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Adoption of a child by homosexuals in light of the best interests of the child principle in accordance with its understanding in Polish family law – subjective interpretation of the author

Author(s): Marta Prucnal-Wójcik / Language(s): English Issue: 37/2017

RESEARCH OBJECTIVE: The purpose of this article is to present arguments against the admissibility of adoption of a child by a homosexual person in light of the best interests of the child principle in accordance with its understanding in Polish family law. It has to be emphasized that the article presents solely subjective author’s interpretation of Polish legal provisions regulating the institution of adoption. THE RESEARCH PROBLEM AND METHODS: Since Polish legislator has not explicitly accepted or prohibited the adoption of a child by a homosexual person, the question of the admissibility of adoption of a child by such a person is raised in light of the principles of family law in force in Poland. There has been applied the method of critical and comparative analysis as well as the analysis of the reference Polish literature, rulings of the Supreme Court of the Republic of Poland and Polish reference legislation. THE PROCESS OF ARGUMENTATION: After having initially defined the aim of the study, the author indicates the function and purpose of the adoption and its premises. Two basic premises of adoption are explained in detail - the premise of the best interests of the child and the appropriate personal qualifications of the adopter. The essential part of the argumentation is to find the answer to the question on whether adoption of a child by a homosexual person in light of Polish family law is admissible or not. RESEARCH RESULTS: The result of this research is the statement of inadmissibility of adoption of a child by homosexuals in light of Polish family law. CONCLUSIONS, INNOVATIONS AND RECOMMENDATIONS: The analysis confirmed the author’s opinion that adoption of a child by a homosexual person/ homosexuals appears to be in contradiction with the principle of the child's best interests principle in accordance with its understanding in Polish family law.

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Pojęcie „przedstawiciela Narodu” w świetle art. 4 ust. 2 Konstytucji RP z 1997 r.

Author(s): Tomasz Litwin / Language(s): Polish Issue: 26/2018

Explanation of the term “representative of the Nation” used in art. 4 par. 2 of the Constitution of the Republic of Poland from 1997. This term has fundamental importance for understanding of the principle of sovereignty of the nation – the basic constitutional principle, and also the essence of functioning of the Third Republic of Poland as a democratic state. The research problem and methods: The term “representative of the Nation” and the linked term “representative organ” create substantial controversies among constitutional law experts. In this article, which presents constitutional legal analysis, the legal dogmatic method will be generally used, including linguistic logical, teleological, systematic and historical methods of interpretation of the legal rules. The process of argumentation: The introductory part of the article explains in general the principle of sovereignty of the nation. Then, the opinions and views of constitutional law experts concerning the term “representative of nation” are presented. This is followed by the author’s considerations on the subject. The final part of the article includes propositions of amending the art. 4 par. 2 of the Constitution. Research results: Although the term “representative of the Nation” brings controversies among constitutional law experts, it seems that supporters of regarding the deputies and senators as the only “representatives of the Nation” and Sejm and Senate as the only “representative organs” are right. Conclusions, innovations, and recommendations: The author recommends to consider an amendment of art. 4 par. 2 of the Constitution, which would clearly express that all state authority organs should take under consideration in their activities good and interest of the sovereign Nation.

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Liberałowie wobec sporów o konstytucję w latach 90. XX wieku w Polsce

Author(s): Danuta Plecka / Language(s): Polish Issue: 28/2018

The aim of this study is to present the liberal views and views expressed during the 1997 Constitution.

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SAMORZĄD TERYTORIALNY W POLSCE W ŚWIETLE KONSTYTUCYJNEJ ZASADY PODZIAŁU WŁADZ

