Konstytucyjne podstawy ochrony praw człowieka
Constitutional foundations of the protection of human rights
Contributor(s): Radosław Koper (Editor)
Subject(s): Law, Constitution, Jurisprudence, Constitutional Law, Civil Law, Human Rights and Humanitarian Law
Published by: Wydawnictwo Uniwersytetu Śląskiego
Keywords: the constitution; human rights; protection; Constitutional Tribunal
Summary/Abstract: The work contains a survey of various problems associated with the protection of human rights in reference to constitutional norms. The extent to which human rights are respected continues to be a permanent criterion of the assessment of the extent to which democratic structures are solidified. Therefore the theme that is indicated is extremely important and relevant in the context of the social interest and the interest of individuals. The authors of the particular research works concentrated their attention upon both the problems representing public law (constitutional, penal, economic, financial law) as well as private (civil) law, and they discuss the specific normative regulations of general and system-related nature. The scholarly fascicle is devoted to researchers, the students of the department of law and administration and practicing lawyers: attorneys, attorneys-at-law, judges, prosecuting attorneys, notaries public.
Series: Prawo
- E-ISBN-13: 978-83-226-3215-4
- Print-ISBN-13: 978-83-226-3214-7
- Page Count: 314
- Publication Year: 2016
- Language: Polish
Literatura
Literatura
(Literatura)
- Author(s):Not Specified Author
- Language:Polish
- Subject(s):Language and Literature Studies
- Page Range:299-311
- No. of Pages:13
Czy prawa człowieka są/powinny być uniwersalne?
Czy prawa człowieka są/powinny być uniwersalne?
(Are Human Rights Universal and Should They Be?)
- Author(s):Konrad Kobyliński
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Civil Law, Human Rights and Humanitarian Law
- Page Range:13-21
- No. of Pages:9
- Summary/Abstract:The following article aims to present the overview of the contemporary philosophical discourse regarding human rights. In the first part of the text, the author presents three kinds of arguments used by the opponents of the idea of human rights. Those arguments, in turn, stem from the supposed universality ascribed to human rights. Thus, in the second part of the article, the author analyzes the cultural critique of human rights. The discussion ultimately leads to the conclusion that narrowly-defined cultural relativism does not constitute a sufficient reason for the rejection of human rights, particularly when one accounts for the fact that those sentiments are often motivated politically in countries whose governments reject the standards of democracy.
- Price: 4.50 €
Prawo do sądu
Prawo do sądu
(The Right to a Fair Trial)
- Author(s):Krzysztof Bochnia
- Language:Polish
- Subject(s):Politics / Political Sciences, Law, Constitution, Jurisprudence, Law and Transitional Justice
- Page Range:25-32
- No. of Pages:8
- Summary/Abstract:The right to a fair trial is guaranteed by Article 45 of the Constitution of the Republic of Poland, as part of the regulations concerning the freedoms, rights and duties of the citizen. The regulation is twofold in nature and has been subject to constant changes. The placement of the discussed regulation in Chapter II of the Constitution gives it the rank of a fundamental right. The functioning of the contemporarily instituted mechanisms which guarantee the access to the right to a fair trial remains predicated to a certain extent on the experiences acquired in the process of the changes in law and society. These changes have certainly exerted a fair amount of influence on the functioning of the mechanisms granting the right to a fair trial.
