СУДИМОСТЬ И РЕЦИДИВ ПРЕСТУПЛЕНИЙ

Abstract

The scientists have different approaches to the institution of criminal record within the system of criminal liability. Some consider it to be part of criminal liability; others argue that it is its consequence. The second opinion is more correct. The criminal record represents the consequences of criminal liability but not the criminal liability itself. Criminal liability cannot be exercised after serving the sentence since it does not go beyond punitive restrictions when serving a sentence. The conviction exists only after serving the sentence. Being the institution of criminal law, it gives rise to establishing for a person who has served a sentence general legal restrictions that are not provided for in the norms of criminal law and cannot be punitive. Their direct purpose is to prevent new crimes, ensure the safety of citizens and society and perform the function of ensuring public safety. In the criminal legal sense, the state of criminal record implies only the threat of a possible increase in criminal liability but does not include it. The designation of the status of the person is different: during the time of serving the sen-tence he is a convict, and after serving – a person having a criminal record. The criminal record is accompanied by recidivism of crimes. It is associated with the commission of a new crime by a person during the term, which depends on the category of the crime. Therefore, the re-offending while serving a sentence does not refer to the recidivism of crimes, it constitutes an independent form of multiple crimes - the totality of sentences. There is an interesting approach to criminal records in foreign legislations. In some coun-tries, the institution of additional punishments is used instead of it that entails the narrowing of the legal status of the person with a criminal record that is reinstated only by the court. In others, the criminal record after serving the sentence is established for life. It is not subject to the cancellation without further notice but can be expunged by the court if the person does not commit new crimes within the legal period. There are also different approaches to recog-nizing crimes as recidivism. In many countries, unlike Russian legislation, it is not connected with the term of a criminal record and is reduced to the re-recurrence of crimes within a certain period after serving the sentence. In some countries, in case of repeated crimes of a certain category (e.g. against state security), committed after serving the sentence, the person is rec-ognized as a recidivist, while other crimes form recidivism if they are committed within 5 years after serving a prison sentence. Some of these provisions should also be used in Russian law. The Russian legislators should establish a procedure for expunging the criminal record concerning two categories of persons: those who committed socially significant dangerous crimes and have committed crimes in dangerous and particularly dangerous recidivism of crimes that cannot be corrected while serving their sentences in prison. It is also appropriate to re-store the period of interruption of the criminal record in the event of a new intentional crime.