Consent of the rightholder in criminal law. Analysis of the conditions for the effectiveness of consent and the impact of the nature of the legal good covered by the consent as a result of its granting

The institution of consent of the beneficial owner was not regulated in the current Criminal Code with 1997, It was therefore the task of the doctrine to formulate criteria for examining the validity of the consent granted under criminal law and its effect. The main premise of the analysis is to present the views presented in this regard in the Polish science of criminal law. The article focuses on the issues of the conditions for the effectiveness of consent and the effect of granting it.

When referring to the question of terminology used in this study, it should be pointed out that in the doctrine of criminal law, the term (person/entity) of consent of the rightholder is an equivalent concept.

At the same time, the concept of consent of the victim is generally rejected as intrinsically contradictory – it is reasonable to assume that, in the event of effective consent by the rightholder, there is no criminal offence, and thus no victim within the meaning of Article 49 Dominik Zając proposed as an alternative the term “agreement of the owner of the legal good” [1] .

The proposal is based on an accurate observation that the consenting person is often not entitled to freely dispose of the goods covered. D.

Hare thus distinguishes between the owner – the person in whom the actual ownership remains the legal good, the authorising officer – the person entitled to dispose of the legal good – and the victim, i.e. the person whose legal good has been violated by the criminal act of the perpetrator [2] .

The distinction between the rightholder and the rightholder is therefore based on the criterion of the effective disposal of specific legal goods under criminal law.

This difference, depending on the type of legal good and the intensity of interference in this good, is reflected in the effect of giving consent to the infringement of legally protected goods.

In this regard, it should be pointed out that the possibility of freely having the legal goods covered by the consent is a circumstance on which the effect of the consent is dependent. On the one hand, it is possible to effectively dispose of a wide catalogue of legal goods which the holder may decide at any time to infringe them.

And so – the owner of the property may self-destruct the property of the property or agree to do so by another person who in such a case will not commit a crime with Article 288(1) k.k.

On the other hand, there are legal goods for which there is no possibility of legally effective consent to their breach by the person to whom they are entitled.

An example can be identified Article 150(1) k.k., which indirectly excludes legally effective consent to euthanic killings (inference a maiori ad minus – since the demand by the victim to deprive him of his life, and thus an action further from consent itself, does not exclude illegality, this effect will not result in the consent of the owner of the legal good).

The possible consent to deprivation of life will only constitute a circumstance affecting the penalty according to Article 53(2) k.k.

The difference in the effect of giving consent to a breach of the legal right is in favour of recognising that the two terms in question have been deliberately distinguished [3] . The concept of consent of the beneficial owner should therefore be applied to statements which exclude the unlawfulness of the acts involved, while the concept of consent of the rightholder should refer to consents which have effect only on the level of the penalty.

Conditions for the effectiveness of the consent of the rightholder

The fundamental issue in assessing the impact of consent on the possibility of bringing the perpetrator to justice is to establish the general conditions for assessing the effectiveness of the statement, which is the consent of the rightholder. It is rightly pointed out that "the condition determining the effectiveness of the consent of the righted person is its failure" [4] .

The doctrine indicates that the consenting person must meet the relevant subject-matter criteria: the criterion of soundness and the appropriate age [5] . With regard to the conditions in question, it should be pointed out that there are no rules in existing criminal law that would resolve those criteria. However, the reference point for their assessment is Article 10 k.k. [6] and Article 31 k.k. [7]

The requirement of sensibility of the authorising officer means that consent should be given consciously and with adequate discernment, and the consenting officer should be free of factors that distort the sphere of his intellect or will [8] .

No consent shall be granted by a person with a disabled capacity, understood in accordance with Article 31(1) k.k. If there is a condition of reduced sanity in the controller, the degree of discernment in the specific situation should be examined.

However, it should not be assumed in advance that, under criminal law, the consent given by a person with reduced capacity is not effective. Similarly, the fact of prior incapacitation should not prejudge the failure of the authorising officer at the time of consent.

In view of the rejection by the modern science of the position of criminal law, according to which the consent of the authorising officer constitutes a legal act within the meaning of the Civil Code, the fact that the right to act is deprived should not preclude the recognition of consent as effective.

In such a case, however, it should be considered necessary to take into account in assessing the state of consciousness of the incapacitated rightholder, the potential impact of his mental disorder on the decision taken (agreement) and the decision-making process leading to it.

In terms of age, the views of doctrine vary [9] . For example, reference can be made to the provisions of the Civil Code and acceptance for the required maturity, and hence full capacity for legal acts.

