EVOLUTION OF THE RIGHT OF COALITION. INTERNATIONAL STANDARDS VERSUS POLISH LAW

Author(s): Aneta Kowalczyk / Language(s): English Issue: 27/2019

The right of coalition, understood as a second-generation human right, is related to equality, and is one of the manifestations of the freedom of association. The latter is recognised among the first-generation human rights, or those which do not originate from positive law but from the fact of belonging to the species of homo sapiens. The role of the state with respect to freedoms is to guarantee and secure them, while implementation of equality rights requires a legal framework and financial outlays. The current publication presents the evolution of the right to establish trade unions, as stipulated by Polish law, starting from the post-war period and ending with the latest changes which came in force on 1 January 2019; these are shown in the context of international regulations.

PRAWNA OCHRONA PRYWATNOŚCI ORAZ WOLNOŚCI DZIECI W INTERNECIE

Author(s): Joanna Uliasz / Language(s): Polish Issue: 28/2020

Children are active internet users. They sometimes uncover their private and intimate spheres, exposing themselves to threats arising from the anonymity of potential perpetrators in the virtual world. Parents often share information about their children online, doing so without their knowledge and consent. Parental behaviour, called sharenting or parental trolling, as was mentioned in this paper, can amount to prohibited acts or can violate personal rights of children. The main purpose of this article is therefore to characterize the most common negative phenomena interfering with the privacy and freedom of minors (including sexting, grooming, cyberbulling, sharenting, parental trolling), as well as to identify appropriate legal measures that could effectively protect the interests of the injured child. The article cites relevant court rulings and provisions of the Polish Constitution of 1997, the Criminal Code, the Code of Criminal Procedure, the Civil Code, the Family and Guardianship Code, as well as international and EU law that guarantee effective protection of the two spheres that are fundamental for child development: privacy and freedom.

Klauzula porządku publicznego a uznawanie zagranicznych orzeczeń, których przedmiotem jest uznanie wyroku lub stwierdzenie jego wykonalności

Author(s): Maciej Zachariasiewicz / Language(s): Polish Issue: 24/2019

The paper is devoted to the admissibility of recognition and enforcement of a judgment of a foreign court, the subject matter of which is recognition or declaration of enforcement of a judgment from yet another state (judgment on judgment). The issue is discussed in particular with reference to the public policy exception which constitutes a ground for refusal of recognition or enforcement of foreign judgments, both under Polish domestic law (the Code of civil procedure) and European law (Brussels I bis Regulation). It remains controversial whether the judgments on judgments should be recognized, thus benefiting from the so called “parallel entitlement”. The article takes a comparative approach, examining solutions adopted by various legal systems and analysing arguments for and against recognition of such decisions. The author takes the position that they should not be recognized (and that their enforceability should not be declared) in Poland, both under the Code of civil procedure (as with respect to judgments originating from non-EU states), as well as under EU legislation, in particular Brussels I bis Regulation. It is advocated that the concept of a “parallel entitlement” should be rejected.

The Paradoxes of Citizenship Removal: Soviet and Post-Soviet Citizenship

Author(s): Ben Herzog / Language(s): English Issue: 04/2012

The Soviet Union and post-communist states are outstanding case studies of the changing meaning of expatriation and citizenship. The historical shifts in voluntary and forced expatriation and the relationship between the two signify the changing perceptions of citizenship. Although there appears to be a disjunction between the two periods, I argue that this difference is mainly in scale and is symbolic rather than a transformation of the philosophical principle that allows free movement and free emigration. Both philosophically and legally, the right to exit one’s country and emigrate is considered a basic democratic human right. However, like all philosophical and actual manifestations of this right, during both the communist and post-communist periods the right to leave was conditional. Similarly, most post-communist countries adhere to the traditional conception of citizenship that sees dual citizenship as a violation of the exclusiveness of national political membership.

ЗАВЕЩАНИЕТО, ДЕПОЗИРАНО В ИМПЕРСКИЯ ПУБЛИЧЕН АРХИВ – РАЗСЪЖДЕНИЯ ОТНОСНО CODEX THEODOSIANUS, 4.4.4

Author(s): Jose Luis Zamora Manzano / Language(s): Bulgarian Issue: 1/2020

The author presents a specific form of public testament- testamentum principi oblatum, which is considered particularly important to ensure the existence and preservation of the last will of the testator by depositing the testamentl in the state archives. The main regulation of this type of testament is in the imperial constitution of 397 AD. of the emperors Arkadius and Honorius and addressed to the perfectus urbi Africanus, which is included in CTh. 4.4.4 and in CJ. 6.23.18. Its interpretatio and the development of the system in the various epitomes or compendiums of Lex Romana Visigothorum are also considered. Conclusions are made about the purpose and significance of this public form of testq;entveil, which is given persuasiveness and certainty of the will (voluntas) of the testator.

