PREVENCION Y RETRIBUCIÓN: LAS TEORÍAS DE LA PENA DESDE LA PERSPECTIVA DE LA CONSTITUCIÓN ECUATORIANA

Abstract

In the present investigative work, we approach the study that over time several authors have achieved about the theory of retribution in Criminal Law. Where first a study was made about the history of this theory, that is, how it emerged, and how it has progressed and entered criminal science. After this analysis, we review the theory of retribution, which is based on the just punishment, as a merit for the crime committed, from the law of talion to the doctrines of German writers of past centuries. It is a great help, and a comparison is made with the classic retribution with the neo-retribution, the same that arises from the results of preventive theories, which justifies the penalty, since they put it in a form of "utility”. It will expose the criticisms of the traditional Spanish doctrine to the retribution, the same that they indicate as irrational, vengeful, and violent. However, these objections are usually related to the retribution. Therefore, it cannot be applied to new theories based on the doctrine of German and American authors from 1970, whose study has been devoted to most of this research. Finally, the opinion of the doctrine about retribution is quite favorable, since the purpose of this theory is to favor not only the victim but the perpetrator of the crime.