Author(s): Dominik Sieklucki / Language(s): Polish Issue: 46/2023

RESEARCH OBJECTIVE: The article discusses the status of self-government from the perspective of the principle of the separation of powers established in the Constitution of the Republic of Poland. Three research problems are examined: Did the traditional conceptions of the separation of powers distinguish the local government? In the view of the constitutional principle of the separation of powers, can self-government be regarded as an estate? What does the concept of the fourth authority mean in relation to self-government? THE RESEARCH PROBLEM AND METHODS: The research employed research methods from the disciplines of political and administrative sciences and law sciences: the method of analysis and criticism of scientific literature, the linguistic-logical method, the theoretical-legal method and the institutional method. THE PROCESS OF ARGUMENTATION: The article presents selected traditional concepts of the division of powers, including Montesquieu’s theory which is the basis for the contemporary principle of the division of powers, distinguishes three positions on the relationship between the principle of the division of powers and self-government and indicates what the concept of the fourth estate means in relation to self-government. RESEARCH RESULTS: Self-government may be considered a fourth estate in an informal meaning. The term fourth estate is used to emphasise the importance and value of certain institutions, while in the light of the principle of the separation of powers local government cannot be considered as one of the authorities in the state. CONCLUSIONS, INNOVATIONS, AND RECOMMENDATIONS: Montesquieu’s concept of the separation of powers is the framework for the organisation of contemporary democratic states, but it does not embrace all their complexity. Therefore, proposals are becoming increasingly popular to supplement this division with additional divisions, such as the vertical separation of powers or Multi-level Governance.

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БЕЧКА КОНВЕНЦИЈА О ДИПЛОМАТСКИМ ОДНОСИМА-ТЕМЕЉ САВРЕМЕНОГ МЕЂУНАРОДНОГ ПРАВА ПРЕДСТАВЉАЊА

Author(s): Matej Savić / Language(s): Serbian Issue: 38/2016

The theoretical-legal dimension of diplomatic relations from the right of delegation-iuslegationis to the modern right of state representation-iusrepresentationis form the basis from which the author further determines the contemporary international right of representation and today's diplomatic law. The basis of the work is the positive legal dimension of the international right of representation, which is embodied in the Vienna Convention on Diplomatic Relations, Immunities and Privileges and rounded off by the Vienna Convention on Consular Relations. BKDO, with its various elastic solutions, enabled the states to use and combine multiple possibilities of cumulation of functions and representation, which is specifically discussed in this paper. Certainly, the Convention ensured the realization of the progressive development of international law, and thus the intensive realization of diplomatic-consular law. The Convention made an immeasurable contribution to the development of diplomatic practice and the provision of legal certainty in international relations. Although, like international law in general, it faces great challenges, the Vienna Convention on Diplomatic Relations represents one of the most successful multilateral treaties in the United Nations system, which is discussed in detail in this paper.

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ENTITIES OD LOCAL SELF-GOVERNMENT AS POSSIBLE HOLDERS OF HUMAN RIGHTS

Author(s): Boštjan Tratar / Language(s): English Issue: 40/2018

In this article, with the help of the scientific method of comparison and analysis, the author shows the judicial practice in relation to the position of municipalities and other local self-government units that are public legal entities as possible bearers of human rights. As a rule, these units of local self-government share the principle position of legal entities, which the legal order recognizes (only) as addressees of human rights, but not as holders. From the federal court jurisprudence of some European countries (Germany, Liechtenstein, Switzerland), especially Slovenia, and the United States of America, as representatives of the Anglo-Saxon system, it follows that local communities are recognized or exercise the so-called procedural human rights (because here no connection with the exercise of individual dignity is required) and property rights or the right to submit the so-called communal constitutional appeals when it comes to the protection of local self-government against unconstitutional encroachment on the constitutional right of local self-government. The author believes that the development of municipal ownership is related to human rights, i.e. the municipality as the bearer of human rights, often legally conditioned.

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DONATION IN PROSPECT OF DEATH (DONATIO MORTIS CAUSA)

Author(s): Đorđe Raković / Language(s): English Issue: 40/2018

A death gift is a legal business with a long legal tradition. Along with testament and legatee, it has its roots in Roman law. In different European periods of the development of Roman law, the donatio morits causa had different legal nature, but the dominant one was the one created in Justinian's law, where a gift in case of death was considered a legate. It was a charitable disposition of the donor with the intention of gifting the recipient, which produced a legal effect after the death of the donor, but only on the condition that the recipient outlives the donor. As such, the donatio morits causa was, as a rule, revocable. The contentious legal nature marked the further development of death gifts. Thus, the AGZ accepted the dual nature of the gift in case of death as both a legacy and a gift contract, while the SGZ accepted the Roman concept. A different interpretation has been maintained to this day because the gift in the event of death is not regulated by positive regulations, either under obligation law or under inheritance law. It is generally considered that a death gift is a type of inter vivos gift contract where the delivery of the object of the gift is delayed until the time of the death of the donor. It is a gift contract concluded under a suspensive condition that arises at the time of the death of the donor, and the condition is not that the recipient outlives the donor. If the recipient dies before the donor, his heirs have the right to demand the delivery of the gift. A gift contract in the event of death understood as a contract is, as a rule, irrevocable.

