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A hard and sad fate befell Nedeljko Neđo Stefanović, a teacher and principal of the Elementary School in prewar and wartime Ivanjica. He was one of the best students during his school years and a model teacher. Also, he served as a reserve officer in the Royal Army. The oath of allegiance to the king, which he took during his military service, committed him to remaining loyal to the Yugoslav Army in the Fatherland during the war. Although he perpetrated no evil deed, he was persecuted by the new authorities. He was successfully hiding from the persecutors, and the people, whose favor he enjoyed, kept him safe until spring 1948. He was arrested and put on trial in the Court-Martial in Kragujevac. Although there was no evidence of any crime, he was sentenced to death and executed at Metino Brdo (Meta’s Hill) near Kragujevac. After more than six decades, he was rehabilitated by the Superior Court in Kragujevac in 2012. This paper presents Stefanović’s biography and, based on preserved documents, explains the mode of trial and execution and the rehabilitation process.
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The article closely analyses the very first wrongful conception action brought before the Polish Supreme Court in 2003. The court recognised the case as a precedent. When justifying its verdict it largely referred to the foreign case law and doctrine. The judgment clearly distinguished between the sheer fact of a baby being born as a generally positive event and the possible liability of a medical professional in wrongful conception cases, which allows for such cases to be heard before Polish courts. The judgement also established the scope of possible compensation as all expenses related to the pregnancy and birth and the loss of income stemming from them. Furthermore, the court established the right to seek moral compensation as a part of wrongful conception action claims. The judgment served as a trailblazer for future wrongful conception and wrongful birth verdicts.
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The article contains an assessment of the solution regarding the automatic inclusion of evidence introduced into the Polish legal system according to the amendment of July 19, 2019. The legislator, wanting to abolish unnecessary formalism, introduced a legal norm stating that when the court case is closed, all protocols and documents subject to reading at the hearing that has not been read are disclosed. However, the legislator did not exclude the application of Articles 352 and 368 of the Code of Criminal Procedure requiring a decision made by the court or the chairman of the adjudicating panel regarding the inclusion of these protocols and documents to evidence. This solution raises several doubts. The text presents considerations regarding the mutual relations of provisions governing disclosure of protocols and documents at the hearing. Comments were also made regarding the importance of introducing into the Polish law the automatic inclusion of evidence and an assessment of the compliance of this type of solution with the right of the party to a fair trial. The author indicates the need to amend the content of Article 405 of the Code of Criminal Procedure.
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The history of Polish forensics details a few murders that have been committed on mountain trails; however, it also notes one case where foul play was suspected in a fatal fall from a height, but could not be proven. Ultimately, it was assumed that an unfortunate accident had occurred. The aim of the study is to examine the difficulties associated with trying to prove whether a deadly fall off a mountainside was homicide or an unfortunate accident, taking the example of a real life case in the Polish Tatra Mountains. In the absence of witnesses or any other evidence, it is extremely difficult to prove criminal intent in the case of a fall into a mountain abyss. In such cases, differentiating a homicide from an unfortunate accident requires a long procedure with a range of activities.
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The commented judgment concerns the invalidation of the resolutions adopted at the general meeting of a company, in which representatives of a minority shareholder were unreasonably forbidden to participate. This issue, however, is related to a broader problem of significant importance for practice – the possibility of effective invalidation of a formally defective resolution of the shareholders, i.e. the adoption of which there was a breach of statutory provisions regulating the procedure of convening and holding shareholders’ meetings. The purpose of this article is to determine whether the unjustified prohibition of a shareholder from participating in the meeting, and thus preventing him from exercising his other rights at the meeting, in particular participation in discussions, the right to information, or finally voting, affects or at least may have an impact on the content and the taking of resolutions. Whether, however, the invalidation of a resolution is determined solely by the power of votes of the shareholder who is not allowed to vote.
