BETWEEN THE RELATIVE AND ECLECTIC THEORY OF PUNISHMENT: THE PURPOSE OF PUNISHMENT IN SERBIAN POSITIVE CRIMINAL LAW
BETWEEN THE RELATIVE AND ECLECTIC THEORY OF PUNISHMENT: THE PURPOSE OF PUNISHMENT IN SERBIAN POSITIVE CRIMINAL LAW

Summary/Abstract: The Criminal Code of Serbia is one of the few criminal codes that regulates the purpose of punishment and criminal sanctions. The latest amendments to the Criminal Code (2019) include a new provision on the purpose of punishment: to achieve fairness and proportionality between the criminal sanction and the committed crime. Until 2019, the purpose of punishment was purely preventive because the legislator accepted the relative theory on the legal purpose of punishment, which entails general and special prevention as the only legal goals. The situation has changed by introducing this new purpose of punishment, which entails the acceptance of the mixed or eclectic theory of punishment. Yet, the issue is still debatable. This paper aims to present a different standpoint on the new provision on fairness and proportionality between the criminal sanction and the committed crime. Although these concepts are intuitively related to the talion principle and thus to retribution, the author attempts to thoroughly argue the viewpoint that fairness and proportionality can also be understood as limitations of the repressive aspect of punishment. Retribution is often mistakenly used as a synonym for repressiveness, although the first term is related to the purpose of punishment and the second one represents the essence of punishment. The author will also consider the protective function of criminal law and some general principles, such as legitimacy.

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