Anali Pravnog fakulteta u Beogradu

non-pecuniary harm, and partly also, in compensation for emotional value (pretium affectionis). The philosophy of reparation also led to the marginalisation of the importance of the degree of fault (subjective liability), which had certain effects on the preservation of moral values. The intrinsic function of reparation, namely, is only the elimination of loss, but not its prevention or deterrence. Whereas, the function of deterrence from causing loss has a powerfully moral effect, and it is immanent to the philosophy of private penalty as a civil sanction. Aside of the philosophy of reparation, there is the philosophy of the explicit complementariness of reparation (compensation of loss) and retribution (private penally). To the legal values of reparation (primarily the protection of the interests of the damaged party), one attaches the function of deterrence from causing damage that is characteristic of a private penalty, and therefore designated as exemplary compensation. Of course, of itself, this entails retaliation to a certain extent, a moral talion, especially in the form of punitive damages. The philosophy of complementariuess leads to a balance between the primary functions of civil sanction, which are restitution or reparation, and the secondary function, which is private penalty (in the form of punitive damages). Nevertheless, in the theory of law, the question remains open as the legitimacy of punitive damages from the viewpoints of equity, ethics and economics. Punitive damages were practically revived in the last two decades of the XX century in different branches of (American) law. Their role became particularly significant in labour law, primarily in regard of the suppression of discrimination at work and in the case of illegal dismissal. Recent solutions in French labour law have contributed to a renaissance of private penalty in the case of a breach of a labour contract. Finally, a kind of private penalty also appears in the Yugoslav law of industrial property, but without the adequate use of terminology and the appropriate concept. Key words: Loss. Damages. - Punitive Damages. - Penalty. - Legitimacy - Discrimination. Branko Lubarda*

Peine privee Resume

L'indemnite penale, en lant que type de peine privee, est presente dans plusieurs domaines du droit positif americain, et apparait aussi en taut que sanction en cas de discrimination dans le cadre du travail. La notion, la nature juridique et la legitimite de l'indemnite penale presuppose I'existeuce d'un

Dr Branko Lubarda, profcsscur a la Facultc dc droit dc I'Univcrsitc dc Belgrade.

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Бранко А. Лубарда, Казнена накнада (стр. 382-409)