Odpowiedzialność karna a determinizm antropologiczny

Author(s): Michał Peno / Language(s): Issue: XXXVI/2014

Much has been written recently about the problem of justifying punishment in the context of anthropological determinism and incompatibilism. However, the problem of the relationship between determinism, on the one hand, and the theory of punishment, on the other, is multi-dimensional. This article focuses on criminal responsibility in a world of determinism. It is mostly an attempt to review the basic concepts and issues in the philosophy of responsibility and compare them with the concepts and issues of the criminal law as broadly defined. The starting point is the observation that if the thesis of determinism is true and it is not possible to reconcile determinism with human freedom, then it will be particularly difficult to justify punishment. Prima facie, this applies to retributionism, although a more thorough analysis leads to the conclusion that various utilitarian approaches will also have to be significantly modified to allow for determinism. Punishment can obviously implement certain goals and be useful in some way without necessarily being just (it can even be cruel and/or immoral). Punishment may be formally fair (like revenge) and constitute “an eye for an eye.” However, if people do not have free will, then they are not responsible for their misdeeds. This is problematic as they do not deserve revenge and their behaviour does not merit condemnation. However, it is possible to apply different measures which are closer to the sui generis of preventive measures. This paper attempts to demonstrate that there is a link between criminal punishment and moral responsibility. This follows from the fact that punishment is marked by moral condemnation and only a morally responsible person can be condemned. Excluding moral responsibility therefore makes it impossible to condemn a perpetrator. The distinguishing feature of, and (indirectly) the moral justification for, criminal punishment are thereby eliminated. In particular, from a retributionist viewpoint, punishment can only be justified if the wrongdoer is morally responsible for his/her actions (in the sense that he/she can be accused of having upset the moral order). If the perpetrator is not morally responsible, it is difficult to morally justify the legitimacy and practice of punishment. Furthermore, the premise about moral responsibility is a prerequisite for justifying punishment in any case involving the notion of guilt. A lack of moral responsibility in a world ruled by determinism does not necessarily mean that people should not be punished for wrongdoing. Nor does it mean that there are no arguments in favour of maintaining the practice of punishment. The basic question is what views – empirical or emotional – should be given priority in the science of criminal law. The answer lies in the demand for minimalism in the criminal law and for a reflective analysis of the foundations of criminal responsibility.

Illegal Decisions of a Shareholders Assembly – The Case of the Republic of Macedonia

Author(s): Marko Andonov,Zoran Mihajloski,Ljupcho Petkukjeski,Kristina Misheva / Language(s): English Issue: 3/2014

The Shareholders Assembly is a body of the shareholders of a company that includes and incorporates all the shareholders with a goal to exercise their rights in the work of the company. The decisions of the Shareholders Assembly, since its institutionalization, and during its operations, are legal acts (legal work). Just like any other legal action, the decisions of the Shareholders Assembly must be in accordance with the Constitution, the law sand good business practices. However, the decisions of the Assembly are not always in accordance with the law, or they may be illegal from legal and substantive perspective. In such case, the decision of the Shareholders Assembly shall be invalid (entirely or partially) because the conditions for its validity in accordance with the law and the statutes of the company will not be met. The Decisions of the Shareholders Assembly are significant as well for achieving the business venture of the company. The illegality of these decisions can lead to repercussions of economic and social nature. Subsequently, the adoption of illegal decisions must be prevented. The main objective of this paper is to assist in determining and clarifying the types of unlawful decisions, to clarify the manner of exercising judicial protection against unlawful adopted decisions, to specify the types of law suits challenging the unlawful decisions and to indicate the legal consequences from the court decisions.

Reforma europejskiego systemu ochrony praw człowieka na tle niektórych wyroków Europejskiego Trybunału Praw Człowieka przeciwko Wielkiej Brytanii

Author(s): Izabela Gawlowicz,Piotr Laski / Language(s): Polish Issue: 04 (4)/2013

The authors examine the possible effects of the pending reform of the European human rights system in the light of some European Court’s of Human Rights (ECHR) judgments against Great Britain (much because of this country involvement in the process). The authors share some fears and doubts about the shape of this reform and it’s possible long-term effects in the perspective of the most important aim of the European system which was always it’s accessibility to the individuals. The chosen judgments and mostly country reactions to them illustrate some problems with understanding the role of ECHR in the whole European law system (seeing in the most possible broad sense) and in relation to the state itself (it’s organs functioning and decisions-making, it’s sovereignty, it’s democracy level ects.). The authors do not predestine whether those problems had any meaningful impact on the shape of the European system reform (especially this part which is a way to limit the access to the Tribunal), but they want to put this important question to the public debate due to the best human rights interest.

