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1
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Opinia prawna na temat petycji Sebastiana Adamowicza w sprawie nowelizacji art. 130 § 1 i 147a § 1 Kodeksu wykroczeń

100%
Bachmat P.
Zeszyty Prawnicze BAS
|
2017
|
issue 2(54)
113-137
EN
The first proposed amendment concerns the elimination of Article 120 of the Misdemeanours Code, what is justified by the fact that the concept of arms, ambition and explosive materials and devices does not encompass trees and coarse woody debris. The author justifies the necessity of that amendment analyzing inadequate regulations included in the provisions in their current shape. The second suggested amendment concerns a former replacement of the term “Health Maintenance Organisation” with the term “Healthcare Entity”. As a result of his modification it became more difficult to define the scope of criminalisation of acts under Article 147a of the Misdemeanours Code., i.e. running a healthcare maintenance organisation without required entry into a register or obligatory registration. The scope of both terms raises considerable doubts. In the past it was suggested that Article 147a of the Misdemeanours Codem should concern treatment performed by both doctors and nurses. It is necessary to amend the discussed provision in order to effectively define the activity which it concerns.
2
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Opinia prawna na temat rządowego projektu ustawy o Narodowej Agencji Wymiany Akademickiej z projektami aktów wykonawczych

100%
Bachmat P.
Zeszyty Prawnicze BAS
|
2017
|
issue 3(55)
155-161
EN
The subject of the opinion is assessment of the governmental bill, pursuant to which the National Agency of Academic Exchange will be created. Its aims include stimulating Poland’s development in the field of science and higher education by a pro-quality support of academic mobility as well as internationalisation of offer provided by Polish universities. The author claims that membership of representatives of the Sejm, the Senate and the President of the Republic Poland in the Board of the Agency is reasonable. With the view to ensure higher transparency standards of the selection of the Director of the Agency, as well as to ensure a reliable assessment of candidates, introducing relevant competition procedures should be considered. The author presents some remarks concerning the wording of provisions, relation to other statutes, including tax ones – in connection with the proposed exemption from taxation of scholarships awarded by the Director of the Agency.
3
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Przekroczenie granic obrony koniecznej – w sprawie propozycji nowelizacji art. 25 Kodeksu karnego

100%
Bachmat P.
Zeszyty Prawnicze BAS
|
2018
|
issue 1(57)
144-154
EN
The author of the petition postulates the introduction of Article 25 para. 3a of the Criminal Code, in which the privilege of impunity for a person crossing the borders of necessary defense in a situation of defense against an unlawful, direct assault directed at legal rights set out in that regulation, would be guaranteed. It is concluded in the opinion that a more appropriate solution would be to link the non-subject to punishment of persons crossing the boundaries of the necessary defense with a more universal and capacious formula of “justifying the crossing of the limits of necessary defense by the circumstances accompanying the attack.” Thus the petition does not seem to be justified. The mere fact that a person crossing the boundaries of defense necessary would not be subject of the penalty only due to the fact that he/she acts in defense of certain legal rights, made in isolation from other important elements of the incident, reduces the assessment of his/her behavior and may lead to mandatory release from penalties in socially unacceptable cases.
4
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Odpowiedzialność karna za przestępstwa z art. 55a ust. 1–2 oraz kontratyp z art. 55a ust. 3 ustawy o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu

100%
Bachmat P.
Zeszyty Prawnicze BAS
|
2018
|
issue 3(59)
111-125
EN
The provisions of the Act, which are the subject of questions presented in the order to prepare the expert opinion, ceased to be in force on the 17th July 2018. A fundamental legal effect of the of the legislator’s decision to repeal them is decriminalization of behaviors covered by the statutory description of the type of prohibited act. The most important conclusion of the expert opinion is even in the period of time the provisions of article 55a paragraphs 1–2 were in force representatives of German minority in Poland had the possibility of conducting activities in favor of “discovering, elaborating and commemorating the tragic fate of the German civilian population, embedded in the system of post-war labor camps” under condition they did not contradict the facts.
5
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Propozycja nowelizacji art. 133 Kodeksu karnego

