When Debt Repayment Becomes a Criminal Offense Under Article 302 of the Polish Penal Code
I. Introduction: The Paradox of Criminalized Debt Satisfaction
Consider the following scenario: an entrepreneur operating a construction enterprise encounters financial distress. The firm maintains obligations to numerous creditors, yet possesses sufficient assets to satisfy only a portion of these claims. The entrepreneur elects to discharge the debts owed to a longstanding business partner—a building materials supplier with whom the company has maintained commercial relations for over a decade. On its face, this conduct appears not merely lawful but commendable: the debtor honors an obligation, fulfills a contractual commitment, and demonstrates commercial integrity. Yet under Polish criminal law, this very act constitutes an offense punishable by up to two years’ imprisonment.
Article 302 of the Polish Penal Code introduces a legal construction that, upon initial examination, appears to contravene fundamental moral intuitions. The provision criminalizes conduct that would ordinarily be regarded as socially desirable—namely, the satisfaction of legitimate debts. Comprehending the *ratio legis* underlying this statutory framework, however, requires a more nuanced examination of the mechanisms governing financial distress in commercial transactions. The provision reflects a sophisticated legislative judgment that, in circumstances of impending insolvency, the debtor’s freedom to allocate limited assets among competing creditors must yield to principles of equitable distribution.
II. Statutory Framework: Three Distinct Criminal Offenses
Article 302 encompasses three discrete offenses, unified by a common protective purpose: safeguarding the collective interests of creditors against conduct that undermines the principle of pari passu distribution:
Section 1 — Preferential treatment of creditors (favor creditorum)
Section 2 — Active bribery of a creditor (corruptio activa)
Section 3 — Passive bribery by a creditor (corruptio passiva)
Each offense protects the same legal interest—the equitable satisfaction of creditor claims—yet addresses distinct modalities of potential harm.
III. Preferential Treatment of Creditors: The Section 1 Offense
A. The Nature of the Prohibition
The offense of creditor preference rests upon a principle that, while counterintuitive, reflects sound policy considerations: when insolvency threatens, the debtor may not exercise unfettered discretion in determining which creditors to satisfy. The law demands that the debtor refrain from conduct that would exacerbate inequality among creditors beyond that inherent in the debtor’s financial distress.
The Court of Appeals in Wrocław articulated this distinction with precision in its judgment of November 5, 2008: “Between the state of threatened insolvency or threatened bankruptcy and the state requiring the filing of a bankruptcy petition, there exists a qualitative difference. The former state precedes the occurrence of the latter.”
This doctrinal clarification carries substantial practical implications. Article 302, Section 1 applies even when the enterprise merely approaches insolvency—formal obligation to petition for bankruptcy is not a prerequisite for criminal liability.
B. Objective Elements of the Offense
The actus reus assumes two alternative forms:
Satisfaction of obligations (spłacanie) — This element encompasses all forms of creditor satisfaction that diminish the debtor’s estate. As the Court of Appeals in Katowice observed in its December 14, 2016 judgment, “it is immaterial whether the debtor satisfies the creditor in whole or in part.” The concept embraces:
– Substitute performance (*datio in solutum*) pursuant to Article 453 of the Civil Code
– Novation of obligations under Article 506 of the Civil Code
– Transfer of assets in discharge of indebtedness
Provision of security (zabezpieczanie) — This encompasses the establishment of security interests for the benefit of selected creditors, including:
– Pledge or registered pledge
– Mortgage
– Security transfer of ownership (*przewłaszczenie na zabezpieczenie*)
– Assignment of receivables as security
– Financial collateral arrangements under the Act on Certain Financial Collateral Arrangements
C. The Minimum Creditor Controversy
Among the most contentious interpretive questions is the minimum number of creditors required for offense completion. A literal construction of the statutory text—which employs the plural form both for favored creditors (“satisfies or secures only some”) and for prejudiced creditors (“thereby acting to the detriment of the remaining”)—would suggest a requirement of at least four creditors.
The Supreme Court, however, departed from strict textual interpretation in its November 27, 2015 judgment, adopting a purposive approach: “The elements of the prohibited act defined in Article 302 § 1 of the Penal Code are also satisfied by one who, in circumstances of threatened insolvency or bankruptcy, being unable to satisfy all creditors, engages in the conduct described in this provision, thereby acting to the detriment of even a single creditor.”
