Paserstwo a instytucja przepadku świadczenia na rzecz Skarbu Państwa w trybie art. 412 k.c
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Date
1987
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Wydział Prawa i Administracji UAM
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The receiving of stolen property and the institute of forfeiture of the subject-matter of performance to the treasury (art. 412 of Civil Code)
Abstract
The 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.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 49, 1987, z. 2, s. 97-110