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Ius cogens czy ius dispositivum? Kilka uwag o charakterze norm prawnych na starożytnym Bliskim Wschodzie

Author(s): Lena Fijałkowska / Language(s): Polish Issue: 1/2016

Celem artykułu jest analiza charakteru i zakresu zastosowania norm prawnych na starożytnym Bliskim Wschodzie. W pierwszej kolejności omówione zostały królewskie akty normatywne, a w szczególności tak zwane kodeksy prawne oraz edykty mišaru, następnie zaś – normy prawa zwyczajowego. Analiza ta prowadzi do wniosku, że choć swoboda umów na starożytnym Bliskim Wschodzie była znacznie szersza niż dzisiaj, ograniczały ją imperatywne normy prawa zwyczajowego. The paper concerns the nature and scope of applicability of law in the ancient Middle East. It first discusses royal normative acts, especially the so-called codes of law and mišaru edicts, and proceeds to an analysis of customary law to conclude that while laws allowed parties a much greater freedom in shaping their legal relationships in the ancient Middle East law than they do today, such freedom was limited by imperative standards of customary norms.

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Poznámky k proceduře rozhodování pléna Ústavního soudu

Author(s): Vojtěch Šimíček / Language(s): Czech Issue: 3/1997

The article discusses the procedural aspects of decision-making by the plenary session of the Constitutional Court of the Czech Republic. It highlights the division of cases between the plenary session and smaller panels, emphasizing the importance of the plenary session in deciding the most serious cases, such as the annulment of laws and constitutional complaints. The article also addresses the quorum requirements and the challenges in interpreting legal provisions related to decision-making. It critiques the current practice of the Constitutional Court, suggesting that the existing procedures may not cover all potential scenarios and proposing possible improvements. The author argues for a consistent approach to decision-making, whether the outcome is to annul or uphold a law, and stresses the need for a qualified majority in significant cases. The discussion includes examples of past decisions and differing opinions among judges, illustrating the complexities and potential inconsistencies in the Court's practice. The article concludes by suggesting that legislative changes might be necessary to ensure clearer and more effective decision-making processes.

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Politické strany v řízení před Nejvyšším soudem

Author(s): Eliška Wagnerová / Language(s): Czech Issue: 3/1997

The document discusses the involvement of political parties in proceedings before the Supreme Court of the Czech Republic. It outlines the types of cases where political parties may appear, including appeals against registration refusals, dissolution or suspension of activities, and review of election decisions. The document highlights the legal norms applicable to these proceedings, emphasizing the mixed nature of the relevant laws, which contain both substantive and procedural elements. It also addresses the procedural specifics of these cases, such as the non-contentious nature of certain proceedings and the investigative principle applied. The document critiques the current legal framework, suggesting that it may not adequately reflect the unique nature of these proceedings and calling for potential reforms to better accommodate the procedural rights of political parties.

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Přípravná služba justičních čekatelů

Author(s): Milan Pelikán / Language(s): Czech Issue: 2/1997

The paper discusses the preparatory service for judicial trainees in the Czech Republic, outlining the requirements and procedures for becoming a judge. It details the three-year training program that judicial trainees must undergo, including practical assignments under experienced judges and theoretical studies. The document also covers the conditions for employment, the duties and responsibilities of judicial trainees, and the final judicial examination required to qualify as a judge. Additionally, it mentions the legal framework governing the preparatory service and the ethical obligations of judicial trainees.

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Účinný důkaz v americkém trestním procesu

Author(s): Alexander Nett / Language(s): Czech Issue: 4/1996

The present contribution deals with the approach of the American judical practice towards the questions of the proof effectiveness. The author refers to the fact that the American "fruit of poisonous tree" doctrine on the basis of which the judicial practice built the so-called rule of exclusion underwent a very contradictory evolution from the time of its rise up to the present. The substance of the problem consists in finding the optimal model of the solution of the questions concerning the proof effectiveness in criminal proceedings. In spite of the objections to the doctrine of the rule of exclusion the opinions prevail that claim its restriction, not its substitution. The contemporary approaches to the solution of the questions connected with the proof effectiveness are based on the demand for the criminality control and for the preservation of the legality of the criminal law. It is important not to put these demands in the contradictory relation, but to seek the common presuppositions for their realisation in the criminal proceedings which can also become the starting point or the solution of the problems associated with the proof effectiveness.

