KARCENIE MAŁOLETNICH – KONTRATYP CZY EKSKULPANT? UWAGI DE LEGE FERENDA

Abstract

The article is devoted to the assessment of the discipline of minors in terms of the criminal law. The offered considerations are focused on the future. In the author’s opinion, the use of non-pedagogical punishment in the educational process cannot be considered a legal activity due to the lack of the educators’ approval. The author tries to determine whether it is justified for the legislator to introduce into the legal system a justification of or an excuse for punishing minors. In his opinion the use of non-statutory justifications by the judicial authorities is unacceptable in a democratic state ruled by law – it is necessary to look for other instruments that would allow to exclude the criminal liability of parents or guardians who discipline their charges. Evidently, the use of nonpedagogical punishment is still common in the society. Therefore, disciplining minors is analyzed in terms of meeting the conditions of justification and excuse. The conducted system (a justification or an excuse), which, depending on the value of the child’s interests sacrificed by discipline, would exclude the unlawfulness of the disciplinary conduct or the guilt of a parent/guardian.