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LEGISLATIVE UPDATES ON PUBLIC SERVICES

Author(s): Elena Emilia Ştefan / Language(s): English Issue: 1/2022

Meeting general interest needs has always been a concern of public authorities. The performance of the activity, both in the public and in the private sector was challenged to continuous adjustment in order to meet social needs and to provide certain services. On this occasion, on first sight, public medical services stood out as important from the rest of the public services, due to the fact that the concern of the authorities for the protection of public health was globally highlighted in the foreground. From this point of view, it is all the more necessary to have a coherent legal framework to regulate in an unitary way the general legal regime of public services, as there is a tendency to digitize public administration. Therefore, we are urged by the regulation of public services in the Administrative Code to analyze the legislator’s perspective on this matter. At the same time, the states are concerned to transpose European normative acts, acts with binding legal force, into the national legislation. In this respect, this paperwork will be focused on certain public services, by way of a case study, namely it will analyze the way of transposing the European legislation on road transport into our national legislation. Finally, we will draw the conclusion that emerge from the documentation of the proposed topic.

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O SPOŁECZNEJ SZKODLIWOŚCI CZYNÓW GODZĄCYCH W DOBRA UZYSKANE NA DRODZE NIEMORALNEJ

Author(s): Marek Kulik,Marek Mozgawa / Language(s): Polish Issue: 2/2022

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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KAZIRODZTWO. ASPEKTY PRAWNOKARNE I KRYMINOLOGICZNE

Author(s): Katarzyna Nazar / Language(s): Polish Issue: 2/2022

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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NIEDOPUSZCZALNOŚĆ DOWODU Z PROWOKACJI POLICYJNEJ W PROCESIE AMERYKAŃSKIM I NIEMIECKIM W ŚWIETLE ORZECZNICTWA SĄDU NAJWYŻSZEGO USA I ETPCz

Author(s): Cezary Kulesza / Language(s): Polish Issue: 2/2022

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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POSTĘPOWANIE PRZYSPIESZONE W SPRAWACH KARNYCH NA TLE PRAWNOPORÓWAWCZYM

Author(s): Jacek Kosonoga / Language(s): Polish Issue: 2/2022

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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ARTYSTYCZNA TWÓRCZOŚĆ CYBORGÓW

Author(s): Aleksandra Nowak-Gruca / Language(s): Polish Issue: 2/2022

The copyright law enshrines the principle that copyright protection can be considered only in the case of works of human origin, which is mitigated in the Anglo-Saxon systems by introducing the category of computer-generated works. Nowadays we are dealing with a situation where, first of all, we are unable to precisely indicate the features of the subject of protection and copyright law grapples with an unresolved problem of distinguishing a work from other objects. Secondly, in the case of new phenomena such as the creation of AI, androids or cyborgs, there are difficulties with attributing the authorship of the work. This results in a too high level of uncertainty of legal effectiveness. The aim of the paper is to present the phenomenon of the work of cyborg artists in the context of the anthropocentric approach to the authorship of the work, which is dominant in copyright law. The central problem here is the question of the copyright status of works that arise as a result of shifting the boundaries of human possibilities.

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SKŁAD SĄDU DRUGIEJ INSTANCJI W POSTĘPOWANIU CYWILNYM

Author(s): Aneta Łazarska / Language(s): Polish Issue: 2/2022

The aim of the article is to discuss the effects of the amendment to the Code of Civil Procedure introduced by the Act of May 28, 2021. in the scope of changing the bench composition of the court in appeal proceedings. The new solutions are controversial and in some respects interfere with the independence of judges. By reversing the principle of collegial composition in favor of one-person composition, there were insufficient guarantees for the continuation of the so-called unchanged composition of old cases, which may violate the principle of unchanged composition. Second, by entrusting only the administrative factor to the president of the court, deciding on the composition of the court did not provide sufficient guarantees for the respect of judicial independence.

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ZASKARŻALNOŚĆ ROZSTRZYGNIĘĆ REKTORA O ZAWIESZENIU STUDENTA W PRAWACH

Author(s): Agnieszka Ziółkowska / Language(s): Polish Issue: 2/2022

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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PROBLEMATYKA LEGALIZACJI NOŚNIKA REKLAMOWEGO USYTUOWANEGO PRZY DRODZE PUBLICZNEJ W ODLEGŁOŚCI MNIEJSZEJ NIŻ WYMAGANA W USTAWIE O DROGACH PUBLICZNYCH

Author(s): Małgorzata Sieradzka / Language(s): Polish Issue: 2/2022

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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EUROPEJSKI SYSTEM OPŁAT ZA USŁUGI WODNE JAKO INSTRUMENT KSZTAŁTOWANIA ZASADY ZWROTU KOSZTÓW I ZASADY „ZANIECZYSZCZAJĄCY PŁACI”

