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Wokół propozycji zmiany górnej granicy kary pozbawienia wolności oraz rezygnacji z kary 25 lat pozbawienia wolności

Author(s): Mirosława Melezini / Language(s): Polish Issue: 3/2022

The article analyses and evaluates the proposal to amend the regulations concerning the penalty of deprivation of liberty that consists in the eradication of the fixed penalty of 25 years’ imprisonment from the catalogue of penalties laid down in Criminal Code and exceeding the upper time limit of the penalty of deprivation of liberty from up to 15 to up to 30 years. The article presents the opinions of the doctrine and the judicature on the nature and function of the penalty of 25 years’ imprisonment and other penalties of deprivation of liberty, points out practical difficulties indicated in the literature that are connected with the imposition of the fixed penalty of 25 years’ imprisonment in case of perpetrators cooperating in the commission of crime, and presents proposals to amend the regulations by means of successive CC amendment bills from 2000 up to now, as well as the opinion of the doctrine on the proposed changes. The considerations presented in the article lead to the conclusion that neither the proposal to eliminate the fixed penalty of 25 years’ imprisonment nor exceeding the so-called standard penalty of deprivation of liberty to 30 years deserves approval.

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Upskirting w prawie polskim, angielskim, walijskim i niemieckim. Karalność potajemnego filmowania pod ubraniem

Author(s): Michał Głuchowski / Language(s): Polish Issue: 3/2022

Upskirting consists in taking photographs or videotaping beneath women’s dresses or skirts, usually secretly. In accordance with Polish criminal law, the conduct matches the features of recording the image of a naked person under Article 191a § 1 CC

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Ulgi podatkowe w podatku dochodowym od osób fizycznych jako narzędzie wspierające prowadzenie innowacyjnej działalności przez przedsiębiorców

Author(s): Gracjan Ciupa / Language(s): Polish Issue: 16/2022

Tax credits have been a very important component of the tax law system since Poland’s entry into free-market economy. In view of the constant legislative changes, as well as the constant development of new technologies, the author of this article decided to carry out a study in order to determine whether tax credits are a useful tool for improving the innovativeness of the activities of Polish entrepreneurs. For the purposes of this article, the method of interpretation of the binding Polish tax law was used. After separating the studied period (1989−2022) into three sub-periods (1989−2016, 2016−2021, 2021−2022), it was noted that as the economy developed and the number of tax credits increased, the innovation measured by Poland’s place in the ranking of “The Global Innovation Index” and the amount of money spent on R&D activities provided annually by the Central Statistical Office has increased. On the basis of the following research it has been proved that tax credits are a significant tool that increases the innovativeness of economic activity in our country, even though it is not the only factor that facilitates it.

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PROBLEM LAŽNIH SUPSTITUTA KOD DEFINISANJA RELEVANTNOG TRŽIŠTA U PRAVU KONKURENCIJE

Author(s): Slobodan Doklestić / Language(s): Serbian Issue: 2-3/2012

Defining the borders of the relevant market is often one of the most important issues in the competition law. That issue may arise in all three main areas of the competition law - prohibition of restrictive agreements and practices, prohibition of abuse of dominant position on the market and control of concentrations on the market. In the competition law of the European Union main conclusions with regard to the borders of the relevant market will usually be derived based on the analysis of demand through so-called hypothetic monopolist test. However, in certain situations application of this test may be inadequate due to the fact that the prevailing market price has already been raised above the competitive level (most often this will be the case when there is an undertaking with significant market power). In such cases hypothetic monopolist test may provide misleading results with regard to the borders of the relevant market by indicating ostensibly high level of substitutability of the analyzed product with other products to which the customers may revert due to a small but significant and non-transitory increase in price (so-called 'false substitutes'). Practically this may result in inclusion of such false substitutes in the relevant market and in that way in its broader definition, which in turn will generally reduce the possibility for finding of market domination on such market. In this paper the author gives short analysis of the problem of false substitutes in defining of the relevant market in the competition law, as well as of potential approaches to this problem in practice.

