Norma sankcjonowana w prawie karnym. Zarys koncepcji
The Sanctioned Norm in Criminal Law: An Outline of the Concept

Summary/Abstract: This article constitutes the first part of an analysis of the normative structure of an offence in Polish criminal law. The study discusses the construction of the sanctioned norm, i.e. the first of the hierarchical norms jointly constituting the normative phenomenon of an offence. It is demonstrated that the sanctioned norm consists of two components: a fixed, statutory one, in the form of the elements of a prohibited act expressly specified in the statute, and a relative, applicational one, in the form of a carelessness requirement based on standards of care reconstructed in concreto on the basis of the characteristics of a specific case. Carelessness is a twin figure of the general clause, differing from it only in that it is not expressly articulated in the criminal statute. The sanctioned norm cannot therefore be established in abstracto, in isolation from the specifics of a particular case, and moreover it is not a legal norm, because it is always supplemented by extralegal criteria related to the nature of the particular conduct constituting the element in question. The study also explains that no subjective grounds of criminal liability belong to the elements of the offence, because they lack distinguishing features that would allow them to be captured within the elements. Conduct that is objectively identical may be voluntary or involuntary, intentional or unintentional, culpable or non-culpable. Consequently, it is established that the sanctioned norm is not a legal norm, is objective in nature, is not a norm of conduct, and can only be reconstructed in concreto.

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