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In 2019 into the Polish civil procedure the institution of dismissal of a claim as clearly unfounded was introduced. Within the framework of this article, the author intends to present and consider one seemingly unplanned effect, to which the introduction of Art. 1911 k.p.c. may lead, i.e. consequence in the form of creating, under certain circumstances, a mechanism enabling the entitled person to interrupt the limitation period without incurring any costs. As this was not the purpose of introducing the considered institution, the rest of the article considers, on the basis of procedural law, how such an unwanted effect should be avoided.
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This concept is related to the „lawmaking as learning” theory. Constructing norms is based on the similarities noticed by the legislator. The state, as a learning organization, shows what behaviours should be imitated. The article deals with the theory in the development phase. It was indicated that further research is needed to the use of pedagogical achievements in relation to legal issues.
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The idea of legal and constitutional adaptation of registered partnership underwent in the Czech Republic and Germany through wide open, social and political discussion. Both countries have gone through a ten-year-long history concerned with efforts to enact living-together persons of the equal sex in legal order. Both adaptations are possible to subordinate according to so called Danish model of alternative forms of living together. However, this is the only part of likeness of both legal adaptations. Further features are dealt in the article in comparison with various differences between Czech and German adaptations. A big specific feature in the Czech adaptation is the assumption of at least one participated person having the Czech nationality and a special competence of the registry office. The German adaptation is more liberal than the Czech adaptation.
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Interview with Mirko Perović, by Miloš Jevtić.
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Review of: Dragoljub M. Popović, Savremene demokratije pod naletom populizma, Biblioteka „Politika i društvo", sveska 86, Beograd, 2023, 133 str.
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The aim of the paper is to, after the introductory part, in which the notion of the institution of marriage and its development among Serbs until the beginning of the 19th century are followed, in the second part to present the church organization in Serbia at the time of the First Serbian Uprising, and its relationship with the insurgent authorities. Following the institution of marriage in Serbs since the Middle Ages is necessary, because in the Uprising state, the church authorities used medieval regulations and canons, primarily the Krmčija (Zakonopravilo). Also, practices from the time of Ottoman rule that immediately preceded the uprising are important, as well as the treatment of the institution of marriage among Serbs in the Habsburg Monarchy, because Serbs from the two empires were in constant direct communication. The relationship between the church and the insurgent authorities results in the intertwining of jurisdiction over marital disputes between the church and secular courts, and the marital disputes, preserved in the published historical sources, primarily of the Šabac magistrate, are the only source for the social history of marital relations in the insurgent state and the practice through which the secular and church authorities solved various social phenomena and problems related to marriage.
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In the following article author deals with the question: Is each political and judicial decision considered on consequences only or are there some nondisponable value principles in our cultural ground that cannot be incorporated regardless any forseen consequences? He thinks about searching for alternative position which would avoid Scylla´s strict consequencialism as well as Charybdis´ strict deontologism.
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The inheritance implies a balance between the will of the one who plans the anticipated transmission of his assets and the ones waiting for it. The creditors are equally put into equation in the transmission of the succession. The relations between these three categories of interest are regulated differently regarding the laws of succession of the states that favor either the interests of the interested in planning his succession or trying a "equilibrium" dampening discretion of the author of the inheritance, trying to protect his close family members (reserved to).
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Objectives. The objective of this study was to determine how intraparental (i.e., cognitive schemas, parental competence, cognitive-emotional coping style) and interparental variables (i.e., family conflict, unfavorable conditions of divorce) influence post-divorce co-parenting through the relationship between parents after separation. Materials and methods. The study was conducted on a sample of 169 divorced or divorcing participants (84% females and 16% males), aged 24 to 61 years (M = 42.71, SD = 6.15). The following instruments were used to measure the research variables: the Divorce Adjustment Inventory Scale, the Young Schema Questionnaire - Version 3, the Parental Competence Questionnaire, the Cognitive Emotion Regulation Questionnaire, the Coparenting Relationships Scale, and the reasons for divorce were assessed in an exploratory manner. Results. Dysfunctional cognitive schemas were positively associated with dysfunctional coparenting behaviors and negatively associated with functional co-parenting behaviors. Participants who reported violence as a cause for divorce had significantly higher scores (M = 22.22) on the undermining (M = 22.22 vs. M = 10.17) and exposure (M = 21.66 vs. M = 10.20) dimensions of the dysfunctional co-parenting relationship compared to those who identified infidelity as a cause for divorce (M = 10.17). Conclusions. The quality of co-parental relationships may be influenced by maladaptive cognitive schemas and poorly developed parenting skills. Also, pre-divorce family interaction experiences and poor adjustment to divorce are associated with dysfunctional aspects of co-parental relationships that impact children post-divorce. Exploratory analyses indicate that training healthy, functional cognitive-emotional coping strategies and addressing maladaptive cognitive schemas can prevent engaging in abusive relationships.
