Series:Prawo

Private and public aspects in the civil procedure in the light of works on the codification in Poland (1918–1964). A legal-historical study

Elementy prywatne i publiczne w procesie cywilnym w świetle prac kodyfikacyjnych w Polsce (1918–1964). Studium historycznoprawne

Author(s): Anna Stawarska-Rippel / Language(s): Polish

Keywords: civil procedure; Second Polish Republic; Polish People’s Republic; the evolution of the civil procedure; comparative; Soviet law; codification; private aspects; public aspects; Codification Committee

The past century in Poland had witnessed significant regime changes which resulted in the subsequent codification, decodification and recodification of the law, which, as far as the civil procedure is concerned – following substantial changes resulting from the third political transformation in the 20th century – has remained in effect until the present day. The following monograph is devoted to the history of codification of the Polish civil procedure, mapped against the backdrop of the evolution of this particular branch of law in Europe and the subsequent “revolution” in Poland, following the Second World War, taking into account its patterns as well as its reach in the remaining countries governed by people’s democracy. The author considers the topic from the perspective of the private and public aspects of the civil procedure, which have a profound impact on the shape and content of the Code of Civil Procedure. The monograph touches upon the works on the codification that were attempted twice in the history of the Polish civil procedure and discusses the model of civil litigation with the focus on the aspect of delineating the relationship between the individual and the state. // The two main chapters of the monograph have been preceded by comprehensive introductions, which provide the legal-historical, comparative, and theoretical background for the primary argument. In those parts of the monograph, the author discusses the evolution of the civil procedure in Western Europe in the 19th and 20th century, the specifics of the peculiar socialist civil procedure, as well as the means of recourse against judgments in the civil proceedings in the context of the interests of both the state and the individual. // In the discussion concerning the processes undertaken even before the creation of the Codification Committee in 1919, the author conducts a comparative legal analysis of the problem of the principal rules of the civil procedure as well as minute details which have fundamental bearing on the model of the Code of Civil Procedure. The following argument focuses on the efforts of the Codification Committee, unprecedented both in Europe and the entire world. At that time, the primary goal of the government was integration of the Polish lands, divided by partitions and restoration of the Polish sovereignty. As a result of the efforts of the Codification Committee of the Second Polish Republic, the first Polish Code of Civil Procedure was created (1930); this original work, the fruit of long-term efforts of the most distinguished Polish legal experts, was, in fact, an in-depth comparative study. The interwar codifiers analysed not only the civil procedures in force in Poland: Russian (1864), German (1877), Austrian (1895) and Hungarian (1911), but also the most significant civil procedures in Europe, including the civil procedure of the Swiss cantons of Zurich (1913) and Bern (1918), as well as the civil procedure of Italy (1865), Greece (1834) and, in part, England (1873–1873), despite its relative lack of significance due to the fundamental differences between the common law and the continental law. The first drafts of Code of the Civil Procedure were distinctive due to their attempts to include a fair number of the public aspects in the civil proceedings, which was also characteristic of the evolution of the civil procedure in Europe at that time and was intended as a remedy for the shortcomings of the civil jurisdiction. However, the final draft of the Code did not include several pioneering, innovative concepts which concerned preparatory proceedings, abuse of rules of procedure clause, obligation of truthfulness, the discretional power of the judge, evidence proceedings, as well as the construction of an obligatory replay to the statement of claim and default judgment. Several other significant changes, which severely misrepresented the initial intentions of the codifiers, were implemented at the governmental stage of development. The omission of the proposed institutions was caused by the desire to preserve the golden mean, which was modelled after the Austrian civil procedure to an extent. On the other hand, the governmental changes were characterised by the urge to make the first Polish Code of Civil Procedure more similar to the Russian legislation, which resulted from the pressure and protests of the lawyers coming from the former Congress Poland. // The necessity of making the civil procedure more flexible as well as making their forms more simple and the amount of regulation more reasonable, along with various other problems discussed within the framework of the civil procedural law by the Codification Committee of the Second Polish Republic, is discussed until this day, in the context of numerous changes following the political transformation and the necessity of drafting a new – third – Code of Civil Procedure. // The preservation of formal but at the same time critical and selective legal continuity in the first years of the Polish People’s Republic resulted in the necessity of revision of the inherited law and restructuring of its tenets to reflect the socialist agenda. Implementation of the Soviet ideas of difference and protection of property as well as planned economy resulted in weakening of the civil procedural law and the increased importance of the administrative law. In this context, the monograph touches upon the problems of that time, concerning restrictions on the civil procedure (non-litigious proceedings, state arbitration). The transformation of the political and legal system in countries governed by people’s democracy resulted in significant and forced unification of adjective law. This involuntary unification was conducted in a very short time. The situation was similar in the USSR, where, on the basis of the authority of the Soviet Union with regard to establishing the foundations of the judicial system and legal proceedings, as well as the civil and penal law–introduced by the resolution of the Supreme Soviet of the Soviet Union of February 11th, 1957–the law was unified in all the federal republics, according to the USSR legislation. // The circumstances surrounding the drafting of the Polish Act of July 20th, 1950 and its content, which constituted, in fact, decodification of the civil procedure, have been discussed in comparison with the changes taking place in the civil procedure in Czechoslovakia, Bulgaria and Hungary at that time. The draft of the new code proposed by the Department of Justice (1955) further eroded the first Polish Code of Civil Procedure; however, ultimately, the project was not implemented. // Following the establishment of the Codification Committee in 1956, the codification efforts were characterised by relative leniency caused by comparative liberalisation connected with the change in the political climate (1956), and strictly substantial discussion based on comparative analysis that transcended the boundaries of the socialist law and thoroughly discussed the essence of the civil procedure in the light of its development. The effect of those proceedings was a satisfactory first draft of the new code (1960), which had hallmarks of evolution. This draft was later subject to changes in the second draft and later in the governmental and parliamentary stages of the codification work, until finally the second Polish Code of Civil Procedure (1964) was passed, in accordance with the political principles of the time. // The chapter devoted to the private and public aspects in the system of recourse against judgments, the author discusses the problem of the character of the appeal and the character of the third instance made by the Codification Committee of the Second Polish Republic. Next, in the context of the Soviet model and the new legal regulations in Czechoslovakia, Hungary, Bulgaria and East Germany, the author discusses the issues of the appeal and the extraordinary appeal against a final judgment as well as the possibility of challenging judgments in force by the state authority in the Polish People’s Republic starting with the amendment of July 20th, 1950, through the drafts of the Code of Civil Procedure, their critique and implemented changes, to the passing of the Code (1964). // The history of codification of the civil procedure in the Second Polish Republic and Polish People’s Republic, regardless of the motivation, illustrates the phenomenon in which the final draft of the act differs significantly–usually for the worse–from the initial premises and conceptions established by the experts who worked on the first draft for a prolonged period of time.