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NEW FACTS AND NEW EVIDENCE AS THE BASIS FOR REOPENING AN ADMINISTRATIVE DISPUTE IN THE REPUBLIC OF SRPSKA

Author(s): Dražen Miljić / Language(s): English Issue: 40/2018

According to the Law on Administrative Disputes of the Republika Srpska, new facts and new evidence represent a legal basis that provides the opportunity for dissatisfied parties to demand a repetition of the administrative dispute even after final court decisions. However, although the parties justifiably and often resort to this legal means, in practice its application is rarely allowed. The paper tries to explain the causes of such behavior.

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Conferința Națională „Contenciosul administrativ” – Universitatea din Oradea, 8 decembrie 2023

Author(s): Verginia Vedinas / Language(s): Romanian Issue: 04/2023

În ziua de 8 decembrie 2023, s-au desfășurat, la Oradea, lucrările ediției a IV-a a Conferinței naționale de Contencios administrativ, organizată de Facultatea de Drept a Universității din Oradea.

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Key political issues in the reform of Romanian judiciary under the Cooperation and Verification Mechanism

Author(s): Ovidiu Gherasim-Proca / Language(s): English Issue: 2/2023

Unlike all other former socialist countries admitted as EU members before or after them, Romania and Bulgaria entered a particular supervision regime under the Cooperation and Verification Mechanism, which was supposed to help them to consolidate the rule of law and to actively impede corruption and organized crime. Years later, after the reforms it inspired engendered fierce political battles, the CVM came to an end. Should its policy instruments be abandoned or not after this sudden conclusion, it is increasingly obvious that their success or failure did not depend on technical decisions only, but also on multifaceted political intricacies of domestic partisanship and power struggles. Through the means of the political analysis, using a context-driven interpretative approach, this article underlines several crucial politically contested issues that have risen over the years and should be taken into consideration in any judicious assessment concerning the reform of the Romanian judiciary. Drawing from the observation of institutional change and public narratives, it distinguishes three persistent tensions: the uneasy relationship between judicial independence and autonomy, the problematic overemphasis of the role of public prosecutor's offices as agents of reform within a liberal-democratic normative framework and the prominence of mediatized contention at the expense of administrative problem-solving.

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INSECURITY AND THE QUEST FOR STATE POLICE IN THE CONTEXT OF THE RESTRUCTURING DEBATE IN NIGERIA’S FOURTH REPUBLIC

Author(s): Luqman SAKA,Sherifdeen Adeoye OLADEJO / Language(s): English Issue: 04/2022

There has been a debate on the modality for the management of the Nigerian Police Force since the return to civil rule in1999. The debate revolves around the need to devolve constitutional authority on policing to sub-national units. In theory, this will entail moving internal security issues, inclusive of policing, from the exclusive federal list to the concurrent list. Given the heighten insecurity that has plagued the Nigerian state in recent times, this paper examines the restructuring discourse in Nigeria with a specific focus on the call for the establishment of state police within the context of the subsidiarity principle. The study was contextualized within the exploratory research design paradigm and it adopted the qualitative approach in the sourcing and analysis of data. To this end, the paper has drawn information from published media reports that include: opinion, commentaries, editorials and news articles. Data was also sourced from published academic and policy publications that include: articles, chapter in books, books and government documents. Drawing on information from these sources, this paper assesses the positions of protagonists and antagonists of state police in Nigeria. It draws out implications for security governance in Nigeria.

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Czy warto wprowadzić zakaz negatywnej kampanii wyborczej?