Author(s): Marcin Sobota / Language(s): Polish Issue: 2/2022

The entry into force of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy has introduced a new pricing system for water services. The Directive identifies the polluter-pays principle and the principle of cost recovery as a basis for action to be taken by the Member States when setting up pricing systems for water services. The provisions of Article 2(38) and Article 9 of the Directive raised questions of interpretation. The research issue of this study is to determine the discretionary scope of the Member States of the European Union for the protection of waters under a pricing system for water services, and to interpret the concept of “services” used in the Directive in the context of the cost recovery principle and the polluter-pays principle. The author, on the basis of the adopted research method, i.e., interpretation of law, views of legal academics and commentators, case-law of the Court of Justice of the European Union, states that the Directive provides for a mechanism whereby each EU Member State determines the individual uses of water in a pricing system for water services on the basis of a country-specific definition of “water services”. The pricing system for water services is only one of the legal instruments for setting the principle of cost recovery and the polluter-pays principle in the Member States’ water management system, and its scope is based on geographical, economic and natural criteria.

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„ICEBERG PROJECT” ZE ZJEDNOCZONYCH EMIRATÓW ARABSKICH – CZY INICJATYWA TA JEST ZGODNA Z PRAWEM MIĘDZYNARODOWYM?

Author(s): Mateusz Osiecki / Language(s): Polish Issue: 2/2022

In the ongoing climate crisis, more and more states of the world undertake initiatives that would reduce negative impact of dangerous growth of global average temperature, including droughts, drowning of coastal cities and water shortage. Recently, an ambitious idea to provide huge supplies of water for the population of the United Arab Emirates was initiated by one of Emirati businessmen – Mr Abdulla Alsheni, who plans to tow a huge Antarctic iceberg to the coast of Emirates. The plan itself is a logistic challenge, but at the same time may raise certain concerns on its compliance with international law. Hereby article has as an aim response to a question whether an act of towing an Antarctic iceberg would breach international law provisions, particularly those related to Antarctic Treaty System and law of the seas.

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OKREŚLENIA NIERUCHOMOŚCI W ŹRÓDŁACH RZYMSKIEGO PRAWA KLASYCZNEGO

Author(s): Renata Świrgoń-Skok / Language(s): Polish Issue: 2/2022

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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Legal and practical conditions of the functioning of the civil society organizations in Hungary and Poland

Author(s): László Kákai,Agnieszka Bejma / Language(s): English Issue: SI/2022

The initial democratic transitions in Central and Eastern Europe resulted in the emergence of re-combined civil societies across the region. The most important were the quality of democracy in individual countries, the resources and strength of independent civic initiatives, the role of the state in financing and supporting emerging civil sectors. Yet, it is the consensus view, that all post-communist countries share weak and structurally deficient civil societies, in fact, correct? This study introduces the way Central and Eastern Europe tackled the state socialist past through the example of Hungary and Poland. The hypothesis that will be verified in the article is that actions taken by the Hungarian and Polish governments lead to increased control and public power over the activities of civil organizations, which limits their development and functioning. Has the civil society been able to form an independent entity within the once politicized state in terms of organization, embeddedness, and national economic importance?

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WOMEN, BUREAUCRACY AND DEVELOPMENT IN NIGERIAN: A CONCEPTUAL PERSPECTIVE

Author(s): Bridget Onajite Urhibo / Language(s): English Issue: 22/2021

The introduction of diversity management programme in the Nigerian public service would constitute an effort to celebrate diversity by increasing supportive, not just neutral work environment for women but minority ethnic groups in the country. Against this backdrop, this study addresses the concerns of women not hired in senior public management positions. This paper adopted the analytical method and relies on secondary data and utilizes the content analysis for interpretation of data collected. This paper argues that in offering women the opportunity to access economic resources as well as to disentangle their identities from those of their families, diversity management programs will provide the space for women in Nigeria to clearly define their role as equal partners in the sustainable development process of the nation. The paper therefore concludes that the success of the government will increase if it is determined by its managers’ ability to naturally tap the full potentials of a diverse workforce that comprise of men, women and young adults.

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ПРЕХВЪРЛЯНЕ НА СОБСТВЕНОСТТА ПРИ QUASIUSUSFRUCTUS НА ВЕЩИ QUAE USU CONSUMUNTUR СПОРЕД РИМСКОТО ПРАВО И ИСПАНСКИЯ ГРАЖДАНСКИ КОДЕКС

Author(s): Maria Salazar Revuelta / Language(s): Bulgarian Issue: 1/2022

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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NECONFORMAREA ROMÂNIEI CU CERINŢELE CONVENŢIEI DE LA AARHUS, OBSERVATĂ PRIN PRISMA DECIZIEI NR. VI/8H/ 2017 A COMITETULUI DE CONFORMARE AL CONVENŢIEI ŞI MĂSURILE ÎNTREPRINSE DE AUTORITĂŢILOR NAŢIONALE RESPONSABILE FAŢĂ DE RECOMANDĂRILE COMITETULUI

