Die verschuldensunabhängige Haftung des Vermieters

Die verschuldensunabhängige Haftung des Vermieters

Author(s): Eltjo Schrage / Language(s): German / Issue: 83/2011

Vor Kurzem hatte der deutsche Bundesgerichtshof in einer aus dem täglichen Leben bekannten Sache zu entscheiden. Es handelte sich um einer Mietwohnung in einem Mehrfamilienhaus. Die Mieterin hatte Wandfarbe in der Wohnung angebracht und einen Teppichboden gelegt sowie die Reinigung der Fenster veranlasst. Darauf traten in der Wohnung, zunächst in der Küche, dem Bad und den Zimmern des Hauses, Schwarzstaubablagerungen (“Fogging”) auf, die sich nach einiger Zeit auf sämtliche Decken und Wände der Wohnung ausbreiteten. Ursache dieser Schwarzstaubablagerungen sollte nach dem im Berufungsverfahren eingeholten Sachverständigengutachten ein Zusammenwirken von Emissionen aus Wandfarbe und Teppichboden und einer Absenkung der Bauteiloberflächentemperatur während des im Winter vorgenommenen Fensterputzens und dem zusätzlichen Einzug flüchtiger organischer Stoffe während des Fensterputzens sein. Dann kommt die alles beherrschende Streitfrage: Wer hat die Kosten der Beseitigung der Schwarz-verfärbungen zu tragen, der Vermieter, oder die Mieterin?

Health promotion in the activities carried out by the State Sanitary Inspection

Promocja zdrowia w działalności Państwowej Inspekcji Sanitarnej

Author(s): Katarzyna Mazur / Language(s): Polish / Issue: 83/2011

The aim of this article is to present the activities of the State Sanitary Inspection in the scope of health promotion. The organization, tasks and the field of the activities of the State Sanitary Inspection bodies are set out in the Act on State Sanitary Inspection of 14th March 1985. The State Sanitary Inspection is on assignment to carries out public health policy. The organizational units of this institution pursue the public health tasks taking preventive and current sanitary supervision, conducting preventive and anti-epidemiological activity with respect to infections diseases as well as conducting the educational and healthy activity. The issues concerning the health promotion play a crucial role in the educational and healthy activity of this Inspection. The health promotion might be also undertaken by the State Sanitary Inspection in the field of e.g. current or preventive sanitary supervision. However, in this sphere the health promotion has only an additional and supporting character. Within the educational and healthy activity, the State Sanitary Inspection promotes health by using non-imperious legal forms of public administration activity80. The division of non-imperious legal forms into: bilateral and unilateral one’s which was presented in a doctrine by T. Kuta has application in the activity of the State Sanitary Inspection relating to issues of the health promotion. The bilateral non-imperious forms are connected with collaboration among the State Sanitary Inspection and public and non-public entities. This collaboration is usually carried out as a nationwide or local long-term programmes or actions. However, the unilateral non-imperious forms of the State Sanitary Inspection are completed in the form of appeals and manifestos aimed at the single-reaction (e.g. social or media campaigns).

The legal nature of the occupational pension scheme

Charakter prawny pracowniczego programu emerytalnego

Author(s): Marcin Krajewski / Language(s): Polish / Issue: 83/2011

Occupational pension schemes (PPE) and retirement accounts (IKE, IKZE) constitute the third pillar of the pension system in Poland. What we should understand under the term occupational pension scheme is the program established with the consent of the employee, through a conclusion of a company pension agreement and a management agreement with a financial institution authorized to collect contributions, funded by the employer and supervised by the national supervisory authority (Financial Supervision Commission). Such a program is created in a specified form in order to accumulate resources that come from the contributions, on the basis of the capital, which are intended to be paid to the beneficiary after reaching the age specified in the Act. In the Polish legal system, PPE are not financed from social insurance contributions. Programs can operate solely on the basis of the method of a defined contribution and do not guarantee lifelong benefits. It is a fundamental difference when compared to the PPE in most countries in the world. The solutions adopted in Poland placed PPE outside the term of “social security” and “social insurance”.

