SPRAWSTWO BEZ WYKONANIA CZYNU ZABRONIONEGO

Abstract

The conception of the participation form o f a crime proposed by J. Makarewicz does not answer many fundamental questions. The general stance of the Polish contemporary doctrine of criminal law is that neither incitement nor aiding and abetting is a participation form of a crime, but only a separate and independent type o f a prohibited act, the description o f which (apart from the characteristics typical of incitement or aiding and abetting) also includes the description o f the act to which the inciter has induced, or in which the aider and abettor offered assistance. The conception proposed by J. Makarewicz may be fully applied to the participation forms leading to either the actual commitment o f a crime (committed personally or in conjunction with another) and in a non-executed form (leading, supervising or ordering a crime). What still remains to be solved is a question what charges should be formulated in respect of a person who has supervised a prohibited act that was ordered, i f the “to-be” perpetrator, or performer of the act only realises the characteristics of the object, without realising (or showing) any characteristics of the subject part. In my opinion, one should never claim that the person supervising a crime has actually managed or supervised the realisation or performance of a prohibited act whose attributes always characterise the subject as well. Under the currently applicable laws, in such cases we could determine the instance of co-perpetration. This solution, however, is not free from imperfections. It is therefore suggested that the scope of article 18 para. 1 of the penal code should be extended on indirect perpetration as well.