- Price: 4.50 €
Prawo petycji do organów władzy publicznej oraz organizacji społecznych w związku z wykonywanymi przez nie zadaniami zleconymi z zakresu administracji publicznej
Prawo petycji do organów władzy publicznej oraz organizacji społecznych w związku z wykonywanymi przez nie zadaniami zleconymi z zakresu administracji publicznej
(The Law of Petition to Public Authorities and Nongovernmental Organizations With Regard to the Assigned Tasks Pertaining to Public Administration)
- Author(s):Izabela Kuc
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law, Law and Transitional Justice
- Page Range:33-50
- No. of Pages:18
- Summary/Abstract:According to Article 63 of the Constitution of the Republic of Poland, everyone has the right to submit petitions, motions and complaints to public authorities and nongovernmental organizations with regard to the assigned tasks pertaining to public administration, in the interest of the public, the petitioner or another person with their permission. The procedure of examining petitions, motions and complaints is delineated in Chapter VIII of the Code of Administrative Procedure and the Act of July 11, 2014 on Petitions. The aforementioned Act on Petitions entered into force on September 6, 2015, twelve months after its publication, and it constitutes a novum in terms of the implementation of Article 63 of the Constitution. Careful consideration of the new act reveals that, as a whole, it appears to be a good solution. However, it should be also mentioned that the act is not free of shortcomings, which result in the fact that the resolutions do not always directly correspond with the actual and legal state. Thus, even though the act itself is very recent, it nonetheless requires an amendment, due to the shortcomings delineated in the present article.
- Price: 4.50 €
Przepisy o ochronie sądowej w świetle prawa konstytucyjnego
Przepisy o ochronie sądowej w świetle prawa konstytucyjnego
(Rules on Judicial Protection in the Light of the Constitutional Law)
- Author(s):Małgorzata Mędrala
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law, International Law, Human Rights and Humanitarian Law
- Page Range:51-65
- No. of Pages:15
- Summary/Abstract:The aim of the article is to discuss the topic of judicial protection in the light of the rules of the Constitution. One of the most important conditions for the existence of a democratic rule of law is the right of access to the court, while the state should protect the interests of its citizens in front of an independent authority which would act solely with accordance to the law. In the article, the author focuses on the issues of sources, properties and the character of the right of access to the court. The author stresses the fact that in interpreting domestic rules regarding judicial protection, one should take into account both international as well as community standards of the right of access to the court. Moreover, the author points out that Article 77 (2) of the Constitution of the Republic of Poland, based on a regulation of the Austrian Civil Code, is extremely important for the rules of judicial protection. Thus, the author attempts to answer the following questions: 1) Why is it impossible for Article 77 (2) to cover the same scope as Article 54 (1) of the Constitution with regard to the personal scope?; 2) Do the acts which delineate the scope of control of administrative courts complement Article 184 of the Constitution? The author starts her discussion by examining the possible limitation of the right of access to the court on the basise of Article 31 (3) of the Constitution as well as the topic of appeal procedures, to which the legislators have devoted two articles of the Constitution: Article 83, which guarantees the right to appeal the rulings of the court of the first instance, and Article 176 (1), which states that judicial proceedings are two-instance procedures.
- Price: 4.50 €
Konstytucyjne podstawy ochrony wolności do dokonania czynności notarialnej
Konstytucyjne podstawy ochrony wolności do dokonania czynności notarialnej
(Constitutional Foundations for the Protection of Freedom to Perform a Notarial Action)
- Author(s):Sławomir Piekarczyk
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law, Human Rights and Humanitarian Law
- Page Range:67-80
- No. of Pages:14
- Summary/Abstract:A man’s subjectivity, connected immanently with their inherent and inalienable dignity, constitutes the foundation for their freedoms and rights. One of such freedoms is the freedom to perform a legal action, which can be fully realized with regard to legal actions of particular importance through the use of a legally notary form, which requires the notary to perform a notarial action. This, in turn, supports the claim that the freedom to perform a notarial action is a derivative of the freedom to perform a legal action, while both of those freedoms are protected by Article 31 (1) of the Constitution of the Republic of Poland. This paper attempts to identify further constitutional basis for the freedom to perform a notarial action as well as confront them with the relevant rules of the Polish Notary Public Act and, consequently, aims to determine whether those rules comply with the constitutional standards of protection of the abovementioned freedom.
