Rules of Interpretation of Contracts in the Drafts of the law of Obligations and the Code of Obligations. Remarks on the Scope of the Current Discussion in Private Law

The paper aims to present retrospectively the proposals on interpretation of contracts prepared during work of the Codification Commission of the Republic of Poland that preceded the enactment of the code of obligations of 1933. It is thereby an opportunity not only to illustrate in outline the process of defining the conclusive version of the code rules on contractual interpretation but also to point out the most significant issues determining the selection of appropriate legislative solutions in the field of interpretation. Due to the quality of the Polish code of obligations, commonly regarded as a remarkable legislative achievement, such retrospective scrutiny can constitute an important point of reference, especially in view of the contemporary attempts to create an adequate structure of interpretative rules within the ongoing recodification process undertaken by the Civil Law Codification Commission at the Ministry of Justice that has brought forward a draft of volume I of the new civil code (2008). It has already undergone a thorough revision and currently is set to be published in a modified version. The development seems particularly important in view of the fact that the general model of interpretation introduced in the code of obligations was – in principle, to some extent – adopted in the civil code now in force. Additionally, the questions examined in the article can be conceptualised in a broader context of the current debate focused on the issues of decodification and europeanisation of private law.

Attachments:

BKaczorowska.pdf

567 kB

Deprivation of the Right to Speak and Exclusion of Questions during the Trial in Civil Procedure

The Polish Code of Civil Procedure (hereinafter referred to as the “CCP”) contains many interesting regulations, which are often used in practice, but are not sufficiently described in legal doctrine. One of such institutions, which should be close to every attorney-at-law or judge`s heart, is provided for in Article 155 CCP. The said provision tenders legal basis for the presiding judge to take away the right to speak and exclude questions asked during the trial in civil procedure. This paper aims to examine the abovementioned regulation and includes analyses of legal doctrine`s views, available judicial decisions and different hypothetical situations. The paper leads to the conclusion that the scope of the Article`s 155 CCP application is broad, although the content of the said article is restrained. This is due to the fact that Article 155 CCP includes several indeterminate phrases, concerning “abuse” of the right to speak and “improper or needless” questions. The said institution therefore encompasses such cases as violation of seriousness, peace and order during court actions, raising irrelevant issues, asking suggestive questions and many other infringements. The abovementioned circumstances require a proper reaction of a presiding judge. However, if a presiding judge applies the said regulation in an inappropriate manner, consequences may be substantial, ranging from requiring a participant in the procedure to modify the asked question to a possibility of appealing the final judgement. Finally, a complex analysis of Article 155 CCP allows to indicate how to formulate proper questions and exercise his or her right to speak before the court.

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ASobota.pdf

289 kB

Statutory System of Protection and Aid for Victims and Witnesses

The article is concerned with an important issue of protection of and aid for victims and witnesses in the Polish criminal procedure. The new Act on the issue has added new measures of protection and aid, among which there are: assistance of a police officer during legal proceedings, close protection and possibility of relocation of a victim or witness should the circumstances justify such a need. This new system implements the provisions of the EU Directive of the European Parliament and Council 2012/29/EU establishing minimum standards of the rights of, support for and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA. Unfortunately, it seems that the Polish provisions are not adequate and do not necessarily mirror those set out in the directive. The article ventures to elaborate upon the new regulations on aid and protection for victims and witnesses and subjects them to a thorough critique.

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PKarlik.pdf

318 kB

Constitutionality of Statutory Changes in the Functioning of Open Pension Funds

On 6th December 2013 Parliament passed an Act on amending other Acts with regard to determination of the rules pertaining to disbursement of pensions from the resources of open pension funds. This Act, which, its proponents intended, was to better protect the income of future pensioners after they cease to be professionally active, and to simultaneously make the Polish pension system more secure for the stability of public funds, has introduced fundamental changes in the functioning of open pension funds. The Polish Constitutional Tribunal faced a difficult task in assessing the Act’s compatibility with the Polish Constitution as it was anticipated that any judgment would be met with strong approval on one side and vehement opposition on the other. It is the opinion of the author of this article that the Tribunal went the correct path by declaring an overwhelming majority of the provisions of the Act at issue to be compatible with the Constitution.

Attachments:

MSzydlo.pdf

490 kB

Quis custodiet custodes ipsos? The Constitutional Tribunal as the (Un) Objective Guard of the Constitution. Remarks on the Judgment K 34/15 of the Constitutional Tribunal of 3rd December 2015

Georg Jellinek, when in 1885 he devised the concept of a constitutional court which was to control the legislative branch of government, was aware that the guard of the constitution would be free from any external control or constraints. Therefore, in that context, he expressed concerns that the judges making decisions in cases touching upon political and systemic issues may themselves be prejudiced due to their political inclinations and consequently violate the rules of impartial judicial decision making. Jellinek was correct in his predictions. In 2015 the Polish Constitutional Tribunal in its judgment K 34/15, in which it examined the constitutionality of the Constitutional Tribunal Act, transgressed the boundaries of its jurisdiction while falling below the desired standard of objectivity. On numerous occasions the court failed to meet the criteria of rational legal reasoning and includes a significant degree of discretion in its interpretation of constitutional provisions.

Attachments:

ADziadzio.pdf

396 kB