Leksykon socjologii prawa, red. A. Kociołek-Pęksa, M. Stępień, C. H. Beck, Warszawa 2013, 465 stron
Review of: "Leksykon socjologii prawa", Ed. A. Kociołek-Pęksa, M. Stępień; C. H. Beck, Warsaw 2013, 465 pages; by: Filip Cyuńczyk
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Review of: "Leksykon socjologii prawa", Ed. A. Kociołek-Pęksa, M. Stępień; C. H. Beck, Warsaw 2013, 465 pages; by: Filip Cyuńczyk
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The three laws analyzed and compared in this work, although dealing with the same issue of religious rights and freedoms, show the conceptual differences in their approaches. These differences are mirrored in the priorities or preferences they give to various issues, or sets of issues, visible, among other things, from the amount of attention they dedicate to those issues. At the same time, and leaving these differences aside, we could say that these laws are very similar, especially in terms of the form and the choice of the issues they regulate. Probable reasons for this are: same or similar sources used - previous legislative regulations, of the common state they were all members of; international standards, about which everyone is concerned mostly because of the same aspirations of joining the European integrations; similar, if not the same, experiences and temptations, which young democracies and countries in transition usually face.
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This article aims at discussing an issue of proper “categorization” of the United States in regard to the status and effect of international treaties in the national legal realm. It is a question that does not have only theoretical value and purpose, but rather a possible significant practical impact especially in light of recent developments such as Roper v. Simmons, named by some authors as creeping monism. However, here it is argued that the reasoning in this case is just a continuation and acceptance by the Supreme Court of what is stipulated in the Constitution and proper understanding of specific provisions and the international treaty law. It is the analysis of the theoretical framework of the relationship between national and international law that is at the core and through which the author tries to show that the United States is more of a monistic country than dualist. The argumentation is presented in three parts. Part I presents the monistic and dualist theories through a comparative analysis. Part II focuses on the textualist aspect by going into the relevant constitutional provisions. Part III discuses the judicial interpretation of these provisions and the new phenomenon of “creeping monism”.
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Odnosząc się do podstawowych tez anarchizmu metodologicznego sformułowanego przez Paula K. Feyerabenda, autorzy starają się argumentować, że w naukach prawnych nie istnieje jedna wyróżniona metoda badawcza. Toteż w odniesieniu do tych nauk zasada Anything Goes z teoretycznego punktu widzenia wydaje się być szczególnie płodna.
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This paper discusses the teleological reduction, which is one of the most important forms of the objective-teleological interpretation. Then, it points out how this hermeneutic instrument by it’s nature and way of application confirms to the fullest extent the sociological nature of the teleological interpretation and sociological theory of interpretation of law, which we formulated in some earlier works. In fact, considerations about teleological reduction can serve as a convincing confirmation of hermeneutic theory that emphasizes predominant importance of the premise of the facts for understanding the nature of juristic conclusion and the proceeding of the interpretation of law. The point is that in using this means of interpretation of law, fine intertwining of the norm and facts by the logic of a single inductive reasoning becomes especially obvious. The narrowing of the meaning of a term applied in the legal norm (as well as the proceedure of interpretation of law in general) manifests itself as fulfillment of the contents of need from the legal norm, starting from the facts of the case which has found itself before the judge. The work carried out an appropriate typology of various forms of teleological reduction and proposed the corresponding model of its application.
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European Commission Regulation (EC) No 178/2002 was implemented to ensure food safety in all European Union countries. Its provisions established rules for general production and procedures for food safety. This was followed by the appointment of the European Food Safety Authority and also emergency and threat systems including the Rapid Alert System for Food and Feed (RASFF) and the Hazard Analysis and Critical Control Points intervention (HACCP). Poland immediately adopted these procedures and also the later 2004 Regulations for Good Hygiene Practice and Good Manufacturing Practice. All these provisions then became law in Poland through its 2006 implemented Act on Food and Nutrition Safety. Criminal sanctions were also imposed for illegal activities in food production and manufacture. As a result of these operations at the European Union level, assessment of food safety via the Global Food Security Index increased between 2012 and 2015, especially in Poland, Ireland and Greece.
