Administration of Criminal Law

In law science, there is a phenomenon of increasing absconding from criminal law to administrative law. I call this a "administration" of criminal law. The arguments of this text are as follows.

After first, The administration of criminal law, and thus the indicated "escape" from criminal law to administrative law, is a permanent phenomenon. There are grounds for claiming that this phenomenon may continue to increase in the future.

After second, Changes in criminal law favour the administration of criminal law, as criminal law gradually departs from its foundations, including the principle of subjectivisation of criminal liability towards objective criminal liability.

After third, these phenomena are a threat to the constitutional values and guarantees of human rights – the citizen.

Criminal law, together with administrative law, belongs to a branch of public law, which, in general, protects the public interest, regulates the functioning of state bodies and its relations with legal entities, including citizens. There is no place in public law to determine the shape and content of the legal relationship.

In the theory of law, the pattern of the public legal relationship is usually drawn vertically, which means that at the top of the graph is the symbol of the state e.g. P, followed by a vertical line with a vector arrow pointing down and second pointing up, connects P with the symbol at the bottom, e.g. O, marking the citizen.

A citizen has responsibilities and powers in relation to the State. This is not a partnership relationship, free. It's a submission relationship. In criminal law, it is outlined even more clearly.

The citizen – the perpetrator, after a final conviction, has a duty to submit to a state sentence, and the State has the right and obligation to execute that penalty. Punishment requires clear justification, legitimacy in the state. The inflicting of suffering cannot be understood by the law itself.

I don’t think anyone will share the following statement today: “I think that the relationship between the state and citizens is not a legal relationship. (...). This is the social ratio of power, the ratio of dominion (i.e. the sociological, actual, not legal relationship)” 1 .

There is no room for discourse, no room for co-shaping the content of legal relations. Existing similarities can make it easy to blur differences. For a long time, the differences between criminal law and other branches of repressive law, including tax or administrative law, science has seen the criterion of morality.

Criminal punishment is a morally involved process. Criminal law seeks elements of moral condemnation, from morality comes the criterion of blame in classical penal law, coming out of Cantov philosophy.

1. Marek is right when he writes: “the removal of the criterion of guilt as a punishment limit is an essential and immanuel Kant theory” 2 . But more important than the association of guilt and punishment, it seems to draw attention to the inalienable and undeniable value of the human individual. I. Kant stressed with all his power that man cannot be a means to any purpose in anyone's hands. He wrote: “Concluding in the end all punishment and reward only for machinery in the hand of some higher power, which is to serve only to encourage the intelligent beings to act toward their ultimate goal, i.e., happiness, is a too visible testimony of the mechanism of their will, which makes all freedom impossible to stop at this view.” 3 . Human treatment as an entity excludes an instrumental, utilitarian approach, even if it would serve to achieve its ultimate goal, i.e. happiness. An instrumental approach is a denial of freedom. As the philosopher of Königsberg writes, this approach "repells all freedom." Each individual has the right to freedom 4 and is by nature good and moral 5 .

For I. Kant, “justice must lie in every punishment, and that is the essence of this concept.” This sentence requires particular emphasis. The essence of punishment is justice. Moreover, “punishment is a physical condition which, although not linked to what is morally wrong, as a natural consequence, would have to be associated with it as a consequence according to the principles of moral legislation” 6 . Punishment naturally combines with what is morally wrong. Is it similar in the administrative peacock?

The mechanisms of punishment in administrative law clearly show certain similarities to criminal law. It seems that legislators, because we are not just talking about Polish legislators, are already walking along paths and are opening the door already open. A whole range of solutions have their counterparts in criminal law.

A modern-day criminal law is created. Amendment of the Act of 14 June 1960 – Code of Administrative Procedure 7 to 2017 will be discussed in the following part of the text, some threads worth paying attention to immediately.

An excellent example of this trend is, for example, the penalty directives or the adoption of solutions to mitigate liability in the form of voluntary disclosure, such as sloths in anti-cartel law 8 .

At the same time, criminal law is gradually being rebuilt towards objective accountability and to challenge the existing international, constitutional and statutory guarantees limiting the severe punishment of perpetrators, and in addition to the process of limiting the freedom to rule the unsuspended courts.

Early administration of criminal law

In literature, there are claims suggesting that when we talk about the administration of criminal law, we are faced with a new phenomenon that the phenomenon of emerging competition for administrative and criminal sanctions is fresh. Well, nothing more wrong.

The phenomenon of crowding out criminal response by replacing them with administrative sanctions is not new. It can be dated to at least the 19th century, as soon as it has consolidated the modern model of administration.

In fact, in recent times it has been getting stronger, but it is rather a quantitative change rather than a qualitative change.

The fact that the dispute over the demarcation line between criminal and administrative law is not new can be seen following the history of Polish codification in the indicated area. Just follow the work on criminal codification at the dawn of the interwar 20th century.

Significantly, among the questions addressed to the Codification Commission at the time were: ‘Should a draft criminal law be drawn up with a view to establishing a separate police criminal law in the future?’ The author of the question – J.

Makarewicz, when asking them, aimed at the Commission's systematic definition of the relationship between criminal and administrative sanctions.