- Price: 4.50 €
Konstytucyjna pozycja Krajowej Rady Radiofonii i Telewizji a Rada Mediów Narodowych
Konstytucyjna pozycja Krajowej Rady Radiofonii i Telewizji a Rada Mediów Narodowych
(The Constitutional Status of the National Broadcasting Council Versus the National Media Council)
- Author(s):Katarzyna Todos
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:81-93
- No. of Pages:13
- Summary/Abstract:The freedom of speech constitutes a fundamental value for any democratic system, while its proper functioning can be ensured only through particular, exclusive guarantees. One of such guarantees is founded upon Article 213 (1) of the Constitution. According to that provision, the National Broadcasting Council is a guarantor of the freedom of speech and press as well as the public interest in broadcasting. Under the Act of June 22, 2016, the government established the National Media Council—the competent authority regarding the appointment and removal of the members of the authorities of public broadcasting outlets and the Polish Press Agency. Thus, the competences of the National Broadcasting Council have been ceded onto a political authority. Due to that fact, it is necessary to analyze the regulations pertaining to the National Media Council with regard to their influence on diminishing the constitutional status of the National Broadcasting Council.
- Price: 4.50 €
Ochrona praw dziecka w Konstytucji Rzeczypospolitej Polskiej
Ochrona praw dziecka w Konstytucji Rzeczypospolitej Polskiej
(Protection of Children’s Rights in the Constitution of the Republic of Poland)
- Author(s):Michalina Drózd‑Żyła, Ksenia Pilarz
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law, Human Rights and Humanitarian Law
- Page Range:97-108
- No. of Pages:12
- Summary/Abstract:A thorough analysis of children’s rights can lead to the conclusion that the status of a child should not be limited only to the directly relevant regulations. Human rights are based on the rule of subjective universalism, which means that they pertain to all subjects. It could be, then, argued that any child automatically becomes the subject of all rights and freedoms that benefit all people, while their scope, in comparison to an adult who possesses full capacity in the eyes of the law, remains temporarily restricted. Children’s rights constitute, therefore, the natural consequence of human rights. They are inherent, universal, and inalienable. No child could be, therefore, deprived of these rights, which, in turn, should be respected and obeyed by all parents, authorities, and the state itself. Even though the burden of upbringing lies on the shoulders of the parents, the state is required to enact such laws that allow the child to be fully protected, including the transference of guardianship to special authorities and institutions. That is why in Poland, apart from the institution of the Polish Ombudsman, there exists the institution of the Ombudsman for Children, who guards the rights and freedoms of children as delineates in the Constitution of the Republic of Poland, Convention on the Rights of the Child and other regulations.
- Price: 4.50 €
Prawa internautów w Konstytucji Rzeczypospolitej Polskiej
Prawa internautów w Konstytucji Rzeczypospolitej Polskiej
(The Rights of Internet Users in the Constitution of the Republic of Poland)
- Author(s):Aleksandra Kacała
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:109-119
- No. of Pages:10
- Summary/Abstract:The subject of the article constitutes an attempt at delineating the scope of protection of the constitutional rights of Internet users. The author analyzes the constitutional rights and freedoms belonging to the groups of personal rights, civil and political rights, as well as economic, social and cultural rights. Moreover, the author identifies potential sources for threats to those rights. The author shows that it is possible and justified to apply the rules of the Constitution to cyberspace. The universal character of the articles of the Constitution allows to apply those rules also in the virtual space. It is, however, a recommended course of action to further develop particular legal acts, which can be quickly amended to reflect the rapid pace of the technological progress. Moreover, there exists the necessity for the state institutions to develop technical tools which could provide increased safety in cyberspace.
