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Ограничения принятия подарков должностными лицами Латвии как противокоррупционный элемент.

Author(s): Anatolija Jurijs Skorodihins / Language(s): Russian Issue: 4/2012

Officials must make decisions objectively and fairly. Acceptance of gifts can create the impression that the official had acted in the interests of the giver, thus reducing the confidence of the public in general. Gift for official could become as memorable thing, as gratitude for service or also as a means to influence decisions. Gifts affect human behavior. The benefit creates a person sense of commitment and a desire to thank. Representatives of the company or colleagues may cause doubts about the honesty of performance. Might give the impression that gift is the reward made or planned transaction or failure to act in the interests of the giver. In Latvia there are limits to take the gifts for officials, which associated with ensuring that officials of State agencies and local municipalities have worked for the benefit of society, and not by private interests.

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Право собственности: пределы и ограничения

Author(s): Jan Berger / Language(s): Russian Issue: 4/2014

The aim of the study is to evaluate the selected limitation of the right to property. The author isof the opinion that establishing the boundaries of property rights in the law system serves theinterests of society and supports the economic, social, political and economic well-being.

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A Study on Assertivness, Efficiency and the Quality of Judicial Work

Author(s): Aleksandar Mojašević,Sandra Mojašević / Language(s): English Issue: 1/2017

A Study on Assertivness, Efficiency and the Quality of Judicial WorkThe subject matter of this research is the correlation between the judges’ assertiveness and the efficiency and quality of judicial work. The primary aim is to examine whether there is a correlation between the judges’ assertiveness, on the one hand, and the efficiency and quality of their work, on the other hand. The second aim is to explore the correlation between the efficiency and quality of judicial work. The starting premise is that there is a correlation between particular indicators of these variables. Judges’ assertiveness is a conditionally independent variable used as a referential point for measuring two conditionally dependent variables: the efficiency and the work quality of the judiciary. The assertiveness was measured by a standardized questionnaire which was distributed to a research sample including 40 judges from the Criminal Department and the Civil Department of the Basic Court in Niš in May 2015. The efficiency of judicial work was measured by employing four indicators: the clearance rate (CR), the disposition time (DT), the clearance coefficient (CC) and the percentage of solved cases as related to the total number of cases (PS), whereas the quality of judicial work was assessed by measuring the overall work quality (WQ). The data on the efficiency and quality of judicial work were collected from the 2014 Report on the work of the judges in the Civil Department and the Criminal Department of the Basic Court in Niš. Contrary to our expectation, the most important finding is that there is no correlation between assertiveness and the efficiency and quality of judicial work; however, there are various correlations between the aforementioned indicators of efficiency and quality of judicial work.

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Dostęp obywateli do wymiaru sprawiedliwości – wybrane modele

Author(s): Szymon Szmak / Language(s): English,Polish Issue: 22/2016

Niniejszy artykuł stanowi syntetyczną analizę problemu dostępu do wymiaru sprawiedliwości na przykładzie dwóch instytucji, które zostały szczegółowo uregulowane przez polskiego ustawodawcę w ostatnim czasie. Skąpe przepisy dotyczące ubezpieczenia ochrony prawnej rozbudowano na skutek konieczności implementacji przepisów dyrektywy Wypłacalność II w nowej ustawie o działalności ubezpieczeniowej i reasekuracyjnej. Dnia 1 stycznia 2016 r. weszła w życie ustawa wprowadzająca regulacje odnoszące się do nieodpłatnej pomocy prawnej. Jak się wydaje, obie instytucje są skierowane do różnych odbiorców, jednakże ich główna funkcja pozostaje ta sama, a sprowadza się do ułatwienia osobom ubezpieczonym lub uprawnionym dostępu do wymiaru sprawiedliwości, w formie i granicach określonych umową ubezpieczenia lub ustawą z dnia 5 sierpnia 2015 r. Prezentację najistotniejszych regulacji ustawowych uzupełniają dane statystyczne obrazujące umiarkowaną popularność obu instytucji wśród polskiego społeczeństwa. The aim of this article is to analyse the issue of access to justice in Poland, based on two different institutions that facilitate exercising of this right. The statutory provisions regarding legal expenses insurance were recently extended as a result of implementation of the Solvency II Directive into Polish law. Moreover, at the beginning of this year, a new act introduced free legal aid scheme. Although the recipients of these models are different, both institutions fulfil similar functions and contribute to the growth of legal awareness among Polish society. Unfortunately, neither legal expenses insurance nor free legal aid are popular enough to describe their significant impact on access to justice.