The Good of the Spouses. Identification of the ad validitatem Element in the Jurisprudence of the Roman Rota

Dobro małżonków. Identyfikacja elementu ad validitatem w orzecznictwie Roty Rzymskiej

Author(s): Andrzej Pastwa / Language(s): Polish

Keywords: bonum coniugum; hermeneutics; canonic law; marriage; The Second Vatican Council

“The clarification of […] the bonum coniugum exclusion hypotheses must be carefully studied by the jurisprudence of the Roman Rota” said Benedict XVI in 2011, referring indirectly to the diagnosis of the dean of the Roman Rota, Mario Francesco Pompedda, who stated in 1998 that the legal content of the clause of “the good of the spouses” constitutes one of the most crucial hermeneutic issues, which calls for more in-depth research. Now more than ever, the Pope’s memento appears akin to a compass designed to guide the service of the Apostolic Tribunal, one which makes it possible to determine clear judicial standards in the identification of the said element ad validitatem. Service, it is worth to add, which requires integrity and professionalism since, when it comes to the fundamental issues included in the sphere designated by the 2013 Rota allocution “Marriage and the relationship between faith and the natural order” (which, predictably, is where Benedict XVI situates the issue of “clarifying the essential element of bonum coniugum”), the words of John Paul II, who said that “legal hermeneutics requires […] a vision which encompasses the whole body of the Church’s teachings,” appear to become even more significant. // In such an obvious way John Paul II and Benedict XVI — titans of spirit and intellect, caryphaeuses of humanism, measured with a simultaneous engagement in fides et ratio—refer to the potential of science. It is, thus, difficult to ignore the invitation expressed in those words—which also highlights the role of the creators of the Rota jurisprudence, “the exemplary juridical wisdom”—for the canon law experts searching for the truth de matrimonio in theoretical research. Indeed, the papal thought—bolstered by the severity of the problem, i.e. the risk of proliferation of erroneous interpretations of ordinato ad bonum coniugum (“the danger that threatens the correct application of the norms on incapacity [and exclusions], […] and to transform the simple shortcomings of the spouses in their conjugal existence into impediment”), particularly in the lower tribunals—calls for serious consideration. This, in turn, constitutes an important challenge for the scholars, as well as the judges of the Roman Rota, to transform (in the spirit of paradigmatic harmonization vetera et nova) personalistic ideas, grounded in tradition and conciliar magisterium, into legal praxis. Therefore, the following attempt of a scholarly approach to the title identification of the ad validitatem element in the Roman Rota jurisprudence is predominantly inscribed into the doctrinal and judicial context delineated above. // The methodical ordering of the variety of judicial stances, valorizing the bonum coniugum formula, has been facilitated by the process of distinguishing, within the broad research area, particular premises: genetic and historical as well as epistemological and methodological, which resulted in the formulation of research hypotheses, formulated in the conclusions of the first part of the monograph and then verified (it could be said: successfully) in the following parts. // Regarding the hypotheses, it should be noted that there exists a documented fact (included in hypothesis II-2), which proves that a special Papal magisterium, included in his speeches addressed to the Roman Rota, authorizes an optimal methodology of the judicial approach towards essentialia in matrimonio, which consists in leading the discourse along the axis: anthropological realism—judicial realism. Search query of all published (as well as unpublished) sentences pronounced by the Rota, which highlight the bonum coniugum formula to a greater or lesser extent, consciously directed toward the analysis of the two aforementioned surfaces: anthropological and stricte legal, confirmed the validity of that perspective. Thus, it demonstrated that a sine qua non condition for an appropriate selection (according to hypothesis II-3) of consistent jurisprudence with regard to bonum coniugum—both in “non-autonomous” as well as “autonomous” configurations—is the affirmation of the paradigm of the “realism” of the new matrimonial doctrine. // The conclusions, presented as a summarizing comparison between the paradigmatic depictions of bonum coniugum: (I) depictions which appear to have been an instrument of the past (the good of the spouses understood exclusively in nonautonomous configurations); (II) depictions which are open to further developments (the good of the spouses understood in autonomous configurations)—must remain open to discussion, for a lack of a better option. This particular scholarly approach: that of a constant search for the “signs of times,” is grounded in the teachings of Benedict XVI (see: hypothesis II-1) when he says, “Cases in which there is failure to recognize the other as spouse or in which the essential ordering of the community of conjugal life to the good of the other is excluded are [today – A.P.] quite exceptional. The clarification of these hypotheses of exclusion of the bonum coniugum must be attentively assessed by the jurisprudence of the Roman Rota.”

