Abstract

This study presents a dogmatic analysis of the features constituting the prohibited act of an abuse of power by a public official (Article 231 of the Polish Criminal Code) in the context of criminal liability for violations of law in public procurement procedures. The author addresses doctrinal and jurisprudential doubts over whether exceeding authority or failing to perform a duty under this provision constitutes conduct that violates the essence of official duties and the principles of proper management. It is argued that invoking the essence of official duties and general rules of conduct of an official is permissible only when a general norm regulating an official’s competences allows for the derivation of an unambiguous command or prohibition of a specific action. Furthermore, in the debate over whether the features of this offence can be fulfilled through the actions of public officials in the sphere of public property management, the author allows for this possibility, provided that the abuse of authority or the failure to perform a duty occurs within the sphere of public duties - those related to the protection of the common good. Consequently, the author accepts the applicability of Article 231 of the Criminal Code to the conduct of public officials acting on behalf of the public ordering party, while emphasising that the subject of liability cannot be decisions made on the basis of non-codified rules of conduct appropriate for commercial transactions.