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Stosunek kościelnej ochrony danych osobowych do RODO – uwagi na marginesie postanowienia Krajowego Sądu Pracy w Norymberdze z dnia 29 maja 2020 roku, 8 Ta 36/20

Author(s): Bernard Łukańko / Language(s): Polish Issue: 23/2020

The aim of the study is to discuss the judgment of the National Employment Tribunal in Nuremberg dated 29 May 2020, 8 Ta 36/20, and to consider the effects of the ruling on the protection of the rights of individuals. The examined adjudication is one of the first court rulings referring to Article 91 para. 1 of GDPR and a church law (of the Catholic Church in Germany) governing the protection of personal data. The study not only aims to assess whether the Act on Church Protection of Personal Data of the Catholic Church in Germany (kirchliches Datenschutzgesetz – KDG) complies with the requirements of GDPR, but it primarily focuses on the question of the jurisdiction of the national court (employment tribunal) or the church tribunal (Interdiocesan Tribunal for Protection of Personal Data seated in Cologne acting pursuant to the Regulations of the Church Judiciary for Personal Data Protection – in German: Kirchliche Datenschutzgerichtsordnung – KDSGO) to hear a claim for damages of an employee of the Catholic Church who invoked sharing his personal data with unauthorized persons as the basis for the claim. The findings are then discussed in a broader comparative context of the Polish constitutional model of the relations between the state and churches and other religious organizations.

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

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

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

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

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

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

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Problem rewindykacji kościelnej nieruchomości Polskiego Kościoła Ewangelicznych Chrześcijan Baptystów we Wrocławiu

Author(s): Michał Zawiślak / Language(s): Polish Issue: 23/2020

The main aim of the paper is to present the course of the restitution proceedings concerning the church property of the parish of the Polish Evangelical Christian Baptist Church in Wrocław, as well as to analyse the administrative decisions issued during the proceedings. Special attention is given to the legal issues related to applying art. 2 para. 4 of the decree of 8 March 1946 on abandoned and post-German properties and to the consequences of the resolution of the Supreme Court of 19 December 1959 for the legal effects in the interpretation of art. 2 para. 4 of the decree. A definitive decision on this issue that refused to grant the right of ownership to the Church was issued only 13 years after the restitution application had been submitted. The excessive duration of the proceedings was confirmed by the judgment of the European Court of Human Rights (Application no. 32045/10). The Second Congregation in Wrocław (the legal successor of the above-mentioned parish) did not recover the property lost after World War II under the provisions of the act regulating the legal situation of the Church of Christian Baptists in the Republic of Poland. A close examination of the circumstances of the lengthy restitution litigation indicates that in order to resolve the question of the right of ownership of this property, it is necessary to pursue another route than the administrative one.

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Dokonywanie czynności procesowych przed sądem kościelnym jako okoliczność wyłączająca odpowiedzialność za naruszenie dóbr osobistych. Glosa do wyroku Sądu Apelacyjnego w Białymstoku z dnia 12 stycznia 2017 r., I ACa 676/16

Author(s): Joanna Misztal-Konecka / Language(s): Polish Issue: 23/2020

This commentary discusses the judgment entered by the Court of Appeals in Białystok, Poland, wherein the court held that the circumstance of acting in litigation before an ecclesiastical court excluded the parties’ liability for the infringement of personality rights. In the author’s opinion, the decision merits approval both as to the view concerning the admissibility of the judicial path before a state court in matters of the protection of personality rights violated before an ecclesiastical court and as to the claim that the protection of personality rights is not available in circumstances excluding the unlawfulness of such a violation. Acting before an ecclesiastical court, which operates with the approval of state legislation, fits within the group of cases in which one is acting within the boundaries of the legal order. The legal qualification of activities arising from a party’s procedural rights, whether acting before a state court or an ecclesiastical court, requires verifying whether such activities are based on the existing legal right of a subject to act, which means acting within the competence set out by the legal order, citing true facts (or justifiably regarded as true) in a moderate manner and to the extent necessary for the enforcement of the party’s right.

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Analiza konstytucyjności ograniczeń w korzystaniu z wolności religii podczas pandemii koronawirusa w Polsce

Author(s): Konrad Dyda,Marcin Olszówka / Language(s): Polish Issue: 23/2020

The need to prevent the development of the SARS-CoV-2 coronavirus pandemic makes it necessary to maintain physical distance to comply with various types of sanitary standards. However, when restrictions imposed by public authorities lead to limiting the exercise of human rights and freedoms, they must be laid down in normative acts of appropriate form and content. Meanwhile, many of the restrictions introduced by the Polish authorities with a view to combatting the pandemic, which restricted the exercise of freedom of religion, did not meet the standards defined by the Polish Constitution.

