POLAND Law and Practice Contributed by: Tomasz Konopka, Katarzyna Randzio-Sajkowska, Katarzyna Stradomska-Balcerzyk and Michał Zieliński, Sołtysiński Kawecki & Szlęzak
The list of offences, the commission of which may cause the commencement of criminal proceedings, includes:
body or representative of the collective entity had applied required due diligence. It should be noted that the liability arising under this Act is non-transferable; that is, in the case of a merger, division or restructuring of the relevant company, the liability expires. However, the court might impose an interim prohibition of such transformations in a com - pany to prevent it from avoiding liability. It should be emphasised that it follows from experi - ence to date that the law enforcement bodies do not commence proceedings in every case in which such a possibility arises. The Ministry of Justice statistics show that only a couple of dozen proceedings of this type are commenced a year. This figure is very low, particularly taking into account the fact that more than 10,000 people are sentenced each year for commit - ting business crimes. In addition, under Article 24 of the FCC, a legal entity (eg, a company) should be liable in whole or in part for a fine imposed on a perpetrator of a fiscal offence, if the perpetrator is a substitute for that entity conduct - ing its affairs as a proxy, manager, employee or acting in any other capacity, if the entity obtained or could have obtained any financial benefit from the commit - ted fiscal offence. 1.6 Sentencing and Penalties The court imposes the punishment at its own dis - cretion, within the limits prescribed by the law. It is obliged to observe that the onerousness of a pen - alty does not exceed the degree of fault, taking into account the degree of social harmfulness of the act and taking into consideration the preventative and educational aims it is to achieve with regard to the sentenced person, as well as the need to develop the legal awareness of wider society. The CC provides for the general guidelines that state that, while imposing a penalty, the court takes into account, in particular, the perpetrator’s motivation and manner of conduct – eg, the type and degree of the violation of the perpetrator’s duties, the type and the extent of negative consequences of the crime, the characteristics and personal conditions of the perpe - trator, the perpetrator’s way of life prior to the commis -
• mismanagement; • public corruption;
• corruption in business; • credit and subsidy fraud; • money laundering; • crimes related to making repayment of creditors impossible and reducing their satisfaction; • failure to file a bankruptcy petition on time; and • insider trading. Numerous other offences are specified in other pieces of legislation that regulate specific areas of economic activity. Conditions for Corporate Liability A condition for initiating proceedings against a com - pany is that a legally binding and final guilty verdict against a person acting in the name of that company has been established. There are two other instances when proceedings against a company may be com - menced: a verdict that conditionally discontinues criminal proceedings against such an individual, or a verdict that discontinues criminal proceedings by stating that, even though the crime has been com - mitted, the perpetrator cannot be punished. Criminal personal liability always comes before quasi-criminal corporate liability. As from 1 September 2022, there is an exception to the above rule. Collective entities may be held liable for environmental offences committed by their rep - resentatives without the prior requirement of a final conviction of the offender. Liability on the basis of the ALCE may be imposed in the event that one of the following is proven: • at least a lack of due diligence in the choice of the person representing the entity, who is at the same time the perpetrator of an offence; or • the defective organisation of the company, which did not ensure avoidance of the commission of an offence, when it could have been prevented if the
231 CHAMBERS.COM
Powered by FlippingBook