Danger – definition of crime
Criminal Code and Article 160 protects life and human health besides in the pre-infringement phase. This provision describes the consequences of criminal offences, so it is essential to take work here. the existence of an nonsubjective possible hazard of failure of life or serious injury. The danger is to be specific, the legislator requires it to be a direct danger.
This directness should be understood either as an inevitable consequence of further life or health-threatening developments, or as a advanced probability of its occurrence (so decided by the ultimate Court of 26 January 2016. V KK 342/15).
A mark of human vulnerability to the direct hazard of failure of life or severe wellness injury referred to in Article 160(1) of the Code may be achieved in 1 of 3 ways: the introduction of a threat, its crucial increase, and, in the case of the guarantor, not having an effect on the offences of omission, by non-regression or reduction (judgment of 14 July 2011) III KK 77/11).
The scope of the obligations on the warrant must be defined in relation to the time point at which it operates, on the basis of the facts available to him. As regards this point, the conclusions on the scope of these obligations and dangers which may arise from their omissions (judgment of the ultimate Court of 8 June 2010) are to be drawn. III KK 408/09).
Exposure to danger and the component of direct danger at
If a given situational strategy is specified that at any time, without any human interference, it may consequence in identified effects in the form of failure of life or severe harm to the wellness of the victim, it is most reasonable to say that there has already been a condition of “direct danger” within the meaning of Article 160 (which must besides be referred to the mark referred to in Article 220(1) of the Code – which deals with the hazard of life or wellness of the worker, given the normative link between those provisions).
Therefore, if, as a consequence of the action of the perpetrator or, where a peculiar work is required to prevent the hazard of the legal goods afraid being put at risk, it arises by omission a situation characterised by the imminent occurrence, without further dynamizing, of specified a scale of threat to human life or wellness that there is already a “specific” threat to these legal goods, In the form of the anticipation of their infringement, it should be considered that there has already been a state of vulnerability to “direct danger” within the meaning of the abovementioned provisions (order of the ultimate Court of 6 May 2015). IV KK 33/15).
Individualisation of the victim
Assignment of work for the offence specified in Article 160(1) requires the individualisation of the victim, i.e. an indication of a peculiar individual who, as a consequence of an act (or omission) of the offender, has been in imminent danger of serious harm to wellness or failure of life. However, it is not essential to identify this person (judgment of 8 December 2011) II KK 177/11).
Consistent with the provisions of the Act in the event of vulnerability to and fulfillment of danger – cumulative coincidence of laws
Article 160(3) corresponds to the 1 who brings only unintentional direct danger failure of life or severe injury to health, and who through his involuntary behavior already causes the death of a man or severe harm to health another individual is liable under Article 155 (involuntary manslaughter) or 156 §2 (involuntaryly causing serious injury to health).
Thus, where danger is intentionally caused (Article 160(1) or (2), and death or injury to wellness – unintentionally (Article 155 or 156(2)), there is simply a cumulative overlap of the laws. Other apparent coincidence of the lawArticle 160 is so absorbed by another provision.
The offences referred to in Article 220 k.k. are of a nature Qualified types in respect of the corresponding types as defined in Article 160 k.k., by specifying in Article 220(1) k.k. the normative origin of the work of the perpetrator as a warrant of non-existence of effect, as well as by narrowing the ellipse of possible victims. There shall be an exclusion ratio between the types of offences referred to in Article 220(1) or (2) (leges speciales) and the corresponding types referred to in Article 160 (leges generales).
Therefore, if a fatal accident of a individual has resulted in a failure to comply with the work to guarantee the conditions of safe work, the criminal liability for the occurrence of an accident may be borne only by the individual under a circumstantial legal work to prevent the consequences, i.e. belonging to a group of individual offences as defined in Articles 220(1) and (2) of the Act. (judgment of 12 December 2012) V KK 64/12).
Danger – examples from case law
Perpetual petrol vapour inflammation not only brought about a life-threatening or health-threatening event of many people and property of crucial size fire, but at the same time exposed to a direct hazard of failure of life or severe harm to the wellness of circumstantial persons. Therefore, it was essential to adopt a cumulative qualification with Article 163 §1(1) of the Code and Article 160 §1 of the Code in Article 11 §2 of the Code. The provision of Article 163 §1 k.k. penalises the bringing of an event threatening the lives and wellness of many people or property in large sizes.
But what is different is the direct vulnerability of a peculiar person, and thus the immediate and real hazard of failure of life or serious injury to health (SA judgement in Katowice of 19 December 2014) II AKa 427/14).
If both the injury and the injury resulted from a crime involving causing a road collision Whereas the fact that, in the description of this act, qualified under Article 160(1) of the Code, there is no mention of material damage, but simply of creating a direct danger to the passengers of the vehicle does not mean, So that both material and intangible harm is not due to the crime for which the defendants were convicted (order of the SN of 12 June 2014) V KK 19/14).
The effect of the organization to the offence in question with Article 160(2) and (3) is not only to make a situation where Patient be in a position of direct danger to life or wellness without prior exposure, but besides to keep (not to reverse, not to reduce) the already existing level of this danger at a time erstwhile the work to act as a physician-guarantor has been fulfilled. Moreover, the crime is committed at the time of exposure, Even though the individual exposed has suffered no harm.
Preparation phase end of pregnancy procedure by cesarean cut, from which minute the conceived kid is protected by the provision of Article 160 k.k. due to the man, are not only method activities but occurring together: medical indications for the termination of pregnancy by an imperial cutting procedure, the improvement readiness of the kid to function independently outside the mother's body and the mother's readiness to undergo specified treatment (judgment of the Court of Appeal in Wrocław of 15 October 2008 II AKa 223/08).
Since both of the defendants were aware that you should be operated immediately, and multiple monites for surgical consultation remained unresponsive, they should take another decisive steps to undergo surgery. No immediate surgical consultation despite multiple orders from SOR doctors should consequence in immediate notification to the superiors (judgment of 26 March 2007 WA 17/07).
On the criminal liability of the doctor for putting the patient in danger: read here
