Teaching of Religion in the System of Public Education and Equality of Religious Organizations

Author(s): Aneta Maria Abramowicz / Language(s): Polish Issue: 3/2015

In Poland, the right to organise lessons of religion in public kindergartens and schools belongs to religious organisations that have a definite legal status. This right stems from the right of parents to raise their children in accordance with their world view that may happen to be of religious character. Evidently, the exercise of the said right must be compliant with the constitutional principle of equality of religious organisations.The some proponents of the doctrine of law on religion call into question the compliance of particular legal solutions with the principle of equality with regard to teaching of religion in public schools. These solutions will include: description of qualifications of religion teachers, the development of curricula for religious instruction, limits as to the number of students for religion lessons to take place, and the right to exempt students from regular classes to take part in a retreat.Our analysis of the legal solutions relating to the right to arrange teaching of religion at public schools by religious organisations permits a conclusion that they are in conformity with the constitutional principle of equality of such entities.

Rokowania w rozwiązywaniu sporów zbiorowych

Author(s): Włodzimierz Broński,Maciej Jarota / Language(s): Polish Issue: 3/2015

This article deals with the institution of negotiations as the first and obligatory method of collective dispute resolution. First, the definition, the subject and the parties of the dispute are defined. Later on, the following issues are discussed: the essence and the principles of negotiations, the commencement, the process and ways of concluding negotiations in collective dispute resolution.

Pojęcie pracodawcy w razie przejścia zakładu pracy

Author(s): Ewelina Kumor-Jezierska / Language(s): Polish Issue: 3/2015

The aim of the article is to turn one's attention to the notion of employer in the context of transfer of an employing establishment or its part onto another employer and the possibility to apply functional and pro-union interpretation. According to article 3 of the Labor Code an ”employer” is considered to be every organizational entity, even if it does not possess legal personality, as well as a natural person, if they employ workers. However, in business trading, there exist transactions where the parties are the entities which, on the day of the takeover, do not have the status of an employer as they do not employ workers, and they become the employer exactly as a result of the transfer of an employing establishment or only its part. Therefore, in such a situation there may appear some doubts how to interpret the meaning of ”another employer”, as stated in article 231 § 1 LC. It was emphasized in the article that making a solely literal interpretation of this provision, which interpretation in democratic countries occupies a privileged position compared to functional and contextual interpretation, is unjustified in this case. As a result of such an interpretation, entities taking over a given employing establishment or only its part and not employing any worker on the day of the takeover, could intentionally aim to maintain the status of non-employer (i.e. not employ workers), to lead to the exclusion of applying the provisions of article 231 § 1 LC in their case. In this situation it is justified to apply functional and pro-union interpretation when constructing this provision. Applying the institution of the takeover of an employing establishment or its part by another employer also covers situations when a new entity taking over an employing establishment or its part, becomes an employer only as a result of taking over workers from the previous employer.

Małoletni jako dawca i biorca przeszczepów – ex vivo i ex mortuo. Regulacje i dylematy prawne

Author(s): Jolanta Pacian / Language(s): Polish Issue: 3/2015

The aim of the paper is to discuss legal solutions concerning ex vivo and ex mortuo transplantation whose participant is a juvenile donor or recipient, as well as to consider legal arguments for and against such transplantation. Legal regulations concerning transplantation are contained in the Act of 01.07.2005 on taking, storing and transplanting of cells, tissue and organs. On the other hand, the status of a juvenile person is regulated by the provisions of the Civil Code and of the Family and Guardianship Code. Even though the provisions of the Transplantation Act occasionally contain some contradictions, there is mostly positive evaluation of especially these legal solutions which enable a Family Court to give a replacement consent, which frequently saves health and even life of a juvenile person. There are also interesting legal rules binding in Austria, Germany or Spain which could be effectively implemented into our legal system, for the benefit of juvenile donors and recipients.

