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The Postulates of Restorative Justice and the Continental Model of Criminal Law

As Illustrated by Polish Criminal Law


Teresa Dukiet-Nagorska

The concept of restorative justice, which focuses on extinguishing the social conflict caused by criminal offense, has been received with growing interest on the part of both legislators and specialists in legal sciences throughout the world. This publication answers the question to what extent the classic model of criminal justice (including its fundamental principles and miscellany of penal measures) is able to meet the challenges posed by that concept. The doubts indicated in the study have been illustrated by normative provisions taken from Polish criminal legislation.
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Damage and its Redress in Criminal and Civil Law: The Doctrinal and Case-Law Position to Date


← 26 | 27 → Piotr Zawiejski

In the restorative model of criminal law, whose central element is the liquidation of the conflict emerging between the offender and the wronged party, ascertaining damage and identifying the means of its reparation are of key importance. In light of this, findings which are intended to delimit the scope of the realisation of the goals characteristic of the restorative model in criminal proceedings must extend to an understanding of damage and its compensation in the context of penal law.

In the 1997 codifications, lawmakers reinforced the importance of the duty to redress damage inflicted by criminal conduct. Apart from criminal law institutions previously known, i.e. civil action that takes place within criminal proceedings or with the possibility to award damage ex officio, as well as with the obligation to repair loss as a requisite connected with the award of probative measures or community service, which were known already to the previous Criminal Code (CrimC), lawmakers introduced the obligation to repair damage as a new punitive measure.1 In addition, a clearly compensatory function is borne by vindictive damage specified in art. 46(2) of the Criminal Code.2 Among criminal law measures of restitution, W. Zalewski also includes apologies to the wronged party and a publication of the sentence.3 Nevertheless, both vindictive damages and punitive measures involving an apology and a publication of the ← 27 | 28 → sentence, as clearly distinct from the strictly understood obligation to repair damage, will remain outside the scope of...

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