"A Robot Is Watching You”: Humanoid Robots And The Different Impacts On Privacy

Author(s): Lucas Cardiell / Language(s): English Issue: 2/2021

Robots, particularly the ones that belong to a special type of robotic technologies designed and deployed for communicating and interacting with humans, slip into more and more domains of human life - from the research laboratories and operating rooms to our kitchens, bedrooms, and offices. They can interact with humans with facial expressions, gaze directions, and voices, mimicking the affective dynamics of human relationships. As a result, they create new opportunities, but also new challenges and risks to peoples’ privacy. The literature on privacy issues in the context of Social Companion Robots (SCRs) is poor and has a strong focus on information privacy and data protection. It has given, however, less attention to other dimensions of privacy, e.g. physical, emotional, or social privacy. This article argues for an “evolving” or “transformable” notion of privacy, as opposed to the “elusive” concept of privacy elaborated by leading privacy theorists such as Daniel J. Solove (2008) and Judith J. Thomson (1975). In other words, rather than assuming that privacy has a single core or definition (as defined, e.g., in Warren and Brandeis' 1890 paper), it maintains that it is important to conceptualize privacy as distinguishable into various aspects, including informational privacy, the privacy of thoughts and actions, and social privacy. This inductive approach makes it possible to identify new dimensions of privacy and therefore effectively respond to the rapid technological evolution in AI technologies which is constantly introducing new spheres of privacy intrusions.

"Afirmativna akcija" u Sjedinjenim Američkim Državama I Evropskoj uniji: poređenje i analiza

Author(s): Ivana Krstić / Language(s): English Issue: 7/2003

The existence of affirmative action (better known as "positive discrimination") demonstrates that there are areas where law as a neutral tool shows its limits as a means of resolution of social disputes. This paper undertakes a comparative exploration of affirmative action discourse in US and EU law. Affirmative action first appeared in the US in the 1960s and 1970s, and initially it was used only in the context of racial discrimination. More recently, however, affirmative action came to be extensively utilized in the EU, and it is primarily used to ensure women equality in the workforce. Both systems recognize that affirmative action constitutes a departure from the fundamental principle of formal equality, and because of that departure, requires further justification. However, in the EU, Article 2(4) of the Equal treatment Directive explicitly allows deviation from formal equality that makes the justification of positive action easier than in the US. The usual test applied by the European Court of Justice (ECJ) in reviewing a measure justified under derogation is that of proportionality, which has three parts: suitability, necessity, and proportionality. In the US, there is the raging debate in the US Supreme Court over which is the correct standard of review with regard to race-based governmental actions. The ECJ sees positive action as a measure to diminish discrimination in the whole of society showing that women are not still an equal footing with the men in employment, and no evidence of past discrimination is required. On the contrary, the US Supreme Court's held in Croson that evidence of societal discrimination against minorities, by itself, would not suffice to justify a preferential treatment. Finally, the affirmative action plan in the EU is seen as a remedy for discrimination that women suffer due to persistent stereotypes. From another side, the US Supreme Court recognized in Bakke that "preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth. "Today, it is evident that affirmative action in both systems sends both inspiring and disturbing messages. It is very important for us to study it's implementation in these two developed systems, especially after the adoption of the Charter on human and minority rights and civil liberties, which explicitly allows this measure in article 3, to enable every inidividual to equally enjoys its rights.

"Arbeitsgerichtsbarkeit" prima degli Arbeitsgerichte. Tre osservazioni marginali

Author(s): Cristina Vano / Language(s): Italian Issue: 10/1991

review of: --------------------- JÜRGEN BRAND, Untersuchungen zur Entstehung der Arbeitsgerichtsbarkeit in Deutschland, Teilband 1: Zwischen genossenechaftlicher Standesgerichtsbarkeit und kapitalistischer Fertigungskontrolle, Pfaffenweiler, Centaurus Verlagsgesellschaft 1990, 488 pp. (= Universität Witten-Herdecke / Université de l'Europe Paris; Wirtschaft und Recht in Europa, 1.).

"Ausländer" in Deutschland - zur Geschichte eines Begriffs

Author(s): Peter Szczekalla / Language(s): German Issue: 10/1991

"Autopoet" Project: a Semantic Anomalies Generator or a New Existence Creator?

