Владислав Орлов - Уголовное наказание - понятие, система, объект назначения, состав отбывания. Монография

XXIII. The progressive system of penalty servicing should be understood as incremental changes of elements of the contents of penalty servicing, depending on the conduct of the convict, desired goal and the arrived consequences, including the achieved results. The progressive system of the objective side of penalty servicing represents a incremental changing of features, characterizing the outer side of penalty servicing, depending on the conduct of the convict, the desired goals and the arrived consequences (including the achieved results);

XXIV The place of penalty servicing is a definite territory, where the penalty is served. The term of penalty servicing is a period of time, during which the convict serves his penalty. Means of servicing the penalty represents a number of equipment, by use of which the penalty is served. The way of penalty servicing is a complex of patterns and methods, used by the convicts within the penalty servicing.

XXV. “The execution of penalty in the form of compulsory and correctional working, limitation of freedom according to the place of residence of the convict” is understood as an execution of these penalties according to the permanent or prior place of residence of the convict.

XXVI. The subject of penalty servicing is a physical person, of law-provided gender, age, characterized by a definite state of health, convicted according to the decision of the court to serve a definite penalty, possessing a definite status, possessing law-provided rights, obligations and legal interests and not having law-provided and actual bases for release from it;

XXVII. The subject of servicing the criminal penalty is characterized by the following features: 1) it is a physical person; 2) of a law-provided gender; 3) of a law-provided age; 4) a person of a definite state of health; 5) a person, convicted by the court to serve a criminal penalty; 6) of a definite status; 7) possessing law-provided rights, obligations and legal interests in the sphere of servicing the criminal penalty; 8) does not possess law-provided base for release from servicing the criminal penalty;

XXVIII. In order to avoid acts of corruption in servicing compulsory working, correctional and mandative working, it is necessary to regulate the procedure of exchange of a back-breaking working to a reasonable one;

XXIX. It is necessary to distinctly regulate rights, obligations and legal interests of the subjects of servicing the penalty by the law, and thus amend a number of new articles to the Criminal Executive Code of the Russian Federation (Art. 31 2, 6P, 69 2, 87 1, 144 1, 149 2, 157 2), and to make the necessary amendments and additions to definite regulations, provided by the Criminal Executive Code of the Russian Federation (Part 1 Art. 26, Art. 37, Part 1 Art. 40, Part 2 Art. 50, Part 2 Art. 60.4);

XXX. The general rights, obligations and legal interests, characterizing all the subjects of servicing the penalty, are the following: 1) follow the order and conditions of penalty servicing, provided by the acting Code and legislation; 2) are to be counted and registered; 3) provide explanations on the order and conditions of penalty service, order and conditions of undergoing the correctional, re-socializing impact, and on other questions, connected with the penalty; 4) take an active part in correctional and re-socializing activities; 5) undertake self-correcting and self re-socializing, including self-education and self-cultivation; 6) in cases, provided by the legislation, appeal to the court, including petitions for release from penalty; 7) correspond by any way to the achievement to the goals of penalty and correction;

XXXI. The subjects of servicing the penalty, depending on their specific features, could be classified into general and special ones. Special subjects possess specific features and serve only specific, attributive for them only, types of penalty. General subjects of serving the criminal penalty do not possess any specific features and serve criminal penalties, imposed to all the convicts;

XXXII. Depending on the level of awareness of penalty and its consequences, willful craving of the convict to the penalty service, the procedure of serving the penalty includes two elements:

1) immaterial:

a) a person has realized his guilt and is repent about the commited crime; is aware of a just character of the imposed penalty, order, conditions of serving it; is aware of the features of the criminal penalty, procedure, the motive, aims of its serving and presses the arising consequences as a result, or

b) a person is aware of his guilt and is repent about the committed crime; is aware of a just character of the imposed penalty, the order, conditions of its servicing; is aware of the features of the criminal penalty, procedure, the motive and aims of its serving, but does not presee these or that consequences, which could be seen in case the person is more attentive and forward-looking, or

c) a person is partially aware of his guilt and is partially repent about the committed crime; is partially aware the just character of the imposed penalty, the order and conditions of its servicing; is unaware of the features of the criminal penalty, procedure, motive and aims of its servicing, does not presee the consequences as a result of it, though it could be predicted in case the person is adequately attentive and forward-looking, or

d) a person is unaware of his guilt and is not repent about the committed crime; is unaware the just character of the imposed penalty, the order and conditions of its servicing; is unaware of the features of the criminal penalty, procedure, motive and aims of its servicing, does not presee the consequences as a result of it, though it could be predicted in case the person is adequately attentive and forward-looking;

2) volitional:

a) wishes the possibility of serving the penalty and the arising of definite consequences, or

b) does not wish, but consciously admits the possibility of servicing the penalty and the arising consequences, or

c) does not wish, presumptuously counts, that the penalty could not be served and the consequences would not arise.

1. Ахметшин, Х. М. Современное уголовное законодательство КНР / Х. М. Ахметшин, Н. Х. Ахметшин, А. А. Петухов. – М.: ИД «Муравей», 2000.

2. Гражданский кодекс Российской Федерации. Часть первая от 30.11.1994 г. № 51-ФЗ: принят ГД ФС РФ 21.10.1994: ред. от 02.11.2013. URL: http://www.consultant.ru/

3. Закон об исламских уголовных наказаниях Исламской Республики Иран / науч. ред. А. И. Ахани; предислов. зам. пред. Гос. Думы РФ Ю. Н. Волкова; перев. с персидского М. С. Пелевина. – СПб.: Изд-во Р. Асланова «Юридический центр Пресс», 2008.

4. Закон об уголовном праве Израиля / предисл., пер. с иврита: магистр права (LL.M) М. Дорфман; науч. ред. канд. юрид. наук Н. И. Мацнева. – СПб.: Юридический центр Пресс, 2005.

5. Закон РФ от 25.06.1993 г. № 5242-1 (ред. от 28.12.2013) «О праве граждан Российской Федерации на свободу передвижения, выбор места пребывания и жительства в пределах Российской Федерации». URL: http://www.consultant.ru/