Nemzetiségi jogok a Muravidéken

Author(s): Péter Varga / Language(s): Hungarian Issue: 1/2023

The study provides a detailed overview of the Slovenian national minority protection environment. It examines the relevant principles and sectoral regulations of the Slovenian legal system, which, though unchanged in its essential elements since its development in the early nineties, has been constantly evolving in its details. In addition to addressing the main legal provisions, it describes the landmark decisions of the Constitutional Court that have shaped Slovenian legal thinking on minority rights. It gives special attention to the domestic experience of implementing written law and to the findings of international monitoring bodies.

Dostęp do oddłużenia w obliczu konstytucyjnej zasady równości wobec prawa. Ewolucja polskich uregulowań prawnych

Author(s): Marek Mrówczyński / Language(s): Polish Issue: 2/2024

Debt relief was introduced into the Polish legal system in 2003 as a part of the regulation included in the new Insolvency Act. The article presents an evaluation of the debt relief regulation from the point of view of equality before the law, using the dogmatic-legal method. Making such an evaluation is a matter of fundamental importance, as the principle of equality before the law is stated not only by the prescriptions of Polish Constitution but also by international and European law. Initially, debt relief was really intended only for persons conducting business activity, specifically natural persons, as there are no reasons for applying such a legal institution to corporations. In any case, at the outset there was no equality among natural persons in the field of debt relief. But changes occurred in 2008 when consumer bankruptcy came into force in the Polish legal system. Later, both the regulation of business bankruptcy and the regulation of consumer bankruptcy were significantly amended, several times. The most important conclusions drawn from the analysis of this evolution concern the comparison between the situations of entrepreneurs and consumers from the point of view of access to debt relief. Following the amendments, it may be stated that natural persons have the right to debt relief, regardless of whether or not they conduct business activity. As a result of the changes analysed in the article, legal solutions that conflicted with principle of equality were to a significant degree eliminated.

Trzymając się Konstytucji: o prawnym znaczeniu pierwszego orzeczenia aborcyjnego w Polsce

Author(s): Paulina Jabłońska / Language(s): Polish Issue: 2/2024

In 1997 the Polish Constitutional Tribunal held that the so-called ‘social premise’ for the permissible termination of pregnancy is unconstitutional. As the judgment had been issued before the 1997 Polish Constitution entered into force, one can raise some doubts concerning the legal importance of this ruling. The key question is: What are the effects of the first abortion judgment’ today? Does the 1997 Constitution preclude the introduction of the social premise? The paper aims to answer these general questions. The contribution to the doctrinal discussion is twofold. First, the paper offers a new interpretation of the effects of the first abortion judgment and certain provisions of the 1997 Constitution. Second, it challenges the view that this judgment and/or the Constitution exclude introducing the social premise for permissible abortion. The paper claims that the legal importance of the first abortion judgment to the legislator is less than constitutional doctrine and the Tribunal suggest. Taking into account the findings of the Constitutional Tribunal in this judgment, the legislator should not adopt the social premise in its exact 1996 wording. However, the constitutionality of the social premise as such should be recognized as unsettled.

Delegitymizacja porządku prawnego a kryzys idei rządów prawa i liberalnego konstytucjonalizmu

Author(s): Paweł Kokot / Language(s): Polish Issue: 2/2024

In a stable, functioning democracy, the law serves crucial social functions that contribute, on the one hand, to fostering consensus among members of society regarding the values implemented by the law, and on the other hand, to forming a sense of approval for the actions of the State and public authorities. The article concerns the opposite situation, namely the specificity of the relationship between the governing and those being governed, as well as the actions of power entities during the crisis of the idea of the rule of law and liberal constitutionalism. In order to describe these issues, the processes of legitimization and delegitimization of the legal order are characterized and confronted with the activities referred to in the literature as the instrumentalization of law. It seems that all these processes are closely interconnected. The instrumentalization of law, conducted with respect for the rules of construction of the legal system, appears as a significant element of the process legitimization of the legal system, in particular during a period of political transformation. In turn, the so-called wrongful instrumentalization of law demonstrates a significant connection with the process of delegitimization of the legal order, in which the construction of social order and respect for the rule of law take a back seat, and the most important aim of political power becomes the deconstruction of the existing understanding of democratic constitutional principles in favour of the projected vision of social relations.

