Repozytorim Annales UMCS Sectio G - IUS:
Liczba artykułów w bazie: 122 Format SWF: 53 Format DJVU: 45 Format PDF: 122 Razem plików: 220

Volume 61 - 2014

PL: Spis treści
EN: Table of contents
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Article 01PL: Handel ludźmi. Kierunki, metody i rodzaje zniewolenia ofiar
EN: The White Slave Trade. Trends, Methods and Kinds of Enslavement of the Victims
7-16

Radosław Antonów

The white slave trade belongs to crimes dominated by transnational organized crime activity. The white slave trade at the turn of 20th and 21st centuries constitutes the international issue. The crime is oriented to both the slave trade and the human organs trade. First kind of the trade is mainly related with the rapidly developing sexual services market and the demand for low-paid or unpaid work, so-called slave work. The illegal adoption of children is also related with the white slave trade. Second kind of the trade, namely the human organs trade is related on the one hand with the development and progress of medicine allowing the extensive transplantations, on the other hand with shortage of the human organs to transplant. The white slave trade crime at the beginning of 21st century constitutes the considerable threat to national security and international security, the threat rated among offences against public safety and order.
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Article 02PL: Zgwałcenie ze szczególnym okrucieństwem (art. 197 § 4 k.k.)
EN: Rape with Particular Cruelty (art. 197 § 4 of Polish Penal Code)
17-35

“Particular cruelty” is a feature that constructs qualified (with severer punishment) type of rape. There has been established quite a good general line of interpreting “particular cruelty”, although in specific cases it is not applied in a proper way. There is a tendency to use general leads of The Highest Court in a automatic and objective way, without relating them into the circumstances of the case; especially without taking under one’s consideration some specifics of the victim. The empirical research was made on 29 files of cases that had been finished in 2006‒2012, with the act classified as fulfilled the article 197 § 4 of Polish Criminal Code.
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Article 03PL: Metodologiczne wizje i koncepcje G.L. Seidlera
EN: The Methodological Visions and Concepts of G.L. Seidler
37-52

Lech Dubel

The methodological concepts of Grzegorz Leopold Seidler touched upon numerous important issues involved in the cultivation of legal sciences. Formulated on different levels of abstraction, they addressed the most significant issues of the academic discipline of law, as well as other social sciences. In the field of legal sciences, they were mainly connected with the philosophy of law, the theory of law, the history of political and legal doctrines, the history of the State and law, and the constitutional and administrative law. However, His academic research interests also corresponded to the political sciences, and the theory of organisation and management.
Frequently, these were the visions and ideas which turned into concepts due to the endeavours by Professor, or subsequently his students. The same was the case with the history of political and legal doctrines, a research discipline that has been cultivated since the nineteenth century. His ideas were, however, rooted in a concrete historical situation.
The whole academic research life of G.L. Seidler was characterised, among other things, by the attempt to define the subject and the method of his basic research area and exposition, i.e. the political and legal thought. It needs to be emphasised that he was not only interested in the history of legal thought, but the modern political thought as well. The methodological pursuits and their consequent continuation that were actually present in nearly all of the author’s works, inspire admiration for their pioneering nature as well as the depth of exploration of this research area.
The critical appraisal of the methodological proposals by G.L. Seidler covered the definition of the research subject, i.e. the approach and concept of doctrine, the proposal to systematise the periodisation of political thought, and certain conclusions stemming from the applied research method.
The importance of these studies may be evaluated on many levels. Among the most major ones seems to be its capability to inspire a discussion among the historians of political and legal thought concerning the author’s theses. Another aspect of the appeal of the methodological ideas is the extent of its acceptance, i.e. whether and to what extend it was accepted by historians of doctrines. The author of the present article puts forward a thesis that in both aspects Grzegorz Leopold Seidler’s thought was academically significant and still is an important source for the methodological reflections by contemporary authors.
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Article 04PL: Czy prawo Polski Ludowej było prawem słusznym?
EN: Was the Law of the People’s Republic of Poland Equitable Law?
53-73

Wojciech Dziedziak

The article discusses the issue of equitability of the law of the People’s Republic of Poland. The author bases the theory of equitable law on the following values: truth, good, justice and human dignity. Equity, thus understood, pertains to the processes of both making and applying law. The article defines the above-mentioned values. It adopts the basic classical understanding of truth as the adequation of intellect to things (veritas est adaequatio intellectus et rei). Creating norms involves the truth about the reality, including the truth of the existential dimension of the human being that is to be (should be) the starting point for making equitable law. Good is understood as the good in the moral sense as the good of man and the common good. Justice is understood in the classical sense, i.e. it is about ‘rendering every man his due’ (ius suum cuique tribuendi). The dignity of man as one of the values constituting equity is understood as inherent (innate) inalienable and indestructible, i.e. the individual dignity. It is the basis of human rights. It is the basis and source of all human rights and their protection. The study undertaken indicates that the law of the Polish People’s Republic flagrantly violated each of the values that make up equity. Thus, it was not equitable law. In particular, the law was based on the reductionist concept of man (anthropological error), was of class character (the dictatorship of the proletariat, or actually the Marxist-Leninist party), and violated the common good and the good of man. Individual dignity (innate and inviolable) was negated (was not a legal category), the source of freedom and rights was the will of the authority (man did not have own rights – he only had as many rights as granted by the authority). It majorly violated justice, one manifestation of which was the political class character of the judiciary. Moreover, law was treated instrumentally. There was a discrepancy between the content of law and the practical application of norms (the divergence of the normative and the actual reality).
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Article 05PL: Terenowe organy administracji publicznej właściwe w sprawach zarządzania kryzysowego
EN: Local Bodies of Public Administration to Handle Emergency Management
75-85

