ДРУШТВЕНИ ОКВИР „ПРАВА СЛАБИЈЕГ“

Author(s): Slaviša Kovačević / Language(s): Serbian Issue: 70/2015

Израз „право слабијег“ аутор појмовно разматра у физичко-биолошком, социјално-психолошком, формално-правном и социолошко-правном значењу и утврђује њихова нормативна исходишта. У истраживању аутор полази од три методолошко- теоријска становишта: правно-социолошког метода, антропо- солидаристичке теорије права и доктрине социјалних права са циљем утврђивања генерализација о факторима и околностима фактичке неједнакости и немоћи појединаца и група у остваривању својих људских права и слобода. Дихотомија јак−слаб увек се јавља у диференцираном друштву кога „прождиру“ природне и друштвене неједнакости и стање немоћи појединаца, а ако се тo разликовање културно и идеолошки оправдава, онда се форматира посебна ауторитарна и патерналистичка свест која такво стање одржава. Аутор у раду разматра право слабијег у контексту нефункционалног права, посебно права земаља у транзицији. Право слабијег смештено је у оквир фактичких друштвених, културних, економских и политичких оквира у којима се оно ствара, примењује и остварује: „право слабијег“ од правног текста до друштвеног контекста. Правна заштита и правна сигурност „слабијег“ одређени су, пре свега, нормативно- правним капацитетом и фактичком извесношћу остваривања функције права у заштити слабијег. Претежне караткеристике друштва и стварне немогућности примене права утичу и на степен имплементације човекових права. Сиромашно и неразвијено друштво смештено у аномични друштвених амбијент представљају неповољан контекст за остваривање права слабијег.

Joint stock companies having the local government as sole shareholder – some practical remarks in the case of Romania

Author(s): Emőd Veress / Language(s): English Issue: 4/2017

As a general rule, a joint stock company is based on a contract, therefore at least two shareholders are necessary to establish such a business entity. A sole shareholder joint stock company has an exceptional character, because it can be founded only by the state or by the local government. In the Romanian jurisprudence recently several important problems were raised regarding the operation of sole shareholder joint stock companies, therefore a detailed analysis of the court cases dealing with the representation of the interests of the sole shareholder and with judiciary control over the activity of such companies seems pertinent.

BEZROBOCIE A NIEPEŁNOSPRAWNOŚĆ. REHABILITACJA ZAWODOWA JAKO PRZEJAW AKTYWIZACJI ZAWODOWEJ OSÓB NIEPEŁNOSPRAWNYCH – WYBRANE ZAGADNIENIA

Author(s): Aneta Kowalczyk / Language(s): Polish Issue: 21/2017

The problem of unemployment among disabled people is a highly complex matter therefore it is difficult to explicitly identify its causes. Yet it can be undoubtedly concluded that mechanisms increasing the chances for this group of employees to take up work include legal regulations relat-ed to vocational activation. Their analysis, taking into account Polish legislation, provides evidence for a hypothesis that in some aspects they are insufficient, for instance due to the lack of systematic regulations related to supported employment, or that they are not fully applied by employers.

UWAGI CO DO ZGODY PACJENTA NA ZABIEG MEDYCZNY JAKO FORMY OCHRONY AUTONOMII JEDNOSTKI ORAZ WARUNKÓW LEGALNOŚCI ZABIEGU LECZNICZEGO W ROZUMIENIU ART. 192 K.K. PRZY ZASTOSOWANIU TELEMEDYCYNY

Author(s): Anna Marcinkowska / Language(s): Polish Issue: 21/2017

In the following article, all conditions being necessary to make a medical treatment legal – with special regard to formal requirements associated with obtaining patient's consent – have been discussed. Ananalysis of the legal acts, on the basis of which patient's will is protected, Has also been done. International conventions as well as the Constitution of Poland itself have been taken into consideration in the Niven process. Doctor's liability for committing a crime mentioned in the penal code, article 192 has been discussed within the further part of this paper. Special attention has been paid to the question whether the subject of that crime may be either someone who treats or anyone someone who, in the eyes of the law, has the right to treat or any one (common crime) and to the using information technology to provide patient's will in health care from a distance.

