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Monitor Prawa Handlowego

no. 5/2013

Debt collection as a form of stalking under Art. 190a § 1 of the Criminal Code

Grzegorz Grupa
Autor jest doktorantem w Katedrze Prawa Karnego na Wydziale Prawa i Administracji Uniwersytetu im. A. Mickiewicza w Poznaniu oraz aplikantem adwokackim w Wielkopolskiej Izbie Adwokackiej.
Abstract

Th e off ence of stalking under Art. 190a of the Criminal Code merits an in-depth analysis for a number of reasons, including the actual incidence of the phenomenon, its serious consequences for the victims, and the fact of its relative obscurity in Poland. What is particularly interesting, and has rarely been refl ected upon, is whether stalking may occur in the course of poor debt collection practices. Surprisingly, there is no separate monographic discussion of the issue, even though a cursory analysis of the elements of the article 190a off ence reveals a multitude of business-related aspects, including enforcement of debtors’ unpaid liabilities. Th is topic will make up the bulk of this work. Firstly, the general conceptual framework of stalking will be presented, including the origin of relevant Criminal Code sanctions. An analysis will then be carried out of the elements of the tort of stalking. It will be followed by a detailed discussion of the legally permitted boundaries of debt collection activities, including presentation of criminal liability risks involved in those activities as they relate to the CC article 190a off ence. Beyond doubt, as the law stands now, debt enforcement practices which are overly forceful may be perceived as the off ence of stalking. Th at being said, much depends on the context, the intensity of a specifi c pattern of conduct, and the person engaging in such conduct. With this in mind, a clear distinction should be made between what is an economically desirable collection eff ort (an activity that is, aft er all, legally permitted in and of itself) and the situation in which the collector patently abuses his position in the enforcement process and, by acting in a manner that is too oppressive, tries to harass the debtor out of malice or make him suff er unreasonable losses. Accordingly, it is only when the collector’s conduct is overly rigorous, inappropriate for the situation, and clearly unsympathetic that it may be considered a stalking off ence under Criminal Code article 190a § 1.