The answer given is very meaningful. Answering the question of J. Makarevicz, F.

Nowodworski – President of the Criminal Division of the Codification Commission, he said: “He is going about a fundamental issue:” says the President of the Department, “is he going to incarnate police offences into the Code (criminal) or to draw up a separate criminal law for them?

The principles of criminal code and so-called police offences do not contradict the numerous laws which apply administrative law of punishment, and the constant tendency of the Sejm of the Republic.

The growing trend of equipping almost all administrative authorities with direct – without a court – punishments threatens the health of our State, because it contradicts the principle of division of authorities in the state into legislative, executive and judicial [subliminal].

In codification work, this principle must guide and guide the construction of this work, and hence the Polish penal code should take a decisive distinction with all penalties without a court.” 9 .

The end of the day 17 January 1920 at the request of President F. Nowodworski at the conclusion of the Criminal Division of the Codification Commission, it was taken “almost unanimously” 10 a significant resolution: "The penal code should cover all criminal acts in the sense that no conviction for punishment can take place other than under the criminal code" 11 .

It should be borne in mind that the Commission’s original decision on question J. Makarevicha was negative 12 . The Commission did not agree to distinguish between a separate "right" or a "police" code 13.

The resolution was adopted by lawyers from the Congress and Wielkopolska, while representatives of the Commission from Małopolska voted “for”. According to E.S.

Rappaport, the latter, “adjusted in their district to a wide range of criminal powers of the administrative authorities, acting in this regard perfectly correctly and to the benefit of the running of public interests, could not comprehend the absolute distrust thus revealed to administrative officials, excluding any form of criminal authority outside the judicial authority.

It was assumed that there was an indecent, sad memory of the Russian bureaucracy in the congressional district of B.C.: bribes, abuses and self-will, the victim of which was the b.B. Russian partition for many years.” 14 .

Unfortunately, the Commission thanks to J. Makarewicz 15 In the end, she changed her position and agreed to separate a separate right of offence, which ultimately helped to establish in Poland the demarcation from criminal law of a separate criminal-administrative law, with broad judicial authority of administrative authorities.

The role of E.S. Rappaport, and in particular its fatal consequences of the so-called "compromise" legislative proposal, was not irrelevant. 16 , and to some extent the fact that, as usual in such cases, the death of President F. Nowodworski 17 , in connection with which the leader of a group of rational “conservatives” lacked.

The final shape of both the President's Regulations, i.e. both the penal code and the law on offences, was given to the Ministry of Justice, without the involvement of all the carnists – living members of the Commission 18 .

The principle of tripartition of the authorities, which was exhibited by President F. Nowodworski, is of a systemic nature.

Today, it is pointed out that it belongs to those “rules of a good state that accompany reflection on power since it became the subject of deliberations to answer the question of what a government worthy of a man should be, which sets out the content one from the mainstream of constitutionalism since its birth” 19 .

The fundamental nature of the principle of three divisions is expressed in that it protects elementary values, the common good. The real, not only formal, tri-division of the authorities, counteracts the sole rule, threatening to destroy constitutional order 20 , and consequently democracy itself.

The above quote from F.

Nowodworski suffices in the scope considered here for commenting also to the current Constitution of the Republic of Poland of 2 April to 1997 21 In discussions on administrative sanctions, numerous statements, although carefully examining their constitutional contexts and limitations 22 , it seems to be insufficient to see the fact that the transfer of punishment into the hands of the administration violates not only constitutional principles concerning the enforcement of justice, but disturbs the model of the democratic state itself in the context of the principle of the tripartition of power.

The last passage of the President's statement, as a crass simplification, may be a little confusing, because it is not the penal code that is to "take discord" with penalties without a court, but rather the legislature with such legislative practices.

1. Makarevicz's questioning of the principle of exclusivity of the criminal court in the ruling of penalties and criminal law as the basis of their dimension was not accidental and did not concern only minor acts for which contemporary offences are considered. Nulla poeta sine audicio in his understanding had a broad meaning. It was a result of a deeper deliberalization. He used different arguments. He referred to historical evolution, comparative interpretation, functional, purposeful. He wrote: “Thesis that any crime, any action, or abandonment of human beings, followed by a criminal reaction of a social group, belongs to a criminal law, can only be right from the point of view of the social groups of a low degree of development” 23 . He further pointed to the historical development and distinctness of the "criminal laws" of individual social, professional, city, etc. Makarevicz was aware that “the administrative penalty law enjoyed the worst possible reputation in certain societies because the execution of it was freely, handed over to the unabsorbed officials of the absolute monarchy. Besides, there is a name from this era coming – “Police State” 24 .

At the dawn of the Second Republic, J. Makarewicz wrote: “Today we live in our own country, not foreign country, in republic, not absolute monarchy, officials are under public control, and not basking in the rays of monarchy’s grace, so we can have equal trust in an administrative officer as to a judge [p. W. Z.]” 25 .

The question may be asked as to the historical veracity of the stated claim. The argument that "we can have equal confidence in an administrative officer as a judge" undermines the value of the independence and independence of the judge in the ruling.

Since we can trust both a judge and an official in ruling penalties, the qualities of independence, independence and impartiality of a judge become without small ornaments. J.