Pojęcie narodu w polskim prawie konstytucyjnym a praktyka polityczna lat 2015–2023

Author(s): Igor Ksenicz / Language(s): Polish Issue: 2/2024

The article aims to determine how the concept of ‘nation’ has evolved in Polish constitutional law against the background of examples of political practice in the years 2015–2023. The author verified the following hypothesis: despite the civic concept of the nation resulting from the Constitution of the Republic of Poland, the United Right government, for political purposes, narrowed its understanding to the cultural and ethnic nation, which resulted the rights of national and ethnic minorities being limited. The first part of the text contains an interpretation of constitutional provisions, historical and in force, devoted to the nation, as well as an analysis of judicature and doctrine. It is established that despite the political concept of the nation in force in Poland, some of the doctrine takes a position that privileges foreigners of Polish origin and those who have undergone assimilation in the procedure of applying for Polish citizenship. The actions of the Polish authorities aimed at national and ethnic minorities, which became hostages of problems that were not resolved at the interstate level, are assessed negatively (in the second part of the text, this is illustrated by case studies of the Ukrainian, Lemko and German minorities). Attacks on minorities driven by current political needs set a dangerous precedent. In the future, similar actions may be targeted at other social groups.

Deadline for examining an application for security in Czech and Polish civil proceedings

Author(s): Anna Zemandlová,Krzysztof Drozdowicz / Language(s): English Issue: 2/2024

The article aims to analyse the issue of the deadline for examining an application for security in Czech and Polish civil proceedings. The comparative law method was used in the work. The publication compares normative solutions regarding the deadline for examining an application for security in the Czech Republic and Poland. The article presents an analysis of special solutions used by the legislator in selected cases where it is necessary to schedule a hearing or accelerate the consideration of an application for security. The issue of the consequences of considering an application for security in violation of the deadline set by the legislator is raised. The research conducted allowed the following conclusions to be drawn. In both Polish and Czech civil proceedings, security proceedings are an independent part of the proceedings, separated from enforcement proceedings. In both legal systems, the deadline for examining an application for security is advisory, and exceeding it does not result in any sanctions. In Czech civil proceedings, applications for security are not examined at a hearing, while according to Polish regulations it is obligatory in some cases. In the Czech Republic, there are two types of special security measures for the immediate protection of children and against domestic violence. Polish legislation seems to be more flexible and better protects the procedural rights of the parties than the Czech Code of Civil Procedure. The presented analysis may contribute to the discussion on possible changes in the provisions of civil procedural law in Poland and the Czech Republic.

Problem podmiotowości prawnej spółki komandytowo-akcyjnej w organizacji

Author(s): Rafał Adamus / Language(s): Polish Issue: 2/2024

This article is a critical analysis of the concept of the lack of legal subjectivity of a pre-partnership limited joint-stock partnership (company in organization). It indicates the essence of a commercial company in organization, as well as the differences between capital companies in organization and partnerships in organization. Legal personality in a capital company in organization is presented as an effect of a certain evolutionary need for capital companies. A special type of limited joint-stock partnership is emphasized, in particular, its mixed personal and capital character. Attention is drawn to the fact that contributions are made to this pre-company, such as real estate or a company. The concept of legal personality of a pre-company in organization is the best standard for accepting contributions and administering them. If a joint-stock company in organization benefit from special legal facilitations, then a limited joint-stock partnership in organization that accepts contributions to the share capital in a similar way should also benefit from these special facilitations. The legal standard for contributions to both types of companies is the same. The presented concept does not imply a postulate of opening legal personality to other types of partnerships in organization. The revealing norm of Article 126 of the Polish Commercial Companies Code allows for an appropriate interpretation, as a result of which the provision of Article 11 of the Commercial Companies Code will apply to a limited joint-stock partnership. The study ends with the formulation of certain de lege ferenda conclusions.

