POLAND Law and Practice Contributed by: Tomasz Konopka, Katarzyna Randzio-Sajkowska and Jakub Kocuba, Sołtysiński Kawecki & Szlęzak
being committed when it could have been prevented if the body or representative of the collective entity had applied the 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 rel - evant company, the liability expires. However, the court might impose an interim prohibition of such transformation to prevent a company from avoiding liability in this way. In addition, under Article 24 of the Fiscal Crimi - nal Code (FCC), a legal entity, such as a compa - ny, should be liable in whole or in part for a fine imposed on the perpetrator of a fiscal offence if the perpetrator is a substitute for that entity con - ducting its affairs as a proxy, manager, employ - ee, or acting in any other capacity, if the entity obtained or could have obtained any financial benefit from the committed fiscal offence. The Polish legal system does not provide for specific ways of defence. In general, the defence in this type of offence are the same as in any criminal case. Typically, it is aimed at proving that the conduct in question does not fulfil all the statutory elements of the offence – ie, both objective and subjective characteristics. However, a well-functioning compliance pro - gramme might be a solid defence against the above offences (especially those described in 2.1 Bribery and 2.2 Influence-Peddling ). A compliance system is helpful in cases of actions contrary to the law that harm the interests of public offices (the State Treasury) or collective 4. Defences and Exceptions 4.1 Defences
entities. A frequent problem that arises in crimi - nal proceedings is the lack of internal regulations clearly laying down the procedures and scope of duties, as a result of which it is difficult to show the actions or omissions of the party. 4.2 Exceptions As the Polish legal system does not provide for specific defences, there are no exceptions in this respect. 4.3 De Minimis Exceptions Polish criminal law provides for some exceptions in bearing criminal liability, depending on the cir - cumstances of a given case. First of all, whoever acts with the purpose of performing an economic experiment that is expected to yield results of a significant cogni - tive or economic value – and whose expectation of achieving them, purposefulness and method of performing the experiment are well founded in the light of contemporary knowledge – is not committing a crime. Secondly, whoever acts with the purpose of averting immediate danger to any legally pro - tected interest, if the danger cannot be other - wise avoided, and the sacrificed interest repre - sents a lower value than the interest that is being salvaged, is not committing a crime. Moreover, if the perpetrator of an offence has voluntarily redressed the full damage, the court may apply an extraordinary mitigation of the penalty or even waive its imposition. As regards fiscal offences, a mechanism of “active repentance” is in place. A perpetrator who notifies enforcement authorities of the rele - vant circumstances concerning the offence (par - ticularly persons assisting in the offence com -
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