Social Inadequacy of the Act as the Basis of the Unlawfulness of Attempts

The aim of the study is to answer a question, what determines the unlawfulness of attempts. According to the author, attempts take place only if a behavior of a perpetrator either already has violated the precautionary rules that determine the content of the norm underlying the offense at the stage of accomplishment, or has not violated this rule, but situates on the foreground of its violation, creating a situation that allows immediate undertaking of behavior contrary to this rule. This means that the essence of the unlawfulness of attempts is the social inadequacy of the perpetrator’s behavior, because such behavior, evaluated from the ex ante perspective, creates a socially unacceptable danger to the specific legal good. This property of behavior is the material content of its illegality. Formally, a breach of precautionary rules or a direct attempt to breach them is a requirement of the violation of the norm, which underlies criminal liability for attempted crime. From the dogmatic perspective, behavior which has not met the above-mentioned condition, does not realize the element of any attempted crime in the form of ”a direct act done towards committing the offence” and for that reason such behavior cannot be considered as an attempt within the meaning of the Polish penal code.

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