- Price: 4.50 €
Kryteria uzasadniające konstytucyjną dopuszczalność ograniczenia zasady ochrony prawa własności
Kryteria uzasadniające konstytucyjną dopuszczalność ograniczenia zasady ochrony prawa własności
(Criteria for the Constitutional Acceptability of the Limitation of the Statute of the Protection of Private Property)
- Author(s):Tomasz Gruchała
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law, Human Rights and Humanitarian Law, Law on Economics
- Page Range:123-134
- No. of Pages:12
- Summary/Abstract:The article is devoted to the constitutional statute of the protection of private property. The author discusses the guarantees and limitations of the protection of private property with regard to limitations implemented in accordance with the principle of proportionality. The article centers around the question of legal acceptability of the limitation of the statute of the protection of private property, worded as follows: “such limitations […] can be instituted […] only when they are necessary in a democratic country […].” The author evaluates the practical effectiveness of the constitutional formulations designed to protect private property as well as the legal possibility of limiting that right. To that end, the author describes, organizes and analyzes the entirety of the subject matter in both domestic and international context. While characterizing the right to property, the author presents expropriation as a legal instrument designed to limit the right to property. This interpretation of the constitutional understanding of the concept of expropriation has been made on the basis of the case law, citing the rulings of the Constitutional Tribunal in that regard. In addition, the article presents the European provisions for the protection of private property, comparing Article 21 of the Constitution with Article 1 of Protocol 1 of the European Convention of Human Rights. In order to fully grasp the issue, the article presents the constitutional level of protection which finds its reflection in the Act on the Ownership of Premises.
- Price: 4.50 €
Swoboda wypowiedzi a prawo wyłączne ze znaków towarowych
Swoboda wypowiedzi a prawo wyłączne ze znaków towarowych
(Freedom of Speech and Exclusive Trademark Rights)
- Author(s):Małgorzata Jadwiszczok
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:135-143
- No. of Pages:9
- Summary/Abstract:The allegations of the infringement of exclusive trademark rights are particularly interesting in the context of the constitutional rule of the freedom of speech which takes the forms of manifestations or public campaigns. One of the key questions to answer, then, is the question whether invoking the freedom of speech excepts someone from the infringement of exclusive trademark. Depending on the specific circumstances, it would appear reasonable and justified to claim that the constitutional rule of the freedom of speech should take precedence over exclusive trademark rights.
- Price: 4.50 €
Wolność religii a moralność. Wyrok Trybunału Konstytucyjnego o uboju rytualnym w świetle ekonomicznej analizy prawa
Wolność religii a moralność. Wyrok Trybunału Konstytucyjnego o uboju rytualnym w świetle ekonomicznej analizy prawa
(Freedom of Religion and Morality. The Ruling of the Constitutional Tribunal on Ritual Slaughter in the Light of the Economic Analysis of the Law)
- Author(s):Michał Kotalczyk
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Theology and Religion
- Page Range:145-156
- No. of Pages:12
- Summary/Abstract:The Constitutional Tribunal, with its ruling dating December 10, 2014, ruled that the prohibition of ritual slaughter (which constitutes in killing a conscious animal through exsanguination) infringes on the constitutional freedom of religion. A few of the justices presented differing opinions, arguing that the prohibition is unconstitutional only with regard to the followers of Judaism and Islam. The author presents an economic analysis of the law, which is an academic discipline that studies the law with the help of the instruments of economy. On the basis of this investigation, the author analyzes the ruling by indicating the interested parties and their preferences, delineating alternative variants for the ruling and the consequences of each of the decisions for the addressees (Jews, Muslims, connoisseurs, importers and exporters, as well as animal rights activists). The analysis leads to the conclusion that that Constitutional Tribunal wrongly weighed freedom of religion against morality, since it should have only rule on the constitutionality of ritual slaughter only for the purposes of Polish Jews and Muslims.
