O nowej teorii prawa naturalnego, małżeństwie i wolności religii

Author(s): Krzysztof Motyka / Language(s): Polish Issue: 24/2021

This article has been written in connection with the Polish edition of the book What Is Marriage? Man and Woman: A Defense by three American representatives of the New Natural Law theory/school: Sherif Girgis, Ryan T. Anderson, and Robert P. George. In the first part, the article introduces the authors of the book as well as their theory/school and its position on marriage as a basic good. Then it discusses the case law of the US Supreme Court relating to same-sex marriage, including the role of the right to privacy in this regard. Particular attention has been paid to the decision of this court in the case of Obergefell v. Hodges, and especially its aspects relating to the freedom of religion that have previously received little attention in Polish literature on the subject. The article ends with a brief overview of several post-Obergefell cases related to same-sex marriage and freedom of religion, including the very recent case of Fulton v. Philadelphia.

Wyrok Sądu Apelacyjnego w Szczecinie III Wydział Pracy i Ubezpieczeń Społecznych z dnia 30 czerwca 2020 roku (III AUa 129/20)

Author(s): Not Specified Author / Language(s): Polish Issue: 34 (2)/2021

Wyrok Wojewódzkiego Sądu Administracyjnego w Szczecinie z dnia 10 lutego 2021 roku (II SA/Sz 956/20)

Author(s): Not Specified Author / Language(s): Polish Issue: 34 (2)/2021

Wyrok Sądu Apelacyjnego w Szczecinie III Wydział Pracy i Ubezpieczeń Społecznych z dnia 30 lipca 2020 roku (III AUa 248/20)

Author(s): Not Specified Author / Language(s): Polish Issue: 35 (3)/2021

Postanowienie Sądu Apelacyjnego w Szczecinie I Wydział Cywilny z dnia 7 października 2020 roku (I AGz 40/20)

Author(s): Not Specified Author / Language(s): Polish Issue: 35 (3)/2021

Wyrok Wojewódzkiego Sądu Administracyjnego w Szczecinie z dnia 17 lutego 2021 roku (I SA/Sz 965/20)

Author(s): Not Specified Author / Language(s): Polish Issue: 35 (3)/2021

Digitalizarea și infracțiunile în cyberspațiu – o controversă în fața necesității apărării drepturilor fundamentale

Author(s): Mihaela-Cristina Mihai / Language(s): Romanian Issue: 3/2021

This article aims to bring a brief perspective on the cyberviolence and cybercrime, determined by the evolution of these two phenomena, which permanently represents a subject of interest, but also a concern. The actual context of sanitation crisis headed the attention to the growth of the crime in cyberspace, and the consolidation of national framework regulation, especially in 2020, represented a major event in the history of cyberspace legislation.

До питання про зворотну дію в часі рішень Конституційного Суду України

Author(s): O. V Pushniak / Language(s): Ukrainian Issue: 20/2021

The article focuses on the problem of the temporal effect of the rulings of the Constitutional Court of Ukraine declaring the unconstitutionality of legislation, in particular on the matter of retroactivity of such rulings. Based on the existing standpoints in the legal doctrine, the author has analyzed the legislation and legal practices of Ukraine, notably the practice of the Constitutional Court of Ukraine and the Supreme Court. In particular, the highest consideration is given to the established legal positions of the courts, which set up the non-retroactivity of the rulings of the Constitutional Court of Ukraine on unconstitutionality of an act of legislation. This position is based on the courts’ interpretation of Art. 152 of the Constitution of Ukraine as such, which makes it impossible for these rulings of the Constitutional Court of Ukraine to be retroactive. The article also examines the exceptions to this rule. The author notes the fundamental shortcomings of this position, whose categorical approach contradicts a number of fundamental legal principles. It unjustifiably prefers legal certainty, ignoring the requirements of justice, protection of human rights, equality, as well as a number of components of legal certainty or similar requirements of supremacy and direct effect of the Constitution of Ukraine, consistency of law, legality. The inconsistency of such position is also highlighted from the standpoint of the legal dogmatics and argumentation. In general, the decisions of the Constitutional Court of Ukraine and the Supreme Court on this matter do not contain any detailed or proper arguments. Meanwhile, there is a misinterpretation of the relevant provision of the Constitution of Ukraine as determining the direction of the temporal effect of the ruling of the Constitutional Court of Ukraine on the rights and obligations, when in fact this provision directly sets only the dates of invalidation of unconstitutional provisions. Under such conditions, the author states that the general principles of law, the current Constitution and legislation of Ukraine generally do not prohibit the retroactivity of rulings of the Constitutional Court of Ukraine on unconstitutionality of an act of legislation. Rather, they point at its necessity in many cases. At the same time, the author emphasizes the need for a more flexible approach to determining the directions of the temporal effect of rulings of the Constitutional Court of Ukraine.

