Pursuant to Art. 115 § 2 of the Criminal Code, when assessing the degree of social harmfulness of the act, the court takes into account the type and nature of the infringed good, the extent of the damage caused or threatening, the manner and circumstances of the act, the importance of the obligations violated by the perpetrator, as well as the form of the intention, the perpetrator’s motivation, and the type of the breached precautionary rules and the degree of their violation.
Thus, the assessment of the social harmfulness of an act cannot be based solely on a comparison of the statutory sanctions for individual crimes. It must always be an assessment of a specific act. Following the decision of the Supreme Court of November 17, 2020 (file reference number IV KK 83/20, LEX 3080550), „the legislator listed in Art. 115 § 2 of the CC so numerous and varied premises subject to assessment when determining the social harmfulness of an act, that there is no risk that the courts will only automatically use the threat of punishment as the most important determinant of this assessment. After all, in this catalog there is no premise of the „threat of punishment”. After all, it should be remembered that the differences in the severity of the sanctions for committing individual types of crimes reflect at best the differences in the assessment of the social harmfulness of individual categories (types) of criminalized behaviors. Here we are talking not about such an assessment, but about the harmfulness of a specific behavior belonging to a specific category. Therefore, in some cases, the social harmfulness of acts that constitute offenses threatened with relatively mild sanctions may be significant ”.
Moreover, in order to recognize the insignificance of the social harmfulness of an act, it is not necessary that this negligence affect both the subjective side (i.e. the mental attitude of the perpetrator) and the objective side (i.e. the behavior of the perpetrator) (judgment of the Supreme Court of February 12, 2021, file ref. act I KK 74/20).
Moreover, the assessment of social harmfulness must be an overall assessment, and not an assessment of individual activities (judgment of the Supreme Court of 27 July 2021, file reference number III KK 346/20).