Makarewicz also seemed to overlook differences in substantive jurisdictions to judge, and after all, in administrative bodies about penalties ruled and sometimes still ruled by persons without formal legal education.

Without involving them and giving them work, it is difficult to combine practical legal knowledge with intellectual formation and competence of judges, obtained during many years of studies, applications and asesury.

In writing, the importance of the qualities of independence and the independence of the judiciary can be confirmed several times. The independence of courts is linked to the organisational and functional separation of judges and courts from other authorities of the State.

Independence, on the other hand, is that “a judge acts solely on the basis of the law, in accordance with his conscience and inner conviction” 26 . In Poland, both qualities have a special significance after the experience of the communist system.

This is why a number of guarantees of independence and independence of judicial power were introduced into the current Constitution of Poland. As indicated, the state system was based on the principle of division and balance of legislative, executive and judicial powers, as confirmed by Article 10 Constitution of the Republic of Poland.

Chapter VIII of the Basic Law, entitled ‘Courts and Courts’, includes the detail of the principle of tripartition. Article 173 The Constitution of the Republic of Poland underlines the separateness and independence of the judiciary from other authorities.

Article 175 provides that the judiciary in the Republic of Poland is governed by the Supreme Court, universal courts, administrative courts and military courts.

The development of the rule of division of authorities is the provisions of the Polish Constitution providing for the appointment of a judge for an indefinite period (Article 179), failure to remove the judge from office and non-transferability to another post and to another seat (Article 180), entitlement to remuneration corresponding to the dignity of the office (Article 178) and judicial immunity (Article 181).

It is pointed out that the concept of judicial independence covers several fundamental aspects, including: impartiality towards participants in proceedings, independence towards extrajudicial bodies, independence towards authorities and judicial authorities, independence from political influence and internal independence of the judge 27 .

The system of criminal liability for crimes, offences and administrative delinquency developed in Poland during the interwar period became the foundation of post-war governance in this area. Also in the area of administrative jurisdiction. Traditionally distinguished three criminal groups:

• 1) offences at risk of punishment for 3,000 PLN and 3 months of detention subject to exclusive court ruling,
• 2) offences at risk of punishment for 3,000 PLN and 3 months of detention subject to the exclusive case-law of the administrative authorities,
• 3) offences at risk of a penalty higher than 3,000 PLN and 3 months of detention subject to administrative judgment 28 .

What is characteristic, the power of administrative authority to harshly punish even imprisonment was in force when the arguments for leaving penalties in her hands were formulated by J. Makarevich, i.e. at the dawn of the Second Polish Republic. G.

Taubenschlag, the author of a repeated textbook for criminal and administrative law, pointed out in 1924, that "the criminal contributions of the administrative authorities in Poland are very extensive; for they revolve within the limits of one year of “prisonment” ...

and fine, reaching the height 10,000 PLN; even the criminal powers of the courts of peace and county are greater” 29 .

Mr Zimmermann considered the most extreme example of punitious administrativeness to be valid to 1921 Decree of 11 January 1919 penalties for the storage or use of firearms and explosives when a state of emergency has been declared 30 .

The author pointed out that the decree allowed the administrative authorities to decide against the perpetrator of an act against the life or possession of firearms or explosives, which does not appear to be strict 31 .

For the above category 3) the scope of penalties other than in cash is limited in 1928 Article 1 Regulations of the President of the Republic of 22 March 1928 on criminal and administrative proceedings 32 , repealed only on day 1 January 1972, laid down that the offences at risk of a penalty was not higher than the fine (monetary penalty) 3,000 PLN and arrest to 3 the months, notwithstanding the additional penalties, have been investigated and punished by the administrative authorities where the infringement has been expressly communicated to the case law of the administrative authorities.

However, second the subparagraph indicates that the limitation of the above jurisdiction on account of the amount of the fine did not apply where the amount of the fine was dependent on a single or multiple amount of damage, the value of the object, the impaired amount or any other calculation unit provided for by the Act as a basis for determining the amount of the penalty.

However, offences, even if expressly passed by law to the rulings of the administrative authorities, were of exclusive jurisdiction if they were committed in print.

The Constitution of the Republic of Poland of 17 March 1921 33 , in Article 72 stated that: “The laws will carry out the principle that the criminal decisions of the administrative authorities in the second instance, granting the right to appeal to the competent court will be granted to the parties." As a result of the introduced regulations, the person sentenced to a penalty, e.g.

the criminal-administrative procedure, was given the opportunity to address the administrative authority which sentenced him, with a request to refer the case to the course of judicial proceedings within the time limit 7 days after notification of punishment. The request deprived the administrative decision of enforceability.

The ruling replaced the indictment in the court proceedings (Article 640-649 regulations of the President of the Republic of Poland of 19 March 1928 [34]) 35 .

The possibility of judicial review of administrative decisions on punishment was formally secured by the right to court. However, short, for only 7-the time limit for bringing an appeal (requests) to the court made it difficult to implement it effectively.

The ruling by the administration in criminal matters, not to mention punishment for typical administrative delicacies, was a rule during that period. So it was after the war.

