The problem of impossible attempt and voluntary abandonment (critical analysis of the resolution of seven judges of the Supreme Court of 19th January 2017, I KZP 16/16)

Czasopismo Prawa Karnego i Nauk Penalnych Rok XXII: 2018, numer 2
Journal of Criminal Law and Penal Studies Volume XXII: 2018, No. 2

Piotr Czapla, Natalia Ossolińska, Aneta Ostafin, Michał Rachalski, Grzegorz Surma – Jagiellonian University, Faculty of Law and Administration - 4th year students

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Keywords

attempt, impossible attempt, intent, prohibited act, Supreme Court

Summary

This paper discusses the interpretation of one of the elements of an impossible attempt – “the lack of an object suitable to commit a prohibited act upon” – adopted by the Supreme Court in resolution I KZP 16/16. The authors point out the inaccuracies in the Supreme Court’s argumentation which consists of an objective understanding, supplemented by certain subjective components, of the above-mentioned element of an impossible attempt. The next part of the article is a critical analysis of the concept adopted by the Supreme Court. This critique is based on the scope of applicability of the institution of active repentance and focuses mainly on the voluntariness of abandonment from the commission of a prohibited act.

Lack of an object suitable for committing a prohibited act upon as an element of an impossible attempt (the perspective of legal doctrine and judicial decisions)

Czasopismo Prawa Karnego i Nauk Penalnych Rok XXII: 2018, numer 2
Journal of Criminal Law and Penal Studies Volume XXII: 2018, No. 2

Daniel Kwiatkowski - Vth year student, Jagiellonian University

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Keywords

impossible attempt, possible attempt, intention, active repentance

Summary

The article is aimed at collecting, organizing and analyzing of the arguments raised in the dispute over the interpretation of the element of an impossible attempt that is “lack of an object suitable to commit a prohibited act upon.” In the case law, two opposite positions (objective and subjective) have been developed, resulting in significant discrepancies in applying the law in various cases, leading not only to problems with the appropriate legal qualifications of perpetrators’ behavior but above all to the attribution of criminal responsibility in general.

Guilty plea as a relinquishment of constitutional rights

Czasopismo Prawa Karnego i Nauk Penalnych Rok XXII: 2018, numer 1
Journal of Criminal Law and Penal Studies Volume XXII: 2018, No. 1

Aleksandra Nieprzecka - Ph.D., Jagiellonian University

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Keywords

guilt, guilty plea, criminal proceedings, law of United Stated of America, comparative criminal law

Summary

The subject of this article is the institution of guilty plea understood as self-incriminating evidence, an official statement indicating the defendant’s consent to render a judgment and sentence, and the relinquishment of certain constitutional substantive and procedural rights, including the right to a public jury trial. The author indicates the elements that must be determined by the court before accepting the plea (namely: voluntariness, intelligence and sufficient factual basis) which the U.S. Supreme Court derived from the fact that a valid and effective guilty plea implicates the waiver of certain constitutional guarantees. The remarks presented in the article are preceded by the analysis of academic literature and the U.S. Supreme Courts judgments regarding guilty pleas delivered since the end of the XIX century (case study method).

Commentary to the Supreme Court decision of 29 January 2004, I KZP 40/03
(the meaning of the notion of “criminal proceedings”)
 

Czasopismo Prawa Karnego i Nauk Penalnych Rok XXII: 2018, numer 1
Journal of Criminal Law and Penal Studies Volume XXII: 2018, No. 1

Grzegorz Jan Artymiak – Ph.D. candidate, Jagiellonian University, advocate

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Keywords

ne bis in idem procedatur principle, apparent concurrence of provisions, ideal concurrence of provisions, notion of “criminal proceedings”, res iudicata

Summary

This paper is critical commentary to the Supreme Court decision of 29 January 2004 (I KZP 40/03), which is one the decisions that have significant role in judicial practice. The analysis is aimed at the problems with the interpretation of the phrase “criminal proceedings” used in Article 17 § 1 point 7 of The Polish Code of Criminal Procedure, with special attention given to minimal standards of the ne bis in idem procedatur principle. Some remarks concerns the issue of relation between Article 283 § 1 of Polish Labor Code and Article 220 § 1 of Polish Criminal Code, and the issue of interpretation of institution of legal questions stated in Article 441 § 1 of Polish Code of Criminal Procedure.