Rights (Claims) of Parents and the Child’s Welfare

Author(s): Paweł Bortkiewicz / Language(s): English Issue: 3/2015

In the contemporary bioethical disputes, which are at the same time political, what is often put forward is the argument of the right to have or not have a child. According to the supporters of this right, it is a consequence of widely promoted reproduction rights (which are an expression of the so-called reproductive medicine). Such a perspective constitutes an expression of a peculiar asymmetry — claims with relation to the child do not correspond with the rights of the child. The mentioned idea, visible in the acts of the codified law, is the subject of Church criticism. In place of the claims with relation to the child, the Church, by the means of John Paul II’s words, formulates an original idea and the charter on the rights of the child.

Social Determinants of the Significance of the Child in a Micro- and Mezosocial Perspective

Author(s): Jacek Kurzępa / Language(s): English Issue: 3/2015

The author touches upon the subject matter of the rights of a child within the vista of the social conditions in the micro and mezosocial perspective. In the initial part of his considerations he indicates toward the challenges that the ageing society has to face, as well as evokes the phenomenon of love — as not only an ontic value but also biological and demographic. A natural destiny and biology of the body is ageing, we should accept such a natural consequence, which for ages has been difficult and led toward negation and acknowledgement that nature can be cheated, or improved. As a result new offers appear, be it within the scope of medicine (medications that help preserve the potency regardless of the age) and also beauty and plastic surgery, which subjects to correction the natural flabbiness of the skin, its senile spottiness and naturalness. What follows the possibilities and technologies is genetic engineering and modification connected with conception, creating new life, as well as its deprivation (euthanasia). The new possibilities kindle human passion, dream of perpetual youth, deny and disclaim the law of nature. They strengthen these “dreams,” elements of cultural narration, which talk people into recognizing new axiology, accepting every “modality” of the current ethical, moral, legal and customary axioms. What also appears within the scope of the “dreams of eternity” is the necessity of commercializing emotions, interpersonal bonds, using human embryos, organs, exploitation of children and their abuse. In spite of the proclamation of rights and respect toward Human Person, regardless of age, the letter of law and declarations are not a sufficient guarantee to protect and care for children and childhood effectively. In the evoked, numerous examples of destroying the nature of childhood and treating children atrociously, the Author reveals claptrap and ineffectiveness of signatories of manifold documents and declarations on the one hand and touches upon the issue of our individual, personal responsibility for the fate of the youngest ones on the other. He emphasizes, both by generously making use of referred ideas conceived by Saint John Paul II, as well as by referring to Janusz Korczak, or Ellen Key, that the fate of the child is in our, adults’ hands. Therefore, if “our adulthood grows wild,” it is difficult to hope that we will behave properly and accordingly toward those who are weaker, smaller and dependant. In the face of the above, our adulthood, in its humanistic dimension, must continuously become better, more mature and also more beautiful, in order to meet the challenges which we face and which are connected with protecting and caring for the youngest ones.

The Art of Communicating with a Child

Author(s): Stanisława Mielimąka / Language(s): English Issue: 3/2015

The article discusses effective communication with the child, that is, giving satisfaction to all the participants of the interaction, which in the first place requires the knowledge of the components of the communication process. Messages sent by people entering into interaction with each other may take the form of specific stimuli and responses stemming from — according to Eric Berne — three states of ego personality: the ego state Parent, the ego state Adult and the ego state Child. These states are shaped from the early years of the child’s life and determine the quality of communication of each person with other people over the whole course of life. They decide whether transactions with others are simple, which generally promotes the continuation of the interaction, or crossed leading to a feeling of being not understood, or even to the interruption of the interaction. The article provides examples of simple and crossed transactions. Characteristics of the communication barriers have been given, named by Thomas Gordon the twelve typical ineffective behaviours of parents, teachers or bosses. The last part of the article indicated factors of effective communication with the child reflecting the adoption of the attitude “towards the child” including acceptance, passive and active listening, articulating statements of the “I” type, using the “method with no failures” in solving common problems, focusing on what is happening “here and now” in a relationship with the child.

