Jeszcze o aspekcie formalnym kontratypu obrony koniecznej
More on the formal aspect of the counter-type of necessary defence

Summary/Abstract: This study concerns the legal nature of the so-called counter-types and is a response to polemical remarks by Mikołaj Iwanski, Mikołaj Małecki, Szymon Tarapata and Witold Zontek. The considerations are conducted on the basis of the rules of the derivational theory of legal interpretation, the concept of the interpretation of law, and the principles of legislative technique, and in the light of the issues associated with basic legal modalities. On this basis, it is established that the provisions establishing countertypes are modifiers of the content of incomplete central provisions, and that they change the scope of application of norms sanctioned in criminal law, but do not modify sanctioning norms. Conduct performed under the conditions of the countertype does not involve exceeding the sanctioned norm and is an act that is legally indifferent, but not legally neutral. The proposed approach cannot be equated with the theory of negative elements of a prohibited act.

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