The identity of the prohibited act in substantial and procedural criminal law (remarks concerning the judgment issued by the Court of Appeal in Katowice on 12 November 2009, II AKa 277/09)

Czasopismo Prawa Karnego i Nauk Penalnych Rok XXII: 2018, numer 3
Journal of Criminal Law and Penal Studies Volume XXII: 2018, No. 3

Milena Gawrol - Ph.D. candidate, Jagiellonian University, Chair of Criminal Law; trainee in the National School of Judicary and Public Prosecution

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Keywords

social harmfulness of a prohibited act, appeal proceedings, identity of a prohibited act

Summary

The commentary concerns the issue of the identity of the prohibited act in substantive and procedural meaning. The main conclusion set forth in this study is that it is not possible to presume that the accused is at the same time guilty and innocent of a crime constructed by applying the institution of the regular concurrence of provisions. Such a conclusion, contrary to the principles of logic, should lead to a reversal of the appealed judgment regardless of the limits of the appeal. The article indicates the possible solutions for resolving this type of conflict. Moreover, it is emphasized that the social harmfulness of a prohibited act constitutes a secondary subject of evaluation and is irrelevant to the content of the judicial decision in the cases of absence of formal aspects of criminal liability.