HISTORIA I KOMPETENCJE PENITENCJARII APOSTOLSKIEJ

Author(s): Henryk Jagodziński / Language(s): Polish Issue: 12/2013

The article is composed of two parts. In the first part, a brief history of this tribunal, from its origins to its governing legislation, shall be presented. The increasing number of requests for absolutions, dispensations and indults, in the second half of the XII Century, constituted the seed from which would rise up a century later the bureaucratic office of the Penitentiary, presided over by a Cardinal Major Penitentiary and composed of various officials, at the beginning primarily clerks and advocates. In the second part, the most important legislatives acts regarding this dicastery shall be analysed: the Code of Canon Law of 1983, the Apostolic Constitution Pastor Bonus of 1988 and the Code of Canons of the Oriental Churches of 1990. On the basis of an analysis of the relevant juridical norms, the competences in force of the Apostolic Penitentiary shall be explained. There shall also be presented some practical considerations such as the procedures for making appeals to this Tribunal. In the conclusion it is noted that throughout its long history the Tribunal has had a considerable evolution of the competences assigned to it, for which it was preferred to reserve to the Apostolic Penitentiary only cases of the internal forum, such as questions of conscience and of indulgences. The Apostolic Penitentiary has also been called the “Tribunal of Mercy”.

SYMULACJA ZGODY MAŁŻEŃSKIEJ JAKO PRZYCZYNA NIEWAŻNOŚCI MAŁŻEŃSTWA W PRAWIE KOŚCIOŁA ŁACIŃSKIEGO

Author(s): Wojciech Wąsik / Language(s): Polish Issue: 12/2013

The author in his article entitled Simulation of marital consent representing the grounds for marriage nullity under law of the Latin Church, focuses on the discussion of a defect of consent to marriage, related to the will, which consists of the exclusion of marriage itself or the exclusion of some essential elements of marriage, or some essential properties of marriage. When it comes to the origins of fictitious consent to marriage, in other words, a group of factors which had been conducive to the creation and development of that legal institution, some authors say that this was a consequence of the ending of medieval discourse on the efficient cause of marriage. Other hypotheses propose that the simulation has been incorporated to the system of canon law from Roman law by interpolation. Disharmony between a consent to marriage and the words which express this consent was first discussed by Peter Lombard in his Sententiarum libri quatuor. The development process of the doctrine on marriage simulation started in 1212 when Pope Innocent III gave his decretal Tua nos duxit fraternitas. The 13th thru to 15th century canonists widely commented on that decretal. They also worked out basic technical terminology, involving: simulatio, simulate nuptiae and consensus fictus. The science of simulation matured for further centuries. The issue was most intensely studied in the 19th and at the beginning of 20th century. It is thanks to Cardinal J. D’Annibale that we have this distinction: simulatio cum animo non contrahendi, simulatio cum animo non sesse obligandi, simulatio cum animo non implendi. The doctrine on marriage simulation was then refined and finalized by Cardinal P. Gasparri. He also defined total simulation and partial simulation. The legislator in the 1917 Code basically relied on the assumption that internal intention of will corresponded to the uttered words or signs. The situations which were contrary to the above assumption, were settled by Canon 1086 § 2. If, by a positive act of will, the betrothed excluded marriage itself, the substance of marriage or ius in corpus, or the essential properties of marriage (unity and indissolubility), he/she contracted an invalid marriage. There were different interpretations concerning total or partial simulation among the canonists. During the revision work on the Code, the norm relating to simulation evolved under the influence of the Second Vatican Council’s teaching on a consent to marriage and the teaching on the substance of marital love, which was contained in Pope Paul IV’s Encyclical Humanane vitae. The 1983 Code settles the simulation of matrimonial consent under Canon 1101 § 2. In this new approach simulation consists in the exclusion by a positive act of will, of marriage itself or some essential elements of marriage, or some essential properties of marriage. Legal theorists have succeeded in defining a positive act of will and some of its variants. Jurisprudence have focused, among others, on the case definedas absentia consensus or negative Totalsimulation, where the betrothed grants no marital consent required by Canon 1057 and the natural law.