European Union’s development cooperation policy. Legal perspective

Unijna polityka współpracy na rzecz rozwoju. Zagadnienia prawne

Author(s): Katarzyna Cichos / Language(s): Polish

Keywords: European Union; cooperation policy; development; EU law; poverty; elimination of poverty

The aim of the research was to answer the question if (and how) legal regulations (including the aims, principles, instruments, mechanisms and procedures) of EU policy on development cooperation allow implementation of the objective of development cooperation referred to Article 3 and 21 Treaty of European Union and article 208 Treaty of Functioning of the European Union, which is the elimination of poverty and an attempt to identify improper regulations that prevent the effective implementation of the assistance and the identification of new, relevant solutions. // As the result of the research it has been proved that the quality of aid depends not only on the validity of the economic concept but also on the quality and transparency of the law regulating the operation of organizations which provide assistance. Chaotic and not complementary regulation causes bad quality of implementation of the set objectives and tasks. // As part of the work were discussed such research areas as: scope and subjective of the EU policy on development cooperation, the sources of law and the hierarchy of legislation, the competence of the institutions which implement EU development policy, areas of action, which includes the EU’s development policy, efficiency and effectiveness of development cooperation’s control mechanisms.

The Constitutional System of the Republic of Kosovo

Ustrój konstytucyjny Republiki Kosowa

Author(s): Robert Rajczyk / Language(s): Polish

Keywords: constitutional system; Kosovo; the Republic of Kosovo; normative acts; constitutional bodies; the Republic of Serbia

The publication presents the constitutional system of the Republic of Kosovo. Legal status of normative acts, which are the basis of this study, includes the December 2015. The publication used primarily applicable legal acts adopted by the constitutional authorities of the Republic of Kosovo in Albanian and English, as well as the normative acts of the Republic of Serbia in the Serbian language. The official websites of institutions of the Republic of Kosovo and the Republic of Serbia as well as international organizations and their representatives operating on the basis of Security Council Resolution 1244 in 1999 are also used as a source of information. // The references consist of the issues of geopolitics, history and political and social life of the Balkans. Not stating the words: independence or sovereignty in the documents of international law makes the issue of a unilateral declaration of independence by the Republic of Kosovo a keynote issue in political sciences research. // The monograph is intended for students of politics, journalists and the readers interested in the subject of complicated ethnic relations and political development in the Balkans region. There is in-depth analysis concerning the duties and obligation of the Kosovo’s authorities and the functioning of the Republic of Kosovo.

Wincentego Skrzetuski: "Political Law of the Polish Nation"

Wincentego Skrzetuskiego „Prawo polityczne narodu polskiego”

Author(s): Wojciech Organiściak / Language(s): Polish

Keywords: Wincenty Skrzetuski; the system of Poland; Polish law; political system; The Political Law of the Polish People

The Polish Piarist, Wincenty Skrzetuski, who lived in the years 1745–1791, was a notable historian, lawyer, political writer, teacher and translator of the period of the reign of Stanisław August Poniatowski. His more important works include Mowy o głownieyszych materyach politycznych (Speeches about the more important political issues) and the historiesof Sweden and ancient Greece. In his works Skrzetuski repeatedly made reference to moral and ethical problems, setting himself the goal of educating a good citizen who combined a Christian worldview, humanitarian, Enlightenment ideas, modern concepts associated with the natural law as well as ethics based on rational foundations. Skrzetuski remained under the pervasive influence of the republican ideology of Mably and Rousseau as well as other Enlightenment thinkers whose most prominent representatives included Montesquieu and Beccaria. The most important work of Skrzetuski which was published in the years 1782–1784, was Prawo polityczne narodu polskiego (The political law of the Polish people). The Piarist popularised the image of the political system and the law of the Polish Republic which wasvalid before the Four-Year Sejm by advocating the necessity of further political, social andeconomic reforms in the state of the noblemen. Skrzetuski partially based his work on theerudite work by Gottfried Lengnich entitled Ius publicum Regni Poloniae, which he enhancedby including new solutions introduced into the political system in the Polish Republic after1764. The analysis of the Political law of the Polish people that was conducted in the substantial dissertation enables us to claim that this was a sound compendium of knowledge about the political system of the Polish Republic of noblemen which in some of its parts had the afeatures of a political treatise. In the textbook which was used in the schools which were subject to the Commission ofNational Education Skrzetuski presented a wide range of issues which referred both to the political, social and economic system as well as to the court system. Similarly as for Montesquieu, for the Polish Piarist political law was that branch of law which regulated the system of governance. According to Skrzetuski, the political law consisted in the following: the way of exercising legislative, executive and judicial power, public sessions and the laws and duties of all estates, the functioning of various organs and offices, religion, the treasury, the army, trade, the people as well as the treatises and agreements with other countries.The analysis of the Political law of the Polish people that was conducted in the dissertationenables us to claim that the Piarist presented his own opinions and postulates of reform, which frequently were a continuation of the opinions and thoughts of the political writers who preceded him, including the prominent figure of Stanisław Konarski. An analysis of the opinions of Skrzetuski enables us to grant him a prominent place among the Polish politicalwriters of the period of the reign of Stanisław August Poniatowski, especially those whowrote before the Great Sejm – the supporters and even the proponents of certain reforms.