An Infant in “Codex Iuris Canonici”

Author(s): Wojciech Góralski / Language(s): English Issue: 3/2015

The interest of the offspring (their conception and education), as one of the purposes of the marriage, requires taking special care of infants, thus, minors in the Church, who are below 7 years of age. The expression of this care can be, among others, ecclesiastical legislation, in the area of which, despite organic family law, the legal status of the infant has been stipulated distinctly. As far as the live-born infant is concerned, rights following from their individual natural personality, among others, right to life, parental care, human education or reception of baptism have been stipulated. As regards the baptized infant, who becomes persona in Ecclesia by reception of their first sacrament (can. 96 of CIC), provisions of the code sanction their numerous fundamental rights, among others, right to moral and religious education, to grow up in faith or right to other sacraments. The traditional, ruling for centuries, model regarding legal position of minors, which dominated in legal experience of the Church, has been amended by the Second Vatican Council, the post-council codification of the canonic law has overcome former situation only partially. However, it shall be added, that the ecclesiological renewal influenced slowly and gradually the canonic legislation and the doctrine, and this process has not been finished yet, and a new, post-council codification has overcome the former situation only partially. However, the focus of the doctrine on the central position of human person in the canonic law has progressively become even more visible.

Legal Protection of the Unborn Child

Author(s): Lucjan Świto / Language(s): English Issue: 3/2015

The article undertakes the issues of legal protection of the conceived child in Polish law. The analysis of Polish legislation and the Polish doctrine concerning the civil law situation of nasciturus leads to the conclusion that Polish law currently in force is contrary to the Convention on the Rights of the Child of November 20, 1989 which demands legal protection of a child both before and after birth. On the one hand, Polish law partially protects certain rights of the conceived child, and on the other — deprives it of the most fundamental rights, the right to life. Without the right to life, exercising any other rights by nasciturus is a fiction.

Protection of Minors in the Current Canon Law

Author(s): Damián Němec / Language(s): English Issue: 3/2015

Outgoing from a short analysis of the conception of minors, adults and persons of major age in the canon law in the 20th century, the author presents two ways of the protection of minors in the current canon law: the guarantee of their autonomous actions (personal status, cooperation with pastors of the Church, law of sacraments) and the very protection of their rights above all in the procedural law and in the penal law. Withal the author tries to identify to what degree this regulation has its fundament in the divine law or in the merely ecclesiastical law.

The Right of the Child to Access Information and to Express Views Freely

Author(s): Leszek Adamowicz / Language(s): English Issue: 3/2015

The Convention on the Rights of the Child adopted by the UN General Assembly on November 20, 1989, and ratified by Poland on July 7, 1991 (Dz.U. 1991, No. 120, item 526), includes in its contents, among others, declarations of children’s rights to information and to express those views freely in all matters concerning them directly. In particular, the right to information includes more specific issues: the right to information on parentage (the knowledge of their parents); “the right to seek, receive and impart information and ideas of all kinds, regardless of boundaries, either orally, in writing or in print, in the form of art or through any other medium of the child’s choice”; the right to receive relevant information, dependant on the age and understanding of children, which should give them the freedom to fully exercise their rights, unless this would be contrary to their welfare, and right to information about the educational process. However, the right to expression includes the right to speak in judicial and administrative proceedings, the right to freedom of expression, the right to freedom of thought, belief and religion, including its practice, the right to association and the right to assembly.