Author(s): Sergei A. Demchenkov,Dmitry M. Fedyaev,Natalia D. Fedyaeva / Language(s): English Issue: Sup. 1/2018

The article is devoted to the problems of computer generation of semantically abnormal texts possessing a grammatically connected structure, but entering into an obvious contradiction with the logic of objective reality. Using the example of the "Autopoet" service developed by Yandex showed that machine text generation is of interest not only in the applied aspect, but also as an instrument of aesthetic influence that allows rethinking the traditional paradigms of literary and art creation. Processing millions of search requests, "Autopoet" generates absurdist poems on their basis. Examination of the functioning principles of the "Autopoet" in the existential and phenomenological aspects allows concluding that, on the one hand, its poetic experiments embody a completely impersonal type of writing and, consequently, do not have a clear compositional and semantic structure. On the other hand, amorphous and rhizomatic computer "auto-text" every time as a building made of bricks, consists of self-sufficient microtexts, once entered by users in the search box and carrying a powerful existential charge, because each of them captures the unique moment of everyday human existence. Thus, the "Autopoet" alienating the verbal and existential acts from the subject who performs them, accumulates them in the space of the text, changing them into a pure, impersonal existence.

"Bene Comune" e ambiente: una lettura romanistica della enciclica laudatio si'

Author(s): Giovanni Carlo Seazzu / Language(s): Italian Publication Year: 0

In accordance with a legal construction, of feudal origin and dominant today, the universal nature of the collectivity is understandable and understood exclusively as an abstract legal person, and, accordingly, the regime of it's will has to be and is exclusively in hands of smalls number of representatives. Such a construction negates to any concrete collective body the management, in general, of the proper goods and, in particular, of those essential as environment.The hope entrusted (in a manner of highest authority too, with the Encyclical letter “Laudato si’”) to the Roman legal categories of res communes and actio popularis, to invert the logic of the feudal construct, seems to be professed by legal-historical doctrine of the nineteenth century by attribution of such constructs to the Roman law. But this doctrine is out in doubt by those claiming that, on the contrary, the rule of the roman law on the unitary ownership and management of the common goods by, precisely, the same collective understood concretely. In this article, a first, positive confirmation of the verisimilitude of this new claim is being obtained by an examination of the studies dedicated to the structure and the dynamic of homologous private and public collectivities: municipia and collegia.

"Beneš-Dekrete" von einer rechtlich historischen Perspektive

Author(s): Jaromír Tauchen / Language(s): German Issue: 1/2010

"COFOLA INTERNATIONAL 2016. Resolution of International Disputes Public Law in the Context of Immigration Crisis

Author(s): / Language(s): English

The conference “COFOLA = Conference for Young Lawyers” is annualy organized by the Masaryk University, Faculty of Law from 2007. The main aim of this conference is to give floor to the doctoral students and young scientists at their early stage of career and enable them to present the results of their scientific activities. Since 2013 COFOLA has been enriched by special part called “COFOLA INTERNATIONAL”. COFOLA INTERNATIONAL focuses primarily on issues of international law and the regulation of cross-border relations and is also oriented to doctoral students and young scientists from foreign countries.

"Community Policing" - novi stil policijskog rada u zajednici

Author(s): Stipe Ivanda / Language(s): Croatian Issue: 01/2002

Uloga policije kroz povijest mijenjala se kao i njene djelatnosti. Danas, više no ikada, policija se našla u demokratskim pravnim državama pred novim izazovom. Kako se pred posvemašnjom globalizacijom suprotstaviti narastajućem kriminalu, koje metode i strategiju primijeniti u borbi protiv kriminala kojem pogoduju jedinstveni gospodarski prostori kakav je, medu ostalim, i prostor Europske unije? Novi ustroj policije na razini Europske unije trebao bi biti odgovor tom izazovu.

"Community Policing" A New Style of Policing in the Community

Author(s): Stipe Ivanda / Language(s): English Issue: 01/2002

The role played by the police, as well as their activities and duties, has changed throughout history. Today, more than ever, the police in democratic states, governed by the Rule of Law, are facing new challenges. These challenges include: 1) how to confront increasing criminality under circumstances of extensive globalization; and 2) methods and strategies required to combat criminality, especially in common economic areas such as the European Union. One hopes that the new organization of the police at the level of the European Union should be an answer to that challenge.

"Constitutionalisation" of Consumer Rights in European and Polish Law

Author(s): Monika Jagielska,Mariusz Jagielski / Language(s): English Issue: 2/2010

In their essay the authors try to evaluate provisions on consumer protection contained in the Polish Constitution of 1997 and compare them to EU primary legislation on consumer protection. In the first part they show the development of consumer protection in EU and the creation of consumer legislation. They start from the analysis of EU soft law, consumer programmes and strategies and then they go on to “hard law”, especially to art. 169 of TFUE and its interpretation by European Court of Justice and art. 38 of European Charter of Fundamental Rights. Then they analyze and evaluate Polish Constitutional Tribunal judgments based on art.76 of the Polish Constitution on consumer protection. They try to answer the question on the nature of consumer protection provisions contained in primary law. Authors also try to find the basis of consumer protection in other constitutional or primary law provisions like ones concerning the protection of privacy or data protection.

