Prace nad kodyfikacją materialnego prawa wykroczeń w Polsce Ludowej (1960-1971)

Abstract

The book addresses the issue of codification works that were carried out in 1960-1971 on substantive misdemeanour law in People's Poland. The period of People's Poland covers the years 1944-1989, when Poland governed by communists was in the Soviet Union sphere of influence. The result of codification works, which were led under the supervision of the Ministry of Internal Affairs, was a Code on Misdemeanours of 1971. During the codification works on substantive misdemeanour law there were two contradictory concepts in conflict. The first one provided for misdemeanour law belonging to the system of administrative law. "The administrative" concept of misdemeanour law was supported by the Ministry of Internal Affairs, in structures of which collective boards judging petty offences were placed. This concept was expressed in the substantive misdemeanour law drafts of the first half of the sixties. Those proj ects treated misdemeanours in terms of acts threatening peace and public order and distorting organisational acts of administration. Their general part was developed in isolation from the provisions of criminal law. In 1963 communist authorities to ok a decision, which took account of the position of science representatives, who were in favour of perceiving misdemeanour law as a part of criminal law, to withhold codification works pending the draft of the new criminal code. The tightening of links between criminal and misdemeanour laws was fostered by reclassification of some existing offenses into misdemeanours in an operation effected under law on transfer in 1966. The Act on transfer served as a starting point for second stage of codification works, which were resumed in 1967. Those works were conducted on the basis of an assumption of close harmonisation of misdemeanour law with criminal law. During the second stage of codification works there was a process of a gradual adoption of several general parts of criminal law institutions onto the ground of misdemeanour law. Facing the takeover of another group of offenses into the group of misdemeanours, Polish substantive misdemeanour law has significantly changed. As a result, the existing term of "criminal-administrative law" was replaced by commonly used term "misdemeanour law: Prace nad kodyfikacją materialnego prawa wykroczeń w Polsce Ludowej (1960-1971) As a result of the second stage of codification works, the misdemeanour law, both in terms of content and external shape, became a part of widely understood criminal law. The differences between an offense and a misdemeanour, which were strongly exposed even at the beginning of the sixties, we re lost. The accepted concept of substantive uniformity of a misdemeanour and an offense contributed to bringing those two categories of punishable acts together. In the light of that concept, the difference between offences and misdemeanours confined to the "degree of social danger" ofthe act. Referring to the position ofthe doctrine, the 1971 codification authors approved of a mixed definition of misdemeanour, remaining in close connection with the definition of an offense, which was in use in the criminal law. As a result of including directives on penalty level and liability principles from the general part of the Criminal Code in the Code on Misdemeanours, the tights between traditional misdemeanours against public policy and administrative law weakened markedly. The measures created in the second stage of codification works were strongly influence s by the idea of misdemeanours polarisation and stratification of responsibilities. According to the idea which was imposed by political factors, severe repression was supposed to be limited to the most serious misdemeanours, whereas towards other offenders progressive leniency was provided, with non-criminal means replacing them. In order to add a more flexible dimension to the adjudicating on petty offences in the codification of 1971, a system of socio-educational impact measures, contradictory to traditional punishments, was introduced. Among a number of institutions geared towards substituting traditional punishments by non-repressive means, only the solution which provided abandoning initiating procedure in favour of dealing with the case by single action of the body revealing the misdemeanour proved to work well. The general part of codification of 1971 character was determined by provisions which were introduced aimed at severe treatment of serious offenders. They concerned mainly the offenders committing 'alcohol and hooligan' acts, which constituted the largest group being held responsible before boards judging petty offences. The Code on Misdemeanours treated a hooligan character of an act as aggravating circumstance, introducing at the same time several further punishment restrictions towards that category of offenders. The new anti -hooligan regulations were accompanied by restricting penalization of petty offences committed under the influence of alcohol, which sanctioned the existing practice of qualifying intoxication with alcohol as the decisive condition for the hooligan character of the misdemeanour. Insofar as the general part of the Code on Misdemeanours included also provisions favouring gentle criminal policy, the specific part was shaped in the repressive spirit. The selection of penalties for specific misdemeanours relied mainly on considerations of general prevention, with the effect that custodial sentence, though exceptional in principle, was much more often used. Those actions were accompanied by extending the scope of penalization by considering acts, previously not subjected to penalty, as misdemeanours. The provision introducing penalisation of public manifestation of prostitution and serous infringement of parental responsibilities, if as the result the minor committed a punishable act, was the most controversial among the science representatives and legal community. Among incorporated actual states in the general part of 1971 codification, traditionally put on the first place misdemeanours against peace and public policy declined in importance. Its character was determined mainly by misdemeanours against safety and order in communication and resulting from transforming the existing offenses into misdemeanours against consumers' property and interests. In spite of critical comments, which were confirmed in the practice of boards judging petty offences, fully dispositional towards the Ministry of Internal Affairs, the system of substantive misdemeanour law created as a result of the codification works should be viewed in a positive light. It constitutes a skilful combination of traditional typically repressive concepts of misdemeanour law with a Socialist idea of educational impact. Despite the collapse of the communist system, the Code on Misdemeanours of 1971 with no substantial changes still functions. However, the conditions to realise the assumptions accepted by codifiers of the substantive misdemeanour law were created only in the political transformation of 1990, as the result of which the adjudicating boards on petty offences were placed in the structures of the Ministry of Justice.