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The right to privacy in the light of case law – selected issues

Author(s): Justyna Jarocka / Language(s): English Issue: 4/2020

The article presents rudimentary information on how the right to privacy is understood in the doctrine and case law of the European Court of Human Rights, the Polish Constitutional Tribunal, the Supreme Court and common courts. In the first place, the author will discuss protection of the right to privacy in light of the acts of international law and the Constitution of the Republic of Poland. Then, selected judgments linked with the right to privacy in certain aspects will be discussed. The article ends with conclusions on how the right to privacy is understood as well as the observable contemporary threats to its protection.

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PRAVNO-KOMPARATIVNI MODEL KAO ALAT ZA UPOREDNOPRAVNU ANALIZU

Author(s): Lana Bubalo / Language(s): Bosnian Issue: 3/2020

Søren Koch i Jørn Øyrehagen Sunde (ed.), „Comparing Legal Cultures“ Second edition, Fagbokforlaget, Bergen, 2020. Review by: Lana Bubalo

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Legal Instruments to Support Borrowers (Consumers and Entrepreneurs) in Connection with the COVID-19 Pandemic in Poland, and Vietnam

Author(s): Edyta Rutkowska-Tomaszewska,Marta Stanisławska,Hien Thuc Trinh / Language(s): English Issue: 26/2021

The COVID-19 pandemic restrictions introduced in 2020 in many countries on economic activity and gainful employment have in many cases, reduced the incomes of individual households. As a result, the actual ability to meet credit obligations has declined, particularly for those who have lost their jobs or livelihoods. The COVID-19 pandemic has become a significant challenge for economies, national authorities, and entrepreneurs, including borrowers. This article aims to analyse the legal regulations in Poland, and Vietnam, introducing instruments to support borrowers, consumers, and entrepreneurs, in connection with the COVID-19 pandemic. The authors will present the legal basis for the instruments to support borrowers provided in the studied countries, indicate their legal nature, forms, and conditions of using them. They also compare legal solutions introduced in connection with the pandemic aimed at mitigating its adverse effects on borrowers in Poland, and Vietnam, to indicate whether cultural differences and differences in legal systems, as well as individual approaches to the domestic credit market, affected the choice of legal instruments for supporting borrowers in connection with the COVID-19 pandemic, or not.

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GRAĐANSKOPRAVNO UREĐENJE DJELATNOSTI LOBIRANJA

Author(s): Davorin Pichler / Language(s): Croatian Issue: 2/2021

The Republic of Croatia does not have a legal framework for regulating lobbying activities. With the adoption of regulations governing lobbying, this informal activity is translated from the “grey zone” into an activity under the “watchful eye” of the competent authorities. Although there is a large amount of professional and scientific literature on the concept and activity of lobbying, it can be noticed that the academic community is much less concerned with the legal institute of lobbying contract, its classification, characteristics and content. The lobbying contract in the wider context of the Croatian science of civil law and legal practice, comprises the features of certain legal transactions, primarily a contract for services / or a mandate contract. The object of performing a lobbying contract is the execution of a lobbying activity, as a rule for a consideration, and in that sense, it represents a specific form of a contract for services. The mandate contract features found in the formation of the lobbying contract will also be emphasized. The paper aims at presenting the basic features of the lobbying contract and emphasizing certain outstanding issues that may arise in any legal regulation of this legal act in the Republic of Croatia. The comparative approach in the paper points to legal solutions applied by legal systems with a long lobbying tradition as a legitimate part of the legislative process. It also points out the plausible solutions that have emerged from the legal systems of predominantly former communist and transition countries, and which are all the more adequate to possible Croatian lobbying contract regulation.

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JUDGMENT BASED ON AGREEMENT OF THE PARTIES IN CROATIAN LAW: A CRITICAL ANALYSIS FROM THE COMPARATIVE LEGAL PERSPECTIVE

Author(s): Elizabeta Ivičević Karas,Ante Novokmet,Igor Martinović / Language(s): English Issue: 1/2021

This paper considers judgments based on agreement of the parties in Croatian law, more precisely particular aspects of this consensual form which previous studies have assessed to be potentially problematic. These aspects include the objectives of reaching agreement, the gravity of criminal offences subject to agreement, the role of the court, and the legal position of the defence and that of the victim. These aspects are analysed primarily from a comparative-law perspective, since the Croatian version of plea bargaining, just like specific models adopted in some other European countries, was inspired by the same American model. Besides American law, the research includes Italian, French, Swiss, German and Austrian law. The goal of the comparative research is to find out whether the Croatian model contains some specific features which perhaps differ from positive comparative European legal solutions, but also result in theoretical and practical problems. The study will also include analysis of the jurisprudence of the Supreme Court of the Republic of Croatia concerning primarily the issue of judicial control over the agreement of the parties, which has been most disputed in domestic literature and in judicial practice.

