Przestępstwo i kara w filozoficznym ujęciu Johna Finnisa

Author(s): Michał Peno / Language(s): Polish Issue: 1/2018

The main aim of this article is to outline the concept of criminal responsibility emerging from John Finnis’s natural law philosophy. Finnis accepts the retrospective point of view of punishment (retribution), rejecting the idea of social reintegration (re-socialization, rehabilitation). Only aim of the punishment is to restore the so called social balance, violated by crime. The key to Finnis’s approach is that crime, responsibility, justice and punishment are understood in terms of the natural law tradition. Finnis’s concept of the criminal responsibility is treated as the starting point for reinterpretation of classical (or traditional) retributivism in the spirit of natural law. Moreover, the reinterpretation takes into account the critical comments formulated by scholars from the so called radical criminology, abolitionism, and penal minimalism.

Poszukiwanie prawdy w procesie cywilnym

Author(s): Izabela Pilarczyk / Language(s): Polish Issue: 2/2014

Fundamentally, it is expected that dispensation of justice guarantees a fair judgement. However, both terms -‘justice’ and ‘truth’, which are closely related to each other, are ambiguous. What is more, their common meaning strays from the legal one. At the same time, the adoption of the proper concept of truth (procedural or objective) by a legislator leads to the significant consequences in practice which have an impact on drawing conclusions and on settling a civil law dispute. This paper attempts to determine the concept of the principle of the adopted truth in the Polish civil procedure. The author analyses the development of the Code of Civil Procedure and assesses the amendments. The matter of the principle of truth in force is still a moot point among lawyers since the amendment of the Code of Civil Procedure was introduced on March 1, 1996. It was a turning point in reference to the previous accepted concept of the objective truth. Next changes, especially the latest ones, confirm the thesis about applying de lege lata the principle of the objective truth. That conclusion is the central thought of this short essay. The goal of the paper is to discuss the practical and theoretical aspects of the principle of the truth which can be recognized as the most justifiable. The author of the article tries to present advantages and disadvantages of both concepts of truth and also formulate the postulates de lege ferenda. They should provide the grounds for a detailed discussion among legal experts, and particularly among the theorists of law.

Libertariańska koncepcja własności

Author(s): Dariusz Juruś / Language(s): Polish Issue: 1/2005

Zasadność zmiany klauzuli „zasady współżycia społecznego"

Author(s): Marcin Sala-Szczypiński / Language(s): Polish Issue: 1/2007

Rozkwit doktryny prawa karnego w Polsce w dwudziestoleciu międzywojennym – ośrodki, uczeni, idee

Author(s): Danuta Janicka / Language(s): Polish Issue: 1/2019

The interwar period was marked by a significant growth of the criminal law doctrine in Poland. Along with senior academics – professors Krzymuski and Miklaszewski, an extensive research was developed by the representatives of the younger generation, including professors Makarewicz, Makowski, Mogilnicki and Rappaport, and the representatives of the new generation, among those the most prominent were professors: Wolter, Śliwiński, Glaser, Wróblewski, Radzinowicz, Papierkowski, Świda and others. Five university law faculties – in Warsaw, Cracow, Lviv, Vilnius and Poznań – were the most important Polish criminal law centres. The Polish scholars undertook all the fundamental and current issues regarding penal studies in a whole, including criminology and penal policy, which were structuralizing at the time. The theories and ideas presented by them corresponded to the modern European and global trends. Numerous enlightened conceptions of the Polish scholars were realised in the criminal code, administrative offences law, prison act and other legal acts. The original and modern juvenile law created in the interwar period, which was constituted in adequate sections of the criminal code and the code of penal proceedings, deserves a particularly high grade.

Poglądy Emila Stanisława Rappaporta na prawo karne i jego kodyfikację w Polsce Ludowej początku lat pięćdziesiątych

Author(s): Tomasz Szczygieł / Language(s): Polish Issue: 1/2019

The work presents the views of Emil Stanisław Rappaport on criminal law and its codification in the beginning of Polish People’s Republic. The considerations are mainly based on preserved archival materials that show the attitude of Professor Rappaport to the problems of criminal law in post-war Poland. Of significance for the article are also published sources, especially conference materials related to preparations for the 1st Congress of Polish Science, which reveal a significant discrepancy in the perception of the criminal law by academics, including Rappaport, and politicians.

