Restrictions to Civil Case Open Trials in Times of the Pandemic – Temporary Requirement or Permanent Solution?

The coronavirus pandemic and introduction of so-called lockdowns and far-reaching social distancing rules prompted statutory action, resulting in the facilitation and promoting of online hearings on the one hand, while undermining the role and importance of the open court in the name of delivering under the principle of swiftness and efficiency of legal proceedings on the other. Formally guaranteed pursuant to Article 45 of the Constitution of the Republic of Poland and affirmed under system-related provisions, the rule of openness of legal proceedings has become ostensible as a result of the increasingly multiple exceptions implemented into procedural laws. Yet contesting any of the implemented solutions has become problematic because these mechanisms have been intended as temporary, while the legislator is driven by the need to safeguard constitutional values – such as public safety, order and health. Striving for efficiency in the course of judicial proceedings and securing the operability of procedural institutions has been repetitively tying in with the need and requirement to balance values and principles.

Załączniki:

Zembrzuski.pdf

345 kB

The American Model of Fiduciary Access to Digital Assets

This paper discusses issues of digital asset disclosure in the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), drafted in the USA by the Uniform Law Commission in 2015 and now implemented in most American jurisdictions. The author examines the procedures and principles that apply to different types of fiduciaries, addresses questions of fiduciary duty and authority, custodian compliance and immunity, and differences in the way the Act treats different kinds of electronic assets. Special attention is paid to an online tool created by the Act, which allows holders of e-mail or social media accounts a direct disclosure or nondisclosure of digital assets to designated recipients. The paper questions the practicality of this solution, and advocates a more universal approach. It evaluates RUFADAA from a European perspective to assess its potential as a model for EU jurisdictions.

Załączniki:

Wudarski.pdf

417 kB

On Understanding Religion in Polish Law

The paper presents some regularities regarding the understanding of religion in Polish law, judicial decision-making process, and especially legal scholarship. The author critically refers to classifying atheism as a religion, contesting the need to interpret religion as a legal term, or sanctioning the subjectivist interpretation of that term by the law’s addressees. Concern for the functionality of the legal order makes it necessary to reject the laxist approach to the interpretation of the term ‘religion’ in law. Public authorities may be bound by how religion is individually understood by the applicant, claimant, accused, plaintiff, defendant. This would be contrary to canons of legal interpretation and the principles of legal certainty and security. Consideration of the law’s regulatory capacity speaks in favor of sticking to the ‘traditional’ understanding of religion, whose integral element is the category of God (gods), supernatural, transcendent or sacred. Legal scholars’ demands for greater inclusiveness of the concept of religion cannot be abstracted from the operationality (applicability) of this concept in the legal order.

Załączniki:

Maron.pdf

445 kB

Remarks on Selected Reduction Institutions in Criminal Law

The paper presents selected reduction instruments in Polish criminal law, such as continuous act, sequence of crimes and aggregate penalty showing the use of these constructions based on an exemplary state of facts. The author shows that the punishment imposed on the perpetrator of a crime may depend on whether her actions were considered together or separately. The convicted person should not bear the negative consequences of system errors or negligence of the authorities of proceedings in the area of joint prosecution or consideration of cases. The only instrument correcting the previous omissions of the judicial apparatus is a joint judgment.

Załączniki:

Nowosad.pdf

339 kB

Duration and Efficiency of Proceedings Regarding Compensation for Wrongful Conviction, Detention on Remand and Arrest in the Light of Case-file Research

The right to have a case heard within a reasonable time is particularly important in cases aiming at compensating miscarriages of justice. Polish Code of Criminal Procedure provides for a special procedure allowing to claim compensation for wrongful conviction, detention on remand and arrest. The aim of the article is to analyse the duration and efficiency of such proceedings. The authors base their conclusions on case-file research conducted in seven district courts in Poland. The total of 234 cases were analysed in order to establish what is the length of compensation proceedings, how the trial is organised and conducted, as well as what are the factors that negatively affect the speediness of cases’ examination. The majority of compensation proceedings were conducted promptly. The research has revealed several structural and organisational problems affecting the examination of compensation cases.

Załączniki:

Jasinski_Kowalczyk.pdf

429 kB

Exemption from Property Tax Parts of Airports Used for Flying Purposes

The exemption from property tax on buildings, structures and land occupied thereunder in the area of aviation airports of public use causes many interpretation problems for both taxpayers and tax authorities. It is incorrect to believe that an airport is not a structure within the meaning of tax regulations. Recognition of an airport as a structure, makes difficult to determine the scope of the exemption, but it does not prevent this scope from determination.

Załączniki:

Slysz.pdf

315 kB

The First Commentary to the Act on Preventing and Combating Infections and Infectious Diseases in Human Beings

The issue of the prevention and treatment of infectious diseases is of great legal importance. The legislator must reconcile, on the one hand, the need for effective action to protect so-called public health and, on the other, respect for civil rights and freedoms, which may be restricted in connection with such action. In Polish law, these issues are regulated by the Act on preventing and combating human infectious diseases and infections. The paper deals with the issue of sanitary coercion and the means of appeal against its application. It also discusses the issue of compulsory preventive vaccination and the imposition of sanctions for violations of anti-epidemic bans, orders and restrictions. The author pointed out what possible issues could still be raised in the Commentary, which would enrich its content in theoretical and practical terms.

Załączniki:

Kubiak.pdf

299 kB

Obligation to Formulate the Request for Public Information in a Precise and Clear Manner. An Approving Gloss to the Judgment of the Supreme Administrative Court

The correct formulation of the content of the request for public information was recently discussed by the Supreme Administrative Court. Its rulling unifies the way the proposal is formulated, underlining the precise and clear nature of the content as the main factors determining the validity, assessment of the correctness and completeness of the proposal. This classification allows the adoption of certain criteria in terms of the creation of the subject matter and the party concerned. It also confirms the position taken so far, as regards meeting the condition of precision and clarity of the elements of the proposal’s content in a way that does not give rise to any doubts. In addition, it stresses the aspect of correct identification of the addressee of the request and the legitimacy of the plea of inaction. Therefore, it seems reasonable to ask for the introduction of a legal definition of the content of the request for public information.

Załączniki:

Skoczylas.pdf

285 kB