„Osoba podejrzana”, „podejrzany” i „oskarżony” w polskim procesie karnym – zakres pojęciowy

Author(s): Mariusz Kucharczyk / Language(s): Polish / Issue: 27/2017

The subject of this article is nomenclatural interpretation of the notions of “a person of interest”, “a suspect” and “a defendant” in Polish Code of Criminal Procedure – the parties in criminal proceedings who are suspected of committing a crime or who are charged with a crime. The article discusses the legal definitions of the word “suspect” according to Article 71 § 1 of the Code of Criminal Procedure (i.e. a person against whom a statement of objections has been issued and a person who has been charged on the grounds of examination of the person in question as a suspect) as well as the word “defendant” according to Article 71 § 2 and 3 of the Code of Criminal Procedure (sensu stricto and sensu largo). Moreover, the article provides an overview of the available definitions of “a suspect” and “a person of interest” – parties named directly in the Code of Criminal Procedure.In addition to that, the article discusses the notion of “actual suspect” (whose definition and understanding varies in the doctrine), which emerged from the previously effective Code of Criminal Procedure. The article analyses the legal standing of such an “actual suspect” in the context of Article 233 § 1a of the Criminal Code (a regulation which is considered potentially unconstitutional).While discussing the figure of the “suspect”, the author analyzes terms such as “issuing” and “preparation” – in connection with Article 71 § 1 and 313 § 1 of the Criminal Code and the lack of agreement within the discipline regarding the precise time at which the statement of objections has been issued (which is connected with obtaining the position of the passive party to proceedings in criminal procedure).Moreover, the article discusses in some detail the legal standing of a person against which a motion has been presented, according to Article 354 of the Code of Criminal Procedure, regarding the discontinuation of proceedings and issuing preventive measures protecting the person of an insane perpetrator – in the context of nomenclature.

„Osoba polskiego pochodzenia”. Terminologiczno-prawny aspekt represji po powstaniu styczniowym na Ziemiach Zabranych

Author(s): Roman Jurkowski / Language(s): Polish / Issue: 1/2019

The development of the system of reprisals against the Polish landed gentry in the Taken Lands after the fall of the January Uprising (1864) resulted in the need to legally define the subject of system restrictions by the Russian state. It was therefore necessary to determine who was a “person of Polish descent”, and devise a method of separating such a person from other inhabitants of a multinational and multi-religious society living in the former Commonwealth lands taken by Russia. The purpose was to determine who should pay the contribution imposed on the Polish population for participating in the January Uprising (1863–64) and who should be subject to restrictions in the land sales in the Western guberniyas. This was done not only by special committees (Western Committee), and special commissions (e.g. for the Settlement of the Russian Element in the Western Country of 1865), but also state ministries (mainly the Ministry of the Interior), successive state cabinets (especially under Tsar Alexander III), and governor-generals from Vilno and Kiev as well as more zealous Russifiers in the persons of governors from nine Lithuanian-Belarusian-Ukrainian guberniyas. This task turned out to be too difficult for members of the Russian bureaucratic machine; in practice, the ethnic differentiator (sometimes based on the everyday language) was combined with the religious one (Catholic). So the “person of Polish descent” was usually a Pole who used Polish at home and professed Catholic faith. Problems appeared when the landowner was of Polish nationality, he spoke Polish, but he was not Catholic, e.g. Orthodox, or he was Catholic, he spoke Polish, but he considered himself a German, or worse, a Russian! In the face of such cases, which were not uncommon, everything (i.e. paying contributions and the right to trade in land) depended on the decision of an individual governor.

„Owoce zatrutego drzewa” z perspektywy oskarżyciela publicznego w aspekcie konstytucyjnych podstaw procesu karnego

