Substitute Liability Clauses in Polish Criminal Law

Abstract

The basic aim of substitute liability clauses should be the extension of statutory elements of the subject (perpetrator) of the offence, so that it covers a natural person acting for someone else, in particular for an organizational unit. So, there is neither sufficient criminal law basis nor the need to build a separate formula for perpetration under the so-called substitute criminal liability. For this reason, the activity of the legislator, who outside the criminal code, in various acts creates substitute liability clauses in relation to common types of offences, should be assed negatively. As a result of this activity of the legislator, there is a danger of treating these clauses as separate types of offences, and therefore expanding the scope of criminalization, without any criminal policy justification. Such clauses may also without any justification restrict the scope of criminalization leaving actual perpetrator outside the scope of the elements of the offence.

The multitude of solutions used by the legislator in relation to the content of substitute liability clauses makes it difficult to inquire into their essence and is a source of interpretational doubts. Nevertheless, in each model of the substitute liability clause, in organizational units, it covers persons who, on the basis of organizational conditions of a given unit (formal or purely factual) are empowered to effectively manage (make decisions) regarding the conduct of a given case. This applies to permanent, general or generic empowerment or even empowerment to a single case. In entities in which the ownership is separated from the management of an organizational unit (e.g. in companies), criminal liability cannot be associated with the exercise of ownership rights.