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Wstęp

Author(s): Marek Kulik / Language(s): Polish Issue: 29/2016

Niniejszy zeszyt stanowi zbiór prac odnoszących się do problematyki tzw. przestępczości białych kołnierzyków w ujęciu prawnoporównawczym. Pojęcie to, wprowadzone swego czasu przez E.H. Sutherlanda, bywa różnie definiowane. W znaczeniu słownikowym chodzi o czyny zabronione popełnianie przez sprawców o stosunkowo wysokim statusie społecznym. Nie to jest jednak we współczesnej przestępczości „białych kołnierzyków” najistotniejsze. Przez ich przestępczość rozumie się bowiem zachowania o określonych cechach.

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SPRAWOZDANIE Z KONFERENCJI NAUKOWEJ „NULLA POENA SINE LEGE POENALI ANTERIORI – HISTORIA KARY W POLSCE OD XVII WIEKU”

Author(s): Andrzej Janiak / Language(s): Polish Issue: 25/2014

Report on the conference "Nulla poena sine lege poenali anteriori - History of punishment in Poland since the 17th century" (Lublin, 3 March 2014)

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Ochrona gospodarki w ustawodawstwie karnym Ukrainy i Polski (cechy wspólne i różnice)

Author(s): Wasyl Franczuk / Language(s): Polish Issue: 2/2013

The article discusses issues concerning problems of criminal law in terms of economic crime. Analysis of the criminal laws of Ukraine and Poland has been carried out. The scientific findings of economic criminal law scientists have been indicated. Examples of improved means of the criminal law on the fight against economic crime are brought on the basis of scientific studies.

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Coll. 1.0. DE SICARIIS [ET HOMICIDIIS CASU VEL VOLUNTATE] – czyli krótki wykład o transformacji rzymskiej ustawy przeciwko „nożownikom” w powszechne prawo przeciwko zabójstwu

Author(s): Krzysztof Amielańczyk / Language(s): Polish Issue: 1/2013

Lex Cornelia de sicariis et veneficis at the turn of the republic cannot be recognized as a law against homicide. The aim of the Law was to ensure safety and public order by eliminating criminal pathologies that threatened these public goods. Thus, the Law was of a specifically preventive and police nature. The image of it separated from the later, rich, after all, tradition of the Law, written by the legislative factors of the period of the Principate and the Dominate. Collatio legum Mosaicarum et Romanarum can be very useful legal source to show that great transformation. At the classical period, the Law was an entirely different institution than its original predecessor. The Lex Cornelia in the writings by Ulpianus or Paulus is already certainly ‘a law on killing’, although jurists, being typically attached to tradition, attempt ‘to change as much as possible by changing as little as possible’. This practice – quite easy to recognize – probably best shows the face of Sulla’s Law as known from Collatio legum Mosaicarum et Romanarum. The words hominem occiderit – if they appeared in the original Sulla’s Law at all – were used by classical jurists as a basis for the widening interpretation and, consequently, a reconstruction of the Law towards the common law on homicide. It must have been as a result of a rather long- lasting process of law- making interpretation of law by legislative factors of the Principate.

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Cognitio extra ordinem w rzymskim prawie karnym publicznym

Author(s): Krzysztof Amielańczyk / Language(s): Polish Issue: 3/2016

At the time of the Roman Empire, quaestiones perpetuae faced competition from the imperial court of justice, i.e. the cognitio extra ordinem proceedings. The new system inspired the establishment of a new type of crimes called crimina extraordinaria. The Principate period with its new court procedure also brought a wider catalogue of offences by enabling to prosecute more offences extra ordinem – i.e. outside the order set by the leges iudiciorum publicorum. The cognitio extra ordinem procedure allowed the examination of extenuating and aggravating circumstances, and choosing penalties in accordance with the seriousness of the offence.

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Dzieła naukowe jurystów rzymskich w zakresie prawa karnego

Author(s): Andrzej Chmiel / Language(s): Polish Issue: 3/2016

Roman jurists started to work on the criminal law only in days of the Empire. First works on this dedicated to public judicial proceedings included De iudiciis publicis created mainly by Maecianus, Marcianus, Macer, Venuleius Saturninus. Apart from them the following should also be mentioned: De officio proconsulis by Ulpian, De cognitionibus by Callistratus. Works on the issues of penalties are: De poenis omnium legum, De poenis paganorum by Paulus; De poenis by Modestyn; and De poenis paganorum by Claudius Saturninus. Most of the above-mentioned works are commentaries directed at judge practitioners, more specifically, at imperial officials having specific jurisdictional functions. However, among them we can also find ones of the academic nature focused on criminal law and criminal action, such as De poenis paganorum by Claudius Saturninus. Many of the above-mentioned works are of substantive and procedural nature. In works of Roman jurists on criminal law one can see specific efforts or attempts at systematizing discussed legal material. Unfortunately, in the majority of works it is difficult to find such vivid and complex statements or even academic debates as on private law, not to mention any critique of imperial constitutions. This was caused by an authoritarian character of Roman national power and system of criminal judicature that was closely connected to this power. Thus, it was very difficult for the jurists to conduct free jurisprudence activity.