Evidence Based Practice Integration into Polygraph Practice: A suggested paradigm

Author(s): Tuvya T. Amsel,Avital Ginton / Language(s): English Issue: 1 (53)/2021

The philosophy of evidence-based practice advocates professionals to rely on scientific evidence. Although the idea seems obvious, misuse of the philosophy raised controversy, which created confusion and misunderstanding of the concept. Yet, since it was introduced in the nineties to the medical community and despite the controversy, it gained more and more disciples and was embraced by nonmedical practitioners, including the polygraph profession. In the last decades, the polygraph community has gradually abandoned the intuitive-based polygraph practice that relies on less scientifically rooted subjective procedures and advanced toward evidence-based polygraph practice. This paper describes the evidence-based practice in general and details the practical aspects of evidence-based polygraph practice in particular, along with discussing the limitations of the current scientific research. It questions the current bone-tone trend to implement an extreme Evidence-Based approach into the polygraph practice, suggesting the practitioner to avoid a rigid “one size fit all” standardized protocols which are advocated as a must on the way to earn scientifi c recognition, whereas, in fact, it is the unfortunate outcome of lack of diff erential research data. As in the medical field, in-where the Evidence-Based practice managed to incorporate the clinical experience of experts with the hard research evidence and has not disregarded their valuable knowledge and experience, the present article calls for adopting this integrative approach in the polygraph field too and adjust the protocols to the specific circumstances of the case and the examinee in a “tailor-made” mode, which is based on existing data and flexible thinking wherever there is no data to rely on, as was suggested under the concept of “Adaptive-Polygraphy” (Ginton, 2013).

Directed Lie – The Correct or the Easy Way?

Author(s): Tuvia Shurany,Nathan J. Gordon / Language(s): English Issue: 1 (53)/2021

Lately there had been a huge push in our profession toward the use to use the Directed Lie Comparison question (DLC). The truth verification field is divided into “pro and con” towards this idea, like many things in life. This article will research whether this “new fashion” is really the correct way or the easy or lazy way to conduct psychophysiological truth verification examinations, as well as make comparisons between the advantages and disadvantages between the DLC and the Probable Lie Comparison question (PLC).

The use of narcoanalysis by Polish counterintelligence in the 1930s

Author(s): Jan Widacki / Language(s): English Issue: 1 (53)/2021

From Introduction: "The initial idea of using narcoanalysis for investigation purposes arose soon after surgeons began using narcosis (sedation) to induce sleep during surgery. There are four phases that a patient goes through in general anaesthesia (e.g. with ether or chloroform): the state of shock or analgesia (stadium analgesiae), the state of delirium (stadium excitationis), the state of surgical anaesthesia (stadium anaestesiae chirurgicae), and the stage of respiratory arrest (stadium asphycticum) (Danysz, Gryglewski, 1982)."(...)

Some considerations on the principles of law

Author(s): Marius Andreescu,Andra Puran / Language(s): English Issue: 2/2020

Any scientific intercession that has as objective the understanding of the significances of the “principle of law” needs to have an interdisciplinary character, the basis for the approach being the philosophy of law. In this study we fulfill such an analysis with the purpose to underline the multiple theoretical signifi cances due to this concept, but also the relationship between the juridical principles and norms, respectively the normative value of the principle of the law. Thus, extensive references to the philosophical and juridical doctrine in the matter are being materialized. This study is a pleading to refer to the principles in the work for the law’s creation and application. Starting with the difference between “given” and “constructed”, we propose the distinction between the “metaphysical principles” outside the law, which by their contents have philosophical significances, and the “constructed principles” elaborated inside the law. We emphasize the obligation of the law maker, but also of the expert to refer to the principles in the work of legislation, interpretation and applying of the law. Arguments are brought for the updating, in certain limits, the justice – naturalistic concepts in the law.

The Protection of the Right to Freedom of Expression in International Human Rights Law: an Overview

Author(s): Lucas Moreira Alcici / Language(s): English Issue: 2/2020

This paper provides an overview on the protection of the right to freedom of expression in international human rights law. It addresses the scope of this right and focuses on the exceptional circumstances in which this right might be restricted. According to international law, a restriction must be provided by law, pursue a legitimate aim and be necessary to achieve this particular legitimate aim. Additionally, the restriction shall be the least restrictive measure capable of achieving the legitimate aim pursued. In other words, freedom of expression may only be limited if the restriction meets the requirements of legality, legitimacy, necessity and proportionality, as defined by international human rights law.

Sprawozdanie z Międzynarodowej Konferencji Naukowej „Sztuczna inteligencja a prawa człowieka”

Author(s): Aleksandra Partyk,Kamil Szpyt / Language(s): Polish Issue: 2/2020

Robin T. Bowen, Ethics and the Practice of Forensic Science, 2nd ed., CRC Press Taylor & Francis, Boca Raton cop. 2018, 253 ss.

