Damage in material criminal law – selected issues

The subject matter of the article is the importance of damage in material criminal law. Its primary objective is to determine the meaning of the concept of property damage and to answer the question of whether this term can be understood uniformly under the entire penal code.

In his deliberations, the author points out the functions in which the concept of damage is used in criminal law, focusing on harm – the knowledge of the type of prohibited act and the importance of damage in the perspective of the obligation to remedy it with Article 46(1) k.k.

The concept of “damage” appears in many places of the Criminal Code with 1997 Article 46(1) k.k. regulates the optional and compulsory judgment of the obligation to make good damage.

Selected types of prohibited acts contain damage as a mark – for example, you can indicate here Article 296(1) k.k., which penalises the material damage caused by a guarantor acting by abuse of his rights or by failing to fulfil his obligation. Article 53 k.

regulating the Directives on penalties Under section 2, points out, among other things, that the perpetrator is trying to repair the damage as one of the conditions to be taken into account for the penalty. We will find personal damage in the penal code alongside property damage (see e.g.

Article 190a(2) (k.k.) In addition, in practice, damage can be distinguished, which is the result of a crime but is not included in its description, and thus not a sign of the crime. In this context, it should be considered appropriate to determine whether the concept of injury is understood uniformly under the provisions of K.K.

and, if not, to indicate what the differences are.

General

The fundamental importance of the concept of damage in the legal language and legal language of the Polish legal system was undoubtedly developed under civil law, where damage constitutes one the condition of liability for unauthorised acts and the failure and improper execution of the obligation.

In the absence of a statutory definition of the concept, the meaning of the damage was developed by the case law and the doctrine of civil law. And so the damage is defined as any damage to the property or interests of legally protected persons whose victim has suffered against his own will. [1] .

There is a distinction between property damage and non-material damage, as defined by the Act as harm (cf. Article 445 k.c.). It's a waste of a strict sense, i.e.

damage to property, may take the form of loss (damnum ergens), resulting in a reduction in the assets or increase in the liability of the injured person, and the form of loss of benefit (lucrum cessans) resulting from the non-increase in the assets of the injured person (or, alternatively, the non-decrease of its liabilities) as a result of an event causing damage.

The concept of injury is undoubtedly fundamental in the perspective of the entire civil law system. What is significant, however, is that, in the absence of appropriate rules referring to civil law, the damage can be understood autonomously in the criminal law regime.

This means that the identity of the meanings of the concept cannot be assumed in advance. Civil injury is therefore a reference point for the meaning of the damage in criminal law, without doubt it is necessary to establish their mutual meaning.

Any differences within the meaning of the term in question in these parallel legal systems may potentially lead to situations where the damage caused within the meaning of civil law will not constitute damage within the meaning of the provisions of the law of K.K.

and, consequently, the criminal court examining the case will be deprived of the possibility of ruling on the obligation to remedy it.

The damage is found in the penal code's rules in various functions. First, indicate the damage as a mark or mark of the prohibited type. Second, the legislator uses the concept in question in the rules on the basis of which the decision is based in relation to the offender’s obligation to make good the damage suffered by the victim (cf.

Article 46 k., Article 72(2) k.k. and Article 67(3) k.k.). From this perspective second the functions are undoubtedly essential Article 46(1) k.k., which governs the institution's decision to make good damage in the event of conviction. Article 72(2) k.k.

establishes the possibility of imposing an obligation to remedy damage in the event of a conditional suspension of the sentence of imprisonment. Art. Article 67(3) k.k. establishes the same possibility in the case of conditional discontinuance of proceedings.

In addition, the damage occurs in the provisions of part of the general criminal code relating to the principles of assessment of the offender and other criminal penalties (cf. Article 53(2) k.k. and Article 60(2)(1)(2) k.k.).

In the special part of the term ‘for damage’, however, it is used to indicate the person or entity affected by the crime (see e.g.

199 section 2 k.k.), the legislature thus indicates, among others, the Republic of Poland (Article 129 (k) a minor (Article 199(2) k.k.), the nearest person (Article 278(4) k.k.) or other creditors and many creditors (Article 302(1-3) k.k.).

The functions referred to translate into the roles of the damage to the application of criminal law.

Answering here on first from the questions raised at the outset, it should be pointed out that the Criminal Code gives different meanings to the term of damage, but not only inconsistency but also inconsistency can already be seen in the terminology itself.