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The article deals with the system of legal education in the Czech Republic. It briefly describes four public law schools and their history. It also analyzes basic study programmes which are provided by these law schools. The third part of the article describes the main legal professions and their prerequisites.
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The paper considers the views of scientists on the position of the law of international organizations in the general system of law. The main stages in the development of the law of international organizations as an independent branch of the public international law have been analyzed. In particular, it has been noted that the law of international organizations is understood in two ways – in the broad and narrow sense. In the broad sense, the law of international organizations is a branch that regulates public relations in the field concerning the legal status and activities of international organizations, international conferences, international institutions, and international organs. In the narrow sense, the law of international organizations is a branch that regulates only the legal status and activities of international organizations. The concept of the law of international organizations in the narrow sense has been supported. It has been proved that this judgment is close to the reality and relates the regulation of international interstate and non-state relations to its subject. The law of international organizations as an independent branch of international public law has been analyzed in relation to the national law and foreign law (private international law).
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The paper explores the legal nature and problems of systematization of criminal law measures. It has been emphasized that, following the amendments to the Criminal Code of the Russian Federation in 2006 and 2016, the indistinct position of the legislator in relation to other criminal law measures became controversial and gave rise to many questions, in particular, concerning the relation of these measures to criminal liability, relationship with punishment, establishment of their range, etc. Other criminal law measures have been defined as the measures of criminal responsibility, which, on the one hand, are not a punishment, but, on the other hand, are a form of its implementation. Two approaches to the system of these measures – narrow and wide – have been discussed. Classifications of other measures of criminal law based on various criteria have been presented. Taking into account the experience of the Belarusian legislation, a three-pronged system of criminal law measures has been proposed and substantiated: 1) punishment; 2) other measures of criminal responsibility; 3) security measures.
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Handwritten will in Italian law is regulated by the provisions of the Italian Civil Code. In this paper, the author tried to present in a precise and clear manner the solutions provided by the Italian Civil Code in view of this kind of will, and to make readers aware of some scientific and practical opinions on this legal institute. The paper offers, among othersestament that was entirely handwritten and signed by the test, the following conclusions: A holographic will is a will and tator. A holographic Will is one that is written by hand, not typed or created on a computer or word processor. While the holographic (or handwritten) will is recognized under Italian and Serbian law, there are several significant risks associated with the holographic will. These risks are form flaws, ambiguous language, and burdensome probate. The Author is trying to give explanations about norms of Italian Code Civil and about some opinions expressed in doctrine and by case law through comparison with Serbian law.
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Autorzy odrębnie traktują pojęcie prawa i wolności w rozumieniu zachowań, postępowań gwarantujących zaspokojenie niektórych potrzeb przez siłę przymusu państwa. Uwidaczniają i krytykują niespójności w semantyce i znaczenie tych dwóch terminów w niektórych aktach normatywnych, w tym ich implikacje w teorii i praktyce, a także przedstawiają niektóre propozycje de lege ferenda dotyczące art. 10 EKPC. Autorzy twierdzą, że nawet w Powszechnej Deklaracji Praw Człowieka znajdujemy wyrażenia o różnym znaczeniu dla słów prawo i wolność. Różne, niespójne znaczenia tego rodzaju pojawiają się także w art. 5, art. 9, art. 10, art. 11, art. 17 Europejskiej Konwencji Praw Człowieka. Z wyrażeń "głoszone prawa i wolności", "prawa lub wolności" używanych w Konwencji wynikałoby, że są one dwoma różnymi pojęciami. Jednakże, z wyrażeń "prawo do wolności" i "to prawo obejmuje wolność" wynikają inne sensy i znaczenia dla pojęć prawa i wolności, które wydają się być niekonsekwencjami. Podsumowując, autorzy uważają, że zarówno w teorii, praktyce, a zwłaszcza w prawie konieczne jest odrębne użycie tych dwóch pojęć: prawa i wolności.The authors treat distinctly the concept of right and liberty, in the sense of behaviours, behaviours guaranteed to satisfy some needs by the coercive force of the state. Reveals and criticizes the inconsistencies in the semantics and the significance of the two terms in some normative acts, including