Trust and other fiduciary relationships in comparative and private international law

Trust i inne stosunki powiernicze w prawie porównawczym i prawie prywatnym międzynarodowym

Author(s): Maciej Zachariasiewicz / Language(s): Polish

Keywords: trust; fiduciary relationships; private international law; Law applicable to the trust

The book is dedicated to the Anglo-American notion of a trust, as well as to other fiduciary instruments which are used on the European continent and in Poland. Trusts, extensively employed in the legal practice of the common law systems, nowadays often interact with the legal territories of the countries where such devices are unknown. Moreover, Polish businesses and individuals encounter trusts and various trust-like devices when undertaking activities abroad. In such transnational situations, trusts present a basic difficulty for the authorities and legal practitioners relating to the determination of the applicable law. Using experiences from foreign literature and judicature, the author formulates propositions for solving practical conflict-oflaws problems occurring in cross-border trust situations. These propositions will assist courts, notaries and legal practitioners in dealing with trusts, being unknown in Polish legal system.The conflict-of-laws analysis is preceded by an extensive comparative study of the trusts and other fiduciary relationships. The investigation is carried out in three dimensions: historical, functional and structural. With a view of determining the conflictof-laws rules to be applied in trust-like situations, the author employs in particular the functional method, analysing the socio-economic goals of trusts and searching for their distinctive features, so in order to indicate the equivalent institutions known in the continental legal systems. The work encompasses a broad investigation into the practice of courts in various European countries dealing with the cross-border cases involving trusts. These experiences are then used in order to offer solutions under the Polish private international law.The book examines also the Hague Convention on the Law Applicable to Trusts and on their Recognition of 1985 and postulates that Poland should ratify the Convention.

Confidential information in a public company

Informacje poufne w spółce publicznej

Author(s): Anna Lichosik / Language(s): Polish

Keywords: Confidential information; public company; insider trading; insider

The monograph is a comprehensive treatment of the occurrence of confidential information in a public company. The work determines in a novel way the range of the legal definition of confidential information by means of the study of the significance of its constitutive features and by means of the determination of the referents of their content.The categories of subjects which may possess such information were isolated and systematically presented in an authorial way. Moreover, the situation in which illegal use and divulgation of confidential information as well as offering unlawful recommendations regarding specific transactions on financial instruments were analysed. The work presents in a detailed manner the information-related obligations of public companies associated with confidential information, including the range, mode and the means of using such information. The author also devoted her attention to the obligations of other subjects which are obliged to notify the organs of public administration about the particular events associated with confidential information. The final part of the work specifies the framework of the administrative and civil responsibility/accountability of the subjects which violate the legal regulations concerning confidential information.

Public procurement procedures in projects co-financed by Structural Funds

Procedury zamówień publicznych w projektach współfinansowanych ze środków funduszy strukturalnych

Author(s): Agnieszka Piwowarczyk / Language(s): Polish

Keywords: Public procurement in EU projects

The effective use of European funds depends on abiding by established procedures. In the case of units obliged to follow public procurement regulations, the fact that the laws are respected is of fundamental importance to the absorption of EU funds.The beneficiaries of EU funds are obliged to follow special rules concerning their use, as specified in the agreement for co-financing the project and in the programme guidelines, but also in other documents which are binding for the implementation of EU operational programmes. These rules are very often stated in a way which lacks precision or change during the realisation of the project; they can also differ within particular operational programmes. This book presents various financial perspectives in the context of public procurement procedures which are binding for beneficiaries. Moreover, it discusses the irregularities observed in the co-financed procurement procedures as well as the organs and institutions that are entitled to supervise procurement records. It offers a comprehensive overview of the area and related problems for public finance sector units which award public procurement contracts, in particular those co-financed by EU funds.

Constitutional foundations of the protection of human rights

Konstytucyjne podstawy ochrony praw człowieka

Author(s): / Language(s): Polish

Keywords: the constitution; human rights; protection; Constitutional Tribunal

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.