КОМЕНТАРИ ПО ТИТУЛ XVI (DE LEGITIMA SUCCESSIONE) ОТ COLLATIO LEGUM MOSAICARUM ET ROMANORUM

Author(s): Francesco Lucrezi / Language(s): Bulgarian Issue: 1/2020

The essay is focused on the XVI titulus of the Collatio legum Mosaicarum et Romanarum, dedicated to the matter of the legacy without testament (de legitima successione) in biblical and Roman law. Regarding Hebrew law, the text of the book of Numbers (36:1–7) is taken in specific consideration, in the Latin translation included in the Collatio. In this passage is narrated the particular case of the Tselofchad’s daughters, who were allowed to inherit by their father. Also the verses of Deuteronomium (21:15–17) about the privilege of the first-born (bekhor), the dispositions of the Baba Bathra treaty of Mishnah and Babylonian Talmud and the expositions offered in the De vita Moysis of Philo Alexandrinus are studied. In the essay, these sources are compared with the legal responsa dedicated, in the title, to the roman system of successio ab intestato, and demonstrate the great differences between the Jewish and Roman rules of inheritance mortis causa. These factual data are in contrast with the unreal image of a similitude or analogy (never existed in the reality) between the two systems that is reported in the Lex Dei for an ideological purpose.

ПО ТЕМАТА ЗА COLLATIO В НАСЛЕДСТВЕНОТО ПРАВО В КЪСНАТА АНТИЧНОСТ

Author(s): Francesca Pulitano / Language(s): Bulgarian Issue: 1/2020

The article is devoted to the complex legal framework of collatio in Roman inheritance law. Its origin and its connection with the inheritance under praetorian law, as well as its development in classical and postclassical law are traced. The essence of the institute is related to the requirement for the emancipated children and daughters of the pater familias, who received a dowry before his death, if they participate in the inheritance to contribute these assets in order to make a fair distribution of the hereditary property between co-heirs. Special attention is paid to the constitution of Emperor Leo I of 472, preserved in CJ. 6.20.17. The continuity of the institute in the modern Italian Civil Code is also presented.

ПРОБЛЕМИ НА ЗАВЕЩАТЕЛНАТА ДЕЕСПОСОБНОСТ

Author(s): Dimitar Topuzov / Language(s): Bulgarian Issue: 1/2020

This study makes a modest attempt to clarify the scope of legal requirements for acquiring testamentary capacity under Bulgarian law. Each of these requirements laid down in article 13 of the Succession Act has been put to an independent analysis in the context of the new statutory framework outlined by the obligations assumed by Bulgaria by ratifying the Convention on the Rights of Persons with Disabilities. The analysis proceeds from the notion that testamentary capacity is a special one, and thus the decisions established for the general civil capacity to act cannot be automatically applied to it. The conclusions in the study have been made after a thorough comparative law overview of other European legislations which provides an opportunity for a discussion of various possible approaches to the problems under consideration.

JURISTENLATEIN. EINE FACHÜBERSTZERISCHE ÜBUNG: LATEIN – DEUTSCH – RUMÄNISCH

Author(s): Oana Florina Avornicesei / Language(s): German Issue: 1/2018

Latin is the linguistic and doctrinal heritage of the legal systems in a number of European states, among which there are the German and Romanian legal systems. A lot of Latin legal words still survive today and a lot of Latin legal principles are still in use today, both underlying the thought of how legal matters are settled and the language in which justice is served today. Despite the fact that the languages of the respective legal and judicial systems are German and Romanian, a lot of reference to the Latin tradition and wisdom is made nowadays, in the pursuit of justice. The collection includes legal proverbs, maxims and rules organised around three specialised legal root-terms, and it is intended as an introduction into the Latin language and thought underlying the contemporary German and Romanian legal systems.

