Pobierz plik (10-2012 Kmieciak.pdf)10-2012 Kmieciak.pdf568 kB

Therapeutic Function of Law
The main objective of the proposed consideration is to show apparent relationship
that exists between a patient application of legislation and the process of
his recovery. About the therapeutic action of the law in significant way, says the
concept of therapeutic jurisprudence (TJ). This theory points out that legal action
of the individual actors: judges, prosecutors, lawyers, etc. directly may have effect
on the “Temida customer “ therapeutically or antytherapeutically. In the following
text TJ concept will be applied clearly to the issueof the rights of a patient
receiving the psychiatric hospital’s services. In this approach, it will be possible to
analyze activities performed only by the family judges. Therefore, this approach
will be supplemented by the nomoterapy conception drawing attention to specific
elements that show the existing relationship between the respect for patient’s
rights and the dynamics of the sick person’s return to health. This concept will be
presented with examples drawn from practice of the Psychiatric Hospital Patient
Ombudsman. At the end there will be shown specific therapeutic procedures that
use legal norm as a tool to motivate patients to active treatment.

Pobierz plik (10-2012 Zapadka.pdf)10-2012 Zapadka.pdf341 kB

State (Public) Investment Banking
The business activity called “investment banking” is in communis opinio classified
as private law area, owing to the fact that this scope of activity is mainly
conducted by private entities. However, current anti-crisis efforts taken by the
States and various public financial institutions, allows us to ask the fundamental
question related to existence or not existence of business activity called “State
(public) investment banking”, which is based on public law rules. Unlike the widespread
private investment banking business area, the main activity which could
be taken by state (public) investment banking entities is the organization of
the process of financing the public expenses by using the capital market instruments.
In addition, the State is also obliged to regulate the financial liquidity
mechanism, especially in the banking sector, on the basis of credit instruments
and capital market instruments. In both cases, the final effect of such activities is
not strictly connected with obtaining the profits (gains), but is rather connected
with improving the mechanism of public finance area, public budget and financial
system stability. Under the Polish law, mentioned public functions and duties are
executed by the National Bank of Poland, the Ministry of Finance and state-owned
banks. The idea of “State (public) investment banking” can be also treated as an
example of using the private law mechanism and institution in the public law
area, what is typical for present financial markets.

Pobierz plik (10-2012 WArchot.pdf)10-2012 WArchot.pdf618 kB

Prescription of Communist Crimes
In 1995, Polish legislator made it impossible to bring the perpetrators of communist
crimes to justice. The perpetrators of some of the communist crimes such
as battery or maltreatment, committed before 1989 cannot be held responsible
for their offences, because the Supreme Court In its ruling of May 25, 2010, expressed
the view that these acts were prescripted. I don’t agree with this judgment
because the prescription period was never able to get running. In 1995 the State
gave up the prosecution of the crimes that were most common in the communist
state. These regulations meant that the victims had been completely deprived of
legal protection, which violated their right to court (Article 6 ECHR0). The rules,
introduced in 1995, still have effects nowadays – as the courts or prosecutors
drop the case due to the prescription. The Supreme Court overrules the convicting
judgments in favour of the communist criminals on the basis of prescription. The
perpetrators of these crimes have obtained immunities from prosecution due to
the State’s ommision. Therefore, these privileges should be cancelled as obtained
in the wrongful way. These above arguments and considerations of historical
truth require lodging a complaint against them to the Constitutional Tribunal.

Pobierz plik (10-2012 Nawrot.pdf)10-2012 Nawrot.pdf433 kB

Democratic State Ruled by Law
The idea of the rule of law is grounded on a particular vision of human beings,
in which each member of the human family is free and equal to one another. This
vision, accepted and certainly declared in the Western countries, slowly begins
to oppose the idea of a man that reflects the biomedical research. The man,
described by the biomedicine begins to be seen as the subject – all the details,
which seems to be irrelevant to recognize him as a man – like the color of the eyes,
size, IQ –, begins to play the main role and to determine his place in society. As
a result – mankind is no longer a family of equals but it becomes a society of various
individuals, with different values and the role assigned from the beginning.
The Author analyzes the implications of the development of biological sciences
for the idea of the rule of law.

Pobierz plik (10-2012 Dajczak_FLB.pdf)10-2012 Dajczak_FLB.pdf551 kB

Roman Law and the Process
of Decodification

The phenomenon that is known as decodification, and the related Europeanization
of particular national legal systems, has triggered mechanisms for discussing the
process of creating the law which resemble the way in which Roman jurisprudence
and ius commune lawyers functioned. Framing the legal order within a deductive
system has not been entirely successful. Roman law is the legacy of legal thought,
and it allows us to illustrate how law reflects values and what those values
might be. Looking at the history of law from this perspective seems important in
the context of the decodification process, and we can prove this by using of two
examples. One of these is the principle of family solidarity which restrains the
freedom of testation. The second is the rationale for distinguishing incorporeal
from corporeal things, when deciding on the possible objects of property rights.
The article takes into consideration the fact that including the Roman and civil
law tradition in the discussion about new order of private law in Europe provides
more flexibility for legal regulations. The authors still believe that private law is
a system of norms with its own internal logic and is based on fairness and justice.
Legal practice proves that this way of thinking is not an anachronism. References
to the tradition of Roman law clearly show that the controversy concerning the
new order revolves around the sense and the extent to which private law can be
treated instrumentally.