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2016 | 65 | 41-69

Article title

O nowelizacji, do której nie doszło, czyli blaski i cienie obiektywnego przypisania skutku


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The subject is the 2013 draft law, that was to amend the Polish Penal Code of 1997, but was finally abandoned. It concerned implementation of the „objective attribution of an effect” concept, an equivalent of German „objektive Zurechnung”. Numerous types of crimes (so-called „przestępstwa materialne”) are causally defined and their definitions fit only the cases where the cause-effect relationship (sc. between human behaviour and the effect specifically prescribed by law) is present. For the complete fulfilment of crime existence of the cause-effect relationship is a necessary condition, but from the point of view of equity it can be regarded an insufficient condition. Therefore the „objective attribution” idea proposes some additional limitations to criminal responsibility for an effect of a human behaviour. The paper discusses five criteria (limiting conditions) proposed so far: (1) the behaviour must cause harm to some „legal value” through breaking a legal norm that’s purpose was protecting just the same value (norm purpose identity condition); (2) the harm must result from the same causal mechanism, for which the legal norm was intended (mechanism identity condition); (3) the behaviour must bring on a substantial increase of risk of such harm (increase of risk condition); (4) the harm would not happen if the behaviour did not break the norm (negative test condition); (5) the harm was predictable for a hypothetical „reliable person” being in identical conditions („objective predictability” condition). These conditions are logically independent, i.e. neither none is implied by any other nor none is excluded by any other. They can all potentially be „building blocks” for the legal future construction. Of the further three proposed conditions one is only subsidiary („substantial breach of the norm”), one is redundant and unnecessary („adequacy of causal course”) and one is practically undesired („socially accepted increase of risk”). Polish Common Courts and the Supreme Court have appealed to the „objective attribution” concept in criminal cases for over 15 years, though infrequently. Such a practice has only partial and unclear legal basis (now it is Article 9 § 2 of the Penal Code). The would-be amendment to the Penal Code would not remove the previous doubts. What is more important, the proposed amendment was premature, as the set of conditions listed above allows to design many different versions of the „objective attribution”, and so far there is not a common acceptance for a particular one.







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