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The article concerns the right of pardon in the view of the Constitution of March dated on 1921. The author analyses subjective and objective range as well as the contents of the decision of the head of state concerning the right of pardon. She compares solutions adapted in Poland and those that functioned in other modern countries. On this background she discusses the model of the right of pardon in Poland proving that this law was understood narrowly by the Constitution from 1921. It was limited only to penal and judicial responsibility and distinctly excluded the possibility of pardon by individual abolition. The author also indicates that the head of state had restricted possibilities to state the contents of the act of pardon. That was because the Constitution clearly determined that it may only consist in cancellation or commutation of punishment, or possibly remission of consequences of conviction. By that means the March Constitution determined the boundary of presidential right of pardon, which was not common solution during the interwar period. The author also analyses, on the basis of unpublished archival materials, the practice of executing the right of pardon, especially the procedure of decision-making and contents of the act of pardon. On this basis she concludes that despite of lack of constitutional reference to act the president executed the right of pardon retaining procedure specified in Code of Criminal Proceedings, however he did not execute the right of pardon through proceeding initiated without maintaining requirements of criminal procedure. The article also tackles the issue of motives that made president’s way towards making decisions concerning pardon and its independence by analyzing the use of the right of pardon by presidents Stanisław Wojciechowski and Ignacy Mościcki. The presented data show that under the same Constitution presidents differently understood their role at making decision about pardon. They either presented the model of full (Wojciechowski) or restricted (Mościcki) independence in decision- making.
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The content and at the same time the essence of an administrative law relation, according to the accepted doctrine, are the consequent mutual rights and duties of parties to an administrative law relation. With the instituting of proceedings the procedural rights and duties of an administration authority towards parties begin to operate as do the procedural rights and duties of parties towards this administration authority. Prima facie it appears that administrative jurisdiction proceedings are characterized by a complete procedural law relation: both an administrative authority and a party have specific procedural rights and duties, unlike for example accusatorial/application proceedings, where the complainant has only rights and takes a more passive position. The present paper verifies this thesis in a negative way. In light of the regulations in force there are no grounds for treating any form of participation of a party in administrative jurisdiction proceedings as this party’s legal duty. This equally applies both to starting an evidentiary initiative and participation in presentation of evidence, and in making depositions by the party itself. It is necessary to especially exclude the possibility of applying any procedural rigors (financial penalties, coercive measures) to a party that does not actively participate in the proceedings. “Obligation” specified by administrative code provisions relating to the parties (e.g. in the case of summons to appear or participate in procedural acts) should not be interpreted as “necessity”, “duty”, or “compulsion”, but only as “a burden” or “task”. The regulation that provides for “obligation” does not obligate parties to any enforceable behavior. Because such a provision exists, a party should only take into consideration (accept) possible disadvantages that might affect it if it should fail to comply with such a provision. Therefore, while the rights of parties correspond to the theoretical law concept of rights, the duties of parties can, in most cases, be defined at best as sui generis duties. The only duty in the strict sense that is incumbent on parties in connection with the instituting of administrative proceedings is the duty to make statements and depositions accordant with the truth under threat of criminal liability (Article 75 § 2 and Article 86 in conjunction with Article 83 § 3, Code of Administrative Procedure).
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The article discusses deception as the modus operandi of the perpetrator of rape. First, the Polish criminal law approach to rape by deception is discussed. The author presents the commonly accepted ways of understanding the term “deception” as it is used in Art. 197 § 1 of the Polish penal code. Then some interpretation discrepancies are discussed, e.g. the problem of contracting a false marriage in order to obtain the victim’s consent to sexual intercourse. Next, British and American criminal law approaches to the problem of rape by deception are presented. The author stresses the most prominent differences in understanding rape by deception in those legal systems, coming to the conclusion that they are partly due to the fact that the victim’s lack of consent (or valid consent) is seen as the main component of the crime of rape, while in the Polish penal code the lack of consent is not directly expressed and is only presumed in the process of interpreting the statutory features of the crime of rape.
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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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Author's sentence the guarantee function of the deadlines is based on the fact that certain deadlines secure certain rights of the participants in the process. Author considers the need for the introduction of the deadlines of the maximum duration of the means of the forcing measures, particularly the voluminous arrest ("the pre- emptive arrest" corresponds to the "investigative detention" of the StPO - §§ 112 ff.). He also considers threats that may result from the introduction of such deadlines.