The Code uses the concept of damage, property damage and personal damage, giving these terms sometimes identical and sometimes different meanings.

The distinction for property and personal damage is visible, for example, in the content Article 190a(2) k.k., on which it is indicated that the material damage consists of a reduction in assets or an increase in liabilities, and a personal damage on any other loss not directly translated into economic values [2] .

This division clearly refers to the civilist division mentioned earlier to harm and harm. This lack of terminology can be seen by comparing content Article 190a(2) k.k. with sound Article 46(1) k.k. In the second from the above mentioned provisions, the legislator used the concept of damage and harm.

The meaning of the injury will often be linked to what it does in a specific provision.

Pity as a mark of a prohibited act

Moving on to considering the meaning of the injury In the first of its functions, i.e. as a sign of the type of prohibited act, it should be pointed out at this point that the penal code does not contain a definition of damage.

However, the legislature introduced under Article 115(7) and 7a k.k., by referring to the definition of property of considerable and great value from Article 115(5)(6) k.k., definitions of material damage and damage in large sizes. Thus, a material injury must be understood to mean a injury whose value exceeds 200,000 PLN.

The damage in large size, on the other hand, will be the damage that exceeds 1,000,000 PLN. The statutory definitions cited clearly indicate the material nature of the material and great damage.

Thus, if the legislator used the concept of material damage or damage in large size without defining its property nature, referring to the content of the definition by Article 115(7)(7a) K.k. should be presumed to be of a property nature.

This reservation should be regarded as purely theoretical, as the Act now in the penal code indicates the material nature of the material and great damage each time, using the term "big size property damage" or similar wording.

As indicated above, the text of the Criminal Code uses, among others, the term of property damage [3] . This concept appears only in the special part of k.k. as a mark or mark of the types of prohibited acts listed there.

At this point, it can be concluded in general that this mark is at least close to the damage to stricte within the meaning of civil law. It means damage to the victim’s assets that can take the form of real loss and loss of benefits.

At the same time, however, the importance of property damage as a mark (or element thereof) is linked to the content of a particular type of prohibited act, and consequently is narrower than property damage in civil law.

The legislative way of editorialising, which boils down to the indication of the direct property nature of the damage, gives rise to a natural question of the possibility of accepting, on the basis of the principle of a contrario, the thesis that the word loss without the said adjective means non-material damage.

The answer to this question must, of course, be negative. In practice, the regulations give the term different meanings.

Under Article 343(2) k.k., which establishes a qualified type of infringement, the damage to property has been countered by another serious injury, which means a financial damage relating to the organisational, technical, functional aspects of the operation of the armed forces. [4] .

The distinction by the legislator of the notions of property damage and other damage could support the view of their separateness.

However, the doctrine states that "other serious injury" may be of a material or non-material nature [5] , which justifies using the wording of the Act as ‘significant damage to property or other serious damage’, which shows that significant damage to property is included in another serious damage.

It is therefore necessary to allow the possibility of a wide (double) meaning of damage, the nature of which has not been explicitly indicated by the legislator.

The referenced example also indicates that the determination of the meaning of the ‘damage’ which constitutes the mark of a prohibited act requires an interpretation of the provision of the specific part of K.K. in which the mark was used.

Where a description of the type of prohibited act is limited to an indication as a sign of injury or an exposure to injury, without specifying its nature, it is necessary to carry out an interpretation process in order to determine the nature of the mark.

The starting point should be the linguistic interpretation of the content of the provision. In particular, the Directive should be applied to take account of the context by referring to the immediate environment of the mark, covering, in particular, the content of the whole provision and its related provisions.

At the same time, a systematic interpretation should be applied, consisting of recourse to goods protected by law by the provisions of the special part interpreted, including the reference to generic goods referred to in the title of the chapter of the Criminal Code in which the provision is examined.

The actions described will determine the nature of the injury mark in a specific provision. As an example, Article 181 k.k. regulating a crime involving the destruction or damage of a plant or animal in a protected area, uses a sign of material damage.

The ‘substantiality’ of the damage refers to its intensity and remains unaffected by its nature (it may be as material as well as personal damage).

Pity with Article 181 (k) in view of the content of the provision itself, including in particular the marks describing the enforcement activities and the subject matter of protection Article 181 k.k.

in the form of natural heritage and the environment, constitutes, as a result of the destruction of vegetation or the killing of animals, damage of a distinct nature, which is sometimes referred to as natural damage in doctrine.

