Zanedbání povinné výživy

This study constitutes an essential part of a greater monography. The author has undertaken the task to treat this matter in a most complex way. The published part comprises three chapters containing a detailed juridical analysis of the features of the crime of neglect of the duty of maintenance (sec. 213 of the Penal Code) and of the effective repentance (sec. 214 of the Penal Code). On the contrary have been omitted chapters on criminality, on prevention, on imposition and execution of penalties and on connected procedural problems. I. The chapter one deals with general problems of penal protection of the duty of maintenance. The first problem is whether penal coercion is at all necessary for the fulfilment of the duty of maintenance. The author examines the single conditions of penal coercion, that is the general degree of the act’s danger to the society, the question whether one could not do with some more appropriate form of executory exaction, whether the threat with penalty is a means effective enough and whether punishment does not bring along more damage than useful effects. The division two of the chapter in question contains the description of the historical development of the duty of maintenance on the territory of the Czechoslovak Socialist Republic. The division third contains considerations about the systematic insertion of the penal provision concerning the duty of maintenance and about the relation of this provision to other provisions. Some crimes can serve as instruments in relation to the neglect of the duty of maintenance, as far as other crimes are concerned, the neglect of the duty of maintenance can be the instrument by which they are perpetrated. The third group is constituted by such crimes, the object of which includes the duty of maintenance. Among subsidiary provisions it is necessary to mention in the first place the section 20 of the Law on Local People’s Courts. Problems concerning the misdemeanours according to the mentioned provisions are treated in the following part of this study, along with the analogous questions concerning the crime of neglect of the duty of maintenance. II. The chapter two is divided, as usually, according to the groups of the features of the crimes in question. The primordial object of the neglect of the duty of maintenance, according to the provision of section 213 of the Penal Code, is constituted by juridical relations which exist between the person liable for the duty of maintenance and the person, who has the right to be maintained. Health and education of the entitled person constitute only a secondary object. The terminology of the Penal Code (“or provide for”) is inspired by the Civil Code of 1811. The term “legal” duty to maintain is to be interpreted in the sense of a duty based on family law, as only such relations deserve special penal protection. Are protected by penal law the following duties of maintenance: of parents towards children, duties based on relationship, between spouses, rights of the unmarried mother against her child’s father who is not her husband, duties based on adoption. On the contrary, other similar relations are not protected by penal law, or are protected only indirectly. The sphere of rights, protected by penal law, is however too wide. The author of the study deals further with the origin, the content, the modification and the extinction of the duty of maintenance. Many laws limit penal protection to duties “fixed by the Court”. The author does not consider such a limitation as being favourable. The amount of the duty is determined also by the “capacities and possibilities” of the liable person. In family law there are cases, where duties are based on fictive possibilities of the liable person; penal law can however not take into consideration such fictions. There remains the question what sort of labour the liable person has to execute in order to fulfil the duty of maintenance; collisions of interest appear in that respect. The amount of the maintenance is changed “ex tunc”, if circumstances have changed. The liable person does not incur any punishment when paying less, adequately to the changed circumstances. It is necessary to consider in a certain respect also the fulfilment “in natura”. The objective features of the crime (division two) consist in not fulfilling or in evading the fulfilment of the duty to maintain. It is therefore necessary to explain beforehand what is to be understood by “fulfilment” in the sense of the section 213 of the Penal Code. It is necessary to distinguish the extinction of the relation of maintenance as such from the extinction of the right to the fulfilment of single rates. The author deals then in details with the different modes by which can become extinct the right to the single rates; that happens principally by fulfilment, by the waiver of the debt, by settlement. A condition for penal liability is that there exists a real possibility of fulfilment; the duty of maintenance is infringed when the fulfilment does not correspond to the fixed sort, quantity and time; not every disagreement however, as far as these three elements are concerned, has for its consequence penal liability. The author resolves also the question what periods are to be counted within the period of penal activities (see the graph on page 49). The author deals then in greater details with continuation and duration, in a general way, as far as omissive crimes are concerned and in a special way, as far as neglect of the duty of maintenance is concerned. As for the difference between not fulfilling and evading the duty of maintenance, the author agrees essentially with the interpretation given by Jestřáb to this question, that evading constitutes the not fulfilling, accompanied by other acts, the aim of which is to render impossible the fulfilment, or at least to render it more difficult, to delay it. The provision on not fulfilling (section 213, par. 2 of the Penal Code) is subsidiary in relation to the provision on evading of the fulfilment (sec. 213, par. 2 of the Penal Code). Attached is a brief reference to other problems concerning the objective features of the crime in question (previous executory enforcement, the effect on the. material object of the attack, the causal relation). Culpability (division three) must relate first of all to the existence and to the amount of the duty of maintenance. The knowledge of the factual conditions of the existence or of the amount of the duty is not sufficient. The author takes note in this connection of the error concerning the so called extra-penal norms. Culpability must further relate to the acting; problematic is the nature of the relation which exists between the culpable infringement of the duty to work and the culpable infringement of the duty of maintenance. It is recommended to limit in the future penal protection to intentional cases only. The division four deals with the circumstances which warrant the application of a higher penalty (sec. 213, par. 3 of the Penal Code). Division five summarizes some questions of the general part in their relation to section 213 of the Penal Code; this concerns the danger of the act to the society, the attempt, the instigation and the assistance, the consent of the injured person, the circumstances excluding the act’s danger to the society. In this connection the author treats in greater details the problem of the unity of the act as far as omissive crimes are concerned. III. Chapter three is devoted to the special provision concerning effective repentance as far as the neglect of the duty of maintenance is concerned (sec. 214 of the Penal Code). The first condition for effective repentance is the fulfilment of the maintenance due, the second is the observance of the term for the payment to be effected (before the Court of the first instance began pronouncing its judgement) and the third, that the act had no permanently unfavourable consequences. The author deals in greater details principally with the problem, whether this sort of fulfilment is possible, after the judgement of the Court of the first instance had been annulled by the Court of Appeal; he tries to give more profound grounds for the recent practice which admits such a fulfilment.