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PROCESNI EFEKTI AKTIVNOG ODNOSNO PASIVNOG DRŽANJA STRANAKA U PARNICI

Author(s): Muhamed Cimirotić / Language(s): Bosnian Issue: 19/2017

A beginning, progress and end of the civil lawsuit depend on participation of the parties to proceedings. Passive participation of the parties to proceedings, generally,influences the progress of the proceedings negatively, while active participation contributes to faster, more qualitative and economic providing of legal protection, which complies with the parties` interests, and with the social aim of court, legal protection.In this paper procedural advantages of active i.e. negative consequences of participation of the parties to proceedings have been analysed, measures which may be used to encourage the parties to proceedings to participate actively in the proceedings, as well as legal, theoretical attitudes and concrete legal solutions relating to the subject matter.

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Stosowanie przymusu bezpośredniego w postępowaniu egzekucyjnym w administracji

Author(s): Iga Jaworska / Language(s): Polish Issue: 104/2017

Direct coercion is one of the enforcement measures relating to the execution of the duties of nonpecuniary used by the enforcement authority in administrative enforcement proceedings. Undoubtedly this is the most burdensome enforcement measure for the debtor, since it might interfere in his inviolability. On the other hand, it is the measure usually directly linking to fulfil the obligation by the debtor, and thus effective. The aim of this article is to examine the legal nature of this measure, indication of circumstances and mode of application of an enforcement measure and the difficulties that may be encountered enforcement authority with a view to its use.

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WYBRANE PROBLEMY WYKŁADNI PRAWA KOŚCIOŁÓW LUB INNYCH ZWIĄZKÓW WYZNANIOWYCH DOKONYWANEJ PRZEZ ORGANY WŁADZY PUBLICZNEJ

Author(s): Piotr Kroczek / Language(s): Polish Issue: 20/2017

As a matter of principle, endogenic law of Churches and other religious organizations is not a source of legal norms in the Republic of Poland. However, sometimes, public authorities are to interpret the religious law. The duty comes with some methodological and practical difficulties. The paper is to help untangle and overcome them. It deals with the following problems: models of relation of religious groups to law, sources of legal norms, mixed, that is legal and theological, character of laws, language of laws, rules of interpretation, and language issues of laws like: general clauses, technical terms, and expressions of identical form but different meaning in the field of Polish and religious law.

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O autorytecie epistemicznym ławy przysięgłych i twierdzeniu Condorceta

Author(s): Mieszko Tałasiewicz / Language(s): Polish Issue: 27/2017

Artykuł poświęcony jest sformułowaniu pewnego modelu podejmowania decyzji przez grupę decydentów, ugruntowującego autorytet epistemiczny tej grupy w porównaniu z pojedynczym decydentem, konkurencyjnego wobec modeli, dla których zachodzi twierdzenie Condorceta (CJT) lub jakieś jego uogólnienie. Proponowany model opiera się na spostrzeżeniu, że niektórych założeń leżących u podstaw modeli, w których działa CJT, nie tylko nie da się spełnić, ale że w ogóle nie warto ich spełniać - a nawet wręcz warto ich nie spełniać. W zamian proponuje się inne założenia, lepiej odpowiadające ideałowi racjonalnej dyskusji. W szczególności odrzuca się założenie o jednakowym prawdopodobieństwie podjęcia trafnej decyzji przez każdego z decydentów i o niezależności podejmowania decyzji przez każdego z decydentów.

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Проблемы реализации права на образование детей в Африке

Author(s): Carlos Quete / Language(s): Russian Issue: 36/2017

The article deals with the problem of the right to education of children in Africa. The reasons for the impossibility of individual African states to ensure the realization of children’s right to education. A comparative analysis between African and other European countries to realize the right to education of children.

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Idea społeczeństwa informacyjnego a ogłaszanie aktów normatywnych w Polsce

Author(s): Wojciech Taras,Wojciech Zakrzewski / Language(s): Polish Issue: 1/2017

The paper discusses the complex problem of publication of legal (normative) acts under requirements of information society. Based on analysis of the constitutional provisions and statutory regulations we may positively judge the standardization of the principles and procedures of publication of normative acts in Poland. According to the standards of the rule of law, transparency of law, the principles of non-retroactivity, the electronic communication of law content appears to be a good solution. However, nowadays policy of state organs – violating the legal order – confronts us, not only with the material and technical barriers of computerization, but also with the constitutional issues.

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Mobbing – socjologiczno-prawny zarys zagadnienia

Author(s): Wioletta Sojka,Konrad Walczuk / Language(s): Polish Issue: 1/2015

The article presents the phenomenon of mobbing from the sociological and legal perspective describing its specific features, types as well as mobbers and the mobbed. Special attention is given to the phases of mobbing, pointing out the dependence between the advancement level of mobbing and the legal classification of the phenomenon on the one hand and individual actions, or lack thereof, and the exercise of employee rights and duties on the other.