Mirosław Karpiuk

Emergency management holds a special importance in the area of national security when tasks and competences are performed by central and local bodies. If facing a danger, local authorities can react faster although they do not possess central competencies. Still, while managing emergency situations, both local government and public administration are adequate institutions to act.
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Article 06PL: Władza państwowa w ujęciu Profesora Grzegorza Leopolda Seidlera
EN: Professor G.L. Seidler’s Approach to the State Authority
87-94

Jarosław Kostrubiec

The main thesis put forward by the author of the present article is that in his analysis of the issue of the State authority, Professor Seidler indicated that, irrespective of various possible approaches, in each case its essence was the idea of acceptance. Moreover, the author arrives at the conclusion that Professor Seidler, combining the legitimisation of the State authority with its acceptance by the governed while at the same time applying the tools of contemporary democracy, attempted to develop a model that would constitute a kind of synthesis of two categories of the legitimisation of the State authority – the normative and the social and ideological ones.
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Article 07PL: Profesora G.L. Seidlera koncepcja wielopłaszczyznowej analizy prawa
EN: Professor G.L. Seidler’s Concept of a Versatile Analysis of Law
95-105

Leszek Leszczyński

The concept of the model of versatile analysis of law that has been built in 1967 by Professor Grzegorz Leopold Seidler, seems to be one of his most important achievements on the field of legal theory. The model had been announced before other similar concepts appeared in the Polish theory of law. Its idea was to create the complex and holistic model, in that the levels of legal research result from the phases of the existence of the legal phenomenon. The levels of political decision as well as juridical, psychological and sociological levels reflect the legal process starting from the political decision of law making, then impacting the conscience of the legal norm addresses and in effect changing the social relations. A category of the “reflective junction” connects the social effects of the law with the need of the new political intervention, tying the last phase of the old cycle (a sociological one) with the first phase (of political decision) of the new cycle. The core of the model is a careful departure from the domination of formal-dogmatic level in legal research, what should overcome the one-sided dimension of the old traditional jurisprudence, not leading however to the weakening of the essence of the law. It should rather enrich the methodology and the subject of the legal theory so that its role in the integration of legal science with other social sciences could be strengthened.
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Article 08PL: Funkcje sztuki w twórczości naukowej Profesora Grzegorza Leopolda Seidlera
EN: The Functions of Art in Scientific Works of Professor Grzegorz Leopold Seidler
107-115

Anna Przyborowska - Klimczak

In his works, Professor G.L. Seidler emphasized the role of art as a catalyst for leading ideas of historical eras while those works were created. The ancient art reflected the idea of harmony, particularly evident in the sculptures of Phidias. In the Middle Ages the idea of hierarchy was the leading one. It was expressed in the great sacred works of Romanesque and Gothic art. Fixed in stone allegories of virtues and sins were also adressed to the faithful of this era. One of the most well-known sets are personifications of 18 virtues and 18 sins placed on two columns in Norbertine Church of the Holy Trinity and the Virgin Mary in Strzelno. The aim of the art of the Renaissance was the glorification of man and the world. The symbol of the Renaissance anthropocentrism is the statue of David, sculpted by Michelangelo. Professor G.L. Seidler has also devoted a lot of his attention to the art of age of Enlightenment, which leading ideas were nature and reason. These ideas were expressed in Francisco Jose Goya’s engravings. The pathos of the Jacobin revolution is apparent in the works of Jacques Louis David, and especially in three of his paintings exhibited in the so-called “The Paris Salon” between 1785–1789.
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Article 09PL: Profesor Seidler – anatomia antynomii
EN: Professor Seidler – Anatomy of Antinomies
117-139