100%
Bachmat P.
Zeszyty Prawnicze BAS
|
2018
|
issue 4(60)
118-125
EN
The draft amendment, which is the subject of the reviewed petition, contains an introduction to the indicated provision of the Criminal Code of a new type of a punishable act – the use of terms: Polish death camps, Polish concentration camps, Polish Holocaust, polnische Vernichtungslager, polniche Häuser des Todes and other terms contrary to facts. The author of the opinion claims that the petition cannot be considered justified due to juridical and systemic reasons, as it concerns the matter which is currently already legally regulated. Moreover, cases of falsifying history to the detriment of the State or the Polish Nation, which take place outside of the borders of the Republic of Poland, will remain beyond the sphere of the amendment’s normative influence because of the condition of a dual criminalisation (in Poland and abroad) according to Article 111 para. 1 of the Criminal Code.
6
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Kontakt zatrzymanego z pełnomocnikiem (art. 245 § 1 Kodeksu postępowania karnego)

100%
Bachmat P.
Zeszyty Prawnicze BAS
|
2017
|
issue 4(56)
99-114
EN
The subject of the assessment is a petition requesting the change of Article 245 § 1 of CCP by indicating a method of contact of a detainee with an advocate or a legal advisor. The petitioner suggests that the code should state that the contact can also be made by means of remote communication, including telephone or electronic means of communication. In the opinion of the author, the submitted proposal to supplement the article will not change the current normative scope of this regulation. Consequently, it will not improve the legal situation of the detainee.
7
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Opinia w sprawie nowelizacji art. 202 Kodeksu karnego

100%
Bachmat P.
Zeszyty Prawnicze BAS
|
2017
|
issue 3(55)
129-138
EN
According to the author, the suggested amendment is not justified. Prosecution of displaing pornographic materials in a way which enables minors to access them, is already regulated in the Polish Criminal Code. Proposed amendments would be a duplication of existing provisions, additionally causing interpretation problems. The other suggested change – introducing a definition of pornography – would not be useful in solving interpretation problems, since that definition has many drawbacks.
8
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Ocena skutków prawnych projektowanych regulacji dedykowanych przeciwdziałaniu korupcji w życiu publicznym

100%
Bachmat P.
Zeszyty Prawnicze BAS
|
2020
|
issue 3(67)
218-230
EN
The Bill is an attempt to provide state authorities with effective instruments to counteract corruption in public life, but the detailed legislative proposals contained therein may hinder the full implementation of this assumption. Among others the category of corruption offenses was drafted in a selective way, linking the tightening of the punishment policy with the conviction for only some of them. Failure to include some corruption offenses in the Bill will lead to an unjustified privileging of the policy of punishing corrupt practices in certain areas of public and economic life. The author also referred to some of the proposals to introduce employment bans, pointing out that they would be superfluous to the applicable regulations of the Criminal Code, as well as they would lead to consequences which would be difficult to accept from the perspective of seeking a penalty adequate to the committed prohibited act, the real severity of sanctions and the principle of equal punishment.
9
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Uzgodnienie rodzaju i wysokości kary w postępowaniu karnym w Polsce

100%
Bachmat P.
Zeszyty Prawnicze BAS
|
2020
|
issue 2(66)
167-171
EN
The Polish Code of Criminal Procedure provides for three paths in which it is possible to agree with the accused the type and severity of the penalty imposed on him by the court, provided that taking evidence by the court is waived. The first possibility occurs during the stage of preparatory proceedings, being an agreement with the prosecutor, so that a lengthy evidence process is not carried out. The second option applies after the indictment has been brought to court, while the third one may be used by the accused until the end of the first interrogation of all the accused. It requires submitting a relevant application.
10
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Wykonywanie pracy przez skazanego

100%
Bachmat P.
Zeszyty Prawnicze BAS
|
2020
|
issue 1(65)
177-180
EN
According to the author of the opinion, in the Polish criminal law system such a role is played by the penalty of restriction of liberty. In the catalogue of penalties it holds a second rank in terms of severity. The author emphasizes that the penalty of restriction of liberty may consist of performing unpaid, controlled work for social purposes. On the other hand, the penalty of restriction of liberty may consist of deducting a part of remuneration for ordinary work and transferring this amount to funding a social purpose indicated by a court.
11
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Czynna i bierna strona płatnej protekcji - akt korupcji, sądowa kwalifikacja czynu

