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Nielegalne pozyskiwanie danych przez państwo. Korupcja czy konieczność?

Author(s): Bronisław Sitek,Wincenty Bednarek / Language(s): Polish Issue: 4/2013

The changes caused by globalization lead to a conflict of cultures, which may affect the security of individuals and society. The most obvious change of the globalization is weakness of the position of the State for the benefit of international organizations and individual rights. The State which had been the guarantor of security is increasingly becoming an enforcer of judgments or decisions of external bodies. The State also begins losing against the rising claims of citizens, especially in terms of ensuring safety. In this case the knowledge is needed, so first of all information acquired in a legal way. However, due to the threat posed by terrorists who obtain information mainly in informal way by using illegal methods of operation, the moral dilemma about boundaries of security service’s actions is born. May security justify actions of security service conducted on the border of the law or with its breaking?

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Лингвистиката – между правото, политиката и конфликта

Author(s): Zlatka Gerginova / Language(s): Bulgarian Issue: 2/2020

The forty-second volume of Studien zur Slavistik (Hamburg 2018) - Linguistics as a Cross-ing Point in the discourse between Law, Politics, and Conflict (Linguistik als diskursive Schnittstelle zwischen Recht, Politik und Konflikt; Hrsg. Martin Henzelmann) – focuses on the mediating role of Linguistics between Law, Politics and historical concepts. The analy-sis is based on cases from Bulgaria, Czech Republic, Macedonia, Poland, Russia, Slovenia and Ukraine.

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Sztuczna inteligencja w arbitrażu – AI w roli arbitra?

Author(s): Beata Więzowska-Czepiel / Language(s): Polish Issue: 2/2020

The article is the first one in a series of two studies analyzing the use of artificial intelligence in the arbitral decision-making process in the light of applicable legal regulations. It deals with the controversial issue of replacement of human by artificial intelligence. This issue will be analysed from a perspective of Polish legal order, included in international conventions in force in Poland and in the Code of Civil Procedure, juxstaposed with solutions functioning in selected countries.

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Comparative Arguments in the Legal Debate Over Judiciary Reform in Poland

Author(s): Rett R. Ludwikowski,Izabela Kraśnicka / Language(s): English Issue: 2/2021

The judiciary reform in Poland started in 2015 with the replacement of judges in the Polish Constitutional Tribunal, the court responsible for the judicial review. It continued with amendments of laws addressed to judges and functioning of the Polish Supreme Court. Controversies over the reform reached the international level and triggered reactions from the European institutions and resulted in judgments of the Court of Justice. The article deals with comparative arguments (examples from the United States, Austria, France or Germany) concerning the extensive judiciary reform that have been presented by its authors throughout the debates and as response to criticism.

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Wolność zgromadzeń w Polsce w początkowym okresie pandemii COVID-19

Author(s): Adrian Woźniak / Language(s): Polish Issue: 1/2023

The beginning of the article deals with three issues: the definition of freedom of assembly, the meaning of this freedom and the question whether the Constitution of the Republic of Poland of April 2, 1997 allows for the restriction of two freedoms that make up this freedom. The main part of the article contains an analysis of the provisions of the regulations of the Minister of Health from the initial period of the COVID-19 pandemic in Poland, which significantly limited the freedom of assembly. It was made in the context of such legal acts as the Constitution of the Republic of Poland, the Act – Law on Assemblies and the Act on preventing and combating infections and infectious diseases in humans. The regulations in question were also compared with the regulations from the period when neither the state of epidemic emergency nor the state of epidemic was in force in the Republic of Poland. The article ends with an assessment of the provisions of the covid regulations from the beginning of the pandemic, which mentioned the freedom of assembly, and put forward postulates for the future.

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The Concept of Legal Motivation

Author(s): Julia Stanek / Language(s): English Issue: 2/2023

Understanding the motivational effect of the law and its mechanism is crucial for examining the impact of law on individual’s behavior in society. In this paper a novel approach towards legal motivation is proposed. For this aim, the author first introduce the approach to motivation in psychology and law. In the following section the concept of legal motivation is outlined. The basic elements of the concept are analyzed, in particular representations and emotions. The proposed approach distinguishes between intuitive and positive legal motivation. Distinction of legal motivation is based on the possession or lack of representation of normative facts. The concept of legal motivation proposed in the this paper allows adopting a broader perspective on the motivational effect of law.