Piotr Sendecki

The author analyses the personage of professor Grzegorz Leopold Seidler from the angle of contradictions existing in himself, assuming the convention of spinning out the digressions and references to arts and literature which was familiar to the professor. Professor Seidler was using the term of antinomy in his lectures of philosophy of law willingly: he was talking of antinomies in law, presenting them against a background of history of philosophy and political-legal doctrines, also embracing 20th century. In fact he was full of internal contradictions himself, both in his life as well as in his academic achievements. Erudition, intellectual depth of ideas of the professor is stressed, as well as the conditions of time and place, which created the liaison with Marxism, application of methodology of dialectical and historical materialism, when his intellectual friability was exposed, involvement in ideology and affiliation with communist party. Family and intellectual roots of the Professor were presented, development in interwar period, being in the circle of right wing elites of pre-war Poland. The author discusses the studies at Jagiellonian University, first academic achievements, raised under the wings of professor M. Starzewski and professor J. Lande – student of L. Petrażycki, including the political system and history of political-legal ideology. The attention is drawn to work in the Library of the Sejm and the Senate, stressing the connection of the professor with the establishment of those times. The essay ends with considerations on spiritual transformation which took place within the last 15 days of life of G.L. Seidler, on his role in rebirth of Rotary in Poland and on his last dissertations and attitude to the reality. The far route, which Professor Seidler passed, was fascinating but also very complicated: 1. Grzegorz Leopold – during the baptism he was bestowed, for the future, with block of real estates with the name Goldenkugel at Św. Marcin street in Poznań by his paternal uncle generously, by his grandmother – relative of Romaszkan Lvov archbishop of Armenian Rite. 2. Son of popular solicitor [adwokat] – member of Supreme Bar Council, senator of the Republic of Poland and co-author of April Constitution of Poland. 3. Perfecting academic skills under the wings of the so called sanacja regime (1926–1939) professor of Jagiellonian University Maciej Starzewski and Jerzy Lande – student of Leon Petrażycki. 4. Favourite of gray eminence of sanacja regime and important figure of first ten years of People’s Republic of Poland – Henryk Kołodziejski. 5. Participant of Polish September Campaign 1939. 6. Erudite, thinker, expert in political systems at state and legal systems, philosophy, history of thought, literature and arts. 7. Marxist and comrade. 8. Cosmopolitan and polyglot – man of the world, he followed the fashion faultlessly like an English gentleman – with tailor-made suits, a Chesterfield coat, a Homburg hat, and with a cane. 9. Citizen of the world, in contact with great people of this world through his whole life. 10. Finally professor, rector and co-creator of UMCS, visiting-professor at prestigious Western universities, not free of ideological concessions and payment of tribute of conformity, using “the attractions of the court”. 11. „Surgeon”, who called for amputation of social entity, which was created from social and national revolt against totalitarianism and degradation of a man. his own harm and to no purpose. 13. Finally returning to – in modesty of his spirit – his roots, rich in imponderables, both on the spear side and distaff side. One big antinomy.
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Article 10PL: O potrzebie badań nad realnym aspektem prawa (na kanwie pracy G.L. Seidlera Rozważania o normie ustrojowej)
EN: On the Need to Investigate the Real Aspect of Law (Based on G.L. Seidler’s Study Reflections on the Political Norm)
141-149

Małgorzata Stefaniuk

From the beginning of his research work Professor Grzegorz Leopold Seidler emphasized the need to study the real aspect of law. The starting point for a lawyer should always be the law, but in his/her studies s/he should not be content with the dogmatic method but should go beyond the circle of thought by using the sociological method. These ideas are contained already in one of the first studies by Professor G.L. Seidler Rozważania o normie ustrojowej (The Reflections on the Political Norm) and they are further developed in the next publications, in particular in the article W poszukiwaniu systemu wszechstronnej analizy prawa (In Search of a System of In-Depth Analysis of Law). The two foregoing studies are methodological. They present conceptions that should without doubt be regarded as innovative ideas. The Reflections… permit conclusions not confined only to the way of practicing the science of constitutional law but also to jurisprudence as a whole, which should discern relationships between law and social reality.
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Article 11PL: Opus magnum Grzegorza Leopolda Seidlera
EN: G.L. Seidler’s Opus Magnum
151-175

Roman Andrzej Tokarczyk

Grzegorz Leopold Seidler, as author 217 publications, the mast important book is Przedmarksowska myśl polityczna (Premarxian Political Thought) with two editions. This book is based on his earlier books such as Myśl polityczna starożytności (Ancient Political Thought), Myśl polityczna średniowiecza (Middle Ages Political Thought) and Myśl polityczna czasów nowożytnych (Modern Times Political Thought).
Mentioned above books are authors attempts both present methodology and the history of the political thought from its Eastern beginnings to the times of the influences Marxian political thought, mainly in socialist countries, including Poland. Przedmarksowska myśl polityczna summarise those attempts but with limited authors success.
My research has analytical character, devoted to Przedmarksowska myśl polityczna in the light of the many commentators opinions and evaluations – positive and negative. Polish commentators of those book, in they majority, evaluate its as a great, original, complex presentation almost all fundamental issues of the discipline known as Historia doktryn politycznych (The History of the Political Thought), Historia doktryn politycznych i prawnych (The History of the Political and Juridical Thought) or Historia doktryn polityczno-prawnych (The History of the Politically-Juridical Thought). Commentators from abroad of Poland usually were much more critical.
I contrast, from many different points of view, book Przedmarksowska myśl polityczna with my book Współczesne doktryny polityczne (Contemporary Political Thought).
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Article 12PL: Wybrane problemy przepisów o czasie pracy pracowników naukowo-dydaktycznych
EN: Selected Problems of Regulations Concerning the Scientific and Teaching Staff Time of Work
177-191