Wymiar kar kościelnych w kontekście Salus animarum

Author(s): Józef Wroceński / Language(s): Polish Issue: 2/2016

In his paper, the author considers the question of the dimension of ecclesiastical penalties in the context of the salvation of souls. He reaches the conclusion that the law of the Church and the power of punishment are closely associated with the same nature and mission of the Church which was established by Christ, not only as a spiritual community linked by supernatural bonds but also as a visible community, which, for the realization of its salvific mission (salus animarum), has at its disposal various means, including the power to inflict penalties. Ecclesiastical penalty always entails some diminution or even deprivation of rights that belonged to a person because of the state of life in the Church. The Church and, more precisely, those who stand at the head of communities apply penalties under the authority of Christ. The infliction of ecclesiastical penalties is effectuated within the triple function of the power of governance, i.e. legislative, executive, and judicial. However, criminal sanctions are inflicted on condition of external violation and it must be a violation of some penal statute, general or particular, or penal regulation. In addition, there must be significant sanity as a result of intentional or unintentional guilt. If it lacks any of the above-mentioned elements, it is not possible to impose of a criminal sanction in the Church in a particular case. Although this principle is absolute, still it permits an exception. Namely, the legislator allows punishment also for exceeding the legal provision that is not backed by a criminal sanction under two conditions: if the special gravity of the offense demands punishing and if, at the same time, the need to avoid scandal or to repair it is urgent. This is always done in the context of the salus animarum.

Sacramentorum sanctitatis tutela w aktualnie obowiązującym kanonicznym prawie karnym (Eucharystia)

Author(s): Dariusz Borek / Language(s): Polish Issue: 2/2016

Pope John Paul II in the Motu Proprio Sacramentorum sanctitatis tutela on 30 April 2001 promulgated the norms concerning the gravest crimes reserved to the Congregation for the Doctrine of the Faith. Such an intervention of the Church, as the Pope explained, was required by the necessity to protect the sanctity of the sacraments, especially those of the Most Holy Sacrament and Sacrifice of the Eucharist and Sacrament of Penance, as well as the need to keep the purity of morality in regard to the sixth commandment of the Decalogue. The Church, driven by pastoral concern and keeping in mind the ultimate goal of any Church law, which should be salus animarum, intervenes to prevent any violation in such serious and delicate matter as the sacraments. The Congregation for the Doctrine of the Faith issued on 18 May 2001 a letter to the Ordinaries and Hierarchs of the Roman Catholic Church describing the new crimes reserved to the Congregation and the procedural norms to be followed in these cases. Nine years after the promulgation of De gravioribus delictis norms, the Congregation for the Doctrine of the Faith modified them, integrating and updating them in order to simplify the procedures, so that they could become more effective in solving contemporary problems. The modified norms concerning the crimes reserved to the Congregation for the Doctrine of the Faith were presented to Pope Benedict XVI who approved of them on 21 May 2010 and ordered to promulgate them. De delictis reservatis norms of 2010 consist of two parts: the first one, Normae substantiales, from article 1 to 7, and the second one including articles 8-31. The first part describes the competence of the Congregation, the crimes belonging to the delicta reservata category, and the norms concerning the prescription of actio criminalis in case of delicta reservata. The latter part defines the procedures in case of delicta reservata for which the Congregation for the Doctrine of the Faith is the Supreme Apostolic Tribunal.This article analyses only those of the crimes reserved to the Congregation for the Doctrine of the Faith which refer to the sacraments of the Eucharist. It should be stated that both existing and new norms concerning delicta graviora show great concern of the Church for the protection of the sacraments. On the other hand, which seems alarming, the necessity to update the norms protecting the sacraments indicates their relatively frequent violation. In the context of possible violations of dignified and valid administration of the sacraments, especially the Eucharist, the knowledge and right interpretation of the Church norms promulgated to protect these sacraments seem vital.

Przestępstwa contra mores a misja Kościoła w sytuacji zgorszenia

Author(s): Piotr Skonieczny / Language(s): Polish Issue: 2/2016

This article deals with questions concerning the delicts contra mores governed by Art. 6 of Suprema Sanctitatis Tutela of 2010. The Author comments on two delicts: that against the Sixth Commandment of the Decalogue committed by a cleric with a minor (Art. 6 § 1, 1°), and the delict of so-called pedo-pornography (Art. 6 § 1, 1°). The order followed in this comment corresponds to that of the elements of every canonical delict: first, the objective ones (the author of the delict and his act); then the subjective ones (the dolus); and finally the legal one (the canonical sanction). The delicts are presented in the light of the Polish criminal Code, when necessary, and the 2014 norms of the Polish Conference of Bishops. This method makes possible the presentation of some difficulties to be resolved in the existing ecclesial law.

