Traditionally, the following key functions of criminal law are distinguished in literature: protective, preventive, regulatory, and educational. All of them are implemented in aggregate and complement each other. In our article, we will talk about the preventive function of legal responsibility: what is it, what goals can be achieved.
General information
To begin with, we briefly define what the functions of legal liability are.
The preventive (preventive) function consists in the fact that the right in itself, by its existence, means of influence, and instruments prevents the violation of the law, infringement of the interests of other persons by entities and who have already committed unlawful acts and who have been punished for it, and other persons who understand the likelihood of negative consequences for their actions.
The protective function is that the norms enshrining prohibitions on socially dangerous forms of behavior form a certain obstacle to the commission of atrocities. Due to this, the interests of the state, society, individual citizen are protected, the conditions necessary for the realization of rights and freedoms, protection of property, livelihoods and normal activities of socially significant institutions are created.
The regulatory function is to regulate the relations arising between the subject who committed the wrongful act and the state. Providing protection of the most important values from criminal encroachments, the right helps them to stabilize, survive, strengthen and develop.
Another function - preventive-educational - ensures the formation of the population’s right attitude to the state, laws, development of intolerance to violations of norms.
Definition Features
The preventive function of constitutional responsibility has a significant impact on the choice of a model of behavior and keeps the subject from violating norms.
According to a number of lawyers, this is a system of measures implemented by the state and society and aimed at eliminating circumstances, conditions, and reasons that contribute to the commission of an unlawful act. Meanwhile, this position is disputed by some leading experts in the field of law. So, for example, A.I. Martsev notes that the above formulation is an unreasonable mixture of different concepts. He insists on the need to distinguish the preventive function of law from specific preventive measures. As an argument to his conclusions, the author points out the existence of special terms in legal theory and practice: “combating crime”, “crime prevention”, etc. Thus, the author concludes that the preventive function is only an element of the preventive effect.
A number of scholars under the preventive influence understand the specific psychological influence from the norms of law, law enforcement practice and direct punishment, designed to deter subjects from violation of prescriptions. Thus, a preventive function is a way of influencing participants in legal relations. It complements regulatory measures, helping streamline and develop relationships that are protected by law.
Some lawyers generally deny the likelihood of a preventive function of legal liability. They consider it a hypothetical, ephemeral effect. At the same time, the authors note that the majority of citizens do not commit unlawful acts because of their awareness, and not under the influence of fear of punishment.
Implementation methods
The most common ways to carry out a preventive function is to formulate the obligation to refrain from actions prohibited by law or, conversely, to perform any action specified by the rules. The subject of responsibility fulfills the requirements under the influence of fear of punishment. The main tool for implementing the preventive function is, therefore, the psychological impact on the citizen.
Controversial issues
According to some scholars, the prevention of unlawful acts is always carried out only through the threat of imposing liability measures on the subject, disseminating data on the practice of applying sanctions. In this case, we have the identity between the preventive function of legal responsibility and the preventive effect of punishment.
Preventive liability options are provided by the norm. The way in which the preventive function of civil law is implemented is influenced by the internal attitudes of a particular subject. It will be enough for one person to simply understand the meaning of the disposition, while another person needs to understand the likelihood of punishment for violating the prohibitions. Similarly, the preventive function of criminal law is implemented. The overall preventive effect of liability is the combined effect of prohibition and punishment.
When creating a prohibitive norm, the legislator creates a model of legal relations resulting from an offense. The existence of the norm is focused on preventing the occurrence of such a legal relationship. His model is not in any particular element of the norm, but in it as a whole. Accordingly, the preventive function is implemented not by a separate component, but by the whole norm as a whole.
Private and general prevention
The generally preventive aspect of liability contributes to the formation of lawful behavior, to keep the subject from committing an offense. The result is a legal action model. The general preventive aspect extends to all subjects of responsibility.
If a person violates a criminal law norm, there are grounds for applying punishment. Thus, at the same time, the punitive function and the private-preventive aspect of the legal impact are realized. The implementation of private prevention depends on the implementation of the punishment.
The key differences between private-preventive and general-preventive impact are the ways of their implementation and the subjects of the impact. However, they are closely interconnected, due to the unity of goals.
The object of the private preventive function is the behavior of the subject who did not fulfill the order. The initial stage of its implementation is the conviction of a citizen. This action contains a negative assessment of the state and society of the committed act and the person involved in it. A conviction indicates a violation of the requirements and the need to comply with them. It affects the psyche, forces the offender to choose a model of lawful behavior.
The meaning of punishment
The application of sanctions significantly limits the ability of a person to commit new illegal actions. Punishments related to deprivation of liberty imply placing a citizen in isolation and establishing control over his behavior. As a result, a citizen is excluded from many social relations. As a result, the possibility of a new violation is minimized.
Such sanctions have an educational effect not only on the convicted person, but also on other persons who are in his immediate environment.