This interpretive stance, while widely accepted in judicial practice, has attracted legitimate scholarly criticism as an instance of *interpretatio extensiva in malam partem*—expansive interpretation to the defendant’s detriment—which ought to be impermissible in criminal law. Practitioners must nonetheless recognize that courts will likely apply the Supreme Court’s construction.
D. “Acting to the Detriment”: Result Element or Conduct Characterization?
The phrase “thereby acting to the detriment of the remaining” constitutes one of the more contested aspects of Article 302, Section 1 interpretation. The prevailing view holds that this language does not constitute a classical result element requiring actual harm, but rather characterizes the nature of the conduct—its potential for causing prejudice.
As the Court of Appeals in Wrocław observed in its November 28, 2018 judgment, actual harm need not materialize. It suffices that the debtor’s conduct objectively creates a risk to the satisfaction prospects of remaining creditors.
This construction carries significant practical consequences: even where all creditors ultimately receive full satisfaction—perhaps due to subsequent improvement in the debtor’s financial position—the offense is complete upon the preferential treatment of selected creditors.
E. Exclusions from Criminal Liability
Not every instance of debt satisfaction amid threatened insolvency constitutes a criminal offense. Liability is excluded where:
1. The debtor satisfies priority creditors — As the Court of Appeals in Lublin held in its March 19, 1997 judgment, the “detriment” element is not satisfied when the debtor discharges obligations to creditors possessing statutory priority over others.
2. The conduct falls within ordinary course of business — Debt satisfaction constitutes routine commercial activity. Criminal liability attaches only when the debtor’s actions exceed the bounds of ordinary measures necessary to preserve the estate and maintain ongoing operations.
3. The debtor possesses resources sufficient to satisfy all creditors — Where the enterprise can meet all outstanding obligations but merely determines the sequence of payments, the offense elements are not satisfied.
4. The payment involves assets exempt from execution — Disposition of property excluded from enforcement proceedings does not prejudice creditors in any economically meaningful sense.
IV. Bribery of Creditors: The Section 2 and Section 3 Offenses
A. Active Bribery (Section 2)
Section 2 criminalizes the conferral or promise of pecuniary advantage to a creditor in exchange for conduct detrimental to other creditors. This constitutes a corruption offense—the functional equivalent of active bribery transposed to the domain of inter-creditor relations.
Subject of the offense — This is a general offense (delictum commune). The perpetrator may be any person: the debtor, another creditor, or even a third party bearing no direct relationship to the underlying obligation.
The actus reus comprises:
– Conferral of pecuniary advantage (actual transfer)
– Promise of pecuniary advantage (assurance of future benefit)
Critically, offense completion does not require that the bribed creditor actually undertake conduct prejudicial to others. The offense is formal in character—consummation occurs upon conferral of the advantage or communication of the promise.
Nexus with proceedings — The perpetrator’s conduct must bear a connection to bankruptcy proceedings or proceedings aimed at preventing bankruptcy. The latter concept now encompasses restructuring proceedings governed by the Restructuring Law of 2015.
This nexus does not require that proceedings be pending—it suffices that their initiation is, in the circumstances, at least probable.
B. Passive Bribery (Section 3)
Section 3 presents the mirror image of Section 2, criminalizing the conduct of a creditor who:
– Accepts an advantage in exchange for conduct detrimental to other creditors, or
– Demands an advantage for such conduct
Subject of the offense — This constitutes a special offense (delictum proprium). Only a creditor (or a person acting on the creditor’s behalf pursuant to Article 308) may be the perpetrator.
The scope of “advantage” — The legislature employed the term “advantage” in Section 3 without qualification, whereas Section 2 refers specifically to “pecuniary advantage.” Some scholars derive from this textual variance the conclusion that passive creditor bribery extends to the acceptance of personal (non-pecuniary) advantages.
This interpretation, however, invites justified skepticism. Construing passive bribery more broadly than its active counterpart would produce systematic incoherence—acceptance of a personal advantage would be criminal while its conferral remained unpunished.
Demand versus acceptance of a promise — A notable asymmetry exists between Sections 2 and 3: criminal liability attaches only to acceptance of the advantage itself, not to acceptance of a mere promise. By contrast, the mere demand for an advantage—even if unsatisfied—suffices for liability.
