The concept of punishment

2022;
1
Institute of Jurisprudence and Psychology, Lviv Polytechnic National University

The question of strict differentiation of responsibility and punishment in the legal literature arose at the turn of the 50-60's. Until 1958, the legislation did not generally consider criminal liability separately from punishment. An article appeared in the Principles of 1958 and the Criminal Code of the Ukrainian SSR in 1960, which provided the grounds for exemption from criminal liability and punishment. This was a confirmation, that the legislator does not equate criminal liability and punishment, but follows the path of distinguishing these concepts. Further development of criminal law led to the fact that in 2001, in the new Criminal Code of Ukraine, the grounds for exemption from criminal liability and the grounds for exemption from punishment and its serving were provided in different sections.

It is necessary to allocate specific signs of punishment,from which the concept of punishment consists: 1) punishment is a measure of state coercion. The concept of punishment as a measure means, that each type of punishment has quantitative limits and a specific meaning, and is a potentially feasible way to influence the convict, strictly regulated by criminal law. No one has the right to go beyond the quantitative and qualitative characteristics of punishment established by law; 2) the state nature of the coercive measure. This means, that punishment can be imposed only on behalf of the state, and is a public law, state assessment of the act as illegal, and the person, who committed this criminal offense, as obliged to serve the sentence; 3) the coercive nature of punishment as a state measure. All participants in the public sphere are obliged to obey the decisions, that have entered into force on punishment, and the state has the right to apply for their implementation appropriate measures of influence, the necessary ways provided by law to ensure the subordination of persons and bodies to such decisions, including necessary measures of physical influence. The coercive nature of punishment also means the convict's obligation to endure deprivation and restrictions related to the application of punishment to him; 4) criminal punishment is imposed for those acts, that are criminal offenses and contain all the elements of a criminal offense and is applied to a particular person. Guilt is one of the hallmarks of a criminal offense. It is clear, that the punishment applies to a person convicted of a criminal offense. Innocent punishment is impossible, and if the court does not establish the guilt of a particular person in the committing of a specific criminal offense, then such a person can not be subject to coercive measures, punishment; 5) punishment is imposed only by a court sentence and on behalf of the state; 6) punishment, in contrast to other coercive measures, causes a special legal consequence - a criminal record, that can be removed or revoked under certain conditions specified in the criminal law (Article 88 of the Criminal Code of Ukraine). The criminal record distinguishes criminal punishment from other means of state coercion; 7) punishment in its content is a chastisement. Although, the very term "chastisement" is absent in the definition of punishment given in the Criminal Code. The punitive nature of punishment is provided in the restriction of the rights and freedoms of a person found guilty of committing a criminal offense. Сhastisement is an integral part of any criminal punishment. It is determined by the terms of punishment, the presence of physical and moral suffering and deprivation, various restrictions. In some punishments it is more pronounced, for example, like life imprisonment, imprisonment, in others - restrictions on other rights prevail; engage in professional activities, having titles, awards, etc. In every punishment, of course, there is moral suffering - shame, shame before society and their immediate surroundings.

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https://science.lpnu.ua/law/all-volumes-and-issues/volume-9-number-436-2022/concept-punishment Slotvinska N. “The concept of punishment.”