Mr Taubenschlag pointed out that the types of acts in cases in which the administrative authorities ruled were included in both the law on offences and around 140 special laws already issued by the Polish legislature.

What is distinctive, in 1937 This author omitted criminal and administrative law in his collection, as he pointed out, "a few already" laws of the possessing countries 36 .

Illumination of the genesis of the Polish model of law on offences seems necessary in these lectures devoted to the phenomenon of administration of criminal law. It is reasonable to believe that the memory of criminal and administrative law and its lush development has faded, especially among younger lawyers.

It is only in historical light that it is clear that the coexistence of criminal and administrative penalties in Poland was a rule, not an exception. Moreover, the broad powers of judgement in small matters, belonging to the administrative authorities, have been a principle for decades and the judicial right to judgment – except for.

The abolition of administrative powers in criminal matters at the beginning of this century was a novelty. Well, as J. Maziarz noted, now in force, from 2001 „a model of criminal proceedings constitutes a significant noveum compared to existing models of such conduct in Poland’ 37 . Administration as a form of abolition of criminal law?

On the Criticism of Criminal Law first A circumstance facilitating the administration of criminal law is criticism of criminal punishment and punishment in general. In criminal law and criminology, abolitionism is still alive. The humanization of punishment, the social sensitivity and the way in which suffering is felt, is raised 38 . L.

Tolstoy demanded the abolition of criminal punishment in the name of individual freedom, in the name of tolerance for disability and human defects. R. Owen claimed that the person responsible for the crimes should be charged not with the individual, but with the social system, which bears all the blame for the crimes committed, etc. 39

Originally abolitionism referred to actions aimed at dropping the yoke of slavery, which eventually occurred in 1888 r. when slavery officially abolished Brazil. Later, this concept was used to identify social movements seeking the abolition of the death penalty. In many countries, the main penalty has been abolished 40 .

Last 40 years of abolitionism gained further, wider meaning 41 . The abolitionists targeted the abolition of prisons and then criminal law in genere. Unfortunately, there is no room for a full presentation of abolitionist views. Just recall the name L. Hulsman to give a clear picture. L.

Hulsman advocated decriminalisation and depenalization, as he considered the current system to be wrong. He wrote: “The role of the dormitory is to show (1) how institutions actually function, (2) what are the consequences of their functioning in different segments of social structures.

Then he should reveal (3) the thinking system at the bottom of these institutions and their practices of action. ... (4) Finally, he should work with practices to modify institutions and develop other ways of thinking” 42 . L. Hulsman rejected any metaphysical legitimacy of punishment. Criminal law is only a tool for social control.

His approach was strictly functional. The best sanction is the mildest sanction. The purpose of sanctioning behaviour is to be able to stop undesirable behaviour.

In characterising the liberal doctrine of criminal law, L. Radzinowicz pointed out correctly that if criminal law restricts individual freedom, it should be as little as possible 43 . The demands of rationality and ultima ratio accompany the science of criminal law almost forever.

Of course, you do not go far enough to advocate the abolition of criminal repression. However, change is made by criticism of punishment. After all, C was also an abolitionist. Beccaria demanding the abolition of the death penalty and the humanisation of punishment 44 . Beccaria as an abolitionist was co-founder of modern criminal law.

While abolitionism, as a criticism of punishment and punishment, aiming in its extreme forms to completely abolish it, seems unrealistic, the process of progressively objectifying punishment and moving away from its subjectivisation and individualisation seems to be a daily reality. There are many manifestations of the objectivity of criminal law, but it is enough to calculate three of them, as seems most meaningful:

• 1) in terms of typification,
• 2) in the field of blame,
• 3) as regards departure from the principle of societas delinquere non potest, i.e. a collective entity cannot commit a crime.

Since the beginning of the modern era, it is a violation of the legal good or, possibly, a danger to it, social harm, not a mental element, which is the basis for the typification of prohibited acts 45 . Equally, the normalisation of the concept of guilt is progressing.

It appears in the erosion of psychological elements of guilt and the crisis of guilt as an individual moral charge. Personal standards are increasingly being operated, especially in the area of unintentional guilt 46 . The mental capacity of the individual perpetrator and his ability to anticipate are coming to an end.

The goal is to punish a person when it is deliberate 47 . About third phenomena, the responsibility of collective entities is introduced in criminal law, which is a break from the classic tradition of the exclusive responsibility of the individual 48 .

Changes in criminal law promote the displacement of it by administrative law. From a sufficiently remote perspective, there is a shrinking of criminal responsibility. Criminal law is narrower and generally milder than it was a century ago 49 .

Of course, this process is not linear, as evidenced by the phenomenon of mass prisonisation in the US 50 In the last half century. However, there are indications that this phenomenon is in reverse. The shift towards liberalisation of punishment is gradual, but notable, as it is based on many grounds 51 .

A permanent change in the US also announces the so-called bill first step (First Step Act), adopted in 2018 by the administration of President D. Trump, as the dramatic effects of politics have been realised for years.

Amendments to administrative law indicating the administration of the area reserved for criminal law so far

The administration of criminal law, which is mirrored by the "punitivisation" of administrative law, is both quantitative and qualitative. In quantitative terms, this process is manifested by the increasing number of laws in which administrative penalties appear, mainly monetary penalties. In qualitative terms, the changes are based on the introduction of rules on the dimension of administrative penalties in criminal law.