Another view refers directly to the sound Article 10 The Criminal Code and assumes that consent may be granted by the person who has obtained the age allowing the criminal liability of the perpetrator, i.e. has completed 17 years [10] .

third The view implies the need for an individual examination of the degree of development of the rightholder. In that sense, the permit may be effective if it is able to understand its meaning and its effects.

The basis of this position is that the pace of development of individual individuals may be different, and consequently also those who do not exceed the formal age limit may have proper discernment.

In fact, the last position is a departure from the age condition and a restriction to the examination of the reasonableness of the rightful person.

The grounds of insanity and the appropriate age determine, on a criminal basis, the possibility of attributing the perpetrator of the offence according to Article 1(3) k.k., while sanity should be associated with the possibility of recognizing the actual and legal meaning of its act, the age requirement of Article 10 k.k.

relates to the achievement of a caesium in the psychophysical development of an individual, which, in the intention of the legislator, determines the degree of maturity in order to recognize the meaning of his actions [11] . In this context, the age condition is preliminary in relation to the applicant's requirement of soundness.

This is in favour of accepting the legitimacy third from these views. Since there is a lack of adequate regulation in the legislation to allow the application of Article 10 k. or Article 82 k.c.

to assess the consent of the rightholder, it should be assumed that there is no basis for introducing this criterion, which could potentially lead to the ineffective consent of a full-aware person [12] .

At the same time, it is clear that age should be taken into account as one in essential circumstances, when assessing the reasonableness of the authorising officer.

Another condition is the time of consent. It is modelled that consent should be given ex ante, i.e. before action takes place [13] .

The consent may also be given in the course of the action, but it should be stated that in this case it is necessary to carefully examine whether the consent was given before the infringement of the good occurred.

Such a finding may be problematic in a specific case, since it is often difficult to clearly indicate at which specific point the good has been breached.

The time limit will be the moment when the criminal action will be carried out and, in the case of criminal offences, the last moment when the perpetrator could still prevent the criminal effect.

Where the authorising officer has given his consent in the course of the action, it should be considered necessary to examine each possible impact on the decision-making process of the authorising officer of the good conduct undertaken by the perpetrator before the consent was given. [14] .

Consent of the authorising officer with an ex-post good, i.e. after the completion of an act infringing such good, does not waive criminal liability. This would mean depriving the criminality of illegality with retroactive force. On the other hand, ex post consent may affect the judicial dimension of the penalty (Article 52(2) k.k.).

In doctrine, it remains disputed whether, in order to be effective, the consent of the owner of the good must be demonstrated [15] .

Accepting the lack of an obligation to express the consent of the authorising officer means that even if the perpetrator is unaware of the consent of the authorising officer, he should not be held liable for the offence. In such a case, the offender may at most be liable for attempted failure from Article 13(2) k.k.

[16] , unless, during the course of the act, he is aware that it is impossible to do so because of the absence of an object capable of committing a prohibited act on him.

The opposing view considers it necessary to express the will of the authorising officer, assuming that, according to the content Article 60 k.c., the externalisation may occur in any way (clear or implied).

There is also a view that requires express consent (oral/written). The need to express consent is justified by the uncertainty as to the condition in which the perpetrator and the authorising officer would be present. An additional argument for the need to express consent is the need to carry out a guarantee function of criminal law.

In this sense, in order to ensure that the consent of the rightholder is effective under criminal law, the perpetrator must accompany the act's awareness of its existence. However, the position should be considered appropriate first, according to which the consent of the authorising officer does not need to be externalised.

The possibility of qualifying the perpetrator on the basis of the design of an attempt to ineptly refutes the whole argument to support the need to express consent. Within the limits outlined by Article 13(2) k.k.

the guarantee function of criminal law is not infringed and the offender may be held liable for the act committed, with the qualification of his conduct in such a case giving rise to the fact that, in view of the existing consent of the person subject to criminal protection, the legal right was not subject to actual threat. [17] .

A characteristic feature of the consent of the authorising officer is its cancellation. The holder of the good who consents to its infringement may revoke it until the perpetrator has taken the action for which the consent has been granted.

If it is possible, after taking the action, to prevent them from being affected by the mark of the description of the prohibited act, the withdrawal of consent should also be accepted as admissible [18] .

In such a case, the perpetrator is in a situation of attempted action, and in order to be released from criminal responsibility he must comply with the disposition Article 15(1) k.k. prevent the effect of a prohibited act.

The possibility of withdrawal of consent by the authorising officer leads to the conclusion that the effectiveness of consent should be assessed at the time of the act implementing the prohibited type of act. As with the granting of consent, the question of the need for demonstration becomes topical also in the event of its withdrawal.