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NEKOLIKO PITANJA POVODOM ODNOSA PREDLOGA UREDBE O ZAJEDNIČKOM EVROPSKOM PRAVU PRODAJE I MEĐUNARODNOG PRIVATNOG PRAVA EU

Author(s): Velimir Živković / Language(s): Serbian Issue: 2-3/2012

Creation of a single European Union civil law represents a multi decade long political, legal and academic project. Its newest offspring is the European Commission proposal for the creation of a Common European Sales Law as an optional instrument for trans-boundary conduct of business. Despite this idea having some arguments in its favour, the current proposal is marred by significant legal shortcomings. This article the attention is drawn to the relation of this envisaged instrument and the existing international private law of the EU and problems arising therein. The issues of specific interest are the norms on the application of the consumer’s home law, public order and situations when one of the contracting parties is not from the EU. The conclusion lists some of the potential reasons for the shortcomings and makes proposals on how these could be overcome.

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UTVRĐIVANJE OBLASTI PRIMENE OSNOVNIH PRAVA U EVROPSKOJ UNIJI

Author(s): Vesna Ćorić Erić,Aleksandra Rabrenović / Language(s): Serbian Issue: 2-3/2012

While it is not in dispute that respect for EU fundamental rights is a condition of the legality of EU acts, the legal documents as well as the judgments of the Court of Justice do not provide clear and straightforward criteria for defining the scope of application of EU law when it comes to the Member States’ actions. The aim of this paper is to clarify and compare this ambiguous concept before and after the entry into force of the Treaty of Lisbon, that is before and after the Charter on Fundamental Rights acquired legally binding status. The latest Court of Justice case law has also been analysed to bring more certainty as to the scope of application of EU fundamental rights to Member States’ actions.

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Contractul de vânzare internaţională de mărfuri ca exemplu de acord comercial internaţional

Author(s): Olga Tatar / Language(s): English Issue: 5/2022

The Contract for the International Sale of Goods is the most important of all foreign trade contracts. This agreement is closely related to various types of work contracts - transactions aimed at the performance of work and the provision of services related to the supply of machinery and equipment. Execution of this type of contract involves the conclusion of a contract of carriage and insurance, and often also a license agreement, which is concluded in order to ensure the production of goods provided for by the contract for the international sale of goods.

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Ocena dopuszczalności pomocy państwa dla inwestycji w sektorze energetycznym w świetle zasad ochrony środowiska. Refleksje związane z orzeczeniem TSUE w sprawie elektrowni jądrowej Hinkley Point C1

Author(s): Marcin Stoczkiewicz / Language(s): Polish Issue: 16/2022

A discussion on State aid law and European Union environmental law most often boils down to the question of whether environmental aspects must or can be taken into account when assessing State aid for economic support of investments in projects with environmental impacts. This question has two parts. First, does the measure in question constitute State aid? Second, if the answer to the first question is positive, is the State aid measure in question compatible with the internal market? The consideration of environmental aspects may have important consequences for both questions. The object of this article is to try to find an answer to the questions (i) whether environmental aspects must, may or may not be part of the assessment of the question whether a support measure constitutes State aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union?, and (ii) whether environmental aspects must, may or may not form part of the assessment of the compatibility of a State aid measure with the internal market? The search for answers to these questions is preceded by a general characterisation of the relationship between competition law (including State aid law) and European Union environmental law. The aim of the research is to try to answer the above-mentioned questions. It is formulated on the basis of a legal analysis of the jurisprudence of the Court of Justice of the European Union and the decision-making practice of the European Commission in State aid cases.These studies lead to the following general conclusions: (I) environmental objectives cannot alter the concept of State aid (its definition) and therefore cannot be taken into account when assessing whether a measure constitutes State aid; (II) environmental principles and rules apply when assessing the compatibility of State aid with the internal market; (III) State aid that violates EU environmental rules cannot be considered compatible with the internal market.These conclusions also apply to aid to the energy sector, in particular to nuclear energy.

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Особенности применения полиграфа в Израиле

Author(s): Igali Cuzneţov,Andrei Lungu / Language(s): Russian Issue: 5/2022

This article discusses the basic principles of the use of the polygraph in crime investigation, the scientific research in relation to the validity of the methods of using the polygraph, and their ability to distinguish between true and false statements. The essence of the procedure, its stages, as well as the types of tests and their purpose when using a polygraph in the public and private sectors in Israel are presented.