- Price: 4.50 €
Sprostowanie orzeczenia jako jedyny przysługujący powodowi środek modyfikacji nakazu zapłaty w postępowaniu upominawczym
Sprostowanie orzeczenia jako jedyny przysługujący powodowi środek modyfikacji nakazu zapłaty w postępowaniu upominawczym
(Rectification of a Court Ruling as the Plaintiff’s Sole Measure of Modification of the Order for Payment in Writ-of-Payment Proceedings)
- Author(s):Karina Kunc‑Urbańczyk
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:157-167
- No. of Pages:11
- Summary/Abstract:The article is devoted to the issue of implementation of the constitutional right of court control in writ-of-payment proceedings. Nonetheless, the author limits her scope to the plaintiff’s side, analyzing the possible methods for verification of an order for payment issued in this procedure.The author points to a lack of specific regulations in the chapter devoted to such proceedings and analyzes the boundaries of proper application of general regulations concerning rulings to this type of a ruling, according to Article 353 of the Civil Code. At the same time, the author questions the claim that it is impossible to obtain an order for payment which would be unsatisfactory for the plaintiff, thus rejecting the fundamental argument of those scholars who deny the plaintiff the gravamen to initiate any kind of complaint proceedings. In her analysis, the author points to the most fundamental problem which makes it impossible to file any sort of complaint in the allotted time, i.e. the lack of a general rule regarding the necessity for a copy of the order for payment to be delivered to the plaintiff as well as the selective possibility to apply regulations pertaining to the delivery of decisions regarding the orders for payment. Moreover, the author engages in a discussion with those opinions within the doctrine which mandate the obligatory delivery of any kind of a court ruling issued in closed court sessions; she remains critical of the rulings and scholarly articles cited to justify their opinion, arguing that opinions dating to the beginning of the 20th century have become obsolete in relation to the current legislation.Eventually, the author comes to the conclusion that the plaintiff’s only measure of modification of the order for payment is a motion for a rectification of a court ruling. At the same time, she delineates the boundaries of such use of this method in a very broad manner, allowing for the correction of factual errors, including first and foremost those pertaining to the precise sum awarded to the plaintiff by the court. The author also considers the negative consequences for the interests of the defendant and demonstrates that the remaining proceeding measures which exist in writ-of-payment proceedings adequately protect those interests. The validity of those statements is substantiated with the use of appropriate case law. The author concludes with a statement that only the broad interpretation of Article 350 (1) of the Civil Code, in relation to Article 353 of the Civil Code, guarantees the preservation of the constitutional right of the plaintiff to initiate appropriate control over the ruling and to be granted a satisfactory ruling, while remaining respectful of the rights of the defendant.
- Price: 4.50 €
Odpowiedzialność odszkodowawcza Skarbu Państwa za niezgodne z prawem zaniechania w procedurze wyboru dyrektora szkoły
Odpowiedzialność odszkodowawcza Skarbu Państwa za niezgodne z prawem zaniechania w procedurze wyboru dyrektora szkoły
(The State Treasure’s Liability for Damages Regarding Unlawful Acts of Omission in the Process of Appointment of a School Principal)
- Author(s):Maciej Przysucha
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:169-183
- No. of Pages:15
- Summary/Abstract:The following article begins with an overview of the international legal regulations and their influence on the domestic law. For that reason, the author discusses the regulations regarding the right to due process as well as the right to a fair and legal trial and the right to proper compensation for the sustained injury stemming from the lawlessness of legislation with regard to the failure in fulfilling the duties of any given authority. The analysis is conducted on the basis of the constitutional regulations, the Civil Code and the regulations of the Teacher’s Charter regarding the appointment of a school principal. The analysis focuses on the issue of the procedure of the appointment of a school principal, conducted in accordance with the Teacher’s Charter, as well as the potential claims of the injured party on account of acts of omission on the part of the authorities responsible for partial evaluation in the appointment process. Moreover, the article aims to demonstrate excessive formalism regarding the act of seeking redress for unlawful activity or acts of omission on the part of the appointed authorities. The author intended to show that the entire spectrum of rights deriving from conventional and constitutional norms, which guarantee the right to a due process, understood as the right to obtaining a binding ruling with regard to the subject’s rights, is, in practice, extremely difficult to enforce, which can be substantiated by the analyzed example of the procedure of appointing a school principal according to the regulations of the Teacher’s Charter.