In my opinion, too, the possibility of "internal" withdrawal of consent should be advocated in this case. The form of withdrawal of consent should be secondary to the form of granting it.

However, it should be noted that the lack of an expression by the authorising officer of the withdrawal of the consent to a breach of the legal right will pose a risk for the offender to act under conditions of legal error. The nature of this error remains disputed and involves the effect of granting consent [19] .

In this respect, the eligible views of this type of error compete on the basis of Article 28(1) k.k. i 29 k.k. first the position is based on the assumption that the effect of the consent is the original legality of the act due to the non-infringement of the sanctioned standard.

Action by the offender under conditions of error as to the existence of consent in this case means a lack of awareness of the attack on the legal right, which consequently implies the need to accept the qualification of error with Article 28(1) k.k. [20] .

On the other hand, the theory that the consent of the authorising officer constitutes an out-of-statutory countertype determines the qualification of the error based on Article 29 k.k.

Further, it should be pointed out that the consent of the authorising officer must be specific – after first must indicate the good for which consent has been given.

It is also essential that consent indicates in its content the scope and manner of the infringement of the legal good and the person to whom it is addressed (the circle of addressees). In my opinion, however, it is not necessary for the authorising officer to set a time limit for the action.

However, the validity of the consent as understood by the fact that, in the event of a change in the factual circumstances in which the consent was given, it becomes ineffective and that it is necessary to obtain it again before proceeding.

Consent as an exclusion from unlawful conduct

As indicated at the outset of this study, the effect of giving consent to an infringement of the legal good, in addition to the requirement to comply with the preconditions described in Part II of this Article, depends on the nature of the legal good which is its subject.

The doctrine of criminal law assumes that legal property subject to criminal protection is divided into relative and absolute goods [21] . This division results from different values of individual legal goods for society [22] . Protection of goods belonging to first groups depend exclusively on the will of their authorising officer.

Thus, the rightholder's consent to a breach of a relative legal good excludes the wrongdoer's act. The category of relative legal assets includes, in particular, property rights, physical integrity, good name, home mir. The possibility of having absolute goods is different.

It is assumed that the free disposal of such goods by individuals is excluded, which is justified by their high (absolute) value to society. Consent to absolute goods does not consequently exclude the wrongful conduct of the perpetrator.

For this reason, the view of the need to use such legal goods should be shared with the concept of the owner of the legal good [23] .

The penal code in some cases clearly indicates legal goods of an absolute nature. An example can be given as already mentioned Article 150(1) k.k. penalizing the euthanic killing of which one of which the death of the victim is claimed [24] . second An example is Article 189a(1) k.k. in conjunction with Article 115(22) k.k.

(trade in human beings), because Article 115(22) k.k. provides that the actions described therein constitute trafficking in human beings also where the victim consents to them. So life will be an absolute good – the object of protection Article 150(1) k.k. and freedom – subject to the protection of human trafficking offences.

However, referring to the good in the form of freedom, it should be pointed out that on the can of crime from Article 189 § k.k., i.e. unlawful imprisonment, it is generally accepted that the rightholder may give effective consent to the illegality of the action. [25] .

The difference in this respect is due to the detailed characteristics of the subject-matter of protection of the types of prohibited offences included in the Article 189 § k.k. i Article 189a(1) k.k.

While freedom is the subject of the protection of both types, as indicated by the title of Chapter XXIII of the Criminal Code, in which they were placed, these types of prohibited acts protect different levels of this good sense of the largo. And so the subject of protection Article 189a(1) k.k.

is defined in doctrine as the freedom of man understood in the context of his dignity [26] , on a can Article 189 § k.k. physical freedom, i.e. freedom of movement, is indicated as a specific object of protection [27] .

This distinction confirms that the possibility of freely having legal goods depends on the exact nature of the good and its social value.

second the level on which differentiation in the ability to effectively dispose of legal goods which are objects of protection of types of prohibited acts is the nature (intense) of interference with those goods. This is evident from the example of consenting to cause injury.

The dominant position in the doctrine assumes that it is permissible to effectively dispose of the health good in the form of consent for minor damage within the meaning of Article 157(2) k.k. [28] .

It is only within the limits of a "light injury" that a violation of the legal good in the form of health is to be in accordance with the social interest.

In the event of a moderate and severe health injury, their emergence on the part of the victim exposes society to higher costs (treatment, pensions, etc.), which is justified by the exclusion of the possibility of free disposal of health.

In this regard, the possibility of effectively having a legal good under criminal law depends not only on the nature of the good, but also on the intensity of interference involved. [29] .