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Pojęcie przestępstwa i podziały przestępstw w polskim prawie karnym

Author(s): Lech Gardocki / Language(s): Polish Issue: 2/2013

The binding Polish Criminal Code from 1997 contains no definition of offence. It can, however, be constructed on the basis of the provisions of art. 1, 2, 7 and 9 of the code. It sounds: 1) an offence is constituted by an act (action or omission) of a man, forbidden under the threat of penalty by a statute, which is a felony or a misdemeanour, culpable intentionally or unintentionally and socially harmful in a degree higher than minimal; 2) special role in the definition is played by the concept of an act as the basis of criminal responsibility. The most important classifications of offences in Polish criminal law are made on the basis of the following criteria: a) the seriousness of the offence (division into felonies and misdemeanours); b) the presence of the element of consequence in the statutory description of the offence (material and formal offences); c) the damage or the danger of it (offences causing damage in a legally protected value, offences consisting in concrete endangering and offences of abstract endangering); d) type of the offender’s behaviour (action and omission offences); e) form of guilt (intentional and unintentional offences); f) mode of prosecution (offences prosecuted on public indictment, including offences prosecuted on the motion of the victim, offences prosecuted on private indictment); g) features of the offender (delicta communia and delicta propria).

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Formy stadialne popełnienia czynu zabronionego w polskim prawie karnym

Author(s): Jacek Giezek / Language(s): Polish Issue: 2/2013

The effect of the criminalisation of inchoate offences – in fact irrespective of how in a given legal system (e.g. Polish or Ukrainian) they are regulated – is the moving of the protection of a legal value to the foreground of its violation. In case of Polish criminal law, the “depth” of this foreground is decided by the fact that an important stage of the iter delicti is constituted not only by the attempt, which is almost always connected with criminal liability, but also the preparation preceding it, even though it rarely generates such liability. One of the most complex problems therefore is the possibly precise delineation of borders between the individual stages of the commission of an offence. The problem appears to be especially complicated when we are looking for the border between the always punishable attempt and the sometimes and simultaneously – as a rule – less severely punishable preparation. The decision which of these stages has been executed should be first of all based on the evaluation whether the perpetrator’s behaviour has reached the stage of advancement which allows the statement that it is heading directly to commission. The theory of criminal law has long known attempts of elaborating universal conceptions which could facilitate the interpretation of the feature of “directness”, though their results – if one takes into account the imprecision of the border thus delineated – are not thoroughly satisfactory. The prima facie clear question of the subjective side of individual stages of commission of a forbidden act (only intention is possible) may be the source of some dilemmas when one starts to analyse its relation to the illegality of these forms, which is best visible in case of inapt attempt and preparation. One of the most complicated and – in a way – most unsolvable dogmatic problems of criminal law then appears i.e. the justification of their punishability. Since an inapt attempt cannot lead to the commission of an offence, then – looking at it objectively – it does not create danger for a legally protected value. As a result there also appear significant deficiencies in the objective content of illegality. In the foreground of the violation of a legal value there lie not only the stages preceding the commission of an offence, but in case of same types of offences also the stage connected with their commission, if the core of the offence is putting the value in jeopardy. This “occupation” of the foreground by the overlapping forms of a forbidden act results – especially in court practice – in difficulties in deciding whether the behaviour of the offender constitutes a committed endangering of a value or can “only” be seen as its attempted violation. The difference lies chiefly in the subjective side (actus reus) which is usually difficult to prove.

