Precedential and the law-making  character of the Supreme Court’s  rulings (some remarks on the  Supreme Court’s resolution  as of 14 September 2007)

The article deals with the case of a sanction provided for a defective legal act of a legal person (society) which serves as a background for discussion on a problem of precedential and law-making decisions of the Polish Supreme Court. As a matter of principle, courts in Poland are not empowered to create law. However, on closer examination of the case-law it appears that the abovementioned clause is false in many cases and often the fi nal result of judicial proceedings is in fact in the court’s hands. It seems that the main diff erence between the common law and the civil law is not precedential and the law-making character of rulings per se but the way in which they are reasoned. The case under discussion does not only neatly illustrate that it is high time to recognize the lawmaking character of judicial exposition of the existing law but also may be an instructive example of the current judicial approach to the separation of powers.

Attachments:

5-2011 Kabza.pdf

503 kB

Withdrawal from the European Union in the light of proposed amendments to the Polish Constitution

The purpose of this article is to assess necessity and possible consequences of introducing into the Polish Constitution an explicit provision allowing Poland for withdrawal from the European Union. The new Article 50 of the European Union Treaty provides that a Member State may withdraw from the European Union after prior notifi cation of its intention to the European Council and after carrying out obligatory negotiations to conclude an agreement on the arrangements for such withdrawal. The author summarizes crucial doctrinal theses referring to the questioned admissibility of unilateral renouncement of the Treaty not including a renouncement clause. He concludes that before the Lisbon Treaty has come into force, the withdrawal of a Member State from the European Union was possible; however it still remained much of a theoretical concept. Under the new European Union Treaty all previous doubts concerning this matter are no longer relevant; however there is still a question whether it shall be necessary to amend the Polish Constitution, which currently does not refer explicitly to the European Union, so that it would regulate the withdrawal procedure. The author fi nds seven substantial arguments against such necessity and emphasizes inter alia that a sovereign state does not have to confi rm its competence as regards renouncement of international agreements.

Attachments:

5-2011 Irmiński.pdf

622 kB

A fi ne imposed in case of a conditional suspension of sentence – a refl ection on the background of the Supreme Court’s rulings

The present study is dedicated to Article 71 § 1 of the Criminal Code which says: “When suspending execution of sentence of imprisonment, the court may order a fi ne of up to 270 daily rates, if its imposition on a diff erent basis is not possible; when suspending the penalty of restriction of liberty, the court may order a fi ne of up to 135 daily rates”. The aim is to clarify the problems which appear while analyzing the condition: “if its imposition on a diff erent basis is not possible”. The above issues have been discussed with reference to the particular judicial decisions of the Polish Supreme Court.

Attachments:

5-2011 Żółtek.pdf

306 kB

Repealing Provisions, Confl icts of Laws and Non-Derogatory Clauses in the Old Polish Law

The paper deals with one aspect of the law-creating technique, that is with the repealing provisions. The law of the old-time Poland basically did not provide for the derogatory clauses. Nor did it the law applying the derogatory rule: lex posterior derogat legi priori. The old law was treated with the utmost respect since it has been considered to be the best law. As a result it was believed that the old law should not be subject to any changes. In rare cases the law provisions could be abolished when some exceptional situation required such change. It was therefore through such prism that the rule lex specialis derogat legi generali was interpreted. By exploiting the non-derogatory clause the men of the time emphasized that the previously applied law would continue in its binding force in the future. At present the non-derogatory provisions are not something provided for in the legal system.

Attachments:

5-2011 Malec.pdf

351 kB