On Choices between Close by Definition and Close in Life. Formal Understanding of Closeness in Law and its Practical Dilemmas

Legal definitions are intended to increase the precision and communicativeness of a legal text. They are also treated as solid evidence of the legislator’s intention to understand a given phrase. They are therefore considered a simple provision – the application of the definition should not raise any doubts. An interesting example of such definition is the legal definitions of closeness, i.e. a close person or the closest person. The legislator does not define closeness by specifying its characteristics but by listing specific people who are to be considered as one under a particular act which makes it a manifestation of a formal understanding of closeness. Based on this understanding, the subject applying the law may encounter various dilemmas, the examination of at least some of them is the objective of this study.

Attachments:

1_O wyborach między bliski z definicji a bliskimi w życiu.pdf

814 kB

Sinners or Citizens? Judicial Religious Exemptions from Generally Applicable Laws in the United States

Judicial religious exemptions from general laws have become increasingly controversial in the U.S. This article examines changing understandings of religious exemptions in the Supreme Court’s jurisprudence. Part one discusses the unclear text of religion clauses of the First Amendment whilst part two focuses on doctrinal tensions and contradictions in the Court’s opinions, which show the inability to create a robust regime of religious exemptions. Part three follows the Court’s rulings on COVID–19 pandemic restrictions and reveals that replacing Justice Ruth Bader Ginsburg with Justice Amy Coney Barrett changed the meaning of the Free Exercise Clause. As Part four emphasizes, the American legal system was able to embrace religious exemptions, albeit in a highly limited scope, without courting anarchy. However, the recent trend of grounding religious exemption claims on the third party’s sinful behavior, especially in commercial settings, may prove a challenge to a religiously diverse society.

Attachments:

2_Grzesznicy czy obywatel.pdf

564 kB

Protection of the Right to Privacy in the Audit Proceedings of the Polish Supreme Audit Office

The hope for verifying the actions of state authorities, both through social control and through the activity of specialized bodies such as the Polish Supreme Audit Office (Najwyższa Izba Kontroli), is one of the main elements of democratic states under the rule of law. During an audit procedure, it is necessary for auditors to have access to data which make a suitable analysis and evaluation of the audited activity possible. Such access may constitute a violation of the right to privacy. Against this background, the article seeks to address the following issue: does the violation of the right to privacy for the purposes of the Supreme Audit Office proceedings meet the requirements of the limitation clause under the Polish Constitution of 1997?

Attachments:

3_Ochrona prawa do prywatności.pdf

509 kB

Roman or Greek? On the Origins of the Rhodian Law of Jettison

What where the origins of the Rhodian law of jettison? Did the Romans really adopt the law created on the Greek island? The first part of the article examines the origin and authenticity of available sources. The second part deals with the origin of the idea to regulate this issue. Consequently, it appears that lex Rhodia de iactu was a maritime trade custom that developed in the Greek cultural background. When the Romans started to participate in the Mediterranean maritime trade, they adopted and transformed the custom in such a way that it became compatible to Roman law. This is how the Greek idea of settling a loss, incurred in the common interest, became one of the contractual elements of locatio conductio. It proves the usefulness and flexibility of that contract as well as the reasonableness of Roman law, which was able to accept good solutions from laws of other nations.

Attachments:

4_Rzymska czy grecka_.pdf

440 kB

“Honorable Surrender”. History of Trust in the Law of Louisiana

The article focuses on problems related to introducing trust to the law of Louisiana. The study aims to examine how a solution foreign to the civil law tradition are implemented and to demonstrate the potential of historical-comparative research for understanding the modern law. In this regard, the author present an overview of the legal system of Louisiana and general information on trust institution. Then she describes the process of implementing trust to the law of Louisiana, taking into account problems with reconciling it with the already existing legal institutions specific to civil law.

Attachments:

5_Honorowa kapitulacja. Historia trustu w prawie Luizjany.pdf

449 kB

Disproportionality of the Penalty as Grounds for a Cassation Appeal

This article examines grounds for a cassation appeal in the form of a plea that the penalty is disproportionate (incommensurate) to the offence. It was introduced to the Polish criminal proceedings in 2016 and can only be raised by the Public Prosecutor General in the case of indictable offences. The article focuses on the genesis of this regulation and the course of work on it, as well as the issue of the subjective scope of Art. 523 § 1a of the Polish Code of Criminal Procedure, and on a detailed interpretation of the various terms used in this provision. In the final part of the article, the author makes his own, unambiguously critical assessment of the current regulation as well as formulates ‘de lege ferenda’ conclusions in this respect.

Attachments:

6_Niewspółmierność kary jako podstawa kasacyjna.pdf

482 kB