Numer 4 (54)

Europe on Crossroads. On the Necessity of Realistic and Lasting Development of the European Union, the Need for Germany to Do its Homework, and the Value of Narration

The European Union faces many problems in the institutional dimension. It has been indicated that activity of European institutions is understood as out of touch. The Author diagnoses the European Union’s ills. Destructive is destabilization of legal relations among Member States. For instance, the centrifugal trends as a breach of obligations under Article 2 in the Treaty on European Union have been identified. Each proposals based on Union law are being considered. Author highlights controversies of existent Community acquis and point out, that simultaneous multitude of legal acts leads to a legal nonsense. The article draws attention to the efficiency of EU law. However, author considered the legal perspective of various factual situations in Europe, including refugee crisis. Two most important legal principles were analysed (competences conferred upon the EU and subsidiarity).

Pobierz plik (Huber (2).pdf)Huber (2).pdf291 kB

The Right to the Cross on Public Property. Response to a Humanist Association

The paper focuses on the right of citizens who are believers and nonbelievers to the Cross’s presence on public land or in prominent public buildings. The authors support arguments used in the 2019 case of the United States Supreme Court American Legion v. American Humanist Association by outcomes of legal analyses presented during the 2011 controversy concerning the presence of the Cross in the chamber of the Polish parliament. There seems to be no logical connection between the presence of the Cross in public places and the government’s impartiality in religious matters. The Cross does not threaten the impartiality as it fulfills an important social function: it calls for readiness to sacrifice in the name of the good of other people. The right to the Cross becomes an expression of sincere concern for the common good and of true humanism. The people’s expectation that their right to the Cross is respected proves to be both legitimate and constitutional in Poland and in the United States. It is true particularly when the Cross had already been present on public land for a significant period of time. An act of establishing the Cross in public space is different in its nature from demolishing the Cross by cutting its arms or removing it completely from any public space.

Pobierz plik (Kudla_FLB (1).pdf)Kudla_FLB (1).pdf481 kB

Assignability of Claims for Personal Injuries Caused by Torts. Ratio Legis, Present and Future of the Regulation

The aim of the paper is to present an alternative interpretation of the article 449 of the Polish Civil Code. In contrast to the most common, literal interpretation thereof, the paper offers a purposive interpretation taking into account ratio legis of the provision at stake. This tool enables to cast away some interpretative doubts which are constantly raised in the literarure. For inastance, it leads to the conclusion that the acknowledgement of debt which (according to the article 449 of the Polish Civil Code) renders the claims for damages assignable shall be limited to the acknowledgement in the strict meaning of the term, that is to the acknowledgement understood as a contract between creditor and debtor, and shall determine a sum of the acknowledged claim. The paper concludes that the article 449 of the Polish Civil Code, thanks to its purposive interpretation, may effectively protect assignors from assigning their claims for damages for the price which is far lower than the value of damages to which the assignor was entitled. This conclusion put in the context of ongoing works on the new law regulating the compensation agencies makes the article 9 of this law (which exludes the possibility of assignement of claims for damages) redundant.

Pobierz plik (Strugala.pdf)Strugala.pdf316 kB

Dispute over Corporate (Cooperative), Obligatory or Mixed Legal Nature of Cooperative Housing Relations in Polish Law in Comparison to German Law

The article concerns issues of legal nature of legal relation between a housing cooperative and its member resulting from building agreements and agreement of establishing cooperative residents’ right to accommodation. They can have prospectively corporative (cooperative), obligational or mixed legal nature. In my opinion, crucial for further considerations in this scope is the distinction included in German writing between freedom of contracting and freedom of establishing associations. Therefore, vital importance has the issue which of the freedoms underlines legal relations between a housing cooperative and its member. The further part of the article includes discussing arguments vital at assessment of the legal nature of discussed legal relations. The article closes with conclusions that the discussed relations are characterized by cooperative character and therefore they are not typical obligational relations.

Pobierz plik (Zakrzewski.pdf)Zakrzewski.pdf338 kB

The Access of an Accused Deprived of Liberty to the Cassation Stage of Criminal Proceedings

The article provides arguments supporting the thesis that the current regulations of the Code of Criminal Procedure do not guarantee full access to the cassation stage of the criminal proceedings for the accused deprived of liberty and represented by an ex officio defence counsel. In order to lodge a cassation appeal the accused is required to file a motion for written reasons of the appellate judgment within the prescribed time-limit indicated in Article 524 § 1 second sentence of the Code of Criminal Procedure. It is argued that in order to fulfil this requirement the accused must have fully effective right to acquire the content of the judgment or to take an informed decision to waive this right. The Author argues that this standard is not provided for by the current regulation of the Code of Criminal Procedure. The analyses take into account standards stemming from the case-law of the European Court of Human Rights.

Pobierz plik (Wasek-Wiaderek.pdf)Wasek-Wiaderek.pdf323 kB

A Justified Departure from the Principle of Accusatorial Procedure in the Code of Criminal Procedure?

Principle of accusatorial procedure states that criminal proceedings should be conducted only upon the request of a party and thus, the court cannot take the initiative. By the Act of 11 March 2016 the courts’ right to demand supplementing preparatory proceeding during preliminary verification of indictment has been brought back to the criminal procedure. The possibility of adjourning or deferring the trial in order to demand additional evidence has also been restored. The aim of the paper is to consider how these court powers affect the principle of accusatorial procedure and to answer the question whether departure from this principle is justified, for example, by the need to comply with other principles of criminal proceedings.

Pobierz plik (Kowalczyk.pdf)Kowalczyk.pdf304 kB

Commentary to the Decision of the U.S. Supreme Court of 20 June 2019 in American Legion v. American Humanist Association (2019)

The discussed decision refers to the issue of constitutionality of religious symbols on public property. The Supreme Court ruled that 32-foot tall Latin cross erected nearly a century ago to commemorate soldiers who died in World War I did not violate the Establishment Clause of the First Amendment. The Court correctly holds that the religiously expressive monument me be retained for the sake of its historical significance and its place in a common cultural heritage. However, it gives rise to concerns that the Supreme Court set forth a presumption of constitutionality for only “longstanding” monuments, symbols, and practices. Similarly, the Court properly emphasizing the nonreligious meaning and functions of the contested cross, at the same time unduly underestimated its religious dimension. There is no need to overlook deeply Christian nature of the cross, when simultaneously exhibiting its cultural and historical importance.

Pobierz plik (Maron.pdf)Maron.pdf325 kB

W latach 2022-2024 czasopismo Forum Prawnicze finansowane jest w ramach projektu Rozwój czasopism naukowych ze środków Ministerstwa Edukacji i Nauki na podstawie umowy nr RCN/SN/0611/2021/1. Łączna kwota wsparcia ze środków Ministerialnych wynosi 28 000 PLN. Celem pozyskania Funduszy przez Forum Prawnicze jest podniesienie poziomu praktyk wydawniczych i edytorskich, zwiększenie wpływu czasopisma na rozwój nauki oraz utrzymania się czasopisma w międzynarodowym obiegu naukowym.

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