100%
Bachmat P.
Archiwum Kryminologii
|
2010
|
issue XXXII
275-326
EN
The article is a result of file examination and attempts to characterise acts related to trading in influence and their criminal evaluation formulated by the courts of law in their final sentences. The empirical basis of the research are 123 criminal proceedings which resulted in valid sentences concerning passive and active trading in influence (articles 230 , and article 231 of Polish Criminal Code ). Analysed proceedings were from across the country and were decided between 1 January 2004 and 1 November 2006. The research investigated not only the court files but also public prosecution files. No files on cases discontinued or dismissed under articles providing for the indemnity of the perpetrator who informs of the crime (article 17 of Criminal Proceeding Code under article 230a of the CC) were included. The file material contained predominantly cases of passive trading in influence (article 230 of CC) consisting in, to put it simply, an obligation to take care of a matter in a public institution in return for a bribe or a promise to do so. 92 such cases were reported, 109 persons trading in influence were accused. As a result of court decisions, 78 persons were found guilty, 5 acquitted, one found partially guilty (cleared of one charge but guilty of another), and 8 cases were dismissed on conditions. Cases of active trading in influence (article 230a of CC), that is the practice of paying for someone’s influence, were much less frequent. The files included only 31 such cases, with 57 accused for paying for trading in influence. 28 cases resulted in convictions and three were dismissed on conditions. Acquittals did not occur in this group of cases. Two basic areas of study were assumed. First, a case analysis of a corruption deed of trading in influence allowed to obtain the information necessary for drafting a profile of typical perpetrators, to identify their approach (pleading guilty/not guilty) and for drafting a profile of the act of corruption itself. The latter included investigation of the means of corruption, the initiator of the corruption proposal, a catalogue of matters (contract, document, permission etc.) to be paid for, and institutions whose operation was to be interfered by trading in influence. Corruption act profile included also an attempt to investigate the promised influence (own, third parties’, actual, fictitious) and its source (family, friends, acquaintances, co-workers, other) which the passive perpetrators referred to and which the active perpetrators sought. Second, the study analysed application of provisions defining the features of the crime (articles 230 and 230a of CC). The analysis included the practice of applying the said provisions by the prosecution and the courts, as they were obliged to interpret a deed for the purpose of proceedings in legal terms and to qualify it according to provisions of law. Legitimacy of deed qualification was evaluated, particularly by the courts in their valid final verdicts.
12
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Atypowe przypadki korupcji w oceNach sądów i prokuratur na przykładzie przestępstw z art. 228 i 229 k.k.

100%
Bachmat P.
Archiwum Kryminologii
|
2013
|
issue XXXV
247-282
EN
The article presents results of file research invovling an analysis of the manner in which court and prosecution applied law in resolving atypical cases of bribery. The subject of the said research were atypical cases of bribery involving crimes under Article 228 and Article 229 of the Penal Code perpetrated by persons performing public functions. The cases discussed followed a number of varied scenarios which, in general, consisted in accepting or granting material or personal benefit or a promise of such in connection with the perpetrator's official capicity. Hence the conduct of the perpetrator did formally fulfil the definition of the crime defined in Articles 228 and 229 Penal Code. However, since some specific circumstances took place, such as a statutory body's decision or penal jurisprudence, the perpetrated act should not render the perpetrator liable to prosecution. It was found that, when classifying atypical acts of corruption, judicial authorities made some effort to employ lenient penal-legal assessment of the perpetrator's conduct, but they often did so with insufficient diligence and by implementing inappropriate provisions of the penal law. The atypical bribery cases included circumstances in which physicians misled their patients by suggesting they should purchase a highend endoprothesis or medicine produced abroad, on an allegedly free market outside the National Health Fund (NFZ) refunding system. The patients they did so, in spite of the fact that such recommendations have no substantiation in the public functions of a medical doctor. Physicians would then claim that they assumed the role of an intermediary between a patient and a foreign dealer or manufacturer. In practice, they used prothesis or medicines refunded by the National Health Fund (NFZ). Unaware of that fact, patients acted in error as to the circumstances, fulfilling the definition of an unlawful act (error facti), and in particular, the patients were not aware that the money they handed over was in fact a bribe granted in connection with official capacity of the physician. In consequence, the criminal procedure in such cases should either be closed by means of discontinuation or refusal to instigate under Article 17 § 1.2 Criminal Procedure Code subject to Article 28 § 1 Penal Code. Prosecution bodies, however, avoided such classification and in cases like that opted for exempting the informer - briber from the penalty (Article 229 § 6 Penal Code), which did not fully reflect the actual legal and formal circumstances of a misinformed patient's conduct. Especially disagreeable was the fact that the solution adopted by prosecution assumed such patients were guilty. It was established that the notion of customary gifts, widely accepted in penal law publications as lawful excuse, is in practice defunct. This does not mean that similar facts were never subject to criminal procedure.
13
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Ocena rządowego projektu ustawy o dokumentach publicznych (druk sejmowy nr 2153)