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The aim of this article is to analyze genesis of solidarity measures in international law. The right to use solidarity measures has become an integral part of the international legal order. This paper starts with an analysis of the notions, which are closely linked to genesis of solidarity measures such as: solidarity, interest, international community, and the ideas such as: ius cogens norms, obligations owed to the international community as a whole and international crimes of states. That is why this study focuses on the question of evolution of these notions and ideas of ius cogens norms, obligations owed to the international community as a whole and international crimes of states. The emphasis was laid on the similarities between ius cogens norms, obligations erga omnes and international crimes of states, because they all protect the interests of the international community. What is more ius cogens norms and obligations erga omnes often overlap. However, these conceptions are not identical. Furthermore, it was demonstrated that not all international norms are of the same gravity or significance, because of the nature of the rights they seek to protect. Hence recognition of the conception of higher norms and the idea of legal interests that belong to all states has influenced work of the International Law Commission on the codification of state responsibility. It led to the origin of the idea of collective countermeasures – solidarity measures taken by other than aggrieved state in order to protect international community interests.
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The article discusses issues concerning problems of criminal law in terms of economic crime. Analysis of the criminal laws of Ukraine and Poland has been carried out. The scientific findings of economic criminal law scientists have been indicated. Examples of improved means of the criminal law on the fight against economic crime are brought on the basis of scientific studies.
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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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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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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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Roman jurists started to work on the criminal law only in days of the Empire. First works on this dedicated to public judicial proceedings included De iudiciis publicis created mainly by Maecianus, Marcianus, Macer, Venuleius Saturninus. Apart from them the following should also be mentioned: De officio proconsulis by Ulpian, De cognitionibus by Callistratus. Works on the issues of penalties are: De poenis omnium legum, De poenis paganorum by Paulus; De poenis by Modestyn; and De poenis paganorum by Claudius Saturninus. Most of the above-mentioned works are commentaries directed at judge practitioners, more specifically, at imperial officials having specific jurisdictional functions. However, among them we can also find ones of the academic nature focused on criminal law and criminal action, such as De poenis paganorum by Claudius Saturninus. Many of the above-mentioned works are of substantive and procedural nature. In works of Roman jurists on criminal law one can see specific efforts or attempts at systematizing discussed legal material. Unfortunately, in the majority of works it is difficult to find such vivid and complex statements or even academic debates as on private law, not to mention any critique of imperial constitutions. This was caused by an authoritarian character of Roman national power and system of criminal judicature that was closely connected to this power. Thus, it was very difficult for the jurists to conduct free jurisprudence activity.
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The article presents and evaluates the state of research concerning the history of modern criminal law science in Poland. The author indicates that these studies have been conducted by legal historians and criminal law experts. Over the last 30 years, there appeared a number of historical and legal contributions to the biographies and works of distinguished Polish lawyers of the 19th and early 20th centuries. In addition, criminal lawyers published a monograph on the most eminent Polish scholar – Juliusz Makarewicz. They also contributed to re-edition of many works by Makarewicz.
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The paper contains critical commentary on the Supreme Court decision of 30 March 2016 (I KZP 23/15). The author proves that determining the generic identity of crimes with the method in concreto, i.e. through comparing legal interests violated or endangered as a result of concrete offensive deeds, should take place in certain cases, where we have to do with the crimes protecting two or more legal interests in an alternative or mixed way. In the remaining situations, the assessment of the objective similarity of crimes should be performed in abstracto, i.e. through comparing legal interests protected in particular types of crimes. Results of this method, important for the generic identity of crimes, will be identical with the method in concreto, but the former is more conducive to the judgment of the case without undue delay.
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This article aims to discuss the main differences between amnesty and pardon, as well as their effects. The elements of legislative technique used over time in drafting amnesty and pardon laws are also being evaluated.
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The author reports on the insufficiently known handbook Pratica criminale pei cancelieri, which was written in the mid XVII century in Venice by Croatian lawyer and scholar Jerolim Mičelović – Michieli. There are indications that the work influenced criminal legal practice to a certain extent, and that it contributed to alleviate the severity of the inquisitorial procedure and criminal system, at least in some parts of the Venetian Dominium. Pratica criminale pei cancelieri is the subject of a research project being implemented at the Faculty of Law in Split, with the the task to explore in more details that estimation. Pratica criminale pei cancelieri is basically a theoretical text, but it is written in a dialogue form, and it probably had influenced future officials in some parts of the Venetian Dominium. The author launches some hypothesis considering that texts and its impact in legal practice, with the goal to provoke further discussion.
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Решењем Општинског суда у Новом Саду П. бр. 6274/2005 од 30. септембра 2005. године одређене су привремене мере заштите од насиља у породици, па је туженом наложено да се одмах исели из стана који се налази у Новом Саду, у улици К. бр. 11, забрањено му је да након исељења из стана даље у њега улази, као и у постор око њега, забрањено му је да се тужиљи приближава на удаљености од 100 метара, као и свако даље узнемиравање које је на њу усмерено, а трајање мера одређено је до 18. октобра 2005. године.
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