Přehled aktuální judikatury II/2021
Short summaries of current case law in the field of ICT law.
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Short summaries of current case law in the field of ICT law.
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This article addresses the issue of assessing the legal nature of various activities performed by musicians: participation in symphonic concerts, orchestra rehearsals and sectional rehearsals, as well as remaining in compulsory standby to replace another musician during a concert or rehearsal. A number of doubts concerning this issue emerged, which resulted in unstable interpretation of the provisions of the Copyright and Related Rights Act (in particular with regard to interpretation of the term “artistic performance”). Divergences in interpretations affected not only the civil law assessment of the presented issue, but also public law aspects (including the tax law assessment as to the possibility to apply increased, 50%, tax deductible costs). The research objective of this paper is to identify the framework of the disputed area resulting in discrepancies in interpretation and to present possibilities (and methods) of eliminating the interpretation dilemmas that have arisen. This concerns both irregularities in the interpretation of the provisions relating to the type (and results) of professional activity of classical musicians from the point of view of copyright protection and the subsequent tax-law assessment. The article uses the dogmatic-legal method.
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The article discusses the issue of the degree of social harmfulness of acts detrimental to goods obtained through immoral means (specifically, infringement of copyright to legally produced pornographic films). All film productions (also those of a pornographic nature) are works within the meaning of the Polish Act of 4 February 1994 on Copyright and Related Rights. The protection of rights to them is not limited by any moral assessments, but by objectively verifiable features of the work. For legal pornographic works, while their content itself may be regarded as controversial or even unacceptable from the point of view of social norms, theassessment of the social harmfulness of the act is determined not by their content but by the degree of the infringement of the object of protection. The moral assessment of the content contained in the work is irrelevant, if the content is in itself legal and disseminated lawfully, because the protection of non-property rights and, in particular, property rights to a work is not about the protection of the content of those works, but about the author’s rights. The finding that the act involved the dissemination of a someone else’s pornographic work cannot serve as a basis for considering the degree of social harmfulness of the offence as negligible. It is only the degree of copyright infringement that matters in the specific case
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The article discusses the statutory features of the offence of incest in the Polish Penal Code from 1997 (Article 201) and the results of empirical research carried out. Doubts were raised in doctrine about the rationalization of the prohibition of incest and the definition of the object of protection of this crime. The conduct that constitutes the actus reus as well as the subject and the subjective side of the offence of incest were also analysed. The research material was the files of cases under Article 201 Penal Code registered in all public prosecutor’s offices in Poland in 2013–2014 (389 cases). Research was intended to was primarily to identify the criminological picture of the offence of incest and its scale compared to total crime figures in Poland and the policy of punishing. The next aim of the research was to characterise the families, in which incestuous acts took place, and thus to answer the key questions in this context: whether incest is a factor determining the so-called family pathology or maybe it is a phenomenon conditioned by it and whether it occurs spontaneously or is connected with sexual violence in the family. The results of the research show that the so-called “regular incest” (voluntary on both sides), qualified only under Article 201 Polish Penal Code, is relatively rare in the practice of the judiciary. Most cases of incestuous sexual relations were combined with the crime type of sexual abuse of a minor or rape. These results seem to confirm the thesis that incest is rarely the only committed offence, but is most often related to domestic sexual violence. They also support the thesis that incest is a phenomenon conditioned by already existing family dysfunctionality, not its cause.
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The aim of this paper is to compare the American and European standards of the inadmissibi-lity of evidence of unlawful police entrapment. In US criminal procedure, which permits active forms of entrapment, the US Supreme Court and most federal courts apply a subjective test for the entrapment defense, focusing on the predisposition of the person provoked to commit the crime and, less often, an objective test examining the legality of government agents’ actions. The Strasbourg standard (including German cases) is based on two tests: a substantive one (examining both the predisposition of the person being provoked and the legality of the police actions) and a procedural one, which consists in verifying the reliability of the national courts' recognition of the charge of incitement to commit a crime by the police The basic difference between the analysed standards is to be found in the effects of illegal entrapment. In the US system, it is a justification to the perpetrator’s responsibility for a crime committed as a result of entrapment, and the Strasbourg standard allows for sanctioning the negative effects of such illegal evidence to be convalidated in criminal trial when the Court considers that “the trial as a whole was fair”.