OPPORTUNITIES REGARDING THE UTILISATION OF ANONYMOUS WITNESS TESTIMONY AS EVIDENCE ACCORDING TO STRASBOURG COURT CASE LAW

Author(s): Peter Polák / Language(s): English Issue: 21/2017

The core content of the contribution consists of an analysis of European Court of Human Rights decisions relating to determining the limits of using anonymous witnesses’ testimony as evidence in criminal proceedings.

ИСТОЧНИКИ ПРАВА И ПРЕДМЕТ ПРАВОВОГО РЕГУЛИРОВАНИЯ: УСТОЯВШИЕСЯ ПОДХОДЫ И ДОКТРИНАЛЬНЫЕ ДИСКУССИИ (НА ПРИМЕРЕ АНАЛИЗА ЗАКОНОДАТЕЛЬНОГО АРСЕНАЛА ПРОТИВОДЕЙСТВИЯ ПРЕСТУПНОСТИ)

Author(s): Alimzhan Bekmagambetov / Language(s): Russian Issue: 1/2018

The author examines the problematic aspects of systematization of the legislativeArsenal to combat organized crime and trafficking through the lens of raising issues of criminallaw doctrine and the subject of criminal law regulation.The article focuses on the fact that the evolving Kazakh legal system at the moment is a logicalproduct of the synthesis of doctrinal approaches and legal traditions of conventional (Muslim),pre-revolutionary (Russian-imperial), Soviet and modern globalizing law. The author, drawing onthe experience of international cooperation in the process of preparation of the textbooks, refers tothe features of the dynamic development of criminal law in three interrelated stages (the branch oflegislation, science and academic discipline) and current and adequate doctrinal reflection in thecontext of globalization, modernization and innovation processes.The doctrine of criminal law and criminological science operating in tandem are entrusted withaspecial task of joint development of adequate countermeasures against modern challenges -organized, professional, terrorist crime, etc., using the technological capabilities of the fourthindustrial revolution, including comprehensive digitalization.The first results can already be perceived: the criminal law regulation changes its configurationnot only by bringing in it the norms of other industries, but also separate legal systems, whichexperts designate as convergence. It entails significant potential which opens wide horizons forthe development of the doctrine of criminal law, legislation and law enforcement practice.

The Advantages of Solving Commercial Disputes by Arbitration

Author(s): Ljupka Petrevska,Marija Bulatović,Ivana Petrevska,Miroslava B. Petrevska / Language(s): English Issue: 20/2017

Solving disputes which come from legal entities’ business activities demands, among other, rapid action, safety for the parties involved in the dispute, decision finality, dispute confidentiality, saving time and money. In case that the value of the incurred dispute is financially important for the parties, the more important it is that the dispute gets its final decision as soon as possible. Leaving such disputes to court authorities, regardless of indisputable benefits, cannot answer many specific legal entity needs who have found themselves in a dispute on some subject, and to whom saving time and gaining profit are the most important guidelines in business dealings. The following text shows comparative advantage of arbitration compared to classic judicial proceedings in disputes which occur among legal entities, then comparing certain arbitration types which are available to the parties in the dispute, whereby the objective weaknesses of certain arbitrations are not excluded. Arbitration, whether it is understood as an alternative form of handling disputes, or as a judicial mechanism for solving problematic situations, deserves quality analysis and application in practice in a degree which would be according to the results, as well as all objective advantages of this mechanism.

O deskryptywnym poziomie interpretacji tekstu prawnego

Author(s): Paweł Jabłoński / Language(s): Polish Issue: 106/2018

The aim of the article is the analysis of Ryszard Sarkowicz’s theory of levels of interpretation of a legal text. This theory, on the one hand, is aptly indicated as one of the most original and valuable achievements of Polish theory of law, and, on the other hand – a bit paradoxically – it is extremely rarely discussed. In my article I show one element of tension that you can see in the description of what R. Sarkowicz calls the descriptive level of interpretation. It seems that sometimes this level is associated only with the external perspective, and other times with external and internal ones. In the following subsections, I present arguments for the second of these solutions. At the end of the article I show a consequence of this choice. It consists in transformation of the concept by distinguishing an additional level of interpretation – descriptive one in the internal point of view.

