The Theory of the Borrowed for Criminal Sanction (A Comparative Study)

This study examines the concept of the borrowed penal sanction (also referred to as borrowed criminal punishment), which is deeply rooted in the general theory of penal sanctions. Through an analysis of legislative texts and jurisprudential interpretations, the research demonstrates that this concept is more than just an interpretative tool. Instead, it is a genuine legislative and drafting technique employed by lawmakers to define certain forms of criminal punishment. It functions as an independent subsidiary theory with significant legislative and judicial implications, contributing to the establishment of elements of punishment and the achievement of legislative goals, such as textual brevity. A borrowed sanction is established when, instead of prescribing a new penalty, the legislator explicitly or implicitly refers to an existing sanction stipulated for another offence, or relies on the general provisions of criminal law to establish a rule of broader application. This approach is usually justified by the similarity of the social harm caused or the similarity of the legal structure of the two offences. Furthermore, it helps to prevent inconsistencies between general and specific penal provisions, reduces ambiguity and ensures the coherent application of criminal law. It also facilitates the classification of penal norms into general and specific categories.