Różne wymiary odpowiedzialności prawnej

Author(s): Monika Zalewska / Language(s): Polish Issue: 77/2016

The legal liability is the issue of vast complexity and hence worth to analyze both on theoretical and practical level. The main goal is to analyze of one of the understandings of legal responsibility, imputation, proposed by Hans Kelsen. Therefore, first the concept of imputation will be described. Secondly, the mechanism will be revealed, which transforms imputation into legal responsibility. The conclusion includes the notion of incompleteness of Pure Theory of Law in application of law field.

Wprowadzenie

Author(s): Tomasz Bekrycht / Language(s): Polish Issue: 76/2016

Zasada najściślejszego związku jako reguła kierunkowa prawa prywatnego międzynarodowego

Author(s): Marcin Czepelak / Language(s): Polish Issue: 18/2016

This paper discusses the closest connection as a relationship resembling the function in mathematics. Firstly, it is the relationship between a legal issue ant the law applicable to that issue. Secondly, the closest connection determines also the way, how legal issues are defined. It means, that the closest connection constitutes relationship between the factual matrix of the case and the legal issues resulting thereof. Thirdly, the appropriate provisions of the applicable law are also determined on the basis of the closest connection. Accordingly, the case should be decided by these rules of the applicable law, which cover the factual matrix of that case with their scope of application, notwithstanding the qualification assumed by the applicable law. In this way the rules, which have the closest connection to the case will come into operation. In the nutshell, the closest connection joins factual and legal elements.Another problem discussed in this paper is the attempt of description of the closestconnection. It has been done by the analysis of the interplay of the four fundamentalprinciples of the private international law: the closest connection, predictability, partyautonomy and the protection of the weaker party. It has been shown, that the closestconnection is always a starting point, however usually not the final goal of the privateinternational law.

Totalizujące praktyki we współczesnych demokracjach (aspekty filozoficzne i teoretycznoprawne)

Author(s): Anetta Breczko,Alina Miruć / Language(s): Polish Issue: B/2016

In the present paper, we focus on diverse threats to the functioning of democraticsocieties, associated with technological progress. Information technologies can lead to the violation of human dignity and contribute to the transgression of human rights and freedoms. Authorities in democratic countries – thanks to new technological instruments – control and supervise areas of life that hitherto were considered private. This increasing state control leads us to the thesis that there is an incipient process of gradual convergence between democratic and totalitarian countries, and that totalizing practices become more and more pervasive in the functioning of modern democratic systems.

Wzorzec ustrojowy. Przyczynek do rozważań na temat recepcji w nauce o systemach politycznych

Author(s): Tomasz Wiesław Szklarski / Language(s): Polish Issue: 5/2016

Constitutional model is a broad concept combining different political and legal aspects, among whichtwo main aspects (namely negative and positive ones) can be distinguished. The constitutional lawgiveravoids negative models, bearing in mind bad experiences of its own country and/or other countries,and at the same time willingly draws inspiration from positive model. It should be noted that,in this context, three models may be used, a systemic model which involves the reception of the entiretyof values and constitutional arrangements (both formal (in book), contained in the provisionsof law, and actual (in action), arising out of political practice), or institutional, referring to one ormore specifi ed institutions in the country, and political, which shows the standards of behavior inspecifi c situations of political life. The author characterizes each of these models using the examplesof system of government existing in constitutional modern states.

Wolność sumienia, religii i światopoglądu w niemieckim i amerykańskim prawie pracy — wybrane przykłady regulacji prawnych i orzecznictwa

