Improving the modern system of criminal penalties in the context of the discussion on the reanimation of exile in Russia: historical aspect and the modern period (comparative legal analysis with certain norms of Chinese legislation)
Based on archival materials and statistical data, the article presents the historical experience of applying such types of criminal punishment as exile and hard labor. Interest in this topic has been aroused by proposals made in recent years by politicians and scientists to return exile as a form of punishment to the Criminal Code of the Russian Federation in order to address issues of demography and the provision of labor resources in Siberia and the Far East. The article is devoted to the history of exile and hard labor in Siberia, in particular in Transbaikalia, in the pre-revolutionary period. At one time, not only lawyers, but also representatives of other professions participated in the discussion on the abandonment or abolition of the institution of exile and hard labor as a type of punishment in Russia. The article also indicates the historical experience of using the link in China and examples of solving labor supply issues in the modern period in China. The analyzed data help to show the history of the formation of the use of such types of punishment and the expediency of returning exile as a type of punishment to the domestic Criminal Code.
Keywords: exile to Siberia, the effectiveness of punishment, economic development of regions, correction of convicts, criminal legislation of China, economic development of China.
Introduction
In recent years, some authors <1> have raised the issue of resuscitation of such a criminal punishment as exile. The argument is also the issue of settlement of marginal territories, from which in recent years there has been a wide outflow of population, especially young people.
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<1> See: Skiba A.P., Rodionov A.V. On the reanimation of exile as a criminal punishment: legal and economic aspects // Penal enforcement law. 2016. N 4. pp. 17-21.
So, in the article "On the reanimation of exile as a criminal punishment: legal and economic aspects", the authors determine the need for further development of Siberia and the Far East by the need to extract minerals, maintain industrial and economic infrastructure, etc. The authors believe that in order to provide the country with valuable resources, penal enforcement policy should be linked to long-term development programs. One of the development measures proposed is the reanimation of exile as a criminal punishment.
The problematic situation of the discourse on the return of the link to the Criminal Code of the Russian Federation
According to some authors, the return of the link can solve a number of criminological, penitentiary and socio-economic problems.
The use of exile will reduce the budget costs of maintaining places of deprivation of liberty; the convict will leave the environment in which he violated the law, which will help avoid recidivism. From a penological point of view, this will help to increase the effectiveness of the correction of convicts and will serve to prevent new crimes. Thus, this will contribute to a more effective achievement of the goals of the penal enforcement legislation <2>.
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<2> See: Skiba A.P., Rodionov A.V. On the reanimation of exile as a criminal punishment: legal and economic aspects // Penal enforcement law. 2016. N 4. pp. 17-21.
Steps are already being taken to resuscitate the link. So, in May 2021, the director of the Federal Penitentiary Service of Russia proposed to solve the problem of shortage of builders at the expense of convicts' labor. On May 27, 2021, Deputy Prime Minister Khusnullin said that the government is working on this option. It should be noted that as of May 1, 2021, 478 thousand people were held in penitentiary institutions, of which only about 188 thousand can be involved in work. According to the Russian Interior Ministry, 1.72 million migrants worked in the country in 2020, and construction sites lack about 1.2 million workers due to their absence <3>.
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<3> On June 1, 2021, more than 70% of Russians approve of hiring prisoners for construction sites // Interfax news agency.
71% of Russians approved this proposal of the Federal Penitentiary Service. More than half of the respondents believe that this "will contribute to the return of convicts to normal life," 23% - that this will not happen, 12% noted that such a practice would be the return of the GULAG <4>.
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<4> VTSIOM: Instead of going to prison, to work? // VTsIOM news.
The issue of exile is also on the agenda of political parties. At the end of September 2021, the leader of the LDPR, at a meeting of the president with the leadership of political parties, put forward the idea of providing Siberia with labor resources at the expense of exiles. The president rejected this idea, pointing out that "at least it won't work." At the same time, he noted that modern technologies need to be developed in Siberia and the Far East and thus create conditions for people to go there <5>.