Status prawny Krajowej Rady Radiofonii i Telewizji

Author(s): Wojciech Lis / Language(s): Polish Issue: 3/2015

The National Broadcasting Council (NBC) is a body that refers to extremely important sphere of human life, which is freedom of speech and right to information. In the scheme of the Polish Constitution, NBC include to the bodies of state control and law protection. With the will of the state NBC is responsible for creating the conditions for free exchange of views and information flow, but also it is responsible for respecting the public interest. The lawmaker entrusted NBC responsibility to maintain appropriate standards of democratic states and societies, that consider themselves civilized. A chance to properly perform tasks NBC gives independence from the government and difficulty of dismissal of its members before the end of the term. The method of creating, the personnel composition and the activities of the NBC are cause of controversy and strong opposition, and consequently leads to the demands of its eliminate.

Obowiązek wzajemnej pomocy małżonków z art. 23 Kodeksu rodzinnego i opiekuńczego

Author(s): Zdzisław Jancewicz / Language(s): Polish Issue: 4/2015

The paper discusses one of the obligations included in Article 23 of the Family and Guardianship Code, i.e. the mutual spousal assistance. The objective of the paper is to analyse the origin, characterise and outline the substance of the obligation of mutual spousal assistance.The obligation arises upon entering into a marriage, and it stems from the family-law relationship of contracting a marriage. This obligation is a complex legal construct, i.e. it constitutes an obligation of one spouse and a right of the other. Mutual assistance is a peremptory norm and a subjective right with inter partes effect. In principle, the obligation ceases to apply once marriage is dissolved or annulled, but can remain valid in specific circumstances after separation; it can be linked with other spousal rights and responsibilities.The obligation of mutual spousal assistance includes all actual activities of a spouse to support the other spouse in exercising the rights and fulfilling the responsibilities related to marriage. These are substantially varied and can be financial or non-financial in nature. It should also be noted that due to the diversity of relationships between spouses, there is no catalogue of activities that would encompass all the aspects of mutual spousal assistance.

The Court Competent to Consider Adverse Claims under the Execution Procedure

Author(s): Joanna Misztal-Konecka / Language(s): English Issue: 4/2015

The objective of the article is to specify whether the amendment of the Article 843 of the Code of Civil Procedure enforced under the Act of 10 July 2015 amending the Civil Code, the Code of Civil Procedure and Some Other Acts of Law resulted in the change in the legal status to the extent of the competence of the court hearing and considering adverse claims under the execution procedure. In the opinion of the Author of this paper, the aforementioned provision in the version prevailing since 1965, as well as its equivalents in the previous version of the Code of Civil Procedure of 1930, did not leave any well-founded doubts that the venue of the execution procedure (essential in order to specify the court competent to hear and consider adverse claims lodged under the execution procedure) should be established pursuant to the regulations determining the entity competent to administer the execution procedure, taking into account the manner and type of the execution procedure, rather than the address of the principal seat of the bailiff instituting the execution procedure. Therefore, the Article 843 of the Code of Civil Procedure should introduce changes not in terms of the venue of execution procedure, but rather to the extent of the court competent to hear and consider the adverse claim in a form of establishing the sole competence/jurisdiction of the adjudicating court, the enforceability of which is examined to be rendered null and void.

Nieracjonalność argumentu równości wobec prawa w lobbingu na rzecz zawierania „małżeństw” przez osoby tej samej płci

Author(s): Krzysztof Orzeszyna / Language(s): Polish Issue: 4/2015

Article concern issues related to irrationality of equality before the law argument in lobbying for the same-sex couples “marriages”. Marriage from natural reasons is a relationship of man and woman strictly connected with starting family and having children. Relationship of the same-sex partners should not provide them rights and responsibilies, which concern relationships of men and women. Despite of this, these persons are not discriminated, because their factual situation is different than situation of marriages. From that reason, it is justified to apply to them different legal norms, which are adjusted to their specific factual situation.