ACCESS TO STANDARD ESSENTIAL PATENTS AND ANTITRUST ENFORCEMENT: THE CASE FOR LICENSING COMPONENT MANUFACTURERS

Author(s): Rafał Sikorski / Language(s): English Issue: 2/2020

The ability to compete on numerous markets today depends on access to technological standards. When standards are protected by standard essential patents (SEP), a license to use such SEPs will be required. There have been numerous disputes in various jurisdictions over refusals to license SEPs. Most recently, disputes concern access to SEPs by the manufacturers of components. Some SEP holders deny access to their standard essential patents to component manufacturers and prefer to license end product producers. This practice has become a highly contentious issue around the world. In particular, manufacturers of components who are denied access to SEPs claim that such refusals amount to violations of competition rules. The author examines this highly contested practice is an attempt to show when denying access to an SEP license could harm competition.

»Bil je konkurz prava katastrofa.« Stečajni postopki pred Deželnim sodiščem v Ljubljani med letoma 1900 in 1918

Author(s): Ivan Smiljanić / Language(s): Slovenian Issue: 3/2020

The contribution analyses the bankruptcy proceedings that took place in the Ljubljana Provincial Court between 1900 and 1918. The typical course of bankruptcy proceedings and their stages are reconstructed mainly based on the court documents. The introduction lists the reasons that drove private individuals and entrepreneurs into bankruptcy, followed by the declaration of bankruptcy, the selection of a bankruptcy commissioner and administrator, the position of creditors, ways of achieving the maximum possible value of the bankruptcy estate, the distribution of the estate, and the conclusion of the proceeding. Quotations from court files provide insight into the many problems faced by everyone involved in these proceedings, from the non-cooperation of debtors and low quotas to World War I.

Dreptul de deducere a taxei pe valoarea adăugată în jurisprudența CJUE, de la Signum Alfa Sped la Vikingo (II)

Author(s): Cristina Alexandra Boncaciu,Ioana-Raluca Gherghel / Language(s): Romanian Issue: 4/2021

Throughout this paper, we intend to address the right to deduct value added tax, in the light of the case law of the Court of Justice of the European Union, starting from the case of Signum Alfa Sped and ariving to the the case of Vikingo. This paper is shaped as a jurisprudential repertoire, aiming to summarize the relevant jurisprudence on the right to deduct value added tax and the situations in which the Court considered that a right to deduct the value added tax may be restricted. This article represents the second part of the paper, the first part can be found in the previous number of the magazine.

Implantacja zarodków utworzonych z komórek rozrodczych samotnych kobiet – propozycje przepisów przejściowych

Author(s): Rafał Łukasiewicz / Language(s): Polish Issue: 1/2021

According to the Polish Infertility Treatment Act, single women do not have access to medically assisted reproduction (MAR). Nevertheless, many single women had taken part in third-party reproduction before the Infertility Treatment Act came into effect. Under the current legal regulations, they are not entitled to have their embryos, which were created from their oocytes and anonymous donors’ semen, implanted. Given that Polish Law prohibits destroying embryos, the embryos will be stored for 20 years and after this time they will be donated to other couples without the single woman’s consent or knowledge. This means that a donor-conceived child will be brought up by non-genetic parents instead of their genetic mother, who wanted to give birth to a child and be responsible for him or her. The aim of this article is to analyse the risks associated with the above problem. The Polish Constitutional Tribunal’s proposal of 18 April 2018 (S 2/18) recommends the consent of the family court to embryo implantation in the cases of single women who took part in third party-reproduction using MAR before it became illegal. In this article I present some weaknesses of this solution and present another proposal which gives a chance to protect the involved parties’ interests, and which is consistent with the current legal regulations.

