Tax Screening, Tax Frictions, and Tax Ordeals as Mechanisms for Prevention of Information Asymmetry in the Tax System

Author(s): Andrzej Pałys / Language(s): English Issue: 2/2022

The article presents the tax system as an issue in the context of information asymmetry. It also discusses three mechanisms to reduce the negative impact of this asymmetry on the formation of the tax system and the level of tax compliance in the economy. Tax screening is a set of solutions allowing for the determination of the characteristics of groups of taxpayers based on their tax choices. This enhances evidence-based decisionmaking capabilities of tax authorities and regulators regarding taxpayer behaviour and allows for effective tax system decisions in general and more control activities in particular. Tax frictions automatically discourage taxpayers from making certain tax choices that are inconsistent with the intention of the legislator, reducing the intensity and cost of corrective actions. Tax ordeals impose additional costs on some procedures related to tax benefits, increasing the likelihood that only authorised entities benefit from them. The article analyses the above-mentioned mechanisms of eliminating information asymmetry in the tax system in the theoretical and practical context and presents recommendations for their effective implementation.

PreVetting?

Author(s): Alexandru Chistruga / Language(s): Romanian Issue: 2/2023

The alleged lack of integrity of judges and prosecutors is one of the main „problems” confronting the Republic of Moldova. In order to stop this phenomenon, a mechanism was developed for the extraordinary verification of all judges and prosecutors by a commission specifically created for this purpose. However, because such a thorough evaluation cannot be completed in a short amount of time, it was decided to verify those who submitted their candidacy to join the Superior Council of Magistracy (C.S.M.) or the Superior Council of Prosecutors (C.S.P. ), with priority. Up until this point, only 5 of the 28 judges who sought admission to the C.S.M. were able to demonstrate their integrity. The goal of the current research is to conduct a thorough investigation of the "PreVetting" mechanism. It will look at the key actions that judges and prosecutors must take as well as the impact of the mechanism on the administration of justice in the Republic of Moldova in the future.

A legal good under art. 62(1) of the Act on Counteracting Drug Addiction of 2005

Author(s): Katarzyna Tkaczyk-Rymanowska / Language(s): English Issue: 2 ENG/2023

The focus of this article is the regulation of Article 62(1) of the Act on Counteracting Drug Addiction of 29 July 2005, often referred to in literature as ‘possession for personal use’. The fundamental issue related to the subject matter pertains to the definition of the legal good in Art. 62(1) of the Act. Contrary to initial impressions, identifying this interest is neither simple nor unequivocal, as there may be doubts over whether such a good protected by law exists and, if so, whether it should be protected under criminal law. The article also explores the correlation of this legal good and the need to protect it with other legal goods protected by the Constitution (e.g. individual freedom). Additionally, the article also examines the significance of the consent of a holder of a given good for the exclusion of unlawfulness or the absence of any attack on the legal good. Behaviour undertaken with the consent of the holder, allegedly “violating” the legal good, is after all, an act that conforms to the norm from the outset, and therefore does not involve any element of unlawfulness. As such, it does not constitute a criminal act. There are doubts whether in the case of possession and use of drugs, there is a threat to the legal good or whether such conduct is lawful from the very beginning, given the consumer’s consent. The article critiques the existing criminal law regulations, and its key argument is the thesis that drug addiction is an issue of exclusively medical and social concern, rather than one of criminal law.