Reviews

Recenzje

Author(s): Łukasz Jan Korporowicz,Anna Pikulska-Radomska / Language(s): Polish / Issue: 83/2011

Andrew M. Riggsby, Roman Law and the Legal World of the Romans Cambridge University Press, Cambridge 2010, 283 ss. Rena van den Bergh, Gardiol van Niekerk (eds), Liezi Wildenboer (co-ed.) Libellus ad Thomasium. Essays in Roman Law, Roman-Dutch Law and Legal History in Honour of Philip J. Thomas Fundamina editio specialis, Pretoria 2010, XXV+587 ss.

Several comments on the clause of exemption from penalty under article 259 of the Penal Code

Kilka uwag na temat klauzuli niepodlegania karze z art. 259 k.k.

Author(s): Justyna Badziak / Language(s): Polish / Issue: 83/2011

Breaking of the internal unity of organized criminal groups constitutes the principal condition for effectiveness of judicature bodies in fighting the phenomenon of organized crime. The difficulties concerning these activities arise from the great solidarity and mutual loyalty bond among the offenders. In view of the situation it is crucial for certain legal mechanisms to function efficiently in order to enable the breaking of the chain of criminal solidarity by encouraging the members of organized groups or criminal bonds to withdraw from their participation and disclose the circumstances of committed prohibited acts before the law enforcement authorities. The legislator, aware of the degree of threat for the public security brought by the organized crime, provides for the statutory incentive for abandoning the path of criminal lawlessness by the members of criminal groups, including the said clause of exemption from penalty under article 259 of the Penal Code. Obviously, this paper does not aspire to be regarded as complete study of the issue of exemption from penalty under the article specified herein, thus all presented comments shall concentrate in principal on three main problems which are as follows: (1) the issue of establishing the statutory condition subject to the structure of the legal norm provided for in the said provision, (2) attempts to establish the nature of the act in question in view of the feature of “disclosed all relevant circumstances”, finally (3) interpretation of the condition of “voluntariness” in withdrawal from participation in the organized group or bond.

Regulatory model of corporate governance in Polish state companies with trasury owns or holds: practical implications for management

Model regulacyjny corporate governance w spółkach skarbu państwa – praktyczne implikacje dla zarządzania

Author(s): Igor Postuła,Tomasz Wołowiec / Language(s): Polish / Issue: 83/2011

This article is an analysis of selected and the most important elements of the regulatory model of corporate governance in the Polish state companies with state treasury owns or holds. The analysis is based on the elements of corporate governance for members of the state companies, the relationship between state companies, the entitlement of employees and selected financial relationships.

A disabled person in Poland and in Germany – some legal aspects

Osoba niepełnosprawna w Polsce i w Niemczech – wybrane aspekty prawne

Author(s): Olga Komorowska / Language(s): Polish / Issue: 83/2011

Germany is the example of a country, in which preventing social exclusion of a disabled person is treated as a basic aim of the social politics. Right now Poland is on a stage of changes both in the social attitudes towards the disabled and the legal aspects. In the year 2003 in Germany there were almost twice as many disabled people as in Poland in the absolute numbers (8,4 million and 4,5 million). In Poland there are a lot of people who do not feel disabled, but who maintain the status of disabled people. The definition of a disabled person used in Germany and in Poland differ in the way they describe the disabled person, differentiate the levels of disability and the symbols of the disabled. The Polish definition of a disabled person describes the disability as an inability to play a social role – the ability to work in particular. The German definition characterizes the disability as a restricted ability to play a role in the social life, which is understood as a possibility to work, but also other aspects of social existence. In Poland the right to obtain most benefits depends on the income – the help given to the disabled people has got the features of the social benefits. In Germany all the help depends on the needs of a particular person.

