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Odpowiedzialność odszkodowawcza władzy publicznej w poglądach sędziów

Author(s): Krzysztof Koźmiński / Language(s): Polish Issue: 21/2015

The paper looks at the selected questions related to damages, i.e. an award, typically of money, paid to a person as compensation for loss or injury. This article is based on qualitative and quantitative research conducted among judges. Its main goal is to identify and discuss non-normative factors (of psychological, social and economical nature, as opposed to law as it exists in statues) in the context of decisions made by judges in cases concerning damages.

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STRATEGY FOR PREVENTING AND COMBATING DISCRIMINATION

Author(s): Author Not Specified / Language(s): English Issue: 8/2015

The Law prohibiting discrimination is to a large extent already harmonised with EU Community Law and international human rights standards but equal opportunities and effective protection against discrimination are still not safeguarded. A significant number of activities have been implemented but the progress achieved is still limited. This policy paper advocates for adoption of a strategic document (a public policy) for prevention and combating against discrimination, discusses its presumed impact and provides guidelines for the content as well for the process of development.

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Hazard. Samoistna przesłanka ubezwłasnowolnienia

Author(s): Jerzy Akińcza / Language(s): Polish Issue: 26/2017

Gambling is a problem of a social nature, it excludes from the environment, deprived of family, friends, work. At the same time, gambling is also certainly a mental disorder disabling conscious behavior. Gambling disease should be treated as one of a number of sicknesses, disabling the ability of informed choices. As a disease with lasting condition and disturbing perception of reality gambling certainly is an intrinsic prerequisite for incapacitation. Basis decision for the incapacitation always should be determine by the presence of the disorder, disease state. In Contrary to the law, especially art. 16 of the civil code, would be ruling on the incapacitation only focus on the lack reasoning for the rational conduct; particularly literal search for the causes of the statutory standard, is an open directory.

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O początkach prac nad kodyfikacją polskiego prawa cywilnego w 1947 r.

Author(s): Piotr Fiedorczyk / Language(s): Polish Issue: 1/2006

In the period 1947–1949 works on the codifications of civil law in Poland were held. They were undertaken after successful process of unification of this branch of law in 1946. They were confided to a commission, consisting of five members and working in the structures of the Ministry of Justice. The range of works was initially limited to technical aspects of codification. The main goal was to join the unification decrees and construct new code. The commission was established in February 1947 and at once, on its first meeting, has made the fundamental decisions. First of all, work regulations were accepted. Secondly, it was decided who is responsible for preparing drafts of parts of civilian code. The most important decisions referred to shape of new code, its chapters and the essence of regulation. The shape of a new code was based on German model, used in the Civilian Code BGB of 1896. Works on preparation of a new code were correctly organized, but, due to political reasons, they were not concluded. This was connected with the process of quick sovietization of Polish law, which started in 1948, in the second half of this year. In new political situation it was decided that there is no sense to continue works on “bourgeois” code.

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Z badań nad prawem rodzinnym w projekcie kodeksu cywilnego z 1948 r.

Author(s): Piotr Fiedorczyk / Language(s): Polish Issue: 1/2007

In February 1947 the Codification Commission was established. The Commission was to prepare the version of Civil Code, based on the existing acts and decrees. The changes in the existing law could be done only exceptionally. There were two persons nominated to prepare the draft of family law as a part of civil code. Jan Witecki and Seweryn Szerprepared the draft in 15 months, so the first reading was concluded in August 1948. The Commission has modified the configuration of proposed draft, which was based on French and Swiss civil laws. There were some important changes in marital law done. The most important of them were connected with the separation – the consequences of separation were regulated. There were important changes in the construction of divorce proposed. The draft was on a good level of legal regulation. In 1949 the works on new code were stopped because of political reasons. The draft was described as “bourgeois” and did not fit to process of stalinisation of Poland.

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O prawie cywilnym i karnym od Wieku Światła i Rozumu do spustoszonego stulecia

Author(s): Adam Lityński / Language(s): Polish Issue: 1/2008

In the 18th century the rule of ratio was supposed to rebuild the world and to make an order in it. The philosophers followed many illusions then. One of them was the belief that the ideal law is almighty and it may give happiness to the mankind. The revolution was also supposed to be a great project for the mankind. Liberty, Equality, Property (by Jan Baszkiewicz) were placed on revolutionary banners. Liberty, equality, property are the most important natural laws, which were supposed to be transformed into codes. The 20th century has inherited many different ideas, also utopian – coming from the Age of Enlightenment. The starting point – as usual in the utopias – was to destroy the old order, especially legal order. Two tragic totalitarian systems tried to realize these utopias. The 20th century is called the Ravaged Century (Robert Conquest). But when the last totalitarian state in Europe fell down in the end of this century, we returned to the Enlightenment roots in penal and civil law.