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K otázce ústavní ochrany společnosti a státu de lege lata a de lege ferenda

Author(s): Jan Filip / Language(s): Czech Issue: 4/1996

The article discusses the constitutional protection of society and the state in the Czech Republic, emphasizing the importance of the state's existence and functioning for individuals and society. It outlines the normative projection of the Czech Republic as a free, sovereign, and democratic state, based on respect for human rights and principles of civil society. The article examines the legal framework for protecting this normative state, including responses to deviations from the norm such as states of emergency, war, and other extraordinary situations. It highlights the absence of explicit provisions for extraordinary states in the current constitutional order and the need for legal instruments to ensure the state's normal functioning. Historical events like the disintegration of the Habsburg monarchy, the destruction of the state in 1938-1939, and changes in the political system in 1948 and 1989 are referenced. The article also discusses the role of constitutional law in defining rules of conduct during threats to the state's existence and democratic system. It calls for a systematic legal framework to address extraordinary situations and protect the state's fundamental conditions.

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Notářství dnes

Author(s): Alice Sedláková / Language(s): Czech Issue: 3/1996

The document discusses the role and functions of notaries in the Czech Republic, established under the Notarial Code No. 358/92. It highlights the transition from state notaries to private practice, emphasizing the importance of notarial acts in legal transactions, such as drafting public documents, verifying significant facts, and safekeeping documents and money. Notaries also act as court commissioners in inheritance proceedings. The document addresses the challenges and evolving practices in notarial work, including the definition and verification of public documents, the use of modern technology in document creation, and the legal implications of such advancements. It underscores the need for continuous professional discourse and adaptation to legislative changes to ensure the quality and reliability of notarial services.

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Novelizace českého trestního práva

Author(s): Věra Kalvodová,Jana Zezulová / Language(s): Czech Issue: 2/1996

This presentation deals with some of the most important changes in Czech criminal law during the last six years. The first part of the article contains the information concerning amendments of Penal Code, especially some questions of abolition of death penalty in 1990, introduction of life imprisonment, new conception of criminal responsibility in the case of the culpable insanity, alternative sanctions and criminal organizations. The second part deals with amendments of Code od Penal Procedure. In this presentation it is not possible to cover the entire changes, however, we would like to focus on the diversification of standard of proceeding which have already started to influence Czech criminal proceeding. Nowadays the strategy of diversion in considered a part of what is know as "the four D programme". These are diversion, decriminalization, deinstitutionalisation and due process. These are alternative proceeding available whereby their informal execution is more appropriate than the implementation of a classic criminal trial which results in a verdict of guilt and subsequent sentencing.

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Klinická část právnického studia ve Spojených státech

Author(s): Michael P. Seng / Language(s): Czech Issue: 2/1996

The document discusses the evolution of legal education in the United States, highlighting the transition from traditional methods to more practical approaches. Initially, law studies were dominated by the case method, developed at Harvard in the 19th century, where students read court decisions and were tested on them. Over time, the need for practical skills led to the establishment of legal clinics, where students could gain hands-on experience by representing real clients under supervision. These clinics became essential for preparing students for legal practice, especially in addressing social issues and providing legal aid to the underprivileged. Despite initial skepticism from courts and traditional law faculties, legal clinics proved their value by offering high-quality representation and practical training. The document also notes the financial challenges of running these clinics and the importance of integrating clinical work with classroom learning to enhance students' education.

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Katharina Stengel: Die Überlebenden vor Gericht. Auschwitz-Häftlinge als Zeugen in NS-Prozessen (1950–1976)

Author(s): Jasmin Söhner / Language(s): German Issue: 2/2024

Review of Katharina Stengel: Die Überlebenden vor Gericht. Auschwitz-Häftlinge als Zeugen in NS-Prozessen (1950–1976). (Schriften des Dubnow-Instituts, Bd. 34.) Vandenhoeck & Ruprecht. Göttingen 2022. 548 S. ISBN 978-3-525-31741-9. (€ 70,–.)

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ОТНОВО ОТНОСНО РАЗПРОСТИРАНЕТО НА ИПОТЕКАТА ВЪРХУ ПРИРАЩЕНИЯ: ОПИТ ВЪРХУ ТЪЛКУВАТЕЛНИТЕ МЕТОДИ В ПРАВОТО

Author(s): Andrey Georgiev / Language(s): Bulgarian Issue: 1/2024

The article examines the development of the jurisprudence of the Bulgarian Supreme Court of Cassation on the issue whether a mortgage (lien) registered on a landplot can extend its effect to buildings built in the same plot after the registration of the mortgage deed. The gradual development of the interpretation of potentially conflicting provisions - art. 170 and 175 of the 1950 Obligations and Contracts Act - has been traced to clarify why the final conclusion that the mortgage lien extends to all buildings constructed in the landplot, for which the mortgage is registered, after the latter's registration. The author presents the thesis that this approach is an evolutionary development of the rules of use of interpretive methods in Bulgarian law, introducing the interpretation in accordance with basic legal principles as the main and preferred interpretive method. A breif comparison with developments in Roman law is also provided.

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KOLEKTIVNA ILI INDIVIDUALNA KRIVICA I ŠTA NAKON ZLOČINA?