Author(s): Mariusz Krasoń / Language(s): Polish / Issue: 28/2019

The problems of the so-called poisonous tree in the course of the preliminary legal proceedings appear and continue to appear basically in every individual instance of the evaluation of the body of evidence submitted to the public prosecutor’s department. The task of the public prosecutor’s department has to do inter alia with the keeping of law and order and the supervision of the prosecution of crime. This task is realised by the supervision of the consistency of the preliminary legal proceedings with the law, and the initialisation and the performance of operational-examination activities by law enforcement organs in the scope of activities which is stipulated in the acts of law which regulate the organisation and the object of activities of these organs. The supervision which was indicated should be realised in an in-depth, comprehensive and substantive manner. Within the framework of the evaluation of the activities engaged by other organs, including those that are authorised to execute and conduct operation-related activities, the public prosecutor is obliged to evaluate the correctness of the process of the accumulation of evidence and the making of decisions in terms of the scope and the means of utilising the said evidence. Such control may and should be conducted with reference to the constitutional principles, described particularly in Art. 2 – the principle of a democratic state of law, Art. 7 – the principle of legalism, Art. 45 Par. 1 – the principle of the right to a trial and the resulting principle of the right to due process. The regulations of the Constitution of the Republic of Poland have not been modified since 1997, therefore with the changed state of the regulations of the Code of Criminal Law (the addition of new regulations in Art. 168 a and b ) or the competence-related acts of law, it is still possible to interpret these regulation in terms of the constitutional norms which were indicated. The new content which was introduced to the code of criminal procedure is a source of serious constitution-related doubts, and the evaluation of the material which was submit ted to be treated during criminal proceedings may lead to statements that the very fact of having acquired a piece of evidence with the violation of regulations or by means of a criminal offense and the simultaneous violation of the regulations of the Constitutions is sufficient to preclude the utilisation of a given piece of evidence in these legal proceedings and to preclude the establishment of the actual state of affairs on the basis of such a piece of evidence. It is impossible to accept a situation in which the functionaries of the state, i.e. of public authorities, can collect evidence-related material in violation of the law which is binding and it is in keeping with the law that, on the basis of this material, citizens may bear criminal responsibility.

„PARAFIA W PRAWIE KANONICZNYM I W PRAWIE POLSKIM”, REDAKCJA SŁAWOJ LESZEK GŁÓDŹ, JÓZEF KRUKOWSKI, MIROSŁAW SITARZ, LUBLIN [2013], TNKUL, s. 293, ISBN 978-83-7306-616-8

Author(s): Marcin Nabożny,Władysław Wyszowadzki / Language(s): Polish / Issue: 21/2014

„Părintele vitreg” – un străin de iure (sau de facto)?

Author(s): Emese Florian / Language(s): Romanian / Issue: 11/2017

The “step-parent”, namely the husband or, as the case, the consensual partner of a child's parent, is an almost irrelevant character from a juridical perspective. The Civil Law grants them a series of facilities in the adoption field and also sets the possibility, circumstantially, to constrain the parent's husband/wife to continue the minor's maintenance; nevertheless, these are seclusive stipulations, unable to define the place, the role of the "step-parent". The author brings into attention the marital/nonmarital companion of the parent in two significantly different hypostases: as an aspirant to the "title" of a fully-fledged parent (through adoption); as an "additional" person in the context of joint exercise of parental authority by the child's father and mother. In the author's opinion, there are situations in which the effective and affective presence of the "step-parent" in the child's everyday life, its direct participation in the growth, maintenance, and supervision of the child is, regrettably, impossible to consolidate through a legal formula. The possibility of adopting the child by the adoptive parent's consensual partner can be understood as the beginning of another approach, but adoption is still completely inaccessible to the consensual partner of the natural parent. Regarding the exercise of parental authority within the "recomposed" family, the author believes that the French model of "delegation-sharing" exercise of parental attributions should be followed by the Romanian legislator. Through this mechanism, which does not alter the algorithm of joint exercise of parental authority by the parents of the child, for current acts relating to the child, the husband/wife of the parent, eventually the unmarried parent's consensual partner, would benefit towards third parties by the presumption of parental consent.

„Piercing the Corporate Veil Doctrine in Poland?” A Comparative Perspective

Author(s): Michał Rządkowski / Language(s): English / Issue: 2/2015

This article explains the concept of piercing the corporate veil doctrine which is widely recognised in common law countries. Generally, the doctrine allows the extension of liability for a company’s debts to shareholders and officers, if any kind of fraud or unfairness is involved. This dissertation focuses on differences between American and British attitudes towards the doctrine and analyses the grounds for the what is known as “judicial piercing” and “statutory piercing”. Nevertheless, the main purpose of this paper is to answer the question of whether the piercing doctrine can be applied to the Polish legal system. Officially, it has never been recognised by Polish jurisprudence and courts. However, in-depth research on that issue can provide really surprising results. It seems that current statutory measures in Poland can extend the liability of a company towards officers, directors etc. and can easily be compared with “statutory piercing”. The article also touches on the problem of shareholders’ tort liability under Polish law. Furthermore, the article sheds light on the new Polish Insolvency Act and its consequences for the concept of corporate liability as well as the “Amber Gold” case, one of the biggest financial scandals in Poland for many years.