their implications in theory and practice, also presenting some proposals of law ferenda related to art. 10 of the ECHR. The authors claim that even in the Universal Declaration of Human Rights we find phrases with different meanings for the words of justice and freedom. Different, inconsistent meanings of this kind also appear in art. 5, art.9, art.10, art.11, art. 17 of the European Convention on Human Rights. Using the phrases: "proclaimed rights and freedoms" and "rights or freedoms" as within the Convention, would seem as two different concepts. Instead, from the phrases "the right to freedom" and "this right includes freedom", occurs other meanings and semnifications for the concepts of justice and liberty, that appears as inconsistency. "Summarising, the authors consider that both in theory, practice and especially in the law it is necessary to use distinctly the two terms of "right" and "freedom". Keywords: law, freedom, obligation, free choice, difference, behaviour, precision. (original abstract)
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Esej opisuje zjawisko „drapieżnych konferencji”, przedstawia ich charakterystyczne cechy oraz opisuje spowodowane tym problemy, przynoszące szkodę nauce. Drapieżne konferencje nie prowadzą rzetelnego procesu recenzyjnego, często mają fikcyjny komitet organizacyjny, nie są przejrzyste w kwestiach finansowych oraz siedziby, i publikują niemalże wszystko w publikacjach pokonferencyjnych. W zakończeniu artykułu wskazane jest, jak można walczyć z „drapieżnymi konferencjami”.
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The article draws attention to religious language and its relation with the religious doctrine that is either accepted, either subjected to a process of interpretation. In this article, the terms freedom and logic are considered a priori concepts to the formation of religious conscience. Starting from the premise that each individual is entitled to choose their own system of values and principles, we tend to identify, at a hypothetical level, the state of affairs of some religious manifestations. Therefore, religious manifestations that represent the identity of the individual are the result of abstract contradictions between the way of exposing a religious truth, whether relevant or not, and the right to accept a certain interpretation of the dogmatic and scriptural text.
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This study attempts to go beyond the theoretical aspects of the subject approach and to capture the everyday life moments of the manifestations of the public mentality in connection to particularly sensitive subjects, such as religious, conscience, and communication freedom. Without the tendency to extrapolate these findings, the collective mentality in a geographically determined area can give some of the answers to the theme under discussion.
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Can we talk about justice in the interpretation of law? The aim of the article is to justify positive answer to this question and closer explication of the meaning (or rather meanings) of this answer. This aim is implemented by method of conceptual analysis – analysis of the main concepts related to justice and legal interpretation. Several statements have been made on the basis of the analysis. First of all, the justice of law and the justice of legal interpretation are two separate issues. If we are talking about justice in the process of legal interpretation, we mean, above all, procedural justice. In the case of legal interpretation, there is an imperfect procedural justice, which, however, shows a significant resemblance to pure procedural justice. Procedural justice in the interpretation of law means non-arbitrariness in judging between different interpretive variants representing different substantial concepts of justice. The more procedural justice there is in interpreting the law, the more exhaustive the set of rules for making it. Although the implementation of justice understood in this way is a prerequisite for achieving a substantially just result, it can not guarantee it, and in particular can not guarantee a full ethical rightness of the result.
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This article is trying to show that the cause of the crisis of inclusive development of civil society in Poland is that there are different decisions being rendered based on the same regulations, which prejudge inequality before the law, lead to violation of human rights and standards, and impede participation in social and economic life. In legal sciences, the issue of elaborating criteria for resolving doubts about the content of the law is almost never undertaken, and they are not subject to legal regulation and can only be established spontaneously as a law. With regard to the spontaneous creation of law, scientific research is practically not carried out, which makes it difficult to determine exactly what rules, principles, guidelines for interpretation and application of law apply. Because of the foregoing, the basic conditions for inclusive development are not guaranteed. The explanation of this problem is a novelty from the point of view of the causes of the crisis of a given development and causes of the crisis of the legal system. The article uses the method of linguistic analysis and economic analysis of law.
