Wpływ nowelizacji Kodeksu postępowania cywilnego na usprawnienie postępowania egzekucyjnego

Author(s): Paulina Wilhelmina Konarska / Language(s): Polish Issue: 2/2016

Discussed amendment of Civil Procedure Code has entered into force on 3 May 2012 and it is still very speculative. Polish Civil Procedure Code is an act of 17 November 1965 which regulates actions in civil cases. It has been changed many times up till now. The amendment from 3 May 2012 implements big change in enforcement proceedings. It is obvious that enforcement proceedings may be undertaken only by the legally entitled bodies. This kind of proceedings are essential for creditors. Execution must be short and effective to provide creditors protect them rights. In order to improve the service of civil courts many responsibilities are now imposed on court referendary. In addition, to improve the quality of the enforcement proceedings it was necessary to implement rise of fines. The Polish legislator implemented new institution astreinte which may force debtors to obey the executive law. The amendment introduces also new definition of executory entitlement, shorter terms for some of actions and many other changes in Polish civil procedure. Now, there is huge possibility that debtors would obey the law more successfully. Even if the amendment dated 16 September 2011 seems positive there are opinions that there were too many changes in Polish Civil Procedure Code yet. The doctrine postulate implementing new civil procedure code in order to guarantee legal certainty and stability

Glosa do postanowienia Sądu Najwyższego z dnia 5 marca 2014 roku, IV KK 316/13, OSNKW 2014, z. 11, poz. 82

Author(s): Magdalena Budyn-Kulik / Language(s): Polish Issue: 4/2015

Prawo łaski w świetle Konstytucji z 17 marca 1921 r. Zagadnienia ustrojowe i procesowe

Author(s): Katarzyna Kaczmarczyk-Kłak / Language(s): Polish Issue: 3/2014

The article concerns the right of pardon in the view of the Constitution of March dated on 1921. The author analyses subjective and objective range as well as the contents of the decision of the head of state concerning the right of pardon. She compares solutions adapted in Poland and those that functioned in other modern countries. On this background she discusses the model of the right of pardon in Poland proving that this law was understood narrowly by the Constitution from 1921. It was limited only to penal and judicial responsibility and distinctly excluded the possibility of pardon by individual abolition. The author also indicates that the head of state had restricted possibilities to state the contents of the act of pardon. That was because the Constitution clearly determined that it may only consist in cancellation or commutation of punishment, or possibly remission of consequences of conviction. By that means the March Constitution determined the boundary of presidential right of pardon, which was not common solution during the interwar period. The author also analyses, on the basis of unpublished archival materials, the practice of executing the right of pardon, especially the procedure of decision-making and contents of the act of pardon. On this basis she concludes that despite of lack of constitutional reference to act the president executed the right of pardon retaining procedure specified in Code of Criminal Proceedings, however he did not execute the right of pardon through proceeding initiated without maintaining requirements of criminal procedure. The article also tackles the issue of motives that made president’s way towards making decisions concerning pardon and its independence by analyzing the use of the right of pardon by presidents Stanisław Wojciechowski and Ignacy Mościcki. The presented data show that under the same Constitution presidents differently understood their role at making decision about pardon. They either presented the model of full (Wojciechowski) or restricted (Mościcki) independence in decision- making.

Podstęp przy zgwałceniu w prawie polskim oraz angielskim i amerykańskim

Author(s): Aneta Michalska-Warias / Language(s): Polish Issue: 1/2014

The article discusses deception as the modus operandi of the perpetrator of rape. First, the Polish criminal law approach to rape by deception is discussed. The author presents the commonly accepted ways of understanding the term “deception” as it is used in Art. 197 § 1 of the Polish penal code. Then some interpretation discrepancies are discussed, e.g. the problem of contracting a false marriage in order to obtain the victim’s consent to sexual intercourse. Next, British and American criminal law approaches to the problem of rape by deception are presented. The author stresses the most prominent differences in understanding rape by deception in those legal systems, coming to the conclusion that they are partly due to the fact that the victim’s lack of consent (or valid consent) is seen as the main component of the crime of rape, while in the Polish penal code the lack of consent is not directly expressed and is only presumed in the process of interpreting the statutory features of the crime of rape.

