Constancy and Changes of Succession Regulations in 100 Years of Poland’s Independence

The paper presents an evolution of the law of succession in Poland since 1918. Five specific areas of regulation are examined: entitlement to succession, acquisition of the inheritance, intestate succession, legitim and reserved portion, and liability for inheritance debts. The constancy of succession regulations was not obvious as there were five jurisdictions in private law 100 years ago in Poland. The unification of 1946 and the codification of 1964 kept what Polish legal practice and doctrine accepted from the European tradition of private law. The tradition based on Roman law was not recognized in Poland before it was partitioned in 1795. Roman law appeared in Poland with the code of Napoleon brought by his armies to the Duchy of Warsaw in 1808, and with codes of Austria, Russia and Germany. The three empires divided Poland between themselves for the long 19th century. After gaining independence in 1918, Poland accepted the European legal tradition of private law as its own. It happened not by one act, but by the silent acceptance of private law that remained in force after the partition. Changes of notions, values, institutions or regulations in the Polish law of succession were kept limited for the last 100 years, as the stability of private law was guaranteed by the acceptance of Roman legal tradition.

Załączniki:

FLB.pdf

538 kB

Change of the Concept of Marriage in the German Constitution. On Meanders of the Dynamic Interpretation of Constitutional Provisions

On July 20, 2017, the Bundestag has passed a law on the introduction of the right to marry by persons of the same sex. The adopted legislative solution is controversial regarding its compliance with the German Basic Law, i.e. with its art. 6 § 1: “marriage and family are under special protection of the State.” The dispute concerns whether the necessary element of the constitutional concept of marriage was – and still is – a difference in the sex of the spouses. This paper has three basic objectives: first, the identification of the essential arguments raised in favour of amendment’s compliance with the Basic Law; secondly, to examine whether the position on the compliance of this amendment with the Basic Law requires adoption of a dynamic interpretation of constitutional provisions; thirdly, assuming an affirmative answer to the second question, to identify the process that led to the change in the meaning of the Basic Law in respect to the concept of marriage.

Załączniki:

Lacki.pdf

413 kB

Originalism or Living Sources of Law? The Political Side of Judicial Activism

The aim of this article is to guide the Justice Antonin Scalia’s originalism concept of the interpretaion of the Constitution of the United States, in contrast to the views on the interpretation of constitutional provisions, in particular the concept of judicial activism and a living (breathing) constitution. The author points out the danger of increasing the significance of the political dimension of judges’ activism on the level of interpreting constitutional and international law.

Załączniki:

Cieply.pdf

286 kB

Practical Problems Related to the Institution of Alternate Custody

The aim of this article is to explain a new institution of Polish family law, being the so called alternate custody. In the article, the relation of alternate custody towards notions such as: parental authority, contact with a child, alimony etc. have been presented. The author has tried to indicate the practical aspects of the utilization of alternate custody.

Załączniki:

Lukasiewicz.pdf

351 kB

A Recent Polish Case Law in the Masterpiece Cakeshop Case Perspective

The article delivers some critical remarks on recent judgements of Polish courts concerning the so called Lodz printer case. The author attempts to apply ratio decidendi form the US Supreme Court holding in the case of the Masterpiece Cake shop in the circumstances of the Polish case, and evaluate the approach of Polish courts from this perspective. The reasoning provided by Justice Kennedy in the Masterpiece Cakeshop opinion seems convincing and universal in the field of equality v. religious freedom controversies, which makes it a proper guidepost in the examination of disputes such as the Lodz printer case. From the presented point of view, Polish judgements occur as justified in not a very elegant manner, however they seem to be correct eventually. Detailed remarks raised against those judgements concern among others the issue of the interpretation of applied regulations of the Polish Code of Petty Offences and the Polish Civil Code. The Polish Supreme Court’s approach to the interpretation of demands ostensibly stemming from relevant human rights provisions is also questioned.

Załączniki:

Mirocha.pdf

307 kB

The Incapability of Perception and Communication of Observations by Witnesses under Administrative and Tax Proceedings

The study discusses main issues arising from the regulation of witnesses’ incapability of perception and communication of observations under Polish administrative and tax proceedings. The proper collecting of evidences is the core matter of administrative and tax proceedings. In cases where hearing witnesses is necessary, identifying a group of persons capable of testifying is a key element in order to guarantee proper factual findings. Polish procedural law, administrative and tax law in detail, defines this circle by establishing groups of people who are incapable of testifying. The key group of persons incapable of testifying consists of those who are unable to perceive or communicate their own observations. That wording, used in the regulation of the Polish Code of Administrative Proceedings and Tax Ordinance, is inexact. In order to specify the group covered by the scope of this provision it is necessary to use not only textual, but also substantive interpretation. It is important to highlight that an interpretation of Polish administrative and tax proceedings in the area of capability to testify includes international treaties and the Universal Declaration of Human Rights, the UN Convention of Rights of Persons With Disabilities, and the UN Convention of Rights of The Child. The interpretation should also include science and medicine results.

Załączniki:

Paduch.pdf

396 kB

A Critical Commentary to the Judgment of the Supreme Court of 16.2.2017, Ref. I CSK 106/16

The commentary contains a presentation and evaluation of the arguments that were given by the Supreme Court to justify the thesis, according to which the press correction cannot be signed by the plenipotentiary of the interested person, but the person concerned must do so by delineating his or her own signature. In the article, attention was also paid to the motives that led the legislator to shape the formal requirements for press correction in such a way that one of its elements must be the signature, as well as other arguments allowing, in the author’s opinion, to consider the Supreme Court’s position as incorrect.

Załączniki:

Zelek.pdf

268 kB