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CONDITIONAL DEFERRAL (AND WITHDRAWAL) OF CRIMINAL PROSECUTION FROM NATIONAL AND COMPARATIVE LEGAL PERSPECTIVE

Author(s): Zoran Burić,Marija Pleić,Ivana Radić / Language(s): English Issue: 1/2021

Conditional deferral (and withdrawal) of criminal prosecution is a typical institution of negotiated criminal justice. It is usually applied in relation to less serious criminal offences with the aim to relieve the court system workload and humanise the treatment of the offender. This institution was introduced into the Croatian criminal justice system more than 20 years ago. Despite such a long presence within the system, it has never acquired the status of an important and widely applied institution. Quite the contrary, its application in practice is quite scarce. In order to identify possible reasons for this at the normative level, the authors have undertaken a comparative legal analysis of said institution. Main characteristics of conditional deferral (and withdrawal) of criminal prosecution in Croatia have been compared with the main characteristics of identical or equivalent institutions in five other jurisdictions: Austria, Germany, Italy, England, and France. Special attention has been devoted to five highlighted issues: the goal(s) of the institution, the offences in relation to which it may be applied, the role of the court, the rights of the defendant, and the position of the victim.

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DEFENDANT’S CONFESSION AT THE MAIN HEARING IN CROATIAN AND COMPARATIVE LAW: JUST ANOTHER PIECE OF EVIDENCE, GUILTY PLEA OR A TACIT AGREEMENT?

Author(s): Igor Martinović,Ivana Radić / Language(s): English Issue: 1/2021

The effects of a defendant’s confession are not the same in all legal orders. In civil law systems, confession is usually perceived as an ordinary piece of evidence, while in common law culture it is considered a guilty plea whose truthfulness is not to be questioned by the judge. However, this broad differentiation is not straightforward. In Croatia, if a defendant confesses to a criminal offence punishable by a fine or imprisonment of up to five years at the main hearing and agrees to the sentence proposed by the prosecutor, the trial court is not allowed to impose a sentence higher than the one proposed by the prosecutor. This can motivate tacit agreements and unregulated negotiations between the parties after the main hearing has already begun, and it is unclear if the legislator had such a scenario in mind when enacting this provision. In order to elucidate these problems in a broader perspective, the authors have analysed Croatian, German, Austrian, French, Italian and English law, with an emphasis on the position of the defendant after a confession at the main hearing, the effects of the confession, the role of the court in further proceedings and the victim’s rights. After the comparative analysis, the authors presented their opinion on the current legal situation in Croatia, especially Art. 417a (6) and (7) of the Code of Criminal Procedure, together with a proposal for legislative changes.

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DIVERGENTNO IMPLICIRANO ZNAČENJE ZAKONODAVNOG TEKSTA (MEFHŪMU-LMUHĀLEFE) U ŠAFIJSKOJ PRAVNOJ ŠKOLI

Author(s): Šukrija Ramić / Language(s): Bosnian Issue: 19/2021

This paper attempts to elaborate on the Shafi’i school of law scholars’ theoretical interpretation of the acceptance of the opposite implicit meaning (mefhūmu-l- muhālefe) method in the ijtihad and the consequences of such interpretation on the derivation of legal regulations in that school. At the beginning of the paper, we briefly explain the discipline of linguistics in uṣūlu-l-fikh, the acceptance of implicit meaning (mefhūm) in the process of ijtihad, the linguistic and terminological definition of the concept of mefhūmul-muhālefe in the Shafi'i school of law, the disagreement between Hanafi and Shafi’i on this issue, and the conditions for the use of the opposite meaning method (mefhūmu-l- muhālefe) by the Shafi’i. The use of opposite meaning (mefhūmu-l- muhālefe) and its significance in the Shafi'i school of law are explained naming suitable examples. At the end of the paper, we clarify the value of the mefhūmu-l- muhālefe indication and the legal power of the indication in the ijtihad.

