Deceit in the Context of Private Evidence – de lege ferenda Remarks on an Amendment to the Code of Criminal Procedure

In this paper presented is the question of deceit in the context of private evidence in the light of an amendment to the Code of Criminal Procedure. Firstly, the essence of the term ‘deceit’, focusing on its lexical meaning, is discussed, as well as its existence in other areas of law, including civil and criminal law or previous Codes of Criminal Procedure. An attempt to propose an authorial definition of the term is also made. Furthermore, the author considers the motives for introducing the said amendment to the Code, with the deliberations centered around article 393 par. 3 of the Code, which – de lege ferenda – would enable the parties to make use of their private evidence in the course of procedure. The article discusses that change proposed, which permits the counsel for the defendant to employ private evidence may potentially cause difficulties in the interpretation of the Act as a whole, something which was not foreseen by the legislator. One of such difficulties is the problem of deceitful obtainment of private evidence. Furthermore, it is not yet known how the gathering of the private evidence will look like. Potentially, there is a sizable number of persons who may avail of deceit with a view to obtaining evidence, as well as persons against whom deceit may be employed. Having this in mind, the author tries to delineate the general rules pertaining to the use of deceit when obtaining the private evidence. He points out that the rule „nemo se ipsum accusare tenetur” could be easily broken and also juxtaposes the deceit with the „fair trial rule”. The discussion contained herein also touches upon the proposed addition of article 168a to the Code. It is the author’s conclusion that the fact that the burden of proof is plaed on the parties may threat the trial’s comprehensiveness. The problem of deceit, despite the demands voiced by the doctrine, has not been settled hitherto, and it remains unresolved even under the new amendment.

Pobierz plik (Torunski.pdf)Torunski.pdf284 kB

The Principle of Material Truth in the Light of the Adversarial Model of Criminal Proceedings

Article 2 paragraph 2 of the Polish Code of Criminal Procedure delineates the principle of material truth, recognized as an overarching principle of criminal proceedings. It is often claimed that this principle derives from the Polish Constitution, particularly from Article 2 and Article 7 (the principle of democratic rule of law) or Article 45 paragraph 1 (the right to a fair trial) and, consequently, had a status of constitutional rule. Nevertheless, such a view is disputable in the jurisprudence. The practical significance of this dispute underlies the discussion on an amendment to the Polish Code of Criminal Procedure (dated 27 September 2013). The core question, which the article seeks to provide an answer to, can be watered down to whether the legislature can interfere with the judges’ right (and duty) to accept and search for evidence as to establish material truth in a full adversarial trial, and whether such a reform could be kept within constitutional limits. Bearing in mind the essence of the principle according to which any decision (negative for the accused) must be based on objective findings, its functioning in the full adversarial system shall not be ignored.

Pobierz plik (Rychlewska.pdf)Rychlewska.pdf274 kB

A Few Legal and Legislative Comments on the Optional Financial Penalties Regulated in the Health Care Services Financed from Public Funds Act

The subject of this publication is an analysis of the optional financial penalties regulated in the Health Care Services Financed from Public Funds Act. This paper starts with a general characteristics of the institution of financial penalty and elucidation of its nature. Next, it analyzes financial penalties regulated in the Act by reference to their structure and editing rules, administrative liability rules and the scope of Health Minister’s discretion in imposing them. At the end, the article scrutinizes the limitation rules governing financial penalties regulated in the Act.

Pobierz plik (Kaczocha.pdf)Kaczocha.pdf206 kB

Sharing and Declassification of Classified Materials Extracted by the Police Forces in the Course of Operational Controls

The following publication depicts a very controversial issue of sharing and declassification of classified materials, a question which is still in the centre of a debate between law practitioners and scientists. The lack of detailed statutory regulation, aimed at particularizing the conditions for the conduction of reconnaissance activities, could be remedied by one of the postulated legislation changes presented in this article. It is maintained that a precise and logical adherence to the rule of law, coupled with purposive interpretation of the existing legislation norms duly spells out the way in which classified materials obtained as the result of operational control should undergo the process of sharing and declassification.

Pobierz plik (Labuz.pdf)Labuz.pdf245 kB

Digital Content and the Contract of Sale. Critical Analysis of the Proposed Amendment to Art. 555 of the Civil Code.

Implementation of the directive 2011/83/EC on consumer rights into Polish law involved entrenching in domestic law a very controversial idea of extending the scope of the contract of sale to the so called ‘digital content’. The idea has since been discarded but the problem it was supposed to address, i.e. the need to adapt civil law to the changing technological circumstances and the fact that more and more often contracts akin to contracts of sale apply in fact to digital and immaterial subject-matter remains. The article discusses the planned yet since withdrawn amendment of art. 555 of the civil code and explains why it is impracticable, if not impossible, for the law to accommodate digital content by simply declaring that the provisions on sale should apply to it accordingly. Such a deceivingly facile solution would create numerous theoretical and practical difficulties, beginning with the very definition of the subject-matter and covering many other issues such as the problem of remuneration (price), overlaps with intellectual property law (including, but not limited to, copyright), ‘virtual’ property and the interaction with various services usually accompanying ‘digital content’. The article concludes that all these issues are undoubtedly significant and worthy of further analysis, but none of them woul

Pobierz plik (Targosz_Wyrwinski.pdf)Targosz_Wyrwinski.pdf360 kB

Reasons Underlying the Propensity of Polish Judiciary and Public Authorities for Underscoring the Division between Public and Public Law

In this article the author tried to identify the reasons and motives which stand behind the tendency of Polish courts and public administration bodies to invoke the classic division between public and private law. For this purpose, the author selected a group of 8 court cases and administrative decisions. Following this analysis, the author concludes that in Poland the distinction between public and private law is still of great significance, despite some views maintaining its waning status compared to Western European countries. Yet, as it appears, it is still inspiring in the process of applying law. The analysis also leads to the conclusion that the reasons for referring to this division by the courts and public administration bodies are manifold. The author concurs with a trend in academic literature according to which this division is contingent upon and reflected in a variety of legal contexts.

Pobierz plik (Szczepaniak.pdf)Szczepaniak.pdf344 kB

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