The function of reparation for harm in Claus Roxin’s theory of punishment

Abstract

This article analyzes the treatment of damage reparation in Brazilian Criminal Law from the theoretical framework of Claus Roxin, particularly his dialectical unifying preventive theory and the proposal of reparation as a third track. Through bibliographic review and dogmatic analysis, the study examines the Roxinian categories of subsidiarity, prevention, culpability and the position of the victim, confronting them with the current Brazilian criminal legal order. The results indicate that reparation, although present in several normative provisions, is insufficiently operationalized by legal practice, which tends to reduce it to a standardized patrimonial requirement or a bureaucratic clause in procedural agreements. Three recurring deficits are identified: the disregard of the author's economic capacity, the marginalization of the victim in agreements, and the persistence of retributive rationality in situations where prompt reparation would be preventively more adequate. The article proposes that overcoming these deficits requires a reinterpretation of the institute in light of the preventive purposes that guide legitimate criminal intervention.