Legal Protection of the Child from Violence and the Detention of Minor Foreigners in Poland

Author(s): Małgorzata Tomkiewicz / Language(s): English Issue: 3/2015

Legal protection of the child in its normative dimension, including the protection of minors against violence, is one of the fundamental principles of contemporary legal systems, which is rooted in numerous acts of Polish and international jurisprudence. The abundance of regulations in this scope indicates that legal system in Poland shields minors against violence comprehensively and — as it seems — universally. However, there arises a question whether the law protects to the same extent minor foreigner residing in the territory of the Republic of Poland, particularly those who are subjected to the procedure of placing them in guarded camps for foreigners; which is followed by the question: Are the standards of the said protection identical in the case of minors who are subjected to detention along with their family members, and in the case of minors who are unattended? By means of the analysis of the legal solutions currently in force, the present article tries to answer the above questions.

Does the Catholic Vision of the Principle of Subsidiarity Pertain to Polish Family Law?

Author(s): Piotr Kroczek / Language(s): English Issue: 3/2015

In Polish law, among many constitutional principles, there is the principle of subsidiarity. In the context of family, the understanding of the principle in Polish legal system and in the Catholic teaching is quite similar. The aim of the article is to examine if the principle in question is present in the provisions of family law. The conclusion is that sovereignty of families is well safeguarded in Polish law by the means of the principle in question. To protect autonomy of family, one must not demand that the laws be changed, but rather that the principle be respected in application of the family law.

ŚWIĘTOWANIE NIEDZIELI W DZIEJACH KOŚCIOŁA WYBRANE ASPEKTY BIBLIJNE I HISTORYCZNO-PRAWNE

Author(s): Marcin Nabożny / Language(s): Polish Issue: 18-20/2013

Christians consider Sunday to be a Holy Day. In order to understand the meaning and essence of Sunday which distinguish it from the other days of the week, it is necessary to look at the process of its development in the history of the Church. The origin of celebrating Sunday goes back to the creation of heaven and earth, after which, on the 7th day, God rested (Gen 2, 1-4). The day was blessed by God and made holy in order to differentiate it from the working days. As such, this day is a feast of the Creator and His creation. Historical basis for the celebration of Sunday can be found in the Old Testament, where it was called the Sabbath. On this day, the Jews commemorated the creation of the world, the exodus of Egypt and the covenant between Yahweh and Israel. Old Testament Israelites understood the significance celebrating Sabbath had for their keeping faith in one God, their identity and maintaining the community. New Testament sheds new light on Sabbath through the person of Jesus Christ, who rose from the dead “on the first day after the Sabbath”. Hence, Sunday – the first day of the week, marked first by the resurrection of Jesus and then by His Christophanies and the Pentecost – has constituted a central point in the life of Christians ever since the beginning of the Church.First mentions of celebrating Sunday as Lord’s Day come from the apostolic times. They can be found in the writings of st. Paul (1 Cor 16, 2) and in the Acts of the Apostles (20, 7-14). First Christians considered taking part in the Sunday Eucharist, called, among others, the ‘breaking of bread’, a moral obli- gation. Eucharist remained a distinctive symbol of celebrating Sunday also in the post-apostolic times. Early Christian writers and Fathers of the Church deepened the theological understanding and meaning of this day (e.g. „Didache”, st. Ignatius of Antioch, „The Epistle of Barnabas”, st. Justin, Origen, Tertullian, st. Ambrose, st. Augustine). First legal attempts to regulate celebrating Sunday come from the 4th century AD. A new chapter in the history of celebrating Sun- day in the life of the Christian community was started by the Edict of Milan, issued by the emperor Constantine in AD 313. It established Sunday as a national holiday. Ever since then, the law of the Church has included norms and regulations regarding the content and range of celebrating Sunday. The issue was raised during many ecumenical councils, but the first official bill regarding celebrating Sunday was included in the Code of Canon Law in 1917. The obligation to celebrate Sunday was also emphasized in the Code in 1983 and in the Catechism of the Catholic Church in 1992. ‘Dies Domini’ an apostolic letter promulgated by pope John Paul II in 1998 also played an important role in the shaping of our understanding of the theology of Sunday and of the basics of celebrating Sunday as the Lord’s Day, the Day of the Church and of the Man. In the 20 centuries of the history of the Church, celebrating Sunday shaped the spiritual culture of Europe and, as such, became a centuries-long cultural heritage of the Polish people. Attempts to abandon celebrating Sunday, not first in history, aim to undermine tradition and destroy family ties. In the 21st century, celebrating Sunday still remains a key element of Christian identity and culture.

