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Hierarchy of functions of the obligation to redress for damage in Polish and German criminal law

damage harm redress compensatory function penal function criminal law

The purpose of this publication is to establish and define the hierarchy of functions that, in the current legal situation, are served by the criminal law obligation to redress for damage and what factors influence it in various cases (configurations) of its application. At the same time, the comparative legal aspect is also briefly presented, that is, an attempt to define the place and role of redressing for damage in German criminal law. The transformation of this institution into a compensatory measure as a result of the 2015 amendment made the discussion about its functions and its legal nature take on a new dimension and meaning. Moreover, it can still be adjudicated as a probation condition. In general, it can be stated that this institution still performs, above all, two main functions, which can be defi ned as penal (that is, by satisfying the social sense of justice and through its educational and punishing effects on both the perpetrator and society) and compensatory (that is, compensating for losses and harms caused by the crime). Currently, its compensatory function plays the leading role, while the penal function, although important, seems to be in the background. The penal function is emphasized slightly more when the obligation to redress for damage is adjudicated as a probation condition. However, despite this, this institution still has a mixed character, that is, compensatory and social rehabilitation. It is not a “pure” civilian institution; it is not solely compensatory. The civil and criminal elements interpenetrate and complemente ach other. In addition, it has other goals. However, the final hierarchy of functions performed by it depends in fact on the circumstances of a specific case, and on the form in which this institution is used by the court. On the other hand, German representatives of the criminal law doctrine generally agree that compensation cannot constitute an independent goal in criminal law, as it should be properly integrated with it.

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