- Price: 4.50 €
Obligatoryjne postępowanie ugodowe w ustawie Prawo geologiczne i górnicze a prawo do sądu
Obligatoryjne postępowanie ugodowe w ustawie Prawo geologiczne i górnicze a prawo do sądu
(Obligatory Arbitration Procedures in the Act on Geological and Mining Law Versus the Right to a Due Process)
- Author(s):Magdalena Wrońska
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:185-195
- No. of Pages:11
- Summary/Abstract:The right to a due process remains one of the most fundamental human rights, regulated in legislature at both the international and domestic levels. In Polish legislature, the right to a due process is guaranteed at the constitutional level. Despite its importance, the right to a due process is not absolute and can be restricted. The aim of the following article is to discuss the issues of restrictions regarding the right to a due process resulting from the Act on Geological and Mining Law. This act introduces the necessity to utilize obligatory arbitration procedures. Only after the arbitration procedures have been exhausted can the plaintiff utilize court proceedings in cases regarding reparations resulting from injury stemming from mining operations. In the course of the discussion of the prevailing regulations concerning the modifications of the procedural aspect of seeking redress leads to the conclusion that the institution of obligatory arbitration procedures requires amendment. Moreover, the author presents several remarks de lege ferenda regarding the trajectory of the proposed changes in the regulations regarding obligatory prejudicial proceedings.
- Price: 4.50 €
Zasiedzenie służebności przesyłu a konstytucyjne podstawy ochrony prawa własności
Zasiedzenie służebności przesyłu a konstytucyjne podstawy ochrony prawa własności
(Usucaption of Transmission Service Easement and the Constitutional Foundations of the Protection of the Right to Property)
- Author(s):Agnieszka Wróbel
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:197-208
- No. of Pages:12
- Summary/Abstract:According to the intention of the legislature, the purpose of usucaption is the removal of discrepancies between the legal status (property) and the factual status (ownership). In the context of transmission equipment, the initial purchase plays a substantial role, especially in the context of network elements installed on properties devoid of clear legal ownership. It should be, however, noted that there is no regulation in the Civil Code which would directly permit it. The necessity of consulting regulations pertaining to land easement invites questions regarding the compliance of such a method of regulation with the Constitution. The following article consists of five parts further divided into shorter sections. In the first part, the author discusses the research topic and provides the history of transmission service easement in Polish legislature. In the second part, the author moves on to analyze the nature of the right to property and the regulations designed to protect it. In the third part, the author introduces systemic guarantees of protection of the right to property, including, first and foremost the democratic rule of law and the connected principles of legal certainty and non-retroactivity. The fourth part of the article regards the issue of property understood as public rights and the possibility of restricting its scope. In the last part, the author attempts to evaluate the legal regulations pertaining to transmission service easement.
- Price: 4.50 €
Ingerencja państwa w wolność działalności gospodarczej w świetle Konstytucji Rzeczypospolitej Polskiej na przykładzie koncesji
Ingerencja państwa w wolność działalności gospodarczej w świetle Konstytucji Rzeczypospolitej Polskiej na przykładzie koncesji
(Government Interference in the Activities of the Economic Freedom of the Constitution of the Republic of Poland on the Example of Concessions)
- Author(s):Kinga Karaś
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:211-219
- No. of Pages:9
- Summary/Abstract:The article discusses instances of government interference in the freedom of economic activity on the example of concession. This analysis of the issue takes into account the regulations of the Constitution of the Republic of Poland which constrain the economic activity, as well as their validity. Moreover, the article compares the institution of concession with the French legal system and presents the principles of granting concession rights.