Origins of General Concept of Contract in Western European Legal Science (12th through 16th Centuries)

Author(s): Dmitry Poldnikov / Language(s): English Issue: 2/2016

The article presents the results of author's research of the origins of the general concept of contract in continental legal science in the Middle Ages and early Modern Times. This general concept marks one of the key features of the legal style in civil law countries, unknown to Roman jurisprudence, Muslim fiqh or Anglo-American common law. The formation of the general concept of contract proves to be the outcome of several generations of jurists archived through the combination of two models of contract in the medieval ius commune: agreement-based (in the commentaries on Roman law) and promise-based (in the church canons). It is argues that the synthesis of the two models in the 16th century is due to the efforts to reduce the Roman classical law to an art (as in the case of the French humanists) or to explain every rule of positive contract law through the ideal concepts of natural law and commutative justice (as in the case of Spanish legal thinkers). In arranging contract law the French jurists (such as François Connan and Ugo Donellus) followed the intended project of Cicero (ius in artem redigere) by means of the methodology of Petrus Ramus. The representatives of the Spanish late scholasticism (Domingo de Soto, Louis de Molina, Leonard Lessius) aimed at explaining all the provisions of the positive contract law in the sense of the higher moral and theological principles of natural law, as it was laid out in 'Summa Theologica' by Thomas Aquinas. The author looks into the relevant works of the French and the Spanish jurists to analyse the definition of contract, its criteria, and to trace their origins in the legal commentaries of the medieval civilians and canonists, as well as in the medieval and antique treatises on moral theology and philosophy. The analysis allows for critical assessment of the inconsistencies and contradictions of the general concept of contract in the doctrines at the beginning of Modernity.

Recepcja kanonów Codex Iuris Canonici (1917) dotyczących sakramentów inicjacji chrześcijańskiej w dokumentach i statutach Synodus Dioecesana Kielcensis (1927)

Author(s): Mirosław L. Kowalski / Language(s): Polish Issue: 47/2016

Concern for the liturgical life of the community of believers is reflected in sensitivity to the correct shape of celebration. Normative basis for the proper development of the liturgy is undoubtedly the Code of Canon Law and legal norms formed by the plane of the local church. Such a source of law for the Diocese of Kielce becomes the first Synod of Kielce (1927), which in its statements take very extensively the issue of the sacraments. For this reason has stimulated this study, which deals with the Sacraments of Baptism, Confirmation and Eucharist. The analysis applies not only to the provisions of the Synod, but above all they are consistent with universally binding law. It becomes also snapshot of the passage of the liturgy in the Diocese of Kielce at the beginning of the twentieth century.

Dopuszczalność stosowania prawa szariatu w zakresie spraw rozwodowych i spadkowych w prawodawstwie Unii Europejskiej

Author(s): Katarzyna Krzysztofek-Strzała / Language(s): Polish Issue: 19/2016

Nowadays much more Muslims are coming to the European Union countries. Because of this the courts of members’ countries more often need to take into consideration the Sharia law. That’s why is important finding the answer to the question if the European Union legislation allowed the courts judging on the basis of Sharia law? In this context the most important fields of law are family law and inheritance law. The purpose of this study is finding the answer to the question if in the light of European Union legislation the courts are allowed to judging about divorces and inheritance on the basis of religious law, means Sharia law. In the case of divorces the main importance has the decree of Council (UE) No 1259/2010, and in the case of inheritance the decree of European Parliament and Council (UE) No 650/2012. The analyze of those acts leading to the conclusion that mentioning legal acts allowed in general applying Sharia law as foreign law. But simultaneously both acts clearly excluded using external law in the case that using it may lead to the violation of public order. And exactly this clause may strongly limited judging on the basis of Sharia law by the courts of European Union countries in the cases of divorces and inheritance. The reason is that in both fields Muslim law significantly difference to the European standards, largely limited women’s rights both in the occurrence of divorce and in the cases of inheritance.