However, on the margins, it should be pointed out that the issue of the possibility of consenting to cause medium and severe health damage remains a subject of debate. [30] , in which the centre of interest is now the ability to give effective consent to permanent contraception.

In relation to the vast majority of types of prohibited acts, the Act does not comment on the admissibility of legally effective consent. It is therefore necessary to determine each time whether the legal right protected by the criminal law falls within that group of goods of relative social value.

In order to establish this, consideration should be given to the individual’s interest and social interest in seeking to enforce the criminal protection of a particular legal good. The possibility of free possession of goods is clear in relation to goods of a property nature.

If a person has the right to have them freely in accordance with the provisions of the Civil Code or other specific laws, it should be assumed that he or she is also entitled to consent to carry out activities which would otherwise constitute a prohibited act.

It is more problematic to assess the possibility of effectively having non-material goods.

As an ancillary criterion in assessing whether it is possible to give effective consent to a violation of a legal right in a way covered by the hypothesis of a given type of criminal offence, the law enforcement procedure for the offence in question may be used.

If the prosecution depends on the will of the victim (then in the case of private prosecution offences and public prosecution offences prosecuted at the request), it may be presumed that effective possession of the goods protected by those provisions may be permitted, at least to the extent outlined by the hypothesis of the sanctioning standard, set by the provision in question.

[31] . This conclusion follows from the fact that the Act on first the place shall take account of the individual interest of the person concerned. However, it should be borne in mind that this criterion is purely ancillary. An example of apostasy to this rule can be mentioned as an example of an ex officio-sanctioned offence.

Article 189(1) k.k. on which the consent of the authorising officer can be effectively granted.

In the doctrine of criminal law, the nature of the consent of the proprietor of the legal good as a circumstance which excludes the unlawful conduct remains disputed. As it has already been signalled, including relatively presented two posts.

View first assumes that the consent of the authorising officer constitutes a stand-alone counter-type [32] , which introduces secondary legality of the act. In this regard, the perpetrator's action, despite obtaining the consent of the authorising officer, infringes the legitimate interests covered as contrary to the sanctioned standard.

The perpetrator therefore fulfils the statutory characteristics of the prohibited type. However, the result of obtaining consent is the secondary repeal of the wrongdoer. According to this construction, the destruction with the consent of the owner of the property right is tantamount to violating the property right.

It should be considered appropriate second from the view that the effective consent of the holder of the legal good is a circumstance that excludes the attack on the legal good itself [33] .

The perpetrator's action is thus originally legal – it does not violate the sanctioned standard, and consequently only seemingly performs the characteristics of the prohibited type.

The rejection of the concept that the consent of the authorising officer constitutes an out-of-status countertype is advocated by the absence of a collision of goods – a characteristic element of all statutory countertypes.

In this sense, a violation of an object which is only a corpus mechanocum of the legal good should be distinguished from a breach of the good itself. By locking a person in a room with his consent, I do not deprive him of his freedom of movement, even though his or her ability to move objectively is restricted.

Similarly – destroying the property with the consent of its owner, I do not attack this right, but in fact I confirm the will of the owner [34] .

Summary

This analysis of the criminal code and the doctrine’s views leads to the conclusion that giving legal consent to the imposition of the legal right requires the authorising officer to comply with the conditions for the effectiveness of the consent, which in particular require informed consent.

The effect of giving consent to a breach of the legal good depends on the nature of the legal good and the intensity of interference with it. Where interference with the right is socially acceptable, the consent of the authorising officer shall exclude the unlawful conduct of the offender.

In other cases, the consent of the owner of the good is merely a factor affecting the penalty.

Summary

This analysis of the criminal code provisions and the views of the doctrine of criminal law leads to the conclusion that the consent of the authorising officer to intervene in the legal right requires compliance with the conditions for the effectiveness of consent, which are related in particular to the requirement of informed consent.

The consequence of agreeing to interfere with the legal interests depends on the nature of the legal good and the intensity of the interference. If interference with the right is socially acceptable, the consent of the rightholder excludes the wrongful conduct.

In other cases, the consent of the holder of the goods is merely a factor affecting the penalty.

Summary

The above analysis of the forecasts of the Criminal Code and the views of the criminal law doctrine lead to the conclusion that giving a legally meaningful consent to an interference with a legal good requirements that the dissomer fullfil the conditions of effectiveness of the consent, which are connected in particular with the requirement of giving the consent knowledge.

The consensus of giving consent to an interference with a legal good, grants on the type of legal good and the intensity of the interference. If the interference with a legally protected good is socially acceptable, the assent of the owner of the right excludes the unlawfulness of the perpetrator's act.

In other cases the consensus of the consessor of a good constitutes only a circumstance affecting the penalty.