Funkcja gwarancyjna terminów w polskim kodeksie postępowania karnego

Author(s): Ireneusz Nowikowski / Language(s): Polish Issue: 2/2013

Author's sentence the guarantee function of the deadlines is based on the fact that certain deadlines secure certain rights of the participants in the process. Author considers the need for the introduction of the deadlines of the maximum duration of the means of the forcing measures, particularly the voluminous arrest ("the pre- emptive arrest" corresponds to the "investigative detention" of the StPO - §§ 112 ff.). He also considers threats that may result from the introduction of such deadlines.

Przestępczość na terenie Republiki Słowackiej. Zarys problematyki

Author(s): Jacek Dworzecki / Language(s): Polish Issue: 18/2013

The article presents in statistical and analytical terms, crime in the Slovak Republic. The text introduces the sphere of public safety in this country in the years 1993-2011. The study has focused on the discussion of torts affecting in a direct way, the extent the of sense of security among the citizens of Slovakia.

Fall Lübke. Holýšov dvacet let poté…

Author(s): Karel Řeháček / Language(s): Czech Issue: 2/2015

This article follows the fate of the second German Federal President Heinrich Lübke. Since his case was also closely associated with the West Bohemian Holysov, it is not without interest to recall it with celebration of the 70th anniversary after the war end. It is outcome of the primary archival research of little-known or completely unknown sources located in the care of the National Archives and the Archive of Security Forces.

Kazna u Americi: kaznena politika u SAD-u u vrijeme kaznenog zaokreta i nakon njega

Author(s): Krešimir Petković / Language(s): Croatian Issue: 03/2016

This paper presents the development of penal policy in the United States from the 1960s to the present day. In the United States during that period, the penal policy was marked by the increase of punitiveness and penal population, but also by the declining rate of violent crime from the 1990s onwards. The text longitudinally traces several problems and institutional segments of the penal policy: the presidential politics, the politics of the Supreme Court with regard to the death penalty and juvenile justice, and the prison system. In the end, a discussion of the explanation of penal changes with regard to cultural and institutional factors is offered, as well as an overview of the reflections on the future development of policy in this politically saturated area that marked the last presidential election in which Donald Trump emerged victorious.

Kriminalitet maloletnika - stanje u svetu i u Srbiji

Author(s): Jasmina Igrački,Ljeposava Ilijić / Language(s): Serbian Issue: 1/2016

Socially unacceptable behavior of young people has changed, over time, both in the forms of manifestations and in terms of causes and conditions which may lead it. Juvenile crime is negative, dynamic social phenomenon which represents the activity of one or more persons in a given period of time and space, conditioned by certain social relations and recognized by the legislation, whose disregard for and violation of the products and adequate criminal penalties. The study of the causes of juvenile delinquency includes two major, interrelated areas, which can be divided into objective (socio-economic) and subjective factors. Objective factors related to the study of the social conditions of criminal behavior of juveniles and the formation of personality under the influence of these conditions. Subjective factors include psychological characteristics of the personality of the minor, specific for intelligence, temperament, character, emotions, motives, attitudes, habits, preferences, primarily due to the specific characteristics of puberty and adolescence as an important phase in the development of personality. The World Health Organization estimates that annually around the world, young people aged 10 to 29 commit about 200,000 homicides, representing 43% of the total number of murders that are committed in the world each year. Only this indicates a serious social problem in the control and prevention of juvenile crime at the global level.

Сталешка неједнакост у казненом праву Душановог законика

Author(s): Nina Kršljanin / Language(s): Serbian Issue: 3/2012

Differences in punishment of members of different classes are a frequent occurrence in the penal law of many mediaeval countries, including Serbia under Nemanjić rule. The paper analyses this phenomenon in Dušan's Code and the preceding charters and attempts to determine the basic principles of this differentiation. Despite stereotypes, they cannot be summed up as laxer treatment of the higher and stricter punishment for the lower classes. Firstly, in the cases of some crimes only members of certain classes are prescribed as offenders – be it due to legal or factual impossibility, or the likelihood of a member of a certain class to commit such a crime. As for those crimes that could be committed by all classes, it is shown on the examples of several crimes (abandoning one's spouse, murder, rape, insult by word or action...) that the nobility (vlastela) was indeed generally protected from those penalties that were considered shameful, but it also paid larger fines levied on property, so that fines would affect all offenders equally. Finally, in cases of crimes where the perpetrator and the victim were from different classes, Dušan's Code is greatly concerned with determining the penalty with regards to the significance of the protective object, particularly to class honour and the need to preserve peaceful relations between classes.