The activities of probation officers – considerations in legislation and practice

Działalność kuratorów sądowych – rozważania w zakresie ustawodawstwa i praktyki

Author(s): Joanna Paulina Kufel / Language(s): Polish / Issue: 83/2011

In recent years interest in the functioning of the judicial guardianship departments has been growing. This initiated the need to study all dimensions of guardians' work. Guardianship as a specific measure of reclamation aimed at the transformation of wards' behaviours, is facing new challenges which are the result of the changes in our country. At present a guardian as a person executing the court judgement largely takes the blame for his/her own initiatives and omissions, but also for the court which issued the verdict as well as general social or economic conditions in the country. The objective of this work is to present the results of the questioning conducted by the Office of the Human Rights Defender and the Institute of Justice in relation to the reported Guardians targets. Particular attention, on the background of the whole of the institution presented, has been attributed to the meaning of media which through prudent conducting of probation promotion should form the basis for a rational assessment of the social work of the guardians.

A traditional grasp of the employment subordination – selected legal problems

Tradycyjne ujęcie pracowniczego podporządkowania – wybrane problemy prawne

Author(s): Tomasz Duraj / Language(s): Polish / Issue: 83/2011

The subject of the paper is the characteristics of employment subordination of an employee to the employer in labor relations. It is a necessary element of any labor relation. This subordination, as an essential feature of a labor relation, determines the scope of use of labor relation, and thus also the scope of application of the labor law. The author, presenting a traditional grasp of labor relation, notices in the literature on the subject substantial discrepancies in the interpretation, which refer not only to the way of its understanding but also the mutual relations which occur between the terms ‘subordination’ and the expression ‘employer’s management’, which is used by the legislator in the labor code. The author notices that the traditional grasp of the employment subordination does not always apply in reference to people who are charged with tasks requiring creativity, initiative and far-reaching independence (people employed at the most senior managerial posts, performing a creative job or rendering highly specialist services). The disappointment with the traditional grasp of the employment subordination in the case of the indicated category of subjects has become a substantial reason for the tendency to broadly interpret the employment subordination, which is present in the doctrine of labor law and judicature. As a consequence, new doubtful concepts of employment subordination relating to autonomous subordination and economical dependence have appeared.

Commentary on the Constitutional Court's judgment of 9 November 2010 (K 13/07)

Glosa do orzeczenia Trybunału Konstytucyjnego z dnia 9 listopada 2010 roku (K 13/07)

Author(s): Anna Młynarska-Sobaczewska / Language(s): Polish / Issue: 83/2011

Glosowane orzeczenie Trybunału Konstytucyjnego z 9 listopada 2010 r. (K 13/07) dotyczy konstytucyjności sądowego zakazu publikacji, regulowanego w art. 755 § 2 k.p.c. z Konstytucją, a dokładnie jego zgodności z normami gwarantującymi wolność wypowiedzi i prasy oraz określającymi dopuszczalne ograniczenia tych wolności, to jest art. 14, art. 31 ust. 3 i art. 54 ust. 1 Konstytucji. W swoim wyroku Trybunał stwierdził, że przepis dopuszczający orzeczenie zakazu publikacji w ramach zabezpieczenia powództwa w procesie o ochronę dóbr osobistych jest niekonstytucyjny w zakresie, w jakim kwestionowany przepis nie określa ram czasowych ustanowionego zabezpieczenia.

Invalid obligations ex stipulatione. The meaning of Impossibilium nulla obligatio est (D. 50,17,185) of Celsus in Roman law

Nieważne zobowiązania ex stipulatione. Znaczenie “Impossibilium nulla obligatio est” Celsusa (D. 50,17,185) w prawie rzymskim

Author(s): Dagmara Skrzywanek-Jaworska / Language(s): Polish / Issue: 83/2011

This article concerns the issues of invalid obligations ex stipulatione and the meaning of the Celsus phrase Impossibilium nulla obligatio est (D. 50,17,185) in Roman law. It presents in a polemic way two groups of the opinions, which can be found in the literature. The older theories adapt the civil law achievments to the ground of Roman law, what does not help to understand the concept of initial impossibility in Roman law. This research method is concentrate on the function of impossibility and does not indicate the reason of invalidity of the ex stipulatione obligations. At the same time it does not explain the meaning of the Celsus sentence. In the opposition there are in the newer literature an alternative theories to found, which analyse the invalid obligations ex stipulatione in relation to the concept of the valid formation of contract. According to these newer attempts the explanation of the meaning of the Celsus’ phrase seems to be more reliable.

