The Need to Amend the Provision of Art. 115 § 17 of the Penal Code. The Normative Definition of the Term “Soldier”

Abstract

The author analyses the normative definition of the term „soldier” from the provision of Art. 115 § 17 of the Polish Penal Code. The changing military reality and the creation
(next to land, sea, air, and special forces) of the fifth type of the Polish Armed Forces - i.e., the Territorial Defense Forces resulted in the introduction of Art. 115 § 17 of the PC hitherto „A soldier is a person performing active military service” with the reservation: „with the exception of territorial military service performed at the disposal”. Both the original wording of the legal definition of the term „soldier” (which until 01.01.2017 referred only to: „persons on active military service”) and the addition of the said limitation to it resulted in deepening (occurring from the very beginning of the introduction to the standard criminal law definition of the term „soldier”) of the impasse regarding the possibility of enforcing criminal, military liability against a soldier in active military service, which according to the legislator (expressed, among other things, in the justification to the Act of November 16, 2016, amending the Act on the universal obligation to defend the Republic of Poland and some other acts) is also a OT soldier at his disposal. This view, according to all regulations
concerning soldiers on active military service, should be considered incorrect.
The above thesis was formulated based on a dogmatic and legal analysis of the entirety of provisions regulating the issue of the formal status of an entity performing or performing active military service.