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For Romania, the divorce indicators had rather counterintuitive values. If the media messages are mostly centered on the Romanian family drama due to an increase in divorce indicators, a conjugality with tendencies of orientation towards forms of cohabitation other than marriage, however, the analysis of national statistical data shows that Romania has one of the smallest values of divorce. Moreover, if in the European countries, the simplification of the divorce procedures led to an increase of the divorce indicators, in Romania, the situation was reversed. Legislative changes from 2010 to 2013 regarding divorce did not, in any way, stimulate the increase of legal separations but, on the contrary, the years 2013, 2014 showed a decrease in the level of Romanian divorces (from 1.45 ‰ to 1.27 ‰) (Source: Time Online, 2018)From another perspective, the condition of divorce still implies a relative level of intolerance, which makes the decision even more uncomfortable. This makes the separation process itself want to be short and discrete. This is one of the reasons why the highest rate of divorces is achieved through the agreement of the parties (in 2017, 64.4% of divorces were through mutual agreement (Source: INS, 2018).The study aims to analyze the factors that created difficulties in deciding the marital disposition through a qualitative research, the method being the sociological inquiry and the research instrument - the structured interview.
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The paper presents D.I. Meyer’s views on ownership, which is considered to be the most important property right for the civil turnover, and on its traditional contents, including powers of possession, use, and disposal. Special attention has been paid to D.I. Meyer’s idea that including the right to protect the property in the content of ownership as a fourth component is unnecessary, because it is already involved in the concept of law itself, and any possible action of the owner regarding the property can be reduced to possession, use, and disposition. Such characteristics of ownership as legal domination, property of completeness, and measure of freedom (limitation) have been discussed, whereas the right itself has been considered as the relationship of a person to a thing. In addition to the possible manifestations of the component parts of the property rights, possible restriction of powers and restrictions of the property rights in general have been considered. According to D.I. Meyer, limitations can be related both to the subject of ownership and to any part included in it. Besides the analysis of the thoughts of the leading civil law scholar about the essence of the subjective property rights, his position in terms of the current Russian legislation has been discussed.
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For the correct application of regulatory acts containing the civil law norms, it is necessary to define the period of their being in legal force which fits the time between two dates, and in particular between the date of their coming into force and the date when they lose their effect. The purpose of the paper is to demonstrate the problems of establishing the grounds for bringing into force and to termination a civil regulatory act and to propose the possible solutions to the problems. It has been concluded that regardless the way and the method of bringing into force the act containing civil law norms, this act is simultaneously in effect on the territory of the whole country; it regulates civil relations; it can be declared unconstitutional or non-functioning; it can function retroactively (having a reverse action). The grounds for bringing a regulatory act to termination are: declaring the act as the one being no longer in force, the expiration of the period for which the act was originally adopted, annulment of the act, declaring the act unconstitutional or non-functioning, declaring the invalidity of the USSR acts (of the RSFSR acts, of the acts introduced by the RF authorities which ceased to exist). After the act loses its legal force, it ceases to be effective except for the cases of its ultra-active function; it can be only applied to the civil relations which started and were completed before the act stopped to be effective; it cannot anymore be declared unconstitutional or non-functioning except for the cases when it continues to be applied to civil relations. It is feasible to legally allow for an opportunity to contest the civil law acts which have lost their effect if they are not intended for application, including by the reason of their ultra-active function.
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The article is devoted to the disclosure of the current problems and tendencies of integration processes in the forensic examination. Forensic examination is essentially focused on the use of the achievements of various branches of scientific knowledge in the legal process, and therefore its very nature has an integrational character. Comprehensive forensic expert studies are the most complex forms of integration of specialized knowledge with the involvement of relevant specialists.In the conditions of the criminal activity of new and especially dangerous forms, on the one hand, and the reform of the criminal justice bodies, the adaptation of Ukrainian legislation to the European one, on the other, the issue of ensuring Ukraine's justice with independent, qualified and focused on using the latest advances in science and technology forensic examination.Under present conditions, forensic examination is becoming increasingly demanded during pre-trial investigation and judicial review of criminal proceedings, judicial review of cases in other types of proceedings. In this aspect, one of the most important tasks is to determine the nature of complex forensic research and to develop their theoretical and methodological principles.
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