The law applicable to claims for breach of duty of care by foreign controlling companies and their directors under EU law

Author(s): Ariela Mucha / Language(s): English Issue: 2/2024

The research presented in the article aims to identify the criteria for determining the law applicable to third party claims against board members and parent companies for non-contractual obligations. The article examines the provisions of EU law and the case law of the Courts of Justice on the basis of the dogmatic method, combined with elements assessing the economic efficiency of the identified approaches. Research on this topic is prompted by the absence of an adequate legal framework determining the qualification of the claims in question. The Rome II Regulation only provides for the exclusion of company law claims from its scope. However, this exclusion does not provide criteria for determining which claims fall under company law. This issue was recently addressed by the Court of Justice in the case of BMA AG, C-498/20, concerning the scope of the law applicable to the liability of a German company for breach of the general duty of care towards the creditors of a Dutch subsidiary. The Court held that such a claim should be classified as lex delicti. The findings of the research suggest that the Court of Justice has not offered clear criteria that would enable national authorities to distinguish between corporate and tort claims. Meanwhile, it seems that there are more arguments in favour of the corporate nature of claims arising from decisions relating to the management of the company’s assets.

Hindsight bias and the practice of arrests in Poland

Author(s): Barbara Janusz-Pohl,Michał Wawrzyńczak / Language(s): English Issue: 2/2024

This comparative study deals with the various forms of arrest in the Polish criminal law system. The authors used the dogmatic-legal and comparative methods, and applied the empirical method in several case studies. The background of the considerations is the proposal of a typology of procedural arrests, based on the Code of Criminal Procedure and non-procedural arrests, based on special laws. The main subject of consideration is the risk of instrumentalization of arrest, which can be considered at several levels: structural, concerning the abuse of the grounds for arrest, and peri-arrest activities (such as informing and questioning the detained person). Within these are three risks of instrumentalization: abuse of the law sensu stricto, sensu largo, and violation of law. Hindsight bias helps to understand the risk of the instrumental application of the law. If the law poses a severe risk of instrumentalization, it must be changed. The authors conclude that the Polish legislator ignores these risks until the law is misapplied. Instead, a proper diagnosis of risks should lead to legislative amendments. The authors propose that mandatory recordings of actions should be introduced. To further strengthen the right to defence, the authors propose changes to the sequence of actions (peri-arrest activities), especially regarding the hearing of the arrested person. Moreover, there is doubt about the standards for applying non-procedural arrests, where the general rules of the Code of Criminal Procedure should apply. Still, the diverse status of the bodies authorized to carry out such actions is a factor that increases the risk of instrumentalization.

Admitere excepție de neconstituționalitate. Dispozițiile art. 100 din Legea nr. 303/2004 privind statutul judecătorilor și procurorilor. Sancțiune disciplinară

Author(s): Author Not Specified / Language(s): Romanian Issue: 3/2022

Curtea Constituțională, decizia nr. 363/2022, M. Of. nr. 731 din 20 iulie 2022

Prawa kobiet w parlamentarnej kampanii wyborczej w Polsce w 2023 r.

Author(s): Magdalena Lesińska-Staszczuk / Language(s): Polish Issue: 02/2024

Cel badawczy niniejszego artykułu stanowiło zweryfikowanie, w jakim stopniu tematyka praw kobiet była zawarta w programach poszczególnych partii politycznych, biorących udział w kampanii wyborczej do parlamentu w 2023 r. w Polsce. Ocenie poddane zostały programy następujących komitetów wyborczych: KW Prawo i Sprawiedliwość (PiS), KKW Koalicja Obywatelska PO .N IPL Zieloni. (KO), KKW Trzecia Droga: Polska 2050 Szymona Hołowni - Polskie Stronnictwo Ludowe (PSL), KW Nowa Lewica oraz KW Konfederacja Wolność i Niepodległość. Analiza programów poszczególnych partii oraz wypowiedzi polityków potwierdziła tezę, iż kwestia praw kobiet była stale obecna w parlamentarnej kampanii wyborczej w 2023 r. W jej weryfikacji wykorzystana została metoda porównawcza, mająca na celu zestawienie dokumentów programowych opisywanych ugrupowań i wyciągnięcie konkretnych wniosków. Głównymi tematami, w kontekście równości płci i praw kobiet, okazały się kwestie zdrowia reprodukcyjnego m. in. procedury in vitro, możliwości przerywania ciąży, opieki okołoporodowej, ale także wsparcia polskich rodzin w wychowywaniu dzieci i łączeniu obowiązków rodzicielskich z zawodowymi.