Związki nauki prawa administracyjnego z naukami o zarządzaniu

Author(s): Jan Izdebski / Language(s): Polish Issue: 4/2015

A particular feature of the science of administrative law is a necessity of cooperation with the other disciplines of science, whose subject of interest are public administration and administration. Therefore administrative law is a discipline of a law sciences, whose developement and research concept are highly dependent on the cooperation and interaction with the other disciplines of science. The connections of the administrative law with the sciences, which examine the practical aspects of the public administration structure and the administration processes is on the one hand to build a basis for the science of administrative law but also to indicate the directions of the researches of the public administration and the administration. The issues of the organization and functioning of the public administration are by their very nature the effect of particular law order – regulated by administrative law. In the domain of the implementation of tasks, processes, which are the subject of public administration the issues of organizing and functioning of the public administration has a significant aspects subject to analysis by the methods elaborated in the framework of the science of management in particular in their subdiscipline public management. Therefore the cooperation within science of administrative law and public management is crucial.

Glosa do uchwały Sądu Najwyższego z dnia 13 maja 2015 r., III CZP 19/15

Author(s): Zdzisław Jancewicz / Language(s): Polish Issue: 4/2015

DOPUŠTENOST »IZVANREDNE« REVIZIJE U GRAĐANSKOM PARNIČNOM PRAVU REPUBLIKE HRVATSKE

Author(s): Hrvoje Pelcl / Language(s): Croatian Issue: 17/2016

The purpose of this paper is to review the institute of extraordinary legal remedy of revision available in civil procedure, namely extraordinary revision against judgment, noting in particular the court`s holding regarding the admissibility of the extraordinary revision. The admissibility of extraordinary revision is particularly distinct in terms of the way to extraordinary revision should be written, and in terms of case law indicated by revision in order to meet procedural requirements on the basis of which the court would bring its decision. This paper will give an overview of positive legal regulation of the institute of revision on points of law in civil procedure. It will also include court`s holding that interpret the normative framework of revision, and is partly contradictory due to which one gets the impression that normative framework of revision is itself vague, and certainly imprecise, and therefore subject to different interpretations which brings into question the transparency of the civil procedure itself. The findings of the Constitutional Court of the Republic of Croatia will also be presented, from which one can observe a tendency of expected future compliance of case law regarding the procedural requirements for the admissibility of extraordinary revision. Based on the analysis provided in this paper, the author will present its proposals aimed at improving the current situation in legal practice, while bearing in mind the standards set by the European Court of Human Rights and the Croatian Constitutional Court. This paper focuses not on the institute of extraordinary revision in whole, but remains on the procedural requirements for the submission of one, for which is evident to give different interpretations in legal practice and thus unlawfully reduces parties access to court. Procedural requirements for the submission of extraordinary revision exhibited in this paper point out to their specificity, as they themselves seem very important thus making them necessary to be clearly defined, pointing to specific problems, both in terms of doctrine and their practical implementation. The author will, throughout this paper, look for the answer whether it is necessary even as of today, but certainly in the future, to expand the basic theoretical hypothesis that the case law is “just” an indirect source of law or that it is becoming a direct source of, at least, procedural law.

Сутність шкоди, завданої злочином життю фізичної особи, що підлягає відшкодуванню державою

Author(s): Natalija Khmelyova / Language(s): English,Russian,Ukrainian Issue: 134/2016

By harm in the civil law is understood as unfavorable to the persons economic and moral consequences arising from damage to or destruction of property belonging to him, and as a result causing injury or death to an individual. The nature of the violated good, the damage is divided into proprietary and non-proprietary.Compensation of the property harm caused by a deprivation of life, is the payment of fees incapacitated dependents, compensation for additional costs compensation for the funeral expenses and the compensation for the actual loss and lost benefits to persons who suffered such losses. The payment of financial assistance should be excluded, if the person who has suffered damage previously concluded the contract of insurance and receives insurance payments, as well as when a person has suffered health damage or has lost its breadwinner, but receives a public assistance or pension. At the same time, you need to install minimum and maximum limits of financial compensation to the victims and the period during which the victim is entitled to financial assistance.Compensation of non-pecuniary damage is a compensation for moral damage to those individuals who were in close inevitably connection with the deceased during his lifetime, and resulting in his death suffered physical and mental suffering.In relation to the state compensation for damages caused by the deprivation of life, there is an indirect causal relationship. Damage is applied to the same subject (natural person, deceased) and the result of these actions in addition are property losses and moral harm to others. The content of the obligation of reparation of the harm caused by the deprivation of human life, is always proprietary in nature. Part of the property damage should be included: the costs of the disabled dependants of the deceased; the loss of the creditors of the deceased under the contracts; funeral expenses; additional costs that are caused by the suicide disease or impairment of health of the deceased; actual damages and lost profits caused to the subjects of civil relations of death persons.