Selected theories according to regional and local development in context of labour market

Wybrane teorie rozwoju regionalnego oraz lokalnego a rynek pracy

Author(s): Mirosław Zajdel / Language(s): Polish / Issue: 83/2011

In contemporary world there are numerous socio-economic events. It becomes to count them among intensive transformations in regional development. This article is a trial to seize the most important conceptions according to regional (and local) development (in the context of labour market). It was told more over (among others) processes of polarization and networking. In the end of the article it was also paid attention to another important phenomenons playing meaningful role in regional development (for example clusters), also Polish situation was taken into some consideration.

Territorial diversification of economic development of counties in Malopolskie voivodship

Przestrzenne zróżnicowanie rozwoju ekonomicznego powiatów województwa małopolskiego

Author(s): Paweł Dykas,Mariusz Trojak,Tomasz Tokarski / Language(s): Polish / Issue: 83/2011

The aim of this paper is to present the local diversification of the economic development of counties in Malopolskie voivodship between 2002 and 2008 year. Authors used a set of stimulants (total sold production of industry per capita, gross value of fixed assets per capita, investment per capita and wages) and one destimulant (unemployment rate) to estimate the economic development taxonomic indicators of 22 counties in Malopolska. The results proved that Cracow and Tarnow had the highest values of the indicator. Not too far behind them were the following counties: chrzanowski, olkuski i oświęcimski oraz Nowy Sącz. Contrary to this, the lowest values of the development indicator could be observed in: proszowicki, miechowski, dąbrowski and tarnowski counties.

State responsibility for cyber-attacks constituting a threat to international peace and security

Odpowiedzialność państw za podejmowane w cyberprzestrzeni działania zagrażające międzynarodowemu pokojowi i bezpieczeństwu

Author(s): Joanna Kulesza,Jan Kulesza / Language(s): Polish / Issue: 83/2011

The paper presents the international law mechanism allowing to prosecute a state for electronic threats generated from its territory, directed against a foreign sovereign. It discusses the possibility to recognize a cyber-attack as an act of international aggression and shows it difficult at the present state of international debate. It than reaches to the traditional notion of state responsibility for the lack of due diligence as the source of states responsibility for cyber-attacks. Such due diligence should be conducted through sufficient criminal law regulation, properly executed in order to prevent electronic attacks. In order for a sufficient legal system of protection against cyberattacks to be created, an international debate, resulting in international guidelines, should be initiated. The results of such a debate would than allow for the uniformity of national criminal law regulations. As a starting point for such a debate a rough analysis of the Polish penal code rules, especially its Chapter XXXIII, has been presented. The Authors point to the need of an international debate on the system of protection against cyberattacks on key state electronic infrastructure, emphasizing however the already existent international obligation for states to take responsibility for attacks conducted form their territory.

The Thousand Faces of the International Community - The Post-War Reconstruction of Stolac

The Thousand Faces of the International Community - The Post-War Reconstruction of Stolac

Author(s): Amra Hadžimuhamedović / Language(s): English / Issue: 58-59/2012

Stolac, a small town in southern Bosnia, had one of the greatest concentrations and diversity of cultural heritage in the region, until it was systematically destroyed in the late twentieth century. The rehabilitation of this heritage has been an integral part of the complex process of the return of refugees and displaced persons, civic reconciliation, the exercise of human rights, the establishment of the rule of law and defining post-war development plans. The state of the heritage in Stolac since the 1992-1995 war in Bosnia and people’s attitudes towards its rehabilitation may serve as a model for understanding the role cultural heritage plays in the complex social processes taking place in war-torn communities.