A civil servant as the guardian of complying with statutory obligations towards animals

Urzędnik jako strażnik realizacji ustawowych obowiązków wobec zwierząt

Author(s): / Language(s): Polish

Keywords: animal rights; public administration; animal protection

The book contains articles written on the basis of the papers presented at the national conference entitled A civil servant as the guardian of complying with statutory obligations towards animals (Katowice, September 26, 2014), addressed to the public service workers and NGO activists. The authors would like the book to provide help in solving everyday legal problems. The organizers of the conference and the authors of some part of the papers are students who have been active members of the Scientific Society for Animal Rights and the Animal Rights Section of the Student Legal Counselling Centre. These two pioneering projects have been carried out since 2013 at the Faculty of Law and Administration, the University of Silesia in Katowice. The members of the Society are active both at the stage of creation and at the stage of application of the law. They analyze current legal regulations and address issues of animal rights – both noticed or unnoticed by the legislator. They attempt to propose and justify a favourable for animals interpretation of various regulations of Polish law, and seek out the possibility to correct and simplify legal procedures. Each year the society carries out educational programmes aimed at promoting the protection of animal rights. The following are among numerous undertaken actions: a training conference for the volunteers of NGOs, a course in humanitarian protection of animal for lawyers and legal apprentices, a course for the civil servants of the department for combating economic crime of the Regional Police Headquarters in Katowice and municipal and district police stations of the garrison of Silesia, as well as several national scientific conferences and seminars. Within the framework of the Animal Rights Section of the Student Legal Counselling Centre, the students provide free legal assistance to NGOs, and – extemporaneously – to other organizations and individuals. The experience gained by the students through their participation in the work of the Society or the Section has become a canvas for each part of this collective work. The topics of the chapters – selected by the authors themselves – focus on the analysis of the legal problems posed by the practical application of regulations concerning widely understood animal rights in the sphere of the public service.The book is addressed not only to the public service officers but also to the members and employees of non-governmental organizations whose statutory objective consists in the protection of animals.

Boundaries of the Freedom of Expression in the Case of an Appraiser

Granice wolności wypowiedzi rzeczoznawcy majątkowego

Author(s): Artur Biłgorajski / Language(s): Polish

Keywords: appraiser; appraisal report; freedom of expression

The aim of the following monograph is to thoroughly analyze and assess the titularboundaries of the freedom of expression in the case of an appraiser, as delineated by the law, professional standards as well as rules of professional ethics. The monograph comprises of six chapters, each of which is devoted to a particular issue: the origins of the profession of an appraiser, its legal foundations, the character of the profession, the freedom of expression and its importance for the profession of an appraiser, the boundaries of that freedom of expression, as well as the consequences of crossing the boundaries of the freedom of expression by an appraiser. The monograph ends with the conclusions, which present an attempt at consolidating and further investigating the issues debated in earlier chapters.The following monograph is directed not only at appraisers, but at all people who, due to their profession, come into contact with the results of the work of the representativesof that profession, such as judges, lawyers or solicitors.

Military criminal procedure in the Second Polish Republic (1918–1939)

Wojskowe postępowanie karne w II Rzeczypospolitej (1918–1939)

Author(s): Tomasz Szczygieł / Language(s): Polish

Keywords: Military criminal procedure; Second Polish Republic; military law

The book is concerned with military criminal procedural law applied in the military judiciary of the inter-war period (1918–1939). This problem has so far been underexplored, with the evolution of this branch of law after the year 1918 forming a major research gap.Apart from the institutions unique to this branch of law, the monograph discusses theorganisation of the court-martial system of this time and the origins of the major sources of itslaw. It focuses on the specific relations between participants in the military criminal procedure of this period, relations that determined its unique character. It presents the evolution of particular military legal institutions – also in the comparative and historical perspective – and the influence of general criminal procedural law of the time on their development. The book takes up the timeless problem of the distinctiveness of military law and the military judiciary on the one hand, and the general system of law on the other. It addresses questions concerning the character of the court-martial system, its procedural law and its possible future. The volume presents the whole course of military criminal procedure, including the problem of penalty execution. It is supplemented with photographs of places, persons, and events connected with the inter-war court-martial system, made available by The National Digital Archives in Warsaw.

The entrepreneur. Selected issues

Przedsiębiorca. Zagadnienia wybrane

Author(s): / Language(s): Polish

Keywords: entrepreneur; enterprise; economic activity; non-profit entities; partnership enterprises; legal forms of enterprises; employee; taxes; entrepreneur taxation

