Between the Idea and the Systemic Practice. On the Way of Austria to the Constitutional Court

The aim of the article is to show that the concentrated system of constitutional protection in the republic of Austria – commonly referred to as the Kelsen system – was a legacy of the systemic practice and legal thought from the times of the Habsburg monarchy. The model of constitutional protection adopted in 1920 was based principally on the legal structures of old Austria, adapted to the new federal state system. The analysis of legal grounds of the jurisdiction of the Constitutional Tribunal suggests that there occurred a transfer of legal solutions to the republican constitutional order rather than the emergence of a new type of constitutional judiciary that would protect the objective constitutional order by means of abstract control of the constitutionality of law. The control of the constitutionality of law in Austria at the time was, in principle, concrete. The article also provides justification for the idea that it is Georg Jellinek to whom we owe the idea of abstract control of the constitutionality of law. Even though it was revitalized by H. Kelsen, it did not become part of the constitutional protection model in the First Austrian Republic.

Pobierz plik (Dziadzio.pdf)Dziadzio.pdf523 kB

Discourse on Fundamental Legal Issues in „Themis Polska“ (1828–1830) in Light of the Programme of the Historical School of Jurisprudence in Germany

Shortly before the suppression of the November Uprising of 1830/31, jurisprudence in the Kingdom of Poland underwent a phase of renewal driven by a new generation of well-trained young legal scholars. In 1828 they founded ”Themis Polska”, the first law journal in Poland to take a scientific approach in reference to its famous French precursor ”Thémis”. The new professional journal quickly became a public platform for debate among legal scholars in the Kingdom of Poland on the past, present and future of Polish law. Three fundamental questions engaged the jurists of the time. Firstly, the role of Roman law in the Polish history. In light of the Western European reception of Roman law, a fundamental subject of discussion at the core of this was the question as to what role Roman law should play in Poland of the future. Secondly, following contemporary controversies in Germany under the new watchwords ”nation” and ”history”, the question of the relationship between history, philosophy and the dogmatics of law had also been raised in Polish jurisprudence. The third question referred to the future codification of Polish civil law. This discussion also followed on from the famous codification debate that had taken place in Germany fifteen years earlier.

Pobierz plik (Mecke.pdf)Mecke.pdf494 kB

Gamete Donation between Family Members – de lege lata and de lege ferenda

In the Polish legal system there are no legal regulations concerning a non-anonymous gamete donation and an intra-family gamete donation. The purpose of this article is to analyze if the intra-family gamete donation should be mandated in the Polish family law. It is necessary to point out that in some cases this legal construction could be valuable. In the first part of the article the typology of intra-family gamete donation is presented. In the second part, there are the results of research into the benefits and dangers of the intra-family gamete donation. Thereafter, it is analyzed how this kind of legal regulation could be implemented in the Polish legal system.

Pobierz plik (Lukasiewicz.pdf)Lukasiewicz.pdf433 kB

Social Inadequacy of the Act as the Basis of the Unlawfulness of Attempts

The aim of the study is to answer a question, what determines the unlawfulness of attempts. According to the author, attempts take place only if a behavior of a perpetrator either already has violated the precautionary rules that determine the content of the norm underlying the offense at the stage of accomplishment, or has not violated this rule, but situates on the foreground of its violation, creating a situation that allows immediate undertaking of behavior contrary to this rule. This means that the essence of the unlawfulness of attempts is the social inadequacy of the perpetrator’s behavior, because such behavior, evaluated from the ex ante perspective, creates a socially unacceptable danger to the specific legal good. This property of behavior is the material content of its illegality. Formally, a breach of precautionary rules or a direct attempt to breach them is a requirement of the violation of the norm, which underlies criminal liability for attempted crime. From the dogmatic perspective, behavior which has not met the above-mentioned condition, does not realize the element of any attempted crime in the form of ”a direct act done towards committing the offence” and for that reason such behavior cannot be considered as an attempt within the meaning of the Polish penal code.

Pobierz plik (Jezusek.pdf)Jezusek.pdf439 kB

The Issue of Medico-legal Assessment Regarding Polish Criminal Proceedings Based on its Historical Outline

The article tackles the issue of medico-legal assessment regarding Polish criminal proceedings based on its historical outline. Ever since medieval times, the only people entitled to perform these assessments were experts in medicine. In time, as forensic medicine began to develop as a separate field of science, they became an elite group of expert witnesses. With appropriate knowledge, the assessment of the consequences brought onto a victim of the committed criminal act would be undoubtfully facilitated. However, it does not actually apply to legal provisions. Regulations regarding criminal proceedings are full of imperfections and, as a result, forensic physicians are being replaced with doctors, who have not obtained the required expertise. This leads to further incorrect assessments, which prevent from reaching the tangible truth, results in the misconstruction of facts and the incorrect assignment of legal qualifications. If the legislator does not react promptly in that matter, the liability of the perpetrator for the committed crimes might be assigned in a random manner.

Pobierz plik (Wroclawski.pdf)Wroclawski.pdf439 kB

The Pre-Roman Commercial Law Seen by the Dogmatic. Remarks on the Basis of the Book ”Le antiche leggi del commercio” of Marco Cian

The paper presents remarks made after reading the book of the Italian commercial law scholar, Marco Cian. His work considers ancient commercial statutes as prototypes of commercial law as such. Contrarily, the traditional doctrine recognizes the beginning of commercial law merely in medieval times. It is hard to find in antiquity the concept of commercial law similar to the modern one as a separate branch of private law. However, the chieftains of small Hebrew tribes or Pharaohs wanted to affect somehow the production or trade with their laws. Marco Cian concentrates on ancient Egypt, Mesopotamian codes, and Hebrew law. His last chapter is dedicated to Greek laws. It is seriously disappointing that the book omits issues connected with Roman law. Despite the fact that Roman legal experience is especially productive and instructive in that aspect and included in the title literally, the author decided that it has already been studied well enough by scholars.

Pobierz plik (Sorka.pdf)Sorka.pdf336 kB
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