Author(s): Bernard Harbaš / Language(s): Bosnian Issue: 4/2024

The paper deals with Hannah Arendt's attitude towards the concepts of collective and individual guilt with a special emphasis on her understanding of the discontinuation of criminal practice. The basic theoretical premise of Arendt's philosophy consists in the critique of work based on necessity and unfreedom. In contrast to work and production as non-free activities, she emphasizes action as a form of free activity that consists of communication between different but equal individuals. For Arendt, work and production are inherent in totalitarian political systems by their very nature. The basis of the totalitarian regime is automated and bureaucratic action, which is best demonstrated in the unquestioning execution of orders and respect for hierarchy. It identifies totalitarian projects with the evolutionary laws of nature, according to which the means is violence whereas the goal is survival of the fittest. Arendt attributes this type of relationship, characterized by the "absence of thought", to every criminal enterprise, such as mass murders, camps. This inability to criticize can be attributed to the individual or individuals, but not to the collective. For Arendt, the term collective guilt is a skillful concealment of individual responsibility and guilt.

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Správní žaloby nejvyššího státního zástupce – ohlédnutí po více než dvaceti letech

Author(s): Břetislav Martínek / Language(s): Czech Issue: 3/2024

The paper deals with the application practice of the Prosecutor General in the area of his special standing under Section 66(2) of the Administrative Procedure Code and related case law of administrative courts. The analysis presents an overall view of individual cases and their comprehensive summary. Among other things, it subsequently shows that, with the exception of the area of construction and environmental law, there are significant differences in both the number and the areas of actions brought to protect the public interest from year to year. The results of the research show that the vast majority of these actions are aimed at quashing potentially illegal decisions in the areas of traffic offences, nostrification of foreign titles and photovoltaic plant licensing – very narrow areas of administrative law in which the Prosecutor General has intervened to overturn illegal decisions issued in a large number of similar cases. The assessment of the merits of these actions has undergone a significant development over the period of the existence of this provision of the Administrative Procedure Code, caused not by a change in the statutory regulation, but by the case law of the administrative courts and subsequently the Constitutional Court. The author of the article criticizes these conclusions. However, the forthcoming amendment to the Administrative Procedure Code envisages a variant of the amendment to the said provision, which would probably overcome the referred non-conceptual effects of this case law and would allow the courts to review the active legal standing of the Prosecutor General more widely.

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The Disappearance of a Natural Person Who Is a Sole Proprietor (Self-Employed): Considerations under the Polish and Slovak Law

Author(s): Alexandra Löwy,Karin Rakova,Paweł Lewandowski / Language(s): English Issue: 1/2024

The disappearance of a natural person, especially when he or she is also a sole proprietor of a business, causes legal problems. Such situations are not directly regulated by legal acts, i.e., the legislators do not refer to the impact and consequences of the disappearance on the performed business activity. Meanwhile, the fact that a sole proprietor goes missing may have a negative impact on his or her situation, including the content of the obligations binding on him or her. This paper discusses how the relatives, in particular the spouse of the missing person, may behave in such circumstances. The considerations carried out concern Polish law and Slovak law, as there is no specific regulation of the declaration of missing person who is a sole proprietor introduced on the model of foreign regulations, the article places emphasis on the comparison of both selected regulations. The conclusion indicated that until the missing person is recognised as dead, family members or other relatives do not have any competence to take any action on behalf of the missing sole proprietorship circumstances, other entities may operate, i.e., attorney-in-fact, proxy, according to Polish law custodian established pursuant to Art. 184 of the Family Code, the custodian established pursuant to Art. 144 of the Code of Contentious Civil Procedure, or prosecutor. Similarly, under the Slovak law, until the missing person is declared dead, a guardian, or a representative appointed by the court pursuant to Section 68 of the Civil Procedure Code, acts for such person.

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Electronic Monitoring Is Not the Only Problem Here: The Challenges of House Arrest Application Practice in the Czech Republic

Author(s): Ivo Polanský / Language(s): English Issue: 1/2024

Over the past 25 years, few alternative sanctions have received as much attention as electronically monitored house arrest. In the view of relatively dynamic development of electronic surveillance technologies and related ethical and legal issues at stake, this interest continues to this day. In the Czech Republic, electronically monitored house arrest was introduced in 2010. Somewhat oddly, the electronic surveillance system had not been implemented at the time. Yet, legislators and sanctions policy makers placed high hopes in this form of punishment. In particular, it was expected to significantly help combat the relentless hypertrophy of the prison population. But the expectations of sanction policy makers were not met due to the reluctance of the courts to impose house arrest. This had remained unchanged over the years, and opinions had begun to emerge that the state's failure to introduce electronic monitoring was primarily to blame. In 2019, electronic monitoring was eventually implemented, but the number of sentences imposed still did not increase. If the legislature's sanctions policy is not translated into practice, its aims cannot be achieved. For this to happen, it is essential that house arrest becomes more prevalent in the structure of sentences imposed. Increased application rates will not happen spontaneously; certain steps need to be taken to address the reasons for the current state of affairs and to mitigate factors that negatively affect application practice. For this purpose, such causes and negative factors must first be identified. This paper therefore examines the importance of electronic monitoring in terms of the application practice of house arrest in the Czech Republic, and the main reasons for not imposing house arrest. Building on these findings, it offers suggestions that would contribute to more frequent imposition of house arrest in appropriate cases.

