Czas trwania samopomocy legalnej w rozumieniu art. 343 § 2 Kodeksu cywilnego
Authors: Janowski Maciej 
Published: October 2023

The article is devoted to the issue of the time in which the owner of an object can take the so-called legal self-help in order to restore the previous state of ownership pursuant to Article 343 § 2 of the Civil Code, as a result of infringement or loss of possession. In the first place the author discusses the essence of the institution itself, its place among the so-called countertypes, i.e. circumstances excluding criminal liability and the reasons for introducing this institution to the Civil Code, which has remained unchanged since the entry into force of the Act of 23 April 1964 Civil Code. Subsequently, the attention is focused on the analysis of the most important, from the perspective of the title issue, the terms “immediately after” and “instantly after”, which mark the beginning and end of the holder’s authorized action. According to the prevailing position of jurisprudence and doctrine, the possessor may do so only immediately after the infringement or loss of possession of the thing, and in the event of taking action at a later time, he runs the risk of criminal liability. The analysis carried out in the article aims to show that the literal wording of Article 343 § 2 of the Civil Code does not at all mean that self-help has to be undertaken immediately after the violation of possession or instantly after its loss, but only that it may be undertaken at such time, which would mean that both of the above-mentioned concepts determine the starting point of self-help, and not the final one, which is supported by the contextual and teleological interpretation of Article 343 § 2 of the Civil Code. The dominant interpretation of the terms “immediately after” and “instantly after” also raises doubts from the perspective of equal treatment of citizens in the same legal situation, for example as a result of loss of possession as a result of theft of possessions within the meaning of Article 278 § 1 of the Penal Code, or violation of possession as a result of violation of home privacy pursuant to Article 193 of the Penal Code, because it makes the possibility of restoring the previous state conditional only whether the holder has caught the perpetrator in the act or not. This leads to the conclusion that the possibility of exercising this right is determined, according to the currently dominant interpretation, by the time the crime was committed, and not the subjective knowledge of the holder about this fact, who for various reasons may not know about it. The article therefore attempts to show that a different interpretation of Article 343 § 2 of the Civil Code, giving the possessor the opportunity to undertake self-help throughout the period in which the perpetrator unlawfully violates possession or unlawfully possesses a given object. This position is supported in the study with examples that illustrate the advantages and disadvantages of the currently adopted, narrow interpretation of the terms “immediately after” and “instantly after”. The final part of the paper is a proposal to amend Article 343 § 2 of the Civil Code, which would leave no doubt to the interpretation of duration period of permitted self-help.