„Plantowanie” wyborów posłów, komisarzy i urzędników przez stronnictwo regalistyczne na sejmiku województwa kijowskiego w Żytomierzu w 1790 roku

Author(s): Tadeusz Srogosz / Language(s): Polish / Publication Year: 0

„Polska w soczewce”. Ewolucja i modernizacja systemu opieki/pomocy społecznej w perspektywie instytucjonalnej

Author(s): Krzysztof Chaczko / Language(s): Polish / Issue: 2/2016

In this article, I discuss the evolution of social welfare in Poland. I focus on the institutional perspective, which shows changes in the institutions in this area. In the first part, I present the development of social welfare in the Second Polish Republic (1918–1939) and then describe changes in the communist period and the Thrid Republic after 1989. At the end of my contribution, I discuss the plans for the modernisation of the Polish social welfare system.

„POZITIVNO DEFINIRANE OBAVEZE DRŽAVE BOSNE I HERCEGOVINE“

Author(s): Lada Sadiković / Language(s): Bosnian / Issue: 1/2010

The European Convention offers great privileges to as well as lays certain liabilities upon all signatory states, including Bosnia and Herzegovina. European Human Rights Court classified those liabilities into two categories, that is negativelly and positively defined liabilities. As different from negative liabilities, in charge of Human Rights Court ever since its establishment, the positive liabilities of the states derive from the very contents of the European Convention and thus have become particularly interesting by the end of the sixties. Those do have an enormous importance for the state of Bosnia and Herzegovina since it is necessary to reshape fundamental constructional contradictions and incompleteness of its Constitution.

„Prawnoczłowiecze” spojrzenie na czynne prawo wyborcze

Author(s): Anna Frydrych-Depka / Language(s): Polish / Issue: 21/2016

The article discusses the issue of the right to vote as a basic political right expressed in rules and standards of international law. Right to vote as a crucial human right has been presented based on two examples, showing lack of or problematic compliance of Polish electoral law with international human rights law. As first is analyzed the question of disenfranchisement of persons being incapacitated – this is the most important dilemma for the domestic legislator. The second – implementation of the voting rights of persons held imprisonment – is more practical. For it is not enough to grant voting rights in the legal acts eg. in the constitution. It is essential to build the necessary guarantees, which allows to use it by all eligible voters. Only then we can say that right to cast a vote has an actual “human right” dimension.

„PRAWO I ŁAD SPOŁECZNY”

Author(s): Author Not Specified / Language(s): Polish / Issue: 40/2002

„PRAWO RZYMSKIE PONAD GRANICAMI”

Author(s): Jerzy Krzynówek / Language(s): Polish / Issue: 39/2001

„PRAWO WCZORAJ I DZIŚ”

Author(s): Katarzyna Sójka-Zielińska,Grażyna Bałtruszajtys / Language(s): Polish / Issue: 39/2001

„Preţul constă într-o sumă de bani.” De la moneda de cont la „moneda” virtuală (şi înapoi)

Author(s): Bercea Lucian / Language(s): Romanian / Issue: 03/2017

This study represents a critical analysis of the potential expansion of the sphere of the concept of money as a result of the creation of virtual currency schemes. The analysis has as a starting point the condition of validity regarding the sales contract, namely the fixing of the price in money. The recognition of currencies and the regulation of monetary forms are essential conditions for the monetary classification. The emerging virtual “currencies” do not fulfil, for the time being, such requirements.

„Promieniowanie” konstytucji

Author(s): Maciej Borsiak / Language(s): Polish / Issue: 98/2016

The text deals with the phenomenon of influencing the principles expressed in the Constitution on the other branches of law, in particular to the private law. The starting point is to present the origins in jurisdiction of the Federal Constitutional Court in Karlsruhe and discussion on the evolution of the relationship between constitutional law and the principles of the German Basic Law in according to the BGB, especially in the context of protection of social rights. Then, the subject was discussed in reference to American law, in relation to the nature of the common law, and combining with the doctrine of a “living constitution”, which allows a flexible, up to date interpretation of the US Constitution. Finally, there is the analysis of the Polish law and attempt to answer the question, whether presented phenomenon also occurs on the basis of regulations of the Constitution of the Republic of Poland and the Polish civil law, what premise may be, eg. the principle of direct application, which is the basis for not only vertical, but also horizontal impact.