The assessment of damage is carried out by the prism of their natural significance (versions such as the extent of damage or the rarity of damaged species are subject to revision). The natural nature of the damage excludes it from being regarded as material damage, as it is, by its nature, inequitable to property [6] .

The determination of the nature of the injury cannot be identified with the determination of the extent of the materiality of the injury as a mark of the prohibited type. That's what it is. first the stage of this process.

Depending on the content of the description of the type of action prohibited, damage may be an element of the mark describing the enforcement action. In such a case, the legislator uses the term "it works for harm" (see e.g. Article 231(1) k.k.), the sign of the effect, which is formulated using the phrase ‘made damage’ (see e.g.

Article 303(2) k.k.) or a mark element describing the effect of direct exposure to danger (cf. Article 266(2) k.k.). The content of each of these factors should be determined by interpretation, taking into account the systematic interpretation described above and the context of a provision containing a description of the offence.

In this context, particular attention should be paid to the determination of the content of the injury where it constitutes a mark of effect or (in the event of exposure) an element of such mark.

The mark of the effect remains, in principle, closely related to the other characteristics of the type of prohibited activity concerned, including in particular those defining the enforcement activity. The effect must be a consequence of action.

In other words, how is the case-law taken, between the action of the perpetrator and the effect must occur on the ontological plane (causality) and a normative objectively attributable link.

The procedure of objective attribution of the effect developed in doctrine and jurisprudence serves to determine the links in question.

Importantly, this procedure, alongside its basic function, which is undoubtedly the attribution of a prohibited act, can be indirectly used as an interpretative tool to determine the content of the damage – the meaning of the effect.

This is due to the fact that only such a change in the external world (or in the case of lost benefits, no change) which can be linked to the action. This relationship enables the indication of additional indirect criteria for the definition of injury — effect.

In order to link the effect to the action of the perpetrator on the ontological level, it is necessary to demonstrate the continuous chain of energy or information flows, which is to say that the change in the external world was in fact a consequence of the perpetrator's act.

The attribution of an effect at the normative level requires the finding that the perpetrator of the act, when committed, has infringed the rules on the treatment of the legal good, as well as the existence of objective predictability of the existence of an effect [7] .

Infringement of the precautionary rules must be of a material nature and thus in a criminal (essential) manner increase the risk of effect [8] . It is possible that a factual situation where infringement of the rules of conduct with regard to the legal good will not entail a significant increase in the risk of an effect [9] .

In such a case, even if there is a foreseeable effect which would appear to qualify as injury (or other effect marks included in the provisions of the special part), the resulting change in the physical world will not constitute this mark within the meaning of the provision of the specific part k.k.

Thus, damage within the meaning of civil law may not constitute harm – the effect of a prohibited act. Precautionary rules must be breached, while complying with rules which, in a particular case, were intended to prevent the effect on the very path on which it was implemented on the ontological level.

If the effect (damage) occurs on another road, it will not qualify as a result mark either third the element necessary to establish that an effect on the normative level can be attributed is an ex post finding that the offender has been able to take another alternative action or omission in accordance with the current rules on the treatment of the legal good which would not have led to an effect.

Failure to do so will rule out the classification of a change in the outside world as an effect (injury) from the description of the prohibited type of action.

The damage, therefore, will only result in such damage which can be linked to the action in accordance with the above-mentioned principles.

This means that a change in the external world (or its absence) qualifying as a damage under civil law or a damage to Article 46(1) k.k., which does not constitute a sign of the effect of an act fulfilling the mark of the action, will not be a damage within the meaning of that provision to the specific part k.k.

In particular, it will not be a damage, in the sense of the effect, to the damage resulting from the action of the offender, if his actions were within the limits of the permitted risk of dealing with the legal good, or if the change in the world as a result of his actions did not take place in a way which the perpetrator was to protect from which the precautionary rules were broken.

In the light of the above considerations, it is appropriate to consider that the damage, including damage to property, which is an indication or element of the characteristics of the types of prohibited acts does not have one the common meaning. The actual meaning of the indications will be individualised separately for each type of prohibited act.

Next, it is appropriate to indicate the meaning of the injury in question under Article 46(1) k.k. and determining the ratio in which this concept remains to harm – the mark.

Pity with Article 46(1) k.k.

