Formy stadialne popełnienia czynu zabronionego w polskim prawie karnym
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Artykuł nie zawiera abstraktu w języku polskim
The effect of the criminalisation of inchoate offences – in fact irrespective of how in a givenlegal system (e.g. Polish or Ukrainian) they are regulated – is the moving of the protection of a legalvalue to the foreground of its violation. In case of Polish criminal law, the “depth” of this foregroundis 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, eventhough it rarely generates such liability. One of the most complex problems therefore is the possiblyprecise 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 thealways punishable attempt and the sometimes and simultaneously – as a rule – less severely punishablepreparation. The decision which of these stages has been executed should be first of all basedon the evaluation whether the perpetrator’s behaviour has reached the stage of advancement whichallows the statement that it is heading directly to commission. The theory of criminal law has longknown attempts of elaborating universal conceptions which could facilitate the interpretation of thefeature of “directness”, though their results – if one takes into account the imprecision of the borderthus delineated – are not thoroughly satisfactory.The prima facie clear question of the subjective side of individual stages of commission ofa forbidden act (only intention is possible) may be the source of some dilemmas when one starts toanalyse its relation to the illegality of these forms, which is best visible in case of inapt attempt andpreparation. One of the most complicated and – in a way – most unsolvable dogmatic problems ofcriminal law then appears i.e. the justification of their punishability. Since an inapt attempt cannotlead to the commission of an offence, then – looking at it objectively – it does not create dangerfor a legally protected value. As a result there also appear significant deficiencies in the objectivecontent of illegality.In the foreground of the violation of a legal value there lie not only the stages preceding thecommission of an offence, but in case of same types of offences also the stage connected with theircommission, 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 difficultiesin deciding whether the behaviour of the offender constitutes a committed endangering ofa value or can “only” be seen as its attempted violation. The difference lies chiefly in the subjectiveside (actus reus) which is usually difficult to prove.
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