Numer 3 (71)

The Constitutional Principle of Truth

The preamble to the 1997 Constitution of the Republic of Poland defines truth as the first of the fundamental constitutional values, indicating the universal foundations for this Constitution. Truth, good, justice and beauty define the absolutely protected normative concept of man and his dignity. The principle of truth is an independent norm of the constitutional law. The principle of truth should determine the interpretation and application of the constitutional provisions defining the right to a fair trial, so that a fair hearing of the case is possible in every situation. The principle of truth may be regarded as a principle of a civil trial, but its significance goes far beyond the issue of determining the actual basis for a decision in civil proceedings. The principle of truth contributes to the criteria of knowing good. They are also shaped by constitutional principles, rights and freedoms such as freedom of speech and freedom of research.

Pobierz plik (Bosek.pdf)Bosek.pdf362 kB

Expert Intuition in Legal Domain

The article supports the thesis that the kind of expert intuition that characterizes chess masters, best sports players, or music virtuosos, is ineffective in some types of legal hard cases. In the scope of psychological research on human expertise, it seems plausible that expert intuition can occur in most legal cases. However, there are legal situations that either generate a completely novel normative issue or create a conflict of colliding legal and moral intuitions. In the first case, there are no visible environmental regularities to adapt, and therefore it is impossible to execute the deliberate practice – a form of training indispensable for achieving expert intuition. The second kind of case – involving a clash of two contrary intuitions – pertains to the situation where two resolutions dictating by expert skills of the same person are mutually inconsistent. Legal expert intuition in both above mentioned states of affair appears to be futile in delivering a determinate answer to a legal problem. The presented analysis, in consequence, indicates the extraordinary possibilities of legal expert intuition, as well as its limitation towards some types of legal hard cases.

Pobierz plik (Zygmunt.pdf)Zygmunt.pdf468 kB

Crimes of Abstract Exposure to Danger vs. no Threat to Legal Good as a Source of Legal Paradox

The article focuses on difficulties and problems with the assessment of behaviors not endangering legal good in the context of crimes of abstract exposition to danger. It contains a characterisation of these crimes, and analysis of their features (elements). It analyses the legal goods protected by the crimes of abstract exposition to danger and the reasons for devising requirement or prohibitions of specific behaviors. The work also analyses the possibility of using the rules applied to situations involving the protection of a legal good. It questions the adequacy of using a rebuttable presumption of a danger to legal good as a solution for paradoxes occuring in situations where there was no danger to legal good. It argues for limiting the scope of the crime of abstract exposition to danger by applying rules for protection of legal good to this category of crimes. The work is concluded by presenting the constitutive importance of applying rules for protection of legal good and arguing that there are no theoretical or dogmatic reasons for using a rebuttable presumption of a danger to legal good for solving the problem of behaviors not endangering legal good in crimes of abstract exposition to danger.

Pobierz plik (Kardas.pdf)Kardas.pdf486 kB

“Digital Estate” – Study Based on Inheriting a Social Media Account in Germany

The analysis is based on judgements of the Regional Court of Berlin (Landgericht) and German Federal Supreme Court (Bundesgerichtshof). The courts approved the possibility of inheriting access to Facebook user’s account. The reason of taking legal action by plaintiff was the lack of possibility to access to the account of her deceased daughter. It was caused by the change of account’s status into category “in memoriam”. Courts investigated similarity between inheriting access to Facebook account and inheriting private letters from relatives. The courts also pointed out, that entitlement to access to user’s Facebook account is part of the estate, because of liablity between user and provider. Courts’ legal assessment was based on Facebook’s general terms for which the user has basically no control in practice. In this article are considered the main problems of inheriting user’s Facebook account, for instance inheritance, liability components, the user’s accounts on social network, nature of content of the social network account.

Pobierz plik (Weber-Sitarski.pdf)Weber-Sitarski.pdf405 kB

The Impact of a Declaration of Consumer Bankruptcy on Pending Court Proceedings – Legal Status After the Amendment

The author discusses the impact of bankruptcy proceedings on pending court proceedings, pointing out that despite the fact that many legal changes have been undertaken in this regard, there is still no regulation that would not create problems in practice. He considers the new, i.e. 2020 model of consumer bankruptcy that affects the pending proceedings. He worries on a “duplication” of enforcement titles, i.e. a court ruling in the form of a judgment, or an extract from the list of claims in bankruptcy approved by the judge – commissioner. In his opinion the legislator does not support the courts with an effective tool, which should be an electronic bankruptcy register, and would provide courts with access to quick information on whether bankruptcy proceedings are pending in order to guarantee the smooth course of court proceedings.

Pobierz plik (Wrzaszcz.pdf)Wrzaszcz.pdf288 kB

Liability for a Subordinate in the Most Recent Jurisprudence of the Supreme Court

The author discusses the problem of interpreting the “while performing” notion used in article 430 of the Civil Code – on the basis of the Supreme Court sentence of 2020. He criticizes the view, according to which, in order to impose liability on a supervisor, it is enough to have an adequate causal link between the act of entrustment and infringement of the aggrieved party’s goods. Its application would almost always mean imposing a quasi-guarantee liability on the supervisor. On the other hand, he defends the subordinate’s actions taken in order to perform the entrusted activity as the assessment criterion. The supervisor is liable to the extent to which he or she entrusts the performance of an activity to a person who: 1/ is subject to his or her management and 2/ is obliged to follow his/her instructions. It follows that article 430 of the Civil Code defines the notion of subordination in a stringent way. It corresponds with the position reflected in the earlier judicial decisions, which requires inter alia that the subordinate acts in general within the framework of the activities entrusted to him or her. This issue gains particular significance when a subordinate remains in a relationship of subordination with several supervisors, and the areas of entrustment are disparate. It is then necessary to indicate which area of entrustment is the subordinate’s breach of conduct connected with.

Pobierz plik (Kalinski.pdf)Kalinski.pdf380 kB

Na marginesie książki Wolfganga Ernsta Justinian’s Digest 9.2.51 in the Western Legal Canon: Roman Legal Thought and Modern Causality Concepts (Intersentia: Cambridge–Antwerp–Chicago 2019)

Julian’s Essay and Causation as a Premise for Liability for Damages On the Margins of Wolfgang Ernst “Justinian’s Digest 9.2.51 in the Western Legal Canon: Roman Legal Thought and Modern Concepts of Causality” (Intersentia: Cambridge–Antwerp–Chicago 2019)

Wolfgang Ernst performed a detailed analysis of the controversial opinion of the jurist Salvius Julian (D. 9,2,51). The way he has worked out the issue of the interpretation of the Julian passage leads to the conclusion that we are witnessing a novelty in the methodology of Roman law, also in terms of the way the content is presented. By means of a very systematic work on the previous reflections of Romanists, Ernst has established, admittedly on the basis of a very narrow example, how the number of people working on Roman law has increased, how the “geography” of the study of Roman law has developed. Today more people study Roman law than ever before in history.

Pobierz plik (Blicharz.pdf)Blicharz.pdf342 kB

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