Author(s): Ewa Tuora-Schwierskott / Language(s): Polish Issue: 2/2014

Freedom of conscience and religion also applies to conflicts in the workplace. In the Federal Republicof Germany and the U.S. legislation and the jurisprudence have developed certain standards ofconduct in such cases. In the German system, the issue of conscience in the workplace is governedby the principle of pacta sunt servanda (agreements must be kept) enshrined in the Civil Code (BGB).In the United States the freedom of conscience and religion is guaranteed by the provisionsof Title VII of the Civil Rights Act l964. In such cases, the duty of the employer is to examine theconfl icting interests of employer and employee, and to consider whether the resulting confl ict can beresolved without harm to the company. Such conflicts usually occur when the time of work coincideswith e.g. the time of prayer or religious holidays of the employee. In such a situation, the employeris obliged to examine and change the workplace organization, so as to enable the employee to carryout his/her obligations under religious law. Only when it is impossible to reconcile the confl ictinginterests of the employee and the employer, that the interest of the employer prevails over the interestof the employee. In Germany and the United States courts in their judgments have developed preciserules for the interpretation of freedom of conscience and religion under labour law, having regardto the rights of the employee and the employer’s interest. These judgments have become thebenchmark for resolving disputes arising out of violations of freedom of conscience, religion orbelief, and may also affect the legislation of other countries.

Małżeństwa jednopłciowe i interes publiczny w orzecznictwie amerykańskiej judykatywy

Author(s): Rafał Prostak / Language(s): Polish Issue: 2/2014

On 26 June 2013, the Federal Supreme Court of the United States released a judgment in the United States v. Windsor, in which it challenged the constitutionality of the defi nition of marriage under federal law. In reasons for its decision, the Court confi rmed the unfounded exclusion of samesex marriages, concluded under state law, from access to entitlements associated with the institution of marriage. Making its decision the court applied a rational basis review, one of the three standard test in the review of the constitutionality of legislative interference with individual rights in the United States. The author provides a reconstruction of the content of public interest associated with the institution of marriage, and acquaint the Polish reader with the controversies associated with the application of rational basis review by the U.S. judiciary in matters concerning the rights of homosexuals.

La souveraineté ou les souverainetés ? Réflexions sur les relations entre souveraineté de l’État et souveraineté de la nation

Author(s): Remigiusz Chęciński,Alexandre Departout,Tymoteusz Mądry / Language(s): French Issue: 2/2013

The study attempts an analysis of the relationship between the concepts of state and nation sovereignty. The thesis has been proposed that state sovereignty could be regarded as a derivation of nation sovereignty. While attempting to approve of the proposed thesis, the authors describe the relationship between both institutions by referring to their origins. In the light of concepts of sovereignty, the relationship between state and international law is presented from a philosophical perspective. Approving the proposed thesis, the authors conclude that regardless of whether state sovereignty derives from nation sovereignty or not, the two concepts refer to different backgrounds which can be seen both in their origins and contemporary realities.

Sprawiedliwość kary w niesprawiedliwych społeczeństwach – uwagi o nurtach krytycznych w filozofii karania

Author(s): Michał Peno / Language(s): Polish Issue: 35/2017

Among the modern concepts of punishment a current critical of the standard – classic – model of criminal law can be distinguished. Critics, whether criminologists, philosophers or representatives of other social sciences, including P. Fletcher, T. Eagleton or B.A. Arrigo, focus their attention on the problem of the relationship between social justice, i.e. the functioning of an individual in the community and criminal justice. Social injustices such as poverty, inequality and other types of exclusion, or generally the very existence of an underclass as a group of people excluded from participation in the civil society, should be reflected in the shape of criminal law and responsibility for criminal offences. The aim of the study is to answer the question of how factors related to broader social justice should – in the light of the critical and contesting views – affect the responsibility or the justice of punishment.

Przypadki łącznego stosowania prawa publicznego i prywatnego

Author(s): Agnieszka Łąpieś-Rosińska / Language(s): Polish Issue: 35/2017

Application of public law and private law by state administration and state legal entities. The division of public law is often conducted on the basis of subjective criteria. However, from many legal regulations arises the necessity, or even the indispensability, to combine public and private law. An example of this can be expropriation proceedings, which have been regulated in the Real Estate Management Act dated 21st August 1997 in Arts. 112–127. On the one hand, an administrative body issues the decision about expropriation as an act of public legal authority, on the other hand, it applies private law during the stage preceding the issuing of decision, i.e. during negotiations. In contrast, entities such as the National Health Fund (NFZ), which is not a state administrative body within the governing system understanding, by virtue of specific regulations is authorized to issue decisions by its Chairman and branch directors. In view of the above examples, it should be concluded that the division of law into public law and private law on the basis of subjective criteria is not appropriate.