Problematyka postpenalnej izolacji terapeutycznej osób z zaburzeniami psychicznymi stwarzających zagrożenie życia, zdrowia lub wolności seksualnej innych osób

Author(s): Katarzyna Mróz / Language(s): Polish Issue: 106/2018

The present contribution looks into selected aspects of the postpenal therapeutic isolation of persons with mental disorders causing danger for life, health or sexual freedom of other persons. The article discusses the issues concerning the legal status of people with mental disorders who, after serving a custodial sentence, have been placed at the National Center for the Prevention of Dysfunctional Disability or for which the surveillance was applied. The considerations included in the article were inspired by Polish socio‑political events of 2013 which led to the creation of a model of security and preventive and therapeutic interventions. The aim of the article was to examine the compatibility of the adopted legislative solutions with the constitutional values expressed in Article 31 paragraph 3 and Article 41 paragraph 1 of the Constitution. The conducted analysis of indicated in the Act of 22 November 2013 allowed their critical evaluation from the perspective of compatibility with the norms of the Constitution, as well as in regard to the medical law, in particular the protection of mental health.

Sędziowski wymiar kary w badaniu prawno-socjologicznym 2012–2014

Author(s): Jadwiga Królikowska / Language(s): Polish Issue: XL/2018

This article presents selected results of a legal and sociological research project entitled“Penal cultures. Cultural context of criminal policy and criminal law reforms. Legal,penological, historical, sociological, and cultural (anthropological) analysis of criminallaw reforms in Poland against the background of European and world trends”, conductedin 2012-2014 on a sample of 160 Polish judges. The research was carried out usingthe questionnaire method supplemented with in-depth interviews with 12 judges.The questionnaire was sent by email to all the presidents of district, regional, andappellate courts in Poland with a request to pass it to their judges. The questionnaire wasaccompanied by a recommendation letter from the Vice-Rector for Scientific Researchat the University of Warsaw with the information about the research unit, that is aboutthe Professor G. Rejman Division of Culturally Integrated Legal and Social Studiesand the European Centre for Penological Studies at the University of Warsaw. Thequestionnaire was either sent back in bulk from individual courts, or the respondentssent it back individually by post or email to the university address provided.The punishment phenomenon was examined in a processual approach. Theresearchers adopted the hypothesis that criminal judges were the first link in thisprocess and knew more about punishment and punishing as social and legal phenomena than the general public. The presented research refers thematically to the studiescarried out by Bronisław Wróblewski and Witold Świda before World War II, reportedin their book Sędziowski wymiar kary w Rzeczypospolitej Polskiej. Ankieta [The judiciarysentencing of punishment in the Republic of Poland. A Questionnaire], publishedin Vilnius in 1939. Similarly to those studies, the present research asks questions aboutthe determinants of the judiciary dimension of punishment, but it emphasises morestrongly the cultural, philosophical and moral dimensions of punishment attitudesdisplayed in sentencing.The statements of the respondents show a varied l evel of the judges’ knowledge aboutmatters concerning the socio-cultural and psychological aspects of punishment. Theyalso reveal a strong legal orientation of views and remain within the set of notions andtheories focused on law. Similarly to the Vilnius pre-war studies, the judges’ statementsshow a strong formative influence of lawyers’ education curricula implemented at alllevels of education.The results of the research carried out in 2012-2014 illuminate the judges’ viewson the goals and functions of punishment and punishing. They show the declaredhierarchy of the most important variables defining professional decisions regardingthe sentences imposed by the judges. They show the influence of systemic and culturalvariables on the professional attitudes and motives of the judges’ decisions in this matter.The judges’ statements on the effectiveness of penalties in individual and generalprevention are generally subdued. Although these factors are taken into account inthe process of sentencing, there is no deep conviction about their high impact. It issignificant that the research shows a clear distancing of the judges from the assumptionthat they may be subservient to influences from their superiors, scholarly authorities,public opinion or the decisions of colleagues in similar matters. Independence isdeclared by judges to be an important feature of their professional ethos and appliesto all sources of influence. On the other hand, what the judges indicate as variablesrelevant to their decisions on sentencing are the personal and family conditions ofthe perpetrator and their potential for rehabilitation, which may occur as a resultof criminal sentencing and end the state of impunity. The respondents also indicatethat the fairness of a sentence and the doing of justice to the offender is a significantaspect of the court’s action.Although the research procedure in this case was strongly grounded in empiricism,this was not its main distinguishing feature – it was the conducting of research inthe culture of methodological and theoretical integration of the empirical material.It makes it possible to deduce a complex structure of the researched process andto undertake an analysis explaining many more variables than would appear in thedisciplinary mono analysis.