Улога уставног судства током пандемије Ковид-19

Author(s): Ana Čović / Language(s): Serbian Issue: 83/2023

Although it is well-known that the rights guaranteed by the Constitution can be limited only when this is allowed by law and to the extent provided by the Constitution, without encroaching on their essence or reducing their achieved level, while the law can prescribe the ways of their realisation when this is expressly provided by the Constitution and necessary due to the nature of the law itself, the previous years of living in a pandemic have raised many questions regarding the respect of these generally accepted provisions of the law. Is there always a balance between the possible restriction of rights and the purpose, i.e., are smaller restrictions resorted to if the purpose can be achieved with them, or does it happen that state authorities abuse the powers entrusted to them by the will of the citizens in situations where we are faced with some challenging circumstances that could not be accurately predicted and regulated during legal regulation in different areas? That is a question asked today, it seems, more often than ever before. In this paper, the author will try to answer the previously asked question after analysing the verdicts that the constitutional courts made in certain countries during the COVID 19 pandemic as a result of various procedures that were initiated. To what extent do the decisions of these courts differ from state to state? What were their decisionmakers primarily guided by, and was the expected constitutional protection provided or was it absent?

PRAKSA USTAVNOG SUDA BOSNE I HERCEGOVINE

Author(s): Miodrag N. Simović,Vladimir M. Simović / Language(s): Bosnian Issue: 1/2023

GLOSA DO PUNKTU 2 LIT. B WYROKU TRYBUNAŁU KONSTYTUCYJNEGO Z DNIA 7 PAŹDZIERNIKA 2021 R., K 3/21

Author(s): Marcin Dąbrowski / Language(s): Polish Issue: 95/2022

The author offers a critical commentary on the point 2b of the Constitutional Tribunal judgment of 7 October 2021, K 3/21. The Tribunal claims that issuing court verdicts on the basis of the provisions which are not binding, having been revoked by the Sejm and/or ruled by the Constitutional Tribunal, is inconsistent with Art. 2, 7, 8(1), 90(1), and 178(1) of the Constitution. The Constitutional Court reconstructs the mentioned above jurisdiction of the courts based on the Art. 19(1), second subparagraph, of the Treaty on European Union. The author doesn’t agree with this statement and argues that the Tribunal incorrectly and unlawfully interprets the provisions of the Treaty. Furthermore, the verdict is in contrary to Art. 2 and 42 of the Polish Constitution and the principle of non retroactivity of law. Moreover, the Tribunal’s decision violates the concept of the Constitutional Tribunal judicature with the deferred clause. The author claims that the Tribunal’s decision does not cause any legal effects and the courts in Poland will not apply it during resolving cases.

THOMAS JEFFERSON PRZECIWKO „POLITYKOM W TOGACH”

Author(s): Tomasz Tulejski / Language(s): Polish Issue: 95/2022

Throughout the first decade of the American republic, competing claims between the Federalists and the Anti-Federalist (later Republicans) regarding the proper interpretation of the Constitution and the application of its principles were confined primarily to the executive branch, Congress and states. The year 1801 marked the beginning of a turnabout in the role of the Supreme Court in the national affairs. Thomas Jefferson, having promised to bring about a revolution in the principles guiding the government, took office as the third president of the young nation. Although the legislative and executive branches of government came under the control of Jefferson’s Republican party in the election of 1800, the federal judiciary remained a bulwark of the rival Federalist party. In this article the author argues that differences in the interpretation of the Constitution resulted from the clear and irreconcilable differences in the political and constitutional philosophies of Jefferson and Marshall. These differences sparked fiercedebate over such monumental issues as the use of judicial review over acts of Congress and the development of the doctrine of implied powers. According to the author, political considerations were paramount in determining the tactics employed by both leaders in their efforts to define the proper role of the judiciary in a balanced government and the role of the national government itself within the federal system.

INDIGENOUS CLASS PROCEEDINGS IN CANADA

Author(s): Steven L. Cooper / Language(s): English Issue: 96/2023

The foundations of contemporary Indigenous relations in Canada have been laid by class action lawyers who foresaw the potential for correcting, acknowledging and addressing historical wrongs. Decades of persistence by Indigenous leaders and collateral work by lawyers compelled the Canadian government, the Canadian public and its major religious and charitable institutions to face their pasts. Class and mass action lawsuits are indispensable to lawyers seeking to advance claims that recognize the systemic oppression of Indigenous people beyond individual harms. Respected class action lawyer Steven L. Cooper, KC, outlines more than 250 years of this legal history that has defined the unique status of Indigenous Canadians, from recognizing royal proclamations as they relate to land claims to settlements that have seen hundreds of thousands of Indigenous people compensated for harms inflicted in residential schools and hospitals.