KODYFIKACJA PRAWA KANONICZNEGO ZA BENEDYKTA XV

Author(s): Marek Story / Language(s): Polish Issue: 23/2016

One of the most import ant achievements of Pope Benedict XV’s pontificate was the promulgation of the Code of Canon Law on 19 May 1918. The code was an authentic collection, therefore, all orders included in it became the common law. It also became an exclusive collection in the sense that it excluded collections used up to that date. This happened for the first time in the history of the Church.The code was exclusive only in regard to the law of the Latin Church. All common and particular articles existing before that date which were against the rules of the Code were cancelled, unless it was decided otherwise regarding some of the particular articles. In the Code, Benedict advocated the doctrinal continuity and traditional Cath-olic teaching expressed through the law orders. He perceived the code as an aid to reg-ulating the church life and a way of looking for common grounds between it and the civil communities. Undoubtedly, the code contributed to the further development of the study of law in the Church.

ASPEKTY ORGANIZACYJNE I MAJĄTKOWE FUNKCJONOWANIA STOWARZYSZEŃ KOŚCIOŁA KATOLICKIEGO W ŚWIETLE REGULACJI PRAWA POLSKIEGO I PRAWA KANONICZNEGO

Author(s): Tomasz Trojnar / Language(s): Polish Issue: 23/2016

The right of association is one of the pillars of a democratic state ruled by law. In the Polish legal system, the right of association are enshrined in Article. 12 of the Polish Constitution. Numerous provisions of international law also refer to it, making them one of the most important human rights. The Catholic Church also supports the association of their believers. The right of association and the scope of this right were laid in the Code of Canon Law in 1983. The issue of association of the faithful, who are also subject to the provisions of Polish law, must be for the mixed nature (res mixtae). This dualism of legal regulation of association, seriously hampers the proper interpretation of the rules derived from two different from each other legal systems . The purpose of this article is to present, in a comparative context, the Polish law the regulations of the Polish and the canonical law forming a right of the faithful to associate with a particular taking into account the property and organizational functioning of this kind of associations.

EDITORIAL: Kategoriální pastorace jako předmět zvláštního zájmu konfesního práva

Author(s): Jiří Rajmund Tretera / Language(s): Czech Issue: 68/2017

Categorical Pastoral Care as Point of Interest of Religion Law

Author(s): Jiří Rajmund Tretera / Language(s): English Issue: 68/2017

Udělování svátosti pomazání nemocných po Druhém vatikánském koncilu

Author(s): Petr Kubant / Language(s): Czech Issue: 68/2017

The article deals with the legal regulation concerning the administration of the sacrament of the anointing of the sick in the Catholic Church. The author points to a different understanding of the meaning of this sacrament in the period of early Christianity, scholastic theology, the documents of the Council of Trent, the Code of Canon Law of 1917, and, finally, the documents of the Second Vatican Council. The focus of the article lies in ananalys is of the relevant regulation contained in the Code of Canon Law of 1983. The author pays attention to the sacramental matter and formula, the manner of administration of the sacrament of the anointing of the sick, the time appropriate for administration, and persons of the minister and the recipient, not forgetting the issue of the communal administration of the sacrament.

