Problems of Ensuring a Lawful and Reasonable Judicial Decision to Replace the Unserved Part of a Sentence with a Milder Type of Punishment
Mashinskaya N.V. Problems of ensuring a lawful and reasonable judicial decision to replace the unserved part of a sentence with a milder type of punishment. Penitentiary Science, 2024, vol. 18, no. 3 (67), pp. 272–278. doi: 10.46741/2686-9764.2024.67.3.006.
the article is devoted to the study of the legislative regulation of the subject and limits of judicial proceedings when considering the issue of replacing the unserved part of a sentence with a milder type of punishment, which ensures the legality and validity of the court decision. Purpose: based on the analysis of the criminal and criminal procedure law, generalization of judicial practice, to develop key criteria for a comprehensive study of the circumstances for making a legitimate and reasoned decision in accordance with Article 80 of the Criminal Code of the Russian Federation. Methods: general scientific research methods, such as a dialectical method of cognition of phenomena and processes and a method of analysis and synthesis, as well as special legal methods such as a formal logical method of document analysis. Results: an analysis of legislative regulation and law enforcement practice has shown that when deciding on the replacement of a sentence with a milder type of punishment, the court should consider the issue of achieving criminal punishment goals. At the same time, in order to make a positive court decision on the basis of Article 80 of the Criminal Code of the Russian Federation, unlike parole, it is not necessary to achieve all the goals set out in Part 2 of Article 43 of the Criminal Code of the Russian Federation. Conclusion: in order to make a court decision that meets requirements of legality and reasonableness, it is necessary to have a clear legislative regulation of the circumstances investigated by the court in the implementation of the provisions of Article 80 of the Criminal Code of the Russian Federation, as well as the legislative consolidation of the period of actual serving of punishment by a convicted person to replace the unserved part of a sentence with a milder form, if the unserved part of the punishment had previously been replaced by a milder type of punishment
Keywords: punishment, judicial decision, legality, validity.
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