V. Mental Element: The Required Mens Rea
A. Preferential Treatment (Section 1)
The offense may be committed with either direct or oblique intent (dolus directus or dolus eventualis). The perpetrator’s mental state must encompass:
– The physical conduct (satisfaction or security provision)
– The circumstance of prejudice to remaining creditors
– Awareness of the distressed financial condition
A configuration is thus possible wherein the debtor acts with direct intent regarding satisfaction of the chosen creditor while simultaneously acting with oblique intent (accepting the possibility) regarding prejudice to others.
B. Active Bribery (Section 2)
This offense requires direct intent of a purposive character. The perpetrator must desire that the bribed creditor act to the detriment of others. Mere foresight of such possibility coupled with acceptance thereof does not suffice.
C. Passive Bribery (Section 3)
The prevailing scholarly view requires direct intent, though some authorities admit oblique intent in cases of advantage acceptance—where the perpetrator accepts the possibility that the received advantage constitutes payment for conduct prejudicial to other creditors. For the demand modality, oblique intent is excluded by the nature of the conduct.
VI. Concurrence of Offenses
A. Relationship with Articles 300 and 301
The creditor preference offense under Article 302, Section 1 does not constitute a special type relative to the offenses under Articles 300 and 301, notwithstanding certain structural similarities. The critical distinction lies in the nature of the prohibited conduct:
– Article 300 criminalizes diminution of assets to the detriment of creditors
– Article 302, Section 1 criminalizes the distribution of assets among creditors with prejudice to some
Notably, satisfaction of fictitious obligations does not constitute creditor preference but may instead satisfy the elements of Article 300, Section 1.
B. Relationship with Article 586 of the Commercial Companies Code
A perpetrator of the creditor preference offense who acts as a management board member pursuant to Article 308 will frequently bear concurrent liability for failure to file a bankruptcy petition under Article 586 of the Commercial Companies Code. These provisions protect distinct legal interests and may stand in real concurrence.
C. Cumulative Application with Corruption Offenses
By virtue of Article 308, cumulative application of Article 302, Section 3 and Article 228, Sections 1-5 is possible where the perpetrator simultaneously occupies the position of creditor and holds a public function.
VII. Practical Guidance for Commercial Actors
A. Warning Indicators
Commercial actors should exercise heightened caution when:
– Liabilities exceed payment capacity
– Liquidity is compromised
– Bankruptcy or restructuring proceedings appear probable
B. Prudent Conduct
1. Document the financial position — Maintain contemporaneous analysis of liquidity and solvency metrics.
2. Observe statutory priority rules — In circumstances of financial distress, adhere to the creditor priority provisions of Article 342 of the Bankruptcy Law and Article 1025 of the Code of Civil Procedure.
3. Avoid selective satisfaction — Do not favor particular counterparties at the expense of others, regardless of the duration or quality of commercial relationships.
4. Consider formal restructuring — Formal proceedings ensure transparency and provide protection against allegations of preferential treatment.
5. Obtain professional counsel — In uncertain circumstances, legal advice may prevent criminal exposure.
C. Conduct to Avoid
– Offering or accepting advantages in exchange for particular voting positions on composition arrangements
– Entering agreements with selected creditors to the exclusion of others
– Establishing security interests for “friendly” creditors on the eve of bankruptcy
– Satisfying obligations to related parties in preference to arm’s-length creditors
VIII. Conclusion
Article 302 of the Polish Penal Code safeguards a foundational principle of insolvency law: the equitable, proportionate satisfaction of creditors from the estate of an insolvent debtor. Violation of this principle—whether through selective satisfaction of chosen creditors or through corruption of participants in bankruptcy and restructuring proceedings—constitutes criminal conduct.
For the commercial actor confronting financial distress, this provision represents a significant constraint upon freedom to dispose of assets. Paradoxically, the ostensibly “honorable” impulse to satisfy at least some obligations may precipitate criminal liability. Awareness of these risks, coupled with appropriate management of financial crisis—preferably with the assistance of qualified professionals—enables avoidance of inadvertent conflict with the criminal law.
The provision ultimately reflects a sophisticated legislative judgment: that in circumstances of collective creditor proceedings, individual creditor interests must yield to systemic imperatives of fairness and equality. The criminal sanction reinforces norms that might otherwise prove unenforceable through civil remedies alone, thereby strengthening the integrity of Poland’s insolvency regime.
Legal basis: Article 302 of the Act of June 6, 1997—Penal Code (consolidated text: Journal of Laws 2024, item 17, as amended)