„Proprietatea” folclorului – aspecte de drept comparat

Author(s): Vlad Vieriu,Nicoleta Rodica Dominte / Language(s): Romanian / Issue: 02/2010

Folklore is an important element of traditional artistic heritage of a nation. Protection of folklore is a controversial subject, because national legislations have different dispositions. Developing countries have provided for copyright protection, while developed countries consider that folklore is in public domaine, such as France. International protection is given under WIPO’s Model provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and other Prejudicial Actions adopted in 1982. The international provisions forsaw a sui generis protection throuhg the adoption of a specific legislation for folklore at national level. Romanian legislation protects expressions of folklore by the dispozition of Law no. 26/2008 regarding the protection of immaterial culural heritage. However, Law no. 26/2008 do not provide protection against ilicit exploatation of folkloric music. In the paper, we analzye if it could be provided a copyright protection for expression of folklore in Romania. As a conclusion, we propose the elaboration and adoption of a model law for protection of folklore in Romania.

„Protocolul dialogului”. Protocolul nr. 16 la Convenţia europeană a drepturilor omului

Author(s): Catrinel Brumar,Oana Florentina Ezer / Language(s): Romanian / Issue: 12/2014

The article is generated by the Romania’s signing of Protocol no. 16 to the European Convention on Human Rights. Called "The Dialogue Protocol" by the President of the European Court of Human Rights, Judge Dean Spielmann, Protocol no. 16 is a reform protocol that provides for the highest jurisdiction of the Contracting Parties the possibility of seeking an advisory opinion to the European Court of Human Rights when they consider that a particular pending case raises a serious problem concerning the interpretation or application of the Convention or its protocols.

„Przestępstwa z nienawiści” na tle wyznaniowym w prawie polskim

Author(s): Małgorzata Tomkiewicz / Language(s): Polish / Issue: 16/2015

The freedom of conscience and faith is one of the most basic rules in contemporary and democratic societies, and is adopted in domestic and international law. It comprises the freedom of religious beliefs, the acceptance and rejection of any religion according to personal choice, as well as expressing, individually or together with others, publicly or privately celebrated religion and beliefs. This manifestation may be expressed in acts of worship, prayer, religious observances or in teaching.The adjustments in criminal law which prohibit religious discrimination are the guarantee of this freedom, which is expressively stipulated in the Polish Penal Code. According to arts. 188, 119 and 194, there is a ban on any discrimination because of denominational affiliation. Moreover, the legislator penalizes, in arts. 256 and 257, incitement to hatred in public due to religious beliefs or atheism, and insults to a group of people or individuals in public because of religious discrimination.The issue of “hate speech” and crimes committed because of discrimination, including religious discrimination, (hate crime; biased-motivated crime) is becoming a more frequent phenomenon, both in the world generally and in Poland. The awareness of the growth of this phenomenon is not visible, however, in the number of connected criminal procedures which are conducted in Poland. Such a situation leads to the question of the reason for such small effectiveness in this matter. This article tries to answer this question.

„Rectificare şi ştergere”

Author(s): Călina Jugastru / Language(s): Romanian / Issue: 02/2018

GDPR contains a consistent inventory of data subjects' rights. Some of these rights have been previously regulated (Directive 95/46 / EC), some rights have been evoked (without being expressly enshrined), and others have acquired normative status with the entry into force of the Regulation. Under the generic „Rectification and deletion”, some of the rights of the data subject are processed. The right to rectification, the right to delete data, the right to restrict processing and the right to portability. All these prerogatives relate to the right to respect for privacy and the right to the protection of personal data (the last one, stated in the preamble to the GDPR).

„Relativitatea” motivelor absolute de refuz a unei mărci

Author(s): Pavel Eduard Sorin / Language(s): Romanian / Issue: 1 (50)/2017

Under Law 84/1998, a trademark may be invalidated due to the existence of relative or absolute grounds for refusal. While relative grounds for refusal protect a particular interest (the conflict of the trademark with prior rights owned by third parties), absolute grounds for refusal protect a general interest such as legal certainty, compliance of Law 84/1998 with EU Regulations, international conventions to which Romania is party and with Romanian Constitution. For both absolute and relative grounds for refusal, Law 84/1998 provides a statutory limitation period within which a trademark can be invalidated after registration. This statutory limitation period expires after five years since the registration of the trademark. However, a trademark filed with bad-faith is not subject to this statutory limitation and can be invalidated anytime throughout its period of protection. While the prescribed statutory limitation period is fully justified for invalidation of trademarks due to relative grounds for refusal (statutory limitation operates here as penalty applied to trademark's owner, who was not diligent enough to exercise their trademark rights against third party who registered the later infringing sign), it is not justified for invalidation proceedings based on absolute grounds, in which case the statutory limitation is liable to bring Law 84/1998 in conflict with EU law and the Romanian Constitution.