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Stosunki prawne z pokrewieństwa i prawo opiekuńcze w projekcie kodeksu cywilnego z 1948 r.

Author(s): Piotr Fiedorczyk / Language(s): Polish Issue: 1/2008

The draft of legal regulations about consanguinity and guardianship was supposed to be a part of the codification of civil law, consisting of five parts (so called: books): general part, family law, property law, law of obligations and inheritance law. In the proposed draft the family law was placed as book II, according to pattern coming from the Swiss code. The draft was based on the decrees from 1945–1946, which unified Polish civil law. The authors of this draft have not changed much in the existing law. The proposed changes were improving the legal situation of children coming out of wedlock, there were also some changes in the property relations between parents and children proposed. Few amendments referred to law of adoption. The guardianship law was unchanged. The draft was presenting very high level of civil law. However, the works on the draft code were interrupted in 1949, because the communist authorities declared draft as “bourgeois” one and not suitable in the new political situation of Stalinist Poland.

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Deductio in domum mariti and the conclusion of an iustum matrimonium

Author(s): Zuzanna Benincasa / Language(s): English Issue: 1/2012

According to the communis opinio the classical Roman law did not know any formal procedure of concluding a marriage, since its conclusion required only the mutual consent of a man and a woman (affectio maritalis, consensus). Nonetheless, the Roman culture developed a number of ritual acts related to the conclusion of a marriage, most of them deeply rooted in Roman tradition and history and being of a great symbolic significance. The central moment of a wedding ceremony seems to be deductio in domum mariti i.e. a ritual introduction of the bride into her future husband’s household. The significance of such a ritual is reflected in the field of language, since the expression uxorem ducere (to lead a wife) is the most common expression used as a synonym of“to marry” and also in the field of law since, according to some jurists, when deductio in domum mariti had been accomplished, the couple was considered duly and legally married. The main function of the deductio was thus to give proof that the wedding had taken place and to manifest mutual affectio maritalis. Deductio in domum mariti played a special role in the case of the conclusion of a marriage inter absentes (although it seems that the only person permitted to be absent could be the groom and not the bride). In this case, the formal ceremony of deductio seems to be an indispensable act constituting the only way in which a mutual affectio maritalis could be expressed. Since the bride’s procession to her new husband’s house was considered to be the public declaration of a consensus necessary for concluding a legal marriage, in the case of a “groomless” wedding such a ceremony was necessary as a proof that mutual affectio maritalis had been expressed and thus a marriage had taken place. Nonetheless, the necessity of leading the bride to her husband’s home in the case of a matrimonium inter absentes could not be misunderstood with the constitutive character of deductio in domum mariti. A consensus still remained the only constitutive element and deductio in domum mariti constituted only the formal way in which, due to the particular circumstances, this consensus had to be expressed.

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Opinia prawna na temat rządowego projektu ustawy o zmianie ustawy o sporcie oraz ustawy o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa z lat 1944–1990 oraz treści tych dokumentów

Author(s): Paweł Kościelny / Language(s): Polish Issue: 2/2017

The Bill aims at, inter alia, improvement of transparency in terms of organisa‑tion of Polish sport associations and prevention of conflict of interests by putting ad‑ditional limitations on members of sport unions’ management boards. Furthermore thedefinition of sport should include intellectual activities whose goal is to achieve a sportresult. According to the author of the opinion the latter solution is too vague and maylead to broadening the definition of sport in an uncontrolled manner, encompassinga wider selection of human activities than the sponsor of the bill aimed to do. Moreover,the Council’s project classifies members of sport unions’ management boards as publicservants what stays in contradiction to the jurisprudence of the Constitutional Tribunal.The changes of provisions proposed in the bill require a deeper analysis and clarifying.

