Ogólna refleksja o rozwoju prawa pracy i jego uwarunkowaniu
The article is general reflection about history of labour law before and after I and II World War in Poland and Europe.
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The article is general reflection about history of labour law before and after I and II World War in Poland and Europe.
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The foregoing study attempts to present the institution of the employee’s subordination in evolutionary terms. From the very beginning of the labour law, the criterion of subordination, denied mainly as submission of the employee to the authority of the employer in the work process, was described in the literature of the subject and judicial decisions as an inherent (necessary) constituent of the employment relationship (the most basic structural feature of that relationship), distinguishing it from other forms of employment, especially a relation under civil law. The author analyzes the approach of the legislature as well as the views of the labour law doctrine and judicature made in relation to this criterion over subsequent periods in history. Finally, the study is concluded with some de lege ferenda postulates as to how to shape the institution of employee’s subordination in the provisions of the labour law.
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The present elaboration is dedicated to the analysis of labour market transformation since the codification of Polish labour law to the present day. Author emphasizes that the legal form of paid activity determines the legal status of the person concerned, both with relation to stability of employment and social security protection. Under centrally planned economy, the employment contract for an indefinite duration constituted the basic form of paid activity. Currently, however, various forms of work performance co-exist, many of them remain outside the scope of labour law. Author indicates deep segmentation of current labor market. He also pays attention to the fact that paid work quite often ensures neither life stability nor proper social protection.
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The author compares the position of the President of the Polish Republic in both indicated Constitutions (23rd April 1935 and 2nd April 1997). They are very similar in their formal structure but the President’s position in the Constitution of 1935 is remarkably more powerful to compare with that of 1997. The analysis made in the article can have its significance in current discussion in Poland, concerning the constitution’s reforms.
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This contribution, relying on preliminary publications, picks-up the performances rendered by the Commission for drafting the Codex Theresianus as a general Civil code for all Austrian hereditary provinces within the period between 1753 and 1756 at Brno. According to these efforts a singular script, conserved by the Moravian State Archive, is dealing with the introduction of the Codex Theresianus. It offers an insight into the methods of applicating and practising sources of law by the members of this commission under the leadership of Joseph Azzoni, an expert on Bohemian law. For this reason those sections within this draft, which are dealing with customary law and legal interpretation, will be edited in the annex to this contribution.
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Alterations in advocacy during the second half of the 20th Century before juries in English and Welsh courts, are considered. Reasons for them included: falling away in the use of Aristotle’s ancient order of closing speeches, an enormous expansion in eligibility to serve on juries, following the Juries Act 1974, resulting in major adjustment to the way jurors were addressed and to different allusions and references used by advocates; reduction, and eventual abolition, by the Criminal Justice Act, 1988, of peremptory challenge of jurors; prosecutions conducted in greater measured tones and more methodical and less aggressive defences; reduced weight given to police evidence by jurors; less heavy drinking , generally little discussed, by some barristers, and the positive effects of this on their performance in court; a rise of plea bargaining and the need to mitigate effectively after guilty pleas; introduction of Social Enquiry Reports and their effect on pleas in mitigation; the need to make, and respond to, submissions arising out of key changes in evidence and procedure.
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The Siete Partidas, the famous law code, of Alfons X. of Castile, written in the 13th century offers us a great variety of topics which have to be investigated more detailed. The central question is, which functions has the text besides being a law code? The encyclopedic character of this work, provides an insight into daily life of medieval Castile and mirrors the historical frame in which it was written. One of the central ideas of the Siete Partidas was to unify the existing „laws“ in the Kingdom of Castile. But, unification also means a centralization of the power which was embodied by the king. The fact, that this was not completely accepted by other powerful people of that time made it necessary for Alfons X. to legitimate his own power. This article highlights different functions of the Siete Partidas of King Alfons X. of Castile based on a discourse analysis and a hermeneutical interpretation.
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Dowry, as part of the married women’s property was present in the traditional, than in the civil era of the civil law, independent of the nobility or other social standing. Though Béni Grosschmid mentioned dowry as „scant“ or „incidental“, still he made place for this institution as alternative for the women’s free property in the first draft for the Civil Code (1900). The author of this essay used original archive records of civil cases from the Baranya County Archives, and analyzes the form and content of the dowry in the everyday life during the second half of the 19th century.