The LGBT community in Israel: access to the surrogacy procedure and legal right for equality, family life and parenthood

Author(s): Yael Ilany,Netta Ilany / Language(s): English Issue: 1/2021

In Israel’s legal system, equality is a fundamental principle. LGBT people in Israel suffer from discrimination due to their sexual orientation and their right to equality, parenting, and family life is impaired. Regarding the surrogacy procedure, the Supreme Court has unequivocally stated that the relevant laws discriminate against LGBT people and their fundamental rights when compared to heterosexual people. The main problem is that the statutes block the access to the surrogacy procedure of single men and male couples, harming their right to equality, right to a family life and parenting. The article suggests adopting the minority ruling of Justice Uzi Vogelman in HCJ 781/15 and declaring the nullity of the sections in the laws that discriminate against single men and male couples. This remedy is a lawful and operative solution for the inequality rooted in the surrogacy arrangements towards homosexuals that want to establish a family and become parents. The expectation from the legislature to amend the law is unrealistic, due to the political construction of the Israeli Knesset (parliament). An innovative approach for the amendment of the inequality towards LGBT people should be the nullity of the discriminating sections of the law.

International procedures to resolve dispute in tax law

Author(s): Maria do Rosario Anjos,Maria João Mimoso / Language(s): English Issue: 1/2021

This study is about dispute resolution procedures in international tax relations. It is an issue of international tax law with enormous relevance at a time of globalization. Objectives: analyse the cooperative relationship programmes and mechanisms to guarantee the correct interpretation of tax legislation between administrations, in the field of international commercial transactions and investments. Methodology: study of APA programmes; comparative study of solutions adopted by some administrations in EU; some internal mechanisms to resolve dispute in tax law. Some case studies will be analysed. Results: we concluded that when a company initiates a new investment, it should consider the possibility that controversy could arise down the line about the consequences of the investment on tax to pay. So, the APA programmes are very important and if they can’t be applicable there are other mechanisms to assure the equity in e tax law interpretation and application. The administrative collaboration, the modernisation of methods and change of information’s are definitely important to the international commerce in a globalization era.

Sprawozdanie z konferencji międzynarodowej „Judicial Law-Making in European Constitutional Courts”

Author(s): Paweł Daroszewski / Language(s): Polish Issue: 3/2021

Dnia 28 stycznia 2021 roku odbyła się konferencja międzynarodowa pt. „Judicial Law-Making in European Constitutional Courts” zorganizowana online przez Centrum Interdyscyplinarnych Studiów Konstytucyjnych Uniwersytetu Jagiellońskiego (CISK UJ) wspólnie z Wydziałem Prawa i Administracji Uniwersytetu Jagiellońskiego oraz Central and Eastern European Regional Chapter of the International Society of Public Law (ICON-S CEE). Konferencja poświęcona była prezentacji wyników badań międzynarodowego zespołu badawczego kierowanego przez Monikę Florczak-Wątor, które zostały opublikowane w 2020 r. w pracy zbiorowej wydanej nakładem wydawnictwa Routledge1 .

Sarajewo, Bośnia i Hercegowina: wyrok Sądu Konstytucyjnego Bośni i Hercegowiny z 22 kwietnia 2020 r. w sprawie skarg Lejli Dragnić i A.B. dotyczący zakazu przemieszczania się skierowanego do osób poniżej 18 i powyżej 65 roku życia, sygn. sprawy AP...

Author(s): Kaja Stelmaszewska / Language(s): Polish Issue: 1/2021

Fakty: Federalny Sztab Ochrony Cywilnej Federacji Bośni i Hercegowiny (dalej: Sztab Federalny lub Sztab)2 wydał w dniu 20 marca 2020 r. zarządzenie zakazujące osobom poniżej 18 i powyżej 65 roku życia przemieszczania się na obszarze Federacji Bośni i Hercegowiny3 (dalej: FBiH). Zarządzenie to weszło w życie z dniem ogłoszenia i miało obowiązywać do 31 marca 2020 r. Celem wydania aktu było ograniczenie rozprzestrzeniania się na terytorium FBiH wirusa SARS-CoV-2.