Several Key Features of Marriage in Kosovo

Author(s): Hamdi Podvorica / Language(s): English Issue: 2/2014

In this paper titled “Several key features of marriage in Kosovo”, I have made efforts to address the matrimony, as an important societal and legal concept, in the light of positive law in Kosovo. In short terms, I have addressed the historical development of marriage in general, from the period of promiscuity until today, and I have emphasized key features of marriage in various time periods, only to comprehend better the ways of development of marriage in time and space. A special emphasis is put on the essential (material) conditions of marital union. The paper provides sufficient reasons for which the positive law in Kosovo has provided on the free expression of will of spouses; opposite sexes; the age threshold; entry into matrimony before a competent state authority, and under a procedure provided by law, as substantial conditions for entering a valid matrimony. Sufficient room is allowed also for the treatment of consequences and responsibilities of various entities if marriage is developed without obeying substantial conditions as provided by law. Due to the nature of the paper, formal conditions for entering matrimony are not addressed. The right to enter marriage and establish a family under provided legal conditions is guaranteed to every Kosovo citizen, as a substantial right. The marriage is a basic cell of the family, and as such, it is protected by the state and society. Apart from normative and sociological methods, I have also used the historical method in developing this paper. The purpose was to discover several marriage features, which used to exist, and do not anymore, and also underline some new features, which nowadays form the pillars of the marriage.

Anmerkungen zur Frage der Zulässigkeit von Schenkungsverträgen auf den Todesfall (mortis causa)

Author(s): Tomasz Justyński / Language(s): German Issue: 2/2014

In letzter Zeit wächst in Polen das Interesse sowohl in der Öffentlichkeit als auch in Fachkreisen an Problemen des Erbrechts. Eine der letzthin zahlreiche Kontroversen hervorrufenden wesentlichen Fragen ist die, ob es zulässig ist, sog. Schenkungen auf den Todesfall vorzunehmen (donatio mortis causa). Im polnischen wissenschaftlichen Schrifttum werden dazu widersprüchliche Auffassungen geäußert. Da der Gesetzgeber sich zu keiner Regelung aufzuraffen vermag erstaunt es nicht, dass die polnische Rechtsprechung nach eigenen Lösungen sucht. Im Aufsatz findet man die Abwägung der fundamentalen Probleme einer Konstruktion der Schenkung von Todes wegen (mortis causa) im polnischen Recht.

Application of the Concept of Condictio Causa Data Causa Non Secuta in Pecuniary Settlements between Cohabitants

Author(s): Marek Sobczyk / Language(s): English Issue: 2/2014

This paper is devoted to the complex and difficult problem of pecuniary settlements between cohabitants or parties in similar relationships. One party often contributes to the partner’s property significantly, especially by financing construction of a house on the partner’s land or giving him or her money to buy such a house, where they plan to live together. The party makes such patrimonial sacrifices because of the relationship existing between them and with the clear purpose of its continuation. Therefore this financial support can be regarded as a performance rendered in contemplation of continuation of their relationship. However, after several years they split up and the giver seeks restitution of the performance, so the question arises on what ground? Cohabitation is not regulated in Polish law, which is why the courts must search for the proper provisions to solve the dispute. One of the solutions is the application of the concept of performance rendered for an intended purpose that has not been achieved. It can be said that owing to the fact that the relationship is finished the purpose of the performance is subverted. This concept, codified in Article 410 § 2 of the Polish Civil Code, has roots in Roman law in condictio causa data causa non secuta. It is applied also in foreign legal systems, which enables us to make some comparisons. In this paper several juridical decisions of foreign courts are compared with the famous and controversial judgment of the Polish Supreme Court of 12th January 20061 followed by the judgment of Court of Appeal in Poznań of 6th June 20062, concerning the claim for restitution filed by a rich Swiss citizen who bought his Polish mistress a flat and two cars, but she left him when she found out that he was married and had adult children. Some basic information on the Roman roots of this condictio is given also.