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Понятие за данъчна амнистия

Author(s): Veronika Uzunova / Language(s): Bulgarian Issue: 2/2021

The overall assessment of the tax reliefs in the Republic of Bulgaria and Russia provides the basis for the development of the main directions in the taxes amnesty in the system of taxes and financial lawinthe Bulgarian legislation.

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Сравнителноправни аспекти на института на конституционната жалба в контекста на българския дебат

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Сравнителноправни аспекти на института на конституционната жалба в контекста на българския дебат

Author(s): Radoslava Yankulova / Language(s): Bulgarian Issue: 2/2021

The article is dedicated to the direct access of citizens to constitutional justice. The author outlines the genesis and the main characteristics of the constitutional complaint. The emphasis is put on the current state of the Bulgarian debate on direct access of citizens to constitutional justice and on the regulation of the constitutional complaint in comparative perspective. The author makes as well a critical analysis on an unsuccessful legislative initiative for an introduction of a constitutional complaint procedure in the Bulgarian legal order

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Cywilnoprawne skutki zrzeczenia się dóbr przez zakonnika w polskim prawie cywilnym. Zarys problemu

Author(s): Bartosz Rakoczy / Language(s): Polish Issue: 24/2021

Until now, no attempts have been made in the literature to examine profession of poverty in the light of civil law. However, there is no doubt that ignoring the civil law effects of vows of poverty does not correspond to the importance of this institution. The Church legislator clearly obliged – albeit “as far as possible” – professed monks and possibly also (implicitly) religious institutes to ensure that perpetual vows of poverty have the intended effects also under civil law. Therefore, in accordance with the logic of canon law, it would be optimal if the renounciation of goods by a monk as a consequence of profession has effects also under Polish civil law. However, as Polish law does not have an institution corresponding to the canonical renunciation of goods, it remains to seek comparable institutions which would (even partially) produce the effect intended by the Church legislator, and the most useful instrument to achieve this objective can undoubtedly be a gift deed. In an era of wide participation of ecclesiastical legal persons as well as priests and religious persons in legal relations, this problem has in any case become of great practical importance. It is therefore fully justified and necessary to continue research in this direction, and it is hoped that the essential problems delineated in the present paper will help provide avenues for further explorations.

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CHARGE – FIXED AND FLOATING: AGNEW AND ANOTHER V. COMMISSIONER OF INLAND REVENUE, PRIVY COUNCIL (NEW ZEALAND), 5 JUNE 2001 (THE “BRUMARK” CASE) CHARGE AND HYPOTHEC AS FUNCTIONAL EQUIVALENTS

Author(s): Adrian Tamba / Language(s): English Issue: 3/2021

Our endeavour is dedicated to a few security devices. The first part of the current work is called “Words of Introduction”. The second portion takes into account a Privy Council case: Agnew and Another v. Commissioner of Inland Revenue, Privy Council (New Zealand), 5 June 2001 (the Brumark case). The third part briefly focuses on charge and mortgage. The fourth portion, in a succinct manner, describes the hypothec. The fifth and final part shows that charge and hypothec are functional equivalents.

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FROM PUBLIC DOMAIN TO PUBLIC INTEREST

Author(s): Steven Wilf / Language(s): English Issue: 2/2020

This brief essay is an exploration of how the public domain came to achieve its place as a focus of attention, how it shaped a generation of scholars, and why public interest might be a more salient construct for thinking about how to foster a public-directed system of global knowledge governance. In short, this is the story of the rise, fall, and reincarnation – as public interest – of the public domain.

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CIVIL LIABILITY FOR ARTIFICIAL INTELLIGENCE PRODUCTS VERSUS THE SUSTAINABLE DEVELOPMENT OF CEECs: WHICH INSTITUTIONS MATTER?