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<5> Putin rejected Zhirinovsky's idea of exile to Siberia // IA TASS.
The history of the use of exile as a type of criminal punishment (comparison of the experience of the two countries)
When reforming modern domestic legislation, the historical experience of the application of criminal penalties in the Russian Empire and in the Soviet state should be taken into account.
Exile and hard labor as a criminal punishment in the Russian Empire of the XVII - XIX centuries significantly influenced the criminal situation, especially in the outlying territories. We note the negative contribution of this type of punishment in the form of convict subculture.
In the middle of the 19th century, discussions arose in the scientific community about the need to abolish exile and hard labor. Among the supporters of the link, we note such Russian lawyers as N.S. Tagantsev, N.N. Polyansky, etc. In the group of those who advocated the abolition of exile and penal servitude there were such famous people as S.K. Gogel, L.I. Petrazhitsky, I.Ya. Foynitsky, etc. <6>.
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<6> Kharmaev Yu.V. On the issue of improving modern criminal penalties in the context of discussions on the further use or abolition of the institution of exile and hard labor in the Russian Empire // Bulletin of the Buryat State University. Humanitarian studies of Inner Asia. 2020. N 2. p. 12.
N.S. Tagantsev was a consistent supporter of exile, believing that exiles could carry out the socio-economic development of the outlying territories. He saw exile not only as punishment, but also as "important corrective moments." In the case of exemplary behavior, the convicted person may be encouraged, up to parole. The Sakhalin penal servitude project, in his opinion, failed due to the lack of professionalism of officials. Objectively, he noted the high cost of maintaining exiles.
In our opinion, the opponents of the modernization of exile and hard labor at that time had more weighty arguments. Thus, L.I. Petrazhitsky pointed out that exile should be recognized as a harmful measure from a social point of view, and from an economic point of view it is absolutely ineffective <7>.
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<7> Kharmaev Yu.V. Criminal exile as a negative factor influencing the mentality of the local population in the Russian Empire in the XIX century. // Bulletin of the Buryat State University. Jurisprudence. 2019. Issue 1. p. 38.
The vices of exile and hard labor were also pointed out by writers. A.P. Chekhov in the work "Sakhalin Island" accurately characterized the inhabitants of hard labor. In the work "Sakhalin as a colony", A.A. Panov focuses from the point of view of economics on the issue of failures in the colonization of the island. So, in one village, where there were 4 women for 30 settlers and 6 soldiers, one of them turned to a doctor. She had at least 20 relationships with men every day. Because of poverty, parents sell their daughters into cohabitation, they give birth at the age of 12 and live on the support of wardens.
According to the Statute of Exiles of 1822, Siberian peasants were obliged to accept former exiles and convicts into settlements. Because of the conflicts, local residents developed the same criminal behavior.
In the Trans-Baikal region, the fate of convicts has always been the subject of attention of the military governor. During the construction of the Amur Railway, V.I. Kosov wrote: "The haste of construction prompted to attract... labor force represented by prisoners." The exiled convicts aggravated the situation in Transbaikalia, which caused discontent among the local population.
According to N.M. Yadrintsev, Siberia performed prison duty for the maintenance of criminals for the whole state. When discussing the issue of resuscitation of the link, the disadvantages of its use in the pre-revolutionary period should be taken into account <8>.
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<8> Malygina O.A., Myakhanova A.N., Skiba A.P. Some aspects of the re-socialization of persons who have served a sentence of imprisonment and parole in pre-revolutionary Russia (on the example of the Trans-Baikal region) // History of the State and law. 2019. N 12. P. 59.
To resolve the issue of the possibility of returning the link to the Criminal Code of the Russian Federation, the experience of other countries should be studied. For example, in the history of the People's Republic of China, there was also such a type of criminal punishment as exile, and in modern China there is experience in solving the issue of securing the population in problem territories.