Jiří Rajmund Tretera, Záboj Horák: Církevní právo

Author(s): Antonín Ignác Hrdina / Language(s): Czech Issue: 68/2017

VI. ekumenicko-právní konference, Katovice/Brenna (Polsko), duben 2017

Author(s): Monika Menke / Language(s): Czech Issue: 68/2017

8. justiční seminář, Hradec Králové, květen 2017

Author(s): Monika Menke / Language(s): Czech Issue: 68/2017

Ze Společnosti pro církevní právo

Author(s): Jiří Rajmund Tretera / Language(s): Czech Issue: 68/2017

From the Church Law Society

Author(s): Jiří Rajmund Tretera / Language(s): English Issue: 68/2017

Z nové literatury

Author(s): / Language(s): Czech Issue: 68/2017

Przyczyny i procedura wydalenia ze stanu duchownego

Author(s): Marta Wronowska / Language(s): Polish Issue: 4/2014

The subject of this article are offenses which are the basis for dis-missal from the clerical state. At the pre- article explains how the loss of the clerical state standardized in canon 290 of the Code of Canon Law.These methods are: judgment judicial or administrative decree, the papal re-script and the Holy See, and the penalty of dismissal imposed in accordance with the law by committing a serious offense by a cleric. Then,detailed and thoroughly discussed the reasons for dismissal from the clerical state. The procedure for dismissal from the clerical state was divided into two sections. The first is the procedure for transfer of a priest to the lay state. Described special powers to transfer a priest to the lay state, which has been given to the Congregation for the Clergy special powers to transfer the clergy to the lay state. The second procedure is the procedure for dismissal from the clerical state, which is reserved to the Congregation for the Doctrine of the Faith .

Доношење првог устава Српске православне цркве 1931. године

Author(s): Dragan Novaković / Language(s): Serbian Issue: 146/2014

The process of adoption of the Constitution of the Serbian Orthodox Church, after its unification and elevation to the rank of Patriarchate, has been analyzed. During ten years of work it was necessary to overcome and solve numerous and complex problems that had the internal church character or came from the political sphere. Among the first to dominate were different theoretical and canonical standpoints about the body with power to prepare the text of the Constitution and the institution with the full legitimate authority for its adoption. There was also a dissatisfaction of the people in Bosnia and Herzegovina unwilling to relinquish historically acquired rights to directly elect representatives of the ecclesiastical self-governing bodies and accept increasingly emphasized efforts to transfer all church affairs to the Episcopate. Other issue was directly related to the current political events and its main driver was the unwillingness of the ruling Serbian elite to accept the Constitution which would result in a greater autonomy of the Church and elimination of state control mechanisms. After a lengthy discussion a text was adopted as a compromise, which enabled the consolidation of church unity, the establishment of the planned organization and the assumption of jurisdiction from all the bodies and institutions envisaged in the Constitution, but also gave the state a significant influence on some important areas of church life.

Prawne gwarancje autonomii i niezależności Kościoła katolickiego w Polsce w zakresie władzy jurysdykcyjnej w sprawach małżeńskich

Author(s): Grzegorz Bzdyrak / Language(s): Polish Issue: 4/2017

Both communities, religious and state ones, are composed of the same persons. Therefore theadoption of correct relationships between them allows for full cooperation in the pursuit of thecommon good and the good of the human person. The purpose of this study is to point out the essenceof the principle of autonomy and independence of the Catholic Church and the state adopted in the Polish legal framework, each in its individual field. The guarantees of autonomy and independenceresult not only from the Polish Constitution but also from the ratifi ed international agreement,i.e. the concordat, and the Act on the Relationship between the State and the Catholic Church. Themutual recognition of the autonomy and independence is also reflected in the provisions of internallaws of the Catholic Church. The mutual respect for independence includes not only freedom ofaction, but also in exercising jurisdictional authority over marriage. In marital matters, which remainin the area of interest of both communities, each has its exclusive jurisdiction in the relevant field.

Sumienie a prawo kanoniczne

Author(s): Jan Śliwa / Language(s): Polish Issue: XVIII/2012

L’oggetto dell’articolo consiste nella nozione di coscienza nel campo di diritto canonico. Si prendono in esame diversi canoni del Codice di Diritto Canonico in cui appare la voce coscienza e l’obiettivo di questa ricerca concentra l’attenzione su i diversi ambiti che richiedono al soggetto di diritto canonico l’uso della propria coscienza. A questo scopo si cerca di chiarire la nozione della coscienza in diritto canonico, per prendere poi in esame i singoli canoni che contengono la voce coscienza. In particolare sono individuati i seguenti contesti; libertà di coscienza come libertà religiosa (CIC c. 748 §§ 1–2); l’esame di coscienza (cc. 664, 988 § 1); la direzione della coscienza (cc. 246 § 4; 630 § 1, § 5; 719 § 4; manifestazione della coscienza (il divieto per i superiori: c. 630 § 5); pro sua coscienza in esecuzione del rescritto concesso in forma commissoria (c. 70); il giudice nella valutazione delle prove (c. 1608 § 3); il giudice nella applicazione delle pene (cc. 1343, 1344).