Author(s): Piotr Uziębło / Language(s): Polish Issue: 44 (3)/2023

Nowadays, negative campaigning is a permanent feature of political life. This often leads to situations where false or manipulated information determines the outcome of an election. Consequently, some countries have decided to significantly restrict the possibility of negative campaigning, as exemplified by Japanese or French legislation. The question can be asked whether similar bans would be worth introducing in Poland. One argument in favour of their introduction is the desire to increase the substantive level of electoral campaigning or to better ensure implementation of the principle of equal electoral opportunities. However, there are more arguments against such a ban. It would constitute a significant limitation of the principle of freedom of speech and, consequently, a limitation of the transparency of politics or the assurance of actual rivalry between political parties.

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K problematike štátno-právnej koncepcie slovákov na konci 19. A začiatku 20. storočia

Author(s): Miroslav Daniš / Language(s): Slovak Issue: 2/2010

Štúdia sa zaoberá niektorými problémami štátoprávnych koncepcií a projektov slovenskej politiky na konci 19. a na začiatku 20. storočia. V politických projektoch tohto obdobia dominovali tendencie slovensko-českého a slovensko-ruského zbližovania. Takéto smerovanie poznačilo nielen plány a koncepcie, ale aj historickú realitu, v ktorej sa Slovensko a Slováci po celé dvadsiate storočie pohybovali. Historická veda k uvedenej problematike pristupovala a pristupuje v podstate takmer bez výnimky z pozícií spoločenského stavu v akom sa práve nachádza. Medzivojnová československá historiografia sa snažila k problematike štátotvorného vývinu Čechov a Slovákov do vzniku ČSR v roku 1918 pristupovať s pozícii masarykovsko-štefánikovskej československej národnej jednoty. Marxistická historiografia po roku 1945 tak česká, ako i slovenská kládla hlavný dôraz na sociálnodemokratické a robotnícko - proletárske tradície, ktoré v rámci zahraničného odboja v Rusku ožili najmä po októbrovej revolúcii a hoci neboli pre vznik ČSR nosnými, stali sa pre historiografiu dôležitými. Vznik Slovenskej republiky v roku 1993 priniesol slovenskej historiografii možnosť analyzovať zložitý proces hľadania štátotvornej tradície Slovákov na prahu 20. storočia v nových súvislostiach. Práve na konci 19. a začiatku 20. storočia vstúpili na slovenskú verejnú scénu nové politické zoskupenia, ktoré sa sústredili okolo svojich tlačových orgánov a tie sa stali tribúnou ich názorového spektra a ideovo-politických koncepcií.

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Ten days that shook Czechoslovakia

Author(s): Lubomír Pána / Language(s): English Issue: 1/2010

The fight for political power in Czechoslovakia culminated in February 1948. The course of events and their analysis show us that changes happening by February 25th were in conformity with the Constitution of Czechoslovakia. However, the following days showed how the pluralistic democratic political system was destroyed by being veiled in constitutionality. The action committees of the National Front (akční výbory Národní fronty) became the means of this change. Besides well-known events I try to point out the connections between events and „stories of concrete actors“. I indicate the atmosphere of meetings that stems out of facts and resources of direct participants. How did the main participants of those days behave? Why were the Communists before as well as after the February 1948 coup a dominating power despite being wer in number? How did they succeed in replacing the abdicated ministers? These as well as other questions are answered in ten days that shook Czechoslovakia. The most important events determining the destiny of the country and its people happened within in those days. In these selected days the events culminated but they also characterise the atmosphere of that time, the readiness of some and the quandary of the others.

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MEĐUNARODNOPRAVNI SUBJEKTIVITET DA LI JE VREME ZA TRANSFORMACIJU?

Author(s): Jelica Gordanić / Language(s): Serbian Issue: 3 (1)/2023

One of the products of the Peace of Westphalia is the modern system of international law, which considers states as subjects of international law. With the emergence and development of international association and cooperation, international organizations acquire an international legal personality as well. The activity of non-state actors is becoming very important in international relations. Non-state actors such as non-governmental organizations, individuals and multinational companies influence the development of international law and international relations. Non-state actors are objects of international law. On the other hand, having in mind their growing influence in the international arena, they are gradually acquiring characteristics attributed to the subject of international law. The paper analyzes whether it is time for the transformation of the concept of international legal subjectivity. Different directions of action of non-state actors and their relationship with the state are examined. The occasional impotence of the state in relation to non-state actors is also analyzed, especially when it comes to non-governmental organizations and multinational companies. The paper concludes that the concept of international legal personality is ready for expansion and adaptation to requirements of the modern world. The biggest obstacle on this path is going to be the lack of political will of the states.