Author(s): Robert Borkowski / Language(s): Polish Issue: 2/2020

THE KANTIAN FOUNDATIONS OF THE RIGHT TO PUNISH

Author(s): Diana Dănișor,Elena Oancea / Language(s): Romanian Issue: 37/2024

In the philosophy of Immanuel Kant, the right to punish is based on distinct moral and rational principles. Kant argues that punishment is justified in the context of individual morality and autonomy. He argues that autonomy presupposes the ability to act in accordance with the laws of reason and to respect human dignity. Punishment, according to Kant, is not only a retribution for a crime committed, but also a restoration of moral order and an acknowledgment of the individual's responsibility for his own actions. Essentially, Kant promotes the idea that punishment must be proportionate and morally justified, given the human dignity and moral autonomy of each person.

CONTROVERSIES REGARDING THE CRIMINAL LIABILITY OF THE LEGAL PERSON

Author(s): Ştefan-Ciprian Raicea / Language(s): Romanian Issue: 37/2024

In the specialized literature, it is stated that the notion of legal personality is very old, having its origin even before the elaboration of the Code of Hammurabi (approx. 1750 BC). This concept is also found in Roman law, where the state was the first legal entity, holder of its own patrimony (ager publicus) and where there were sodalites and collegia, which associated people for a religious and political objective, corpora (associations of workers) and societies (precursors of today's commercial companies). In the last 40 years, several international organizations have proposed the establishment of criminal liability of the legal person. Thus, the first paragraph of the Recommendation of the Council of Europe no. (88)18 regarding the liability of enterprises for committing crimes shows that the considerable damage caused to private individuals by the increasing number of crimes committed in the exercise of the specific activities of enterprises must be taken into account. Through this Recommendation, states are suggested to retain the criminal liability of the enterprise, regardless of the identification of the natural person author of the criminal actions or omissions. It is pointed out that the undertaking of the responsibility of the enterprise must not exempt from liability the natural persons involved in the commission of the crime, as it is necessary to retain a fault of the legal person, distinct from that of the natural person called to represent it.

Legal understanding of the emergence and termination of freedom of will

Author(s): Viktor Savchenko / Language(s): English Issue: 63/2024

Free will is an essential legal idea that determines the nature of legal relations. Free will is essential for private law, as it shapes the mechanisms for entering into contracts, fulfilling obligations, the scope of civil capacity, adherence to the principles of discretion, voluntariness, fairness, etc. The purpose of the paper is to determine the dynamics of freedom of will and to provide a legal justification for the moment of its emergence and termination. The scope of free will is dynamic; it arises at birth and changes throughout life. The scope of free will is related to two main criteria: the level of intelligence and the scope of civil capacity. Minor children, people with limited civil capacity, and incapacitated persons have the lowest level of free will. The scope of free will also vary within a specific civil capacity. Free will may be temporarily suspended when someone is unaware of their actions. A complete, irreversible loss of free will occurs only in the event of death. From that moment on, a person ceases to be a party to legal relations and a legal person.

Image of the Community of Legal Professionals in the Television Coverage – a Case Study

Author(s): Małgorzata Stefaniuk / Language(s): English Issue: 1/2024

The aim of the study, which is of a scientific and research nature, is to present the mass media image of the community of legal professionals in Poland. It is a case study based on a specific television coverage in the form of a pseudo-documentary series titled Caste (Pol. Kasta) broadcast by Polish public television. This image is important for the correct organisation of social relations. The significance of the issue and the way it is presented deserve a closer insight, especially since lawyers have not been in high positions in public opinion polls on the prestige of professions for years. The pseudo-documentary was chosen as the research material for the study, because it falls within the broader concept of a documentary while being a certain novelty. For the purpose of the study, a test sample was selected. As a result of the research, it has been shown that the picture of the community of legal professionals presented in pseudo-documentary TV shows in Poland is negative. The usual plot of such shows is that as a result of various kinds of informal deals, unfair decisions are made which are harmful for the victims of the deal, for which the entirety of legal community is blamed, including primarily judges. Exceptions are very rare, and the only hope are young, idealist advocates who are presented as lawyer role models. The TV show Caste, operating unfair simplifications and stereotypes, was part of a series of actions aimed at discrediting the legal community in Poland and did not improve its image. The balance between facts and fiction has been disturbed, which served to support a presupposition that Polish realities are flawed due to the conduct of legal professionals, especially judges. Only those problems in the judiciary have been emphasised, which have helped to prove the need for reform, particularly corruption. Educational opportunities typical of this form of communication were not used, hence the level of legal awareness of Polish society was not raised. It can be hypothesized that the presented image from a medium that constitutes the main source of information and has the largest audience, could have affected the opinion about legal practitioners in Polish society. The TV series met a response from the public, which however requires a separate study.