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Acknowledging the stance of Savigny on the organic connection between law and nation as correct, I will attempt to resolve within this paper if the term of 'legal tradition' may also be applied to the Polish nation. The 1933 Code of Obligations, which was drafted in a country recently reborn following over a century of political non-existence, is a particularly fitting object for such an analysis. I will try to show that national identity in the area of law may be shaped not only by the use of 'indigenous' norms in the legislative practice, but also by the consolidated, centuries-long tradition of implementation and adjustment of foreign laws to the current social needs of a given society. I will expound that the existence of a national legal tradition does not necessarily require the simultaneous existence of a nation state. For this purpose, I will perform a comparative analysis of Polish law throughout time, starting from the 16th century, when Poland was a stronghold of power on the geopolitical map of Europe, all the way to the Second Republic of Poland and the 1933 Code of Obligations. Only a broad research perspective will make it possible to observe the recurring mechanism of drafting and application of law, thus enabling the identification of legal tradition.The Polish legal tradition is based on both the method of adjusting law and on normative contents. The method consists of implementing foreign principles, that is of adopting a specific - in this case: foreign, normative content, which remains foreign only until it has been accepted by the society as a collection of laws of national character. Thus was the situation in Poland both before the partitions and in the interwar period. Of course, the undertakings of the Codification Commission that drafted the 1933 Code of Obligations may be assumed to have been unconscious, yet it does not deprive these undertakings of their traditional quality. This is due to the fact that the stance of the legislator and of the society toward the law is shaped by the spirit of the nation, in which a more or less conscious transmission of values and principles takes place, and these values and principles are capable of persevering also through periods of social disintegration, as was the case of Poland under partitions.
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The rights of citizenship in a commune were characteristically used in Central Europe as a basis of the regulation of nationality of persons affected by state succession, and the peace treaties concluded after the First World War by the successor states of the Austro-Hungarian Monarchy notably included this criterion. Although the rights of citizenship in a commune seemed more serviceable criterion during at the peace conference than habitual residence in these states, the different domestic regulations concerning Austrian and Hungarian territories and their interpretations by other states caused numerous problems and resulted in statelessness en masse. The aim of the present paper is to analyse the features and the differences of acquisition and loss of Austrian and Hungarian rights of citizenship in a commune, and to reveal their practical and interpterational problems. This study identifies the problems related to the nationality of persons affected by state succession after the First World War. These problems may also serve as an important lesson for the present, as the criteria that define persons concerned by the change of nationality in modern cases of state succession need to be selected carefully.
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As a sociological discipline that studies the role and place of law in society, sociology of law was created in the mid 19th century. This discipline studies the conditions and circumstances that lead to the constitution of law and the legal system in one country, then the legal activity in society, and the consequences of all forms of legal action in society. From the mid-20th century in sociology have been removed numerous concerns about the social role of law, from this period the law is being studied as a normative phenomenon. The paper analyzes the situation of sociology of law, its historical development and institutionalization in Russia, as well as topical issues of Russian theorists. Citing the Russian theoreticians who dealt with legal and sociological topics, in this paper we analyze the issues and problems that were in the process of institutionalization of sociology of law in Russia at the end of the XX and the early XXI century. In this paper we provide a brief overview of sociology of law in some countries of the former Yugoslavia as a possible comparison with the state of sociology of law in Russia.
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Kao sociološka disciplina koja proučava ulogu i mjesto prava u društvu, sociologija prava je nastala sredinom 19. vijeka. Ova disciplina proučava uslove i okolnosti koji dovode do konstituisanja prava i pravnog sistema u jednoj državi, zatim pravnu aktivnost u društvu, kao i posljedice svih vidova pravnog djelovanja u društvu. Od polovine 20. vijeka u sociologiji su uklonjene brojne nedoumice u vezi s društvenom ulogom prava, od ovog perioda pravo se proučava kao normativni fenomen. U radu se analizira položaj sociologije prava, njen istorijski razvoj i institucionalizacija u Rusiji, kao i aktuelne teme ruskih teoretičara. Navodeći ruske teoretičare koji su se bavili pravno-sociološkim temama, kroz ovaj rad analiziraćemo pitanja i probleme koji su se našli u procesu institucionalizacije sociologije prava u Rusiji krajem XX i početkom XXI vijeka. U radu dajemo kratak pregled stanja sociologije prava u nekim zemljama bivše Jugoslavije kao moguće poređenje sa stanjem sociologije prava u Rusiji.
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There are several different theories that attempt to explain the exact moment of risk passing in Roman law. The most accepted explanation claims that the Roman rule periculum est emptoris (risk lies on the buyer) was present not only in the post classical period of Roman history, but in the classical one as well. A minority of Romanists find this explanation too simplistic, arguing that the opposite rule, periculum est venditoris, (risk lies on the seller) was applied during the classical period of Roman legal history. In this paper the author examines these two approaches and make some comparisons between Roman law of risk passing and the Serbian 19th century legislation and legal doctrine. He concludes that theories claiming that periculum est emptoris was the only way to resolve periculum rei venditae are not convincing.
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Serbian politician Ilija Garašanin is commonly credited with the four draft constitutions which are currently deposited in the Archive of Serbia. The purpose of this article is to look at this widespread attribution, and to examine its accuracy. The analysis of the records from a number of archives shows that the first Draft dated 1853 is, in fact, Garašanin’s early peace of work. However, the contents of this Draft confirms that the Draft itself was prepared somewhat later, most probably after the Treaty of Paris of 1856. The second Draft is commonly believed to be written in 1850; but, judging from it contents, this one was also created after the Treaty of Paris of 1856. The author contests Garašanin’s authorship of the second Draft, mainly because of the Garašanin’s political standing of that time. Namely, the Draft lays down a favorable constitutional position of the Prince against the Council, which was contrary to Garašanin’s opposition to the then Prince of Serbia, Aleksandar Karađorđević.
