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Corruption in the Polish legal system – Part II

Tomasz KonopkaBorys D Sawicki
Part 1 on this topic covered the penalisation of corruption in the Polish legal system in the historical context, and presented key regulations applicable to corruption at the public level. In this issue, we will focus on regulations pertaining to corruption at the private level.

The general aim of the latter regulations is to protect proper and fair economic circulation, in which fair rules of economic exchange are applied and observed and where commercial decisions are made taking into account the economic interests of the relevant party. In turn, the individual aim is different for each regulation. In the case of provisions penalising the so-called corruption of managers, the aim is to protect the entity against decisions or actions, which may bring about damage to that entity. Provisions penalising corruption of creditors, highlighted further herein, aim at protecting creditors and maintain fairness and timeliness when processing claims.

The regulation included in Article 296a of the Polish Criminal Code is referred to as corruption of managers, because at the time of its introduction to the Polish Criminal Code in 2003, it applied to managers and persons with material influence over the decision-making process. The name has been retained even though the scope of application of the provision has been extended. Following the amendments of 2008 aimed at aligning the provision with the Council Framework Decision 2003/568/JHA of July 22 2003 on combating corruption in the private sector (OJ L 192, page 54), the provision now also applies to any employees or persons (referred to as qualified persons within this article) performing work based on civil law contracts.

The law penalises qualified persons demanding or accepting a financial or personal benefit or the promise of either in return for: (i) abusing the authority granted to them; or (ii) failing to perform an obligation, which could inflict material damage to the entity, constitute an act of unfair competition or constitute an unacceptable act of preference for a buyer or a recipient of goods, services or performance.

The meaning of damage in the regulation includes both losses (damnum emergens) and lost profits (lucrum cessans). Acts of unfair competition are indicated in the Unfair Competition Suppression Act of 1993. An unacceptable act of preference for a buyer or recipient of goods, services or performance means a behaviour which is contrary to the applicable provisions of law, internal regulations of the relevant entity (by-laws) or general duty of care with respect to entrusted property or business (such duties that may arise, for example, from a management contract or other similar arrangement between a relevant entity and a qualified person).

The offence is a formal one, which means that it is committed upon a mere demand or acceptance of a financial or personal benefit or the promise of either.

The law equally penalises the behaviour of the qualified persons and of those who offer a financial or personal benefit, or promise it to the former. However, unlike the qualified persons, the offering party may evade punishment if, once the benefit or its promise has been accepted, they: (i) informed the authorities responsible for prosecuting criminal offences about the incident; (ii) disclosed all the circumstances of the offence; and (iii) all that happened before the authorities learned about the offence. The purpose of the later regulation is to break collusion between the culprits.

Article 302 sections 2 and 3 of the Polish Criminal Code penalise another type of corruption activity at the private level, referred to as corruption of creditors. According to the provisions in question, the penalised activity consists in giving or promising property benefits to a creditor in return for actions detrimental to other creditors, in connection with bankruptcy proceedings or proceedings preventing bankruptcy (such as special recovery proceedings under Polish law). On the creditors side, the offence consists in demanding or receiving property benefits in return for actions detrimental to other creditors.

Tomasz Konopka and Borys D Sawicki

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