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Objective. This study discusses the issue of rehabilitation and the lived reality of female offenders serving short-term sentences who are excluded from rehabilitation programmes. This exclusion ill-equips the women from reforming their criminal behaviours leading to a life of recidivism. It also examines Bourdieu’s theory of habitus to identify a suitably unifying theoretical framework to analyse female criminality and the link between short-term sentences and recidivism. Material and methods. The explorative and ethnographic lens gives voice to social realities of the offender’s punishment, rehabilitation (or lack thereof), reintegration, and recidivism. As female offenders only constitute 3% of the correctional population in South Africa, the sample was limited to ten female offenders. Results. While research on female criminality has just starting to receive attention in South Africa, rehabilitation programmes are still mostly geared toward the reform of criminal behaviour amongst male offenders and a gender-sensitive correctional programme has been overlooked. Ironically by default, female offenders serving short-term sentences are further overlooked as they are excluded from rehabilitation programmes. Conclusion. The study makes a case that a gender-sensitive rehabilitation programme (with a focus on empowering women as decision makers capable of acquiring competence in areas such as motherhood, education, and skills development) needs to be available to all females entering the penal and corrective system. Without being equipped to deal with a variety of challenges which may affect adjustment to life outside the correctional facility and maintain their reformative behaviours, a great risk of recidivism for female offenders arises.
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The authors analyse the 2021 ruling by the Polish Supreme Court, which refused to acknowledge the right to live in a clean environment as a personal interest. The purpose of the paper is not only to evaluate the quality of the Supreme Court’s argumentation, but also to highlight the implicit prem- ises that were missing from the grounds of the decision. Based on these findings, the authors draw broader conclusions about the circumstances that increase the likelihood of pro-environmental (in- cluding pro-climate) court decisions and breakthroughs in interpretation. The authors use the latter term to describe the situation of challenging the previous, widely accepted interpretation of certain legal provisions, favouring a different interpretation that considers societal changes in values and beliefs. The authors evaluate the Supreme Court’s arguments and put forward the thesis that the construction of personal interests was not the primary reason for rejecting the recognition of the right to live in a clean environment as a new personal interest. The authors used two methods to search for the hidden premises of the Supreme Court’s resolution: (i) they examined the discourse supporting the rejection of the right to live in a clean environment as a personal interest, and (ii) they placed the resolution in its socio-political context. The authors identify four conditions that increase the likelihood of pro-environmental (and pro-climate) court judgments: (i) the condition of costs’ expediency, (ii) the condition of individualization of responsibility, (iii) the condition of respect for the judiciary and (iv) the condition of public support. The last two conditions apply to interpreta- tive breakthroughs in general, regardless of the subject matter.
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In July 2021, Regulation (EU) 2021/1119 of the European Parliament and of the Council onthe establishment of a framework for achieving climate neutrality entered into force. In thiscontext, it is therefore important to determine whether a conceptual category such as ‘climatelaw’ can indeed be distinguished in EU legislation and, if so, what is the meaning of this no-tion? To this end, the notion of ‘European climate law’ is analysed. The dogmatic-legal methodis primarily used as the research method in this study. A theoretical-legal method is also usedto highlight certain themes related to legal institutions. The research is narrowed down toselected normative acts that are part of the EU legislation – the provisions of normative actsrelated to the functioning of the EU are analysed. The main conclusions in the paper focus onthe application of the term ‘climate law’ in the selected EU regulations. This is juxtaposed withthe category of the legal system sensu stricto and sensu largo. The analysis carried out confirmsthe thesis that Regulation (EU) 2021/1119 of the European Parliament and of the Council of30 June 2021 on the establishment of a framework for achieving climate neutrality should beclassified as climate law sensu largo.
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The article deals with the institution of mediation in court and administrative proceedings,regulated by the provisions of the Law on Proceedings before Administrative Courts (LPA) of30 August 2002. According to the assumptions, mediation was supposed to streamline the pro-ceedings by facilitating the resolution of disputed issues emerging in a case subject to control byan administrative court. However, mediation has not found wider application. The article aimsto establish the reasons for the limited scale of the use of this institution, including the decreasein the number of mediations conducted before voivodeship administrative courts. The researchcovers the years 2004–2017, that is, the period when mediation was conducted by judges or courtreferendaries. The source material for the considerations presented in the article are new datafrom interviews with judges and court referendaries. The article presents the opinions of thesepeople on the reasons for the consistent decrease in the number of cases referred to mediation.The authors also rely on statistical data from the Supreme Administrative Court. The analysis isconducted from a sociological and legal perspective. The research presented in the article showsthat the reasons for the decrease in the number of cases referred to mediation in the years 2004–2017 can be explained on the basis of the theory of social role and the theory of rational choice.The conducted research complements the current state of knowledge on mediation in the LPA andallows us to identify further directions for the development of this procedural institution.