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Zbieg przestępstw w prawie karnym Ukrainy

Author(s): Oksana Gorpyniuk,Volodymyr Kovalenko,Yuriy A. Ponomarenko,Volodymyr Tiutiugin,Olena Kharytonova / Language(s): Polish Issue: 2/2013

When assessing the state of studies on the institution of concurrence of offences it needs to be stressed that generally there have been discussions concerning the qualification of concurrence of single offences and only a small part of them refers to the theoretical arguments in the discussed field (especially the problem of the qualification of the concurrence of offences, the distinguishing of types of concurrence as “ideal – real” etc.). Although the terms “repeated offence”, “concurrence”, “recidivism” have long been used in the criminal law jurisprudence and have attracted sufficient level of scholarly attention, their representation in the binding Criminal Code of Ukraine is far from perfect. The lack of compatibility between the norms defining the above mentioned terms results in many questions which cannot be unequivocally answered, mostly referring to the criminal law evaluation of a few acts committed by one person, when each of these acts has the features of a separate type of offence. The analysis of court practice demonstrates that individual courts make mistakes in the application of the Criminal Code of Ukraine as far as the concurrence of offences is concerned. Some of the most prevalent of these are: improper correlation of norms referring to different types of concurrence; accepting multiplicity of offences in cases where one of the acts has lost its criminal relevance; improper qualification of repeated offences. At the same time it seems that the institution of the concurrence of offences can be improved in the future due to the use of the provisions which refer to: the futility of taking into account the punishment for offences committed by a person under the age of 18, no matter when (before or after that person turned 18) the conviction for these offences took place; the problem of recognising the type of concurrence of offences which results in combining punishments; the problem of taking into account the fact the on offence was repeated or committed in the conditions for recidivism, when a person had been convicted by the court of a foreign country.

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Zbieg przestępstw i kara łączna w polskim prawie karnym

Author(s): Piotr Kardas / Language(s): Polish Issue: 2/2013

This article is devoted to the analysis of the prerequisites of the concurrence of offences and the conditions of imposing combined punishment in Polish criminal law. Both matters are presented against the broader context of the reduction mechanisms serving the purpose of criminal liability rationalisation in cases of evaluation of many acts committed by the same perpetrator. Starting with the rule of unity, fundamental for the Polish criminal law system, according to which the same act can constitute only one offence, the institution of the concurrence of offences has been presented against a background of the following constructions specifically shaped in the Polish law: the continuous offence, the sequence of offences and the negligible concurrence of offences. In each of the above mentioned cases the multiplicity of acts committed by the same offender is the basis of evaluation, and due to the application of one of these institutions this multiplicity does not transform into the multiplicity of offences and as a result does not lead to the imposition of the combined punishment. Hence it has been demonstrated that the reduction mechanisms described above prevent the emergence of the situation of the concurrence of offences and finally the imposition of the combined punishment. They form therefore the normative foreground of these institutions which is specific for the Polish criminal law system. The text contains also the analysis of the statutory prerequisites for the imposition of the combined punishment, which in the Polish criminal law form the basis of the division of the concurrence of offences into two categories: the real concurrence in case of which the imposition of the combined punishment is possible and the concurrence of offences in case of which such a possibility does not exist. The detailed conditions of the imposition of the combined punishment have also been presented, especially the bases, known by the Polish legal system, for the imposition as a combined punishment of a punishment more severe than the individual punishments imposed for the offences which are in concurrence. As far as the second of the above mentioned categories is concerned, the author has presented the conditions of executing the multiple punishments imposed for multiple offences – as a rule they are executed sequentially.

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Formy zjawiskowe popełnienia przestępstwa w polskim prawie karnym

Author(s): Marek Kulik / Language(s): Polish Issue: 2/2013

The article presents the basic information about complicity in Polish criminal law. The main characteristics of the Polish construction of complicity and the main interpretation problems have been presented against the background of model solutions referring to criminal complicity in European criminal law. The article comprises the genesis of complicity in Polish criminal law, the main advantages of the employed construction, the most important of which is the breaking off with the accessory responsibility of the instigator and auxiliary. The text also comprises a short characteristics of the individual forms, principal and non-principal, of the commission of an offence in the Polish criminal law. The problem of distinguishing individual forms of the commission of an offence using different existing doctrinal and judicial theories has also been discussed. Separate remarks have been devoted to the issues of punishment for complicity and to the lack of consistency in criminal responsibility in that respect, which according to the author, though it does not infringe on the principle of lack of accessory responsibility in the qualitative sense, may however be perceived as introducing such responsibility in the quantitative sense in the field of punishment imposition.

