The content of the Family and Guardianship Code regulates that the parents are the legal representatives of the child under their parental authority and each of them may thus act independently. Art. 98 § 2 of the Commercial Companies Code However, it introduces an exception to this rule – neither parent may represent the child in legal transactions between the child and one of the parents or their spouse. However, this regulation will not apply when the legal act to be performed by one of the parents consists in a gratuitous contribution to the child or concerns the maintenance and upbringing due to the child from the other parent.
It was doubtful whether in cases concerning the crime under Art. 209 of the Penal Code (non-alimony) a minor victim may be represented by one of the parents in a situation where the accused is the other parent or the other parent cannot represent the injured child and it is necessary to appoint a guardian for him in accordance with the requirements of Art. 98 § 2 and 3 and article. 99 k.r.o.
So far, this issue has been ambiguously resolved and the courts have overwhelmingly opposed the possibility of representation by the other parent. In the Resolution of the Supreme Court of 7 judges of 30 September 2010, I KZP 10/10, it was stated that the appointment of a probation officer is necessary, but an application for prosecution may be submitted by the other parent. This exception, however, concerned only the act of submitting a motion for prosecution and the Supreme Court did not comment on the remaining actions.
In the decision of the Supreme Court of June 25, 2020, I KZP 4/20, the court ruled that legal actions taken by a representative of a minor victim in criminal proceedings for the offense of persistent non-alimony against a child’s parent are legal actions relating to the maintenance due to the child from that parent and education, within the meaning of the above-mentioned Art. 98 § 2 point 2 k.r.o. Thus, the Supreme Court extended its view expressed in the previous jurisprudence by adding that the other parent may perform all activities. In practice, this means the consent of the Supreme Court to the exercise of the minor’s rights in these proceedings by the other parent.
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