Meeting God - An Anthropological Framework for a Particular Religious Experience

Meeting God - An Anthropological Framework for a Particular Religious Experience

Author(s): Ori Goldberg / Language(s): English / Issue: 58-59/2012

“What do you get when you combine an agnostic, an insomniac and a dyslexic? Someone who stays up all night, wondering if there’s a dog.” This riddle—Could it qualify as a joke? One wonders, indeed— portrays an intimate religious experience. Internal debates regarding the reality of God are not unheard of among those possessing a faithful temperament. Moreover, it often seems like the desire for a “Living God”1 is accompanied by a keen awareness of one’s faults and failures. Will I be worthy of the moment? Am I not too miserable to receive God’s mercy, or grace, or even judgment? If I believe, if I believe enough to wonder about it, is not my faith precisely ensconced in a lack of demonstration, in the absence of an answer?

An Examination of the Character of Abraham in the Bible and in Post-Biblical Sources

An Examination of the Character of Abraham in the Bible and in Post-Biblical Sources

Author(s): Israel Knohl / Language(s): English / Issue: 58-59/2012

Jewish legend says that Abraham’s father Terah was an artist who sculpted images of gods. One day Terah left his workshop and asked his son Abraham to guard the idols. Abraham smashed the statues, except for one large one, and placed the stick that he’d used to break the idols in the last remaining idol’s hand. Terah returned and was stunned to find his entire shop strewn with pieces of broken idols. “What have you done?” he asked Abraham. “I spent many hours building these statues.”

From “Family Myth” to “Family Resemblances”

From “Family Myth” to “Family Resemblances”

Author(s): Dušan Ilija Bjelić / Language(s): English / Issue: 58-59/2012

The question of plurality and unity in Europe, which this conference is dedicated to answering, is closely linked to the paradox of the split European subject between universal and archaic, rational and irrational, Western and Oriental, masculine and feminine. Such a scheme perceives plurality and unity as a threat to the modern subject, sees them as archaic preconditions of modernity which calls for a radical cut into this unity and its splitting between the subject and its archaic abject. Psychoanalysis is one such discourse that theorizes such a split subject as the condition of psychic normality. While such a construct may be valuable in clinical practice, when extended into the sphere of geopolitics such discourse of splitting a unitary way of life cannot proceed without violence, discriminatory splitting and exclusionary politics, to an extent that can be, as in the case of recent Balkan history, tragically criminal.

Anthropo-Cosmological Reflections on the Bosnian Residential Tower-house or Kula

Anthropo-Cosmological Reflections on the Bosnian Residential Tower-house or Kula

Author(s): Medina Hadžihasanović-Katana / Language(s): English / Issue: 58-59/2012

“A tower-house is any building whose height is greater than its width.” This basic definition is applicable to any tower-house in architectural history, but regional characteristics and varieties are discernable in different countries and regions. The focus of this article is the Bosnian residential tower-house known as the Kula, built between the 15th and 19th centuries.

Hobbes’s Theory of Authorization I

Hobbesova teorija autorizacije I.

Author(s): Luka Ribarević / Language(s): Croatian / Issue: 01/2009

Keywords: theory of authorisation; person; social contract; sovereignty; sovereign; subjects; state; Leviathan; Hobbes

In contrast with earlier formulations of Hobbes’ science of politics, the theory of sovereignty in Leviathan is expounded on a completely new legal basis. It is the theory of authorisation, whereby the fundamental political relation between sovereign and subject is conceived as a representative relation. This work shows that, up to Leviathan and within the conceptual framework of state theory, sovereignty was defined as might and authority, but not as power. The missing element was legal substance, without which both might and authority are insufficient to make possible permanent abandonment of the natural condition. The theory of authorisation is precisely the solution to the problem of constituting the state as a single legal person interconnecting the sovereign and the subjects. At the core of the theory lies the concept of person, which covers various modalities of the representative-represented relation. It is through the concept of artificial person that Hobbes shows in what way the disconnected multitude of individuals can be transformed into an operative political unity. This comes about as a result of the sovereign being given authorisation by future subjects, who pledge to accept his will as their own in matters related to preservation of peace. Thus they can be legally treated as a single legal person, to which the will of the sovereign is ascribed as its own will. By accepting the will of the sovereign – the artificial person of their representative – as their own, the subjects themselves become an artificial person: the state.