. Thus 34 % have declared, that punishment is capable to counteract criminality; according to 52 % counteraction is possible not to the full, and only 13 % otveyotili, that punishment before criminality powerlessly.

Regretfully it is necessary to establish, that N.Kristi's rights, otmetivyoshy, that the basic part of researchers of punishment deals with problems reyoglamentatsii of pain causing. Realising that, as in present rayobote the basic emphasis becomes on studying of what quantity of sufferings doyostatochno for the prevention of new crimes, we find the moral justification that, not seeing possibility completely to refuse from prichineyonija pains, we will concentrate on possibility of its minimisation or replacement with other means of counteraction of criminality.

Briefing the above-stated, it is possible to make following cores vyvoyody.

The essence of punishment under criminal law can be defined as the symbolical violence applied on behalf of the state in relation to the person, guilty of committing a crime. The offered approach allows to avoid mnogoyoznachnyh the interpretation arising at use of other terms, such as "penalty", "punishment", "compulsion", «a symbolical payment» etc.

The violence applied on behalf of the state to the criminal, forms a basis of criminally-legal influence. All measures of the criminal liability possess precautionary potential, basically, thanks to presence of that at punishment.

From among the punishment under criminal law purposes empirically defined kriteyorii achievements can be defined only for the prevention purpose prestupleyonija.

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

More on topic § 3. The prevention of crimes as the punishment under criminal law purpose. The mechanism of precautionary influence of punishment under criminal law:

  1. § 3. Criteria of an estimation of efficiency of precautionary influence of punishment under criminal law
  2. Chapter 2. Problems of increase of efficiency of precautionary influence of punishment under criminal law
  3. Chapter 2. Punishment under criminal law: essence, the purposes and the influence mechanism
  4. § 1. Essence of punishment. A punishment under criminal law and criminal liability parity
  5. Bytko Sergey Jurevich. EFFICIENCY of PRECAUTIONARY INFLUENCE of PUNISHMENT UNDER CRIMINAL LAW ON CRIMINALITY: THEORETICAL And APPLIED ASPECTS. The dissertation on competition of a scientific degree of the doctor of juridical science. Saratov - 2018, 2018
  6. § 1. Problems of application of norms of the criminal law at awarding punishment for plurality of crimes
  7. Chapter 1. An estimation of efficiency of precautionary influence of punishments under criminal law for separate kinds of crimes
  8. § 3. Influence of a philosophical reflexion about punishment on definition of criterion of quality of system of punishments under criminal law
  9. § 3. The punishment purposes in criminal law of the Yemen republic
  10. punishment institute in Sinai criminal law
  11. § 2. Concept «efficiency of punishment under criminal law» and model of its estimation
  12. 2.2. External properties of punishment under criminal law
  13. § 4. The punishment purposes in criminal law of the Russian Federation