Contemporary issues regarding codification of administrative law

In this contribution author is going to determine whether given fields of administrative law are able to by codified either as a whole or partly. Substantial norm of administrative law are not easily codified which is not the case with procedural norms which are said to have “ability” of being codified. The fields of administrative law which is more or less “naturally” able to be codified are general administrative jurisdiction and so-called excluded administrative jurisdiction. Undoubtedly, the most important regulation which falls into codification characteristics is Code of Administrative Procedure which foremost regulates administrative jurisdictional procedure. However even in this case Code only regulates a fragment (piece) of legal reality in the form of general administrative jurisdiction. It is also applicable on a lex generalis basis in special jurisdictional administrative proceedings. In itself, however, it is not a uniform regulation. As a consequence of that discussion on shape of Code regulation is still relevant.

Pobierz plik (FP 64 strony 3-19.pdf)FP 64 strony 3-19.pdf377 kB

Using the files of criminal or penal fiscal cases in tax matters

The problem that the evidence collection process in tax matters reveals is the interpretation of Article 181 of Tax Ordinance Act. Among others, one of the categories of evidence in tax proceedings listed in this provision are “[…]materials collected in the course of criminal proceedings or proceedings in cases involving fiscal crimes or offenses”. The paper explains the understanding of the abovementioned wording and considers whether it allows the tax authority to include the protocols of witness hearings, carried in the course of other criminal, penal fiscal or tax proceedings against other entities, into the case files, instead of hearing the witnesses on its own. In order to response to those doubts the case law of the Supreme Administrative Court was analyzed, including the adjudication made in the context of the judgment of the CJEU of 17 December 2015, C-419/14, WebMindLicenses.

Pobierz plik (FP 64 strony 20-32.pdf)FP 64 strony 20-32.pdf352 kB

Qualifying a convicted person as “dangerous offenders “ from the perspective of the Council of Europe recommendations and national law

Prisoners posing a serious social threat or a serious threat to the security of penitentiary institutions constitute a special group of people isolated in criminal terms. They are not a large group in the population of convicts serving a prison sentence, but they remain in the sphere of interest of international bodies and institutions. The justification is not difficult to indicate. The use of special protection and security measures against these convicts causes a significant interference in the rights and freedoms of the individual, isolation of convicts from the prison community, limiting their contacts with the world outside the prison, especially with the family. Recommendation CM/Rec (2014) 3 on dangerous criminals prompts us to look at the qualification of convicts as a serious social threat or a serious threat to the security of the establishment, especially from the point of view of the legislative changes of 2015 in the Executive Penal Code.

Pobierz plik (FP 64 strony 33-47.pdf)FP 64 strony 33-47.pdf395 kB

Axiological Conditions Determining the Selection of Interpretative Criteria in the Contemporary Models of Contract Interpretation

The issue of contract interpretation, examined in both definitional and methodological terms, proves to be substantially related to the private law axiology, including the value system underlying the law of obligations. Special regard needs to be given to the elementary adequacy test, requiring that all the ‘explanatory reasons’ of a contract be considered in the course of interpretation. Assessing the impact of axiological determinants on the manner in which interpretative rules applicable to contracts are structured in particular legal orders shall be reckoned a significant research question. In order to provide an overview of the most recent tendencies in the axiologically conditioned arrangement of contract interpretation models, it is appropriate to integrate the retrospective approach and elements of the comparative study aimed at confronting both civil law and common law frameworks

Pobierz plik (FP 64 strony 48-72.pdf)FP 64 strony 48-72.pdf543 kB

Prohibition on Creating Chimerar and Hybrids for Xenotrasplantation – Remarks de lege lata and de lege ferenda

The article describes the process of farming interspecies chimeras, specifically animals that host human organs. Such procedure is based on injection of human pluripotent cells derived from adult somatic tissue into an animal embryo and is aimed to grow functional, mature organs that can be used for xenotransplantation. Thus, this might be a promising solution to the currently experienced drastic shortage of transplantable human organs. The author addresses legal issues behind development of human organs in animal-human chimeras. The main purpose of this paper is to asses, whether the prohibition on the formation of chimeras provided for in the Infertility Treatment Act applies to the formation of chimeras for xenotransplantation (cross-species transplantation) in Polish law. The author analyzes the nature of the prohibition on creating chimeras introduced in Polish law to propose a thesis that such restriction does not apply to farming chimeric animals bearing human organs solely for transplantation purposes. The article also proposes de lege ferenda solutions to be introduced by the legislator, which would apply to xenotransplantation of organs created from patient’s stem cells.

Pobierz plik (73-84.pdf)73-84.pdf3072 kB

Law & Emotions: A Synthesis

Emotions and law are often thought to be mutually exclusive. However, ever more academicians note that this is not the whole picture: since the late 1980s and early 90s studies on the relationship between the legal and the affective began to be conducted. Since then, both the number of works and number of researchers working on this problem grew significantly. Calls for the identification of a separate trend resulted in dubbing this new enterprise ‘Law & Emotions’. This article collates and synthesizes notes from the field: it is based on the analysis of numerous findings and approaches of the aforementioned research movement. It is written with a Polish reader in mind. As Polish jurisprudence is notably silent on the presence of affect in legal institutions, the objective of the text is to provide a cross-section of Law & Emotions, expose its mission and suggest in what ways it may revolutionize contemporary legal thinking movement – and, hopefully, to show why Polish legal scholars should care about it.

Pobierz plik (FP 64 strony 85-106.pdf)FP 64 strony 85-106.pdf530 kB

Szymon Solarski, Cancellation of a donation, Warsaw 2020, 278 p. – review

The subject of the review is S. Solarski’s book ‘Revocation of a donation’. The layout together with some theses presented by the author were analysed. Despite the shared view of the inadmissibility of donation’s revocation after the recipient’s death, a polemic was presented against the argument proposed by the author. It was agreed that the donation is not qualified as a causal act but the view that a donation should be considered a double effect agreement, as it allegedly leads to encumbrance of the ownership of the donated item with the right to revoke the donation due to gross ingratitude, was criticized. The review also disagrees with the opinion that requirement for the effectiveness of a donation is the existence of an animus donandi, that an unpaid pension is a donation, as well as de lege ferenda idea of introduction the ordinary written form as the principal form for the donor’s will, postulate to change art. 899 § 1 of the Civil Code, or the grant of a claim against the recipient for the provision of means enabling the implementation or supplementation of statutory maintenance obligations imposed on the donor also to persons entitled to maintenance by the donor.

Pobierz plik (FP 64 strony 107-120.pdf)FP 64 strony 107-120.pdf344 kB
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