ZEMLJIŠNOKNJIŽNA REFORMA U REPUBLICI SRPSKOJ I NJENE POSLJEDICE

Author(s): Faruk Đozić / Language(s): Bosnian Issue: 9/2020

Zakonom o premjeru i katastru u entitetu Republika Srpska uvedenje sistem evidentiranja nekretnina i prava na njima kroz tzv. Jedinstvenu evidenciju nekretnina. Historijski gledano, sistem jedinstvene evidencije nekretnina nije novina u našem pravnom podneblju. Zakon o premjeru i katastru Republike Srpske iz 2011. godine predstavlja kontinuitet u namjeri entitetskog zakonodavca da nastavi sa pravnim naslijeđem bivše SFRJ i zakonska rješenja iz oblasti zemljišno-knjižnog prava u entitetu Republika Srpska približi sa zakonskim rješenjima Republike Srbije kao pravnom sljedniku SFRJ. Rješenje, predviđeno zakonom, da teret uspostavljanja katastra nekretnina i vođenja evidencije o pravima na njima ustupi organu uprave ostavlja mogućnost i za zloupotrebu, posebno u pogledu imovinskih prava povratnika, izbjeglih i raseljenih lica koji iz objektivnih razloga nisu u mogućnosti da aktivno učestvuju u postupku uspostave jedinstvene evidencije nekretnina. Ograničavajući pravo na sudsko odlučivanje o pravima na nekretninama u postupku uspostavljanja jedinstvenog katastra nekretnina suprotno je međunarodnim normama o pravu na imovinu kao nepovredivom ljudskom pravu. Zakon o premjeru i katastru Republike Srpske zapravo predstavlja nastavak realizacije ciljeva Deklaracije o proglašenju Republike srpskog naroda Bosne i Hercegovine i da pravno zaokruži proces etničkog čišćenja nesrba i genocida nad Bošnjacima.

HRIŠĆANSKO ZADUZBINARSTVO U PERIODU OSMANSKE UPRAVE

Author(s): Olga Zirojević / Language(s): Serbian Issue: 46/1997

Islamic law, with certain limitations, allows Jews and Christians to found endowments (waqfs) under the rules of their religions and before their religious representatives. In the relations between the Ottomans and non-Muslims (the so-called zimiye or wards) Shari’a was the main but not sole legal source: there was also Kanun (provisions with force of law), Urf ( settled practice of the supreme administration) and Adet (common law in the broadest sense of the word). Finally, religious issues were also adjusted to the State interests (the so-called Millet System). As for the categories of ownership over land, a customary classification was miri, mulk and waqf (endowment) lands, which also related to the monastic land. But, this land was mostly included in the State ownership (miri), with only its smaller part as full ownership (mulk) to be disposed of freely, i.e. it had a status of waqf and was extra commercium.

Dobrotovorni rad u islamskoj jurisprudenciji

Author(s): Senad Ćeman / Language(s): Bosnian Issue: 13/2020

Islamic teaching defines charity work as an act motivated by devotion to God when such devotion is based on voluntariness and to gain God’s reward. Charitable work is basically not obligatory; even if it does not seem to appear as such, it bears no responsibility. Charitable work in Islam has generated over time numerous governmental and non-governmental institutions through which individuals have helped society in an institutionalized and organized manner, and which has been a partner of the state in the field of education, health, recreation, etc. In its broad opus, Islamic jurisprudence has given a significant place to the topic of charity work.

Kinga Bączyk-Rozwadowska, Prokreacja medycznie wspomagana. Studium z dziedziny prawa, Wydawnictwo TNOiK – Dom Organizatora, Toruń 2018, ss. 807

Author(s): Ewa Bagińska / Language(s): Polish Issue: 2/2020

MARRIAGE ACROSS BOUNDARIES: MIXED MARRIAGES AT THE SUPREME SHARIA COURT IN HABSBURG BOSNIA AND HERZEGOVINA

Author(s): Ninja Bumann / Language(s): English Issue: 19/2020

The article examines the regulation and negotiation of mixed marriages, that is marriages between persons of different religions, at Sharia courts in Bosnia and Herzegovina under Austro-Hungarian rule. Based on the analysis of documents from the Supreme Sharia court, an appeal body installed by the new Habsburg administration in 1879, this article investigates how the limitation of the competence of Sharia courts led to misunderstandings and disputes regarding the solemnization of mixed marriages. The text illustrates that mixed couples did not only transcend religious boundaries but also crossed institutional and legal, as well as social, constraints. In general, Sharia courts were banned from registering mixed marriages, which often led to strategic conversions or concubinage. While the state authorities increasingly regulated conversions and, thus, not everyone was allowed to adopt Islam, also mixed couples living in concubinage often faced legal problems around the religious affiliation and the legal custody of their children born out of wedlock. In 1912, however, the legal situation changed when a specific regulation by the Provincial Government allowed for the solemnization of mixed marriages by a kadi. However, as will be demonstrated in the article, this did not directly lead to a greater acceptance of mixed marriages by society.