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Polityczne uwarunkowania prawa spadkowego. Prace nad zmianami w prawie spadkowym w latach 1947–1964

Author(s): Anna Moszyńska / Language(s): Polish Issue: 1/2014

The inheritance law seems to be a ﬁeld that is of little interest to the world of politics and arousing far less social emotions than family or criminal law. However, after World War II the Polish authorities used the inheritance law in order to actively shape and consolidate the socialist system. As it was stressed on many occasions, inheritance is inseparably connected to ownership, and that determines the nature of all other property institutions. The inﬂuence of ideology and politics on Polish inheritance law was especially visible during the works on codiﬁcation of civil law in the period from 1947 to 1964. However, as it turns out, most representatives of the doctrine were able to bypass the political determinants in order to keep a high legal standard. The author strives to show how the scholars tried to save the classical inheritance law institutions by manipulating the political doctrine. By ideological justiﬁcations of the proposed legal solutions in fact they enabled to keep in the 1964 Civil Code most of the basic inheritance law rules of 1946. Unfortunately it was impossible to prevent the introduction of provisions on inheritance of farms into the Civil Code.

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Türkiye Büyük Millet Meclisi’nde Lezbiyen, Gey, Biseksüel Ve Trans (LGBT) Haklari Gündeminin Ortaya Çikişi Ve Gelişimi: 2008-2014

Author(s): Volkan Yılmaz,Hilal Başak Demirbaş / Language(s): Turkish Issue: 2/2015

The success of lesbian, gay, bisexual and trans (LGBT) rights movements especially in Latin America, Western Europe and North America has recently made LGBT rights part of the international human rights framework. Despite the advances at the level of European Union and United Nations, Turkey still lacks anti-discrimination measures for LGBTs and has not yet recognised LGBT rights at the legal and constitutional levels. However, both international and domestic political dynamics keep LGBT rights at the top of the political agenda. At the international level, European Union provides significant political leverage for the LGBT rights movement by drawing attention to the violation of LGBT rights and discriminatory practices LGBTs face in its annual progress reports for Turkey. At the domestic level, Turkey has been witnessing the rise of a vibrant LGBT rights movement since 1990s, which has become increasingly visible, politically vocal and powerful since the second half of 2000s. The influence of LGBT rights movement in Turkey on social and political landscape of the country has not adequately been studied so far. In this context, following the footsteps of social constructivist approach to social movements, this article analyses the influence of LGBT rights movement in Turkey at the parliamentary politics. Based upon a review of parliamentary questions concerning themes related to LGBT rights issues, the article links the birth and development of LGBT rights agenda at the Grand National Assembly of Turkey with the political history of LGBT rights movement in Turkey. It is argued that the rise of LGBT rights movement since the second half of 2000s and the links it established with the parliamentary politics elevated the LGBT rights issue to the political agenda of the Turkish Grand National Assembly.

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Íslami Muhafazakâr Kadin Yazarlarin Perspektifinden Kürtaj Tartişmasi: Eleştirel Bir Değerlendírme

Author(s): Çağla Kubilay / Language(s): Turkish Issue: 3/2014

After being legalized in 1983 as a result of a political strategy based on prevention of population growth, abortion had not been a subject of public debate. In the last days of May in 2012, when former prime minister gave a statement as: “I consider abortion as a murder” and “Every abortion is Uludere”, the concept became a prominent subject of a nationwide debate. In this debate, two major opposing groups occurred: a group focused on the right of the embryo to gestate and be born on the one hand and the other focused on women’s rights to control their body. This study aims to analyse Islamic conservative female writers’ approaches against both men in Islamic community supporting ban on abortion and the opponents of ban by using the slogan “my body, my right.” In order to analyse their position, female writers’ all columns and published interviews about the debate held one-month period from the beginning of the debate are used as a method to analyse the subject.

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Paprotys Kaip Teisės Šaltinis Islamo Teisės Tradicijoje

Author(s): Juozas Valčiukas / Language(s): Lithuanian Issue: 84/2015

Lawyers from the Muslim and Western world talk about several types of legal sources in the Islamic legal tradition. According to them, there are primary, secondary and/or additional Islamic legal sources. If there is an agreement due to the primary sources as Koran and Sunna, there is no common position talking about the other legal sources. The Article explores the status of custom as a legal source in the Islamic legal tradition. Firstly, it analyses the meaning of the term Islamic law. Also, such concepts as fiqh, sharia and others ar discussed. Secondly, the primary and secondary legal sources are explored in the first part of the article. The status of the custom as a legal source is analysed in the last part of the article. According to the last study on custom made by A. Shabana, custom is to be treated as independent source in Islamic legal tradition. There are some significant statements in the texts of Koran and Sunna where custom gets its place in Islamic legal sources. On the other hand, customs had to be related to the meanings of Sharia written in the primary sources in order to get the status of legal source.