This book is the result of the collaboration between two excellent academic centres, i.e. the Faculty of Law and Administration of the University of Silesia in Katowice and the Faculty of Law and Administration of the University of Rzeszów. The initiative of the collaboration was launched as a result of many seminars, conferences and trainings organized for entrepreneurs by collaborating Department of Public Economic Law, the Faculty of Law and Administration of the University of Silesia and the Department of Commercial and Economic Law of the University of Rzeszów. In order to meet the expectations of entrepreneurs and people interested in starting and running an enterprise, the authors of this work have dealt with the issues related to economic activity that were the subject of the most frequent questions and doubts during the meetings with entrepreneurs. At the same time, in order to facilitate the reading of the book, the authors tried to avoid complicated legal phrases, and thus used language intelligible to all instead of a difficult legal language.The opening chapters of the book introduce the issue of economic activity, which is of interest to every entrepreneur (the concept of economic activity and its principles, the concept of an entrepreneur). The subsequent chapters are about the rights and obligations of entrepreneurs resulting from their starting and running an enterprise. The chapters deal with entrepreneurial registers and registration procedures, as well as with various legal forms within which entrepreneurs may run a business or other activity of non-profit character. Another, extremely important issue related to the entrepreneur’s business activity, and comprised in this study are tax issues. The following chapter has been dedicated to the problems concerning the employment of employees. A separate chapter is about the regulation of economic activity, i.e. legal forms of constraining the constitutionally warranted and many times statutorily confirmed the principle of freedom of economic activity. Of considerable significance are also chapters on the legal possibilities of raising capital (inter alia, public procurement) through cooperation with the so-called public sector (capital market law, specificity of EU funds, public-private partnership), and the protection of developed ideas (protection of industrial property). Since every entrepreneur is subject to the control exercised by various control or supervisory bodies, the work contains a chapter discussing the procedure of control over an entrepreneur.The subject matter of this study has been selected from a wide range of legal regulations relating to the entrepreneur's business activity, however it covers only a small part of it. The authors' intention was not to make a broad, detailed or analytical presentation of complicated, though interesting legal issues in this field, but to outline only a selected issues. Therefore, the work is addressed primarily to those who are not lawyers and who are interested in starting or are already running an enterprise.We hope that reading the book will encourage the reader to look further for more detailed studies of the issues covered in the work, and that it will facilitate making economic decisions.

Professional etiquette. Diplomatic Protocol

Etykieta zawodowa i protokół dyplomatyczny. Wyd. 1. popr.

Author(s): Andrzej Szteliga / Language(s): Polish

Keywords: etiquette; Diplomatic Protocol; savoir-vivre

Good manners and ethical conduct are extremely important in interpersonal relationships in general, but they gain special significance in international and interstate relations at various levels. An example, especially on the professional level, can be diplomatic behaviour, which constitutes a specific compilation of historical traditions and contemporary good practices, based on legal and customary norms. // The book „Professional Etiquette & Diplomatic Protocol” by Andrzej Szteliga in an accessible way presents and discusses classical principles of savoir-vivre, professional and social etiquette as well as basic issues of diplomatic protocol and foreign service. Therefore, many of its pages contain such terms as ethics, professional etiquette, savoirvivre, diplomatic protocol, foreign service - explained theoretically and discussed in practice. The book, due to its character as an academic textbook, has a unique cognitive and educational value, not only for students, but also for politicians (especially young), local government officials and managers. The text of the publication is enriched by numerous photographs and situational drawings. // The work presents in detail the classic principles of savoir-vivre, i.e. issues related to greetings and farewells, getting to know one another and establishing contacts and the role of business cards in this process, conducting private talks and official speeches, the mastery of diplomatic, official and private correspondence, precedence (seniority) in professional and social relations, and traditional forms of address in various environments. // Further thematic blocks are related to the issues of the diplomatic protocol, i.e. to the basic elements of diplomatic and consular law, the characteristics of the rules governing foreign contacts (not only diplomatic and consular), the organisation of visits and meetings, the preparation and dispatch of invitations, participation in official and accompanying programmes, conducting negotiations and concluding agreements, a diplomatic ceremony, a flag protocol, placement of officials and guests and the order of speeches, organisation and operation of the foreign service in Poland and abroad (the Ministry of Foreign Affairs and bilateral and multilateral posts), awards and distinctions.// The substantive part of the work ends with a presentation of typical improper behaviour and gaffes, as well as advice on how to avoid them.

The constitutional freedom of research and the protection of scholarly work. A study of cases represented by experimental exact sciences

Konstytucyjna wolność badań naukowych a ochrona pracy naukowej. Studium przypadków z nauk ścisłych eksperymentalnych

Author(s): Anna Chorążewska,Artur Biłgorajski / Language(s): Polish

Keywords: principle; freedom; freedom of scholarly research; the principles of the limiting of the constitutional freedoms and rights; the concept of scholarly research; copyright; intellectual property law; the protection of intellectual property

In the context of the Polish constitution, the monograph analyses the framework of the freedom of engaging and conducting research (Art. 73). By formulating this freedom, the constitutional legislator at the same time sanctioned the principle of equal legal protection of the scholarly output of the researcher, and that regardless of the dissimilarity of the subject and the nature of research work in various departments of knowledge/scholarship (Art. 32 in reference to Art. 64 Para. 1 and 2). However, the realisation of the indicated constitutional maxim at the level of the act of law and implementing acts necessitates the diversification – due to the nature of scholarly research in various disciplines of scholarship – of the principles of legal protection of intellectual copyright. Meanwhile, the legislator does not address this problem directly. In order to elucidate the scholarly problem which was formulated in this manner, the first part of the work was devoted to an analysis of the freedom of scholarly research as a category which is constitutionally protected. The second part is devoted to the problems of the legal bases of the protection of scholarly work, and to be more precise – of the right of the researcher to indicate authorship of a scholarly publication from the perspective of the regulation(s) of the constitution and other regulations, which develop and particularise its ordinances, including the provisions of the codices of ethics to which scholars are bound. Thus, one indicated the principles of reliable attribution of the authorship of research works, with special reference to research conducted in research teams of multiple people, including teams of interdisciplinary nature. In order to illustrate the theses which were put forward, one described the object of scholarly research realised in the domain of experimental exact sciences, and subsequently the principles of the publication of the results of the said research, along with the regulations of the attribution of the authorship of scholarly works which are published. The diagnoses which are formulated in this manner may contribute, in the opinion of the authors, to the raising of the awareness of the legislator and as a result they may influence favourably the direction(s) of the scholarship-related policy of the state in the course of the reform of scholarship which is being realised in Poland.