Administrative penalties can be found in many laws, e.g. environmental law 52 , Antimonopoly 53 , gambling 54 , road, energy, pharmaceutical, capital market law, banking law, etc. 55 Already at the beginning of this century, it was pointed out that near 50 laws may be distinguished by provisions giving rise to the imposition of administrative fines or other such charges 56 .

The characteristic process of transforming offences into administrative delinquencies took place in a number of laws. Very significant changes have been made especially in the area of construction law. For example, in sanctions Article 34 Act of 16 April 2004 on construction products 57 It was pointed out that the perpetrator of the acts referred to in that provision ‘subjects to a fine to 100,000 PLN”. The perpetrator's behavior was characterized by a high degree of social harm. Large enough that the legislator decided to put this type of action in the Kazuistic disposition. It was about the responsibility of a person who:

• 1) place on the market a construction product unfit for use in the execution of works;
• 2) place a construction mark on a construction product which does not meet the requirements laid down in this Act;
• 3) place on a construction product a mark similar to a construction mark which may mislead the purchaser or the user of that product;
• 4) place a construction mark on a non-construction product.

It does not take much imagination to predict that the indicated behaviours may pose a threat to a construction disaster. The criminal threat and the social harm of the act indicated that Article 34 It's a crime. However, Article 36 that law originally provided that the ruling on matters specified, inter alia, in Article 34 follows the provisions of the Act of 24 August 2001 – Code of conduct in criminal matters 58 .

Indicated contrary to the Act of 20 May 1971 – Code of offence 59 The regulation raised doubts in practice enough that the Supreme Court was forced to speak. District Court of O.

on 21 October 2005 He presented to the Supreme Court a legal question requiring a fundamental interpretation of the law, as stated in the question: ‘Is the act described in Article 34 Act of 16 April 2004 on construction products (Journal of Laws of 2004, item 881) is an offence within the meaning of Article 1(1) Act of 20 May 1971 (Journal of Laws of 2004, item 1808) – Code of misconduct?’ In the February ruling 2006 The Supreme Court, in its presentation of the formal criterion, decided that ‘if the law states that a ruling on a particular act is based on the provisions of the Code of Conduct on Offences, such an act is always an offence, and therefore, if it is punishable by a fine higher than 5,000 PLN” 60 .

Although the sanction from Article 34 The constructional ewers' laws up to twenty times exceeded the upper limit of sanctions for offences (5,000 PLN), the decision of the legislator was an offence. Doubts grew, however.

This provision was amended several times and eventually repealed by the Act of 13 April 2016 on conformity assessment and market surveillance systems 61 , which entered into force on the day 1 January 2017 The behaviours described above originally as types of offences eventually after enlargement became administrative delicacies in the new extended Chapter 6a entitled ‘Money penalties’ 62 .

Relatively high criminal threats in Article 36a(36b) (100,000 PLN) have not changed, which would probably have to happen if it wanted to maintain the identified types of offences and at the same time maintain systemic consistency. The upper limit of threats to offences is still 5,000 PLN.

At present, the ruling authority is no longer an independent and insistent court, but a "competent investigating authority" and, in practice, building supervisors 63 . The imposition of sanctions shall be by administrative means.

From the point of view of the State interest, it is easier, faster and guarantees greater revenue to the State Treasury 64 . In a qualitative sense, the most serious change is undoubtedly the addition of 2017 Chapter IVA of the Code of Administrative Procedure entitled ‘Administrative fines’ 65 .

Adopting the rules governing fines was the implementation of doctrinal postulates 66 , Ombudsman 67 and other entities.

It is pointed out that their establishment "will encourage the pursuit of equality with the law or the principle of proportionality" 68 It has also been argued that the adoption of the rules in question mitigates the absolute nature of administrative fines, followed by their execution 69 .

The Code contains a definition of a legal administrative penalty.

The administrative penalty shall be understood to mean a fine of a monetary nature imposed by a public administration body, by decision, following a breach of a law involving a failure to fulfil an obligation or a breach of a prohibition on a natural person, a legal person or an organisational unit without legal personality (Article 189b k.p.a.).

The principles of intertemporal law were adopted (Article 189c k.p.a.), criminal law sanctions directives (Article 189d k.p.a.), the exception of circumstances excluding liability (Article 189e (a) and the grounds for waiving the imposition of an administrative penalty (Article 189f k.p.a.).

All of this leads to a reduction in automaticism and a failure to take account of the causes and circumstances of the infringement 70 .

Summary

The adoption of criminal law by administrative law is gradual and without any major resistance. Disputes as to whether separate administrative and criminal law appears to be of secondary importance in this context 71 . A much more serious issue is the blurring of differences between the two branches of the law.

Criminal and administrative sanctions are a permanent element of the Polish legal order. There are still raised doubts that have not disappeared after the change of the Code of Administrative Procedure in 2017 An increase in administrative penalties can be expected.

It is easier to impose them, there is greater potential control over their ruling by the central authority, as well as potentially higher budgetary implications due to their imposition. There is still a lack of a comprehensive catalogue of guarantees which is based on common criminal law.