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The research presented in the article aims to assess the scope of the normative freedom of EUMember States when implementing non-conviction based confiscation. This study was based on thecase law of the Court of Justice of the European Union (CJEU) and the European Court of HumanRights (ECHR). The study shows that despite the broad discretion of the Member States resultingfrom the position of the CJEU, domestic regulation of this type of confiscation falls outside the scopeof EU law; the extensive jurisprudence of the ECHR sets quite precise boundaries concerning theconcept of confiscation without prior conviction. Thus, it limits the discretion of Member Statesin this regard, providing both safeguards for individuals and guidelines for national legislatorsthat intend to develop non-conviction based confiscation regimes in their domestic legal system.
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Report on the National Scientific Conference Medycyna i Prawo: pozasądowe metody rozwiązywania sporów dotyczących zdarzeń medycznych, Academy of Zamość, Zamość, 24 April 2023
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The main purpose of the article was to indicate the growing importance of the issue of determinants of the development of applications of generative artificial intelligence with particular attention to the issues of current and potential threats to this development and also the necessity of legal regulation of this development. On the one hand, the development of artificial intelligence is a kind of next stage of the ongoing technological progress, which has been taking place since the first industrial revolution, consisting in the increase in the scale of objectification of labor and automation of manufacturing processes. On the other hand, taking into account the ChatGPT, which is made available in open access on the Internet, this development of generative artificial intelligence also generates many risks related to the potentially rapid development of disinformation in social media, non-compliance with copyright, the decreasing possibility of identifying the authorship of works created by artificial intelligence, and the use of artificial intelligence by hackers and cybercriminals to create new cybercrime techniques, and so on. In this regard, it is necessary to regulate the development of applications of generative artificial intelligence technology, so that this development does not generate negative consequences and new categories of threats.
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Organising and conducting the attorney-at-law traineeship is one of the statutory tasks of the National Bar of Attorneys-at-Law that performs the constitutional function of having custody of the proper performance of the attorney-at-law profession within the limits of the public interest and for the protection thereof. Undertaking such a task is connected with incurring expenses and therefore collecting revenues from the annual fees for the traineeship paid by attorneys-at-law in the amount established by the Minister of Justice. The National Bar of Attorneys-at-Law is granted a statutory competency to issue internal acts within the bar influencing the regulations on financial management, inter alia: financing the attorney-at-law traineeship, as well as (on the territorial level) the regulations on settlements in individual cases concerning the traineeship fees reductions. Although conducting the attorney-at-law traineeship is a task of public nature, the entities of the National Bar of Attorneys-at-Law do not obtain public money for that purpose.
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According to art. 386 § 5 of Civil Procedure Code where the judgment is set aside and the case is referred to be re-examined, the court examines it in the same composition, unless it is not possible or it would cause excessive delay in the proceedings. Such a provision is controversial as, in principle, the judge will have to conduct the same civil case again – even if they already gave judgement in the case. The current regulation in which the same judge is to adjudicate in the case for the second time may be seen as inappropriate in view of the content of another legal regulation. According to art. 386 § 6 of Civil Procedure Code a legal assessment expressed in the statement of reasons for a judgment issued by the court of the second instance is binding on the court to which the case was referred and the court of the second instance in the case of re-examining the case. However, this does not apply to a situation when there was a change in facts or the legal situation, or when after the court of the second instance issued a judgment the Supreme Court of the Republic of Poland expressed a different legal assessment in a resolution settling a legal issue. In the paper I pay attention to the regulation from the judges’ perspective. I present some observations on the difficult role of a judge who is to pass the judgment in the case for the second time. I focus on the issue of psychological mechanisms relating to the reconsideration of a decision that has been challenged. The paper is partly based on the interviews with Polish judges.
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The Act of 7 July 2022 amending the Act – Criminal Code and certain other acts introduced into the Criminal Code the possibility for the court to impose the sentence of life imprisonment without possibility of parole (Article 77 § 3 and 4 of the Criminal Code), which constitutes a novelty in Polish criminal law and is widely criticised by the legal community. The legislator has provided two grounds for the optional imposition of life imprisonment without possibility of parole. The article discusses Article 77 § 3 of the Criminal Code is based on formal grounds: a previous final conviction for a specific type of crime (against life and health, freedom, sexual liberty, public security or of a terrorist nature) for life imprisonment or imprisonment for a period of not less than 20 years. It introduces a new form of juridical (legal, special) one-time recidivism. Fulfilment of its prerequisites, however, does not tighten the limits of life imprisonment, but the possibility of imposing it with the prohibition of conditional release
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