- Price: 4.50 €
Nullum tributum sine lege — konstytucyjna ochrona praw podatnika na przykładzie opodatkowania spółki komandytowo-akcyjnej
Nullum tributum sine lege — konstytucyjna ochrona praw podatnika na przykładzie opodatkowania spółki komandytowo-akcyjnej
(Nullum tributum sine lege – Constitutional Protection of the Taxpayer Rights on the Example of Taxation of a Limited Joint-Stock Partnership)
- Author(s):Łukasz Samojłowicz
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:221-232
- No. of Pages:12
- Summary/Abstract:The following article discusses the issue of constitutional sources of protection of the taxpayer rights in Polish legislature. The analysis focuses first and foremost on Article 84 of the Constitution of the Republic of Poland, which institutes the rule of general taxation, as well as Article 271 of the Constitution of Poland, which regulates the rule of statutory exclusivity in levy law. The article has been divided into two parts. The first part, taking into account the rule nullum tributum sine lege as well as the case law and doctrine of tax law, discusses the constitutional protection of the taxpayer rights at the level of legislation and application of the law. The second part of the article, in turn, presents the practical implementation of the abovementioned instruments, on the example of taxation of a limited joint-stock partnership, utilized commonly by the taxpayers (until October 2015) as a method of tax optimization. The author concludes that when it comes to tax law, the Constitution of the Republic of Poland protects the citizen both at the level of legislation and at the level of application. Nonetheless, the case study of the limited joint-stock partnership shows that these guarantees are often not respected by the public authorities.
- Price: 4.50 €
Tryb ścigania przestępstwa zgwałcenia a ochrona prawa do prywatności
Tryb ścigania przestępstwa zgwałcenia a ochrona prawa do prywatności
(The Procedure of Prosecution Ex Officio in the Case of Rape and the Right to Privacy)
- Author(s):Sandra Gawron
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law
- Page Range:235-247
- No. of Pages:13
- Summary/Abstract:The following article is devoted to the issue of the changes in the procedure of prosecution ex officio in the case of rape, in the context of protection of the right to privacy. As a point of departure, the author discusses the procedural consequences of adopting unconditional procedure of prosecution of this crime. Next, the author proceeds to analysis of both proponents and opponents of the amendment, in the context of its influence on the respect for the victim’s right to privacy. Moreover, the article evaluates the amendment on the basis of the conflict of constitutional values. This analysis, in turn, leads to the conclusion that prosecution ex officio, which prioritizes the prosecution of the perpetrator of rape, to the exclusion of the interests of the victim, constitutes a proper expression of penal repression, especially given the fact that apart from the public order, such a procedure protects its individual interests, as well as the interests of the potential victims.
- Price: 4.50 €
Prawo do rzetelnego procesu a dopuszczalność dowodu uzyskanego z naruszeniem prawa w postępowaniu karnym
Prawo do rzetelnego procesu a dopuszczalność dowodu uzyskanego z naruszeniem prawa w postępowaniu karnym
(The Right to a Fair and Public Trial and the Admissibility of Evidence Obtained Unlawfully in Criminal Proceedings)
- Author(s):Michał Prusek
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:249-260
- No. of Pages:12
- Summary/Abstract:The following article constitutes an evaluation of Article 168a of the Code of Criminal Procedure after the amendment of March 11, 2016, in the context of the standards of a fair and public trial, formulated according to the regulations of the Constitution of the Republic of Poland and the European Convention on Human Rights, including the case law of the Supreme Court and the Constitutional Tribunal. Taking into account the risk of misuse resulting from the current formulation of the analyzed regulation, the author regards courts as the guarantors of the preservation of the standards of a fair and public trial regarding the admissibility of evidence obtained unlawfully in criminal proceedings.
