THE OFFENCE OF IDENTITY THEFT IN THE POLISH CRIMINAL LAW (ARTICLE 190A § 2 OF THE PENAL CODE) (PART ONE)

Abstract

Purpose: the main purpose of the paper is to present the analysis of the statutory features of the offence described in Art. 190a § 2 of the Polish Penal Code which consists in the impersonating another person and is known as theft identity. Methods: in order to achieve the above indicated purpose mainly the dogmatic method was applied. Results: art. 190a § 2 describes a special type of fraud the core of which is the impersonation of another person with the use of that person’s image or personal data in order to cause to the victim damage or injury. The offence is a formal one (no result is required); it is committed at the moment when the offender impersonated the victim or pretended to be the victim; it is irrelevant whether the intended damage/injury was really inflicted by the offender. The misdemeanour is a common one and can be only committed with the directional intention (dolus coloratus). Discussion: while the introduction of the offence of identity theft into the Polish Penal Code should be approved, some doubts should be raised referring to the placing of the offence in Chapter XXIII (“Offences against freedom”), the range of its mens rea (which is limited to the direct intention) and the maximum punishment for the aggravated type.