Numer 1 (45)

East and West as Values in the Polish Tradition of Law and Politics

Values are present not only in law and politics, but also in respective branches of scholarship. Interestingly, already in antiquity even parts of world were considered as value-laden. Already by then, prevailed the bad opinion about the East, represented by Byzantium. As from the ruins of the Western Roman Empire the Europe of Charlemagne emerged, beyond its eastern border a “new” Europe appeared which inherited all the negative features of the East, first of all the economic, moral and legal backwardness. It is the West of Europe, where western civilization and western legal tradition come from. They were assimilated by Poland through its Christianization in the 10th century and through German colonization in the 12–13th century. Poland became in this way a kind of “East of the West”, but the German “bearer of culture” was considered in Eastern Europe directly an advocate of the Occident. Only in two isolated cases Poland overtook Western Europe: the dispute of Paulus Vladimiri against the Teutonic Knights at the council of Constance (1414–1418) and the promulgation of the May constitution in 1791. However, in most cases also within the borders of Europe the West revealed itself unable to learn from the rest

Pobierz plik (Giaro.pdf)Giaro.pdf333 kB

Family Relationship – Analysis of the Interest’s Nature and Remarks on Acceptability as Well as Appropriate Ways to Compensate the Non-pecuniary Loss Incurred by the Infringement of this Interest

The article discusses the concept of a family relationship being a personal interest within the meaning of Article 23 of the Civil Code, created in the case law of the Supreme Court. It entitles the close relatives of a direct victim to claim compensation damages on the grounds of Article 448 of the Civil Code. The concept is regarded as controversial. Its opponents especially point out that a family relationship cannot be qualified as a personal interest, because of its interpersonal character. The author of the article brings to light the developmental nature of the concept, presents other probable directions of its evolution and anticipates its influence on the legal system.

Pobierz plik (Gaska.pdf)Gaska.pdf348 kB

The Notion of Permanent Place of Residence in Criminal Law

“Permanent place of residence” is one of the most ambiguous notions in criminal law. Its interpretations differ. Moreover, the comprehensive outlook on this notion is lacking in criminal law. At the same time, the range of use of a permanent place of residence notion lastingly extends and its understanding influences among other things the scope of an accused’s duties. Therefore, it is necessary to analyse this notion taking into consideration the cohesion of the criminal law system. The author proposes that the whole criminal law definition of a permanent place of residence be universal

Pobierz plik (Gietkowski.pdf)Gietkowski.pdf338 kB

Criminal Aspects of Xenotransplantation

The article deals with the criminal aspects of xenotransplantation. The first point is a discussion on the concept and scope of xenotransplantation – with consideration of the definition created by the U.S. Public Health Service and the regulations of the Act of 1 July 2005 on the collection, storage and transplantation of cells, tissues and organs. Attention is turned for instance to transplantation and the use of animal cells or tissues. Secondly, the legal conditions of xenotransplantation are discussed in accordance with the regulations of the Act of 5 December 1996 on the professions of a doctor and dentist (referring to a medical experiment). The article also presents a discussion of xenotransplantation as a circumstance that excludes illegality. It is based on the experimental nature of xenotransplantation. The article describes the criminal aspect of the protection of animals which are donors of organs, tissues and cells used in xenotransplantation. Finally, it contains de lege ferenda postulates and the introduction of appropriate regulations related to routinely performed procedures.

Pobierz plik (Gadzik.pdf)Gadzik.pdf308 kB

Violation of the Legal Interest as a Statutory Requirement for Appealing Municipal Planning Acts of a Commune

The article shows selected practical aspects connected with appealing against a resolution on the local zoning plan and the study of conditions and directions of spatial management, on the basis of the violation of the legal interest of a claimant. The legislator limits the competences of the interested parties to appeal against a resolution on the local zoning plan and the study of conditions and directions of spatial management. The legal interest for bringing an action on these resolutions was shaped on the different principles than in the administrative proceedings. A subject to bring an action on the resolution in the administrative court is only the subject whose legal interests has been infringed. It means that the legitimacy for bringing an action is not due to the fact of belonging to the self-government community. Therefore, in any case, it is necessary to show a violation of a specified legal norm. The article analyzes such issues appearing in the rulings of administrative courts as: the legitimacy of a subject who is entitled to obligation rights to the property covered by the provisions of planning acts; the legitimacy of the owner of the property which is not covered by the local plan and the showing of the violation of the legal interest in the complaint for a communal study

Pobierz plik (Terlega_Olejnik.pdf)Terlega_Olejnik.pdf361 kB

Jurispurdence: Analityc Philosophy or Social Theory?

In his book A Realistic Theory of Law, Brian Z. Tamanaha presents a vision of the historical development of law in connection with social, economic and technological factors. He aims to revive a tradition of legal realism which can be traced back to the writings of Montesquieu. The tradition was neglected in the 20th century, when natural law theory and, especially, analitycal jurisprudence were largely advanced. Tamanaha exposes the shortcomings of analytical jurisprudence. Instead of endeavors to find an abstract definition of law, he offers a range of historical and sociological essays which outline the constant evolution of law. It is not clear, however, if Tamana is fully aware of all the possible conclusions that might be drawn out of the stress he puts on evolution. If there is no “nature of law” at all, we may easily find ourselves deprived of any reliable theoretical knowledge concearning law. It might be said then, that Tamanaha seems rather to abandon than to solve the problem of the nature of law. One may also ask, if Tamanaha’s book, with all its versatility of examples taken from the past and present of economic and political life, should be considered a book on jurisprudence or a book on history and sociology.

Pobierz plik (Slawinski.pdf)Slawinski.pdf283 kB

Commentary to the Decision of the Supreme Court of 20 April 2017, II KK 116/17

The commentary concerns determining the statute of limitation of the criminal offense of a private prosecution committed under the conditions specified in art. 12 of the Criminal Code. The author shares the view expressed by the Supreme Court, that the limitation period runs from the date of ending the last behavior included in the act. Otherwise than the Supreme Court, he thinks, that what the victim finds out only after the end of the act is not the perpetrator, but the final form of the act. Only using functional interpretation one can justify the accuracy of the final result of the interpretation adopted by the Supreme Court, according to which the limitation period starts with the end of the act. Therefore, for correct interpretation, it is not enough to use only language and methods of logic, but it is necessary to take into account the axiological directive of the purpose of the provision. The author fully shares the computatio civilis method of calculating the limitations adopted by the Supreme Court. However, the author supplements the Supreme Court’s argumentation with the linguistic argument resulting from the fact that the regulation refers to “time” and not “day”.

Pobierz plik (Kulik.pdf)Kulik.pdf288 kB

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