Mixed or Union Theories of Punishment
Theories Tema3-mixed or union:
All views theories were far monistic theories, however, in the S. XX displayed several authors that aims to reconcile all the pain we’ve seen. Thus, it is compatible to general and specific deterrent to remuneration. Theories are mixed or union that most criminal codes, including ours, has decided to adopt. Today, nobody keeps any monistic theory, but more or less emphasis combine all. These authors argue that the punishment is proportionate to the poor remuneration guilty of the crime, but also aimed at preventing future crimes and to rehabilitate the subject.
There are two trends: a progressive and a conservative trend. These trends will understand that the purpose of criminal law is to protect society and prevent crimes. For them no longer important to recognize that justice and the principle of culpability as an element of the crime should serve to limit state intervention in no case this limit may be exceeded by the criteria of prevention.
The purpose of prevention can not prevail over the subject in any case. On the other hand, these sentences differ in other functions that are assigned to the Criminal Law in the proportion that should be kept between the penalty with respect to crime and prevention needs. A major difference is the priority accorded to it by one, at the end of retribution (conservative) and the other at the end of general and special prevention (progressive trend). It is important to highlight two important pieces of legislation: first Project Official German Penal Code of 1962, and secondly the Alternative Project German Penal Code drafted in 1966 by the German doctrine, ie, by teachers.
1. The Conservative leadership is fit into the Project Officer of the German Criminal Code 1962. You have to guilt as the basis for the penalty and argued that the basic function of criminal law must meet a goal of retribution and prevention, but with particular emphasis on prevention in general because for them the general prevention is inherent, the penalty is fair penalty intimidating. The main contribution of these theories remuneration of the union is to maintain that pay is the foundation of the budget or shame but at the same time admitting that it can be directed to the prevention of crime.
2. The progressive direction in the German doctrine, reflected in the Alternative Project 1966 and has a limit of guilt as targets for prevention.
The role, in this case, the penalty is detention coupled with the need of special protection because based on the premise that we need to establish a criminal law based on humanitarian attempt to recover the individual to society.
Criticism Tema3-mixed theories or union:
1. With the juxtaposition, it is common use of each of the ends of sentences;thus breaking the internal logic of each of the monistic theories.
2. They try in vain to explain the problem of under penalty within the parameters of compensation / prevention is worth forgetting that meets not only functions of retribution and prevention, but which is a foundation that transcends and global call.
Tema3-CRITICAL to current theories:
These theories are guilty of criminal law will receive criticism from criminal policy approaches .*
1. A current theories are censorship, first, the dogmatic assumptions, and from this point view objects that are based on the principle of guilt (which is unscientific) and the degree of culpability (also unscientific) because we can not prove that the subject is entirely responsible for their actions. From this assumption the authors say is false, no scientific conclusions can be obtained about him, so that it is unprovable premise has no reason to be, and the punishment would have to be replaced by other sanctions as may be system security.
* 2
Not only is a principle unprovable, but also can not be measured, since there is a device that measures the guilt so that we can not calculate with certainty the extent appropriate punishment just to be doubtful that we can get a degree guilt.
* 3
In most systems are what we call security measures, which apply an entirely different the dangerousness of the subject. Then the authors argue that what serves the principle of guilt if we resort to the degree of danger and system security. These authors recommend the replacement of a system of penalties for safety measures.
Tema3-East today:
The current trends are based on these two draft Penal Code and the budgets of those who depart. The two basic versions of these theories are mixed representing Roxin theory and the theory is Schmidhauser, on the principle of guilt. It’s about trying conexionar this principle with retributivism but prevention is especially important, because it says you can not do without it in a society.
* 1
Schmidhauser differentiating Theory:
The author distinguishes between an approach theory of punishment as a social phenomenon and tote, and a particular aspect of punishment (as perceived by each subject) depending on the stage when we develop and enforce the penalty and that will depend on each of those involved in it. To Schmidhauser the end of the sentence isfight crime, make human life possible in such a way as to keep crime rates within manageable limits. This is achieved by punishing the individual for reasons of general deterrence and this is precisely the function of punishment.
Resocialization why not impose a sanction, but also plays an important, but what marks the end of the sentence is prevented. It punishes the individual who commits a crime, not because of special prevention, but because the sentence has an impact on awareness and reaffirms the validity of the rules. The direction that takes the punishment for him is his need. You can not waive the penalty, is a mechanism of psychological coercion and reaffirmation of the rules irreplaceable, hence, rather than for reasons of justice, punishing them for necessity.
Depending on the person or institution involved in the process has a particular meaning to the sentence:
A. Legislator:
only one who, when you create the law, is concerned about the welfare of society. Tries to create the sentence, to protect society against intolerable attacks.
B. Bodies administering justice:
the key is to clarify the facts and make available to the courts to these people, guided by the principle of equality. The judge does is try to assess the facts right and for him, measure or lay off, reaches a higher meaning to the general prevention, because to judge the fundamental meaning of the sentence is the general prevention.
C. Criminal Justice:
for him it comes to justice through a proper assessment of the facts, remain essential requirements of special prevention.
D. Officials who run the law:
the best way to redirect the convict is the only sense that it’s worth (pure special prevention).
E. Society:
the meaning of the sentence is the mechanism that serves to reconcile with the offender. In short, from the point of view Schmidhauser:
<At the time of abstract legal injunction prevailing view of general prevention. The judicial time, special prevention. At the time of execution of sentence, custody of offenders and special prevention.
* 2. Roxin Dialectics Theory:
Part of the basis of which started Schmidhauser, depending on what stage the process is development and implementation of the sentence, it will have a different purpose. Can distinguish the time of the injunction, measurement and execution. A. injunction:
the end prevails is the general prevention but not only in its negative aspect, but also positive (because while intimidating serves as a mechanism social cohesion reaffirming the values it has.) It is important to realize the penalty here as a form of protection of legal and vital services (providing the individual what he must to live in society).b. Measurement:
the judge involved in the process of determining the penalty to be applied. The penalty would work to support the seriousness of the legal injunction but within a basic framework for determining the degree of punishment which is the subject’s guilt, guilt that we should serve to limit the time to graduate and to bring the penalty and achieve fair compensation. Retributive punishment will fit the degree of culpability of the subject. The penalty can never exceed that limit (if it is below) as well avoid that man is used as a mere instrument. C. Implementation:
the sentence handed down within the limits of the principle of guilt and in accordance with the requirements of prevention general that the legislature enacted the law, must be fulfilled so as to facilitate the resocialization of the subject. This corresponds to the special prevention.