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Paprotys Kaip Teisės Šaltinis Islamo Teisės Tradicijoje

Author(s): Juozas Valčiukas / Language(s): Lithuanian Issue: 83/2015

Lawyers from the Muslim and Western world talk about several types of legal sources in the Islamic legal tradition. According to them, there are primary, secondary and/or additional Islamic legal sources. If there is an agreement due to the primary sources as Koran and Sunna, there is no common position talking about the other legal sources. The Article explores the status of custom as a legal source in the Islamic legal tradition. Firstly, it analyses the meaning of the term Islamic law. Also, such concepts as fiqh, sharia and others are discussed. Secondly, the primary and secondary legal sources are explored in the first part of the article. The status of the custom as a legal source is analysed in the last part of the article. According to the last study on custom made by A. Shabana, custom is to be treated as independent source in Islamic legal tradition. There are some significant statements in the texts of Koran and Sunna where custom gets its place in Islamic legal sources. On the other hand, customs had to be related to the meanings of Sharia written in the primary sources in order to get the status of legal source.

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Islamo Teisė Ir Modernybė: Faustiškasis Kaitos Kelias

Author(s): Juozas Valčiukas / Language(s): Lithuanian Issue: 82/2015

This article explores the phenomenon of Islamic law under the challenge of modernity. The challenge of modernity poses many problems for the identity of Muslim world and its legal system. The claims that Islamic law has nothing in common with modernity is false. The intent of this article is to show that interaction between Islamic law and modernity can be understood through the Faustian way of development. In Faust, the process of development transforms a wasteland of the world into a social space. Also, the process makes a shift in the wasteland of the developer himself. The more you modernize the world outside, the more you modernize your inside world. This is how Faustian tragedy of development works. The goal that animates the present article is to analyze several ways of developing Islamic law both in Muslim states and in the Western world as well. We have the double challenge of modernity. On the one hand,the article discusses at least four responses to the challenge of modernity to Islamic law in Muslim states. On the other hand, we have Muslim communities in modern Western states and their wish to live according to the norms of Islamic law where the modernization of it is indispensable.

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Preventivne mere prema osuđenicima opasnim po društvo u pravima Sjedinjenih Američkih Država i Velike Britanije

Author(s): Nataša Mrvić-Petrović / Language(s): Serbian Issue: 2/2015

Panic and repressive public reaction to the murder and sexual crimes committed against children and detection networks of pedophiles are the reasons why at the end of the twentieth century in the Anglo-Saxon legal system utilized indeterminate prison sentence and compulsory psychiatric treatment to prevent repeated the crime of the prisoners who are released from prison. Following the example of American law, preventive supervision or preventive detention have been introduced in other English-speaking countries, but also in continental legal system. Author comparing US legislation (federal, states Washington and Florida) and the United Kingdom legislation to show the differences in the approach to the protection of society from dangerous offenders. The US has used civil law model of forced psychiatric hospitalization (civil commitment), but now more often measures into criminal justice system (preventive detention or preventive supervision). Under the influence of the US similar measures were introduced in the UK, but UK legislations favors imprisonment (lifelong or extended) to protect the public from high risk of offender (England and Wales) and lifetime restrictions (in Scotland). However, these concepts are now abandoned (England) or reviewed (Scotland) due to lack of efficacy and risk of violations of human rights of prisoners.

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Sistemi plata i nagrađivanja državnih službenika u zemaljama zapadnog Balkana u vreme ekonomske krize

Author(s): Aleksandra Rabrenović / Language(s): Serbian Issue: 2/2014

The paper analyses legal changes in the civil service pay and benefit system in the Western Balkans countries, which occurred in the period from the beginning of the economic downturn in 2008 up to present time. Analysis of the existing pay and benefit systems is preceded by a brief review of the international civil service pay setting standards, which constitutes the basis for a detailed review of the existing civil service pay systems in the Western Balkan countries. The author concludes that the economic downturn in most of the analysed countries has led to a reduction in the level of civil service pay, as a short-term measure undertaken to decrease the budget deficit. In addition, in some of the analysed countries systemic changes, aimed at streamlining the pay system and increasing its transparency and fiscal sustainability, have been undertaken, which is a positive development. However, several of the analysed systems have also experienced a reversal of the mechanisms of horizontal civil service pay progression based on performance, which can have a negative effect on civil servants motivation. For this reason this issue should be given a careful consideration by the policy makers in the near future.