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ПРАВОВИЙ РЕЖИМ: ВІД ТЕОРІЇ ДО ПРАКТИКИ

Author(s): Artem M. Kotenko / Language(s): Ukrainian Issue: 57/2024

In the article, based on the analysis of the approaches of legal science to revealing the content of the concept of legal regime, its essence is substantiated as a set of legal norms that determine the order of regulation of a certain range of social relations. The types, main characteristics and differences of legal regimes of martial law, state of emergency, zone of an ecological emergency zone and zone of temporarily occupied territory are disclosed. Key words: legal regime, types of legal regimes, the legal regime of martial law, the legal regime of a state of emergency, the legal regime of an ecological emergency zone, the legal regime of a temporarily occupied territory

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ASSESSMENT OF THE PHENOMENON OF FRAUD OF EUROPEAN FUNDS: A CRIMINOLOGICAL AND STATISTICAL APPROACH

Author(s): Adelina-Maria Ciobanu / Language(s): Romanian Issue: 38/2024

Fraud involving European funds poses a major threat to the European Union budget, affecting both resource efficiency and trust in the institutions that administer these funds. This research analyzes the phenomenon of European funds fraud using both quantitative and qualitative data to assess the dimensions and typologies of fraud. The study is based on statistical analysis using IBM's SPSS Statistics software. The results highlight a significant link between the level of corruption and the efficiency of the absorption of EU funds, emphasizing the need for more rigorous prevention and control measures.

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STATISTICAL ASSESSMENT OF FRAUD AND IRREGULARITY INCIDENTS OF THE AFIR FRAMEWORK DURING THE PERIOD 2014-2020

Author(s): Adelina-Maria Ciobanu / Language(s): Romanian Issue: 38/2024

This study analyzes the incidents of fraud and irregularities identified in projects funded by the Agency for Rural Investment Financing (AFIR) in the period 2014-2020. The research highlights diverse and complex typologies of fraud and irregularities, providing a statistical assessment of their distribution by forms of organization, implementation counties, financing measures, and the value of the associated damages. The conclusions emphasize the need for rigorous and continuous verification measures to prevent such practices in the future.

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Spravedlnost pro sedláky: Satisfakce pro selskou rodinu Františka Matyse z Hrusic

Author(s): Jaroslav Rokoský / Language(s): Czech Issue: 02/2024

The article discusses the case of František Matys, a farmer from Hrusice, who was forcibly evicted during the collectivization of agriculture in Czechoslovakia. His granddaughter, Eliška Teplická, initiated the rehabilitation process for his violent eviction. The article highlights the harsh conditions faced by farmers under the communist regime, including forced labor and confiscation of property. It also details the legal battles fought by the Matys family to restore their dignity and rights. The story of František Matys is a poignant reminder of the personal tragedies caused by totalitarian regimes. The article emphasizes the importance of historical memory and justice for the victims of political repression. It also sheds light on the broader context of agricultural collectivization and its impact on rural communities. The preservation of these stories is crucial for understanding the past and preventing future injustices. The article concludes with the successful rehabilitation of František Matys and his family, symbolizing a small victory against historical wrongs.

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Je nutné přehodnotit zaměření činnosti ÚDV: Rozhovor s ředitelem ÚDV Dalimilem Syptákem

Author(s): Jakub Šafránek / Language(s): Czech Issue: 02/2024

The article features an interview with Dalimil Sypták, the newly appointed director of the Office for the Documentation and Investigation of Crimes of Communism (ÚDV), who assumed the role on August 1, 2024. Sypták, a lawyer with extensive experience in criminal investigations, emphasizes the need to reevaluate ÚDV's focus to address the challenges of documenting and investigating crimes committed during the communist regime. His priorities include targeting severe historical cases, such as politically motivated murders and deaths at the Czechoslovak state borders, improving transparency in ÚDV’s communication, and enhancing public trust. Despite the unique difficulties associated with decades-old cases, including the lack of digital records and witnesses, Sypták advocates for methodical and systematic approaches to bring justice to the victims of the totalitarian regime. A strong proponent of interdisciplinary investigation, he highlights the importance of collaboration between legal, historical, and forensic experts. Sypták's vision includes publishing findings in comprehensive formats to promote public understanding while ensuring that unresolved cases are thoroughly addressed. His leadership style is marked by a commitment to professional excellence and accountability.

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