ПРАВНА ПРИРОДА СИСТЕМА ВЛАСТИ У РЕПУБЛИЦИ СРПСКОЈ - СТАЊЕ, ТЕНДЕНЦИЈЕ И ДИЛЕМЕ ЕВЕНТУАЛНИХ УСТАВНИХ ПРОМЈЕНА

Author(s): Milan Pilipović / Language(s): Serbian Issue: 41/2019

The Constitution of Republic of Srpska defines that state power in the Republic is organized on the power separation principle into legislative, executive, and judiciary. With respect to relations of the three branches of state power in contemporary legal systems the central question arises about the relation between the legislative and the executive powers (legislation and the executive).These two authorities have political character and it is their mutual relation that defines the system of government nature. There at, the scope of authority of the chief of the state is extremely significant. For this particular reason, in defining the legal nature of the system of government in Republic of Srpska, this paper emphasizes the matter of constitutional position of the President of Republic of Srpska. It further analyses the constitutional position of the Government, as well as the mutual relation between legislation and executive power in their entirety. In addition to normative aspect the paper also looks back at constitutional practice which features the tendency of violating the balance of the holder of authority in the form of stronger role of the executive power. The paper discusses the question of necessity to alter the norms that regulate the position and relate to legislation and executive power in the potential Constitution revision, and the possible direction of those alterations in the system of government. The author makes his point on the matter in question, which is based on the belief and arguments that larger, substantial changes of the existing system of government are unnecessary due to non-existence of legal and political conditions for such changes, but to improve the existing model of government in the potential Constitution revision by means of certain amendments he listed. With a higher degree of constitutional and political culture in following the principle of power separation this would contribute to the development of rule of law in Republic of Srpska

Служебното правителство и президентските правомощия за преодоляване на парламентарна криза

Author(s): Boyan Kamenov / Language(s): Bulgarian Issue: 2/2023

The article presents some aspects of the institution of the caretaker government, considered in relation to the power of the president when parliamentary groups are unable to comprise a majority government. The aim is to examine and subject to justifi ed criticism, the jurisprudence of the Constitutional Court on the question of the nature and functions of the caretaker government. At the same time, no evaluation of a constitutional provision is given, but only the need to apply the Constitution as it is (without going beyond the established political flexibility of the toolkit of constitutional powers) is expressed. In this sense, the position maintained is that the possible disapproval of the outlined situation should lead to a considered and moderate constitutional revision according to the established order, and not to a wrong interpretation or to neglecting the existing jurisprudence. The starting point of the study is the attempt to express the philosophy embedded in the procedure under Art. 99 of the Constitution. In light of the stabilizing role of the Presidential institution, special attention is paid to the provisional powers of the head of the state in cases of “parliamentary dissonance” when a cabinet is formed. The expedient application of Art. 99 and the formation of a caretaker government will inevitably require the consideration of unorthodox ideas about (1) the role of the president as a subsidiary source of legitimacy for the executive power; (2) the delayed dissolution of the National Assembly; (3) the apocryphal semi-presidential phase of government in the hybrid Bulgarian parliamentary republic, and (4) parliamentary control in these conditions to ensure the democratic processes in the country, in accordance with the principles and proportions of power, laid down in the basic law. Relevant proposals are made de lege ferenda, in order to maintain the balance of powers and to ensure a democratic government.

