On contradiction of the Act on the Principles of Implementing the Development Policy with the Polish Constitution

The purpose of this article is to present analysis of the procedural solutions introduced in the Act on the Principles of Implementing the Development Policy (APIDP) and to discuss the fundamental legal problems deriving from this act. APIDP contains basic regulations for the distribution of funds from the European Union. Terminology of APIDP is unfamiliar with the Polish traditional legal terminology which causes interpretational chaos and a general misunderstanding. What is more the APIDP excludes application of the Administrative Procedure Code to the proceedings dealing with the distribution of funds and signifi cantly modifi es proceedings’ rules before the administrative courts. The exclusion of application of the general procedural provisions has crucial constitutional implications. The sphere of legal protection of parties in the proceedings regulated by APIDP is highly reduced; the parties are subject to arbitrariness of authorities. The APIDP regulations are unclear, confusing, discretionary and because of that contradictory to the Polish Constitution, especially to the principle of a democratic state ruled by law.

Załączniki:

6-7-2011 Wyszomirski.pdf

251 kB

On the legacy per vindicationem and the introduction of donation mortis causa into the legal system

Both the legacy per vindicationem and the donation mortis causa provide the heir with the possibility of disposing, on the occasion of death, certain objects with the eff ect in rem. In the work, I am substantiating the allegation that a deed of donation on the occasion of death, despite introducing into the Polish legal system the legacy per vindicationem, still proves to be a useful act that may play an important role in practice. I am doing this by means of juxtaposing the two institutions. The following issues were discussed: the responsibility of benefi ciaries on the occasion of death and legatees of the legacy per vindicationem for legacy debts and legitim, the documentation of subrogation and the problem of the appropriate use of article 961 of the Civil Code.

Załączniki:

6-7-2011 Mleko.pdf

544 kB

Banking deontology in practice

The bank institutions emphasize an ethical dimension of their activity, expose status of subjects of public confi dence and unanimity between practice and the basic ethical assumptions. They enact and also accept to application Vocational Ethics Codes (Deontological Codes). Vocational Ethics Codes used by the bank institutions are not enjoy as the basic source of claims with the bank institutions. However in practice they can serve to a dissatisfi ed parties to a contract in such a dispute. That is why it is worth to notice at the juridical sense of those elaborations particularly test of usage Deontological Codes as a base of the claim against the bank.

Załączniki:

6-7-2011 Zacharzewski.pdf

247 kB

Sources of Law and their Binding Force – Contemporaneity and Antiquity

The aim of this article, inspired by the lately published book by Andrzej Grabowski: Prawnicze pojęcie obowiązywania prawa stanowionego. Krytyka niepozytywistycznej koncepcji prawa (Kraków 2009) [Legal meaning of the Enacted Law binding force. Critic of the Non-positivist Concept of Law, Cracow 2009] and proposed there “legal concept of the enacted law binding force”, is to discuss one of the most important aspects of legal order in general, i.e. the binding force of norms, from the so-called “romanistic perspective”. The question “what does it mean that the norm is binding” seems to be even more interesting and worth of discussion when one realizes some peculiarities of “the Roman system of law” such as the plurality of sources of law and the plurality of legislators as well as the luck of the theoretically elaborated concepts of legal phenomena such as “the normative concept of sources of law” and “the concept of bindingness”. For the reason of the so-called “sapiential concept of law” characterizing the Roman Antiquity, which resulted from the fact that the great number of rules was elaborated by the Roman jurists during their argumentative discourse of a normative value, the analysis of façon de parler of the Roman Jurisprudence can show some important aspects (structure, arguments, aims) of the so-called validative discourse of jurists conducted during the legal practice.

Załączniki:

6-7-2011 Święcki.pdf

660 kB

In looking for protected values in the Constitution

Every Constitution, as belonging to the positivistic law, addresses the community to which it is of a fundamental signifi cance. It states not only principles of the political system, freedoms, rights and obligations of persons and rights of citizens but also an organization structure and the main tasks of the state. However, a key feature of the Constitution lies in pointing out values which are particularly important to the society. Being a member of a certain political community means that even if he/she does not identify himself/herself with a given constitutionally protected good, they are still obliged to respect it. It is important to fi nd out the infl uence of the Constitution principles on the process of qualifying a certain act as a crime. What is more, a crime justifi cation in a given case – a very complex issue – is in my understanding a secondary as well as a modifying eff ect of the constitutional norms’ context.

Załączniki:

6-7-2011 Szczucki.pdf

527 kB

Universal Grammar of Morals and Law

The universal grammar of morals and law is an original scientifi c proposition which can be the alternative to the relativist views in theory and philosophy of law. The authors of this conception are two scholars, lawyers and philosophers: Matthias Mahlmann – professor of Zurich University and John Mikhail – professor of Georgetown University in Washington. Their scientifi c fi elds involve the cognitive science, the research on human brain and the theory of human spirit which they learned in Massachusetts Institute of Technology in Cambridge (MIT). The greatest infl uence on their scientifi c development had a world-known linguists – Noam Chomsky, the author of the universal grammar and the researcher of a human nature and the functioning of a human spirit. M. Mahlmann and J. Mikhail noticed possibility of applying his results in the fi eld of morals and law. This article tries to show the Polish reader the concept of universal grammar of morals and law. It seems that we are confronted with a new trend in the research of morals and law. This research develops in the fi eld of cognitive science as one of tree branches, namely: 1) evolutional psychology, 2) neuroethical emotivism, 3) universal grammar of morals and law (mentalist ethics and theory of law). Although cognitive sciences are oft reduced to determinist naturalism, in the mind of the authors of universal grammar of morals and law, it must not be the necessary rule. As the evidence of that can be their theory. According to them, human spirit is functioning as the manifestation of human brain.

Załączniki:

6-7-2011 Potrzeszcz.pdf

502 kB

The Sorcerer’s Return – Remarks on the Judgement of the European Court of Human Rights Grand Chamber in Case of Lautsi v. Italy of 18 March 2011

The text comments on a judgement of the Grand Chamber of the ECtHR in case of Lautsi v. Italy of 18 March 2011. The case concerns the issue of compatibility of displaying a crucifi x in an Italian public school classroom with the ECtHR standards. The Grand Chamber found no violation and reversed the previous Chamber’s judgement of 3 November 2009. The reasoning of the Grand Chamber was predominantly based on the doctrine of margin of appreciation. Thus, the text starts with the analysis of the margin of appreciation doctrine and claims that its application was a condition sine qua non to address the issues raised in the Lautsi case properly. Then, the Grand Chamber’s thesis that the crucifi x displayed in a public place is a ‘passive symbol’ is challenged. Eventually the Lautsi dispute is framed within the two main social divisions of the contemporary Europe: the religious versus the secular on the one hand and the Christian tradition versus Islamic on the other.

Załączniki:

6-7-2011 Kowalski.pdf

396 kB

Two visions of the European Union vs the issue of national identity

The article addresses the crucial question of European and national identity in context of two models of the European integration which are respectively called the liberal and the republican project. In my opinion the liberal project which dominates in contemporary policy of the European integration is unable to overcome all problems relating to the questions of European and national identity and especially to the idea of “unity in diversity”. In this text I try to sketch out some reforms and improvements of the EU institutional framework which are necessary in order to preserve and protect diversity and multiplicity of national and regional cultures on the basis of the republican project.

Załączniki:

6-7-2011 Morawski.pdf

490 kB