Author(s): Małgorzata Godlewska,Sylwia Morawska,Przemysław Banasik / Language(s): English Issue: 2/2020

The aim of this paper is to conduct a meta-analysis of the EU and CEECs civil liability institutions in order to find out if they are ready for the Artificial Intelligence (AI) race. Particular focus is placed on ascertaining whether civil liability institutions such as the Product Liability Directive (EU) or civil codes (CEECs) will protect consumers and entrepreneurs, as well as ensure undistorted competition. In line with the aforementioned, the authors investigate whether the civil liability institutions of the EU and CEECs are based on regulations that can be adapted to the new generation of robots that will be equipped with learning abilities and have a certain degree of unpredictability in their behaviour. The conclusion presented in the paper was drawn on the basis of a review of the current literature and research on national and European regulations. The primary contribution that this article makes is to advance the current of the research concerning the concepts of AI liability for damage and personal injury. A second contribution is to show that the current civil liability institutions of the EU as well as the CEECs are not sufficiently prepared to address the legal issues that will start to arise when self-driving vehicles or autonomous drones begin operating in fully autonomous modes and possibly cause property damage or personal injury.

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KILKA REFLEKSJI NA TEMAT STANU CYWILISTYCZNEJ APARATURY POJĘCIOWEJ UŻYWANEJ W DYSKURSIE O PODMIOTOWOŚCI PRAWNEJ

Author(s): Rafał Szczepaniak / Language(s): Polish Issue: 3/2020

The author analyses five legal concepts: a natural person, a legal person, a defective legal person (Article 33¹ of Polish Civil Code), the Fiscus (State Treasury) and a public law person. Although the term ‘natural person’ is widely used, the author advocates removing this concept from law. In his opinion, this concept is a relic of the extreme form of conceptual jurisprudence, which is an efflorescence of the extreme form of legal positivism. According to the author, this concept is not compatible with modern trends aimed at the constitutionalization of civil law, and especially with contemporary concepts of human rights. The author notes that this concept does not appear in the Polish Constitution. The author also considers the concept of Fiscus (State Treasury) to be a relic. In his opinion, this is a kind of anachronism, and thus a relic of the former concept of the Fiscus, which prevailed in the nineteenth century. This concept diverts attention from the real essence of the state as the subject of law. The author is also in favour of removing the concept of ‘legal person of public law’ from civil law discourse. This notion migrated from the study of administrative law to civil law discourse. It is a relic of the methodology widely used by specialists in administrative law in the nineteenth century. This method consisted in borrowing certain concepts from the science of civil law and adopting them in the science of administrative law. According to the author, under civil law, this concept does not have sufficient normative and cognitive values. The author also draws attention to the nature of the concept of ‘legal person’. In his view, contrary to the concept of ‘defective legal person’, it is a primary concept in the language of the law and the language of legal discourse. Therefore, it cannot be defined.

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Nadzór właścicielski nad przedsiębiorstwami z udziałem Skarbu Państwa w Korei Południowej i Singapurze w kontekście dyskusji dotyczącej reformy systemu nadzoru właścicielskiego w Polsce

Author(s): Dominik Aziewicz / Language(s): Polish Issue: 20/2021

State-owned enterprises are a part of most modern economies. Therefore, it is substantial to elaborate which model of supervision system is the most suitable for the challenges of each country. Since the 2015 there is an ongoing debate in Poland, about the shape of a stateowned enterprises supervision system. It was considered to establish a national holding company, which would perform the ownership function for Polish state-owned enterprises. An inspiration for this idea was the South Korean state-owned supervision system and the impact of the chaebols on the Korean national economy. The aim of this article it to examine Korean solutions, and to present the state-owned supervision system which function in Singapore, because in many ways it seems to be a more adequate inspiration for the needs of Polish decision-makers.

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Wyłączenie pracownika organu w niemieckim postępowaniu administracyjnym

Author(s): Zbigniew R. Kmiecik / Language(s): Polish Issue: 36 (4)/2021

The aim of the paper is to perform a comparative legal analysis of the grounds for disqualification of an authority’s employee from participation in German administrative proceedings, procedures and effects thereof, as well as the consequences of violation of provisions concerning disqualification. The formal-dogmatic method is used (an analysis of the provisions regulating the subject matter) as well as the comparative legal method, consisting in comparing solutions adopted in various procedural contexts of a given branch of law and in different legal systems. The author also analyses judicial decisions of the German Federal Administrative Court and the relevant literature. The catalogue of relatives of an authority’s employee who cause his disqualification from participation in the proceedings to which they are parties corresponds to common sentiments better than the catalogue of such persons in the Polish administrative procedure. The issue of disqualification of an employee of an authority on account of his close relationship with a party to the proceedings is regulated by the German legislator, unlike in Poland, in a manner consistent with other situations in which the range of persons belonging to the immediate family (closest relatives) is of legal relevance. The legal consequences of violating provisions on disqualification of an authority’s employee, adopted by the German legislator, fall between two extreme solutions encountered in the legal orders or judicial practice of the European Union Member States.