In China, exile has been used since the Chunqiu period (722-479 BC). In the era of the Sui Dynasty (VI century AD), a system of five types of punishments (wu Xing) was formed: blows with thin sticks, blows with thick sticks, hard labor, exile and the death penalty <9>.
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<9> Moiseeva O.G. Goals and types of punishments in the traditional law of China // News of the AltSU. Legal sciences. 2018. N 6 (104). pp. 42-46.
At the stage of origin, the use of the link, the content and methods of execution depended on the subjectivity of the ruling and judicial officials <10>. Thus, the Zhangjiashan Judicial book (Er nian Lü ling, "Laws and Decrees of the second Year") contains a statute on fugitives (wang lü ) <11>.
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<10> Bo Xiaoxia A brief analysis of the Ancient Chinese exile system PhD thesis. . 2012.
<11> Korolkov M.V. Sudebnik from Zhangjiashan. Some problems of studying Early Han legislative texts on bamboo strips.
It is known that the first emperor of China, Qin Shihuang, executed hundreds of Confucian scholars, and exiled those who escaped execution to hard labor in the northern regions (for example, the construction of the Great Wall of China).
The Legists proposed harsh punishments, but their economic program was based on other grounds. Shang Yang proposed to develop agriculture, considering it the basis of a strong state. In his work "The Book of the Ruler of the Shan region", he writes that if there is more land than people, settlers should be called <12>.
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<12> Shang Yang. The book of the ruler of the Shan region / edited by L.S. Perelomov. M., 1993. p. 168.
Later, during the Han Dynasty, Confucians called for the mitigation of punishments and, in general, the purpose of punishment should not be intimidation, but re-education. Therefore, severe crippling punishments, such as cutting off limbs, should be replaced with hard labor and exile.
In the 19th century, the Qing Dynasty developed a system of exile. The Qing government exiled corrupt officials and ordinary convicts to Xinjiang, expelling them from the central regions <13>.
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<13> Rossabi M. Exile in mid-Qing China: banishment to Xingiang, 1758 - 1820. By Joanna Waley-Cohen // Journal of royal Asiatic society. Vol. 2. P. 492.
In general, China's experience does not demonstrate the possibilities of exile as a successful way for convicts to settle insufficiently inhabited territories for the purpose of their social and economic development.
Entering into a discussion with supporters of the return of the link in terms of the economic effectiveness of the link, one can put forward the antithesis of the high degree of possibility of negative (primarily socio-cultural) consequences of resuscitation of this type of punishment. Which, in turn, can largely offset the various economic effects of such events, indicated in the above article.
Comparative legal analysis of the alternative to resuscitation of exile as a criminal punishment for solving issues of economic development and providing labor resources
From the experience of modern China, there is a clear focus on overcoming inequality between regions and the problem of providing labor resources, economic development of regions with harsh climatic conditions in a comprehensive way.
The fight against poverty in China is designated one of the key tasks for the 13th five-year plan (2016-2020). In March 2016, the decision of the 5th Plenum of the CPC Central Committee on building the Xiaokan society (small welfare) was approved, the task was set to eliminate poverty in rural areas by 2020 <14>.
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<14> Ostrovsky A.V. Plans of the 13th five-year plan: how to build the Xiaokan society in China by 2020 // Results of the 12th five-year plan (2012 - 2015) and prospects for the development of the PRC economy until 2020 / ed. A.V. Ostrovsky; comp. P.B. Kamennov. M.: IDV RAS, 2017. pp. 6-7.
Unprecedented measures have been taken to support the economic development of poor areas through tourism, the use of scientific achievements, etc. As a result, since 2012, the number of poor people has decreased from 99 million to 5.5 million. The poverty rate decreased from 10.2% to 0.6% <15>.
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<15> Jing Tu. In the vanguard of the fight against poverty // China. 2020. N 10. pp. 22-23.