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Zasady prawa i generalne klauzule odsyłające w operatywnej wykładni prawa

Author(s): Leszek Leszczyński,Grzegorz Maroń / Language(s): Polish Issue: 2/2013

The paper presents the role of the legal principles and the general clauses in the process of the so called operative interpretation of law, being the part of the process of making the decision of implementation of law and undertaken, in the light of the facts of the case, to make this decision. The are two main aspects of the role of both constructs in this kind of interpretation. The first one, at the validation phase of interpretation, deals with the way the principle or clause is accepted by the court as an element of the base for decision. The second one touches the role of principle and clause in the whole reconstruction of the implemented norm, changing the proportions between the impact of the linguistic and systemic rules of interpretation, giving way to axiologically determined teleological and functional directives. The latter appear at the beginning of the interpretative process and influence the contents of the norm and then the judicial decision in a prevalent scale.

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Kary związane z naruszeniem dyscypliny finansów publicznych jako instrument optymalizacji procesów gospodarowania środkami pieniężnymi samorządu terytorialnego (na przykładzie RIO w Kielcach)

Author(s): Piotr Sołtyk / Language(s): Polish Issue: 5/2017

The author has attempted to present the role of the Regional Trial Commission in cases of violation of public finance discipline at the Regional Audit Chamber in Kielce in improving the functioning of financial management of local government units of the Świętokrzyskie Province. The article presents selected issues connected with the system of public finance discipline with particular emphasis on the conceptual, subjective public finance discipline scope, and general characteristics of the penalties that adjudicating committees can dispense with respect to persons who persist in breaching the law, distorting the organization of public finance.

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O potrzebie uchylenia lub zmiany art. 87 Kodeksu karnego

Author(s): Aleksandra Nowosad / Language(s): Polish Issue: 2/2017

The author postulates that as a consequence of introducing in the Act of 20 February 2015 the institution of simultaneous adjudication of imprisonment and restriction of liberty, the legislator should repeal Art. 87 of the Criminal Code. According to Art. 87 § 1 of the C.C., in the case of conviction for concurrent offences for penalties of deprivation of liberty and restriction of liberty, the court shall impose an aggregate penalty, assuming that one month of restriction of liberty is equal to 15 days of deprivation of liberty. The sequence of penalties introduced in Art. 37b of the C.C. undermines the purpose of Art. 87 § 1 of the C.C. Since the legislator introduced a new concept of sequential execution of penalties, he should not preserve the obligation to convert restriction of liberty into imprisonment.

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Nukentėjusiųjų nuo smurto artimoje aplinkoje specialių apsaugos poreikių vertinimo procedūra

Author(s): Ramune Jakstiene / Language(s): Lithuanian Issue: 2/2017

This paper discusses the framework of national legal regulation on the assessment of victims of violence in close environment to identify specific protection needs. Te main objective of the analysis was to assess the adequacy of compliance with the constitutional requirements and standards of the Victims’ Rights Directive. The provisions of this Directive have been transposed into national law by amending the Criminal Procedure Code and adopting a new post-legislative legal act by the prosecutor general (he reinafer Recommendations). Te form of the implementation o the Directive is in principle an adequate technique of transposition. But some provisions of the Recommendations diﬀer from the norms of the Criminal Procedure Code or restrict them. This casts doubt on whether the requirements of constitutional legality are met.To avoid this, it is recommended to harmonize the provisions of the Recommendations with the norms of the Criminal Procedure Code as regards the ground and terms to benefit from the special protection measures and definitions used. Te results of the comparative analysis suggest that some aspects of national regulation in this field are not in full conformity with the requirements of the Directive, specifically, the recommendatory nature of the provisions, an exhaustive list of assessment criteria and special protection measures for children, an undefined benefit of some measures during trial proceedings or later stages and the performance of individual assessment using other procedures, unscientific attention to victims of violence in close environment, victims’active participation in the procedure, ﬂexibility options. It is therefore recommended to harmonize these provisions with the standards of Directive and supplement them.Victims of violence in close environment tend to experience a high rate of secondary and repeat victimization, intimidation and retaliation, and there should be a strong presumption that these victims will benefit from special protection measures.Child victims are also considered vulnerable a priori. Consequently, as far as these victims are concerned it is appropriate to perform only the second stage of two-step process of assessment and determine specific protection measures to meet individual needs. Te ﬂexibility of the procedure, diﬀerentiation of the assessment, categorization of vulnerability is also to be considered in the case of other types of criminal acts.