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Problematyka stosowania wzorców umownych przy internetowych umowach bagatelnych w obrocie konsumenckim

Author(s): Kacper Rydz,Karol Moniczewski / Language(s): Polish Issue: 36 (4)/2021

These days, many contracts in minor day-to-day matters are entered into by consumers via the Internet. Undoubtedly, this practice has intensified because of the COVID-19 pandemic and the related restrictions. These factors make contracting in the traditional manner difficult or even impossible. At the same time, most of these contracts are concluded with the use of a standard from contract. It has become necessary to specify the conditions for binding the consumer with the standard form contract and to define the trader’s responsibilities. The paper attempts to prove the thesis that the relaxed legal regime that relates to the use of a standard form in contracts commonly concluded in minor day-to-day matters also applies to contracts concluded by consumers on the Internet. To achieve this goal, a sequential analysis of issues related to the thesis has been carried out. The first part of the paper presents the notion of a standard from contract (including its electronic form, which is the most important from the point of view of the presented issue). The next parts concern the regimes of the form’s binding attributes and the relations between them in the context of the paper’s subject matter. In the end, the issue of contracts in minor day-to-day matters is discussed, i.e., the scope of application of the relaxed legal regime. Given the core of the issues raised in this paper, the above-mentioned analysis involves examination of the law in force.

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Extinderea pragului valoric al procedurii românești a cererilor cu valoare redusă

Author(s): Cosmin Dariescu / Language(s): Romanian Issue: 1/2022

The Romanian small claims procedure was introduced by Law nr. 134/2010, Code of Civil Procedure, under the influence of European Union regulations. According to art. 1026 (unchanged since 2010), the value threshold up to which this track can be used was set at 10,000 lei, on the date of the court referral (i.e. 2,375.35 euros, at the average annual exchange rate of the euro in 2010). At the same time, Regulation (EU) No 861/2007 fixed the value threshold of the European Small Claims Procedure at EUR 2000. Currently, by Regulation (EU) 2015/2421, the scope of that procedure has been extended to the amount of EUR 5000. Considering the intention of the Romanian legislator to grant this procedure a broader internal scope than that outlined by the EU law, the inflation rate in Romania and the need to harmonize the internal procedure with that of cross-border disputes, we infer the need to update the value threshold up to the equivalent in lei of 5000 euros or more.

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Dozwolony zakres interpretacji prawa – rozważania na kanwie charakteru postępowania w sprawach o odmowę dokonania czynności notarialnej – glosa do wyroku Trybunału Konstytucyjnego z dnia 13 stycznia 2015 roku (SK 34/12)

Author(s): Marta Lewandowska-Mroczkowska / Language(s): Polish Issue: 36 (4)/2021

The aim of this commentary is to present the issue of the permitted scope of interpretation of the law by Polish courts under the Polish legal system and its impact on the practice in judicial decisions. The starting point is the discussed judgement of the Constitutional Tribunal. This judgment addresses the legal nature of a notary’s refusal to perform a notarial act, which is significant from the practical point of view. Pursuant to Article 83(1) of the Law on Notaries, a notary may refuse to perform a notarial act and such a refusal may be complained against. Therefore, a question on the nature of the complaint against a refusal to perform a notarial act arises. The research method used in this article consists in the analysis of legislative acts, judicial decisions and relevant literature. In its judgement, the Constitutional Tribunal agrees with the position that a decision of a regional court issued as a response to a complaint against is refusal in question is non-appealable. In consequence, the Constitutional Tribunal recognized the notary’s decision as a quasi-judgment of the first instance court. The research conducted allows the formulation of a thesis that the Tribunal’s standpoint, although accurate in many places, is mainly based on judicial decisions, including those of the Supreme Court, which are contrary to the rational legislator theory. What is more, despite many amendments to the act, the legislator did not decide to settle this problem directly in the regulation in force. The author addresses the issue of a juridical precedent and its impact on the rational legislator concept that is in force in the Polish legal order and also refers to the issue of the permissible limits of courts’ interpretation of laws.

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