SEPARAȚIA PUTERILOR ÎN STAT - CONTROVERSĂ CONSTITUȚIONALĂ PERPETUĂ

Author(s): Vasile Sorin Purec / Language(s): English,Romanian Issue: 2/2022

Studying the separation of powers in the state today can be considered an extremely facile endeavor, as the principle of the separation of powers has been established for three centuries. The working hypothesis we start with is that, in reality, the separation of powers in the state is a desideratum, not a factual reality. This study discusses the notion of the separation of powers in the state, the origin, and the history of this principle in modern and contemporary democracies. We will examine, by way of example, how the principle of the separation of powers functions in major contemporary democracies, as well as in authoritarian regimes. Finally, after analyzing the principle of the separation of powers in the communist regime of Romania, we identify the greatest vulnerability of the 1991 Romanian Constitution.

The Transparency of Constitutional Reasoning: A Text Mining Analysis of the Hungarian Constitutional Court’s Jurisprudence

Author(s): Miklós Sebők,Fruzsina Gárdos-Orosz,Rebeka Kiss,István Járay / Language(s): English Issue: 3/2023

The analysis of constitutional interpretation has received much attention in recent years. This article is a contribution to research using text mining methods to account for markers of constitutional reasoning in big data-sized text corpora. We examine how often the Hungarian Constitutional Court (the HCC) reflected on the various methods of interpretation. For this purpose, we have created a complex corpus covering all HCC decisions and orders between 1990 and 2021. We found evidence that the methodological practice of the HCC is not self-reflexive in general as only 44% of its decisions make a reference to at least one method of interpretation. We also show that the self-reflexive nature is even more prevalent (in fact, ubiquitous) in 100 doctrinally important decisions from the 30 years of jurisprudence in question. While this study is a first step towards the quantitative analysis of the reasoning of the constitutional judiciary, further mixed methods research is needed to account for intertemporal changes in such data and to refine the measurement of constitutional interpretation.

SOCIAL ENTREPRENEURSHIP: EXERCISE OF THE CONSTITUTIONAL FREEDOM OF A PERSON FOR ENTREPRENEURIAL ACTIVITY

Author(s): Dmytro Byelov,Myroslava Bielova / Language(s): English Issue: 2/2023

The article analyzes the category of freedom of entrepreneurial activity. Regulatory and legal guarantees of entrepreneurial activity enshrined in the Constitution of Ukraine are being worked out. The exercise of a person’s constitutional freedom to engage in entrepreneurial activity is a step-by-step implementation in lawful behavior by participants in entrepreneurial legal relations of legally established agreements and responsibilities that contribute to obtaining material and spiritual benefits in the field of production, performance of work, provision of services and trade, etc. The importance of consideration of the constitutional guarantee of the right to entrepreneurial activity is determined by several reasons, in particular: the legislative framework of Ukraine in the field of economic legal relations is determined by some irregularity and inconsistency, and needs modernization; and the current state of implementation of the constitutional right to entrepreneurial activity is unsatisfactory. In view of this, there is an urgent need for scientific awareness of the effective legislative mechanism for the implementation of constitutional guarantees for entrepreneurial activity. The support of the state in the exercise of a person’s constitutional right to entrepreneurial activity should be implemented through a positive influence on the formation of guarantees of this right, therefore, it is necessary to include the entire complex of legal means in order to ensure that the state bodies comply with the necessary conditions for the effective implementation of the right that belongs to a person and a citizen. The guarantees of the right to entrepreneurial activity provided for in the Constitution of Ukraine are sometimes normative in nature. First of all, this is due to the fact that the normative legal acts specifying the Constitution of Ukraine contain some inconsistencies and gaps. Regarding the fixing of these guarantees at the constitutional level, the right to entrepreneurial activity shows that it is necessary to allocate a block dedicated to the economic sphere, which will form a systemic influence on the content of current legislation and an applied mechanism for the implementation of such guarantees. The issue of the creation of agreements by the state for the appropriate functioning of entrepreneurial activity is inseparable from the understanding and legal support that must be played in the implementation of guarantees of entrepreneurship, for which an effective legal mechanism for managing the economy and creating the conditions for engaging in entrepreneurial activity is necessary; and the creation of separate directions and criteria for achieving and ensuring the right of citizens to entrepreneurial activity.

