The amendment to the Criminal Code introduces a change in the scope of criminal liability for the offence identified in Article 296 Criminal Code in the Act of 13 June 2019 amending the Act – Criminal Code and some other laws. The new scope of penalties for inefficiencies is not justified either economically or axiologically.
This provision constitutes criminal liability for damage to the economic trade by misuse of the powers conferred or failure to comply with the obligation imposed on the person responsible.
The subject matter of protection in Article 296 is the proper management and responsible management of the assets or economic activities of the persons listed in that provision. According to O.
Górniok, however, the provision protects the interests of anyone who, on the basis of the provision, entrusts another person with dealing with his business or economic activities.
The new regulation may deter those involved in the company's economic affairs, as they will not take high-risk measures that could generate huge revenues in the future because of fear of criminal liability.
New scope of penalties
The Act introduces a new provision Article 306a., in section 1 provides: Who commits the offence specified in Article 296(1)(2), Article 296a(1), Article 297(1)(2), Article 298(1), Article 299(1)(2), Article 303(1), in respect of property with a value of more than five times the amount determining the property of a great value (5,000,000 PLN), is sentenced to imprisonment on time for years 3 to 20, a section 2. Who commits a crime specified in Article 296(1)(2), Article 296a(1), Article 297(1)(2), Article 298(1), Article 299(1)(2), Article 303(1), for property with a value of more than ten times the amount determining the property of the great value (10,000,000 PLN), has been sentenced to imprisonment for years 5 to 25.
The sentence of imprisonment proposed by the legislator for unprofitableness is higher than the penalty for causing severe injury to the health in the form of man's loss of sight, hearing, speech or other serious disability – which according to the new law is at risk of punishment from 3 to 20 years, or for dealing with a minor below 7 age or trafficking in human beings – at risk of being punished also from 3 to 20 years. It is safe to say that health and human life are less valuable to the legislator than material goods, specifically budget revenues, drawn from entrepreneurs.
Scare for managers
This regulation may deter those dealing with the company's economic affairs, as they will not take high-risk actions that could generate huge revenues in the future because of fear of criminal liability.
Furthermore, any decision taken by such person, such as the purchase of immovable property, the non-location of funds on the deposit, the taking of credit, may consequently lead to charges and convictions of imprisonment oscillating within the limits of 5 to 25 years (when the economy is estimated at 10,000,000 PLN).
It is worth noting that current investment processes are far above the amount 10,000,000 PLN.
It must be stressed that the functioning of the economy is subject to great risks. The very essence of the risk is precisely to make decisions which, in essence, aim to achieve an economically beneficial objective that we are not sure will be achieved.