Obraz przestępcy w prozie Sergiusza Piaseckiego

Author(s): Anna Szuba-Boroń / Language(s): Polish Issue: XL/2018

Twenty years of personal experience in crime-related field that furthermore inspiredreflection on the reasons of crime made a Polish writer, Sergiusz Piasecki, interestingfor forensic sciences. His life started with a turbulent and difficult childhood, hematured among the turmoil of the Soviet Revolution and joined the guerrillas fightingBolsheviks, finally to graduate from the School of Infantry Cadets in Warsaw and beassigned to the Lithuanian-Belarusian Division in Vilnius. After the Bolshevik War,being a decommissioned soldier, Piasecki painfully experienced life in poverty. Thiswas when he began to earn his sustenance by smuggling. He later entered a few-yearlongcooperation with the 2nd Division of the High Command of the Polish Army andbecame an intelligence agent. In 1926, being unemployed again, he robbed a suburbantrain. In accordance with the law in force, the summary court sentenced him to death.However, the President of the Republic Ignacy Mościcki pardoned Pia secki, exchangingthe penalty to 15 years in prison. Piasecki served 11 years of his sentence in the prisonsof Lida, Nowogódek, Rawicz, Mokotów, Koronowo, and finally in the toughest prisonof the Second Republic – at Święty Krzyż (the Holy Cross) near Kielce. The 20 yearsfrom 1917 to 1937 were the period decisive for the writing realism and thoroughnessof descriptions of the criminal world and presented protagonists, as well as analysesof psychological and social circumstances that lead individuals to the path of crime.Beginning with Piasecki’s first published book Kochanek Wielkiej Niedźwiedzicy (Lover of the Greater Bear, aka Lover of the Ursa Major) whose author enjoyed a quite uniquestatus of criminal prisoner, and which presented the facts of life of smugglers onthe Polish-Soviet fringe in 1922–1924, the precious study of the criminal world wascontinued in the trilogy Jabłuszko, Spojrzę ja w okno, and Nikt nie da nam zbawienia(Apple, Shall I Look into the Window, and No One is to Redeem us). In Żywot człowiekarozbrojonego (Life of the Human Disarmed), the protagonist moves through all the levelsof conflict with the law, and the reader follows the process of his reflections to becomefamiliar with the impact of the external world on the dramatic choices made.The work of Piasecki follows the current of prose keen on social environmentof the 1930s, based on authenticity and autobiographic experience, and whose cog -nitive values result among others from the personal involvement of the author, whocorroborates knowledge based on experience and direct contact. It is a specific typeof participatory observation: a method of researching criminal phenomena wherethe observer is part of the criminal world.The goal of the writer, which he actually frequently emphasised, was the eagernessto share the knowledge on criminals with the society, with the provision thatthe criminal world he portrayed was multidimensional rather than just a separate,specific social group, standing out from among the “normal” people. He also paidspecial attention to the life’s circumstances that can “make” anyone a criminal. It is alsocharacteristic of Piasecki to juxtapose criminals against people who are “mechanically”honest. In examining the writer’s views on crime, such a ploy demolishes the positivistdivision of the society into criminals and decent people. Honest by default, manya decent citizen proves to be a bad man. On the other hand, many derailed outcastsfrom the society are in fact good and truly honest. Some stories presented by Piaseckiare quite precise illustrations of theories in the crime sciences. In his descriptionsof the demimonde of the Minsk thieves, Piasecki described them in terms very closeto those presented by Edward Sutherland in The Professional Thief, a book writtenby a professional thief with Sutherland’s sociological commentary.The history of literature knows many writers whose works were based on the introspectionof their respective authors, and whose content allows delving into the socialreality of a given time and an insightful analysis of criminal personalities, as well as anattempt at defining the factors that influence criminal behaviours. Such a knowledgeof the human/the criminal is especially well articulated in realistic prose (Balzac,Zola, Faulkner, Steinbeck, Marquez, Remarque, Piasecki, Nachalnik, Wiskowski, Mironowicz).Certainly, the belles-lettres play a special role in this context, providinga source of knowledge, especially if by the virtue of the vicissitudes of his or her life andthoughts the author can convey information helpful in explaining and understanding the assessment of the phenomena investigated by criminal sciences.