63%
Bachmat P., Jaśkowski M.
Zeszyty Prawnicze BAS
|
2018
|
issue 1(57)
115-130
EN
In the aspect of compatibility with the UE law it has been pointed out that to the extent the project aims to exclude certain categories of prints and documents from the regulation of Directive 2014/24, it may be considered incompatible with this directive. It was recommended to suspend work on the bill until the CJEU delivers its judgment concerning case C-187/16. Furthermore in the aspect of compatibility with the rules of criminal procedure it was considered that the advantage of the proposed normative solution of Article 40 para. 3 is the pragmatic linking of access to evidence with the principles of procedural economy, i.e. the guarantee of access to material evidence is conditioned by the objectives of the criminal proceedings.
14
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Przestępstwa związane z zorganizowanymi wyłudzeniami podatku od towarów i usług (VAT) w praktyce sądowej

51%
Ostaszewski P., Buczkowski K., Klimczak J., Bachmat P.
Prawo w Działaniu
|
2024
|
issue 59
71-114
EN
Offences related to VAT fraud significantly reduce revenues to the State Treasury, violate the certainty of economic turnover and the principles of competition. Combating it and sealing tax law are therefore important tasks of the state. In Poland, these tasks have been pursued, inter alia, through such legislative changes in tax law as the introduction of split payments, the single control file, the reverse charge in domestic trade or joint and several liability of the purchaser in connection with the purchase of so-called sensitive goods. In the legislator’s opinion, it was also necessary to introduce new provisions on the grounds of criminal law – concerning the so-called extended confiscation, the admission of the so-called fruit of the poisoned tree as evidence in a criminal trial and strict criminal liability for forgery of an invoice. In this paper, we are analysing in detail the content of the provisions introduced into the Criminal Code regulating the material and intellectual falsification of a VAT invoice, the statistical picture of the crime of invoice falsification and the results of a court case-file study of 194 cases of the analysed offences completed between 2017 and 2022. Based on such extensive research material, we seek information on the size and characteristics of this phenomenon, the perpetrators of these crimes, the state's response to them and the answer to the question: have the new regulations fulfilled the assumed reduction of VAT crime?
PL
Przestępczość związana z wyłudzeniami podatku od towarów i usług (VAT) istotnie uszczupla wpływy do Skarbu Państwa, narusza pewność obrotu gospodarczego i zasady konkurencji. Jej zwalczanie oraz uszczelnianie prawa podatkowego są więc ważnymi zadaniami państwa. W Polsce zadania te realizowano m.in. przez takie zmiany legislacyjne w prawie podatkowym jak wprowadzenie płatności podzielonej, Jednolitego Pliku Kontrolnego i odwrotnego obciążenia w obrocie krajowym czy solidarną odpowiedzialność nabywcy w związku z nabywaniem tzw. towarów wrażliwych. Według ustawodawcy niezbędne było także wprowadzenie nowych przepisów na gruncie prawa i postępowania karnego – dotyczących tzw. konfiskaty rozszerzonej, dopuszczenia tzw. owoców zatrutego drzewa jako dowodu w procesie karnym oraz surowej odpowiedzialności karnej za fałszerstwo faktury. W niniejszym artykule analizujemy szczegółowo treść wprowadzonych do Kodeksu karnego przepisów regulujących fałsz materialny i intelektualny faktury VAT, statystyczny obraz przestępczości fałszowania faktur oraz wyniki badania aktowego 194 zakończonych prawomocnie w latach 2017–2022 spraw sądowych o analizowane przestępstwa. Na podstawie tak szerokiego materiału badawczego szukamy informacji o rozmiarach i charakterystykach tego zjawiska, sprawcach tych przestępstw, reakcji państwa wobec nich oraz odpowiedzi na pytanie: czy nowe regulacje wypełniły zakładane ograniczenie przestępczości VAT-owskiej?
15
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Crime of persuasion to commit or assistance in the commission of suicide under article 151 CC

44%
Bachmat P., Mozgwa M.
Ius Novum
|
2017
|
vol. 11
|
issue 2
61-82
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