Author(s): Anca-Jeanina Niţă / Language(s): Romanian Issue: 10/2022

Starting from the unchallenged fact that „the environment is a responsability which we take upon in common”, this paper discusses the goal and principles of the Aarhus Convention – a landmark instrument of democracy in environmental policies. It presents the means of implementation- at national and EU level – of the Aarhus Convention, it invokes legislation passed by Romania in order to comply with the obligations taken with the ratification of the Convention and for the transplant of Directives no. 2003/4/CE and 2003/35/CE. It invokes the recommendations comprised in Decision VI/8h, as passed at the Meeting of the Parties to the Aarhus Convention – which took place at Budva, Montenegro, in 2017 – with regard to the non-compliance of Romania with the requirements of the said Convention, as surmised in two cases involving administrative litigation courts. The author argued that solely promoting the notions and legal institutions efficient in this area is insufficient, that the efficacity of justiciability in the area of environmental law must be a priority of national authorities, so that the protection of the environment may become a Romanian reality as well. In relation to the topic treated in this paper, the author formulates some proposals de lege ferenda that would lead to attaining said goal.

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Kontrola przestrzegania przepisów o ochronie środowiska (artykuł recenzyjny)

Author(s): Monika A. Król / Language(s): Polish Issue: 2/2022

The subject of the study is to evaluate the monograph entitled Control of compliance with environmental regulations in the Czech Republic, Poland and Slovakia, written under the editorship of Z. Bukowski and T. Bojar-Fijałkowski, which appeared in the publishing house of Kazimierz Wielki University in Bydgoszcz in 2021. It contains twenty-six articles, focusing on the legal issues of control of entities using the environment, developed by an international research team. This book deserves attention all the more so because in the Polish scientific literature the issue of control, or more broadly supervision over entities using the environment is rather neglected. The work also contains important elements from the field of legal comparative studies, which nowadays is an integral part of scientific research. Due to its scientific value, it will be useful for conducting scientific research for researchers dealing with issues of legal protection of the environment.

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Repertoriul de Jurisprudență în Materie Fiscală Al Curții de Justiție a Uniunii Europene Martie – Aprilie 2022

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Repertoriul de Jurisprudență în Materie Fiscală Al Curții de Justiție a Uniunii Europene Martie – Aprilie 2022

Author(s): Alexandra Maria Pop / Language(s): Romanian Issue: 2/2022

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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ODNOS IZVRŠNE I UPRAVNE VLASTI PREMA GRAĐANIMA U BOSNI I HERCEGOVINI

Author(s): Fuad Purišević,Armin Kržalić,Sandra Kobajica / Language(s): Bosnian Issue: 2/2022

The representativeness and role of the executive and administrative authorities is an issue that is as old as the state itself. However, this issue has become more complex because the relations of the executive and administrative authorities towards citizens can be questioned quickly and easily through the evaluation of public opinion attitudes about the representativeness of public officials. Although not directly accountable to the public, the executive branch is strongly involved in the creation and implementation of policies that directly affect citizens. Citizens in general, including those in Bosnia and Herzegovina, represent public opinion, which should not be loyal to any political party, rather they should be a kind of judges who choose political parties only based on their programs and qualified personnel. This article uses several common definitions of representativeness in order to analyze the relationship between the executive and administrative authorities toward the citizens of BiH. The article ends with the suggestion that the executive and administrative authorities should act as trustees of the public, that the making of quality decisions should be based on knowledge and expertise, and that the views of the public should never be ignored. Such an approach contributes to strengthening the legal security of citizens.

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RUKOVOĐENJE LJUDSKIM POTENCIJALIMA U JAVNOJ UPRAVI

Author(s): Fuad Purišević,Armin Kržalić / Language(s): Bosnian Issue: 2/2022

One of the most complex issues in the field of organization is the concept and decision-making process. In administrative bodies, decisions are made with administrative decisions that are specific in relation to general decisions. As a rule, administrative decisions in the state administration have elements of a hierarchy that is characterized by the implementation of the objectives at the top of the organizational pyramid. This means that managers' decisions are imposed and implemented within the administration, as the will of the superior managers of certain organizational forms and against the will of the other party. Their authoritativeness enables them to do so, and in this way, a hierarchically superior administrative body imposes a decision on a lower body, either in their vertical or horizontal connection and this other body consciously and voluntarily accepts it, that is, accepts the rule of conduct, regardless of whether the decision-maker is known to him or not. The objective must always be one, which is the protection of the general or public interest, based on individual interests. In this way, and what is desirable, the elements of authority, behind which formal-undesirable managers are hiding, are reduced, and the elements of authority, behind which managers with real knowledge-desirable managers stand, increase. The attribute of power, especially in developing countries with insufficient democracy, culture, and ethics, is a suitable means of making unilateral decisions of interest, which by no means should be a characteristic of public administration management.

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