POLITICAL POWER, AUTHORITY, AND LEGITIMACY: ANALYSING THE INCONSISTENCY OF MILITARY RULE WITH DEMOCRATIC GOVERNANCE IN WEST AFRICA

Author(s): Tayewo A. Adewumi / Language(s): English Issue: 1/2024

On January 28, 2024, the media came alive with the news of the three Francophone West African countries leaving the Economic Community of West African States (ECOWAS). Before this, the military junta of the Niger Republic had approached the ECOWAS Court of Justice praying for the lift of sanctions imposed upon them by the ECOWAS, the quest to lift these sanctions failed because the court made it clear that it recognizes only democratic government as the only legitimate government. The three questions that this article seeks to answer are whether there is any country in West Africa with a democratic military government, whether the military juntas of these countries can withdraw from ECOWAS through media announcements, and whether their withdrawal from ECOWAS has implications. To answer these questions, this article examines the concept of political power, authority, and legitimacy by adopting theoretical and doctrinal study of primary sources and secondary sources. This study examines and evaluates information and provisions contained in international treaties, conventions and protocols, journal articles, books, newspapers, and materials sourced from the internet.

ARTICLE 98 OF THE ROME STATUTE AS A SHIELD AGAINST THE PROSECUTION OF INTERNATIONAL CRIMES BY THE INTERNATIONAL CRIMINAL COURT

Author(s): Fon Fielding Forsuh / Language(s): English Issue: 1/2024

Article 98 of the Rome Statute makes provision for immunity and non-surrender agreements contrary to the objective and purpose of the Statute, thereby shielding perpetrators from prosecution for international crimes. This cuts down on the ability of the International Criminal Court to achieve its mission. Adopting a doctrinal method of research, this paper examines the effects of Article 98 and concludes that it has been the foundation of bilateral immunity and non-surrender agreements culminating in several approaches adopted by States, and International Organizations to insulate perpetrators from ICC prosecution. It is therefore recommended inter alia that State parties should not adopt measures friendly to Article 98 and its effect can be ignored by considering the requirement to waive immunity into an impartial, unbiased, and effective command from the UNSC to cooperate with the ICC in the prosecution of international crimes.

Changing Narratives of Jan and Maria Malisz’s Case (1933): Social, Legal and Cultural Perspectives

Author(s): Katarzyna Jaworska-Biskup,Michał Peno / Language(s): English Issue: 34/2023

In 1933, Cracow was the scene of a brutal murder of three people: Helena and Michał Süskind and Walenty Przebinda, a postman. The bloody slaughter of the victims had taken place on Pańska street, in the city centre of Cracow. It was soon revealed that the crime had been perpetrated by the impoverished couple Jan and Maria Malisz. The speedy public trial of the culprits ended with two death sentences. Jan was hanged after rendering the verdict. His wife Maria escaped death by being pardoned by the president of Poland, Ignacy Mościcki (1867–1946). The case triggered the attention of many commentators. It was widely described in the press. It was also the topic of many books and papers, especially documentaries dealing with the theme of famous crimes in Poland in the 1930s. Despite the great interest in the case, no critical research has been devoted thereto, which is the rationale behind this scholarly contribution. The paper discusses how the case of Jan and Maria was framed in various narratives. The analysis combines social, legal and popular culture perspectives and entails such sources as court documents, the press coverage, post-war legal documentaries, and Internet forums, as well as the 1972 film Na Wylot directed by Grzegorz Królikiewicz (1939–2017). It is of particular interest to show how the case was presented in the source material. The paper also investigates the effect of such a presentation on the changing perception of the case in question. The case prompts discussion on issues such as female versus male crime, partnership in crime, victim-oriented versus perpetrator-oriented approaches, and the intersection between legal and popular culture narratives. As far as the methodology is concerned, it employs Kaarlo Tuori’s theory of three levels of the law.

