Учет личности виновного и обстоятельств, смягчающих и отягчающих наказание, как один из критериев справедливого наказания

Abstract

The article is devoted to the analysis of the general principles, which are most frequently taken into account in infliction of penalty: perpetrator’s personality and the circumstances mitigating or aggravating the punishment. In particular, the author notes that negative personality characteristics, which do not manifest themselves in the criminal conduct and which do not give evidence of the social danger should not be taken into account in sentencing. The author examines which characteristics of the individual offender must be considered in sentencing. The author attends to errors arising from the use of the circumstances in question and resulting in the violation of the principle of justice. The main reasons for these errors are inattention of judges (with regard to non-recognition of a number of circumstances as mitigating or aggravating) and the imperfection of the law (in the wording of some circumstances). In conclusion, the author arrives at the idea about the necessity of formalization of the influence of aggravating and mitigating circumstances on punishment.