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The paper covers the issue of accelerated penal procedure. It discusses conditions for application of this procedure under Polish law and presents them against the background of regululations in force in other countries, i.e. Germany, France, Spain, Portugal and Belgium. The assumption of the study was to assess Polish legal solutions and to demonstrate the basic differences and similarities between laws of each of afresaid countries.
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Liability for damage caused as a result of an aviation accident means first of all liability of an air carrier for damage done to passengers and liability of an aircraft user for damage done to third persons. However, it is also possible to impute liability to other entities, such as an aircraft manufacturer, a service institution, en entity managing an aerodrome, an institution providing air traffic services, or even aviation supervision authorities. The article analyses potential grounds for those entities’ liability. Liability of aviation personnel is not covered in the article.
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The article constitutes a comparative legal study of mediation based on for procedural regulations, i.e. Act of 6 June 1997: Code of Criminal Procedure, Act of 17 November 1964: Code of Civil Procedure, Act of 14 June 1960: Code of Administrative Procedure, and Act of 30 August 2002: Law on the Proceedings before Administrative Courts carried out with the use of a dogmatic method. The author analyses the solutions that, in his opinion, make it possible to propose a thesis on far-reaching convergence of the basic, and at the same time of normative provenance, principles of mediation. The principles include amicability, voluntariness (optionality), commonness, loyalty to parties, confidentiality and non-openness of mediation, as well as a mediator’s impartiality. The above-mentioned convergence does not mean complete homogeneity of particular solutions or their non-defectiveness, which is exemplified by Article 2591 CPC and Article 83 § 4 CAP. It is also shown that the domestic solutions are in conformity with the solutions recommended by the Committee of Ministers of the Council of Europe.
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The present study concerns the issue of suability of a rector’s decision on the suspension of a student’s rights. The author tries to define the appellate measures that a student has the right to use and the consequences of lodging them. The critical issue consists in the necessity to delimit a student’s suspension as a disciplinary penalty imposed as a result of a disciplinary proceeding conducted by the disciplinary commission in the mode and on terms specified in the Act on Higher Education and Science and appropriate application of the Code of Criminal Procedure and suspension as a result of an administrative decision issued by a university rector before the initiation of an explanatory proceeding or in the course of a disciplinary proceeding. The starting point was to define the legal nature of the relationship between a student anda university as an administrative institution managed by a rector. The considerations lead to the necessity to adopt a presumption that a rector’s decision in a case in question is a form of an administrative decision. Only the adoption of this optics leads to the reconstruction of appellate measures that enable a student - in case of those that are not final - to use non-devolutive appellate measures in the form of a motion to reconsider a case, which is classified as a horizontal instance, or a complaint to an administrative court in accordance with Article 52 § 3 Act on Proceedings before Administrative Courts. The legislator left the choice of the legal remedy to a student. A student still has the right to lodge a complaint about a final decision to an administrative court.
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The article discusses the issues related to the legalisation of an advertising medium located by a public road at the distance that is shorter than the one required by the Act on public roads. Both the type of the medium and its location affect the obligation to notify an organ or obtain a building permit. A special issue in this regard is the possibility of obtaining a road administrator’s consent for the placement of an advertising device in spite of the fact that the minimum distance of advertisements from the outer edge of a road was not taken into consideration in the course of the legalisation proceeding. Despite the lack of legal regulations of this matter, possible solutions are indicated.
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This paper has discussed a variety of terms used in classical Roman law to denote land, namely: praedium, fundus, locus, possessio, villa, ager, solum. Apart from those, terminology used for land in the classical law period comprised: res quae solo continentur/tenentur (things related to land), res solo cohaerentes (things attached to land) or simply res soli (real property), while the term res immobiles, meaning real property, appeared in the sources of Roman law as late as in the post-classical period.The analysis of the selected sources of Roman law indicates that the scope of those terms was wider or narrower, which means that they sometimes coincided or overlapped, and as a result they were sometimes used interchangeably. The terminology in this respect fluctuated, and the scope of individual terms was being determined by Roman jurists when resolving individual cases. The preserved sources of Roman law indicate that although attempts were made to define individual terms used in respect of land, Roman lawyers did not fully develop a complete division of land into individual categories.
