Odpowiedzialność kierownika zamawiającego za przestępstwo nadużycia służbowego w związku z udzieleniem zamówienia publicznego (art. 231 w związku z art. 296 Kodeksu karnego)
Criminal Liability of the Head of Contracting Authority for the Offense of Abuse of Trust in the Context of Awarding a Public Contract (Article 231 in Connection With Article 296 of the Polish Criminal Code)

Summary/Abstract: The purpose of this article is to establish the relationship between the offense of abuse of power (Article 231 of the Polish Criminal Code) and the offense of abuse of trust (Article 296 of the Polish Criminal Code) in the context of an illegal award of a public contract by a public officer acting as the contracting authority’s manager. The study uses the dogmatic method. As a result of the analysis, it was found that Article 296 cannot be considered a lex specialis to Article 231. The concurrence of these provisions may be negligible or cumulative. The public procurement procedure is classified as the dominium of a state or local government. The author presents in detail that the aims, principles of awarding public contracts, and expenditure rules significantly affect the interpretation of the scope of duties of a public officer and manager as a person dealing with property matters. The final conclusions indicate the need to reinterpret the term ‘business activity’ used in Article 296, as well as the departure from the commonly accepted view that Article 296 excludes the application of Article 231.

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