Sprawiedliwość międzypokoleniowa w międzynarodowym prawie środowiska

Author(s): Maciej Nyka / Language(s): Polish Issue: XXXV/2016

Intergenerational equity stems directly from the definition of sustainable development. Securing the decent environmental conditions of living for future generations seems to be one of the conditions of the continuity of mankind. That is the reason why the care for the quality of the environment which will be left to future generations can be identified in many international and national documents. Some of these documents are political in their nature, but the rest form a part of international or national „soft law” or even „hard law”. Also, the relations between contemporary people and future generations can be analyzed as a moral duty or can be identified as a legal duty of care, legal interest of future generations or even treated as a right of future generations to the environment of good quality. This last approach seems to secure the quality of the environment in the most effective way. Paradoxically, granting environmental rights to future generations can also secure a good quality of the environment also to contemporary people. On the other hand, many theoretical and practical problems concerning securing rights to people that do not exist at the moment cannot be avoided. Some of these shortcomings have been already solved by the doctrine of legal theory and legal philosophy but still, research in this area seems to be needed.

Sprawność postępowania sądowego w kontekście etosu sędziowskiego

Author(s): Anna Machnikowska / Language(s): Polish Issue: XXXIII/2015

The increased doctrinal and normative interest in the ethos of a judge does not correspond in a satisfying dimension to practicing ethical principles by judges, in a way which would be expected due to the current socio-economic needs and constitutional standards.The above is affected by the procedures of amending law that are deprived of axiological debates, disputes between executive and judicial powers that are settled in the short-term and secondary perspective, as well as difficulties in defining the current duties of judges.The attention should be also drawn to the lack of ethical principles concerning legislative and executive authorities, which would help to strengthen the position of the judiciary. Meanwhile, there are much more recipients and beneficiaries of ethical principles addressed to judges than their number. However, these people often do not combine this issue with a specific legal interest (general and separate). It is equally important to notice the direct relationship between the ethos of a judge and often postulated efficiency of the judiciary, which is reflected by the conditions of functioning of the rule that the judge directs proceedings.

Idea solidarności w systemie zasad konstytucyjnych

Author(s): Andrzej Pułło / Language(s): Polish Issue: XXXIII/2015

The system of constitutional principles became considerably complicated in 1997 when the ethical principles of social relations, such as common good, solidarity and subsidiarity were introduced to the text of the Constitution. The extension of the catalog of constitutional principles caused that the concept of political and socio-economic system ultimately ceased to be useful in the description of the system of constitutional principles. In order to present a coherent system of constitutional principles it is necessary to outline the new structure of constitutional norms based on the distinction of the most fundamental values of the political system. One of the five sets of principles is the system of social and ethical principles. It is based on the main idea of the principle of the righteous state based on a broad interpretation of social justice, and on the other hand on the whole system of new social principles, which include the principle of solidarity.

Zinsrechtliche Rechtsprechung und Gutachtenpraxis in der Islamischen Welt in Vergangenheit und Gegenwart

Author(s): Hilmar Krüger / Language(s): German Issue: XXXIII/2015

CORRELATION OF NORMATIVE RESOLUTIONS WITH NORMATIVE LEGAL ACTS

Author(s): Karatayev Turdaly Zhaksylykuly / Language(s): English Issue: 4/2013

In the given article the issues concerning normative resolutions which are given by the Supreme Court of the Republic of Kazakhstan according to criminal cases are pointed out. Th e structure and mechanism of normative resolutions are discussed. Correlation of normative legal acts are investigated. Normative legal acts consist of legal norms, they regulate and manage social relations. It means that, as the normative legal acts play an important role on the judicial sphere, they create, change the norms and even can stop their activity. Here we may include constitutional laws, codes, laws, all charters of the President of the Republic of Kazakhstan which have legal power. Normative resolutions are equal for all, according to definite cases it is used not for one person, but for several people. Also, normative resolutions are used in accordance with legal acts, and until the used norm loses its power it can have defi nite power.

