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Title: Proces kryminalny w miastach Małopolski XVI-XVIII wieku
Authors: Mikołajczyk, Marian
Keywords: prawo procesowe; postępowanie karne w Małopolsce
Issue Date: 2013
Publisher: Wydawnictwo Uniwersytetu Śląskiego
Abstract: Polish towns were located almost exclusively on the basis of a Magdeburg law or its varieties: a Środa or Chełmno law. Accordingly, the basic sources of the court law in these towns were Zwierciadło saskie and Weichbild magdeburski with comments (voices) added to them later on. Sometime later it was undoubtedly Carolina known in Poland above all in the form of the adaptation of Bartłomiej Groicki from 1559 that had a great influence on the municipal material and trial criminal law. A big role in the shaping of a process law was also played by lawyers’ works dealing with the municipal law appearing above all in the 16th century. However, the municipal law (including the criminal trial) developed mainly in the course of practices next centuries. That is why the studies on the history of the procedure used in towns concentrate above all on the practices of the judiciary described and retained in municipal court books. The aim of the studies is to get to know the municipal procedure, trace its course of action and examine particular institutions. The establishments made should allow for answering the question if municipal proceedings in criminal cases maintained a traditional, medieval, complaint-contradiction nature or were dominated by newer elements derived from the inquisitive trial. As it turns out, the procedure used in Polish towns did without investigation in general. It was replaced by single, often informal, preparatory actions, frequently conducted by the prosecutor to be. Thus, the proceeding was basically purely judicial and initiated ex officio in exceptional cases. The rule was an initiative of the subjects “from the outside”. However, apart from a traditional private complaint, a public complaint was playing a more important role, made by a special office worker (an instigator). The trial comprised clearly identified trial parties. Sometimes the accused used to make use of the defense attorney’s help. Also, the defense attorneys were ascribed to the accused ex officio (especially in bigger towns). The parties played an important role in the evidence proceeding, e.g. when nominating the witnesses or preparing questions to be answered by them. Still, a key role was played by the evidence oath of both trial parties, especially the accused. What was an important element of the proceeding was the parties’ arguments, starting from a complaint made by the plaintiff. The parties also tried to use the appeal measures (though usually in vain). The traces of the activity of a plaintiff party can even be observed in an executive proceeding, e.g. in the form of granting a pardoning to the accused in terms of execution. Despite an increasing role of writing in the form of an accurate protocol of action undertaken, the oral trial was retained. The proceeding was also open not only as regards the parties, but also the audience.However, apart from numerous elements of a complaint-contradiction trial, other issues associated with the inquisitive trial were also revealed. Many actions were taken by the court ex officio, paying no attention to the initiative of the parties. One should also underline a very typical concentration on the person of the accused. The attempts were made to gain testimony from them. The voluntary testimony was not enough, and tortures were also often used. In spite of a big role of the oath, the main aim of the trial was not to free the accused from charge, but to prove them guilty. When it comes to criminal cases, many restrictions existed concerning the use of appeal measures. Probably not all restrictions of the complaint and contradiction nature should be connected with the influence of an inquisitive procedure. Some of them, e.g. a limitation of the law to defense in the case of catching a criminal red-handed, were surely of a medieval origin. Probably it was assumed that if the case is obvious, complex procedures and trail guarantees are not necessary. All in all, one can speak of a certain mixture of the elements of a traditional complaint- contradiction trial and newer solutions of an inquisitive nature now and then. It was not a mixed trial yet. It lacked in this case any kind of arrangement leading to a separated inquisitive preparatory proceeding and dominated by complaint-contradiction elements of a proceeding in front of the court. Besides, it seems that the complaint-contradiction elements maintained predominance while the borrowings from the inquisitive procedure were rather peripheral and technical in nature. They facilitated the proceeding and decision-making, however, they did not determine the nature of the whole trial. Thus, we would be able to consider the municipal criminal trial of the early-modern times the complaint-contradiction trail, only enriched with some modern elements of an inquisitive origin, which, obviously, does not exclude the existence of the exceptions to this rule.
ISBN: 9788322621264
Appears in Collections:Książki/rozdziały (WPiA)

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