Przestępstwo nielegalnego wywozu zabytku za granicę (art. 109 u.o.z.)

Abstract

In the text have been taken the question of the crime of illegal removal of a monument abroad. Its issue is defined in art. 109 of the Act of the protection and care of monuments (further: a.p.m.). Its features were analyzed in basis on the sources of universally binding law, views expressed in the doctrine and judicature. The scientific narration leads through: the historical framework of the considerated problem; subject of protection; the objective side, i.e. the psychological relationship of the perpetrator to the committed act, which in the analyzed issue may have an intentional or unintentional form; the subjective side, including the issues of the executive subject of the act - the monument, the removal (i.e. displacement) of the monument beyond borders of the country and the non-return (i.e. non-displacement) of the monument “back” to the territory of Poland, the question of the territory of the Republic of Poland; the object - the perpetrator who in the case of the removal abroad of the monument is common in the case of non-return it is individual; the forfeiture of a monument that may be ruled by a court, even if the monument is not the perpetrator ownership. It has been postulated: a) adding to the framework of art. 109 a.p.m. the “§ 2” which reads as follows: in the case of lesser importance, the perpetrator of the act specified in § 1 or 2 shall be subject to a fine or the penalty of restriction of liberty, and “§ 5” which reads as follows: the perpetrator of the crime specified in § 1–2 is not subject to the penalty, who voluntarily returned the monument to the territory of the Republic of Poland before the initiation of criminal proceedings; in the event that the return is made later, the court shall apply extraordinary leniency, and even may withdraw from its imposition; b) the repeal of art. 109 § 4 a.p.m. on due to its overly repressive nature.