Has the Polish Legislator Reasonably and Effectively Increased the Level of Child Protection? A Critical Analysis of the Amendment of March 23, 2017 to the Penal Code

The objective of this article is to interpret the provisions of the act of March 23, 2017 amending the Penal Code, referring – directly or indirectly – to minors. Following the decision of the legislator, four aspects of changes are taken into account: new circumstance including among sentencing directives; new types of crimes, threatened by a higher penalty; tightening the statutory limits for the penalty of certain types of crimes and taking new crimes into the obligation of denunciation. The authors of the amending act declared that increasing the level of criminal-law child protection was their main motive. The presented interpretation takes into account these assumptions. The analysis was carried out both on the basis of the adopted assumptions and the manner of their implementation. The article reveals various flaws and defects in the adopted legal solutions, which do not allow a positive assessment of the above mentioned amendment.

Attachments:

Sitarz_Bek.pdf

414 kB

A Commentary to Brian Z. Tamanaha’s Non-Essentialist Version of Legal Pluralism

The article highlights problems and controversies of one connected with one of the most original conceptualizations of legal pluralism proposed by Brian Z. Tamanaha. Recognizing problems with previous conceptualizations of legal pluralism and the definitions of the law they adopt, Tamanaha suggests considering as law what people identify as law. When there are discrepancies between the distinguishable social identifications of the law, it is actually possible to talk about legal pluralism in a given society. Although the non-essentialist (refraining from any assumptions about the characteristics that the law must manifest to be able to consider it as law) concept of legal pluralism offers new interesting research perspectives, it is also marked by a number of more or less subtle controversies. There are, among others, questions whether it actually allows a clear delimitation of the law from non-law and also tensions between the “democratic character” of the concept and the simultaneous negation of the likely social intuitions on the law, or its excessive descriptivism/lack of legal-political involvement and possible social consequences of its broader adoption. In the article, these and other issues are presented and critically reviewed, allowing for a more accurate assessment of Tamanaha’s conceptualization.

Attachments:

Dudek.pdf

294 kB

Disciplinary Proceedings Against Students. The Question of Conducting a Hearing under the Unjustified Absence of a Defendant

The article discuss disciplinary proceedings against students mostly provided by The Higher Education Act of 2005 (and, in the forthcoming future, by the socalled Constitution for Science). The author focuses on the validity of the norms reflecting such fundamental principles as the right to a defense as well as the trial’s adversary, directness, orality and openness. Thus, he formulates arguments for the thesis that conducting a hearing in the course of disciplinary proceedings against students is allowed when the defendant student: 1) was summoned for the hearing; 2) is absent from the hearing without a valid cause; and 3) did not make any explanation during the hearing. Legal provisions do not justify any contradictory norm’s reconstruction. After presenting arguments for that statement, the author insists on the validity of the allowance to conduct a hearing in the course of disciplinary proceedings against students when 1)–3) happen. At the end marked defects of the presented argumentations are given, as well as the ways in which they may be corrected.

Attachments:

Barszcz.pdf

279 kB

Access to Information about the Environment with Regard to Cases Concerning Climate Change in Light of the European Union Courts Judicature

The purpose of the article is to evaluate the critique around the refusal of access to information with regard to cases concerning climate change by the Tribunal of Justice and Court. Is the way of the interpretation of refusal premises and the range of entitled and obligated subjects followed by the Tribunal of Justice and Court favourable to the full accomplishment of the Aarhus Convention and directive 200/4/CE, the resolution 1049/2001, the resolution 1367/2006 within climate change cases? What kind of disturbing trend (practice) may be perceived in the analysed cases and what kind of challenges may be met by EU courts with regard to the necessity of procedural environmental rights enshrinement in the context of the progressive climate protection instruments centralization process (mainly EU Emission Trading Scheme) and the spreading of climate change law range?

Attachments:

Sobieraj.pdf

324 kB

The Right to a Fair Trial and the Term of Justice in the Light of the Substantive Powers of Administrative Courts

The article considers the relation between the right to a court and the idea of the implementation of substantive powers of administrative courts. What have been also discussed, were the notions of justice and administering justice in the light of above mentioned issues. Not only have the different views presented in the legal doctrine been juxtaposed with each other, but they also have been criticized and evaluated from a fresh point of view. The author has tried to answer the question whether the right to an administrative court and a fair trial is fulfilled in Poland sufficiently. Defining the right to a court in general, based on the traditional interpretation of this legal construction, the article ends with a conclusion, that the current state of Polish administrative courts’ competence is appropriate considering Article 45 Point 1 of the Polish Constitution. In the subsequent part of the text, the notion of administering justice has been analysed. Assuming that the material administrative law is not based on the construction of the legal dispute, the author, while defining this term uses the views of legal doctrine and distinguishes from the subjective and objective point of view.

Attachments:

Flisek.pdf

331 kB