According to the current state of the law where a member of the board of directors of the company is charged with committing fiscal criminal offence, The investigating authority must also be liable to the company on whose behalf, with its knowledge, the member of the board of directors acted if the conditions indicated in the Tax Penal Code (kks) were met. In this way, the legislator wants to safeguard the interest of the Treasury in the event of the unsuccessful execution of the fine and the costs of proceedings.
one of the basic principles of criminal law is the one concerning criminal liability, according to which only a natural person can bear criminal liability.
The exception to this principle is a specific institution of tax criminal law in the form of ancillary liability, which is a specific property liability of persons (entities) designated by law. third, who are not directly responsible for the crime committed by the perpetrator.
It should be stressed that the institution of auxiliary responsibility does not apply if the perpetrator commits fiscal misdemeanour and refers only to tax offences.
Meal liability, as stated Article 24(1) kks, can be imposed on a person (entity) third after the conditions laid down in that provision have been fulfilled. First of all, an additional liability may be imposed on a natural person, a legal person or an organisational entity without legal personality, whose separate provisions confer legal capacity if the perpetrator of the prohibited act acted as his/her deputy, proxy, administrator, employee or acted on behalf of that person (entity).
For the protection of the interests of the Treasury
As per content Article 24(1) kks for fines imposed on the offender fiscal criminal offence a natural person, a legal person or an organisational unit not having legal personality, whose separate provisions confer legal capacity if the person responsible for the criminal offence is the deputy of that entity who conducts his or her affairs as a proxy, manager, employee or acting in any other capacity, and the replaced entity has received or was able to return from the person concerned fiscal criminal offence any asset benefit.
In addition, please also indicate section 2 that provision in which the legislator provides for application section 1 in relation to the collection of the monetary equivalent of the loss of objects.
Then Under section 5 that provision, the legislator provides that, irrespective of the imposition of auxiliary liability, the court shall require the person who has obtained the asset benefit to repay it in full or in part to the State Treasury or local government.
This does not concern the property benefit to be recovered to another eligible entity.
It should be stressed that the aim of the legislator when introducing this solution to the Act was to protect the interests of the Treasury. In a situation where the perpetrator of the offence is absolved of responsibility, responsibility shall be transferred to the persons(s) indicated in the legislation.
It should be noted that if the conditions contained in the box are met, the use of an auxiliary liability institution is mandatory.
As per content Article 155(7) kks to the indictment of the prosecutor or the financial investigation authority shall attach a request for additional liability if the basis for such liability has been established under Article 24(1) and 2, as well as a request for a specific entity to return to the State Treasury or local government unit the property benefit obtained from fiscal criminal offence the accused person, if the grounds for imposing such an obligation have been established, indicated under Article 24(5), attaching to these conclusions evidence relating to them.
These applications shall be annexed to the indictment together with the copies for the accused and the entities concerned by notifying them of the submission of those applications.
Application and nature of auxiliary responsibility
Meal liability, as stated Article 24(1) kks, can be imposed on a person (entity) third after the conditions laid down in that provision have been fulfilled.
First of all, an additional liability may be imposed on a natural person, a legal person or an organisational entity without legal personality, whose separate provisions confer legal capacity if the perpetrator of the prohibited act acted as his/her deputy, proxy, administrator, employee or acted on behalf of that person (entity).
Another aspect is the reference or the possibility of a person (entity) having any property benefit third.
As a result, the legislator excluded the possibility of being held in charge of auxiliary responsibility in a situation where the offender acted in his own name without being subject in any form to the entities indicated in the legislation.
It is also not possible to impose additional liability on the person(s) concerned third, who was replaced by the perpetrator without his knowledge, i.e. without awareness of the perpetrator. Only if there is awareness on the side of the person (entity) third, There must be awareness of being replaced by the perpetrator.
However, in the event of this awareness it is not necessary to show the fault of the person (the entity) third.
The application of auxiliary liability occurs when the execution of a fine and the costs of proceedings imposed on the perpetrator is ineffective. As a result, the use of an auxiliary liability institution is not equivalent to an automatic investigation of the abovementioned fine and costs.
Only if the enforcement procedure does not result in the requested result in the payment of the amount of the fine and the costs of proceedings against the offender, on the part of the person(s) third there is an obligation to pay the amounts mentioned above. This is due to subsidiarity, secondary responsibility.
In the course of the investigation, the person (entity) third has the status of ‘punished’.
The status shall be obtained at the time of the provision in which the information relating to the defendant, the alleged act, including the legal qualification, the person in charge of auxiliary responsibility and the basis for the supplementary responsibility is included.
Thus a person (entity) third becomes a passive party to tax criminal proceedings with rights and obligations.
From the time of the above order, the person (entity) third may be requested, may participate in the proceedings carried out, may submit evidence applications, as well as the right to make a request for final examination of the evidence collected.
In addition, the person(s) third She is entitled, among other things, to: demonstrate the absence of guilt fiscal criminal offence, command that the act committed constitutes fiscal misdemeanour, There is also no possibility of attributing blame to the accused.
It should be stressed that the person(s) third The staff member shall have the right to appoint a representative.
After all, food responsibility is not unlimited. In accordance with the will of the legislator, state budget units are exempt from any additional liability. An important aspect is the regulation that the food liability does not cease when the perpetrator dies, as well as when the perpetrator leaves the country.
Nevertheless, the food liability expires with the death of the person third who is a natural person, as well as in the case of payment of a fine and judicial costs or their execution by/from the convicted person.
The liability of collective entities for criminal offences should also be mentioned in the margin. This is a liability that concerns only collective entities, but the condition for its application is that the economic operator achieves an asset or non-liability advantage. Achieving a non-human benefit is one from the main differences between social responsibility and collective liability for criminal offences.
Author:
Piotr Bachnik
Attorney at the law firm Russell Bedford Poland, affiliated with the company since February 2016.
He holds legal education, graduated from the Faculty of Law and Administration of the University of Warsaw and graduated from the Italian and European Law School at the Warsaw University of Warsaw, together with the Faculty of Law of the University of Catania, Italy. In years 2014-2016 worked at Maminski & Partners.
He specializes in criminal law, judicial enforcement and civil law. He speaks English with legal terminology.