According to Article 46(1) (k) in the event of a conviction, the court may rule and, at the request of the victim or of another person entitled, by applying the provisions of civil law, the obligation to remedy, in whole or in part, the damage caused by the offence or compensation for the harm suffered; the provisions of civil law on the possibility of judging the pension shall not apply.

Current wording Article 46(1) k.k. recipe was given to him Act dated 20 February 2015 amending the Act – Criminal Code and some other laws that entered into force 1 July 2015 [10] In the previous wording, this provision did not provide for the application by the court of civil law.

In view of the obligation to remedy the damage, the amendment of 1 July 2015 but not limited to changing content only Article 46 k.k. The amendment moved Article 46 k.k.

from Chapter V of Part V of the General Code called ‘criminal measures’ to the newly created Chapter Va entitled ‘Transaction and compensation measures’, and the change in the location of the obligation to remedy the damage was reflected in the changes to the institution itself. The same law modified the content Article 56 k.k.

Chapter is also repealed 7 Section II of the Code of Criminal Procedure, which governed the institution of the Adhesive Action. The role of this institution was taken entirely by the compensatory measure from Article 46 k.k.

Even before the entry into force of the Act of 20 February 2015 in doctrine and jurisprudence, it was assumed that the Article 46(1) k.k. includes actual losses (damnum emergens) as well as loss of benefits (lucrum cessans). This view is now widely accepted in doctrine and caselaw. Referring to concepts developed on the canvas 361 section 2 k.c. does not mean, however, that the concept of damage to Article 46(1) k.k. is identical to civil law.

On the basis of the previous wording of this provision, the case law presented a view of the penal nature of the obligation to Article 46 § k.k. In this sense, the compensation function of the measure went to the background.

This view was reflected, among others, in the Supreme Court ruling dated 23 July 2009 [11] Or in the Supreme Court resolution dated 21 December 2006 [12] .

In the second of the Judicates cited, the Supreme Court citing the penal nature of the obligation to make good damage and damage to Article 46 k.k., pointed out that "The grounds and principles of the penalty resulting from criminal law are decisive when they are applied.

These provisions, rather than the provisions of civil law, therefore have a fundamental effect in the criminal court's settlement of the attachment to victims as criminal law institutions.

Furthermore, the court takes into account the principles of criminal law and the achievement of the relevant objectives of the criminal response measures.

This is primarily about achieving not only compensatory targets, but, above all, repressive and preventive objectives." According to the view presented by the Supreme Court, which is based on content Article 56 k.k.

in its wording at the time, the Directives on the judicial dimension of penalties, rather than the rules on civil law, were decisive in determining the amount of the obligation to remedy the damage and thus in determining the amount of the damage itself.

Consequently, it was assumed in the case law that the damage constituted only the equivalent of the actual damage resulting directly from the offence. Therefore, for injury within the meaning of Article 46(1) The impoverishment resulting from the offence, in the form of interest, was not recognised (see e.g. Supreme Court judgments).

dated 4 February 2002 [13] and 17 July 2014 [14] ).

Injury within the meaning of Article 46 k.k. in its earlier wording, it was therefore not the damage to which the obligation to rectify refers Article 415 k.c. in conjunction with Article 361 k.c.

After the amendment that entered into force 1 July 2015, The view referred to above about the repressive nature of the obligation to repair the damage has become obsolete. Article 46(1) k.k.

should be presented with regard to content Article 56 k.k., which constitutes a ‘appropriate’ clause for the application of the statutory indications of the judicial dimension of penalties when deciding the measures provided for in the Criminal Code. Reference to application provided for in this provision Article 53 k., Article 54(1) k.k.

and Article 55 k.k., according to the content given to it Act dated 20 February 2015 shall not apply to the determination of the obligation to make good the damage and the compensation.

Exclusion of content application Article 53, Article 54(1) and Article 55 k.k.

in ruling on the obligation to make good the damage, combined with the introduction of a reference to the provisions of civil law, substantially changed the nature of the institution's decision to make good the damage and, consequently, the meaning of the term ‘damage’ used by the legislator.

The reference to the provisions of civil law is open, which argues in favour that it includes the regulation of statutory interest for late payment of Article 481 k.c.

It is therefore appropriate to share the view (as it seems dominant today) that the criminal court, under the obligation to remedy the damage, is competent to charge interest on the convicted person as well [15] .

However, the doctrine and jurisprudence have not yet developed a single position on the time limit from which interest is to be calculated.