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The specific legal benefit of the respective provisions of the Penal Code indicated in the title of the special chapter of the Code implies the type of legal benefits contained therein. Since May 25, 2019, the legislator, by amending the title of Chapter XXXVI of this Code as following: ‘Crimes against economic turnover and property interests in civil law transactions’ has extended the generic object of protection, as a result of which it is no longer relevant whether the respective conduct takes place in economic turnover (as previously) or in civil law turnover, in which non-professionals will appear on both sides. The Supreme Court noted that this would cause an inevitable revolution in the interpretation of the provisions of this chapter. Among other things, this applies to the crimes specified in Art. 301 of the Penal Code, sanctioning the debtor’s bankruptcy or insolvency, therefore penalisation, as a subject of a crime, will also apply to the “consumer”. At the same time, the legislator in the insolvency law, and more specifically in the Bankruptcy Law, opened access to debt relief also to those debtors “consumers” who led to their insolvency or significantly increased its degree intentionally or through gross negligence. There is a possibility of reduction of liabilities even if such a debtor acted deliberately. The author showed that this resulted in a discrepancy between criminal law and bankruptcy law, as well as an axiological collision in the legal system, which occurs when the legislator values a given value higher in one norm than in another, and in the other one does the opposite. In the author’s opinion, some norms will not be derogated by the legislator, and the conflict of laws rules will not apply in this case. It will be necessary to interpret penal provisions based on the paradigm of the presumption of the rationality of the legislator and the subsidiarity of criminal law.
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The analysis of the transfer of ownership in the specific quasiusufructus of things that are destroyed with their use is a key question to understand a particular legal figure, which, although in the sources, fits into the main scheme of ususfructus and fulfills the same social - economic function, has its own structural characteristics. On the one hand, the legal sources include it in the general framework dedicated to the legal regime of ususfructus (in book VII of the Digests, in title IV of book II of the Institutions and in title XXXIII of book III of the Codex). On the other hand, however, the sources categorically deny the creation of a usus fructus over res quae usu consumuntur. Rather, it speaks of the establishment per cautionem of a quasiususfructus. The article examines the development of the regulation and the opinions of jurisprudence on this matter in Roman law and in the Spanish Civil Code.
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This paper represents the opinion elaborated in the name of the Faculty of Law from the West University of Timișoara, at the request of the Hight Court of Cassation and Justice, The panel for preliminary ruling on questions of law, made in court file no. 2482/1/2021, in which Decision no. 84/2021 was delivered, preceded by the presentation of the questions of law and followed by a brief assessment of the reasoning of the High Court.
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Hotărârea Curţii de Justiţie a Uniunii Europene din data de 28 aprilie 2022, pronunţată în cauza C‑612/20, Hotărârea Curţii de Justiţie a Uniunii Europene din data de 28 aprilie 2022, pronunţată în cauza C‑637/20, Hotărârea Curţii de Justiţie a Uniunii Europene din data de 7 aprilie 2022, pronunţată în cauza C‑228/20, Hotărârea Curţii de Justiţie a Uniunii Europene din data de 7 aprilie 2022, pronunţată în cauza C‑333/20, Hotărârea Curţii de Justiţie a Uniunii Europene din data de 7 aprilie 2022, pronunţată în cauza C‑489/20, Hotărârea Curţii de Justiţie a Uniunii Europene din data de 7 aprilie 2022, pronunţată în cauza C‑342/20, Hotărârea Curţii de Justiţie a Uniunii Europene din data de 7 aprilie 2022, pronunţată în cauza C‑668/20, Hotărârea Curţii de Justiţie a Uniunii Europene din data de 24 martie 2022, pronunţată în cauza C‑711/20, Hotărârea Curţii de Justiţie a Uniunii Europene din data de 24 martie 2022, pronunţată în cauza C‑697/20,
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Foreign direct investment, the western border of Romania and the border restrictions in the first year of pandemic are the main directions of this article.The paper aims to determine the effects of border closure and its associated restrictions on foreign direct investment in Timiș County, a county situated on the Romanian Hungarian border, in the context of the Covid-19 pandemic. In other words, we asked to what extent and what way the border restrictions affected the companies with foreign capital, whether there were any reductions in turnover or even closures of companies, or whether, on the contrary, there were increases and new registered companies. Specifically, the turnover and number of employees of foreign owned companies over three years were analyzed, two years before the pandemic and the year of the pandemic (2018–2020), relying mainly on quantitative methodology; the measures taken by the authorities, especially measures related to border were identified, relying mainly on qualitative methodology. An own database, constituted with the