Fundamental Rights: Comparison of the Approaches in the Canon Law and in the Civil Law

Author(s): Stanislav Přibyl / Language(s): English Issue: 6/2020

The Code of Canon Law of 1983 came up with a list of obligations and duties of the Catholic faithful. This list is analogical to those of the charters of fundamental rights and freedoms found in the documents of international law and in the constitutions of democratic countries. the inspiration of church law by civilian law was a reality from the very beginnings of the development of Canon Law: first by Roman Law, in the modern world by complex codifications of civil law, and after Vatican II also the idea of universal human rights. The specifics of the Catholic Church in relation to a democratic state is the incorporation of the subject of law into the Church through baptism which brings, above all, duties and obligations. Thus the catalogue which may now be seen in the Code contains first and foremost a list of duties, not rights, which are not stressed in the modern state. In fact, the modern state has very few demands; often just the payment of taxes and compulsory school attendance. The article deals with the individual obligations and rights found in the Code of Canon Law and compares them with their analogies in constitutions. The concept of civil and canonical norms tends to get closer primarily in the case of inspiration by natural law, whereas the obligations of the faithful represent a specifically ecclesiastical goals, for which no analogy in civil law can be found. After all, the supreme law of the Church is the salvation of souls, indeed, the state does not have such a supernatural goal.

PRAEFECTIO IN FILIUM IN HEREDEM MASCULINUM – PRILOG PROUČAVANJU ŽENSKOG NASLJEDNOG PRAVA

Author(s): Mirela Krešić,Marijana Križančić / Language(s): Croatian Issue: 2/2020

The authors analyse the nobility’s rights of inheritance comprised in the Tripartitum and valid for the Hungarian-Croatian Kingdom. For the process of inheritance, it was relevant whether the property to be inherited was hereditary property (bona hereditaria) or acquired property (bona acquisita). Furthermore, it was important whether the property was acquired by the charter of enfeoffment (royal donation) as well as what the gender of a potential heir was. This was due to different limitations with regard to the exercise of rights of inheritance by a female offspring, particularly concerning the inheritance of landed property. In particular, rules of prefection are analysed. The prefection was a legal instrument stipulating that in case of the extinction of the male line, the estate of the nobleman could be inherited by the daughter who was “promoted” to a son by a royal privilege. This was an example of the so-called special inheritance right and was seen as an institution damaging the interests of collateral branches. When it was introduced, the prefection was contrary to the customary inheritance law but was, nevertheless, applied in practice providing the possibility of keeping the property within the (nuclear) family by the female line and excluding the collateral branches of family.

Riflessioni sul diritto di satira e i suoi limiti

Author(s): Gaetano Dammacco / Language(s): Italian Issue: 23/2020

Satire is an extreme paradigm of freedom of expression, but uncertainties exist about its conceptual definition and related legal regime. The development of communication has produced numerous literary figures similar to each other such as the chronicle (an impersonal and non-interpretive recording of events that have occurred), criticism (subjective analysis and judgment relating to events that have occurred) and satire (sarcastic criticism of characters, behaviors and actions of individuals for the purpose of social denunciation). The elements that characterize the satire, developed over the centuries, are essentially twofold: attention to contradictions (of politics, society, religion, culture) and moralistic intent to promote social change. Religious satire affects ecclesiastical power and its contradictions, but it also affects religious symbols and the contents of religions. Different legal consequences follow. When it affects the patrimony of faith of believers it is not acceptable. Religious satire generates a kind of conflict between different constitutional values, that is, between the right to the free expression of thought and the right to the reputation and protection of religious feelings. The right to satire in general is recognized by legal systems (both international and national) as a subjective right of constitutional relevance, which derives from the freedom of expression and thought. In the Charter of Fundamental Rights of the European Union, thought, conscience and religion are homologous (as legal goods or as ethical values). Therefore, thought, conscience and religion cannot be in opposition to each other. Considerable uncertainties exist about the legal discipline of the right to satire, which can never offend the fundamental rights of the person, his dignity and his reputation. The Nice Charter has favored an orientation which considers the right of free expression in its broadest and most expansive form. However, the prevailing value of fundamental human rights has always been affirmed, which cannot be offended by the exercise of the right to satire. The strength of the right to satire consists in the recognition of its constitutional rank, but also in the limits it must have. The jurisprudence has elaborated the “formal” obligations, among which the most important are: continence and functionality.

