Dopuszczalne ryzyko i jego umiejscowienie w strukturze przestępstwa

Abstract

The subject of consideration of the author is the analysis of the penal law construction of the admissible risk and its localisation in the structure of offence. The compilation consists of two parts. The first part was devoted to the declarations of the representatives of the attainments and the Polish legislation in the domain of the construction. The author starts his deduction from the presentation of the conception of L. von Bar, then analyses the concept of admissible risk in the aspect of guilt detracted psychologically and normatively. He also presents a critical opinion about Polish literature concerning these conceptions. In the farther part of the consideration, he introduces his deduction showing the non-typical understanding of the discussed figure, considering in particularly the role of the rules of precaution as the antithesis of inadvertence and the balance of gains and losses resulting from risky activities. He also examines the conception of the initial legality of risky activities together with H. Welzel's theory of social adequacy. In the consecutive fragment, the author shows the double function of admissible risk, as assigned to it in never German literature. He also presents voices that negate in general the necessity of separation of this legal Iigure, Analysing the attainment of the Polish doctrine of the penal law, he perceives that the discussed construction was connected with risk as a circumstance that over rules overrules the social noxiousness of the deed or with risk as a contratype. In the final part, the author points at the differentiation of the form of admissible risk, which was done by the Polish legislation: the legitimate experiment has a contratype character whereas ordinary risk (everyday) is so far beyond statutory control, hence lega! discussion concerning its character and the position in the structure of offence.