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Teismo baudžiamojo įsakymo priėmimo proceso problemos ir tobulinimo perspektyvos

Author(s): Darius Pranka / Language(s): Lithuanian Issue: 2/2017

The author analyses the most significant challenges in applying Section 1 of Chapter 31 of the Criminal Procedure Code of the Republic of Lithuania, which concerns penal order. Firstly, some doubts are highlighted about the regulation of articles 419 and 421 of this code. In the author’s opinion, there are some omissions in the current regulation: the law does not regulate the motivation of the suggested punishment by the prosecutor, and nor does it regulate the motivation of the imposed punishment in the penal order. Because of this, the regulation should be changed and the motivation should be a compulsory element of the penal order and the plea made by the prosecutor. Te next part of the article concerns the specifics of applying Article 420 Part 1 in court practice,noting the possibility of returning a criminal case to the prosecutor for additional pretrial investigation. Te author recognizes that court practice in this field is not permanent, so it is suggested that a correction should be made to the law and the possibility should be established of returning a criminal case to the prosecutor for additional pretrial investigation. Also, some doubts are highlighted about the possibility of imposing a sentence of imprisonment by adopting a penal order, especially when punishments are added. The author states that court practice is continuing in the wrong way, with a lot of examples in which courts impose the final punishment of imprisonment. In the author’s opinion, such practice does not meet the main aim of the summary process, so should be changed. The last challenge that the article discusses is the delivery of an adopted penal order. Te current regulation states that a penal order must be delivered only to the accused. But there are some problems when the court does not find the residence of the accused, and in those circumstances the time validity of the penal order is unclear. Because of that, the penal order should be determined more persons, which should get the penal order.

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Człowiekowi, który za życia nie upora się z życiem1 – o Procesie Franza Kafki

Author(s): Agnieszka Malarewicz-Jakubów / Language(s): Polish Issue: 1/2014

Franz Kafka’s novel The process is a timeless novel, still valid and alive. It is a description of the state of consciousness of a certain age, a certain view of the world of the author, of the enslavement of man by binding law, because the authorities decide on life and the fate of the human being. „The process” is a novel about a man, who is lost in his own life. The message of the thesis is that the man is born and condemned to live or to die without any explanation. Moreover he is subordinated to the top-down established rights. The judgment, which is death, falls on us without notice. The man is liable for everything that happens in his life and the world around him.

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КРИМІНАЛІСТИЧНА ХАРАКТЕРИСТИКА УМИСНОГО ЗАПОДІЯННЯ ШКОДИ ЗДОРОВ’Ю ОСОБІ, ЯКА ВІДБУВАЄ ПОКАРАННЯ У ВИДІ ПОЗБАВЛЕННЯ ВОЛІ

Author(s): Borovyk Andrii / Language(s): English,Ukrainian Issue: 3/2017

The articles of the article analyze the forensic nature of deliberate injury to a person serving a sentence in the form of imprisonment. Several elements of forensic characteristics are investigated, which are of practical importance, since they allow us to justify versions of individuals who are interested in harming the victim's health, as well as to use knowledge and possibilities of forensic medical examination in the process of investigating deliberate damage to health of the person who carries out punishment in the form of imprisonment. Proposed by the author, use informative and cognitive orientation which will allow in practice to carry out retrospective and perspective modeling of criminal activity under investigation, to predict its development and, accordingly, to plan the course of further investigation.

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ПРО СТАН І ТЕНДЕНЦІЇ ЗЛОЧИННОСТІ В СИСТЕМІ ДЕРЖАВНОЇ КРИМІНАЛЬНО- ВИКОНАВЧОЇ СЛУЖБИ УКРАЇНИ

Author(s): Duchyminska Lesia,Kolb Roksolana / Language(s): English,Ukrainian Issue: 3/2017

In the article, based on the analysis of crimes that occurred in the field of execution of punishments in Ukraine in 2005-2017, the trends of their development were determined, and scientifically grounded ways of overcoming the problems existing in this direction were developed.

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ПРО РОЛЬ І МІСЦЕ ОСНОВНИХ ЗАСОБІВ ВИПРАВЛЕННЯ І РЕСОЦІАЛІЗАЦІЇ ЗАСУДЖЕНИХ У ЗМІСТІ СУЧАСНОЇ КРИМІНАЛЬНО-ВИКОНАВЧОЇ ПОЛІТИКИ УКРАЇНИ

Author(s): Valentyn Kovalenko,Rudenko Viacheslav / Language(s): English,Ukrainian Issue: 3/2017

The article deals with issues related to the effectiveness of the application of the basic means of correction and re-socialization to the convicted in the contemporary conditions of the functioning of the sphere of punishment of Ukraine, as well as identified problem points and developed scientifically substantiated ways of their solution in essence.

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