It is indicated here: the day of the damage to property, which will generally coincide with the day of the criminal offence, the day of judgment [16] , and the date of effective call for compensation [17] , which should also be considered an effective notification of the application for application of the institution from Article 46 k.k.

The last view should be considered correct, given that it is confirmed in the content Article 481 k.c. read in relation to Article 455 k.c., which is supported by the fact that it is added to the content Article 46(1) k.k. general reference to civil law provisions.

Introduction to Article 46(1) c.c. references to the provisions of civil law support the acceptance that the damage covered by it is a concept identical to civil law. Consequently, in terms of the meaning of the injury, including the concepts of actual loss and of the loss of benefits, it is desirable to reach out to the meanings of the canal Article 361(2) c. through the doctrine and jurisprudence of civil law.

This is confirmed by the fact that according to the doctrine [18] and case law [19] position damage with Article 46(1) k.k. does not need to be a mark of the type of prohibited act. This circumstance presupposes that the Article 46(1) k.k. has a broader meaning than the latter. However, according to this provision, the damage must be caused by a criminal offence. It must therefore be a direct consequence of the offence [20] .

Meaning of injury from Article 46(1) k.k. is, on the other hand, subject to limitation. The obligation to make good the damage can only be established in relation to the damage caused to the victim.

According to Article 49(1) However, the victim is a natural or legal person whose legal interests have been directly affected or threatened by a criminal offence. This provision assumes that a circle of victims within the meaning of Article 49(1) k.p.k.

is limited by a set of characteristics of the action in question and of co-criminal acts [21] . This restriction relates to the legal good which is protected by an assigned offender, taking into account acts which have previously and subsequently been co-taught.

It is therefore not an injured person whose legal interests will be violated by an act constituting a criminal offence, where the damaged good is not protected by the type of criminal offence attributed to him.

Thus, if the result of such a breach is damage, the criminal court will not be able to impose an obligation on the offender to repair the damage. In this case, the victim will have to make civil damages.

Conclusion

All of the above considerations lead to the conclusion that the term injury has different meanings under criminal law, while these meanings remain closely related to the functions in which the legislator uses it.

Also, the damage, including damage to property, as a mark or part of the mark of the types of criminal offences included in the specific criminal code, is not a uniform term.

Each time the meaning of the term in question is determined, a linguistic interpretation process must be carried out, taking into account the Directive, taking account of the context and referring to a catalogue of goods protected by the legislation in question.

In the event of injury, the meaning of the effect must be determined in addition to the principles of objective attribution of the effect which, on the negative side, co-create its content. Property damage whose obligation to rectify can be established on the basis of Article 46(1) k.k.

should be understood in a manner consistent with the meaning given to it under civil law. It is a broader concept than damage-signature, as it also covers damage caused by a crime which does not constitute a character of types of prohibited acts. Scope of injury Article 46(1) k.k.

is limited from the entity – the obligation to make good damage can only apply to the victim within the meaning of Article 49(1) K.p.k.

Summary

The entry of the above discretion leads to the conclusion that the term "damage" has various means in critical law, while these means restore closely linked to the functions in which the legislator uses it.

Similary, Damage, including pecuniary damage, as an element of types of proven acts, included in the special part of the Penal Code, is not a homogenous term.

Each determination of the means of the term in question requires a process of linguistic interpretation taking into account the immediate direct and referring to the catalog of goods legally protected by the analysis provision.

In the case of damage, which is an element of the effect, the determination of its content additional requirements taking into account the principals of objective Attribution of an effect, which from the negative side determination of the means of the term.

Material damage, which may be ordered to be repaid on the basis of Article 46 section 1 of the Code of Criminal Procedure, should be understood in the same way as the means applied to it on the ground of civil law.

It is a broadcaster notation than damage-element of types of protected acts, as it also covers damage caused by crime, which do not consist of the elements of types of protected acts.

The view of damage from Article 46 section 1 of the Penal Code is limited by the subject - the liability to redress damage may concert only the faulted party, as defined in Article 49 section 1 of the Code of Criminal Procedure.

Paweł Postolko

Lawyer, graduate of Law at the Faculty of Law and Administration of the Jagiellonian University, where he then completed Postgraduate Studies in Economic and Tax Criminal Law. With Chancellery Russell Bedford related to 2021. His professional interests are economic law, taking into account criminal and economic issues. He has practical professional experience in handling court cases.