SPRAWSTWO BEZ WYKONANIA CZYNU ZABRONIONEGO
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Date
2009
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Wydział Prawa i Administracji UAM
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PERPETRATION WITHOUT ACTUAL PERFORMANCE OF A PROHIBITED ACT
Abstract
The conception of the participation form o f a crime proposed by J. Makarewicz does not answer
many fundamental questions. The general stance of the Polish contemporary doctrine of criminal law
is that neither incitement nor aiding and abetting is a participation form of a crime, but only
a separate and independent type o f a prohibited act, the description o f which (apart from the
characteristics typical of incitement or aiding and abetting) also includes the description o f the act to
which the inciter has induced, or in which the aider and abettor offered assistance. The conception
proposed by J. Makarewicz may be fully applied to the participation forms leading to either the actual
commitment o f a crime (committed personally or in conjunction with another) and in a non-executed
form (leading, supervising or ordering a crime).
What still remains to be solved is a question what charges should be formulated in respect of
a person who has supervised a prohibited act that was ordered, i f the “to-be” perpetrator, or performer
of the act only realises the characteristics of the object, without realising (or showing) any
characteristics of the subject part. In my opinion, one should never claim that the person supervising
a crime has actually managed or supervised the realisation or performance of a prohibited act whose
attributes always characterise the subject as well. Under the currently applicable laws, in such cases
we could determine the instance of co-perpetration. This solution, however, is not free from
imperfections. It is therefore suggested that the scope of article 18 para. 1 of the penal code should be
extended on indirect perpetration as well.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 71, 2009, z. 2, s. 175-183