Роберт Борк и проблем судске диктатуре

Author(s): Miša Đurković / Language(s): Serbian Issue: 3/2018

The people in this region, thanks to the ICTY Tribunal and the functioning of the judiciary in the protectorates (Bosnia and Herzegovina, Kosovo), already have the idea of the so-called “political justice” or the abuse of the judiciary for political purposes. The novelty to be consid ered is that this mode of “American illness” with the support of foreign powers is increasingly beginning to enter into both theory and practice in our countries and legal systems. In this way, our leftist judges will increasingly begin to work with politically correct lawyers to implement the models, solutions and procedures we find in Bork’s valuable works. Bork emphasized that all technical, political and legal issues always get reduced to two basic ones that people must always ask: Who are we? And how do we live? The position of the judge may be either the position of a dictatorial oligarchy that imposes on the people the answers to the above questions, or the position of real freedom keepers, which enable the peo ple to be respected what he has chosen for himself.

Deregulacja zawodów prawniczych i jej wpływ na konkurencję na rynku usług prawniczych

Author(s): Krystyna Nizioł / Language(s): Polish Issue: 23 (3)/2018

Competition is an important part of the market, also the legal services market. Legal professions such as advocate, solicitor and notary are liberal professions. The aims of the deregulation have an economic background. Closing the access to these professions may cause such negative economic consequences as the increase rate of unemployment, or cost of state’s functioning. Moreover, the prices of legal services can rise and the quality if it can decline at the same time, which would affect the competition in a negative way. Therefore, the aim of the paper it to analyze if there are connections between the deregulation of legal professions and the competition on legal services market in Poland.

The Need for Specific and Unitary Regulations Regarding Techniques in Connection to or Derived from Medically Assisted Human Reproduction in Romania

Author(s): Alexandra Huidu / Language(s): English Issue: 2/2018

Currently, there is no law in Romania regulating how infertile patients can access medically assisted reproductive techniques, to expressly show whether some of these (the most controversial ones) are permitted or not (or we should apply the principle that everything that the law does not prohibit is allowed), under what conditions reproductive rights can be limited, what is the content of the right to reproduction, what is the legal status of the human embryo, and what are the limits of implementing certain medical procedure, whether we should just because they are available, or maybe it would be wiser not to. Discussions are further complicated when we bring into discussion some techniques that are related to assisted reproductive technologies (ART) (ie: those techniques or practices that have developed in parallel with in vitro fertilization, in order to facilitate the success of the technique - surrogacy motherhood, sperm / egg donation, cryopreservation of surplus embryos, posthumous reproduction) or those techniques derived from ART (practices that have become possible due to the ability to create embryos outside the maternal womb - cloning, solo reproduction, embryonic stem cell research, genetic engineering for treating genetic diseases, non-therapeutic genetic engineering for physical or bio-moral improvement, special cases of genetic engineering: artificial embryos, sex selection, germline alteration, human-animal hybrids / chimeras). This paper arguments the necessity for elaborating specific normative regulations in the field of ART and techniques derived from or related to ART.

Postulat jasności prawa. Plain language czy praca edukacyjna

Author(s): Agnieszka Choduń / Language(s): Polish Issue: 3/2018

W artykule podniesiono kilka aspektów jasności tekstów aktów prawnych w od- niesieniu do jej rozumienia przez różne podmioty (ekspertów i laików). Są to jednocześnie dwa różne punkty widzenia i dwie różne propozycje mające pomóc w zrozumieniu prawa (tekstów aktów prawnych). Artykuł koncentruje się na zagadnieniach: (1) znaczenia jasności tekstu aktu prawnego (jako tekstu, który nie jest tekstem użytkowym), (2) kompetencji językowej, kompetencji komunikacyjnej, prawniczej kompetencji komunikacyjnej, (3) dyskursu prawniczego, (4) zagadnieniu uproszczenia języka tekstu aktu prawnego jako remedium zapewniającego jasność prawa, (5) edukacji rozwijającej prawniczą kompetencję komunikacyjną.