Mariusz Wieczorek

The regulations concerning the time of work serve the realization of the constitutional laws of the employees for rest. The key position among the regulations concerning the time of work is taken by the regulations of the sixth chapter of the labour law, still they are not the only ones in this aspect. One of the employees groups whose time of work is regulated in a special way of academic teachers.
The article concerns some of the aspects concerning the legal regulations of the time of work of the scientific and teaching academic staff. The way of regulating the work time of the given group of workers in the act of the Law of higher education causes some doubts concerning their system of work. The aspects concerning allowing the application of certain regulations of time work in the labour law, as well as the time of accounting and the schedule of work are rather vague.
The author proposes a thesis that the academic teachers and scientists are liable to a specific system of work time, similar to task based one. He also proves that in the lack of different labour law regulations, the accounting time of the teachers’ work time is four months, and the work schedule should cover only the duties of conducting the didactic classes and performing organizational tasks. He postulates the need of introducing the amendment in the Law of higher education in order to create the legal state leading to achieving the regulation clarity in the field of question.
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Article 13PL: Grzegorz Leopold Seidler o poglądach na biurokrację
EN: Grzegorz Leopold Seidler’s View of Bureaucracy
193-203

Wojciech Witkowski

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Article 14PL: Profesor Grzegorz Leopold Seidler
EN: Professor Grzegorz Leopold Seidler
205-220

Antoni Pieniążek

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Article 15PL: Recenzja monografii autorstwa Mirosława Karpiuka Miejsce samorządu terytorialnego w przestrzeni bezpieczeństwa narodowego (AON, Warszawa 2014, ss. 280)
EN: A Review of the Monograph: Mirosław Karpiuk, The Position of Local Government Within the Sphere of National Security (AON, Warsaw 2014, pp. 280)
221-225

Jarosław Kostrubiec

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PL: Noty o Autorach
EN: Note about Authors
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PL: Spis Treści
EN: Table of contents
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Article 01PL: Zgwałcenie ze szczególnym okrucieństwem (art. 197 § 4 k.k.). Badania empiryczne
EN: Rape with Particular Cruelty (Art. 197 § 4 of Polish Penal Code). Empirical Studies
7-29

Magdalena Budyn - Kulik

“Particular cruelty” is a feature that constructs qualified (with severer punishment) type of rape. There has been established quite a good general line of interpreting “particular cruelty”, although in specific cases it is not applied in a proper way. There is a tendency to use general leads of The Highest Court in a automatic and objective way, without relating them into the circumstances of the case; especially without taking under one’s consideration some specifics of the victim. The empirical research was made on 29 files of cases that had been finished in 2006−2012, with the act classified as fulfilled the article 197 § 4 of Polish Criminal Code.
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Article 02PL: Prawo rzymskie w edukacji prawniczej w pierwszych latach Polski Ludowej (1944−1949)
EN: Roman Law in Legal Education in Poland in the Period of 1944−1949
31-49

Bożena Anna Czech - Jezierska

The article is an attempt to establish the role and the meaning of Roman law in Poland in the period of 1944−1949. Polish state was regarded as a satelite state of the Soviet Union. The Polish Workers’ Party was dependent on the communists and it had a “leading role” in the country. The socialist ideology also played the decisive part in an educational system. Socialists were in principle against the study of Roman law and tried to limit his role in educating socialist lawyers – “lawyers of the new type”. They tried to conduct the reform of law studies and partly they made a success of it. “Secondary law schools” was created in this period but there was no Roman law in their school curricula. The Roman law played the major part in university educational system but, as a result of more late reforms, it was eliminated as a autonomous discipline in university education. The period of 1944−1949 was beginning of reforms which they took to it.
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Article 03PL: Zasady działania samorządu lokalnego w czasie stanu klęski żywiołowej
EN: Principles of the Local Government Operations in the State of a Natural Disaster
51-60

The article discusses the issue of the local government operations in the state of a natural disaster. This situation is one of the states of emergency having a constitutional basis. However, the Constitution of the Republic of Poland does not prescribe the operational principles of local authorities of public administration while having a state of emergency. These issues were regulated by the legislator who defined the principles of the local government operations in isolation from constitutional rules.
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Article 04PL: Rozumowanie per analogiam w prawie precedensowym: dwa ujęcia analogii
EN: Analogical Reasoning in Precedential Law: Two Accounts of Analogy
61-87

Maciej Koszowski

Apart for the concise presentation of the rule-based model of binding judicial precedent, the article describes two basic accounts of analogical reasoning in precedential law. The first account has been named “factual model” and the second “rational model”. This terminology was adopted due to the fact that the judgment of similarity within the factual model is deemed to be a direct result of the very facts of the cases being compared, or of the unfathomed mystical workings of human intuition (emotions) or the outcome desired for the case at hand. The rational model in turn is based upon the notion of precedential reasons and casual facts, which are the facts that are relevant in the light of such reasons. Dependence upon these two notions makes the rational model more predictable and explicable. In certain circumstances, however, analogy to proceeds needs here some additional factors which do not stem from the gist of this model. The factual model, unpredictable though it may seem to be, is faster and apt to provide us with just, or socially desirable, conclusions, especially when utilized by person of a great legal knowledge and experience. Two other possible accounts of analogical reasoning in precedential law, i.e. principle-based model and proportional model, have been rebutted. The reason is: a lack of analogical pattern of thinking involved and serious difficulties in its legal application respectively.
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Article 05PL: O skutkowym lub bezskutkowym charakterze czynów zabronionych przez art. 182 k.k.
EN: About Consecutive or Non-Consecutive Character of Acts Forbidden in Art. 182 of Penal Code
89-100