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The purpose of this study is to analyze legal issues related to the scope of adjudication in cases of pecuniary compensation for the harm suffered, especially in a situation in which the party objected that the injured party contributed to the damage, and in a situation in which the claim submitted in the lawsuit was of a lower amount than the potentially “adequate compensation”. The principle of ne eat iudex ultra petita partium means that the court may decide only on what is claimed submitted by the party requesting legal protection. The scope of the requested legal protection thus sets the boundaries of the subject of the decision. At the same time, the assumption that there should be complete agreement between the subject of the proceedings and the subject of the ruling, i.e. what covers the subject of the decision, should be considered correct. As a result, it must be recognized that there are a close relationship and interdependence between limiting the court with what is claimed and the subject matter of the dispute. In determining the claim, the plaintiff thus sets the boundaries of the subject of the dispute, and limiting the court with what is claimed is tantamount to limiting the subject of the dispute.
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The following paper includes an analysis of the model of a complaint in the polish civil proceedings. This issue is discussed especially in the light of essential legislative changes introduced by the Act of 4 July 2019 amending the Act – the Code of Civil Procedure and some other acts. These changes fundamentally altered the model for reviewing court decisions in incidental matters, which are not conclusive for the entire proceedings. The Act, in particular, significantly limited the catalogue of decisions of courts of first instance which can be appealed againts to the court of second instance, reshaping this particular model of control into an exception to the simultaneously introduced principle of examining a complaint by different judges of the same court. On the other hand, the act expanded the scope of decisions of courts of second instance which are examined by different judges of the same court. A similar solution was introduced also in in the enforcement proceedings. Therefore, in the current legal status, majority of incidental decisions in civil proceedings has been covered by the so called horizontal complaint. In consequence, a complaint lost its devolutive nature and thus ceased to be an appelate messure.
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The Hungarian legal system and especially the administrative law is in the state of permanent change. This constantly transforming environment is a challenge for the rule of law. Every significant field of administrative law is impacted by these changes – even the judicial review model of the administrative decisions. The author analyzes the impact of these changes – especially from the last three years – on the application of administrative law. The issues raised in the article are focused on the transformation of the procedural rules, in particular on the impact of the new Act I of 2017 – Code of Administrative Court Procedure and its amendment in 2019. Two major institutions are analyzed further. First, the work analyzes the impact of the reform on the system of legal remedies in the administrative law, i.e. the reduction of the intra-administration remedies, the administrative appeal. Secondly, the extent of the judicial review was examined, in particular debates, codifications and amendments of the cassation and reformatory jurisdiction of the courts. The courts are currently the major interpreter of administrative law, whose change can be interpreted as a paradigm shift of the approach of the application of administrative law.
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This paper examines the role of judicial jurisdiction in law-making process in statute countries. The analysis focused on the reformed Japanese Civil Code, which entered into force on 1 April 2020, and more specifically on the conflict between the reformed Civil Code and the precedents of previous legal status. The purpose of the paper was to emphasize that it is extremely important to consider the relationship between new rules and previous precedents. By using the reformed rules of “contract for work” in the Japanese Civil Code reform, this article analyzes and explains the meaning of precedent in law-making process.
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This paper addresses the notion and legal framework for virtual hearings in international arbitration. The authors first examine the existing laws in different jurisdictions and how they tackle the issue both when it comes to litigation and when it comes to arbitration, followed by analyses of various institutional arbitration rules, including recent changes thereof and pertinent case law on the matter. They further examine the general idea of a virtual setting for the hearing against legal and technical objections frequently encountered in practice. In particular, the interplay of technical capabilities and legal standards such as “due process” and the “right to present one’s case” is assessed. Finally, the authors identify possible pathways to replacing the classical in-person hearing with the virtual one and the key legal and practical considerations to be assessed before deciding to proceed with it.
