Przestępstwo znęcania się (art. 184 k.k.) — przedmiot ochrony
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Date
1985
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Wydział Prawa i Administracji UAM
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The crime of torment and cruelty (art. 184 of Penal Code) -object of protection
Abstract
Problems of the object of penal law protection have a great impact both
in theory and in practice, especially in the scope of finding the so-called "similarity"
of a crime.
Defining both generic and a direct object of protection in an offence of torment
and cruelty (art. 184 P. C.) is not raising substantial difficulties. The art. 184 is
included in chapter XXV of P. C. and therefore it is commonly advocated in
the literature and judicial decisions that "family", "guardianship" and "youth"
enlisted in the chapter's title consist a generic object of protection of a norm
expressed in art. 184 P. C. Those definitions cannot be correct as too narrow from
a logical point of view- especially if one considers the fact that interests of other
categories of persons from outside a family and not being minors can become an
object of a lawless attempt described in art. 184 P. C. i.e. persons dependent from
perpetrator or the helpless not protected by duties of guardianship. It can be
thus stated that a correct functioning of family and guardianship and a proper
development end education of youth are the object of protection of norms expressed
in chapter XXV of P.C.
Considering the fact that a protection of family, guardiaship and youth is the
most important but not the exclusive task of art. 184 P.C., the definition of direct
object of protection should not be also limited to interests listed in the title of
chapter XXV of P.C. Consequently, the following definition can be proposed on the
grounds of the postulate of W. Swida: "A due treatment of those categories of
people who on account of their objective properties (family relations dependence
relations) or their subjective features (minority, helplessness are particularly exposed
to improper behavior which can take a shape of torment or cruelty from the
side of others, is a direct (main) object of protection of a norm expressed in art.
184 P. C.
A question of protection is closely related to an issue of similarity of offences
in their subjective aspect. The study of crime of torment and cruelty can induce
the opinion that similarity of offence of art. 184 P. C. to other crimes of chapter
XXV of P. C. and to the crimes described in other parts of the Act (wit,h the
exception of crime of persecuting a subordinate art. 319 P. C.) can not be prejudged
in abstracto; the question can be settled only on the grounds of actual facts
of a case by means of establishing the identity or similarity of generic interests
being a main or additional object of protection. In case of the offence of art.
184 par. 2 P. C, life and man's health being always the additional object of protection,
it has to be similar to all offences directed against life or health as a main
or additional object of attempt.
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 47, 1985, z. 1, s. 149-164