Privatni zatvori

Author(s): Milica Kovačević / Language(s): Serbian Issue: 2/2012

The paper discusses the process of prison privatization, which has been the topic of ongoing discussion for decades, especially in the USA. The reasons that justify prison privatization are the urge to cut the cost of imprisonment and the need to solve the problem of prisons" and to reduce the inmate recidivism. Opponents of prison privatization have pointed out that allowing companies to profit from punishment is unacceptable on moral grounds and that there is a significant risk of human rights violations. Of course, those in favour of prison privatization do not agree. The author concludes that private prisons have ensured their place in the modern system of criminal sanctions, although, contrary to expectations, they have not achieved significant successes in their work.

Nesklad zakona i mogućnosti osposobljavanja osuđenika

Author(s): Branislava Knežić / Language(s): Serbian Issue: 3/2011

The subject of this text is the existing discordance between legal regulations and possibilities for realization of right for training (education, training, work). In most western countries prison treatment is based on work and educational activities. In our country we are not in shortage of the laws but there are little employment of convicts and almost non-existing organized forms of adult education what make the discordance. It is impossible to evaluate the success of punishment if it is not served in appropriate conditions. Imprisonment is not only deprivation of freedom but also limitation of other human rights although that is not necessary for prison functioning. Restriction of convicts right to education and work makes harder social efforts for convicts future social integration and life in freedom.

Nacionalne, kulturološke i filozofskopravne karakteristike zatvorskih sistema (Uporedna analiza)

Author(s): Zlatko Nikolić / Language(s): Serbian Issue: 2/2009

Prisons and prison systems in the world are, in stereotypical view of layman public, being seen as all alike or without much difference. However, these institutions and systems are influenced, beside legal framework, by many much less visible factors, such as: national, cultural and philosophically-legislative aspects and these factors are the subject of our consideration in this article.

Body as a Project: The Relationship Czech Prisoners Have to Their Bodies

Author(s): Lukáš Dirga / Language(s): English Issue: 6/2017

The text focuses on the relationship inmates have to their bodies during imprisonment. The data presented in this study are based on ethnographic research carried out in Czech men's high security prisons. The data set consists of interviews with partakers from the “world of prisoners”, observations from prisons and analysis of documents relating to Czech prison service. The analysis shows there is a strong relationship between the physical body and the process of constructing manhood/masculinity in the population of inmates. The physical body is one of crucial components of the masculine/macho prison code/culture. The attitude inmates have to their bodies seems to be altering, depending on the stage of imprisonment in which they currently are. For the description of this alteration I use the concept of the body as a project, which may serve as one of the possible ways of understanding the importance of the physical body to inmates during their imprisonment and changing motivations to its further development.

Niemożność Zaspokojenia Podstawowych Potrzeb Życiowych w Świetle Art. 209 Kodeksu Karnego

Author(s): Katarzyna Majchrzak / Language(s): Polish Issue: 3/2017

The notion of basic life needs is of evaluative nature and, depending on socio-cultural conditions, it can be interpreted differently. The most frequently encountered type of alimony avoidance is the one committed by parents against their children. Therefore, the article mentions, in particular, the issue of justified needs of children. These are needs satisfaction of which allows the child to live in conditions corresponding to their age, health condition and education. This does not regard only securing the minimal existential needs. If the child has a passion, special talents that they want to develop, securing these needs must be also considered as basic.

The Conditions and Procedure for the Admission of Children of Incarcerated Mothers to Mother-and-Baby Units at Prisons in Poland

Author(s): Magdalena Teleszewska / Language(s): English Issue: 7/2017

The admission of mother and child to the a mother-and-baby unit has a positive effect on both the development of the child as well as the social rehabilitation of the mother. Children in mother-and-baby units are provided the right conditions for development. The mother learns to fulfill her parental responsibilities. In addition, incarcerated women who are in prison with their children want to change for the better, in order to provide their children a better future.

Specific Treatment and Rights of Women Deprived of Liberty

Author(s): Milica Stanojević / Language(s): English Issue: 3/2017

This paper discusses the rights of women prisoners as a special category of persons deprived of the fundamental human right - the right to liberty. The author focuses on women's rights in detention and in the course of serving a prison sentence. The specificities related to the status and treatment of women in conditions of social isolation are primarily attributable to their biological disposition. Quite often, they are pregnant or about to give birth, or already have children, in which case the protection of maternity is of crucial importance, particularly considering the fact that they are away from their home and family. One of the main problems in dealing with women’s rights in general and in the Serbian penitentiary system in particular is the lack of sensitivity to the specific needs and psychology of women. In that context, the author refers to the conclusions of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment.