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The provisions of the Act on Access to Public Information regulate, among others, the subjective and objective scope of the right to public information, reasons for restricting access to information, procedure and form of disclosure, rules for creating and publishing information in the Public Information Bulletin, costs of activities leading to the disclosure of information and the establishment of complaint proceedings in the event of refusal to provide the public information requested. Therefore, it is worth to pay attention to several problems arising from the analysis of statutory provisions and the practical consequences of applying the Act of 6 September 2001 on Access to Public Information. The current, extremely extensive, output of doctrine and jurisprudence allows for a fairly “efficient” summary of the considerations made in both literature and judicial and administrative case law.
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The goal of the article was to present the legal position of an applicant in the proceedings for the grant of a patent (the so-called application proceedings, which constitutes the main form of patent proceedings). The article contains a comparative law analysis of the party’s active procedural rights in the patent application proceedings and general administrative proceedings. First, the author explained – controversial in the doctrine – the concept of a party to the patent application proceedings, and then discussed their procedural rights at various stages of the procedure, indicating similarities and differences to the solutions adopted in the general administrative procedure. The topic of the considerations remains valid and important in the era of building an innovative economy.
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The author agrees with the Supreme Court’s opinion that giving instructions by the court referred to in Article 5 of the Code of Civil Procedure should be exceptional and depend on judgement and recognition of court credited with a specific procedural situation. Giving instructions by the court is determined by justified need and necessary nature of instructions. It can take place when there is a need to prevent inequality of subjects of pending proceedings in the context of the principle of equality of parties, i.e. when a party, due to its clumsiness and complexity of the case, is not able to understand the essence of proceedings or take appropriate procedural steps.
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The appropriate system of reimbursement of the costs of proceedings and the institution of exemption from such costs both guarantee the real implementation of the right to court. In connection with the lack of explicit regulation in the Act of 17 June 2004 on complaints about the breach of the right to a trial within a reasonable time in practice, it becomes very important to determine whether it is possible to exempt an authorised entity (the complainant) from a fixed fee of complaint about excessive length of proceedings in matters of labour and social security law. In a resolution of 6 September 2006 (III SPZP 2/06) the Supreme Court stated that a complaint about excessive length of proceedings filed by the insured regarding the appeal examined by the Labour and Social Security Court of fees (Article 96 (1) (4) of the Act of 28 July 2005 on court costs in civil matters). This resolution confirms that in the indicated category of cases there is no obligation to pay the fee, and if it has been paid it is refundable. The position held by the Supreme Court in the above-mentioned resolution shall be accepted. When it comes to conclusion regarding de lege ferenda proposals, there is a need to make appropriate normative changes and introduce to the Act of 17 June 2004 on complaints about the breach of the right to a trial within a reasonable time a suitable regulation that would reflect the right fee exemption, as mentioned above.
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The decision of the Voivodeship Administrative Court in Białystok concerns the rules for handling the documentation of court cases, which, after a certain period of time, the court archive no longer has to be kept by the court. If such documentation does not have the status of archival material, it is allocated to waste paper (i.e. to be destroyed). The problem which the ruling concerns is the question of whether the files of court cases to be destroyed can be handled differently, in particular whether they can be sold to one of the parties to the court proceedings. The authors consider the above issue through the prism of binding regulations in the field of archival law.
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The commented desicion mainly concerns on establishing the limits of the freedom of a commercial partnership agreement as regards the admissibility to depart from the principle of unanimous amendment. This issue is particularly important in the context of a limited partnership agreement, in which partners have different status.
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The commented judgement concerns significant legal issue, namely the consequences of ineffective lapse of a six-month time limit for notification of share capital increase in a limited liability company, in respect of in-kind contributions in the form of real estate (property), that have been made before that time limit. Article 256 § 3 of the Code of Commercial Companies refers to respective application of Article 169 of the Code of Commercial Companies in respect to the registration of an amendment to the company deed. In the commented judgement, the Supreme Court explained how the above-mentioned reference should be interpreted in the case of the increase of share capital in a limited liability company for an in-kind contributions in the form of the share in the ownership of a property.
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