The article is regarding character of acts forbidden in art. 182 of Penal Code, which is the crime of entering pollutants into earth, water or air in such an amount or for the figure, which can threaten life or health of many persons or cause great damage in plant or animal world. The majority of doctrine perceives this act as non-consecutive, arguing that for committing the crime is not necessary becoming known of the effect in the form of danger for the good protected by the art. 182 (natural environment). It is obvious, that it is not necessary becoming known of danger. The article is devoted to establish, whether causing some other effect is predicted with the provision of art. 182. Analysis of the provision is leading to the statement that it is possible to talk about the criminal effect of the act forbidden in art. 182 of Penal Code. The effect is being the pollutants in the water, the air or the earth. This effect should be assigned to the perpetrator in compliance with all principles of objective assigning.
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Article 06PL: Charakter prawny obowiązku podatkowego: charakterystyka porównawcza ustawodawstwa Ukrainy i Estonii
EN: The Legal Nature of the Tax Duty: Comparative Characteristics of Legislation of Ukraine and the Republic of Estonia
101-113

Alla Oliynyk

The article discussed the content of the obligation to pay taxes as one of the main duties of the taxpayer. From the choice of a foreign policy priority of Ukraine’s integration into the European Community, the most relevant question was bring the regulatory legal acts of Ukraine, especially regulating tax relations, in compliance with norms and standards of European Union legislation.
Given that the national legislation (including tax legislation) member States of the European Union already adapted in respect of the norms of the legislation of the European Union, it can be concluded that one of the main elements of a successful European integration of Ukraine is also borrowing positive experience of legal regulation of social relations (including tax relations) European Union member States (including the Republic of Estonia).
The aim of this study is determine the place of tax duty in the system of taxpayer obligations according to the norms of legislation of Ukraine and the Republic of Estonia and development of proposals about the possibility of making changes regarding the improvement of legal regulation of the tax duty in Ukraine and the Republic of Estonia.
Legal nature of the constitutional duty for taxes and fees payment has been investigated on the basis of analysis of the Fundamental Law of Ukraine and Republic of Estonia. Subject to the provisions of the Tax Code of Ukraine and legislation Republic of Estonia examines the nature of the obligation to pay taxes. The attention is focused on the content of the category of “fiscal responsibility”, in particular on the problem of its relations with the term “tax liability”.
It has been proposed further improvements in the legal national tax legislation of both States.
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Article 07PL: Z badań nad istotą powagi rzeczy osądzonej (res iudicata) w prawie rzymskim. Wybrane problemy badawcze
EN: Research on the Essence of res iudicata in Roman Law. Selected Research Problems
115-126

SEBASTIAN STANKIEWICZ

Article presents the essence of res iudicata in the civil ancient Rome. The author has reviewed and a brief analysis of the views of science of Roman law relating to selected research problems related to this topic. The importance of the legal issues taken in the article confirms, inter alia, a wide selection of sources of Roman law, cited by the author in the article. Do not omit the importance of the issues auctoritas rei iudicatae in the context of the formulation of auctoritas rerum similiter iudicatarum which can be found in the sources of Roman law. It also discusses the importance of precedent- setting judgments in Roman law and there have been attempts to answer the question whether res iudicata was the source of Roman law. The author concluded in his article also issues related to the recognition of the judgment for the rule of law (in the context of the statements coming from D. 24, 3, 66 pr.). Topics legitimacy of a court judgment undoubtedly requires a broader treatment in a separate publication monograph on this subject, because so far it was taken by the various authors in Polish literature and foreign language only when discussing other, usually more general issues. This article must therefore be regarded as a contribution to further research the author on this issue.
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Article 08PL: Ważność decyzji w postępowaniu administracyjnym
EN: Validity of the Decision in Administrative Proceedings
127-147

Eliza Agata Terejko

The article discusses the issue of the validity of the decision taken in the course of administrative proceedings. The author analyzed all the attributes of properly issued administrative decisions: sustainability, legality, enforceability, effectiveness, the binding force of an administrative decision. The particular attention was given to finding a definition of the concept of legal validity of the decision based on the concepts of doctrine and jurisprudence.
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Article 09PL: Ogólnopolski Zjazd Katedr Doktryn Politycznych i Prawnych „Myśl polityczno-prawna. Teoria i metodologia” (Kraków 8−11 czerwca 2014)
149-152

Agata Grudzińska

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PL: Noty o Autorach
EN: Note about Authors
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PL: Lista recenzentów współpracujących z czasopismem w roku 2014
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Volume 60 - 2013

Article 01PL: Uczestnictwo współwłaścicieli nieruchomości lokalowej w podejmowaniu uchwał dotyczących zarządu nieruchomością wspólną
EN: Participation of Co-owners of Separated Premises in Passing Resolutions on the Management of a Common Property
7-19