Dirbančių nuteistųjų valstybinio socialinio draudimo reguliavimo ypatumai ir perspektyvos Lietuvoje

Author(s): Mindaugas Lankauskas / Language(s): Lithuanian Issue: 76 (2)/2012

The article aims to answer the question whether there are preconditions to expand the scope of state social insurance regarding working prisoners. Currently working prison inmates can¬not enjoy full protection of state social insurance system. Prisoners are covered only partially because they are entitled just to social insurance against labour accidents and occupational diseases. In addition, they can self-insure themselves. Second part of the article deals with the concept of state social insurance, covers main features and types of social insurance as well as different approaches to this concept. Third part is devoted to the peculiarities of legal regulation of prisoner’s work. Key questions in this part are conceptual differences and similarities between prison work and “normal” work. Consequently, analysis of legal regulation of prison labour relations is provided. In the fourth part of the article legal framework of state social insurance related to working prison inmates is being analysed. Lithuanian legal regulation in this sphere is compared to the regulation of some foreign countries, mostly to Germany. Main conclusion of this part is that existing legal framework creates big obstacles to prisoners and former prisoners obtain the rights to different social guaranties. Although there is a legal opportunity to self-insure, it should be noted that this possibility is used by inmates very rarely if used at all. Fifth part deals with presupposed contradiction between existing legal regulation and basic human rights. It is concluded with a statement that it can be possibly discriminatory whereas lack of essential social guaranties in this case cannot be justified by the purpose of punishment and/or necessity. Moreover, it can be considered that such regulation is disproportional. Final part of the article analyses the question about the possibilities to increase the scope of social protection of prisoners by strengthening compulsory state insurance for inmates. Nevertheless, several different factors including financial potential of the state should be taken into account. Therefore, it is recommended to change existing social insurance system gradually at first targeting the most problematic types of social insurance, for example, insurance against unemployment.

Social Reaction to Juvenile Crime

Author(s): Marijana Vučićević / Language(s): English Issue: 4/2017

Social reaction to juvenile crime has evolved over time toghether with crime. In the initial period, juveniles were punished like adults and the primary purpose of punishment was repression, which is quite different today. In terms of punishment of juvenile offenders, our country has accepted the widely used system which is primarily characterised by the protection and education of juveniles. Therefore, the Act on Juvenile Criminal Offenders and Criminal-law Protection of Juveniles introduced educational orders whose primary purpose is to reduce the institutional treatment of juveniles and to contribute to their rehabilitation through their active involvement and improving relations with the victim. To this effect, the most preferable measures are educational measures whose main purpose is to provide assistance, supervision and rehabilitation of minors, and to prevent commission of crimes in the future. The most common educational measures are measures of intensive supervision which imply greater control over a minor by a parents, another family member or the guardianship authority. Institutional measures are the least common because they are the most serious kind of educational/correctional measures. In this system, the punishment of imprisonment is used exceptionally; thus, juvenile imprisonment is the last resort punsihment, which may be applied only against an older juvenile.

Temporary Measures in Criminal Proceedings Against Juveniles

Author(s): Marija Milojević / Language(s): English Issue: 4/2017

The specific nature of juvenile delinquency and the all-present tendency of diverse response to juvenile crime have resulted in distinguishing juvenile criminal law as a separate branch of criminal law. Juvenile criminal law entails special temporary measures which, as such, do not exist in the proceedings against adult individuals. In this paper, the author will point out their characteristics and analyse the concepts of temporary accommodation and referral of juveniles to professional institutions for further assessment. The paper also provides an explanation of the extent to which the international standards on juveniles are observed in our legislation in terms of these temporary measures. The adoption and subsequent application of the Act on Juvenile Criminal Offenders and Protection of Minors in Criminal Law (hereinafter: the Juvenile Justice Act) has proven to be a positive turning point in the regulation of temporary measures. Thus, there is no need for significant reforms except for slight changes, which will be pointed out in this paper. The new draft of the Juvenile Justice Act does not bring substantial changes in this area. This paper provides an overview of the amended provisions and analyzes their purpose and implications.