Professional responsibility and conflict of interest

Author(s): Lois Eveleth / Language(s): English Issue: 1/2017

When conflicts of interests arise for the professional, s/he should be aided in their resolution by a long-standing body of knowledge called ethics. Ethics provides an array of concepts, vocabulary, and strategies to aid in both the understanding and the resolution of such challenges. Central here are two concepts, viz. responsibility and conflict of interest. Responsibility emerges incrementally from a person’s knowledge, freedom, and deliberation. Conflicts of interest are either simple or complex: simple, when a principle conflicts with human wants; complex, when two or more principles are mutually inconsistent. An analysis of these two concepts leads us to the claim that a professional, to remain such, even while embracing an ever-expanding burden of responsibility, needs a conceptual framework for resolving conflicts of interest.

St. Thomas Aquinas and John Locke on natural law

Author(s): Ginna M. Pennance-Acevedo / Language(s): English Issue: 2/2017

John Locke’s natural law theory has frequently been conceived as a continuation of the Thomistic tradition and as sound basis for human rights as universally binding. This paper concludes that this is not the case. Unlike Aquinas’ metaphysical realism, Locke’s empiricism and nominalism make it impossible for us to know our human nature, our exclusively human goods, andtelos—thereby undermining the sound foundations of the exceptionless moral precepts of natural law. Whereas Aquinas defines the good as that which is perfective and fulfilling of human nature, Locke identifies the good with pleasure, which leads to subjectivism. While both Aquinas and Locke argue that God is the origin and foundation of the binding force of natural law, Locke’s voluntarism is incompatible with the ruling nature of law. Consequently, unlike Aquinas, Locke’s theory lacks the metaphysical foundations for universal human rights.

Zakresy przedmiotu Historia myśli politycznej i prawnej i przedmiotu Jurysprudencja oraz ich komparatystyka

Author(s): Roman Andrzej Tokarczyk / Language(s): Polish Issue: 2/2016

The text comprises three layers: descriptive, evaluative and comparative. The descriptive layer is devoted to two subjects – history of political and legal thought on the one hand and jurisprudence on the other. The evaluative layer concentrates on showing the cognitive and practical values and functions of these two subjects. The comparative layer addresses the importance of these scholarly disciplines in modern science and their relevance from the standpoint of law students expectations.

Umowa społeczna współcześnie

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

The aim of the article is to remind that the concept of the social contract is not an outdated tool for analysing political reality. On the contrary, this liberal concept still retains its importance and usefulness. Democratic and liberal order seems to be in danger every time when one of the two parties – the authorities or demos – fails in its duty. Strictly speaking, where people will not listen and the political power demonstrates incompetence. Naturally, the parties to the social contract are not and cannot be equal. The authorities take on their shoulders a much heavier burden of responsibility. Therefore one can venture the opinion that riots, revolts and revolution erupt as a result of the unskillfulness of political power, where the authorities – instead of being a stabilising force supporting political reality and the rule of law – allow subversives to question the state and its legal order.Afiliacja: Uniwersytet Jagielloński

THE PROBLEM OF THE INDETERMINATE DEFENDANT IN TORT LAW IN EUROPE

Author(s): Katarzyna Krupa-Lipińska / Language(s): English Issue: 2/2016

The article discusses the problem of the indeterminate defendant in European tort law systems and in the projects aiming to unify tort law in Europe, such as Draft Common Frame of Reference and Principles of European Tort Law. The given issue relates to a situation where there is a damage caused by one factor, yet upon available evidence one may indicate a few potential factors which might have led to the damage, but it cannot be ascertained which factor was the actual cause of it. The problem is addressed with reference to two scenarios. First, when there is a limited and known number of persons acting tortiously, each of whom potentially might have led to the damage, but only one of them had actually caused it. Second, when it is certain that one tortfeasor from the undetermined group of tortfeasors caused damage to some of the injured persons from the group of the injured persons, but it cannot be established precisely which tortfeasor caused damage to precisely which injured person. In comparative law analysis, one may find various attempts to deal with the given issue, which come from the balance of ratios given to different solutions, as well as the legal possibilities or obstacles in national tort law systems. The main possibilities are: all-or-nothing approach, joint and several liability, and proportional liability. Those solutions are discussed in article in more detail with conclusion that the bold proposition of proportional liability presented in Principles of European Tort Law seems to be the most appropriate.