Extraordinary mitigation of a cumulative fine

Czasopismo Prawa Karnego i Nauk Penalnych Rok XXII: 2018, numer 4
Journal of Criminal Law and Penal Studies Volume XXII: 2018, No. 4

Kamil Siwek - Ph.D, candidate, Adam Mickiewicz University in Poznań, Chair of Criminal Law;

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Keywords

extraordinary mitigation of a penalty, a cumulative fine, extraordinary imposition of penalties, drug prevention, felony

Summary

The paper deals with a contentious issue in case-law and legal literature concerning extraordinary mitigation of a penalty for felony subject to a penalty of cumulative sanctions of deprivation of liberty and fine. Author points out that Article 38 § 1 of the Polish Criminal Code (k.k.) is of no use for resolving the analyzed issue. Therefore, in this paper, the statement about the existence of two different legal frameworks, i.e. before 1 July 2015 and after that date, is challenged. The author also contests the assertion that extraordinary mitigation of a cumulative fine is ruled by Article 60 § 7 k.k. In conclusion, it is stated that extraordinary mitigation of a penalty for felony subject to a penalty of cumulative sanctions of deprivation of liberty and fine consists in the imposition of a penalty of deprivation of liberty in the extent that amounts to less than the lowest statutory penalty but no less than one-third of the lowest statutory penalty.

Commentary to the Supreme Court decision of 6 December 2017, V KK 240/17 (a crime of fraud by concealing information)

Czasopismo Prawa Karnego i Nauk Penalnych Rok XXII: 2018, numer 3
Journal of Criminal Law and Penal Studies Volume XXII: 2018, No. 3

Jędrzej Liberacki - M.A., Jagiellonian University (graduate)

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Keywords

fraud, legal duty, concealment, misleading, exploitation of other person’s error, omission

Summary

The commented judgment concerns the issue of criminal liability for committing a crime of fraud by concealing information regarding the actual economic situation. The author criticizes the Supreme Court for the lack of distinction between the exploitation of error and misleading. In particular, the statement on the fulfillment of both elements, exploitation of error and misleading, is questioned in cases when the perpetrator intentionally conceals from the other party to the contract an objectively existing situation that affects the ability to follow the terms of this contract.

The identity of the prohibited act in substantial and procedural criminal law (remarks concerning the judgment issued by the Court of Appeal in Katowice on 12 November 2009, II AKa 277/09)

Czasopismo Prawa Karnego i Nauk Penalnych Rok XXII: 2018, numer 3
Journal of Criminal Law and Penal Studies Volume XXII: 2018, No. 3

Milena Gawrol - Ph.D. candidate, Jagiellonian University, Chair of Criminal Law; trainee in the National School of Judicary and Public Prosecution

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Keywords

social harmfulness of a prohibited act, appeal proceedings, identity of a prohibited act

Summary

The commentary concerns the issue of the identity of the prohibited act in substantive and procedural meaning. The main conclusion set forth in this study is that it is not possible to presume that the accused is at the same time guilty and innocent of a crime constructed by applying the institution of the regular concurrence of provisions. Such a conclusion, contrary to the principles of logic, should lead to a reversal of the appealed judgment regardless of the limits of the appeal. The article indicates the possible solutions for resolving this type of conflict. Moreover, it is emphasized that the social harmfulness of a prohibited act constitutes a secondary subject of evaluation and is irrelevant to the content of the judicial decision in the cases of absence of formal aspects of criminal liability.

On the binding force of determinations of another court or authority in criminal proceedings in Russian criminal procedure

Czasopismo Prawa Karnego i Nauk Penalnych Rok XXII: 2018, numer 3
Journal of Criminal Law and Penal Studies Volume XXII: 2018, No. 3

Joanna Machlańska – Ph.D. candidate, Jagiellonian University, Chair of Criminal Law; advocate

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Keywords

binding force of determinations of another court or authority in criminal proceedings, Russian criminal law, Russian criminal procedure, Russian Federation, principle of independence of jurisdiction

Summary

The binding force of determinations established in previous civil, administrative, arbitration or criminal proceedings as a criminal procedure institution exists in Russian law from 1864. In the current 2001 Code of Criminal Procedure, this regulation is contained in just one provision but continues to be the cause for disputes. This study is a critical analysis of the premises of this institution as stated in current Russian criminal procedure regulations. Considerations, in particular, concerns the criminal court’s problem of deprivation of the opportunity to prove circumstances previously established in other proceedings, and very limited opportunities to challenge those determinations by parties. This situation raises objections from the point of view of the principle of material truth, right to a fair trial and right to defense. In addition, the study presents the proposed amendment to the Article 90 of the Russian Code of Criminal Procedure, which would allow limiting the above-mentioned problems.