Administrative penalties pose a threat to citizens, as the ability to defend against State action in administrative proceedings is limited 72 . In addition, new risks are already identified, such as large freedom to decide penalties (determining penalties, waiving them), generating legal difficulties for administrative authorities 73 .

There are fundamental doubts about the breach of the principle of division. The possibility of recourse to the administrative court does not give full guarantees.

The argument against abolitionism of criminal law and administrativeisation of criminal law is that, with the limitation of the scope of the criminal law guarantee, legal guarantees against the State will also decrease and the way to increase arbitrariness has not yet been designed, a system that could potentially offer better or even equal protection 74 .

The introduction of IVA into the Code of Administrative Procedure seems to close the next stage of the development of administrative penalties. Administrative responsibility has always been characterized by automation, speed and routine, which were an advantage for the state's interest.

However, the objective liability underlying administrative law did not mean that it was an absolute liability.

It is pointed out that gradually in writing and in the case law there was a need to maintain the basic principles of criminal responsibility in the application of administrative penalties, including even what is no longer so obvious, the grounds for fault 75 . These principles have guarantees for human rights and citizens.

However, is it intentional and rational to duplicate the principles of criminal liability under administrative responsibility?

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1 Cf. L. Lisiakiewicz, “Ius puiniendi” or metaphysics?, “State and Law” 1963, z. 8–9, p. 229 and 231.

2 See A. Marek, Criminal Law: General, Bydgoszcz 1992, p. 234.

3 I. Kant, Criticism of Practical Reason, translated by J. Galecki, Warsaw 1984, p. 67.

4 In fact, this is based on the categorical imperative: “Do so that the maxim of your conduct may be a universal law.” According to M. Potem: “A cantarian entity, guided by its categorical imperative, behaves like a fictional legislator, like a sovereign, while playing a dual role is both master and subject.

Kant assumes that all men have pure reason. (...) Such pure reason is built into the will and therefore willful acts require unconditional recognition of the authority of moral law.” Lt. M. Condemnation, Kant and Hegel. A dispute between morality theory and ethical theory, “Archives of Philosophy and Social Thought” 1998, t. 43, p. 13.

5 According to Kant, the good will that every man has is guided by his own will to general moral laws. Cf. ibid., p. 14.

6 I. Kant, Critic... p. 66.

7 Text one: Journal of Laws of 2020, item 256 as amended

8 Cf. B. Turno, Lenincy, Polish Competition Law leniency programme, Warsaw 2013, p. 291 and n.

9 Za: E.S. Rappaport, Criminal powers of administrative authorities, “Legal, Economic and Social Movement” 1921, z. 2, p. 261–2

10 Yes J. Makarewicz, Borders of the Criminal Law, “Review of Law and Administration” 1920, year XLV, p. 97. One can guess that J. Makarewicz was against.

11 The wording of the resolution for: J. Makarewicz, Return Wave (draft law on offences), "Legal, Economic and Social Movement" 1930, z. 4, p. 475.

12 Voting ratio 7 to 3! To: J. Makarewicz, Borders of the Act... p. 97..

13 The term “police” comes from Greek from the word polytea meaning the management of the state – the city. Originally, it had a very wide range of meaning, synonymous with all state functions. In the 18th century, there was talk about ius politiae, and thus the right of monarchs to regulate all matters of a social nature. In time, it was narrowed down. See more H. Izdebski, History of Administration, Warsaw 1996, p. 30 and n.

14 E.S. Rappaport, Criminal Entitlement... p. 263.

15 J. Makarewicz advocated the separation of "police" and criminal-administrative law consistently in several texts, cf. especially, the Return Wave..., and earlier: The Borders of the Act..., p. 97 and n., and in his classic textbook: Criminal law. Comparative lecture taking into account the law in force in the Republic of Poland, Lviv-Warsaw 1924, p. 4–9

16 6 See more about the legislative “compromise” on offences of E.S. Rappa-port, The issue of offences in Polish legislation (reporting authority), “Warsaw Court Gazette” 1929, No 21, 22, 23, p. 307 and n.

17 Lt. K. Pol, Franciszek Nowodworski (1859–1924) [in:] Polish Lawyers' Post, Warsaw 2000, p. 515 i n

18 Cf. S. Sliwiński, Polish substantive criminal law. General part, Warsaw 1946, p. 14; J. Skupinińs ki, Model of Polish law on offences, Ossolinu 1974, p. 90–91.

19 A. Dana, The essence of division and balance of authorities in Polish constitutionalism, “Doctrina. Socio-political studies" 2009, No 6, p. 54.

20 Cf. W. Linkkowski, Tripartition of authorities and common good, “Legal, Economic and Social Movement” 2018, z. 1, p. 37.

21 Journal of Laws, item 483 as amended

22 See in particular A. Nałęcz, Administrative sanctions in the light of the Constitution of Poland [in:] Administrative sanctions. Lights and shadows, ed. M. Stahl, R. Lewicka, M. Lewicki, Warsaw 2011, p. 637 and n.; A.