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PROCEDURAL CONSTITUTION-MAKING: LESSONS LEARNT FROM HUNGARY

Author(s): Nora Ban-Forgacs / Language(s): English Issue: 3 (1)/2023

This article focuses on the procedural and substantive nature of drafting new constitutions under hybrid political regimes. The main argument of the article is that a qualified majority for rulemaking cannot be overruled by a simple majority principle even under extraordinary social and political circumstances.

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CONSTITUTIONAL COURTS VERSUS PARLIAMENTS DURING PANDEMIC (AND BEYOND)

Author(s): Boldizsár Szentgáli-Tóth,Nora Ban-Forgacs / Language(s): English Issue: 3 (1)/2023

National parliaments are the representatives of popular sovereignty. Any restrictions on parliamentary rights have a direct impact on separation of powers and rule of law. This article elaborates on some of the landmark decisions worldwide of the constitutional courts vis a vis national parliaments during epidemic restrictions.

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КРИТИЧКИ ОСВРТ НА НАЦРТ ЗАКОНА О УНУТРАШЊИМ ПОСЛОВИМА СРБИЈЕ

Author(s): Branko Leštanin,Željko Nikač / Language(s): Serbian Issue: 3 (1)/2023

At the end of 2022, the Serbian MoI published a public hearing and published the Draft Internal Affairs Law on its website. Several public discussion sessions were held, but the Draft was soon withdrawn from the procedure. In the paper, the authors analyze the text of the Draft, where in the first part they give an overview of the provisions of a general nature, while in the following the authors give suggestions on the provisions and institutes of an individual nature, analyzing them with the application of normative, dogmatic and comparative legal methods. At the end, the authors conclude that the proposed text needs a thorough amendment and harmonization with the relevant regulations.

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ЛОКАЛНИ РЕФЕРЕНДУМ У КОМПАРАТИВНОЈ ПЕРСПЕКТИВИ

Author(s): Mijodrag Radojević / Language(s): Serbian Issue: 3 (1)/2023

A referendum is a form of direct democracy and exercise of citizens’ sovereignty that can be organized at different levels of government. In territorial units, such as municipalities or regions, one speaks of a - local referendum. The subject of this study is its theoretical and practical aspects in comparative legal systems, in reference to the territory of the former Yugoslavia. In contrast to most communist countries, the local referendum was applied during the period of Yugoslav socialist ‘self-management’, especially in decisions on local “selfparticipation” (self-taxation). Today, however, as in most European countries, this practice is very rare. The local referendum is badly portrayed as a corrective to representative democracy. Criticism of the local referendum stems from attitudes toward decentralization and the belief that it poses a threat to majority-understood democracy, because it is prone to abuse. In legal systems, it can be constitutionalized, regulated by a special law, or not regulated by regulations. Variations of solutions in comparative law are also observed in the types of local referendum, the procedure for determining the referendum question, the conditions for its validity, the bindingness of the decision, etc.

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(НЕ)МОГУЋНОСТИ РАСПУШТАЊА ПРЕДСТАВНИЧКИХ ОРГАНА У БОСНИ И ХЕРЦЕГОВИНИ

Author(s): Milan Pilipović / Language(s): Serbian Issue: 3 (1)/2023

A representative body in a state is one in which citizens elect their representatives in free and democratic elections, by secret ballot, on the basis of universal and equal suffrage. In some countries it is called parliament, in others assembly, and in Bosnia and Herzegovina both terms are used in the names of representative bodies, but also one unusual and specific one - Parliamentary Assembly of Bosnia and Herzegovina. Bosnia and Herzegovina is a complex country in which there are several representative bodies at different levels of government (state, entity, local), and the (im)possibility of dissolving those bodies in Bosnia and Herzegovina is the topic of this paper. In this paper, in the first part, we will talk about the dissolution of the parliament from a theoretical and legal aspect. In the second part, through the analysis of constitutional and other norms, we will show the (im)possibility of dissolving representative bodies in Bosnia and Herzegovina and the entities

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