The criteria of individualization of punishment: consideration in exemption from criminal liability and punishment and application of other measures of criminal-legal influence

Abstract

Criminal law as a whole, as a specific type and instrument of social regulation can be properly effective not only if its provisions are optimally regulated, but also if the latter correspond to its essence, considered both in terms of legal formulas, requirements of legislative technique, proper systematization and well-thought-out structure, and social phenomena  and processes. Th is component is identified by doctrine and allows monitoring how successfully it is realized in the norms and prescriptions of the law. Individualization of punishment in criminal law is presented as a necessary stage in the process of its selection and appointment, at the same time it serves as a manifestation of an important function, consisting in the establishment and restoration of justice in social relations. Meanwhile, in recent times, more and more often specialists are becoming a question about the expediency of developing such a toolkit for all measures of criminal law influence without exception, because the rule of systematic dictates uniformity in their application; and the lack of unity of views among scientists in the interpretation of the socio-legal essence of various institutes of criminal law causes a wide dispersion of positions on various issues in law enforcement practice. Although it can be argued that the above-mentioned criteria  at the time of preparation of this article are well enough worked out in terms of systematization of legislative material, legal technique of prescriptions (character and optimality of wording), and the degree of differentiated influence on the type and amount of punishment in strict correlation with the character and degree of public danger of certain objective circumstances, both related to the criminal act and the personality of the perpetrator; but whether they are applicable to other measures of criminal-legal character. The analysis of the problem from the stated perspective leads to the conclusion about a common basis, a fundamental prerequisite, on the basis of which all criminal-legal constructions are formed without exception — in the socio-legal aspect it is a noticeable reduction of public danger, and in the legal aspect — a set of legal provisions, appropriately enshrined in the law, acting as a basis for appropriate decisions and providing legal consequences of actions that demonstrate such a reduction or complete loss. At the same time, a number of criminal-legal measures as a key parameter contain other social and private-legal needs, for the satisfaction of which they are enshrined in the law — while the focus on public danger does not lose its significance in this case, but turns out to be only one of the important social characteristics. As a result of the present study, proposals on optimization of some provisions of the Criminal Code of the Russian Federation are formulated: the authors come to the conclusion about the expediency of exclusion of the sign of voluntaries in Article 75 of the Criminal Code of the Russian Federation, a different interpretation of the ratio and significance of various forms of manifestation of active repentance, changes in the wording of Articles 64 and 75 of the Criminal Code of the Russian Federation, legislative consolidation of broader formulations covering the whole variety of positive post-criminal behavior.