Błachnio-Parzych, Administrative sanction and criminal sanction in the case-law of the Constitutional Court and the European Court of Human Rights [in:] Administrative sanctions... ed. M. Stahl, R. Lewicki, M. Lewicki, p. 657 and n.; J.

Turski, Administrative fines in the light of the Constitution of the Republic of Poland – selected issues, “WSAiB Scientific Reports” 2014, z. 20, p. 160 and n.; A. Wróbel, Administrative Responsibility in the Case-law of the Constitutional Court (example of administrative fines), “European Judicial Review ” 2014, No 9, p. 33 and n.

23 J. Makarewicz, Borders of the Act... p. 100.

24 Ibid. p. 101; J. Makarevich, Criminal Law... p. 4.

25 . Makarewicz, Borders of the Act... p. 102.

26 Cf. judgment of the Constitutional Tribunal of 9 November 1993, K 11/93, OTK 1993, No 2, item 37.

27 Cf. D. Zawistowski, Independence and Independence of Judges from the perspective of European Union law, "Legal, Economic and Social Movement" 2016, z. 2, p. 10–11.

28 Yes J. Skupinski, Model..., p. 93–94.

29 G. Taubenschlag, Preface [in:] G. Taubenschlag, Polish Criminal and Administrative Law, Łódź 1924, p. I.

30 Rights of the P. Pol. No. 6, item 103.

31 M. Zimmermann, Article 72 Constitution and existing Polish legislation. (Studio in criminal and administrative law), Lviv 1930, p. 135, criticism of this position; J. Maziarz, Criminal Procedure in the Second Republic, “Krakow Studies on State History and Law” 2014, No 7 (2), p. 300–301, in particular, the footnote 10. [31] Journal of Laws, item 365 as amended The wording of the regulations has been modernized.

32 Journal of Laws, item 267 as amended

33 Journal of Laws, item 267 as amended

34 Journal of Laws, item 313 as amended

35 See more S. Glaser, Polish criminal trial in outline, Kraków 1934, p. 340 and n.

36 Lt. G. Taubenschlag, Polish Criminal and Administrative Law. Part first – material law, Łódź 1937; J. Skupinski, Model..., p. 94.

37 J. Maziarz, Criminal Procedure... p. 299.

38 See especially V . Ruggiero, Penal Abolitionism, New York 2010, p. 199 and n.

39 See more L. Lernell, Basic issues of penology, Warsaw 1977, p. 157 and n.

40 For example, in the Netherlands in 1870 r. (de facto in 1860 in Portugal, 1867 in Norway, 1905, in Sweden, 1921, in Denmark, 1930, in Germany in 1949, in Poland 1988, de jure in 1995 (Article 5 Act on 12 July 1995 to amend the Criminal Code, the Implementing Code and to increase the lower and upper limits of fines and charges in criminal law, Journal of Laws, item 475)

41 See more H. Wantula, Abolitionism – Defence of Humanistic Values, “Legal Studies” 1990, No 4; H. Wantuła , Abolitionism of the prisoner: a rational and humanistic approach: about the punishment of imprisonment, about its consequences and its limits, Kraków 1997, p. 49 and n.; W. Zalewski, New abolitionism.

What's left of prison criticism? [in:] Or what prisons are needed. Reflections against contemporary issues. Anniversary Book 25 years of Polish Penitentiary Society, ed. P. Stępniak, T. Kalisz, W. Zalewski, Poznań 2016.

42 L. Hulsman, Alternatives to Criminal Justice: Decriminalization and Depenalization [in:] Abolitionism in History. On Another Way of Thinking, ed. Z. Lasocik, M. Płatek, I. Rzeplińska, Warsaw 1991, p. 31–32.

43 Lt. Radzinovich, Ideology and Crime. A Study of Crime in its Social and Historical Context, London 1966, p. 9.

44 C. Beccaria, On Crimes and Punishments, Develop. S. Lelental, Łódź 2014.

45 Cf. I. Andreyev, The Act of Action. Typization and Qualif of crime, Warsaw 1978, especially Chapter XIII Subjectivism – objectivity, p. 248 and n.

46 Cf. J. Gezek, On the Trends of Subjecting Unlawfulness and Opposition of Guilty in Modern Criminal Law, “New Codification of Criminal Law” 1997, t. 1, p. 18; J. Kochanowski, Standard of “reasonable man” in Criminal Law, “Studio Iuridica” 1991, t. XX, p. 133.

47 Cf. S. Stomma, Guilty Fiction, State and Law 1947, z. 10, p. 25; J. Waszczyński, Wine and the preventive aspect of punishment [in:] Criminal liability problems, ed. Z. Ćwiąkalski, M. Szewczyk, S. Waltos, A. Zoll, Kraków 1994, p. 274 and n.; cf. also about the objectiveization of the guilt of B. State-Wojciechowska, W. Zalewski, Wine in Criminal Law and Psychology [in:] Psychology and law. Between theory and practice, ed. E. Habzda-Siwek, J. Kabzińska, Gdańsk 2014, p. 91 and n.

48 Cf. especially J. S kupinski, Liability of collective entities against the background of the Polish Act of 28 October 2002 (an attempt to outline issues), “Gdansk Law Studies” 2003, t. XI, p. 365 and n.