The Principle of Protection of the Local Government. A Constitutional Study

Zasada ochrony samorządności terytorialnej. Studium konstytucyjne

Author(s): Anna Chorążewska / Language(s): Polish

Keywords: local government; the principle of the political system; local selfgovernment; the civil society; the separation of powers; the powers of the local government

The present monograph constitutes a constitutional study of the institution of the local government discussed through the prism of the principle of local self-government. Such an approach to the titular principle allows to consider it not only from the political and legal perspective, but also from a functional one, while the discussion oscillates around: the constitutional status of a person regarded as an individual as well as their dignity guaranteed by the Constitution, the constitutional status of a person regarded as an obligatory member of the self-government community, the status of the self-government community, the status of the national community, the status of the state, as well as the status of the underlying structures of the civil society and non-governmental organizations. The argument leads to the conclusion that the local government is an institution deeply entrenched in the structure of the civil society, and, as a result, should be guaranteed by the state the right to evolve naturally, in accordance with the evolution and maturation of the Polish civil society. As a consequence, the constitutional regulations of the local government should not constitute an inhibitive factor for the natural processes accompanying the development of the civil society. The present study could find its practical application both in cases of judicial control of the constitutionality of legislation with regard to the law on local selfgovernment, as well as judicial control over exercising and applying the law, the didactic process at the university, the day-to-day functioning of social and nongovernmental organizations as well as the bodies of local self-government agencies and councilors. Moreover, it could prove helpful in the processes of reform of the public administration and the creation of institutions for the study of the effectiveness of the creation and operation of public administration systems.

The inter-instance proceedings in the course of court administrative proceedings

Postępowanie międzyinstancyjne w postępowaniu sądowoadministracyjnym

Author(s): Agnieszka Ziółkowska / Language(s): Polish

Keywords: the inter-instance proceedings; the course of court administrative proceedings; cassation complaint; complaint; vertical instances

The fundamental task of Polish court administrative proceedings is to protect law and order along with subjective rights of the individual. Upholding these principles involves structuring the court administrative procedure in such a way that it shall guarantee the praxeology (efficiency) of litigation while respecting basic procedural rights of a defendant or claimant/plaintiff (the parties in a case). To name a few of these rights: the right to trial in a court of law, the right to appeal, and the principle of two instances in administrative court proceedings. In this day and age, the time duration is one of the measures in evaluating the efficiency in operation of administrative courts, and so the lawmaker constantly aims at improving it, simultaneously respecting other constitutional and procedural principles while preserving the essence of the court administrative procedure, which sometimes entails relying on foreign legal solutions. The subject of this monograph are complex issues pertaining to the inter-instance proceedings in the course of court administrative proceedings understood herein as a stage of the appeal proceedings; the said stage consists of a series of formalised, ordered, deliberate, and non-uniform actions taken by the court and the parties in a case, upon which the process of optimising praxeology of the appeal proceedings is buttressed. The extent of the investigated subject matter encompasses not only strictly procedural questions, but also systemic (that is, those related to two-instance character of the proceedings) and material ones (related to litigation laws derivative of constitutional regulations). A starting point for detailed considerations herein, are the two following notions: the instance and the principle of instances. Both the terms, despite their frequent interchangeable use, are not synonymous. The former is connected with organisationalsystemic issues (particularly: consecutive stages of proceedings) and functional ones (the scope of competence), whereas the latter is processual, since it constitutes a mechanism that allows the state to guarantee correctness and justice of the adjudications in court proceedings. Both the instance and the principle of instances may take two forms: vertical or horizontal. Presently, in accordance with the corresponding constitutional regulation, court administrative proceedings in Poland shall have at least two stages, that is, involve courts of at least two instances. However, this model of legal proceedings has been developed over an extensive period of time and, in the opinions of some of its proponents, has a revolutionary character. The principle of instances performs multiple functions that manifest the objectives of court administrative proceedings, which are both legal (including correctional, stimulating, precedent-setting, unifying legal interpretation, signalling-didactic, and instruction-related) and extra-legal. Multiplicity of court instances may, but does not necessarily have to, translate into prolonged proceedings time. Crucial in this respect seems to be the choice by the lawmaker of a model of appellate remedies. The inter-instance proceedings in the course of court administrative proceedings are a dependent procedure, particularly dependent upon filing with the court an ordinary devolutive appellate remedy: cassation appeal and complaint. In addition, it is a kind of proceedings with relatively narrow regulatory borders (Articles 173‒179 of the Law on Proceedings before Administrative Courts [LPA] and Articles 194‒196 LPA). The scope of actions taken during this stage of appellate proceedings is varied and, from the court’s perspective, includes: investigating the admissibility of a given appellate remedy, utilising self-control competences when there are premises provided by the law, rulings influencing the further course of appellate proceedings, giving decisions in incidental matters, and procedural-technical actions. In turn, from the perspective of the parties of a case, the actions taken may have direct or indirect influence on the course of proceedings. The former group of actions mostly serves to implement the postulate of praxeology in appellate court proceedings in the course of court administrative proceedings, and to relieve a court of second instance. Regulations pertaining to inter-instance proceedings in selected European states (Federal Republic of Germany, Austria, Czech Republic, Slovak Republic) point to the already shared legal solutions and, moreover, might be an inspiration for the Polish lawmaker within the scope of reform and amendments of the court administrative procedure in its part relating to interinstance proceedings in the course of court administrative proceedings, in order to make it more efficient. Based on comparative analysis, the contemporary Polish regulations seem to be relatively sufficient, yet require some minor changes.

