Klauzula generalna — stan wyższej konieczności
General Clause — A State of Necessity

Author(s): Adrian Wylężek
Subject(s): Law, Constitution, Jurisprudence
Published by: Wydawnictwo Uniwersytetu Śląskiego
Summary/Abstract: The institution of a state of necessity is included in Article 26 of the Criminal Code as a general clause, i.e. a regulation referring to extralegal assessments. It is a broad regulationwhich remains rarely used in the judicial practice. The following article constitutes an attemptat answering the question whether the scope of this regulation delineated by the Criminal Code are sufficient for achieving the aims of this regulation. On the one hand, it would appear that the interpretation of the regulation expressed in Article 26 (2) of the Criminal Code is too broad, since it allows to sacrifice a greater good without introducing additional conditions other than those included in Article 26 (1) of the Criminal Code. On the other hand, however, when it comes to the guarantor mentioned in Article 26 (4) of the Criminal Code, it appears to be too narrow, since it does not take into account the abnormal motivational situation of the guarantor if the incompatible goods are of the same importance, which the author explains on the example of terrorism, which has moved out of the realm of abstraction in the present times.

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