OBJECTIVE CRIMINAL LIABILITY IN THE POLISH CRIMINAL CODE FROM 1997

There is a principle in Polish criminal law that criminal liability can not be inflicted unless there is guilty mind. However there are some exceptions to the rule in the criminal code from 1997r. The definition of recklessness and negligence in the section 9 paragraph 2 of the criminal code is the first one. According to this section, an actor acts recklessly or negligently if he has no intention to commit a criminal act although he commits it because he fails to exercise a duty of care (caution rules) which must be exercised in a certain situation, which he predicted or could have predicted. It is easy to notice that the proof of such failure is a condition under which criminal liability for a reckless or negligent act can be applied. These caution rules are objective, which means that an objective element of crime is included in the subjective condition of criminal liability (mens rea). Furthermore, in Polish criminal law all elements of crime, no matter whether they are objective or subjective, must be stated in the statute (section 1 paragraph 1 of the criminal code). If the fact, that the safety rules are rarely codified, is taken into consideration, it must be said that in case of reckless or negligent act not every element is expressed in the statute law, which is contrary to the principle 'nullum crimen sine lege'. Criminal responsibility for an act committed by an intoxicated actor in the state of insanity is another exception to the principle, that 'mens rea' is a basic element of crime. Polish legislator has not regulated which of these two sections must be applied when a man is killed by an insane actor if the insanity is caused by alcohol or drugs which the criminal predicted or could have predicted. The problem is of utmost importance as both sections include different sanctions. It must be said that if there is no proper regulation of a certain situation, the most advantageous solution for the actor should be chosen. It means that the criminal should be sentenced for an involuntary act of killing.