help of the official sources from the Ministry of Finance of Romania, was the source for the financial data, and data provided by the Ministry of Internal Affairs was the source for legislative information. The analyzed companies were chosen based on the turnover criterion of at least 500,000 euros in at least one of the years 2018–2020. The ranking of the top ten largest companies with foreign capital in Timiș County has not undergone substantial changes during the three years. In the first year of Covid-19 pandemic, the number of dissolved/bankrupt/deregistered companies was higher than the number of newly established foreign companies. Compared to 2018 and 2019, several companies recorded decreases in turnover in 2020, some reaching 100% decreases, while others recorded increases, the large increase being of over 2000%. In 2020, the first restrictions related to border were included in President’s decree establishing a state of emergency and the last restrictions were in December, included in the document regarding the extension of the state of alert. During 2020, a number of restrictive measures were adopted through decrees, laws, decisions, emergency ordinances and others.
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The European Union (the EU) owes its existence to economic objectives. In territorial terms, Europe is the historical cradle of intellectual property (IP) and the pioneering economic activities in the region have long been inextricably intertwined with the IP-intensive sectors. Therefore, the importance of IP in the European economy, both internally and globally, is ubiquitous. At the external relations level, the competence allocation between the EU and its Member States hinges upon the elusive notion of ‘commercial aspects of intellectual property’ which has been prone to definitional ambiguity since its inception. Against that background, this article primarily aims to pinpoint whether the said notion is intended and/or utilized to delineate a confinable area within the international affairs of IP. In doing so we shall put in the perspective the economic/political continuum preceding the inception of that concept and piece together the legislative and jurisprudential development with a view to reason a definitional apprehension. Finally, having formulized a definitional paradigm, we shall reflect on the likelihood of an autonomous EU law concept in this particular context.
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The article is set to determine whether or not a judge that has previouslyissued a ruling restraining fundamental rights and liberties can issue another one in thesame circumstances. The article analyses the incompatibility of the judge, the sanctions thatare imposed if such an incompatibility exists, and possible remedies to the situation.
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Due to the role of food in human life and for the economies of the whole world, both food and the entire food chain are very vulnerable to terrorist attacks. Food terrorism is not a new phenomenon, and current experience confirms that it is still very dangerous. The aim of the article is to answer two research questions: (1) Does statutory law define the framework for protecting food against deliberate contamination and, if so, to what extent? (2) What role does private food law play in defending food against terrorism? As a result of the conducted analyses of law, including food law, and private food law, it was confirmed that in national and European food law there is no reference to food terrorism or food defence. The only regulations that exist concern the protection of the so-called critical infrastructure, such as those that ensure the provision of food and water supplies. The most developed law in the world in this respect is the American food law, including the so-called modernization act, which imposes an obligation on organizations to implement the HARPC system. Private food law plays a very important role in food defence against food terrorism, as well as voluntary – in terms of their implementation – risk assessment tools, such as the TACCP system, developed by various agencies and industry associations.
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This research aims to analyze the extent and the ways in which Romanian public administration institutions are currently using social media, involving citizens in active collaboration within society. It also explores the main issues that need to be considered when implementing an e-Government strategy. Our paper aims to shed a light not only on the scarce literature on the field, but also the particularities of this research provides empirical references, analyzes opportunities and challenges for more effective e-Government processes and to provide better public services. In the same time, there are highlighted the main issues that local public institutions need to take into account when managing the transition to operations in a social media environment. In doing so, we explore how experts and public servants in Romania acknowledge the importance of social media and new tendencies, how they refer to the tools they use and the way they approach stakeholders and citizens. With the help of semi-structured interviews with practitioners in Romania, we aim to structure a frame of looking at the new tendencies in Public Administration Development, with a particular focus on new technology and social media in e-Government.
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