Changes in the socio-economic development of the village required new approaches. Among the attracted financial institutions, we note the Agricultural Development Bank of China (hereinafter - BRSHK). BRSHK was established in 1994. In 2017, they issued loans worth 859 billion yuan for the development of rural infrastructure <16>. These loans are aimed at the renovation of dilapidated housing, the construction of roads, and the development of a network of modern information systems.
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<16> The China Agricultural Development Bank issued loans in the amount of 859 billion yuan last year.
Let us note the measures taken by China in relation to marginal lands, which can be systematized in the form of several main interrelated directions.
First, it is the further promotion of a strategy to reduce the differences between economically developed eastern regions and less developed western ones. BRSHK provides support for the reorientation from less effective activities to others. Thus, a scheme of cooperation between large companies and low-income households is being introduced. For example, a company specializing in the production of compound feeds and pig breeding provides piglets, compound feed, etc. to the poor.
State programs to support agriculture are also being implemented in Russia. For example, in Buryatia, since 2012, more than 300 citizens have received assistance and opened farms <17>. However, such support covers a small number of citizens.
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<17> Buryatia's novice farmers received subsidies of more than 126 million rubles // IA TASS.
The fight against poverty in China is being carried out with enthusiasm. So, in 2015, academician Zhu Yuyong helped villagers to start receiving income from the conversion of farms to the production of false ginseng. According to him, education and practical skills are the way out of poverty <18>.
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<18> Zhang Jiwei, Zheng Xu. Academician-peasant in the fight against poverty // China. 2020. N 10. pp. 24-25.
Secondly, it is a reorientation from agricultural activities to the service sector. Support for domestic tourism is one of the most important areas of the economy. In 2000, the program "development of the western regions of China" (Sibu da kaifa) was launched, which highly appreciates the role of tourism <19>. This also contributes to the preservation of national traditions and crafts.
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<19> Zaklyazminskaya E.O. The economics of tourism in China: dis. ... candidate of Economic Sciences. M., 2018. p. 167.
In Buryatia, as in Russia as a whole, there are many tourist attractions. There are Old Believers, Buryat and Evenki villages that have preserved their flavor. It is necessary to invest in infrastructure development so that tourism in remote areas becomes a reality.
Thirdly, many events are a continuation of the decisions taken at the beginning of the XXI century in the context of the scientific development program of the People's Republic of China on reducing the differences between urban and rural areas <20>.
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<20> Tsyrendorzhieva D.Sh., Balchindorzhieva O.B. Scientific view of development as a new stage of China's modernization // Bulletin of the East Siberian University of Technology and Management. 2014. N 2 (47). pp. 148 - 153.
Thus, summing up, we note that China is taking comprehensive measures aimed at developing marginal lands, historically less developed than the East of China, at modernizing villages and adapting local companies, creating optimal conditions for economic development, shifting their activities mainly towards the service sector, retraining the local population. All these measures contribute not only to lifting residents of poor regions out of poverty, but also give them the opportunity to acquire knowledge and skills to independently improve their economic situation.
Conclusions
In conclusion, it should be noted that supporters of the return of exile as a type of criminal punishment, as the main argument, call the solution of the demographic problem at the expense of exiles in this way, as well as the solution of economic problems associated with a shortage of workers. Historical experience shows that the positive effect of exile is short-lived, while the social problems that it generates (for example, the criminalization of society in places of exile, the threat to the local population and the associated growth of public outrage in the field, etc.) are much more significant and durable. In this regard, the return of exile as a criminal punishment seems unacceptable.
Much more effective for solving the socio-economic problems of Siberia and the Far East is the support from the state and large commercial structures of small businesses, the development of tourism, infrastructure, which would make these regions attractive for local residents and voluntary relocation of citizens from other subjects to these regions. This is evidenced by the example of China, which also abandoned exile and in a short period of time made a huge leap in economic development through the implementation of effective economic programs. At the same time, China has managed to keep the population in the regions, including in rural areas, creating conditions for a decent standard of living.
Thus, the return of the link cannot be considered in the context of a way to solve socio-economic problems, since, on the contrary, it can lead to an aggravation of various social problems.
