NCJ Number
60853
Journal
ZEITSCHRIFT FUER DIE GESAMTE STRAFRECHTSWISSENSCHAFT Volume: 28 Issue: 2 Dated: (1978) Pages: 520-529
Date Published
1978
Length
10 pages
Annotation
THE CONCEPT OF SELF-DEFENSE AND ITS LIMITS IN POLISH CRIMINAL LAW ARE ANALYZED.
Abstract
AN ACTION WHICH HAS THE CHARACTERISTICS OF AN OFFENSE IS NOT CONSIDERED ILLEGAL IF IT IS COMMITTED IN SELF-DEFENSE. IN CURRENT POLISH JURISPRUDENCE THERE ARE TWO BASIC OPINIONS CONCERNING THE LEGAL JUSTIFICATION OF SELF-DEFENSE. THE FIRST GROUP VIEWS THE RIGHT TO DEFEND ONESELF AS ISSUING FROM THE INITIAL ILLEGAL ACTION OF THE ATTACKER. THE SECOND GROUP BASES THE SAME RIGHT ON THE FACT THAT THE SUBJECT OF THE ATTACK HAS A LEGAL RIGHT TO SOCIAL PROTECTION. THE REGULATIONS JUSTIFYING SELF-DEFENSE IN THE POLISH CRIMINAL CODE ARE EXAMINED INCLUDING THOSE COVERING THE EXISTENCE OF A REAL SITUATION OF DANGER AND THE ILLEGALITY OF THE INITIAL PROVOKING ACT. UNDER CERTAIN CONDITIONS (E.G., THEFT BY PUBLIC OFFICIALS DURING A SEARCH), SELF-DEFENSE MAY EVEN BE USED AGAINST GOVERNMENT AGENCIES. MOST EXPERTS, HOWEVER, CONSIDER INSTINCTIVE SELF-DEFENSE (WITHOUT THOROUGH KNOWLEDGE OF THE UNDERLYING SITUATION OF DANGER) A CONTRADICTION IN TERMS. AN ACT IS CONSIDERED UNNECCESSARY AND, HENCE, ILLEGAL IF (1) ALTERNATIVE ACTIONS (ESCAPE, CALLING THE POLICE) COULD HAVE ADEQUATELY DEALT WITH THE SITUATION, (2) IF THE INITIAL OFFENSE IS NEGLIGIBLE, (3) IF THE RESPONSE IS NOT PROPORTIONATE TO THE PROVOCATION, AND (4) IF A SITUATION OF DANGER IS NO LONGER OR NOT YET PRESENT. USUALLY SELF-DEFENSE THAT SURPASSES THESE LIMITATIONS IS ONLY PUNISHABLE IF IT IS PREMEDITATED. THE ARTICLE PROVIDES FOOTNOTES. --IN GERMAN. (SAJ)