New Procedural Institutions in Administrative Proceedings in Light of the Amendment to the Code of Administrative Procedure from 2017

Nowe instytucje procesowe w postępowaniu administracyjnym w świetle nowelizacji Kodeksu postępowania administracyjnego z dnia 7 kwietnia 2017 roku

Author(s): / Language(s): Polish

Keywords: Code of Administrative Procedure; individual rights; the administrative law;administrative penalties;

“The Code of Administrative Procedure constitutes at the same time a certain “guide post” for the administrative actions taken against the citizens and a guarantee of the rights of an individual within the sphere of administrative law. The Amendment to the Code of Administrative Procedure, resulting from the Act of April 7th, 2017 on the amendment of the Act of the Code of Administrative Procedure and related acts, aims at expediting and simplifying the administrative proceedings, as well as settling the manner and rules of imposing administrative penalties. The following publication discusses the particulars of the amendment, presenting the changes in regulations resulting from the amendment. The monograph comprises of four parts. The authors of the first part focus on the issues concerning the rules of the administrative procedure which have not been hitherto expressed expressis verbis in the regulations while being actively used by the public administration authorities. The second part presents the new procedural institutions regulated by the Code of Administrative Procedure, such as: the reminder, mediation, cooperation procedure hearing, silent handling of the case or summary procedure. The third part concerns the changes in the appeal procedure. The discussed issues include: the two-tier principle, the evidentiary proceedings conducted by a second-instance body, the cassation decisions; moreover, the chapter discusses several new institutions, i.e. the institution of the waiver of the right to appeal and the objection to the cassation decision.The fourth part discusses the topic of administrative penalties and European administrative cooperation. It should be noted that, despite the broad scope of the amendment of the administrative procedure regulated by the Code of Administrative Procedure, it is not a comprehensive amendment, resulting in further debates on the shape of this normative act, resulting from the Note no. 1499 of the Sejm of the 8th term with regard to the discontinuation of suspended administrative proceedings (added in Article 105 § 3 of the Code of Administrative Procedure). The following monograph, then, aims at presenting the status of the selected procedural institutions in the amended Code of Administrative Procedure. The opinions and theses put forward in this study express the attitudes of their respective authors.” (Preface)

Roman Law in the scholarly output of the Marceli Chlamtacz

Prawo Rzymskie w pracach Marcelego Chlamtacza

Author(s): Grzegorz Nancka / Language(s): Polish

Keywords: Roman law; Marceli Chlamtacz; history of Roman law

This dissertation aims to answer the question of whether Marceli Chlamtacz may be considered a scholar who made a significant contribution to the development of Roman Law studies and if so, why he is not as well remembered as other Polish Romanists of his time. The dissertation presents not just the silhouette of Marceli Chlamtacz, but also – most importantly – his scientific output. Furthermore, an attempt has been made in the dissertation to determine whether Marceli Chlamtacz treated research into Roman Law as a dogmatic analysis of specific legal institutions detached from his times, or whether he considered it as a means to understand and shape the law of his own times. The dissertation presents also Chlamtacz’s scientific relations with other Roman Law scholars. The dissertation encompasses an introduction, four chapters, and a conclusion. The first chapter presents a biography of Marceli Chlamtacz. It illustrates not just his road to earning his professorship in Roman Law, but also describes the period of his life that was devoted to the city of Lviv, whose devoted citizen he was. This chapter furthermore presents an analysis of his didactic activity and outlines the thematic scope of his lectures and issues discussed therein. The second chapter concentrates on Marceli Chlamtacz’s academic output in the field of property law. This part of the dissertation discusses his work on traditio in Roman law, based on which he was granted his venia docendi in Roman Law. Moreover, it presents a detailed analysis of Chlamtacz’s works on profits, focusing not just on his own output, but also on its reviews. The chapter closes with an analysis of the scholar’s other works, less closely related to Roman Law. The third chapter encompasses an analysis of Marceli Chlamtacz’s works on liabilities and obligations. It focuses on his habilitation lecture on contractual penalty, and his dissertations on guarantees, real contracts and means of redress. It also discusses his shorter works, such as entries published in Encyklopedia Podręczna Prawa Prywatnego [Compact Encyclopaedia of Private Law], as well as other articles. This chapter furthermore includes an analysis of reviews of M. Chlamtacz’s works. Chapter four offers an analysis of reviews and review articles by Marceli Chlamtacz. These works have been divided into thematic categories encompassing the history of Roman Law, procedure and personal law, property law, law of liabilities and obligations, inheritance law, and other works.

Election Code. Comment. Volume 1. Commentary on Articles 1-151

Kodeks wyborczy. Komentarz. Tom 1. Komentarz do artykułów 1–151

Author(s): / Language(s): Polish