Procesele lui Gheorghe Şincai (în documente publicate în revista Vatra)

Author(s): Cornel Moraru / Language(s): Romanian Issue: 3/2004

During the seventies and the eighties, Vatra Magazine decided to publish some documents concerning the trials Şincai was involved in and that took place at Târgu-Mureş. The first attempts in this direction took place in 1976 when, in each issue of Vatra, from January untill Decembre, was published a part of the trial text. The introduction was signed by Gheorghe Hosu and the text was translated - from Latin and Hungarian - by Liviu Moldovan. Two years later, in 1978, four issues of the magazine included the text of another trial – that against Pfenningsdorf. There is no introduction - chapeau - but we know the interpreter - the same Liviu Moldovan. The last attempts date from 1981; two of magazine issues - 6 and 7 - reproduce the moment of Şincai’ s inquiry from 1794, when he was emprisoned at Aiud. The text was translated by Liviu Moldovan; it was no longer found at County Archives, but in Papiu Ilarian’ s work Viaţa, operele şi ideile lui Gheoghe Şincai, published in 1869. It is easy to observe that these attempts did not respect the chronological criteria of the trials. But the materials were published as they were received at Vatra’ s editorial office. All these texts - inquiries, examinations, declarations - made us see Şincai from a different perspective. We know that he had a terrible destiny, bad luck and misfortunes; but, in the same time, we have to accept that he was a quick-tempered person and this side of his personnality caused him a lot of troubles.

Zapisnici Vrhovnog saveta odbrane (VSO) 1992-1993. - dokazi o agresiji na Republiku Bosnu i Hercegovinu

Author(s): Meldijana Arnaut Haseljić / Language(s): Bosnian Issue: 20/2021

Among the documents that directly link the Federal Republic of Yugoslavia (Serbia and Montenegro) to the aggression against the Republics of Bosnia and Herzegovina and Croatia are the minutes of the Supreme Defense Council (SEC) of the Federal Republic of Yugoslavia (FRY). The content of these documents is incriminating for the FRY, because it blatantly shows and proves the participation of this state in aggression and the commission of crimes against humanity and international law committed in the territories of the former Yugoslav republics, after the declaration of their independence. The significance of these documents is shown by the designations “state secret” / “military secret” and “top secret” assigned to them. Minutes were kept of the work of the SEC sessions, which together with the materials for the discussion and stenographic notes represented the archival material. These documents unequivocally prove that Yugoslav Army (YA) officers who served in Bosnia and Herzegovina during the armed conflict received salaries and other benefits from the YA personnel center in Belgrade (30th Personnel Center). SEC records also show that the YA provided large- scale logistical assistance to the Republika Srpska Army (RSA) consisting of large quantities of infantry and artillery ammunition, fuel, spare parts, and in conducting training and providing expert assistance to conduct armed operations in the territory of the Republic of Bosnia and Herzegovina. In this paper, the aim is to use the method of analysis of documents – minutes from the sessions of the SEC to show and prove how the FR Yugoslavia and what type of activity carried out the aggression against the Republic of Bosnia and Herzegovina, an independent and sovereign state. The scope of documentary material limits us to the processing of documents by periods, and in this text, we deal with the analysis of the minutes from 1992 and 1993.

Efectele Deciziei nr. 51/2016 a Curții Constituționale a României

Author(s): Ioan Florentin Ene / Language(s): Romanian Issue: 1/2022

Both the doctrine and the jurisprudence have ruled in opposite directions, separate or nuanced regarding the issue of the nullity of the evidence obtained under the conditions of art. 142 para. (1) of the Code of Criminal Procedure “by other specialized state bodies”, from the perspective of Decision no. 51/2016 of the Constitutional Court of Romania. However, the judicial practice was aimed, for the most part, at establishing the nullity (and all the specific legal consequences) of the evidence obtained under the conditions of art. 142 para. (1) of the Code of Criminal Procedure “by other specialized state bodies”, as an effect of the adoption of Decision no. 51/2016 of the Constitutional Court of Romania, as well as of the subsequent decisions of the Constitutional Court of Romania, which interfere with it (no. 302/2017, no. 22/2018, no. 26/2019).

Hotărârea Curții de justiție a Uniunii Europene (Camera a patra), în cauza C‑724/19 din 16 decembrie 2021

Author(s): Andrei Catalin Popescu / Language(s): Romanian Issue: 1/2022

Judgment of the Court of Justice of the European Union (Fourth Chamber), in case C-724/19 of 16 December 2021.