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Realizacja założeń zawartych w art. 42 ust. 2 i art. 45 ust. 1 Konstytucji Rzeczypospolitej Polskiej w postępowaniu w stosunku do nieobecnych na gruncie Kodeksu karnego skarbowego
Realizacja założeń zawartych w art. 42 ust. 2 i art. 45 ust. 1 Konstytucji Rzeczypospolitej Polskiej w postępowaniu w stosunku do nieobecnych na gruncie Kodeksu karnego skarbowego
(Implementation of the Objectives Set Out in Article 42 (2) and Article 45 (1) of the Polish Constitution in the Proceedings in Relation to the Absent Under the Fiscal Penal Code)
- Author(s):Mateusz Świercz
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:261-272
- No. of Pages:12
- Summary/Abstract:The article analyses the situation of the individual against whom the action is being taken in relation to the absent under the Penal and Fiscal Code. The analysis was conducted based on the historical view of laws concerning criminal liability and the right to a fair and public trial, included in the Constitutions of the Republic of Poland, as well as the interpretation of the norms of the Code of Criminal Procedure, the Penal and Fiscal Code, and the case law of the Supreme Court. The proceeding in absentia is a form of linking the existing rules of criminal procedure with the need to protect the financial interest of the state, which is threatened by indictable offenses, i.e. tax crimes and offenses, with little limitation of the procedural rights of the individual. The regulations contained in the proceedings in relation to the absent do not contradict either the principle of a democratic rule of law or the constitutional rights included in articles 42 and 45 of the Constitution of the Republic of Poland of 2 April 1997.
- Price: 4.50 €
Bazy danych DNA a konstytucyjna ochrona praw człowieka
Bazy danych DNA a konstytucyjna ochrona praw człowieka
(DNA Databases and the Constitutional Protection of Human Rights)
- Author(s):Katarzyna Wałachowska
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:273-284
- No. of Pages:12
- Summary/Abstract:DNA databases constitute a detection method for the law enforcement. The purpose of their existence is to make it possible for law enforcement to find the perpetrator. Moreover, they perform preventive and economic functions. However, the creation of such DNA databases can lead to suspected abuses of citizen rights, which is why it is paramount to take into account the social and political aspects of their creation.According to domestic law, genetic data is defined as the data enabling the identification ofa particular person who is subject to protection of personal data. In Poland, such genetic data is collected by the Central Forensic Laboratory of the Police. Those databases contain information regarding particular categories of citizens.In order to obtain genetic material for forensic analysis, it is necessary to infringe upon thebodily integrity of a person. The notion of bodily integrity constitutes a fundamental value forthe standards of protection of the rights of an individual. The procurement of genetic materialdovetails with the constitutional right to privacy, which assumes the supremacy of the interestof the individual over the public interest or the interest of other subjects.In the light of the constitutional protection of the rights and freedoms of the individualin the context of obtaining genetic material and their use in the creation of DNA databases, Article 41, Article 47 and Article 51 of the Constitution of the Republic of Poland rise to particular prominence in this regard. Considering that the state encroaches upon those rights and freedoms, it should therefore guarantee appropriate regulations which allow to effectively protect an interested party if any infringement of their rights by other natural or legal persons as well as state authorities occurred. Moreover, individuals who are disposers of any genetic information should be obligated by the rules of their profession as well as the regulations of domestic law to counteract any attempts at misuse of sensitive information.
- Price: 4.50 €
Klauzula generalna — stan wyższej konieczności
Klauzula generalna — stan wyższej konieczności
(General Clause — A State of Necessity)
- Author(s):Adrian Wylężek
- Language:Polish
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:285-297
- No. of Pages:13
- Summary/Abstract:The institution of a state of necessity is included in Article 26 of the Criminal Code as a general clause, i.e. a regulation referring to extralegal assessments. It is a broad regulationwhich remains rarely used in the judicial practice. The following article constitutes an attemptat answering the question whether the scope of this regulation delineated by the Criminal Code are sufficient for achieving the aims of this regulation. On the one hand, it would appear that the interpretation of the regulation expressed in Article 26 (2) of the Criminal Code is too broad, since it allows to sacrifice a greater good without introducing additional conditions other than those included in Article 26 (1) of the Criminal Code. On the other hand, however, when it comes to the guarantor mentioned in Article 26 (4) of the Criminal Code, it appears to be too narrow, since it does not take into account the abnormal motivational situation of the guarantor if the incompatible goods are of the same importance, which the author explains on the example of terrorism, which has moved out of the realm of abstraction in the present times.
- Price: 4.50 €
