Materialna cecha przestępstwa – słuszna koncepcja czy socjalistyczna naleciałość?
Material Feature of the Crime – a Valid Concept or a Socialist Taint?

Summary/Abstract: The social dangerousness of an act, as a substantive element of a crime, constitutes the meaningof a criminal prohibition and describes the negative social evaluation of a given behavior. Although,in general, its presence as an element of the dogmatic structure of the crime is positively evaluated,there are some critical voices of this presence. Opponents of including social dangerousness asan element of the structure of a crime justify their position mainly by the negative history of thisinstitution, the weakening of the protective function of the criminal law, the limitation of theanalysis of the procedural body and the lack of consideration of other factors in the assessment ofcriminal responsibility. However, it seems that the historical problems have been eliminated by theintroduction of statutory quantifiers that allow the examination of the degree of social dangerousness,as well as the protective function of the criminal law is not compromised, since acts with less thannegligible social harmfulness do not harm the goods protected by law in such a significant way as torequire state protection. In addition, the limitation of taking into account other circumstances closelyrelated to the offender, rather than to the act, reduces the possibility of abuse by the trial authority.Despite the absence of the presence of social dangerousness as an element of the dogmatic structureof the crime in other European countries, the material feature of the crime affects the rationalizationof criminal responsibility indirectly, so it is somehow present there anyway. Indeed, evil remainsan immanent part of the crime, regardless of whether it is decreed explicitly as a component of thecrime. Taking into account the functions of criminal law, it seems that, despite the doubts describedin the article, it is worth preserving social dangerousness as an element of the structure of the crime,not replacing it with the introduction of full procedural opportunism, involving the proceduralauthorities’ assessment of the desirability of criminal prosecution.

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