Artificial Intelligence vs Copyright Law – a Question about the Result of a Clash between Them. Is it Mere Futurology or the Imminent Future?

Author(s): Jerzy Szczotka / Language(s): English Issue: 1/2024

This research paper concerns the copyright-law consequences of generating literary and artistic creations resulting from the “creative activity” of artificial intelligence (AI). The essence of the problem that rapidly gains practical significance boils down to the question whether, at present (de lege lata) and in the future (de lege ferenda), such creations can be protected under copyright law and who should possibly be considered to be the author. The legal-dogmatic analysis of the normative matter, the current state of science and the case law in force applicable here, shows that under the current legislation the creations generated by AI do not fall within the definition of creative work and do not form the subject of copyright as they were not created by human being. Therefore, the AI may not be considered to be the author and thus endowed with a copyright and even more a moral right to the work. In the de lege ferenda perspective, the proposals to cover AI-generated assets by protection outside the copyright law area, e.g. through related rights or the institution of work made for hire, are not fully convincing for axiological reasons, i.e. the difficulty of identifying a person who deserves to benefit from such protection. Nor can the proposal to grant subjective rights to AI itself be supported, since this would mean changing the axiom of the copyright law, namely that only a human being can be the author. If copyright is to survive as a right of a human creator, which should be advocated, then in the light of this regulation the literary and artistic creations generated by AI should remain in the public domain.

Judicial Cancellation of Commonality of Author’s Economic Rights as the Proceedings Excluded from the Jurisdiction of the Intellectual Property Courts: Case Study

Author(s): Grzegorz Tylec,Sebastian Kwiecień / Language(s): English Issue: 1/2024

The article is of a scientific and research nature and presents the problem of a possible cancellation of joint ownership of the copyright in non-litigious proceedings during litigation between the same parties concerning the infringement of copyright to an audiovisual work. In connection with the doctrinal dispute regarding the cancellation of commonality of copyright, the authors present arguments in favour for such a possibility in light of the provisions of both copyright law and civil law, and they discuss the procedural provisions related to such cancellation. An important aspect of the problem addressed in this paper is also the impact of the proceedings for the cancellation of commonality of copyright on the ongoing litigation proceedings between the same parties concerning the infringement of the author’s economic rights. As a result of the analysis of the current legal status, taking into account the events of a past court case, the authors present conclusions of the law as it stands with regard to the need for changes in civil procedure – the proceedings in intellectual property cases. It should be emphasized that the addressed research problem concerning the mutual relation between the substantive law provisions and the civil procedure in the scope of cancellation of commonality of the author’s economic rights has not hitherto been described by legal scholars and commentators.

Poker w świetle ustawy o grach hazardowych i regulacji Unii Europejskiej

Author(s): Maria Lewandowicz,Marek Kacprzak / Language(s): Polish Issue: 2/2024

The authors of the paper undertook an analysis of the regulations on the organization of a poker game under the Gambling Act. The main subject of the analysis revolves around the question to what extent state authorities should monitor and restrict the activity of poker players. The scope of the statutory restrictions on arranging and participating in poker games depends on the culture of perception of gambling in a given country. Assigning poker to the appropriate regulatory category, either as a gambling activity carrying the highest social risks in terms of public health or safety, or as a game primarily for entertainment, is by no means obvious and depends on determining such factors as the purpose of organizing the poker game and the manner in which it is played, i.e. whether players are playing against a casino or against each other. The regulatory differentiation depending on the variety of poker games is the result of years of efforts by national legislators and the jurisprudence to define and categorize the game correctly. The article cites the jurisprudence of the Constitutional Court justifying the formal and material prerequisites of the existing restrictions on the gambling services market. The authors also relied on the extensive body of case law of the Court of Justice of the European Union explicating the permissibility of restrictions on freedom of establishment and freedom to provide services in the sphere of gambling. The conclusions drawn from these reflections confirm that the current provisions of the Polish Gambling Act are part of a consistent and systematic state policy aimed at ensuring the highest possible level of consumer protection, and the introduced restrictions are proportionate and necessary.