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W sprawie skuteczności wystąpienia z Kościoła Katolickiego: uwagi dotyczące decyzji z dnia 28 listopada 2018 r. wydanej przez Prezesa Urzędu Ochrony Danych Osobowych

Author(s): Michał Czelny / Language(s): Polish Issue: 23/2020

On November 22, 2018, the President of the Office for Personal Data Protection (hereinafter POPDP) issued a decision related to the issue of updating personal data by a person who has disaffiliated from the Catholic Church. The paper analyzes this decision in order to answer the question whether in the current legal situation POPDP has the competence to resolve, by administrative decisions, complaints of natural persons related to compliance with the provisions laid down by the Catholic Church in the area of personal data protection. When justifying the above-mentioned decision, POPDP referred to several significant provisions of the currently applicable law, including the EU law, state law and church law. In the decision, POPDP confirmed the already established practice regarding matters connected with the issue of updating personal data of persons who have disaffiliated from the Catholic Church. In the conclusion, it was stated that POPDP had no competence to resolve complaints of natural persons related to compliance with the provisions laid down by the Catholic Church in the area of personal data protection.

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Социалните услуги в България – законови промени, развитие и предизвикателства

Author(s): Lyudmila P. Vekova / Language(s): Bulgarian Issue: 1/2020

The report examines the main changes in the legislation that regulates the provision of social services as a key element of the social assistance system in Bulgaria. Emphasis is placed on the new moments in the normative regulation of the activity, contained in the Law on Social Services on the basis of the comparison with the current Law on Social Assistance and on the Regulations for its implementation. The main challenges that the legal regulation of the Social Services Act creates in the organization and management of social services and in the practical implementation of the activity are assessed.

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Claims secured by a registered pledge in sanation proceedings

Author(s): Rafał Adamus / Language(s): English Issue: 28 (4)/2019

This study concerns the legal situation of a receivable secured by a registered pledge in a debtor’s sanation (restructuring) proceedings. The registered pledgee has a special position in the course of such proceedings. The study discusses the rules of subjecting the receivable secured by the arrangement, the rules of preparing and contesting the list of receivables, and finally the rules of satisfying the pledgee.

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Judgment of the Court of Justice of the European Union of 19 November 2019 – selected comments

Author(s): Bogna Baczyńska / Language(s): English Issue: 28 (4)/2019

The changes introduced into the judiciary system within the last few years have actually led to the infringement of the principle of a tripartite division of power – Poland is inclining towards authoritarianism. The Constitutional Tribunal affected by formal changes and (partially) filled with persons who cannot guarantee independence – has ceased to perform their constitutional functions and ensure the constitutionality of laws long time ago. The “reforms” have already had impact on the judiciary authority, i.e. the courts. The above-described situation alerted the international opinion, thus, apart from the individual countries, many international organisations have also voiced their concerns. From among of the aforesaid organisations, the European Union (EU) is responsible for the key task. The changes in the structure of the Supreme Court and National Council of the Judiciary have become the subject of the preliminary procedure addressed to the Court of Justice of the European Union. In response thereto, the European Court of Justice located in Luxembourg stated that the cases concerning judges may not be tried by the court which is not independent or unbiased. The preliminary procedure is based on conciliation, which guarantees uniform application of Community law in all Member States. Therefore, it is always the national court that is responsible for the final resolution of the case. In the analysed case, it is the Supreme Court.

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Произведения, създадени в рамките на трудови правоотношения

Author(s): Veselina Maneva / Language(s): Bulgarian Issue: 9/2019

The research and analysis of the creative achievements created in the context of employment, have always asked a number of questions related to the nature of these works, with the rights that arise for the employer and author, with the manner of their enforcement and payment of fair remuneration. The institute of the offi cial work is established both in the system of copyright and in industrial legislation. It is a means of regulating the relationship between employer and creator. Theory and practice increasingly determine the need for deeper and more comprehensive regulation of these relations and overcoming the existing gaps.

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За заплатите на народните представители и извънредното положение

Author(s): Ekaterina Mihaylova / Language(s): Bulgarian Issue: 9/2019

In the paper under consideration is the issue of the salary of the members of the Bulgarian National Assembly as a part of the development of parliamentarism. The topic is firstly considered in a historical perspective, including the legal regulation in the various Bulgarian constitutions. The current legal regulation is analysed as well as the decision of the National Assembly taken during the state of emergency, according to which decision it is accepted not to pay salaries to the members of the National Assembly as well as to persons in the executive power in the context of whether this decision is in consistency with the norms of the Constitution or not.

