Podstawowe dyrektywy wymiaru kary (w świetle dyskusji wokół art. 50 k.k.)

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1989

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Wydział Prawa i Administracji UAM

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Basic directives of measurement of penalty (in the light of discussion on art. 50 of the penal code)

Abstract

The article presents the standpoints of Polish penal code writing with respect to basic directives of measurement of penalty formulated on the basis of Penal Code of 1969. The first part presents three basic directives contained in Art. 50 § 1 of the Penal Code of 1969, i.e. a) a directive of the degree of social danger of a criminal act (identified by most authors with the justice-based rationalization); b) a directive of social influence of penalty (corresponding with the principle of general crime prevention); c) a directive of individual influence of penalty (corresponding with the principle of individual crime prevention). The interpretation of Art. 50 § 1 of the Penal Code does not indicate that the legislator would treat any of these directives in a preferential way. It may mean that each of them should be reflected in the individual measurement of penalty. The Penal Code is also silent on the question of priority of one of these directives in case of conflict between them, leaving the choice to the discretionary powers of the court. Such an arrangement of basic directives of measurement of penalty has since the early days of the Penal Code raised numerous controversies, most of them focused around the problem of a so-called leading directive of measurement of penalty. The second part of the article shows the course of a twenty-year-old discussion on the conceptions of measurement of penalty. The first stage of that discussion took place in years 1959 -1974. Three basic standpoints were represented in legal writing at that time. Most writers supported the conception of equality of directives provided for in Art. 50 § 1 of the Penal Code (among others I. Andrejew, Z. Kaczmarek, Z. Kubec, J. Majewski, W. Swida, J. Sliwowski, Z. Sienkiewicz). The second group of authors supported the conception of domination of one of the preventive directives, mostly the one of individual crime prevention, over the others (K. Buchała, A. Spotowski, A. Zoll, A. Krukowski). Finally, the third view was for the conception of priority of the directive of social danger. The problems of basic directives of measurement of penalty were again in the focus of interest of legal writing in years 1981 -1982, in connection with amendements to the Penal Code. Most authors were then for the leading role of individual prevention modified by the needs of just requital, or for the equivalent position of both directives (e.g. A. Spotowski, A. Marek, A. Zoll). Almost unanimous was in legal writing the renouncement of the directive of general crime prevention. The two projects of amendments to the Penal Code (a government and a so-called social draft) incorporated the above proposals of changes of Art. 50 § 1 of the Penal Code. In 1988, The Commission for the Penal Law Reform appointed by the Minister of Justice issued Guidelines on the Penal Law Reform. However, the Guidelines were not clear as to the standpoint with respect to changes of Art. 50 of the Penal Code. The above Guidelines were also analysed by the Scientific Society of Penal Law. The opinion of that organization stated that the measurement of penalty should include two aims: the satisfaction of social sense of justice through the severity of penalty commensurate with the degree of guilt, and individual crime prevention directed towards resocialization. In case of conflict of those two directives, priority should be given to individual crime prevention, with the exception of fellonies. The author is fully in support for the standpoint expressed in the Opinion of the Scientific Society of Penal Law.

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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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Ruch Prawniczy, Ekonomiczny i Socjologiczny 51, 1989, z. 4, s. 89-105.

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Uniwersytet im. Adama Mickiewicza w Poznaniu
Biblioteka Uniwersytetu im. Adama Mickiewicza w Poznaniu
Ministerstwo Nauki i Szkolnictwa Wyższego