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Wybory prezydenckie w czasie pandemii

Author(s): Marek Dobrowolski / Language(s): English,Polish Issue: 6/2022

The presidential election held in 2020 was special due to the ongoing SARS-CoV-2 pandemic, as the electoral process took place in several unusual stages. The first stage was based on the assumption that a standard electoral process would suffice to perform the election. In the second stage, an attempt was made to organise the election by postal voting. The third stage resulted from the failure to hold the vote on the originally scheduled date (10 May 2020). The fourth stage was to hold the electoral process on a new date (28 June 2020). The extraordinary circumstances under which the election took place revealed previously unknown aspects in the application of the law. The paper aims at describing different stages of the process as well as identifying legal problems that were exposed during the elections. The systematics of the article is based on a chronology of events.

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Prezydenckie prawo łaski w ukraińskim systemie prawa – zakres i wykonywanie

Author(s): Katarzyna Kaczmarczyk-Kłak / Language(s): English,Polish Issue: 6/2022

The aim of the article is to define the boundaries of the prerogative of pardon in the Ukrainian legal system in terms of the objective and subjective aspects from the constitutional point of view and the decree of the President of Ukraine on the application of the prerogative of pardon. This decree significantly restricts the decision-making freedom of the head of state in making decisions on the application of the prerogative of pardon, which raises doubts as to the compliance of the adopted solution with the fundamental law. The article compares the constitutional approach to the prerogative of pardon with the solutions adopted in the decree in order to answer the question whether they are consistent with the essence and nature of the presidential prerogative of pardon under the constitution.

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Koncepcja „polskiej wersji” realizmu wdrażanej z umiarkowanym konserwatyzmem Recenzja publikacji: Waldemar Paruch, Realizm i wartości. Prawo i Sprawiedliwość o polityce zagranicznej

Author(s): Tomasz Wicha / Language(s): English,Polish Issue: 6/2022

The reviewed monograph is a study on the foreign policy of the Law and Justice party in the period of 2015–2019. The book has a broader scope than the title suggests. It is rather a study on the state and management of foreign policy of a contemporary modern state. There are valuable references to the political thinking of the Law and Justice party, which ruled in Poland from 2005 to 2007 and after 2015.

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O roli ławników w sprawowaniu wymiaru sprawiedliwości w demokratycznym państwie prawa. Artykuł polemiczny

Author(s): Michał Grudecki / Language(s): English,Polish Issue: 6/2022

The aim of the article is to present the role of lay judges in the judicial system, taking into account the advantages and disadvantages of this institution as well as specific principles resulting from the principle of a democratic state of law. The article also assesses the introduction of the lay judge institution to the Supreme Court and presents de lege ferenda postulates regarding the improvement of the functioning of this institution as a form of social factor participation in court proceedings. It was also considered to what extent judges – including lay judges – have an influence on making the law. The conducted research is mainly based on Michał Kaczmarczyk’s monograph on this issue, which makes the text partly of a polemic nature.

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Cadrul juridic de protecţie a secretului de stat

Author(s): Alexandru Gaina / Language(s): Romanian Issue: 5/2022

In the content of this article, the definition of the term state secret and the degrees of secrecy are given, the principles and methods of assigning information to state secret are revealed, in accordance with the legislation in force, as well as the legal framework for the protection of such information is addressed.

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Aksjologia przedawnienia

Author(s): Aneta Bera-Adamczyk / Language(s): Polish Issue: 3/2022

The article is aimed at resolving a research problem on the basis of two methods: the axiological method and formal-dogmatic method, it also finds the answer to the question: what were the reasons which made the institution of limitation weak in terms of its axiological establishment within the civil law. The axiology of limitation consists of protection of the debtor. Creditor may withhold obligation by means of plea that the action was time-barred, it deprives creditor from the opportunity to claim the obligation. The shape of the given regulation makes the safety of the civil turnover jeopardised. The argumentation and the conclusions show clearly that limitation can both foster and prevent the stability of the civil turnover. This fact is a clear indication that the institution of limitation indeed shows its weakness in terms of its axiological establishment within the civil law.