Certification of Family Mediators – Polish Solutions in Comparative Perspective

Author(s): Magdalena Skibińska / Language(s): English Issue: 2/2014

This article is focused on the certification of family mediators. It presents Polish solutions in this matter, but refers also to foreign legal systems in order to compare various solutions in different countries. It discusses requirements (especially mediation training) set up for mediators when they apply for the certificate, and entities that grant the certificate. Finally it answers the question of whether all mediators should go through the certification process.

Disclosure of Sensitive National Security Information during Civil Litigation in Poland and in the United States

Author(s): Karol Dobrzeniecki / Language(s): English Issue: 1/2015

The purpose of the article is to compare the American evidentiary rule of “state secrets privilege” with the Polish regulation of Article 248 § 1 of the Code of Civil Procedure. This issue, in particular, gains importance in the light of legal changes that occurred in the USA and most developed countries in the aftermath of the 11th September 2001 attacks and the so-called “war against terrorism”. The author presents the genesis and evolution of the privilege, the history of its application, as well as doubts which it has aroused in terms of civil rights. The American solutions make up a point of reference for the Polish regulations of the Code of Civil Procedure. A dogmatic analysis of Article 248 § 1 of the Code offers a broad platform for discussions about its compliance with the Constitution of the Republic of Poland, as well as, noted legal loopholes in the law of civil procedure, in connection with the protection of classified information. The author underlines the fact that, after the regime transformation in Poland, the right to information gained the status of a public subjective right, but it had a very little impact on the shape of the civil process. He points to the implications of the fact that Polish legislators departed from the principle of objective truth in the process, for the sake of the principle of formal truth, commonly accepted in Western legal culture.

The Judgment of the Polish Constitutional Tribunal of 23 June 2015 (no. SK 32/14) – Case Note (Partially Approving)

Author(s): Daria Katarzyna Gęsicka / Language(s): English Issue: 1/2015

On 23 June 2015 the Polish Constitutional Tribunal issued the following judicial decision: “The provision of Article 79.1 (3b) of the Polish Act of 4 February 1994 on copyright and related rights1, in the way in which it entitles the right holder whose economic copyrights have been infringed to make request for remedy of the inflicted damage by payment, where the infringement is culpable, of triple the amount of the respective remuneration that would have been due as at the time of claiming it in exchange for the right holder’s consent for the use of the work, shall be deemed unconstitutional as it is inconsistent with Article 64.1 and 2 in relation to Article 31.3 in relations to Article 2 of the Polish Constitution”2.

Posledice nepriznavanja svojstva korisnika oduzete imovine i/ili obeštećenja

Author(s): Stevan Lilić,Slobodanka Popović / Language(s): Serbian Issue: 2/2014

The Law on Returning of Confiscated Property and Compensation of the Republic of Serbia (2011) does not precisely stipulate certain cases confiscation to persons which have not been granted the status of client as inheritors of the former property owner who have submitted compensation requests. As the goal of this Law is to render justice to persons whose property has been confiscated by repressive means of the state, the burden of proof on the return of the property should be on the state, and not on the citizen submitting the compensation request. Bearing this in mind, this Law needs to be amended to include precise stipulations stating that the property needs to treated as a total entity following the death of the owner, in the sense that the property should be returned as a total entity, i.e. financially compensated in total to inheritors which have submitted compensation requests and who have been granted status of client.

Приобретение права собственности на плоды, продукцию и доходы по российскому гражданскому праву

Author(s): Alexander Klimovich / Language(s): Russian Issue: 4/2014

The aim of the study is to evaluate the acquisition of right in rem in the Russian Federation. The author focus on the selected rights in rem acquisition forms in the Russian civil code in order to present the general principles the lawmaker get.