MAGDALENA DENEKA

Owners of separated premises, being at the same time co-owners of a common property, participate in the management of a common property in accordance with the principles set by the provisions of Chapter 4 of the Act of 24 June, 1994, on the ownership of premises. The afore-mentioned provisions do not regulate the rules of such participation in the event of co-ownership of separated premises. In this respect interpretive doubts arise whether in passing resolutions on the management of a common property, the co-owners of separated premises have one common vote, or whether they may vote individually. The present article attempts to determine the above question, by referring to the regulations under the act on the ownership of premises, concerning the relation between the separate ownership of premises and the shared co-ownership, and the Civil Code regulations on co-ownership. As a result of the findings, an interpretive conclusion is drawn in accordance with which co-owners of separated premises who participate in passing resolutions on the management of a common property, have one common vote carrying weight equal to their indivisible share in the co-ownership of a common property. The discussion offers a series of arguments for the validity of the present thesis, and presents views on the problem discussed, as expressed in the science of civil law and judicial decisions.
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Article 02PL: Użytkowanie wieczyste w świetle wypowiedzi Profesora Jerzego Ignatowicza
EN: Perpetual Usufruct in the Light of Professor Jerzy Ignatowicz’s Discussion
21-34

ZDZISŁAW GAWLIK

In his critical analysis of the issues of perpetual usufruct, Professor Jerzy Ignatowicz posed three basic questions in this respect. The first question concerns the purposefulness of maintaining the perpetual usufruct right or a similar property right in a market economy. Secondly, if the answer to the first question is positive, the author discusses the purposefulness of replacing the perpetual usufruct right with a similar construction. Thirdly, if it is legitimate to maintain the perpetual usufruct in the Polish system of law, he suggests a discussion on the form of modifying the property right in question, so that it becomes more adapted to the current social and economic conditions than so far, at the same time indicating a series of questions in this respect, addressed to the legislator. Professor Ignatowicz recognises the need to maintain the right of perpetual usufruct or a similar right. In noticing the drawbacks of the right in question, he stresses the importance of stability in the area of property law, and consequently opts for maintaining the perpetual usufruct right, yet at the same time stressing the necessity for its modification.
Despite numerous amendments, to a large extent consistent with Professor Ignatowicz’s proposals, the perpetual usufruct right requires a number of changes to adapt this right even more than so far, to the changed conditions of management, also in the area of fiscal property.
The postulated changes aim towards the independence of the perpetual usufruct from administrative law regulations, its popularisation, not limiting its function to its otherwise limited aims, the regulation of neighbourly relations between holders of perpetual usufruct and proprietors, the question of the protection of the perpetual usufruct right, the purposefulness of maintaining the hitherto solutions with regard to the status of buildings and appliances placed on the leased land or the sale of the right of perpetual usufruct, including the question of the entry in the land and mortgage register upon the transfer of perpetual usufruct, and particularly the most delicate issue of the annual fee to be paid by the holder of perpetual usufruct, or maintaining the statutory right of pre-emption of perpetual usufruct for the benefit of the gmina (municipality). Despite the lapse of time, the proposal to introduce in the Civil Code the reference to the regulations on the content and exercise of ownership accordingly applying to the perpetual usufruct, is still valid.
Professor J. Ignatowicz’s approach with regard to perpetual usufruct is a model of conduct of a scholar who critically examines reality, yet at the same time searching for positive solutions to problems. Professor supports evolutionary rather than revolutionary changes. Such approaches deserve to be popularised and supported as against the emerging tendencies to shift the legal discourse from the substantive level to the ideological one.
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Article 03PL: Okupacyjna administracja niemiecka na ziemiach Rzeczypospolitej Polskiej w latach 1939–1945
EN: The German Occupation Administration on the Territory of the Republic of Poland in 1939–1945
35-51

WALDEMAR KOZYRA

The problem of the organization and functioning of German administration on the occupied territory of the Republic of Poland during World War II still has not been thoroughly described in Polish historiography. This is why this article first of all presents the basic “legal acts” of the German occupant which created the fundamental structural and organizational-territorial frameworks for each of the German administration structures (models) in Poland in 1939–1945. In general, there were three such models: the first one referred to the Polish territories annexed to the Third Reich in 1939; the second one was related to the German administration in the General Governorate. The third model was connected with the Polish territories annexed to the Soviet Union after 17th September 1939 and incorporated into German rule after 22nd June 1941. Simultaneously, the process of establishing the structures of the German occupation administration on the occupied Polish territories in the years 1939–1945 consisted of several phases. The first one comprised the period from 1st September to 25th October 1939. That was the time of the establishing of the German military government and annexing a part of the occupied Polish territory directly to the German Reich. The second phase lasted from 25th October 1939 to 22nd June 1941. It was characterized by the dissolution of the German military government on the occupied Polish territory and simultaneous establishing of the civilian administration structures of the German Governorate. The third phase covered the period from 22nd June 1941 to the end of World War II in 1945. Its main characteristics include the German-Soviet war and the total German control of the territory of the Second Polish Republic in 1941–1944. It must be emphasized that the German occupation administration pursued the aims and performed the tasks of the German Reich on the occupied territory of the Republic of Poland during World War II despite the fact that Polish citizens also worked in that administration, but to a very limited extent. The authorities of the Third Reich considered that administration to be one of the most important instruments for implementing of extermination and genocidal policy aimed at Polish nation that fell partially, and then in 1941 completely under German rule. And it was only due to the lack of time that the strategic aim of the occupation had not been accomplished, i.e. the total removal of Polish citizens from the occupied territory of the Republic of Poland.
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Article 04PL: Okupacja i prawo – antyczne i współczesne refleksje humanisty (Mieczysław Jastrun)
EN: Okkupation und Recht – antike und moderne Reflexionen eines Humanisten (Mieczysław Jastrun)
53-63

