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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Many works depicting the problems of detaining a person under the provisions of the Criminal Procedure Code can be found in Polish literature, but there appears to be a complete lack of studies relating to the powers of the captain of the ship in this area. The aim of the article is to present the sense of detention in the context of model powers and public functions of a captain of a ship regarding a detention of a person taking into consideration the maritime law, particularly the Maritime Code. It was essential to quote the basic concepts of maritime law, to define the concept and the legal nature of the detention and the conditions for applying the measure by the captain of a ship, as well as his legal status. Due to recent changes in the Maritime Code, it became necessary to provide a brief historical trait of maritime law in Poland, especially in the current Art. 68 and 72 of the Maritime Code. Next, reference is made to issues related to Polish Criminal Jurisdiction, which clearly defines the powers of the captain of the vessel. Turning to the merits of the analysis, it looks at the captain`s powers of detaining a person in relation to the types of detention codified in the Code of Criminal Procedure and other laws.
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Der Artikel beinhaltet die Abstammung des Grundsatzes actor sequitur forum rei im römischen Recht. Die Besprechung seines Wesens und seiner Bedeutung wurde auch nicht außer Acht gelassen. Man präsentierte und weiste auf lateinische Quellentexte hin, in denen dieses Grundsatz expressis verbis ausgedrückt wurde. Man präsentierte auch die Ausnahmen von der Regel. Der Autor hat für den Vergleichsversuch zwischen den Anwendungen des Grundsatzes actor sequitur forum rei im römischen und gegenwärtigen polnischen Recht ebenfalls Platz gefunden.
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Lex Cornelia de sicariis et veneficis at the turn of the republic cannot be recognized as a law against homicide. The aim of the Law was to ensure safety and public order by eliminating criminal pathologies that threatened these public goods. Thus, the Law was of a specifically preventive and police nature. The image of it separated from the later, rich, after all, tradition of the Law, written by the legislative factors of the period of the Principate and the Dominate. Collatio legum Mosaicarum et Romanarum can be very useful legal source to show that great transformation. At the classical period, the Law was an entirely different institution than its original predecessor. The Lex Cornelia in the writings by Ulpianus or Paulus is already certainly ‘a law on killing’, although jurists, being typically attached to tradition, attempt ‘to change as much as possible by changing as little as possible’. This practice – quite easy to recognize – probably best shows the face of Sulla’s Law as known from Collatio legum Mosaicarum et Romanarum. The words hominem occiderit – if they appeared in the original Sulla’s Law at all – were used by classical jurists as a basis for the widening interpretation and, consequently, a reconstruction of the Law towards the common law on homicide. It must have been as a result of a rather long- lasting process of law- making interpretation of law by legislative factors of the Principate.
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The present paper addresses the issue of Actio Pauliana and its juridical solution in Polish civil law in the 20th century which was based on the achievements of 19th-century legal science. Considerations about the presented institution include Roman law, civil law which was in force during the partitions of Poland (the Napoleon’s Code, of Laws of the Russian Empire – volume 10, German enactment from 1879, and Austrian legislation from 1914) and then obligations code and current civil code. It has enabled to show that contemporary juridical construction of Actio Pauliana in current civil law is only a continuation of 19th- century solutions based on Roman law.
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In Poland, until the partitions in the eighteenth century, law had the nature of state law. A separate system was the law of the medieval city of Magdeburg that is enriched by numerous later sources. Under consideration are the judgments issued by a court in the city Grodzisk between 1702–1756. Unlike the municipal courts of the area of Malopolska, this court deciding criminal cases very often (almost every case) referred to the applicable law. The law was widely understood. Rarely it has been used from the main sources of Magdeburg law, there was gladly seen the usage of works of the Polish lawyers by Bartłomiej Groicki and Mikołaj Zalaszowski and (mostly) foreign, lawyers – for example, the work of Benedykt Carpzov and Jodok Damhouder. It is not known whether such frequent recourse to legal literature was quite exceptional, or practice like that was in other cities of Wielkopolska. The answer should be brought by further study.
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The demands to simplify formalities and prevent the delay of procedure and reduce litigation costs accompany all reformist ideas about civil procedure, from the Napoleonic Code to the present. The movement of socialization of the private law, mitigating the conflict between capital and labor resulted in the recognition that civil litigation should not be treated merely as a means of resolving private disputes between the parties but as a phenomenon that affects society as a whole. As a result, it was concluded that public interest in civil proceedings is also important. Starting from Austria, where the ideas of Franz Klein started a new stage in the evolution of civil procedure, and then in Germany, Hungary, Poland, the Netherlands, and the Scandinavian countries, Liechtenstein, Switzerland and Italy, began to leave the so- called formal truth in civil proceedings. A broad consideration of a public element in civil litigation characterized the extending of the powers of the court, to improving the impact on the course of the proceeding and the gathering of evidence, but not eliminating principles which express the essence of civil procedure, so as to safeguard the interests of the private in accordance with the principles ne procedat iudex ex officio and ne eat iudex ultra petita partium. Unlike in totalitarian states where private rights were only relatively private. Elimination of those principles meant a greater change to extend private law than private procedural law.
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At the time of the Roman Empire, quaestiones perpetuae faced competition from the imperial court of justice, i.e. the cognitio extra ordinem proceedings. The new system inspired the establishment of a new type of crimes called crimina extraordinaria. The Principate period with its new court procedure also brought a wider catalogue of offences by enabling to prosecute more offences extra ordinem – i.e. outside the order set by the leges iudiciorum publicorum. The cognitio extra ordinem procedure allowed the examination of extenuating and aggravating circumstances, and choosing penalties in accordance with the seriousness of the offence.
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The Napoleonic Code, which was in force since 1808 first in the Duchy of Warsaw and then in the Kingdom of Poland, provided for the institution of personal coercion in civil matters in Title XVIII (Book III – On Different Modes of Acquiring Property). It was an enforcement measure consisting of sending the debtor to prison in order to force him to fulfill his obligations. Initially, the detention did not result in cancelling the existing debt or did not exclude the possibility of carrying out a further enforcement procedure towards the debtor. Debtors were initially kept in detention centers or taken into police custody. Separate penitentiary bodies were appointed by decision of Administrative Council in 1832. The prison service as well as provisions of the Civil Procedure Code including detailed procedures for the use of coercive measures against debtors, have been defined both in the decision of the Administrative Council of 13/25 September 1832 and in subsequent administrative regulations issued by the Government Commission of Internal and Spiritual Affairs in 1848 and 1859. The 1848 regulations referred to civil jail located in Warsaw at Leszno, but there were no specific instructions for jails in remote regions, which resulted in numerous abuses. It was not until 1859 that the Leszno regulations covered the whole area of the Kingdom of Poland. Coercive measures against debtors could be an effective means of enforcement, although the obligation to provide funding necessary to ensure the livelihood of the debtor constitutes some limitation in applying such a measure. Such a situation meant that at first the debtor tried to enforce the debt using other means. A drawback of the abovementioned institution were problems with the internal organization of the civil detention, particularly in terms of real detention of these debtors, who – according to the source material – were often at large.
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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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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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