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Историческата роля на Международната организация на труда за установяване на международни стандарти за трудовите и социалните права на човека

Author(s): Ivaylo Ivanov Staykov / Language(s): Bulgarian Issue: 9/2019

The subject of the research is the role of the International Labour Organization in establishing international standards for labour and social human rights. The analysis is dedicated to the 100th anniversary of the creation of this universal specialized international organization.

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Възникването на писаните закони в Древна Гърция

Author(s): Deyana Marcheva / Language(s): Bulgarian Issue: 9/2019

The article addresses the question how and why do written laws come into being in Ancient Greece in the archaic period from the mid seventh century BC. The research delves into different types of historical sources including stone inscriptions and literary works so that to illuminate fragments and details of how the people refl ect on the necessity and signifi cance of written laws. The assumption is that there is no one general explanation why people started to write down the laws. In Ancient Greece the general lasting rules that we call today laws were fi rst denoted with the term “thesmos”, and later with the term “nomos”. In any case, the fi rst written laws were publicly acknowledged and announced as a guarantee against the arbitrary power.

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Der Vertrag zwischen der Bundesrepublik Deutschland und der Volksrepublik Polen über die Grundlagen der Normalisierung ihrer gegenseitigen Beziehungen als Zäsur in der Geschichte der Bonner Republik

Author(s): Martin Löhnig / Language(s): German Issue: 2/2020

For Poland, the "Warsaw Treaty between the Federal Republic of Germany and the People's Republic of Poland" brought legal certainty: The Polish western border was now recognized by both German states under international law. For the Federal Republic of Germany, the tough domestic political struggle for ratification of the treaty marks a turning point. The essay describes this struggle between the social-liberal government and the conservative opposition against the background of the German constitution (Basic Law), which should ensure the stability of the democratic system based on the experiences from the Weimar period. It shows how the conflict parties used instruments of the no-confidence vote and the dissolution of parliament and what role the Federal Constitutional Court (Bundesverfassungsgericht) played in this conflict: The leading decision of the court is analysed in detail. Last but not least, the surprising role of the GDR in this conflict is also examined.

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Układ między Polską Rzeczpospolitą Ludową a Republiką Federalną Niemiec o podstawach normalizacji ich wzajemnych stosunków z 1970 r. – refleksje na tle bońskiej polityki europejskiej i wschodniej

Author(s): Tomasz Dubowski / Language(s): Polish Issue: 2/2020

The 50th anniversary of the Treaty between the People's Republic of Poland and the Federal Republic of Germany on the basis of the normalization of their mutual relations provides an opportunity to present a number of reflections, including remarks on the significance of this agreement for Bonn's foreign policy. The aim of the article is to reconstruct the relations and basic dependencies between Bonn's European policy (or, more broadly, the so-called Westbindung) and German eastern policy (Ostpolitik) and the Agreement as its element. The 1970 agreement has undoubtedly become one of the focal points in the process of changing, revising West German foreign policy at the turn of the 1960s and 1970s in its key dimensions. It has not only become a part of Germany's relations with the countries of Central and Eastern Europe. It has also played a certain role and gained certain influence in the sphere of relations between the Bonn Republic and the countries of Western Europe and in the Euro-Atlantic context. Therefore, it seems that the presentation of a set of reflections devoted to this problem, especially in the light of the forthcoming anniversary of the PPR-FRG Agreement, is justified. The considerations below, in the light of the presented assumptions, include an indication of the central directions of West German foreign policy shaped after the end of the Second World War, a reconstruction of relations between Bonn's European policy and its Eastern policy, and an assessment of the Agreement itself and its significance from the perspective of Germany's position in European relations. The analyses were based mainly on (Polish and foreign) achievements of political, historical and legal sciences and relevant sources of law. At the same time, it should be noted that the presented considerations do not aspire to a comprehensive analysis of the signalized problem, but rather constitute a set of reflections devoted to its key mechanisms.