Tajemnica adwokacka adwokata kościelnego w prawie polskim. Zakres ochrony i skutki jej naruszenia

Author(s): Małgorzata Tomkiewicz / Language(s): Polish Issue: 19/2016

The term of “attorney–client privilege” is not a precisely defined term in the Polish legal system nor in the canon law; however, there is no doubt that in both of those legal frameworks, this privilege is formally regulated and is under protection. Moreover, within the Polish legal system, as well as in the canon law, the attorney–client privilege is protected by specific inadmissibility and restrictions in evidence, and in both cases, this protection, assumes liability of depositary of confidential information for its violation. Also, the axiology of discussed privilege in every mentioned legal framework is similar when it comes to its purpose: the realization of law to an honest and righteous lawsuit, the right of defence and right to protect privacy, including freedom of communication.The fact that providing protection of attorney–client privilege is a subject of concern of both the state and the church legislator, is perceived as primo facie. Less obvious, however, is the answer to the following questions: Are those privileges “respected” by each other and are they protected in a symmetric way in both mentioned legal frameworks? Do people functioning as attorneys in canon law legal framework, may, in the cases governed by Polish law, invoke professional secrecy, and is this kind of invocation producing legal effects in the light of secular law? Does the obligation, which is incumbent upon church attorney as well as secular attorney, to maintain the confidentiality and to prevent from disclosure or unauthorized use of everything he learned by performing professional duties, is respected by secular legislator and vice versa? Does the disclosure of information by the church attorney, acquired while providing legal assistance to a party, in proceedings in ecclesiastical court, affect the criminal liability described in Article 266 of the Penal Code? Through comparative legal analysis of related regulations of canon law and also regulations present in Polish law, this article will try to answer those questions.

Opieka duszpasterska w szpitalach publicznych państw Unii Europejskiej – zarys problematyki

Author(s): Piotr Stanisz / Language(s): Polish Issue: 19/2016

The aim of the paper is to provide a general characterization of the solutions used in the states of the European Union to guarantee free access to religious assistance in public hospitals. The first part presents the justification for such assistance. The organization of hospital chaplaincy and the status of hospital chaplains are discussed respectively in part 2 and 3. The paper concludes with a discussion of the problems connected with the need to protect the negative religious freedom of patients.The analysis leads to a conclusion that ensuring the right of every patient to religious assistance constitutes a recognized European standard, independently of the adopted model of state-church relations. However, the detailed guarantees of this right differ from state to state. The diversification characterizes both the organization of hospital chaplaincy and the status of chaplains. The relevant solutions are dependent on such circumstances as the religious structure of the society, established traditions, applied model of state-church relations and diversification of forms of regulating the legal situation of religious organizations. Among the problems which still need to be solved in a satisfactory way in a considerable number of European states one can mention the question of full protection of rights of religious minorities and persons without religious affiliation. However, the prospective guarantees of such protection should be fairly balanced with protecting the rights of believers belonging to sociologically dominant religions.

Evaluating Political Society in Rerum Novarum in the Context of Francisco Suárez’s Social Doctrine and Its Development in Gaudium et Spes

Author(s): Jan Koblížek / Language(s): English Issue: 2/2016

Drawing on an analysis of two well-known documents of the social teachings of the Church (Rerum Novarum and Gaudium et Spes), this paper aims to demonstrate a noticeable conceptual development of the notion of politics and political authority which occurred between the end of the nineteenth century and the Second Vatican Council. The criterion used in the analysis was Francisco Suárez’s political writing of the Enlightenment period. It is argued that politics was defined not only in relation to natural familial community and to the separation of ecclesiastical and secular authority, but also in relation to the return to traditional Aristotelian and Thomistic notions.