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Aktualność debaty na temat koncepcji odpowiedzialności za ochronę

Author(s): Paulina Zajadło-Węglarz / Language(s): Polish Issue: XXXVIII/2017

In the current debate about the European Court of Human Rights and in the face of the growing criticism towards its case law the issues of clarifying the meaning and the foundations of its legitimacy are becoming increasingly important.Although the basic normative source of the ECtHR legitimacy stems from the prestigiousEuropean Convention of Human Right adopted in 1950, a large part of the legitimacy seems to be the outcome of the Courts’ own activity, which includes, inter alia, the so called diplomacy of human rights. The important role is also played by the process of constitutionalisation under which the Court is credited with the power to issue the constitutional and principled judgements on human rights standards in Europe.It should be clearly stated that the system of the ECHR and the case law of the StrasbourgCourt constitute an important achievement in the European culture based on respect for human rights. The issue of the legitimacy of the ECHR seen in this perspective gains its proper dimension. Therefore, in the face of growing criticism of the Strasbourg case, the ECHR should bow to political pressures if it is to derive a significant part of their legitimacy from the status of a moral compass of Europe. It should be remembered that the strong Court’s legitimacy is an important condition for the accomplishment in the longterm perspective by the Court its mission to fulfill the spirit of the Convention ensuring the full respect for human rights in Europe.

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Interpretacja klauzuli ‘aktualna wiedza medyczna’ w polskim prawie – zarys zagadnień epistemologicznych i metodologicznych

Author(s): Tomasz Widłak / Language(s): Polish Issue: XXXVIII/2017

‘Current medical knowledge’ is a general clause often used in texts of Polish statutes and regulations. Its proper interpretation is crucial for the purpose of determining the contents of the right to health care as well as for defining standards for the purpose of legal and ethical evaluation of medical conduct by doctors and members of other medical professions. The article presents an outline for general analysis of the term, taking into account the epistemic and methodological problematique invariably accompanying the attempt to determine the semantic range of the phrase ‘current medical knowledge’ as well as to define the temporal criterion of ‘currency’.First, the Author discusses the epistemic status of medical knowledge. Medical knowledge is both theoretical and practical in its sources and every medical practitioner participates in the epistemic community that generates it. For ethical reasons, it is topical for every new claim within medical science to be responsive to falsification along Carl Popper’s proposal. Second, the temporal criterion of ‘currency’ is to be understood in contrast to terms such as ‘contemporary’ as well as ‘latest’. Access to current medical knowledge may be legitimately limited by both subjective and objective factors, such as individual doctor’s specialization and skills, availability of equipment and medicines or due to systemic financial and legal constraints. In summary, the article concludes that uncritical application of evidence-based medicine in the form of general guidelines or standards in the process of legal evaluation of medical conduct should not determine in advance the liability of medical practitioner in individual cases. Medicine is also a humanistic science in its methods, and methodologically sound decisions based on practical experience of an individual doctor should not be disregarded when interpreting the term of ‘current medical knowledge’.

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O dwóch strukturalnych czynnikach sędziowskiej refleksyjności

Author(s): Maciej Wojciechowski / Language(s): Polish Issue: XXXVIII/2017

Referring to the controversy that exists in social theory between the structural approach and the approach focused on the role of the subject and the subjective cause, theAuthor tries to approximate two structural factors that influence judicial reflection. The first one is based on the distinction between factual and legal arguments. The second one draws attention to the difference between delivering judgements by collective benches and benches composed of one-person and their influence on judicial reflexion. The common feature of this experience is the uncertainty that can be overcome more easily in the case of administrative courts because of the elaborated, institutional modes of discussion that are a part of communication reflexivity.

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Problem nieposłuszeństwa sędziowskiego: Lemuel Shaw i sprawa Commonwealth v. Aves

Author(s): Jerzy Zajadło / Language(s): Polish Issue: XXXVIII/2017

The article consists of three parts. In the first one, the Author analyzes the concept of judges’ disobedience in two dimensions – individual (judicial conscience) and institutional(separateness and independence of the third power). The particular emphasis is put on the institutional dimension – especially in the context of the case law of American courts on slavery.The other two parts are of exemplification nature as they primarily provide the analysis of the American jurisprudence in the first half of the 19th century. First, the Author presents facts and rulings in the well-known case of Commonwealth v. Aves of 1836, and then, he presents the personality and achievements of judge Leumel Shaw, the President of the Supreme Court of Massachusetts.

