Dobrowolność czynnego żalu związanego z usiłowaniem udolnym i nieudolnym (uwagi na tle uchwały siedmiu sędziów SN z dnia 19 stycznia 2017 r., I KZP 16/16)

The following article critically assesses the ruling of seven justices of the Supreme Court dating January 19, 2017. The crucial issue undertaken by this article consists in the assessment of the validity of the ruling of the Supreme Court which assumes an unsuccessful attempt in the cases of the lack of an object on which to commit a criminal offense and defines the “voluntariness” of active grief exhibited at the stage of attempting to commit a criminal offense. The Supreme Court assumed an objectivist conception in their interpretation of the phrase “lack of an object on which to commit a criminal offense”, thus assuming that what transpires is a successful attempt in the case where there was a lack of a particular object comprising the perpetrator’s intent, but there were other objects which could have become the objects of the crime. At the same time, however, the Supreme Court ruled that the premises of voluntariness resulting in impunity (Article 15 § 1 of the Criminal Code) did not apply, since the perpetrator did not abandon his intent to commit a criminal offense; it was only the object of it that did not fulfill their expectations. According to the author of the article, such a ruling allows to reach two contradictory conclusions. Thus, the author proposes a different conception of assuming successful or unsuccessful attempt with regard to an object on which to commit a criminal offense, as well as a model for assessing the voluntariness of the perpetrator in the cases of the lack of continuation of iter delicti.