INDIVIDUALIZACIJA KAZNE PREMA FRANCUSKOM KRIVIČNOM ZAKONIKU OD 1810. GODINE

Abstract

The subject of this paper is the individualization of penalty in the French Penal code of (Code pénal de 1810). It is a Code that brought a very important innovation in comparative legal history – a relative system of penal determination – that will be crucial for further development of system of penal determination. Thereto, the French Penal code of 1810 had the greatest influence in the development of European substantive criminal law, because the whole array of penal codes, from the Prussian to the Serbian Criminal code of 1860, adopted its solutions. The author analyses the multi-decade process of development of the idea and practice of the individualization of criminal punishment in French criminal law, starting from the complete judicial arbitrariness that characterized pre-Revolutionary law to the absolute system of penal determination brought by the Penal code of 1791, and from the absolute system to relative system of penal determination present in the Penal code of 1810. The author shows that the innovation from 1810 actually represents a sui generis synthesis of the various experiences gained over decades of application of previously mentioned forms of penal determination. Special attention is paid to the problem of judicial individualization of penalty between penal minimum and maximum established by the Penal code of 1810. Although the relative system of penal determination enabled the individualization of penalty by reconciling it with the principle of legality, the start of the implementation of the Penal code of 1810 brought up some weak points of this system. In regard to that, the author analyses the statistics of convictions made by French courts in second and third decade of the 19th century. At last, the research of the problem of individualization of penalty in the Penal code of 1810 the author complete by analyzing the Penal code Reform Bills of 1824 and 1832, that introduced the institute of extenuating circumstances as one of the instruments for the individualization of penalty.