Numer 2 (70)

The legal transaction by the debtor to the detriment of the creditor as the subject-matter of the actio Pauliana

The aim of the paper is to interpret Article 527 § 1 of the Civil Code in the scope in which this provision stipulates “legal transaction” as a legal basis for acquiring a financial benefit by a third party from the debtor. The authors focus on the issue of disloyal debtors’ use of procedural instruments with particular emphasis on the defendant’s procedural passivity resulting in the award of the claims in accordance with the statement of claim or the issuance of a default judgement. To conduct the analyses, the derivative conception of legal interpretation was used. The paper shows that the term “legal transaction” within the meaning of Article 527 § 1 of the Civil Code includes not only standard legal transactions, but also enforcement orders obtained by a third party by means of proper procedural instruments, including taking advantage of the debtor’s passivity in a fake lawsuit brought against him by a third party. This result of the interpretation (in the form of an extended interpretation) is thoroughly justified by both functional and systemic interpretation directives.

Pobierz plik (Mularski_Klaczak.pdf)Mularski_Klaczak.pdf537 kB

Obligation to Shave the Beard – (Un)justified Violation of the Freedom to Manifest Religion by Persons Deprived of Liberty (Considerations in the Light of the Judgment of the Court of Appeal in Kraków of 24th April 2018, I ACa 1217/17).

In a judgment of 2018, the Court of Appeal in Kraków finally decided that the defendant’s position, demanding specific claims in connection with the necessity of shaving a part (i.e. shortening) of a beard while in prison, is unfounded. In this publication, we want to analyze the scope of legitimate restrictions on the violation of freedom of manifesting religion in a prison, with particular emphasis on legal aspects invoked by the defendant, followed by courts adjudicating in the analyzed case. On the one hand, the basis of the analysis is the psychological significance of religion in the life of a man, including a person deprived of liberty, on the other – international and national regulations relating to religious freedom and the right to manifest it. As a result of the analysis, based on the decoded requirements set for legal regulations relating to limitation of human rights, the evaluation included also the executive provisions regarding freedom of religion during imprisonment and decisions of competent authorities, as well as the judgment itself, initiating publication. Finally, the principles were formulated, called the cascading triad ultima ratio, which are a general model for assessing executive regulations related to limiting the rights and freedoms of convicts.

Pobierz plik (Sitarz_Jaworska-Wieloch_Hanc.pdf)Sitarz_Jaworska-Wieloch_Hanc.pdf609 kB

The Construction of the Adjustment for Outstanding Claims in Income Taxes

The study is an attempt of outlining the construct of the adjustment for outstanding claims in personal income tax, corporate tax and a flat-rate income tax on certain revenues earned by natural persons. The provisions governing the adjustment in question became effective on 1 January 2020 under the Act amending certain laws to reduce payment backlogs. The study is to demonstrate that the construction of adjustment insufficiently meets the objective of reducing outstanding payment of civil law obligations. To prove this research thesis, a number of specific issues must have been addressed. The first one was the assessment of the normative conditions for making corrections for outstanding claims, including objective, subjective and temporal conditions. Subsequently normative restrictions on making adjustments have been studied. The issue of the adjustment for outstanding claims has not yet been the subject of more extensive analysis. The article contains legislative recommendations, the consideration of which would improve the construction of the adjustment for outstanding claims.

Pobierz plik (Szczesniak.pdf)Szczesniak.pdf260 kB

Penal Liability for Insulting the President. A Study of Criminal Law Codification in the Second Polish Republic and Its Modern Reminiscences

The idea of revoking Art. 135 § 2 of the 1997 Polish Penal Code, which penalises the acts of insulting the Polish President, is becoming increasingly present in the public debate. The adherents of maintaining this law raise a number of arguments in its favour, including those that refer to historical experience. Referring only to the content of legal acts is not sufficient to present reliable historical arguments. In this work, the tradition of Polish legal thought is scrutinised as regards the issue of penalising the acts of insulting the President. The analysis is based on diverse sources, such as the minutes of the sessions of the Penal Law Section of the Codification Commission of the Second Polish Republic, studies carried out by the members of the Commission, and particular version of the 1932 Penal Code draft. These sources make it possible to reconstruct the interwar ideas for the regulation of the issue studied here as well as the arguments presented by their authors.

Pobierz plik (Szczepaniak.pdf)Szczepaniak.pdf405 kB

Preparatory Session in the Polish Civil Procedure and English Pre-action Protocols as Tools for Faster Litigation

The introduction of the preparatory session to the Polish civil procedure has raised much doubt. English pre-action protocols perform the same function and are an efficient tools to meet the same goals that were adopted for the preparatory session by the authors of the 2019 Polish reform. However, they are more informal and, in general, not included in the formal court procedure. It will not be possible to assess the effects of the preparatory session until it has been functioning for a longer time in Polish civil procedure. However, certain practical issues may already be expected, most of all in relation to the new role of an arbiter to be played by a judge during the preparatory session and a highly formalized procedure related to the modification of the trial schedule. That being so, most academics believe that the preparatory session will rarely be used by judges in practice.

Pobierz plik (Sierszen.pdf)Sierszen.pdf294 kB

Glossary to the Judgment of the Supreme Court of 5 March 2019, II CSK 58/18

The gloss concerns the judgment of the Supreme Court regarding the validity and effectiveness of contractual provisions shaping the scope of the obligation to refrain from competitive behaviour. Following the Supreme Court’s arguments indicating limitations in shaping this type of provisions, it deals with issues concerning in the first place the type of obligations with which the obligation not to engage in competitive behaviour may be associated, as well as payable or unpaid nature of such an obligation. More extensive considerations, however, relate to the issue of the duration of commitments for non-competitive behaviour and the criteria that determine this time.

Pobierz plik (Konik.pdf)Konik.pdf306 kB

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