Производство по обезпечаване на доказателствата по ДОПК

Author(s): Krasimir Mutafov / Language(s): Bulgarian Issue: 8/2024

The article is devoted to the procedure for securing the evidence in the course of the tax insurance control, before the claim itself has been determined on its legal basis and amount by an act from the competent revenue authorities. The specific features it has have been examined, and an attempt has been made to substantiate the thesis that, in essence, coercive administrative measures are imposed in this procedure. Some “de lege ferenda” proposals have also been made with a view of improving the current legislation.

Сравнително криминалистично изследване на почерци на близнаци

Author(s): Detelina Georgieva / Language(s): Bulgarian Issue: 8/2024

This publication presents the analyses and the results of the comparative examination of texts with the same contents, which are handwritten by 23 pairs of twins. The examination is carried out with the purpose of establishing the extent of similarities, if any, between the handwriting of monozygotic (identical) and dizygotic (fraternal) twins. This is of importance for the forensic examination of documents handwritten by twins.

Задължения на търговеца за предоставяне на информация на потребителите по Директива 2011/83/ЕС

Author(s): Ivan Elenkov / Language(s): Bulgarian Issue: 8/2024

This article will analyse the main requirements set out in the Directive, focusing on the scope of the mandatory information that must be provided to the consumer, in the context of the different types of consumer contracts. The analysis also examines the means and objective criteria for assessing whether the trader’s obligations to provide information have been met, as well as the rules on the allocation of the burden of proof and on the penalties provided for in the event of non-compliance with the trader’s obligations.

Поздравление!

Author(s): Author Not Specified / Language(s): Bulgarian Issue: 8/2024

Stan i perspektywy służby cywilnej po nowelizacji ustawy o służbie cywilnej w 2015 roku

Author(s): Beata Springer / Language(s): Polish Issue: 4/2023

The article will analyse the consequences of the introduction of the 2015 statutory changes involving, among others, the abolition of competitions for senior positions in the civil service and the extinction of employment relations. The effect of these changes is excessive staff turnover, the possibility of discretionary filling of senior positions (due to lowering of competence requirements), a decrease in the number of candidates for vacant positions, a decrease in the number of appointments. The most painful effect is the noticeable regression of the civil service, resulting in an inability to retain the best qualified staff in the civil service. The lowering of standards associated with traditional features of civil service systems, such as impartiality, neutrality and professionalism, requires immediate reinforcement. A key question remains about the efficiency of the state in the context of the degradation of the civil service (especially in a pandemic situation).

Proces karny Stanisława Barańczaka

Author(s): Maciej Łuczak / Language(s): Polish Issue: 4/2023

Stanisław Barańczak was an Polish outstanding poet, translator and literary scholar. In 1976, he became involved in the defense of workers repressed after the protests in Radom and Ursus in Poland. He was a co-founder of the Workers’ Defense Committee. All its members were placed under surveillance by the Communist Security Service. In December 1976, Barańczak, not having his own apartment, bought a share in the property. Under the regulations of that time, the commune had the right of pre-emption. During a meeting on this matter, Barańczak heard that the commune would most likely not use this right. Then, as was the accepted practice, he wanted to give a monetary donation. This event became the basis for accusing the poet of paying a bribe. On February 14, 1977, Stanisław Barańczak was sentenced to one year’s imprisonment with its conditional suspension for three years. The consequence of this verdict was his relegation from the university where he worked. The criminal proceedings against Barańczak were part of the severe repression used against democratic opposition activists during the times of the Polish People’s Republic. The poet – only after the political changes in August 1980 – received a passport and was able to leave the country and take up the chair of polish literature at Harvard University.