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Ustrój sądownictwa konstytucyjnego w państwach autorytarnych. Analiza porównawcza przypadku republik Azji Środkowej

Author(s): Rafal Czachor / Language(s): Polish Issue: 1/2024

The following paper attempts to discuss the specific features of the Constitutional Courts in Central Asian countries: Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan. The aim of the paper is to discuss their compliance or non-compliance with the Kelsenian model, widespread in European countries. The study asserts that the model of the Constitutional Courts in the abovementioned nations does not differ significantly from the Western European model. This is an important conclusion since the Central Asian countries are permanently classified as non-democratic. Thus, this raises a question about the sense of the existence of the Constitutional Courts in countries that do not respect the principle of the democratic rule of law. The answer to this question goes beyond the scope of the following study, but the indisputableThe following paper attempts to discuss the specific features of the Constitutional Courts in Central Asian countries: Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan. The aim of the paper is to discuss their compliance or non-compliance with the Kelsenian model, widespread in European countries. The study asserts that the model of the Constitutional Courts in the abovementioned nations does not differ significantly from the Western European model. This is an important conclusion since the Central Asian countries are permanently classified as non-democratic. Thus, this raises a question about the sense of the existence of the Constitutional Courts in countries that do not respect the principle of the democratic rule of law. The answer to this question goes beyond the scope of the following study, but the indisputable conclusion of this article is that authoritarian states pay much attention to the normative aspect of the functioning of regimes and ensure the existence of façade institutions typical of democratic states.

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O istocie zasady przedstawicielstwa oraz wybranych aspektach gwarancji w sprawowaniu mandatu parlamentarnego

Author(s): Joanna Uliasz / Language(s): Polish Issue: 1/2024

The starting point for the discussion in this article is the principle of parliamentary representation, a cornerstone for any democratic society. This principle holds a key constitutional status within Polish law. To uphold and actualize this principle, the structure of the parliamentary mandate and the mechanisms designed to protect it are of utmost importance. Immunity protection offers members of parliament the freedom to execute their duties without interference. A limited set of criteria for the revocation of a parliamentary mandate ensures the integrity of the mandate to represent voters, acquired through the electoral process. This approach also safeguards against the arbitrary removal of a representative’s formal legitimacy to act on behalf of the nation. The central thesis of this article is that any unlawful termination of a parliamentary mandate through a flawed process constitutes a direct assault on the very foundation of democracy: the nation’s right to freely elect its representatives.

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A Handful of Remarks on the “Terminology Reference for the Science of Psychophysiological Detection of Deception”

Author(s): Jan Widacki / Language(s): English Issue: 1 (59)/2024

I find it appropriate to commence by recalling that the realisation that one of the defining characteristics of a science (or its field) that allows for its recognition as distinct and mature, alongside its subject of study and methods of research, is its language dates back to as early as the mid-19th century (Okasha, 2016). Contemporary scientific methodology demands that each science must have a specific subject and objective distinct from other sciences, as well as its own unique language so that it makes use of clearly defined and named concepts (Humphreys, 2014).

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Teologické aspekty novel Kodexu kanonického práva z roku 1983

Author(s): Stanislav Přibyl / Language(s): Czech Issue: 92/2023

This article looks at the amendments of the current Code of Canon Law in terms of their theological justification. It establishes that most of the theological focus is to be found in the first two amendments, over which Josef Ratzinger had considerable influence, in the first instance while still a cardinal in the case of John Paul II’s amendment Ad tuendam fidem, then as pope for the amendment Omnium in mentem. In this amendment, the German-born pope also dealt with the question of formal apostasy from the Catholic Church, a topical issue in his native country. There is also no lack of theological justification in the amendments made by Pope Francis, particularly on matrimonial procedure, issued in the form of two motu proprio, and in the comprehensive amendment to criminal law Pascite gregem Dei, promulgated in the form of an apostolic constitution. The latter specifies the criminal sanction for many offences, including the offence of denying definitively proclaimed Church doctrine, which was first introduced by the amendment Ad tuendam fidem.

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ПРАВОТО ПРЕЗ ПОГЛЕДА НА УЧЕНИЯ, СЪДИЯТА И ПОЛИТИКА

Author(s): Yanaki Stoilov / Language(s): Bulgarian Issue: 1/2024

The article shows that the perception of the law depends on the point of view of the one who works with it. Three perspectives are particularly important: those of the scholar, the judge, and the politician. Each of the professions that has law as its object foregrounds specific requirements, the fulfillment of which determines the quality of the respective activity The topic has already been partially and more generally raised and addressed in two foundational lectures by Max Weber: Politics as a Vocation and Science as a Vocation, but specifically for law and in the chosen triple relation it contains novelty. What is new is the 'three-dimensional' delineation of the roles into which the lawyer can enter as scientist, judge or politician. The views of law and the operation of law dictated by each of these roles require distinctions and parallels to be drawn between them. Such parallels are consistently drawn between the way law is viewed and used by scholar and judge, scholar and politician, and judge and politician. The comparative analysis shows both the commonalities and the differences in the treatment of law by each. Points of congruence are found even where they seem least, between the judge and the politician, and differences are found even between the modus operandi of the legal scholar and the judge, activities that are inherently compatible.