Wolność religijna jako instrument ochrony prawnej przeciwników małżeństw jednopłciowych. Zmiany w prawie stanu Missisipi po wydaniu orzeczenia w sprawie Obergefell v. Hodges

Author(s): Katarzyna Maćkowska / Language(s): Polish Issue: 23/2020

The article considers the legislative changes which have been recently implemented in Mississippi, initiated by the advocates of traditional marriages in response to the legalization of same-sex marriages. Special attention is paid to the Mississippi Religious Freedom Restoration Act and the Protecting Freedom of Conscience from Government Discrimination Act. In relation to the abovementioned acts and the Obergefell v. Hodges case, this article provides both a description of the actions that have been taken by the conservative parts of Mississippi’s society and counteractions by the LGBT movement and its supporters. The analysis shows the tension between equality and religious freedom due to the different ways in which they are interpreted by the antagonistic groups. This leads to the conclusion that this conflict may not be efficiently resolved through a legal compromise. However, as is hypothesized in the article, religious freedom may become an important legal instrument for protecting opponents of same-sex marriages from discrimination claims when their religion does not allow them to recognize such marriages.

Prawne aspekty rozwoju turystyki pielgrzymkowej w Polsce w latach 1918-1939

Author(s): Leszek Ćwikła / Language(s): Polish Issue: 23/2020

In the Second Republic of Poland, an important religious, cultural and socio-economic phenomenon was – as it is today – pilgrimage tourism. The author’s intention was to analyze the laws in force at that time and to answer the question whether the state legislation had a positive impact on the development of this type of tourism. The basic normative acts in this respect were the Constitution of March and the Constitution of April, whose provisions guaranteed, among others, the freedom of worship to citizens, and religious organizations, recognized by the state, the right to hold collective and public services. When it comes to ordinary legislation, the provisions of the 1932 Criminal Code, the 1932 Law on Assemblies and the provisions relating to time off from work (establishing holidays and introducing the institution of rest leave) were analyzed. Attention was also drawn to the draft of the “Tourism Act”, which contained regulations affecting the development of pilgrimage tourism. Next, the paper focuses on the legal acts issued by the Minister of Communication, providing concessions for pilgrims travelling by train, and on the legal acts issued by other bodies, containing regulations for pilgrims going abroad or coming from abroad to Poland. After the analysis of the legal regulations, it was concluded that the actions of the state authorities, recognizing the important role of religion in the functioning of the state and society, favored the development of pilgrimage tourism. The regulations did not provide for restrictions which resulted in the practice of such tourism without restraint.

Ograniczenia zdolności prawnej osób duchownych w pracach kodyfikacyjnych doby Królestwa Kongresowego

Author(s): Piotr Zbigniew Pomianowski / Language(s): Polish Issue: 23/2020

The article focuses on the limitations of the legal capacity of the clergy in the codification work during the era of the Congress Kingdom of Poland. According to canon law, which was largely respected by the courts of the Polish-Lithuanian Commonwealth, the rights of monks and nuns were severely limited in matters related to succession (in particular, as far as inheritance or wills are concerned). Moreover, in light of the fully religious nature of marriage law, persons obliged to celibacy could not, as a matter of course, enter into a marital relationship. Austrian and Prussian lawmakers respected many of the ecclesiastical rules which regulated the status of the clergy. On the other hand, the Napoleonic Code did not place any limitations on the clergy in the realm of inheritance or marriage law. In 1807, the Duchy of Warsaw was established from the Polish lands seized by Prussia where Landrecht of 1794 was in force. In 1809, some lands occupied by Austria were incorporated into the Duchy of Warsaw. The civil code of Western Galicia (a precursor of Allgemeines Bürgerliches Gesetzbuch) was binding within these territories. Soon afterwards, the Napoleonic Code was introduced into both parts of the Duchy. During the Congress of Vienna it was decided that a major part of the Duchy would be transformed into the Kingdom of Poland under Russian control. It was obvious that Emperor Alexander I would reform the secular Napoleonic law of the Kingdom of Poland. While the prohibition of concluding marriages by the Catholic clergy was not questioned, the scope of potential limitations of the legal capacity of monks and nuns was the subject of much debate. The members of the Codification Commission could not come to an agreement whether to change or preserve the French regulations. Finally, Alexander I ordered to introduce them into the Civil Code of the Kingdom of Poland. The article gives a fresh view on the debate as it is based on the analysis of recently discovered materials from one of the Moscow archives.