Numer 2 (58)

Philosophical anthropology claims that every human being necessarily operates in specific communities. These communities must also be based on certain ethical principles. One of the principles forming this ethical foundation is the principle of social justice. The Polish Constitution of 1997 does not contain any legal defini- tion of this principle and the doctrine has problems with defining it as well. In this connection, the Catholic Social Teaching, which combines the principle of social justice with human dignity, the common good, equality and solidarity, can be an important interpretative support. 

Pobierz plik (Chauvin.pdf)Chauvin.pdf424 kB

The article attempts to capture and analyse selected issues regarding paren- tal responsibility in the event of a trans-border change of habitual residence of a child whose parents live apart in different countries when parents need to change the existing arrangements concerning their parental responsibilities and, in particular, the existing right of access with regard to the child. For clarification purposes, various problems which are covered by the article have been discussed using a case-study method with Polish-Italian family relations in the background. The main issues raised by the authors relate to the law applicable to parental responsibility as well as jurisdiction, recognition and enforcement of foreign court judgments (including court settlements) in matters of parental responsibility. Some attention is devoted also to the possibility of securing the implementation of court judgments made with regard to the parents’ right of access. 

Pobierz plik (Wojewoda_Kostwinski.pdf)Wojewoda_Kostwinski.pdf465 kB

The article considers inheritance affidavit as a means of evidence in the con- text of changes introduced by the Act of 4 July 2019 amending the Code of Civil Procedure and certain other acts. This will apply in particular to the new Article 2711 of the Code. Pursuant to the mentioned regulation, a witness may give his/her testimony in writing under the conditions specified therein. The question arises as to the scope of the latter regulation, in particular whether it covers e.g. the evidence from the parties testimony and the inheritance affidavit. The analysis of these issues is historical and comparative in specific regarding German and French legal systems. 

Pobierz plik (Wielgus.pdf)Wielgus.pdf384 kB

The article raises the question of the influence of the EU clinical trials of me- dicinal products legislation on the Polish criminal law. Although this issue does not fall within the scope of the Article 83 of the Treaty on Functioning of the European Union, its significant importance results from the expected beginning of application of the Regulation No. 536/2014 of the European Parliament and of the Council of 16 April 2014 on clinical trials on medicinal products for human use, and repealing Directive 2001/20/EC. The impact of the EU legislation on member states’ criminal law in the field of clinical trials is based on the principle of pri- macy. Three directions of this impact can be distinguished concerning Regulation No. 536/2014. The first is the exclusion of the unlawfulness of the acts prohibited by the chapter 19 of the Polish Criminal Code within the scope of the prerequisites for the admissibility of clinical trials. The second is the de facto depenalisation of the behaviors described by in Article 126a (1) (3–5) of Pharmaceutical Act. The indicated two effects may take place ex lege with the beginning of application of Regulation No. 536/2014, if there is no change in the Polish law beforehand. The realisation of the third direction depends on the decision of the Polish legislator, who is required to introduce effective, proportionate and dissuasive penalties applicable to infringements of the Regulation No. 536/2014. The type of these measures is left to the discretion of the member states, but the current legal situation combined with the principle of assimilation prompts us to suppose that the choice of criminal penalties will be sustained. 

Pobierz plik (Galazka.pdf)Galazka.pdf452 kB

The criminal trial is constrained within the bounds set by the indictment filed by the prosecutor. However, as it quite frequently happens, the initial description of the crime in the indictment requires further modifications in the course of the trial. Some of these modifications are rather trivial (date or other quantitative features, venue, etc.) but other, leading to a complete overhaul of the indictment, are quite problematic. As according to the judiciary neither legal qualification nor the de- scription of the indicted crime is binding for the court, only the “historic event” provides bounds for such modifications. Unfortunately, recent Supreme Court rulings seem to be contradictory – some extend the boundaries of modifications to extreme (factual event regardless of its vagueness), while other limit that by claiming that the concept of “historic event” may not be so general to enable a de facto alterna- tive indictment. Has „historic event” as criterion become a pure fiction? Are there any procedural mechanisms to secure the right to defense in case of modifications? 

Pobierz plik (Zontek_Wojtaszczyk.pdf)Zontek_Wojtaszczyk.pdf400 kB

The commented judgement refers to the way of interpreting the term “family” in the scope of its members. The choice of interpretation is necessary to examine the possibility of granting the one-time financial support on the occassion of the birth of a child. The key problem of the case is the question whether the father who does not stay actually with the mother and the child belongs to the family. According to the strict interpretation the answer is positive and his income should be taken into account. WSA decided to use the teleological definition of family which takes into account only members actually forming a family and excluded father from community of family. In that way his income is not subject of verifi- cation. According to the author of the commented judgement the interpretation preferred by WSA is contra-legem, releases fathers from their future duties and presents dangerous corruption of system of family law. The father cannot be excluded from the family in any dimension. 

Pobierz plik (Rakoczy.pdf)Rakoczy.pdf256 kB

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