Pobierz plik (Dajczak_FLB.pdf)Dajczak_FLB.pdf621 kB

Second Thoughts about the Evaluation of Legal Journals and the Dispute on the Essence of Law

The Polish Ministry of Science and Higher Education made public a new evaluation of legal journals at the end of 2015. How much algorithmic and quantitative criteria of the evaluation are relevant to what is expected from legal journals? The answer could be tendered only by a resolution of the dispute on the essence of law. In order to start with the general criteria concerning the evaluation of legal science, the authors focus on two issues. They present how productive the tradition of Roman law is as against contemporary continental legal systems, and how autonomy and pragmatism dominated the development of the tradition of American common law. They prove how irrelevant declarations of journals founders are to the actual discussion in the journals: they are never to be an instrument of research policy as observed in longer periods of time. Bibliometric success of American journals, e.g. “Harvard Law Review” and “Yale Law Journal”, proves that the autonomy of legal science always prevails over dreams of treating legal journals in a purely instrumental way. The conclusions concentrate on how the journals make participants of disputes on the essence of law moderate and better instructed. The article is written for the fifth anniversary of “Forum Prawnicze”.

Pobierz plik (Haberko.pdf)Haberko.pdf372 kB

Permissibility of Dispensing Contraceptives to Minors by Pharmacies. Arguments De Lege Ferenda

The text provides an analysis of the legal consequences of the use of modern medical technology in healthcare. Considerations are carried out in the context of the Regulation on pharmacy medicinal products and medical devices. This act allows a minor, above the age of 15 years, to purchase a hormonal contraceptive: “the morning after pill”. Particular attention is devoted to the welfare of the child and the situation of its parents. The author analyses a situation in which a minor above 15 years of age may independently buy “the morning after pill”, however a visit to the gynaecologist, in such circumstances where the person in question is under age, requires the presence of a parent, guardian or another legal representative. Whilst it is an important issue that necessitates legislative intervention, future regulations must take into account the principles which underlie family law. It is the author’s contention that the present provisions do not respect these rules in the field of parental authority.

Pobierz plik (Galazka.pdf)Galazka.pdf460 kB

Polish Law on In Vitro Fertilisation – a Discussion Still Open

The article analyses the Polish Law of 25th June 2015 on Infertility Treatment in the context of other Polish legislative proposals concerning this issue, which the period of 2009–2010 was very abundant in. Eventually, they did not result in the enactment of a new law because of the end of the parliamentary term. The Law of 25th June 2015 on Infertility Treatment, adopted a few years later, raises doubts as to its constitutionality. Expecting amendments in this matter to rectify the situation, it is worthy to recall three models of legal regulation of in vitro fertilisation, which can be identified from the previous legislative proposals. One of them, reflected in the law in force, is based on the priority of procreative liberty and efficiency of in vitro fertilisation. The others – represented in legislative proposals that have already been introduced to the Parliament in 2009–2010 – recognised the central constitutional value of human dignity at any stage of human development. They differed from each other in the matter of legal acceptability of in vitro fertilisation. The Bill of 2009 on Human Genom and Human Embryo Protection as well as the Polish Bioethical Council accepted this intervention on the condition of prohibiting the creation of supernumerary embryos. The four other bills assumed that it is impossible to respect human dignity while allowing in vitro fertilisation in any configuration. The latter model seems to better comply with the constitutional guarantees of human dignity and life than the former.

Pobierz plik (Domagala.pdf)Domagala.pdf453 kB

Control Powers of the President of the Energy Regulatory Office. Legal Aspects

The theme of the article is to analyze the control powers of the President of Energy Regulatory Office. The aim of this paper is to answer a question whether these powers belong to the category of regulatory measures or they are merely a manifestation of the normal activity of the government administration. In this paper the author presents the characteristics of regulation and discusses two types of powers of control that are implemented by the President of ERO. These are powers exercised within the “REMIT control” and related to the exercise of economic activities in the production, marketing, storage and import analysis concludes. The of liquid fuels in Poland that the control powers of the President of the Energy Regulatory Office, due to the objective, which is the creation and protection of a competitive energy market can be classified as a category of regulatory action.

Pobierz plik (Wilczynski.pdf)Wilczynski.pdf246 kB

Temporary Agency as an Entity in Collective Disputes

The article discusses issues relating to problems of the normative share of temporary employment agencies in collective disputes. Of main interest are the circumstances in which strike action, solidarity strike and sit-in strike may be undertaken within the legal framework of temporary employment agencies. Tripartite working relationships, which are typical for temporary employment, create a number of doubts concerning the legislation in this regard.

Pobierz plik (Malec_Lewandowski.pdf)Malec_Lewandowski.pdf326 kB

Comment on the Judgment of the Polish Constitutional Tribunal of 6 October 2015, SK 54/13

The case note is on the judgment of the Polish Constitutional Tribunal of 6 October 2015, SK 54/13, in which that Court ruled that art. 196 of the Criminal Code, to the extent it penalizes insulting the religious feelings of others through public insulting of religious objects of worship, is consistent with art. 54.1 in conjunction with art. 31.3 of the Constitution, which enshrine freedom of expression. The note attempts a wide analysis of the problem of compatibility of imprisonment for offending religious feelings with freedom of expression in terms of proportionality in the strict sense. That problem has been definitively settled by the Constitutional Court in that judgment, however with limited reasoning. The author argues for the incompatibility (in the strict sense), and therefore unconstitutionality of imprisonment for offending religious feelings. That position is confirmed particularly in well-established case law of the European Court of Human Rights with regard to standards of freedom of expression (art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms) in view of the criminalization and especially punishment through imprisonment for insulting and defamation, which can appropriately be applied to the crime referred to in art. 196 of the Criminal Code.