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The expert's opinion regarding this part of the Draft Law that refers to individual obligations, primarily covered general questions and then views about each individual contract included in this draft (50). As regards the general questions, first of all, emphasis was placed on the structure and content of this part of the Draft, which is usually called the special part/section of the Law on Obligations, and then the author dwells particularly on questions of nominate and innominate contracts and on the question of simple and mixed contracts. In that respect, the author gives a comparative review especially in the legislations of the former Yugoslav republics, now independent states that have (almost enitrely) retained the systematisation and content of the clauses of the Law on Obligations from 1978, which was in effect in the former Yugoslavia. Special attention is paid to contracts of autonomous commercial law from the aspect of whether they should be included in this codification or whether they should be regulated by other laws or, perhaps left to commercial practice with the indication only of the general principles of contractual law. These are primarily contracts: franchising, leasing, factoring, forfeiting, time sharing, and then contracts on the transfer of know-how, contracts on long-term production cooperation, contracts on commercial and technical cooperation, and many other contracts from the domain of the exchange of goods and services concluded among economic subjects, particularly with the element of foreign origin. In all these contracts the question arises as to whether they should be regulated by the Law on Obligations in the sense of nominate contracts and in this context, it was pointed out that there are different interpretations in comparative law. Where it concerns individual contracts of obligation the question arose as to whether the directives of the EU regarding different questions (often even technical ones) should be entered in the Law on Obligations. The answer to the question raised, according to the text of this expert opinion, cannot be uniform for all legal situations that make up the subject of the relevant directive. In that sense, concrete solutions were presented. As for individual contracts of obligation, an expert opinion was given for each individual contract envisaged in the Draft Law, with numerous observations or objections, which were based on the comparative, expert and scientific aspect/view in this section of contractual law/ the Law on Obligations.
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Југословенски систем који је егзистирао до фебруара 2003. карактерисао је не само неравномеран, некохерентан и стихијски развој, већ и xаотичност у његовом регулисању.
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There were circumstances under which it was permissible to kill another human being in the ancient Athenian democracy. Moreover, the killing itself was governed by a number of statutes. As citations to, and exegesis of, the applicable statutes had a role of means of evidence in the Athenian litigation; the speeches of the Attic orators contained numerous citations of individual statutes. As a result, some of these statutes survived until today as fractions of the preserved oratorical pieces – such as the Speech against Eratosthenes, coming under a name of Lysias.
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The most recent monography on partnership in Roman Law „Societas. Struktur und Typenvielfalt des römischen Gesellschaftsvertrages“ (by Franz-Stefan Meissel, a young Austrian Romanist) has been published in 2004., some thirty years after the last important book on this topic. It has been highly praised and has won the prestigious Premium Boulvert Romanist award. This monography does not bring about a dramatically different partnership theory like the monographies published in the previous century (Wieacker to Guarino). Instead, the author restricts himself to analysis of a great number of different sources such as Roman jurisprudence, papirology, epigraphy and litarary sources. Author analyses these sources like Roman lawyer would – casuistically. In doing so he offers sevaral minor theses, e.g. that classification of partnerships found in the sources is only basic, and not the final list, given the plethora and flexibility of cases offered by Roman jurisprudence and other sources. On another occasion, he claims that partnership has certain outer effects (Aussenwirkung), and that, consequently, it does not represent a purely internal relationship among contractual parties.
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In the first part of the article it is pointed how two ideas that have a long history -- democracy and rule of law -- in the modern European history have become a part of the Western Civilization foundations. And how it is searched for their appropriate institutionalization in political and legal systems. But, though the synthesis of the two has been persistently wished, there are, too, great contradictions between them. In the course of history the political will and power prevailed and treated law just as a means of commanding over subjects and obliging them to do what rulers expected from them, with no or little readiness or will on the side of rulers (with rare exceptions) to accept law as a limit of their power and to obey laws that they themselves proclaimed and codified. Judean and Western Civilizations, however, proclaimed superiority of laws over any political will or power. ,,The Rule of Law, and not of Man‘‘, was among credos of constitutionalism as a doctrine and political movement aiming to limit every government to what is acceptable by reason of laws. One of premises of this article is that it refers to the will of majority, i.e. to democracy, and that opens many issues which are considered.
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Classical Roman jurisprudence has offered solutions which represent a strong affirmation of the party autonomy principle with respect to division of profit and loss among partners; it is possible to exclude a partner from division of risks. However, it was prohibited to exclude a partner from division of profits only (lion's partnership). Roman Iurisprudence did not arrive to this solution straightforwardly. This was the result of a sudden change of course and abandonment of tradition, as evidenced in fragment 3.149 of Gaius' Institutions which state that, already during the period of the Republic, and within the time period when famous lawyers Quintus Mucius Sceviola nad Servius Sulpicius Rufus, it was considered doubtful if a partner's share profit allocation may differ from his share in allocation of risk (so-called magna questio). Liberal approach of Servius Sulpicius has prevailed. Conservative (negative) position of Quintus Mucius may be traced to an earlier period of partnership development, when one could only invest his own capital, but could not invest his own work.
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