The Need for Compatibility of the Provisions That Regulate Exploitation in Polish Civil and Criminal Codes

Abstract

Exploitation is threatened with a civil law sanction (Article 388 of the Polish Civil Code), and additionally constitutes a prohibited act (Article 304 of the Polish Criminal Code). The parallel validity of the civil and criminal law provisions prompts us to consider their compatibility and differences (considering the specificity of the field of law). This author discusses the relation between „well-established” provisions of Article 388 of the Polish Civil Code (CiC) and Article 304 § 1 of the Polish Criminal Code (CrC), referring to the subjective circle of both regulations of exploitation, the premises for their application and sanctions provided for
by the legislature. In this context, particular attention has been paid to Article 304 § 2-3 of the CrC that results from a recent amendment of the Criminal Code. The author shows that the compatibility of the provisions regulating exploitation is desirable and that the existing differences should be harmonized by legislation. The author concludes that the provisions of Article 388 of the CiC and Article 304 of the CrC are not consistent. This undermines trust in the law and its protective function. The occurring contradictions cause, inter alia, the actual situation to be included in exploitation under Article 388 of the CiC, which is not an act penalized by Article 304 CrC. A special case is a situation where due to the expiration of the limitation period under Article 388 § 2 of the CiC, legal action is fully effective and irrevocable, while the punishability of the offence has not yet ceased (Article 101 § 1 point 4 of the CrC in connection
with Article 102 of the CrC). Article 304 § 2-3 of the CrC differs from the civil law exploitation regulation and does not constitute a logical and coherent whole with Article 304 § 1 of the CrC.