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ОТНОСНО ПОНЯТИЯТА „СЪЩНОСТ“ И „СЪДЪРЖАНИЕ“ НА ПРАВОТО НА СОБСТВЕНОСТ

Author(s): Pavel Sarafov / Language(s): Bulgarian Issue: 1/2024

This article is devoted to a controversial interpreted theoretical problem - that of the categories "essence of the right of property" and "content of the right of property." The emergence and accentuation of their distinction in the German legal doctrine is traced, as well as how the issue of their conceptual perception in the Bulgarian civil studies stands. The conclusion is drawn that their distinction is permissible, but only in a strictly contextual aspect, when a parallel is drawn between the abstract thinking of property rights in general and the concrete situation of an individual property right located with a specific owner.

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Trvání věcné příslušnosti (v řízení o insolvenční odpůrčí žalobě)

Author(s): Ivan Tvrdík / Language(s): Czech Issue: 3/2024

In the article, the author critically attacks the established practice of the Supreme Court, according to which a court with subject matter jurisdiction, whose jurisdiction was undoubtedly given at the time of the beginning of the proceeding, may become jurisdictionally incompetent in the course of the proceeding as a result of a mere change in the legal assessment of the case. The examples of German, Swiss and Austrian legal doctrine, regulation and practice show that the principle of the duration of jurisdiction, which applies in the Czech Republic on the basis of the second sentence of Article 11(1) of the Civil Procedure Code, prevents such a result. All the way to the end of the proceeding, only those circumstances which existed at the time of its initiation are decisive for the determination of subject matter (and local) jurisdiction. If the court has at the beginning of the proceeding, on the basis of the value or the legal nature of the matter in dispute, subject matter jurisdiction to hear and determine a particular case, its jurisdiction cannot be changed merely because the court’s legal assessment of the case has changed after the completion of the examination of the evidence. The jurisdiction of the court is based purely on the pleading and the pleaded facts or the substantive assessment of the pleaded facts (i. e. not on the established facts). The answer to the question which court has (subject matter) jurisdiction to hear and determine a case must be apparent from the outset of the proceeding and cannot, in principle, change during its course. This is mainly the result of the principle of procedural economy, the arguments connected with it and the procedural definition of the matter in dispute, or, to put it more simply, the principle of the duration of jurisdiction.

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The Emergence of Lesbian Theory of Law: Why and How the Lesbian Theory of Law Has Been Developed

Author(s): Dominik Šoltys / Language(s): English Issue: 1/2024

In the late eighties of the 20th century, the methodological reflection of lesbian identity arose within the framework of feminist jurisprudence. Although the original intention was to include lesbian identity in a woman's identity, in a relatively short period there was a sudden break. Lesbian identity became a distinct identity considered to be the central position of lesbian jurisprudence. This study presents the peculiar features of lesbian legal theory. It tries to point out the historical and ideological determinants that led lesbianism to enter (legal) feminism. Lesbian separatism also took part in this development. It turned out to be the main reason for the separation of lesbian legal scholars from the feminist jurisprudence. The study presents the core ideological assumptions that constitute the theoretical nature of the lesbian theory of law, which is based on lesbian (legal) experiences.

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Cultural Property Protection in Private International Law

Author(s): Bogdan Kryvolapov / Language(s): English Issue: 1/2024

The armed aggression of the Russian Federation against Ukraine has brought the issue of protecting cultural property to the forefront. Numerous documented cases of illegal exports of cultural property from Ukrainian museums located in territories occupied by the aggressor country have emerged. In addition, little is known about the number of stolen objects from private collections, which are considered cultural artifacts. There are no statistics available on this matter. This paper aims to explore the problem of applicable law during the consideration of disputes regarding the protection of cultural property. The author examines the concept of cultural property restitution in private international law and different approaches and concepts for defining "restitution" and "return" of cultural values. It has been argued that the term “return of cultural property” should encompass a wider scope, including both the restitution of illegally exported cultural property and the return of cultural property that was legally in the possession of another state but was later repatriated to the original state as a gesture of goodwill. The author offers his definitions of these terms based on theoretical research, as well as an analysis of the domestic legislation of Ukraine and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Property of June 24, 1995. The paper also delves into the issues of conflict regulation of disputes involving cultural values. Both the issues of determining the right of ownership to and the problems associated with the protection of the right of ownership of cultural property in private international law are considered. The point of view that the conflict of laws rule lex originis (the law of the country from whose territory the cultural property was exported) should be applied in disputes regarding the return of cultural property from someone else's illegal possession is supported. The author concludes, based on a comparative analysis of laws on private international law, about the most appropriate mechanism for protecting the property rights of a bona fide purchaser in disputes over cultural property.