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Бангалорски принципи-допринос развоју судијске етике

Author(s): Rada Mirić / Language(s): Serbian Issue: 3/2013

The Bangalore Draft Code o Judicial Conduct was adopted at 2001 year, by the Judicial Group of the United Nations on Strengthening Judicial Integrity and was revised at the Round Table Meeting of Chief Justices held at the Peace Palace in The Hague, November 25-26, 2002 year. The following principles were adopted wheres the international sources- Universal Declaration of Human Rights (1948) and the and the International Covenant on Civil and Political Rights (1966), as well as national sources- constitutions, laws and common law countries, bearing in mind the importance of a fair and public hearing in a reasonable time by a competent, independent and impartial court for a modern democratic society, for respecting the Constitution and the rule of law. The purpose of the adoption these international ethical standards is the equalization of the rights on the international level by contributing to the national court systems in regulation of professional responsibilities of the judges, their behavior and attitude towards the judicial function, as well as to strengthen the moral authority and integrity of the judiciary and strengthening public confidence in the judicial function which is synonymous with integrity, eruditeness, reputation and respect.

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Ограничења правног регулисања екстремизације деснице у Великој Британији

Author(s): Aleksandar Fatić / Language(s): Serbian Issue: 2/2012

The paper addresses the rise in extreme-right sentiments in Great Britain that, phenomenologically, reached its climax in the August 2011 street riots across the country, and discusses briefly the political climate that has led to such outbursts of intolerance on the one hand, and the limited tools available to the British law-makers to counter the trend, on the other. The key thesis of this short paper is that the British parliamentarians have no feasible way to legislate against the demonstrations of the extreme right, not just because this would be a chancy approach with regard to the delimitations of civil rights, including the collective right to publicly articulate political opinions, but also because of the deep-seated features of the British law. Namely, the British legal system is much more subject to creative interpretation by the judges than is the case with European law, and especially more so than is the case with the Soviet legacy of strictly positivistic legal systems such as those across Eastern Europe. This means that legislating so as to curb the public manifestations of extreme right sentiments could backfire through court proceedings that could turn into discussions of civil liberties and where judges might refuse to tow the positivistic normative line of the law in favour of a broader interpretation of rights and liberties. While, on the surface, such a limitation of legal regulation might seem disappointing to those fond of social control, it reflects a deep-running democratic trait in the British legal system that does not allow legal regulation to move beyond its proper place in society, and that is to be the articulation of the existing values and principles that the community shares with a sufficient degree of consensus.

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Obezbeđenje potraživanja bankarskom garancijom u Republici Srbiji i zemljama u regionu

Author(s): Vladimir Kozar / Language(s): Serbian Issue: 3/2011

The practice of business entities by the term "bank guarantee" means different legal institutes, aimed at ensuring the fulfillment of contract obligations the bank's clients. It is a different means of securing both personal (endorsement guarantee, acceptance bill, documentary credit, etc..) and the actual or the real (pledge, mortgage, lien on securities). Ensuring the fulfillment of contractual obligations is a common feature of these institutes in the wider sense of the "bank guarantee" for the fulfillment of contractual obligations. However, the bank guarantee in the narrow sense is a separate legal institution that has specific characteristics, and that it, in spite of certain common points, significantly different from the above mentioned institutes. The subject of this paper is to provide a bank guarantee claims in the Republic of Serbia and the countries in the region. In addition to the provisions of the Law on Obligations of 1978. years, particularly in the analyzed provisions of the new Law of Obligations in 2008. year, which is applied in the Republic of Montenegro, as well as the provision of bank guarantee at the invitation of the Law on Obligations of the Republic of Croatia, in 2005. year, with the latter's novels. It is also emphasized and the new ruling on bank guarantee in the draft Law of Obligations of the Federation of BiH / Serbian Republic in 2003. year. The provisions on bank guarantee from these regulations in force or being drafted in the countries in the region have similarities but also significant differences in relation to the provision of bank guarantee of the Obligations Act of 1978. year.

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