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Estetyka prawa: ekslibris prawniczy

Author(s): Kamil Zeidler / Language(s): Polish Issue: XXXVIII/2017

One of the most interesting steams of contemporary legal philosophy is the aesthetics of law. Within the framework of the study of the aesthetics of law, an external and internal approaches can be distinguished. Externally, the works of art which somehow relate to law are investigated, and therefore the legal ex-libris is an object of interest in this steam of the aesthetics of law.Ex-libris (a bookplate) is a mark of ownership of the book usually placed on the inside front cover of the book, which usually takes a graphic form being a small and beautiful piece of art. Therefore, ex-libris has a double function in a book - serves as a mark of ownership and as a decorative element.Lawyers have always treated books with a particular attention and created their own extremely rich law libraries, or often even broader libraries of humanities. Legal ex-librisis characterized on one hand by the fact that it belongs to a lawyer denoting books in his/her library, and on the other hand – as a consequence of his/her professional role – it very often refers in the symbolism to law and justice as well as their allegories and attributes, including very different, though often repeated, legal motives.

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Skarga na odmowę powołania do pełnienia funkcji – przyczynek do dyskusji o granicach sądowej kontroli administracji publicznej

Author(s): Krzysztof Kaszubowski / Language(s): Polish Issue: XXXVIII/2017

According to art. 5 p. 3 of the Act of 30 August 2002 on Proceedings before AdministrativeCourts, administrative courts are not competent in cases concerning the refusal to appoint a person to an office or a position in public administration bodies unless the obligation of such appointment is regulated by law. The current legal regulation does not clarify whether the complaint on the lack of action of the competent public administration authority in the above cases is also admissible. The article provides an analysis of the provisions of the Act in the context of the admissibility of bringing such complaint. The conclusions lead to the affirmative answer, both when the lack of any kind of action is considered as a form of refusal and in the case of recourse to the general rules of appeal against broadly understood activities of public administration. The model of complementary protection of legal entities resulting from art. 3 p. 2 of the Act should concern all forms of activities of the administration subject to courts’ jurisdiction. Only such approach provides a guarantee of real protection of the addressees of administrative activities before courts.

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Względna dewolutywność zażalenia w postępowaniu cywilnym (zagadnienia wybrane)

Author(s): Jarosław Świeczkowski / Language(s): Polish Issue: XXXVIII/2017

The Author presents issues related to the devolutive nature of appeals in civil proceedings, with particular regard to de lege ferenda postulates concerning the amendment of art. 395 § 2 of the Code on Civil Proceedings. According to art. 395 § 2 of the Code, if the complaint alleges the invalidity of the proceedings or is clearly justified, the court which issued the contested decision may, at the closed session, repeal contested decision without sending the documents of the case to the court of the second instance and, if necessary, reconsider the case. De lege ferenda postulates concern the clear indication in art. 395 § 2 of the Code on Civil Proceedings that the court shall be obliged to repeal the decision in such case and not only have an opportunity to do it as it is regulated now. That results, among others, from the negative assessment of judicial practice resulting from the recognition of the application of the institution governed by art. 395 §2 of the Code on Civil Proceedings as a right and not the obligation of a court.

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Twórcza interpretacja prawa – wybitne osiągnięcie jurysprudencji rzymskiej i wyzwanie dla współczesnych sędziów

Author(s): Beata Jolanta Kowalczyk / Language(s): Polish Issue: XXXVIII/2017

The creative interpretation of law as a factor of its continuous development and the response to practical needs is an art that has been already applied since the Laws of theTwelve Tables, firstly by pontifices and later by the representatives of pre-classical and then classical jurisprudence. The creative nature of the interpretation made by jurists has led to the development of reasoning through analogy and shows the way the interpretation has developed from purely linguistic understanding of a legal act to putting the intention of the author of the act on the pedestal and attempting to realize his presumed will, so from verba to voluntas. Contemporary courts and judges, with particular emphasis on the Polish ones, avoid creative activity in the interpretation process, desperately referring to the exact wording of a legal act and justifying their approach by the „silence of the law” and reluctance to take risk of possible dismissal of the judgment by the higher court. In the age of the inflation of law and its poor quality, it is a dangerous situation for citizens. Judges should serve as a buffer between law of bad quality and its practical application through its creative interpretation in the spirit of ensuring a rational and fair application of law.

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Wybrane instrumenty prawne ochrony przyrody parku narodowego przed zagrożeniami zewnętrznymi

Author(s): Monika Zakrzewska / Language(s): Polish Issue: 37/2017

The national park, being the most important form of legal natural conservation, is established to pursue the public interest of conserving the most value natural resources. The purpose of the study is to present chosen legal instruments protecting the natural resources of the national park against external threats and to evaluate effectiveness of these instruments. The national park buffer zone has been described as the first environmental factor keeping natural environment of the national park in good condition. The second part of the study outlines the prohibitions, injunctions and restrictions contained in the area development plans and also in the legislative acts which appear to be about the creation of other forms of natural environment protection in the certain areas. The third part of the paper refers to the issue of the principle of sustainable development implementation in the context of natural resourses protection in the territory of the national park from the perspective of Polish and Spanish law. The socio-economic impact of the national park has been presented as a new spheric-spatial instrument.

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