CONTROL AND SUPERVISION OF LOCAL SELF GOVERNMENT ACTIVITIES

Author(s): Roman Tytykalo / Language(s): English Issue: 2/2023

The state control is exercised not only over the activities of local self-government bodies, but also over officials of local self-government bodies. Summarizing the above, we suggest that control over the activities of local self-government should be understood as the type of management activity of competent subjects of state authorities, which is carried out using specific forms and methods of public administration, and provides for the possibility of operative intervention in the activities of local authorities in case of violations of the Constitution and laws of Ukraine. self-government and the application of measures of responsibility to persons guilty of violating the current legislation. The main forms of control over local self-government bodies are: 1. request – a written or electronic appeal of an authorized controlling subject to local self-government bodies in order to obtain the necessary information to clarify the circumstances of the control proceedings; 2) request for documents – an appeal to local self-government bodies and their officials in which an instruction is provided in an imperative (compulsory) order to provide the necessary documents and materials; 3) audit – a study of the financial and economic activities of local self-government organizations and the financial situation of officials of local self-government bodies; 4) inspection - a complex of planned (unplanned) actions, which are carried out with the aim of examining and studying the areas of activity of local self-government bodies, their implementation of delegated powers, social-cultural, housing-room development programs, etc., compliance by local self-government bodies and their officials with the norms of legislation etc; 5) monitoring - a set of organizational and technical actions carried out by authorized controlling entities in order to determine the state of implementation of legislative acts by local self-government bodies both during the exercise of their own and delegated powers; 6) supervision.

KILKA UWAG O PREROGATYWIE PREZYDENTA RZECZYPOSPOLITEJ POLSKIEJ DO NADAWANIA ORDERÓW I ODZNACZEŃ

Author(s): Oskar Kubacki / Language(s): Polish Issue: 126/2023

Background: The issue of the awarding of orders and decorations by the President of the Republic of Poland has so far not received little from the Polish public. In recent days, however, this state of affairs has changed. The current President awarded the Order of the White Eagle to a Member of Parliament. This fact has sparked a broader debate on how the presidential prerogative of award orders and decorations is exercised.Research purpose: The main aim of the article was to answer the question whether, when awarding orders and decorations, the President is bound by the provisions of the Act on Orders and Decorations or whether he can award them completely independently of the criteria specified in the la. In this regard, the author of the article paid special attention to Article 3 of the Act on Orders and Decorations, according to which the awarding of the aforementioned distinctions cannot be requested to be bestowed upon currently serving MPs and senators. In the following part of the paper, the author addressed the question of whether the President can award the above- mentioned honours to politicians when acting ex officio. The second main objective of the paper was to clarify whether a breach by the President of the provisions of the Act could result in the honoured person being deprived of the order or decorations bestowed upon them.Methods: The dogmatic-legal method was used in the article. The author is based on the analysis of the legal text, research works and jurisprudence.Conclusions: As a result of the conducted research, it was found that the President has discretionary powers when awarding orders and decorations. In this prerogative, the President is not bound by the will of any other authority. However, the President must comply with the provisions of the Act on Orders and Decorations. Nor may he award any order or decoration on any incumbent MP or Senator. The awarding of an order or decoration by the President in contravention of the provisions of the Act does not, however, give rise to the withdrawal of that award from the person awarded it.

Wyłączenie trybu pilnego oraz zasada ciszy legislacyjnej jako ustrojowe gwarancje stabilności tworzenia prawa wyborczego

Author(s): Adrian Perz / Language(s): Polish Issue: 35/2023

Electoral law, which is a sub-field of constitutional law, can be defined as a set of legal norms of decisive importance for the system due to their shaping of the electoral process, as a result of which bodies exercising power on behalf of citizens are formed. These norms are therefore characterized by their systemic significance for the state system. This means that the legislative process of electoral norms should be resistant to attempts to change them instrumentally, introduced for specific elections or a specific political option, in a hurry, incidentally or bypassing public opinion. The provisions of the electoral law should provide the citizen with an objective opportunity to decide whether to exercise the active or passive electoral right, implement the idea of the impact of each vote on the outcome of the election, create a clear, equal and fair framework for the conduct of the election campaign. Such shaping of norms requires the existence of guarantees of stability in the creation of electoral law coming directly from the constitution. Securing the electoral law against the use of the urgency procedure and the principle of legislative silence are of fundamental importance, but these guarantees are not without flaws.