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Неопозитивизмът на Хърбърт Харт като опит за ревизия на модерните правни теории

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Неопозитивизмът на Хърбърт Харт като опит за ревизия на модерните правни теории

Author(s): Nikolay Alexandrov / Language(s): Bulgarian Issue: 6/2024

This article is devoted to the teachings of the British philosopher, positivist and legal theorist Herbert Hart. Central to the publication is the analysis of Hart’s neo-positivist concept as an attempt to revise the initial premises of legal knowledge. In this context, the question of the British positivist’s distinction between law and morality is examined, as manifested in his reflections on the nature of moral, natural and positive rights. Emphasis is also placed on that basic position in Hart’s theory, according to which empirical argumentation presupposes the existence of legal phenomena only within a system of rules. By virtue of this notion, the state is seen as a collection of officials charged with authority based on legal rules. That is why, in the doctrine of legal Neo-positivism, the basis of the state structure is not the power of a sovereign, as in the teaching of John Austin, but legal rules as a condition for the legitimacy of state coercion.

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Съдията: между бодлите на таралежа и фермите за „развъждане“ на право

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Съдията: между бодлите на таралежа и фермите за „развъждане“ на право

Author(s): Stoyan Stavru / Language(s): Bulgarian Issue: 6/2024

The text explores the role of the judge in the process of adjudication and the pursuit of a just judicial decision in the dispute. By comparing the strategies of the fox and the hedgehog, the procedural roles of the judge and the lawyer are distinguished. An analysis of the model of the „virgin“ Judge Medusa and the effect of an overly good judge on the attainability of justice is presented.

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O ODGOVORNOSTI ZA POSTUPKE DRUGIH TOKOM ORUŽANOG SUKOBA

Author(s): Luka Glušac / Language(s): Serbian Issue: 3/2024

While the moral and legal responsibility of an individual for his/her actions has been the subject of numerous scholarly considerations, there is considerable room for further research on the responsibility for the acts of others, especially in the context of the development of artificial intelligence. This article deals with a specific form of responsibility for others - responsibility for the actions of humans and nonhumans in the context of armed conflict. The article explores the concept of individual command responsibility through its application to the actions of subordinates, namely humans and autonomous weapon systems. When does command responsibility exist? What tests are used to determine it? Can and how the institute “knew or had reason to know” from international humanitarian law be applied to the actions of autonomous weapon systems? How far does the autonomy of such systems extend and what are its consequences for determining responsibility? These are the central questions of this research.

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Beyond Dualism(s): A New Approach to Legal Personhood in Contemporary Legal Theory

Author(s): Zsófia Folková / Language(s): English Issue: 4/2024

This article presents a critique of the Orthodox View of legal personhood, which traditionally aligns personhood with the capacity to hold rights and duties. It explores the Bundle Theory proposed by Visa Kurki, which redefines legal personhood as a cluster concept composed of passive and active elements, and which challenges the binary nature of personhood, proposing a spectrum ranging from full to partial personhood. It also considers which entities can be legal persons and offers a brief overview of new, alternative ontologies.

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K některým problémům spojeným s pokračováním v trestném činu, trvajícími a hromadnými trestnými činy

Author(s): Pavel Šámal / Language(s): Czech Issue: 4/2024

The journal article discusses the problems associated with crimes committed over a longer period of time, in particular in the context of the Supreme Court’s decision of 23 September 2020, file number 8 Tdo 866/2020, which dealt with whether the offence of stalking under section 354 of the Criminal Code was a continuation of an offence or an ongoing one. When discussing this decision in the Criminal Division of the Supreme Court, a debate was held as to whether it was correctly an ongoing or cumulative offence. The article deals with the arguments that have been made in this regard and concludes that it is an ongoing offence. In that context, it also addresses the issue of the so-called coherent actions, and on the basis of analysis of Supreme Court jurisprudence, that these are not another category of crimes characterised by a longer period of committing, but are merely an adjunct in theory and practice of differentiated categories continuation of offence, ongoing offence, and cumulative offence which serves only to refine and distinguish them correctly in specific cases under assessment.

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