Wykorzystanie mechanizmu odliczenia podatku naliczonego w systemie VAT do oszustw w postaci „karuzeli podatkowych”

Author(s): Artur Mudrecki / Language(s): Polish Issue: 3/2018

Precyzja językowa aktów normatywnych w świetle zasad techniki prawodawczej

Author(s): Magdalena Zaród / Language(s): Polish Issue: 2/2019

The issue of linguistic precision of normative acts is a specific combination of considerations conducted on the basis of language and law, because to the basis of the functioning of a democratic state of law belongs, among others, legislative initiative, which is the implementation that takes place in the form of a written bill, which is inseparable from the concept of legal language. The language of normative acts, due to its individuality, as well as the relationship with the principles of proper legislation, has so often been the subject of research by both linguists and lawyers. Undoubtedly, the linguistic incorrectness of a normative act, including its linguistic imprecision, disrupts communication on the sender – recipient line, makes the text incomprehensible, and even defective legally. Therefore, it is extremely important to emphasize not only the legal aspect of a normative act, but also its language layer, regulated in particular by the principles of legislative technique, which are the catalog of rules of proper legislation and define what the language of legal acts should be. The aim of the article is, therefore, to show what is meant by the linguistic precision of normative acts in the context of, above all, the principles of legislative technique. At the same time, it is an attempt to organize the current research in matter concerning the language of legal acts.

Działalność samorządu radców prawnych i jego członków w zakresie realizacji ustawy o dostępie do informacji publicznej w świetle orzecznictwa sądowego

Author(s): Mateusz Błachucki / Language(s): Polish Issue: 3/2017

The article presents a review of judicial decisions of administrative courts on the application of the Access to Public Information Act (API) to the professional self-government of legal advisers and its members. It analyses and discusses relevant case law on the scope of the application of the API and presents the evolution of the courts’ approach to this issue. The article begins with a short analysis of the API and demonstrates that the professional self-government of legal advisers falls within its scope. Subsequently, it discusses the distinct legal status of legal advisers employed by public authorities and the consequences thereof for the application of the API. Another broad issue considered in numerous judgments is the application of the API in disciplinary proceedings conducted by the self-government against its members. The article traces the evolution of case law from the denial of access to disciplinary decisions, to the provision of open access to those decisions. The other controversial subject obtaining in the case law concerns identifying the relevant body of the professional self-government authorized to grant access to disciplinary decisions. The latter part of the article presents and analyses further issues adjudicated by the courts in the context of the application of the API, i.e. the bar exam and the financing of the professional self-government of legal advisers. Last but not least, the article briefly discusses the spheres of the functioning of the self-government that are excluded from the application of the API. The author concludes the article with the general observation that presently the administrative courts tend to grant more API-based motions and that professional self-government of legal advisers should include API considerations in its functioning.

European Corporate Law – Where To?

Author(s): Maria Dumitru / Language(s): English Issue: 1/2019

In time, there have been attempts in the European Union to harmonize regulations in corporate law matters. In present days, the European company forms are added to the national company forms of organization, which continue to exist in a great diversity, given the fact that from the multiple types of European companies only the European Company (Societas Europaea) gained some sort of success. Therefore, we cannot help but wonder: European corporate law – where to?In an attempt to give a reasoned suggestion for an answer, we will analyze – in a synthetical manner – the past and the present of European corporate law. We will try to identify the influencing factors and – based on those factors – to outline the tendencies in European corporate law evolution.

EXPLANATION OF THE HISTORICAL DEVELOPMENT OF ALTERNATIVE PUNISHMENTS

Author(s): Miroslav Gejdoš / Language(s): English,Polish Issue: 1/2019

In the academic paper, the author deals with the description of alternative punishments in thehistorical context. In particular, he focuses on the historical background of the development ofpunishments, the issue of imposing punishments in the territory of Slovakia from the earliesttimes, perceiving mainly the Middle Ages and the Modern History. He expertly explains theexecution and imposition of various forms of punishment in the given period in the territory ofAustria-Hungary as well as in the latter Czechoslovak Republic until the beginning of thenineties. The aim of alternative punishments is to keep the convicted person out of prison andto impose that kind of sanction that will prevent any further crime and will protect society. Theaim of this paper is to introduce various philosophical concepts that have influenced the development