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BgHSt 20, 22 und die Neubürger-Klausel des deutschen Strafanwendungsrechts – ein deutsch-polnischer Fall schreibt Rechtsgeschichte bis heute

Author(s): Martin Heger / Language(s): German Issue: 2/2020

In its judgment of the 4th September 1964 the German Federal Court of Justice had to deal with a German-Polish case of murder. The accused persons were members of the German minority in Poland and lived in the Western part of Poland, when German troops occupied that territory in the autumn of 1939. Short after the invasion they killed the members of a Jewish family living in the same territory. Both, the perpetrators as well as the victims were Polish nationals, when the crime was committed. The perpetrators have got the German nationality in the following. It is not clear, whether they have been naturalized by German authorities during WW II, but if not, they were seen as German nationals with the Getting-into-Force of the German Basic Law (Constitution), because they were refugees from Poland to Germany. Therefore, Article 116 § 1 Basic Law naturalized them as German nationals. For the criminal case it was crucial whether the later naturalization can give the German Justice system jurisdiction over a case which happened before the perpetrator has reached the German nationality, as it was (and still is) stated in section 4 (resp. today section 7) of the German Criminal Code. The paper should deal with the implications of this so-called "New Citizenship Clause" and with the circumstances of the case and the following cases at Western German Courts against German people for committing murder in the occupied Polish territories during WWII. Shortly after the named case, the Auschwitz trial started in Frankfurt. On that background, the paper reflects on the situation between West and East Germany as well.

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Znaczenie filozofii Immanuela Kanta w kształtowaniu polskiej myśli filozoficznoprawnej XX wieku

Author(s): Anna Kryniecka-Piotrak / Language(s): Polish Issue: 2/2020

The legacy of representatives of the 20th-century Polish philosophy of law thought still requires systematic studies and closer presentation of its ideas, for the ground that it is a source of interesting but sometimes not yet discovered or acquainted scientific concepts. An important part of it are concepts formulated under the influence of Kant's thoughts, taking into consideration that their authors are subject to various inspirations, often referring in their works to more than one philosophical system. Kant's philosophy is a source of inspiration for the formulation of original concepts of innovative sense, in which its assumptions are modified and creatively developed. It is significant that it significantly contributed to the shaping even such standpoints of view that presented a decidedly critical attitude towards German philosophy, mainly due to the alleged idealism and speculative nature. It turns out that Kant's philosophy in the works of representatives of Polish 20th-century philosophy of law thought constitutes an important contribution to concepts concerning the man’s place in society and in the global community, as well as the relationship between individuals and the role of positive law in shaping them. It confirms conviction that it is necessary to undertake research on law from an anthropological and axiological perspective, leading to the formation of the subject of research in the philosophy of law in a specific way. It also led to the consolidation of the view that there is an absolute imperative to respect humanity in every individual, becoming the basis of individualistic thinking and pacifism. The aim of the presented research is therefore a comprehensive presentation of the multidirectional influence of Kant's philosophy on the shaping of Polish 20th-century philosophy of law thought.

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Problematyczność stosowania metafizyki do pozytywizmu prawniczego na przykładzie tezy o społecznym źródle prawa

Author(s): Marcin Kanon / Language(s): Polish Issue: 2/2020

The aim of this article is to present a legal positivist social source thesis in the context of classical metaphysical reflection. Author uses the method of analysing the source texts and abstracts theses that can be considered as metaphysical. Metaphysical theses divide into existential and essential. They are expressed directly by an author or possible to reconstruct. Reasoning was based on convenience that universality of metaphysics should be considered temporally. The thesis about the evolution of ways of understanding reality, along with the development of mankind, is one of the cardinal assumptions of positivism in general. Based on this historiosophical rule, August Comte draws further conclusions about a possible modern philosophy for the future. The denial of metaphysics leads to cursory, perhaps unconscious, acceptance of the theses that have already been developed in the history of philosophy. The reflections are essentially focused on the issue of ontological status of society. Its understanding determines the understanding of social facts and seems to have an impact on social source thesis. The main part of the reflection is placed in a historical context. It enables to examine some aspects that are difficult to consider nowadays. One of the conclusions is that metaphysics to which positivism opposes is dominant in 19th century philosophy, but in general only one of many schools of thought. Since there is no specific literature on that matter, author signalize problems considering them generally.

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Kwestia „ochrony” wolności sumienia i wyznania w toku prac nad kodyfikacją prawa karnego Polskiej Rzeczypospolitej Ludowej 1949-1969

Author(s): Tomasz Szczygieł / Language(s): Polish Issue: 2/2020

The paper presents the development of criminal law regulations regarding the protection of freedom of conscience and religion in the Polish People's Republic in 1949–1969. The presented analysis shows the real intentions of these regulations. The communist party wanted to control religious associations in terms of their potential impact on public opinion. There is no doubt that the analyzed regulations were an expression of the struggle of the communist authorities with the only independent institution after 1944, which was the Catholic Church. The work also highlights the problem of the ostracism of people associated with the communist movement, which was undoubtedly present, especially after the threat of excommunication issued by the Vatican in July 1949. As a result of this, freedom of conscience and religion became a kind of "hostage" of the growing struggle for a new state system and the place of religious associations.

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