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Ekonomiczna regulacja przewozów lotniczych w świetle zmieniającego się otoczenia prawnego

Author(s): Agnieszka Kunert-Diallo / Language(s): Polish Issue: 3/2022

Liberalization of air transport services and changes in the external transportation policy of the EU caused that the economic regulation of the market is also changing. As a result, the standards that are in force based on bilateral agreements and laying down restrictive attitude towards access to the market of air transport are breached. The scope of regulations covered in international aviation agreements is also widened by the addition of issues that were subject to those agreements to a limited extent if at all. The article analyses those changes and evaluates them from the perspective of the regulation of access to aviation services among various states’ economies.

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$Interpretarea semnelor obiective ale infracţiunii de tortură [art. 166' alin. (3) C.pen. al R. Moldova] prin prisma jurisprudenţei CEDO$

Interpretarea semnelor obiective ale infracţiunii de tortură [art. 166' alin. (3) C.pen. al R. Moldova] prin prisma jurisprudenţei CEDO

Author(s): George-Marius Ţical,Radion Cojocaru / Language(s): Romanian Issue: 6/2022

The legal classification of the crime of torture criminalized in art. 166' paragraph (3) of the Criminal Code of the Republic of Moldova raises the issue of identifying the component signs described in the text of the law, especially the estimated or defining signs that are established on a case-by-case basis depending on the circumstances accompanying the criminal act. In this study, the author approaches the issue of interpreting the objective signs of the crime of torture, through the lens of the jurisprudence of the European Court formed on the interpretation of art. 3 of the European Convention on Human Rights. The study has been developed within the state program: 20.80009.1606.05 “The Quality of the Judicial Act and the Respect of the Rights of the Person in the Republic of Moldova: Interdisciplinary Research in the Context of the Implementation of the Association Agreement between the Republic of Moldova and the European Union”. Within the context of the development of European criminal law in the field of human rights, such approaches are preferred in the difficult roadmap of the Republic of Moldova for integration into the great European family.

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Zbieg tytułów w ubezpieczeniach emerytalnym i rentowych. Między ochroną a elastycznością

Author(s): Marcin Krajewski / Language(s): Polish Issue: 4/2022

The article presents the rules of overlapping of titles in pension and disability insurances in Poland. The Act on the social insurance system unified the rules for being subject to social insurance. The system was based on two pillars, providing the insured with at least a minimum level of benefits and flexible rules for being subject to social insurances. Numerous amendments to the regulations introduced after 1999 made this system complex and susceptible to optimisation. The author suggests that the rules of being subject to pension and disability insurance should be simplified. He proposes to divide the insured into four categories: employed, self-employed, insured persons whose contributions are financed from the state budget and persons subject to voluntary pension and disability social insurances.

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Potencjał instytucjonalnych form dodatkowego oszczędzania w zakresie zwiększenia dochodów emerytów w Polsce

Author(s): Piotr Russel / Language(s): Polish Issue: 4/2022

The article explores the degree of popularisation of the voluntary pension system in Poland and examines the popularity of the existing forms of savings. The aim of the article is also to try to answer the question which of the existing forms of additional saving offer the greatest chance of enhancing the income adequacy of pensions by increasing the low replacement rates that can be expected from the general basic system. The paper begins with a review of selected studies on the development of voluntary forms of additional saving for retirement in Poland. In the next section the author addresses the issue of voluntary retirement savings from an individual perspective in the context of the forecast declining replacement rate. The third section focuses on an analysis of the dissemination of the existing forms of voluntary saving for retirement and their potential to increase the income of pensioniers in Poland. The conducted analysis proved that the degree of popularisation of additional forms of saving for retirement in Poland is still low, although the greatest potential for its increase should be seen in the development of employee capital plans (pracownicze plany kapitałowe, PPK).

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Wysokość świadczeń emerytalnych z Funduszu Ubezpieczeń Społecznych a finansowanie instytucjonalnej opieki długoterminowej w Polsce

Author(s): Dariusz Lipski / Language(s): Polish Issue: 4/2022

The objective of this study is to introduce the topic of old-age infirmity risk and to analyse the sources of its financing in the current legal framework, based on social insurance retirement benefits paid by the Social Insurance Institution. The problems of estimating the scale of old-age infirmity risk in Poland will be considered, and on the example of the average cost of living in a nursing home in selected cities conclusions and recommendations on possible sources of financing institutional long-term care in the future will be presented. Undertaking a discussion of the economic dimension of old age is justified primarily by the assumption that financing the specific needs of the elderly can generate extraordinary costs, both for individual households and for the public sector as a whole.

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