MAREK KURYŁOWICZ

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Article 05PL: Okupacja wojenna w świetle prawa międzynarodowego: natura, skutki, nowe tendencje
EN: Belligerent Occupation Under International Law: Legal Nature, Consequences, New Tendencies
65-80

ROMAN KWIECIEŃ

The article discusses international legal aspects of belligerent occupation. It presents legal underpinnings of belligerent occupation, its consequences for occupying powers and local inhabitants, as well as new tendencies connected with international administration of territories and responsibility of the Security Council for maintenance of peace and security. There is a difference between belligerent occupation and so-called “pacific” occupation. The former refers to a situation where the forces of one or more States exercise effective control over a territory of another State without its volition. The latter is based on the consent of territorial sovereign. The regime of belligerent occupation does not depend on the existence of a state of war, nor on the armed resistance to the occupant, which is today especially proved by the status of Palestinian territories. Belligerent occupation does not transfer territorial sovereignty to the occupying power. That is why, international law regulates the interrelationships between the occupying power, the ousted government, and the local inhabitants for the duration of the occupation. International humanitarian law authorizes the occupant to safeguard its interests while administering the occupied area, but also imposes obligations on the occupant to protect life and property of the inhabitants and to respect the legally protected interests of the ousted government, including its cultural heritage. The author argues that the regime of belligerent occupation can be applied to UN post-conflict administrations solely de facto. In this respect, a new class of problems has been created. Those problems are today regulated by a new body of law – jus post bellum.
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Article 06PL: Pojęcie i treść zasad prawa oraz generalnych klauzul odsyłających. Uwagi porównawcze
DE: The Concept and Content of Legal Principles and General Clauses. Comparative Remarks
81-91

LESZEK LESZCZYŃSKI, GRZEGORZ MAROŃ

The paper deals with the comparative analysis of the concept of legal principles and general reference clauses. The legal principle is the intra-legal value, appearing in various ways in the legal order, with the fundamental set of principles formed directly in the normative acts. The general clause is presented in the paper as the reference to the extra-legal values, expressed in the legal text (by the name) but substantially left open. That empowers the court to define the name of the clause and to find its content, what means fulfilling the criterion with the axiology, balancing individual preferences of the court and socially determined values. Reconstruction of the principles and the clauses restricts the role of the linguistic rules of interpretation, strengthening the impact of axiologically involved systemic, teleological and functional rules.
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Article 07PL: Żądanie dowodowe strony w ogólnym postępowaniu administracyjnym
EN: Statement of the Claim in General Administrative Proceedings
93-104

ANETA MAJEWSKA

The paper presents a legal analysis of a party’s claim for examination of evidence in the course of preliminary investigation. Procedural powers of a party to claim examination of evidence provides the party with a possibility of submitting facts or evidence which the party has. Additionally, it provides the party with a possibility of active participation in the proceedings as well as that of having an influence on the process of establishing factual findings and effective defence of the party’s interests. It needs to be emphasised that the adjudicating agency is not bound by the party’s claim for examination of evidence because it is the agency that decides whether to accept the evidence presented by the party or to reject it. The agency has to accept the party’s claim for examination of evidence if the object of the evidence involves circumstances which are important to the case. The objective of the paper is to present a discussion concerning a party’s claim for examination of evidence in the context of the stipulations adopted in the doctrine as well as made in judicial decisions.
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Article 08PL: Prawo rodzinne w dorobku naukowym i orzeczniczym Profesora Jerzego Ignatowicza1
EN: Family Law in the Academic Research Output and Judicial Decisions of Professor Jerzy Ignatowicz
105-119

MIROSŁAW NAZAR

Over several dozen years, Profesor Jerzy Ignatowicz combined his academic work and his work as a Supreme Court judge. In his academic work, he mainly dealt with the issues of family law (including the issues concerning the protection of the marital status rights), property law and cooperative law. He dealt with similar issues in the majority of cases he tried as a Supreme Court judge.
The present article discusses the output of Professor J. Ignatowicz’s work both as a scholar and a judge, his contribution to the development of family law, influence on the interpretation and application of family law, as well as a permanent contribution to the development of the science of family law.
Jerzy Ignatowicz’s academic research output includes over 180 publications. In the area of family law, he is the author of considerable passages in collective works, including e.g. System of family and guardianship law and commentaries to the Code of Family and Guardianship Law, and treatises, articles, judicial glosses, reviews and the academic handbook Prawo rodzinne (Family Law). This handbook, which after Professor’s death has been supplemented and updated by his student and coworker, has been published since 1987 (last edition in 2012). J. Ignatowicz’s academic works mainly deal with the issues of parental authority, foster care, custody, guardianship, protection of the marital status, and personal and property relations between spouses. Such issues were also involved in the cases Jerzy Ignatowicz tried as a Supreme Court judge. Some of his rulings became legal doctrines.
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Article 09PL: Organizacja niemieckiego resortu sprawiedliwości w Generalnym Gubernatorstwie w latach 1939–1945
EN: The Organisation of the German Department of Justice in the General Government in the Years 1939–1945
121-133