"CUSTODIA", "RECEPTUM" И ДОГОВОРНАТА ОТГОВОРНОСТ. ЕДНО ПРЕПРОЧИТАНЕ НА ДОГМИТЕ НА ГРАЖДАНСКОТО ПРАВО В СВЕТЛИНАТА НА КАЗУИСТИЧНИЯ РИМСКИ МЕТОД

Author(s): Carlo Peloso / Language(s): Bulgarian Issue: 1/2016

The issues relating to liability under contract occur - regardless of their respective individual system - on the plane of the structure of decision and responsibility on the plane of the allocation of the burden of proof. The contribution, after consideration of the main classical sources on the topic of custodia and receptum, offers a rereading update of the criterion, carved in the expression praestare custodiam, by strict interpretation of Art. 1218 of the Civil code and the provisions relating to liability so-called ex recepto which focuses on general and objective one based on contractual liability (a.k.a.: what is considered a violation in itself, not guilt) and re-interpretation of the sign cause ‘that can not be attributed to the similar language and descriptive phrases in the field of lack of responsibility for duties that focus on flexibility 'classical method' of classical Roman jurisprudence and flow into the regula nautilitas contrahentium.

"Człowiek w akwarium" - postępowanie z więźniami "niebezpiecznymi" w oddziałach o specjalnych zabezpieczeniach

Author(s): Maria Niełaczna / Language(s): Issue: XXXVI/2014

Research conducted to date shows that prisoners classified as “dangerous” do not include financial offenders, white collar workers, or people convicted for causing death by dangerous driving. Prison authorities reserve this special category for prisoners convicted of crimes involving violence and/or firearms and/or crimes described by the courts in their judgements as “brutal” and indicative of psychopathic and impulsive character traits that render rehabilitation impossible. Prisoners regarded as “dangerous” include those who are unpredictable, “the worst of the worst,” those deemed depraved and impervious to rehabilitation, and those who commit further crimes and engage in risky conduct in defiance of prison rules while incarcerated (escaping, associating with opponents of the penitentiary system, refusing to obey prison guards etc.). Academic literature and reports from prison guard organizations show that super-maximum (supermax) facilities enable inmates described as highly predatory and destructive to prison order and management to be handled. However, the same sources point out the negative side effects of the high economic, legal and moral costs of maintaining these facilities and managing their inmates. Prison populations have always had aggressive and “hard to manage” individuals, but the idea of managing them separately did not occur until the 20th century. Criminological studies provide the criteria for identifying risk and the methodology for assessing it. These have enabled the key concept of “serious threat to social security or to the security of the penal facility” to be understood. This is the only circumstance under which a prisoner should be classified as “dangerous.” There are two aspects of what “serious threat” means. On the one hand, the phrase denotes those factors that depend on the convict and which the convict can control and modify. On the other hand, it denotes those factors that depend entirely on the measures adopted by the prison authorities who implement and shape them. These range from ensuring an appropriate prison environment to employing user-friendly management and control methods. The responsibility for attenuating risks does not rest solely on the prisoners, but also, if not primarily, on the correctional officers and the system they create. That a prisoner is incorrigible is no justification for labelling him “dangerous” and keeping him in isolation and maximum security for the duration of his sentence. The machinery of the state, with all its experts, academic and practical knowledge and a budget to fund it all, has to be more knowing and better equipped than an individual prisoner, who only has unstable emotions and weak self-control mechanisms at his disposal and/or is bent on self–destruction. When the state fails to offer a solution acceptable to all parties that have an interest in the “dangerous” status, then it is weak and will remain so.

"Da li višak sudova i sudija?"

Author(s): Anonymous Anonymous / Language(s): Serbian Issue: 342-343/2004

Situation in Justice's department in Serbia.

"Das Ganze lebt überhaupt nicht mehr". Enzyklopädien des Rechts

Author(s): Rainer-Maria Kiesow / Language(s): German Issue: 16/1997

"DEMOKRATYCZNE ŚWIECKIE PAŃSTWO PRAWNE"

Author(s): Katarzyna Sójka-Zielińska,Hubert Izdebski ,Wiktor Wysoczański / Language(s): Polish Issue: 39/2001

"Dialogue" of the High Courts CJEU – CCR – HCCJ, regarding the prescription of criminal liability

Author(s): Tudorel Toader / Language(s): English Issue: 01/2022

The constitutional order is ensured by the jurisprudence of the constitutional court. The Court of Justice of the European Union cannot call for violation of the balance between state powers, nor for non-compliance with the principle of legality. The Supreme Court cannot disregard the case-law of the the Constitutional Court of Romania, it cannot establish the existence of a systemic risk, it cannot violate the principle of legality. The competences of the three High Courts are complementary without any collision.