Wykorzystanie przez wyborców metody głosowania korespondencyjnego i głosowania przez pełnomocnika na przykładzie Częstochowy

Author(s): Paweł Ruksza / Language(s): Polish Issue: 35/2023

The author discusses two methods of voting by proxy and voting by correspondence, pointing out the changes regarding the circle of addressees who may use alternative forms of voting under the applicable Electoral Code. The article presents and compares the extent to which voters in Częstochowa use two methods of alternative voting on the example of elections to the Sejm of the Republic of Poland and the Senate of the Republic of Poland in 2011, 2015 and 2019, local elections in 2014 and 2018, and members of the EU Parliament in 2014 and 2019 as well as the elections of the President of the Republic of Poland in 2015 and 2020. The analysis of voting by proxy and postal voting has been given in relation to legal regulations and, above all, the circle of addressees who can use these methods. The author indicates which method, in particular elections, the voters chose more often and whether it had an impact on the activation of the electorate and voter turnout from the point of view of the principle of universality of elections.

I-voting jako płaszczyzna przestępstw przeciwko wyborom – perspektywa zasad prawa wyborczego

Author(s): Mateusz Filipiak / Language(s): Polish Issue: 35/2023

The article analyzes the conditions related to the introduction of electronic forms of voting with the use of the Internet (e-voting) in relation to possible crimes against elections. The aim is analyzes in two fields: (1) possible abuses in relation to the principles of electoral law, which could be based on the introduction of electronic forms of voting and (2) popularization of i-voting as a new ground for committing electoral crimes. The result of the analysis will be the identification of the basic correlations of i- voting to the principles of electoral law and an attempt to identify the basic threats related to the introduction of an alternative form of voting.

Kontrola finansowania partii politycznych wykonywana przez Państwową Komisję Wyborczą

Author(s): Tomasz Gwóźdź,Dominik Kołodziej / Language(s): Polish Issue: 35/2023

The subject of this article is the methods of verifying the correctness of collecting and spending funds by political parties. First, political parties’ goals and their assets’ forms were analyzed. Then, the methods of verifying the correctness of financing political parties were discussed. Control powers in this respect have been granted to the National Electoral Commission, which decides on the acceptance or rejection of financial information for a given calendar year submitted by political parties and reports on the sources of obtaining funds.An essential element of the considerations is the legal consequences of rejecting information and reports, which may lead to the loss of the right to receive subsidies from the state budget for a certain period – which in turn, threatens the ability of a political party to continue its statutory activities. Against this background, there are doubts as to the compliance of the existing solutions with the Constitution of the Republic of Poland.Based on the conducted research, including in particular the analysis of the National Electoral Commission resolutions, issues requiring, according to the authors, legislative changes were presented, together with the formulation of de lege ferenda postulates.

Hawajskie prawo wyborcze w latach 1864–1893 – prawo głosu i prawo wybieralności

Author(s): Maciej Rakowski / Language(s): Polish Issue: 35/2023

The article presents the rules of acquiring active and passive suffrage in the Kingdom of Hawaii in the years 1864–1893, after the entry into force of the third constitution of the country, when the parliament became unicameral. The subject of the analysis are the rules of allowing to participate in the election of representatives and nobles (the last ones since 1887, when the monarch lost the right to appoint them). The qualifications of voters and candidates are discussed, in particular the property qualification and education qualification. They had especial importance in Hawaii, becoming an instrument to limit the political rights of indigenous inhabitants of the islands. The rules for registering voters and candidates are also presented, becoming more and more detailed over time.