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Time to Move on! Old and New Proposals for the Extension of the Legal Protection of Nasciturus

First of all, in Poland protection of a conceived child on the ground of civil law between 1940s and 1980s was introduced and strengthened thanks to the Supreme Court, despite the de facto unlimited possibility of abortion. Professor Bronisław Walaszek had great merits in this regard. The article presents proposals for extending this protection under civil, family and labor law (including the admissibility to initiate proceedings for determining paternity before the birth of a child, admissibility of consent to initiate proceedings for adoption of a child befor its birth, protecting a pregnant woman from the need to participate in divorce proceedings). It also encourages the adoption of provisions that will be able to protect a child against the causes of alcohol-related fetal syndrome.

Pobierz plik (Mazurkiewicz.pdf)Mazurkiewicz.pdf414 kB

Notes on Interpretation of the Term “When Performing an Act” on the Grounds of Art. 430 Polish Civil Code

According to article 430 of the Polish Civil Code anyone who, on his own account, entrusts an act to a person who, while performing the act, is under his management and is obliged to follow his instructions is liable for any damage caused due to a fault on that person’s part when performing the act. It means that the supervisor is liable only when a person who caused the damage, caused it “when performing the act” but is not liable if the damage was caused only “on the occasion of performance of the act”. The goal of this article is to analyze where is the borderline between the term “when performing” and “on the occasion of performing”. After a study of opinions presented by courts and theory of Polish civil law, in article was posed that the damage is caused “when performing the act” only if a delinquent acts in the aim of performing his duties or to protect the interests of supervisor and not if the performing of the duties merely creates to him a possibility of causing damage.

Pobierz plik (Kondek.pdf)Kondek.pdf428 kB

Reproach for a Flagrant Violation of the Law in the Act of 22 March 2018 on Court Bailiffs

The Act of 22 March 2018 on Court Bailiffs introduced to the system provisions regulating the profession of court bailiffs the institution of reproach for a flagrant violation of the law. This institution derives from the Law on the Organization of Common Courts, but the lawmaker opted for extensive modifications in comparison to the original source: the ground for issuing a reproach is a flagrant violation of the law by the bailiff, and the only competent authority to issue it is the district court. Even though the imposition of this sanction affects, among other things, eligibility to serve as a bailiff-inspector or member of a disciplinary board, has to be disclosed on the roll of bailiffs kept by the National Bailiff Council, is binding in disciplinary proceedings and affects the severity of the penalty imposed in them, the affected bailiff has no legal recourse to challenge the reproach. The opportunity to present the district court with an explanation can hardly be regarded as a sufficient remedy to deal with an unfounded reproach.

Pobierz plik (Misztal-Konecka.pdf)Misztal-Konecka.pdf320 kB

Invalidity of a Trademark as a Reason for Suspension of Civil Law Proceedings

The purpose of the article is to discuss the problem of the trademark protection in Polish law. This protection takes place in civil law proceedings. It may be impeded if the defendant begins to challenge the validity of the trademark. The court cannot decide on the validity of the trademark; the decision on the invalidation of the trademark may be taken only by the Patent Office. For this reason, the court should suspend the civil law proceedings which can last for long time. Therefore, in Polish law, following the example of EU law, consideration should be given to the possibility of determining the validity of a trademark also by a court, if such a need occurs during the civil law proceedings.

Pobierz plik (Lochowski.pdf)Lochowski.pdf272 kB

Qualifications of an Expert Witnessin Polish Criminal Procedure

The paper focuses on issues related to the appointment of expert witnesses andin particular to verification of the qualifications of candidates for experts, allowingthe selection of people with highest professional qualifications, who havespecific experience in the area concerned and also proper ethical predispositions. The study draws attention to significant deficiencies in the regulations in forcein this matter and indicates the need for statutorily specified procedure for theappointment of expert witnesses.

Pobierz plik (Dzierzanowska.pdf)Dzierzanowska.pdf266 kB

Asking Once Again About Interpolacionism: Remeberedand Forgotten. “Gradenwitz,Riccobono und die Entwicklungder Interpolationenkritik.”

It is not easy to properly aesimate the value of interpolacionism methodology. On the one hand, it caused a great diffidence among romanists analyzing Roman law sources. On the other, however, its subtility even nowadays remains respectable. Authors of texts in the collection of papers entitled “Gradenwitz, Riccobono und die Entwicklung der Interpolationenkritik” tried to explore that topic with presenting the careers of specific professors: German Otto Gradenwitz and Italian Salvatore Riccobono. The first one is known as the pioneer of interpolacionism with his monography “Interpolationen in den Pandekten” from 1889. The second was inspired by the new method, but then raised its profound criticism, followed by many other Roman law scholars. Some texts focus instead on the reception of interpolacionism among romanists of specific countries, such as Spain or Great Britain. Suprisingly France was ommitted, not to even mention Poland, Czechia or Hungary. The same concerns important scholars that were adherents of interpolacionism (I. Alibrandi, F. Eisele, E. Albertario).

Pobierz plik (Sorka.pdf)Sorka.pdf304 kB

Plus ratio quam vis

72. Sesja Société Internationale Fernandde Visscher pour Histoire des Droitsde l’Antiquité (SIHDA), Kraków, Uniwersytet Jagielloński,11–15 września 2018 roku

Pobierz plik (Swiecicka_Wyrwinska.pdf)Swiecicka_Wyrwinska.pdf177 kB

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