Orzecznictwo austriackiego Sądu Najwyższego w sprawie reprezentacji wyznaniowych osób prawnych Kościoła Katolickiego

Author(s): Marek Strzała / Language(s): Polish Issue: 20/2017

The Austrian Supreme Court, in a similar way to the Polish Supreme Court, states that canon law rules governing church property are relevant in the field of acts of legal entities of the Catholic Church. Hence, the views and arguments presented in its judgements in cases concerning the management of ecclesiastical property are also important for Polish legal practice. Between 1959 and 2013 a number of judgements were issued. There were a variety of cases, starting from the sale of the immovable property, through leasing it, and ending with the sale of fishery rights and contract of employment. In relation to those events a number of relevant legal views were stated by the Austrian Supreme Court. It considered the meaning of the term “alienation” (in the strict and broad sense), the obligation of a judge to examine canon law requirements for managing ecclesiastical property, the relevance of the particular canon law, the possibility of giving consent required by canon law per facta concludentia and scope of proxy authorization to manage church property. The question of treating the lease as an alienation in terms of the Code of Canon Law has also been raised. The case-law deals with many problems associated with the application of canon law in practice and provides a number of arguments to the parties in possible court proceedings.

Konferencja z okazji obchodów 500-lecia Reformacji pt. Kościół Ewangelicko-Augsburski w relacjach z Państwem – aspekty ustrojowe i prawne, Kraków, 9 października 2017 r.

Author(s): Michał Ożóg,Marek Strzała,Maciej Mikuła,Zdzisław Zarzycki,Katarzyna Krzysztofek-Strzała / Language(s): Polish Issue: 20/2017

ЗНАЧЕНИЕТО НА РИМСКОТО ПРАВО ЗА ЮРИДИЧЕСКОТО ОБРАЗОВАНИЕ ВСТЪПИТЕЛНА ЛЕКЦИЯ

Author(s): Trayanov Trayan / Language(s): Bulgarian Issue: 2/2016

The article is devoted to the place of the university in modern education and the role of Roman law in law education. The author emphasizes the absence of a textbook that presents the subject thoroughly and thoroughly. Among the main issues that the article highlights are the materialistic spirit of time and the lack of awareness on the part of lawyers about the importance of historical disciplines, among which the most important is Roman law.

The Family in the Czech Legal Order

Author(s): Damián Němec / Language(s): English Issue: 3/2017

This article on the status of the family in the Czech legal order is based on legal norms, but it cannot be limited to them because they have not defined the legal concept of the family for decades and they refer rather to the concept of marriage. Specification of the understanding of the family thus has become left more to sociology. Therefore, it has been necessary to extract this definition also from other official documents, such as the documents of the Ministry of Labour and Social Affairs of the Czech Republic, which is responsible for the development of state strategic documents in the area of family and marriage. From these documents, there follows a clearer understanding of the family, which, until 2015, was characterised by the support of marital families. This resulted in preferences of marriage in determining parenthood, in adoption and in the use of economic instruments, especially tax reductions. The proposed new concept of family support from the end of 2016 retreated from a clear value distinction, and thus leads to such a wide definition of the family that this has become a subject of contention between ministries of the Czech government, those in the professional sphere, and those in the area of non-governmental organizations. At the same time, this concept surrenders its attempt to actively influence social reality through measures in favor of marriage, all of which are still the most effective economic benefits for spouses, with reference to the principle of non-discrimination. The area of family and marriage is the subject of deep dispute and it is good that these questions have clearly entered the public social debate, even though it is not clear what results this will bring. In this situation, a clear statement has been issued by the Czech Bishops’ Conference in favor of the marital family as the only standard model of the family.