The author carefully combines the evolution of the administration of punishment and the "punity" of administrative law with the introduction of collective responsibility. See also W. Zalewski, the liability of a collective entity in criminal law – in search of rationality, “Gdanskie Studia Prawnicze” 2017, t. XXXVII, p.

389–404 and literature discussed there.

49 Cf. J. Jasiński, Punity of Criminal Systems, “Legal Studies” 1973, No 35, p. 26; also J. Kochanowski, On the Transformation of Criminal Responsibility, “State and Law” 1978, z. 6, p. 28 and n.

50 Cf. W. Zalewski, Mass imprisonment – the end of dreams of an alternative to imprisonment? [in:] Performing a prison sentence in Poland – in search of effectiveness, edited by H. Machel, Gdańsk 2006.

51 Ibid. p. 23. 52

52 Lt. W. Radecki, Cash penalties in environmental protection, Bydgoszcz 1996.

53 Lt. M. King-Bogomilska, Cash penalties in antitrust law, Warsaw 2001; M. King-Bogomilska, Combating cartels in antitrust and criminal law, Warsaw 2013.

54 Act of 19 November 2009 about gambling (text: Journal of Laws of 2020, item 2094).

55 See Specific Regulations – administrative sanctions in material law [in:] Administrative sanctions..., ed. M. Stahl, R. Lewicka, M. Lewicki, p. 260 and n.

56 Lt. D. Szumiło-Kulczycka, Administrative and Criminal Law, Kraków 2004, p. 119–136.

57 Original text: Journal of Laws, item 881; currently text one: Journal of Laws of 2020, item 215 as amended

58 Text one: Journal of Laws of 2020, item 729 as amended

59 Text one: Journal of Laws of 2019, item 821 as amended

60 Order of SN from 24 February 2006, I KZP 52/05, OSNKW 2006, No 3, item 23.

61 Original text: Journal of Laws, item 542; currently text one: Journal of Laws of 2019, item 544 as amended

62 Article 36a-36i. See above all Article 36a [Placing on the market of a product unfit for intended use] the following: ‘The manufacturer or importer who places on the market a construction product unfit for intended use for declared performance shall be subject to a penalty of up to 100,000 PLN”, and Article 36b [The affixing of the CE marking shall be such that the manufacturer who affixs the CE marking or the construction mark on a construction product who does not possess the performance characteristics specified in the declaration of performance or the national declaration is liable to a penalty of up to 100,000 PLN.

63 Cf. judgment of the WSA in Warsaw 27 November 2018, VI SA/Wa 928/18, Legalis No 1863285.

64 In the abovementioned case VI SA/Wa 928/18, Provincial Construction Supervisor imposed a penalty of 12,000 PLN for malfunctioning the radiator power.

65 Act of 7 April 2017 amending the Act – Code of Administrative Procedure and certain other laws (Journal of Laws, item 935).

66 Cf. M. Kasiński, Administrative sanctions and pathologies in the operation of administration [in:] Administrative sanctions..., ed. M. Stahl, R. Lewicki, M. Lewicka, p. 157– 158; R. Stankiewicz [in:] Code of Administrative Procedure. Commentary, ed. R. Hauser, M. Wierzbowski, Article 189a, nb 1, Warsaw 2020, Legalis.

67 Cf. the speech of RPO Irena Lipowicz from 29 January 2013, RPO-722886-V/2013/PM, addressed to the Minister of Administration and Digitisation.

68 R. Stankiewicz [in:] Code of Administrative Procedure..., ed. R. Hauser, M. Wierzbowski, Article 189a, nb 1.

69 Cf. W. Friday, Code of Administrative Procedure in the light of the bill amending the day 7 April 2017, „Scientific Papers of the Administrative Court’ 2017, No 5, p. 31.

70 Cf. S. Dudziak, Principles of the administrative dimension of fines following the amendment of the Code of Administrative Procedure, ‘Regional Government’ 2018, No 6, p. 23–32.

71 Lt. D. Szumiło-Kulczycka, Administrative and Criminal Law, Kraków 2004; D. Szumiło-Kulczycka, Administrative and Criminal Law or a new area of law?, “State and Law” 2004, z. 9, p. 3 and n.; critically about this idea of J. Skupinski, Responsibility..., p. 368, which indicated that this name could be misleading, because it is not about criminal responsibility and administrative responsibility.

72 Cf. K. Czichy, On the non-application of criminal guarantees to administrative fines, ‘Prosecution and Law’ 2017, No 12, p. 93 and n.

73 S. Dudziek, Principles of dimension...

74 Lt. R. van Swaaningen, L. Hulsman [in:] Fifth y Key Th inkers in Criminology, eds. K. Hayward, S. Maruna, J. Mooney, London–New York 2010, p. 140 and n.

75 See especially M . Ripina, Wine as a condition of responsibility for the application of administrative fines [in:] Directions for the development of administrative law, ed. R. Stankiewicz, Warsaw 2011 and literature and case law cited therein.

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The article comes from the book “Administrativeisation” of criminal law or “criminalisation” of administrative law?, edited by Mariusz Bogusz and Wojciech Zalewski. Published with permission and courtesy of Wydawnictwo Uniwersytet Gdańsk.