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Title: Problemy kontroli formalnej aktu oskarżenia wniesionego przez oskarżyciela publicznego w polskim procesie karnym
Authors: Zagrodnik, Jarosław
Keywords: Prawo karne procesowe; Oskarżenie - kontrola
Issue Date: 2008
Citation: Problemy Prawa Karnego, T. 26 (2008), s. 135-156
Abstract: The standardization of the issue of the formal control of an accusation brought by the public prosecutor in Poland has long been the source of numerous controversies in the context of the penal trial. Although the very issue, in its current legal form, was regulated in a fuller scope than before, many aspects are still to be discussed. Building on the logical-linguistic analysis of the 337 art. of the 1 act in relation with the 93 art. of the 2 act of the penal code, one should take it for granted that the control of the formal conditions of an accusation in the trial system in question is done by the court’s chief, president of the faculty or the judge, relative to the division of duties in a given court. Referring to the very same method of the analysis of a legal text, additionally supported by the observations connected with the place art 337 of the 1 act of the penal code, in the systematization of the penal-trial act, one can assume that the right to get the accusation back in order to complete the formal requirements is given to the subjects in question only till the order of delivering a copy of the accusation to the person in question is performed. An unquestionable advantage of the current regulation of the formal control of the accusation deriving from the public prosecutor is specification of the formal requirements undergoing the control in the 337 art. of the penal code, allowing for an unambiguous statement that the court’s chief examines not only the fulfillment of particular formal requirements defined in the regulations concerning the accusation (art. 333, art. 334 or art. 335 of the penal code), but also the fulfillment of the formal requirements each letter submitted in the penal trial should relate to. De lege lata it goes without saying that the order of the court’s chief concerning the return of the accusation in order to eliminate the lacks is entitled the complaint to the appropriate court to recognize the case (the 337 art. of the 2 act of the penal code). Some doubts connected with the composition of the court recognizing complaints, on the other hand, should be dispersed on the assumption that the district court, in the trial system under discussion, acts as an appeal instance, and, as a result of it, taking for granted that it is the regulation of the 30 art. of the 2 act of the penal code predicting the composition of three judges that is used in this case. The biggest interpretative difficulties connected with the 337 art. of the penal code are observed in the case of the trial consequences of the negligence of the deadline to eliminate the formal lacks of the accusation, as well as the issue of the legal nature of that deadline. Although the hypothesis that the solution of the problems under investigation needs the establishment of the real picture of relations between the content of the enforced regulation of the lex specialis type and the general regulation, i.e. the 120 art. of the penal code is common and unquestionable, the literature lacks unanimity as to the evaluation of the relations between these regulations. Starting from a general statement that the scope of the usage defined on the basis of the general regulation, is narrowed down only in the case of those circumstances or behaviours predicted by the regulation modifying it, as well as referring to the analysis of the scope of standardization defined in the 337 art. of the penal code, one should approve of the position according to which it is the regulation of the 120 art. of the 2 act of the penal code that is the legal basis of the definition of the effects of the violation of a 7-day deadline to eliminate the lacks of the accusation. It means that the negligence of this deadline by the public prosecutor evokes the inefficiency of the accusation. The evaluation of the violation of the very deadline implying the indicated consequences in the categories of the conditions of the acceptability of the penal trial leads to a fairly obvious statement that the very negligence generates the trial obstacle connected with a specific trial system in the form of the lack of the complaint of the entitled prosecutor. What is important in the case of the nature of the deadline to eliminate the formal lacks of the accusation is the fact that the rational and appropriate systematisation and classification of trial deadlines is provided by a classification aiming at placing deadlines of the same fundamental feature within the frame of one category. Accepting this point of view, it can be stated that what decides about the classification of the deadline as peremptory is not only the fact whether it was called like that, but also if its violation evokes the effect of peremptoriness in the form of the inefficiency of the trial activity. It seems that, from this perspective, one can defend the statement that the deadline to eliminate the formal lacks of the accusation, having, apart from certain additional features proving its specificity, the attribute of peremptoriness, is peremptory in nature. The scale of problems the interpreter faces in connection with the definition of the trial consequences of the negligence of the deadline to eliminate the formal lacks of the accusation and the establishment of the nature of this deadline induces an opinion that de lege ferenda should be expected to be taken over by the legislator of an explicit opinion on the issues discussed here.
ISSN: 0208-5577
Appears in Collections:Artykuły (WPiA)

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