Ruch Prawniczy, Ekonomiczny i Socjologiczny, 1987, nr 2
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Item Paserstwo a instytucja przepadku świadczenia na rzecz Skarbu Państwa w trybie art. 412 k.c(Wydział Prawa i Administracji UAM, 1987) Pływaczewski, EmilThe article is concerned with the problem of applying to the receivers of stolen Property the consequences resulting from Art. 412 of Civil Code regulating the institute of forfeiture of the subject matter of foul performance to the Treasury. The said institute is aimed at eliminating the profits of the person who became enriched by means of foul performance. The justification for taking up the subject is that a considerable number of court decisions based on Art. 412 of Civil Code are the instances of the receiving of stolen property. Besides, the practice of applying the said provision by courts and prosecutors leaves much to be desired. In the introductory part the question of what is subject to forfeiture by virtue of Art. 412 of Civil Code has been dealt with. In the author's opinion the forfeiture affects the subject-matter of performance; thus the conception of the forfeiture of a claim seems to be excluded. Besides, a strong emphasis has been laid on general character of Art. 41 of Civil Code. Following remarks aim first of all at defining the scope of application of the said provision to transactions concluded with the participation of a receiver of stolen property. Thus, as to the most frequent form of the receiving of stolen property, namely the purchase of an object acquired by means of a prohibited act, the forfeiture may affect only the price Paid by the receiver to the seller. As to another form of the receiving of stolen Property, namely accepting the object acquired by means of a prohibited act, the forfeiture should affect the receiver's remuneration for performing some activities towards the object, agreed upon in a previously concluded contract. Analysing the foulness of behaviour as one of the premisses of the forfeiture, the author points out to the need of distinguishing between the foul act and the act perpetrated with the foul intention. Thus not every criminal act must be committed with foul intention. In turn, the evaluation of the degree of blameworthiness and foulness of a given act should be carried out taking into account objective as well as subjective criteria. In this way, excessive widening of the scope of application of Art. 412 of Civil Code could be prevented, In the last part of the article the author analyses the problem of concurrence of Art. 412 of Civil Code and Art. 48 § 1 of Criminal Code, providing for the same legal effect, namely the forfeiture to the Treasury of the property of an object of performance. The lack of internal coordination between those two provisions makes it difficult to question the incorrect practice of criminal courts which apply Art. 48 of Criminal Code without referring to possible application of Art. 412 of Civil Code. However, the complications arising from the „concurrence" of Art. 48 of Criminal Code and Art. 412 of Civil Code are for the most part of theoretical character only.