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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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The Idea of Restorative Justice: An Attempt at a Comparative Analysis


← 196 | 197 → Jakub Hanc

For some time, it has been apparent that the idea of restorative justice is becoming important to European states. Its postulations, transformed into concrete legal enactments, constitute unique elements of legal systems, and are often considerably diversified (especially considering the degree to which Roman law has been adopted). Unfortunately, it should be noted at the same time that implementations of this idea are often fragmented and cover only certain areas that are separate from the broader context of the model of criminal restorative law. In addition, they do not always properly match their legal environment. This points to the absence of any comprehensive approach.

Because of the limited scope of this publication, it is not the author’s intention to thoroughly and meticulously describe the mechanisms leading to the implementation of the idea of restorative justice in a variety of jurisdictions, but only to point to particular instances of its implementation. Moreover, the object of the present study is to identify a typical model of restorative justice in criminal law, situating cases of departure from that model outside the scope of its interest.

Bearing in mind the prospect of further investigations,1 it is necessary at the outset to make one crucial explanation. The idea of restorative justice is realised in areas influenced by German legal culture. It is based on the assumptions of the concept of the so-called third way (known as either Dritte Spur or Dreispurigkeit), whose basic postulates...

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