The entire procedure for the execution of criminal punishment is as if permeated with preventive measures. The management of the institution in which the convict is staying must monitor his behavior. All violations of the administration’s discipline should be immediately reported to the criminal-executive inspection. The same should be done with persons sentenced to probation. The real threat of the execution of punishment should be prompted by these actors to lawful behavior.
As for citizens exempted from liability, private prevention in such cases is of a short-term nature. It ends with a censure of the person indicating the inadmissibility of the commission of such acts in the future.
Exceptions
As mentioned above, a private preventive effect takes place in case of violation by a person of the requirements of the law. Meanwhile, there are exceptions related to granting subjects the right to cause damage to health when detaining a criminal, necessary defense, etc. A person exercising such a right without fulfilling an unlawful order prevents the harm to protected public relations, i.e., prevents the violation of legitimate interests.
Incentive Norms
They also perform a preventive function. In criminal law, incentive rules govern the post-criminal behavior of a person. They are more associated with the implementation of preventive tasks. Unlike punitive measures, incentive norms are aimed solely at crime prevention.
Despite the fact that these norms regulate the behavior of the subject after the commission of an unlawful act, they contribute to exposing the accomplices, preventing the development of unlawful acts, eliminating the occurrence of serious consequences, etc. They encourage a person to refuse unlawful behavior and, accordingly, prevent the likelihood of new offenses and crimes.
Functions of a preventive psychological service
The key objective of the psychological service at the penitentiary institution (penitentiary institution) is to increase the effectiveness of the implementation of sanctions imputed to a person based on the achievements of science and practice. Organization of the work of structural units is carried out in accordance with the tasks, based on plans approved in the prescribed manner by the head of the penal system or his deputy.
The key functions of psychological services are as follows:
- Diagnostic
- Advisory.
- Psychocorrectional.
Diagnostic function
It consists in making the correct diagnosis, drawing up a psychological portrait based on a comprehensive and in-depth study of the personality. The study is conducted to identify and describe individual characteristics, the conditions of their formation, the identification of persons to be registered with a psychologist. In addition, we study social communities, the dynamics of states and phenomena characteristic of them (groups of convicts, collectives of employees, etc.).
The diagnostic function of the psychological service is implemented using special methods. Actively apply testing, research documents, observations, interviews, etc. Diagnostic measures are carried out in accordance with the list of techniques recommended for use in the work of psychologists.
Advisory Tasks
Their implementation is aimed at providing the subject with psychological support in solving complex problems. When implementing the advisory function, the internal resources of the individual are updated for their subsequent use in crisis situations.
The psychological service assists in career guidance, problem solving, taking into account existing circumstances, self-development.
Psychocorrection
It consists in a deliberate change in the socio-psychological attitudes and value orientations that have formed in the individual. Psychocorrection is aimed at teaching the subject the methods and techniques of self-regulation, self-control, the formation of communication skills, the development of relations between him and other persons. Equally important is the increase in the individual's resistance to negative psychological influences.
As part of the implementation of the psychocorrection function, the specialist conducts special events using group and individual interaction methods. These, in particular, include auto-training, social and psychological classes, etc.
Preventive insurance function
The health and life of a person, his property, the results of labor are always at risk of loss. Damage can be caused both due to the influence of the human factor, and for reasons beyond the control of people. Of course, it is quite difficult to independently compensate for the losses that have occurred. In this regard, the idea arose to unite the efforts of various participants and establish joint liability for harm.
The precautionary function of insurance is that insurers and policyholders are equally interested in minimizing the consequences of accidents. In practice, financial and legal prevention is implemented.
The latter consists in establishing in the law or the contract a list of insurance situations in which the unlawful action / inaction of the insured in relation to the insured objects acts as a basis for refusing to compensate for the damage suffered by him. For example, material losses cannot be covered if they occurred as a result of property damage by insured persons intoxicated. Payments are not provided in case of suicide, intentional infliction of harm to one’s health or property.
Financial prevention consists in the fact that preventive measures are financed by a part of insurance premiums.
Environmental insurance
This concept is officially enshrined in the Federal Law "On Environmental Protection". Abroad, it is defined as a system of civil liability insurance of persons owning potentially dangerous facilities, in connection with the need to compensate for harm to third parties resulting from a technological accident or catastrophe. In domestic practice, a slightly different view has formed.
So, G. A. Motkin believes that environmental insurance is a liability insurance of potential sources of pollution, insurance of losses that occur at such facilities. Proponents of a broader understanding of the term also include personal insurance in the event of a catastrophe or disaster.
Given the above, we can draw the following conclusion. The objects of environmental insurance should include interest, both related to ensuring civil liability for damage, and insured as an entrepreneurial risk.
Taking into account the presence of public interests in the field of ensuring the safety of potential sources of pollution, the legislation should reflect in detail:
- The preventive function of environmental insurance (includes the prevention of damage to nature),
- Recovery function. It consists in providing compensation for the harm that has occurred.
Another important function is protective. Its implementation is aimed at protecting the property rights of the insured person.