ANDRZEJ WRZYSZCZ

The General Government was an area of unclear political and legal status which included the central Polish territories occupied by Germany. It was ruled by the Governor General Hans Frank, who was formally directly subordinate to Hitler. The central body of the German administration of the occupied territories was the Office of Governor General that was subordinate to Frank (since 1941 known as the Government of the General Government). This institution included the Department of Justice (since 1941 known as the Chief Department of Justice). The head of this Department, Kurt Wille, held the office almost throughout the whole period of occupation in the General Government. At the district level, the current administrative authority over jurisdiction was held by the head of the department of justice in the office of the chief of the district. The most characteristic feature of the department of justice of the GG was the dual system of jurisdiction. One level was the German jurisdiction: special courts, German courts, superior German courts. The other was the Polish jurisdiction: courts of appeal, regional courts and magistrate courts (the official term applied since the incorporation of the District of Galicia in 1941, was non-German jurisdiction). The Polish jurisdiction (non-German jurisdiction) was governed and controlled both by the German administration of the department of justice, and the German jurisdiction. Moreover, the department of justice also governed the Polish public prosecutors’ office, bar and notary profession, as well as the German bar and notary profession, the German public prosecutors’ office and penology.
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Article 10PL: Posiadanie służebności przesyłu
EN: Possession of a Utility Easement
135-146

MICHAŁ ZALEWSKI

A utility easement was introduced into the Civil Code by virtue of the act of 30 April 2008 amending the Civil Code and some other laws (Journal of Laws 2008, No. 116, item 731). It is recognised as a type of easement that is separate from an easement appurtenant or easement in gross, the aim of which is to increase the utility of a utility service. A utility easement falls under the category of affirmative easements (involving the use of encumbered real estate). Thus, the provisions of Article 352 of the Civil Code, which regulate the holding of an easement, will apply here. Due to the regulations on an easement appurtenant (Article 3054 of the Civil Code) applying to a utility easement, part of observations made in the present article may also apply to an easement appurtenant.
The article discusses the question of the capacity to hold a utility easement. It is assumed that a holder of a utility easement right may be an entrepreneur whose main activity involves the supply or removal of fluids, or electric energy gases (the so-called utility entrepreneur). What a utility easement is considered to involve is the installment and exploitation of utility appliances situated on another person’s real estate.
In conclusion, a thesis is made that due to the specific features of possession of a utility easement, it may be recognised as a form separate from autonomous possession or dependent possession mentioned in Article 336 of the Civil Code (in a similar manner part of the doctrine qualifies the tenure of perpetual usufruct).
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Article 11PL: Sprawozdanie z konferencji naukowo-edukacyjnej „Okupacja i prawo”, Lublin, 20 marca 2013 roku
EN: Report on Scientific and Educational Conference „The Occupation and Law” (Lublin, 20.03.2013)
147-149

SEBASTIAN STANKIEWICZ

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PL: Spis treści
EN: Table of contents
5-6

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Article 01PL: Obrona konieczna jako okoliczność wyłączająca bezprawność w prawie karnym Ukrainy
EN: Self-defence as a Circumstance Excluding Illegality in the Criminal Law of Ukraine
7-27

YURIY BAULIN, NATALIYA LASHCHUK, OKSANA BRONEVYTSKA, TARAS SOZANSKYY

The institution of self-defence comprises both provisions of the General Part (art. 36 and 37: self defence and imaginary self defence) and the Special Part (art. 118 and 124: intentional killing, causing grievous bodily harm as a result of exceeding the borders of self defence or using excessive measures necessary to catch the perpetrator) of the Criminal Code of Ukraine.
There are diverse opinions in Ukrainian jurisprudence concerning the problem of how selfdefence and other circumstances eliminate the illegality of a forbidden act. The aim of this paper is to present the main attitudes to these problems. The approach considering self-defence in the light of legality is the most popular view. There is also an approach according to which one distinguishes the prerequisites for self-defence and the elements of such self-defence taking into account elements such as: the subject – the aim – the objective side – the subjective control. The socially harmful attack which justifies the use of self-defence should be analysed using both of these approaches.
The features of a legitimate self-defence are: the subject – a private person; the aim – to cause injuries to the attacker (the direct aim) in order to repel or stop the attack (the indirect aim) in order to defend legally protected rights and interests of a person, interests of the society or the state (the final aim); the object – the attacker, his rights and interests; the objective side – actions casually connected with the causing of harm to the attacker, commensurable with the harmfulness of the attack and the state of the defence; subjective control – proper realisation by the subject of the prerequisites and features of the defence and the will to cause commensurable harm to the attacker.
Two types of exceeding the borders of self-defence are distinguished in the paper: exceeding the borders of acceptable harm and exceeding the borders of adequate harm. Criminal responsibility for exceeding the borders of self-defence arises only in cases clearly provided for in art. 118 and 124 of the Criminal Code of Ukraine. The sanctions in these articles are much more lenient than in the case of corresponding offences not committed while exceeding of the borders of self-defence (art. 115, 119 and 121 of the Criminal Code of Ukraine).
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Article 02PL: Pojęcie przestępstwa i podziały przestępstw w polskim prawie karnym
EN: The Concept of Offence and the Classification of Offences in Polish Criminal Law
29-40

LECH GARDOCKI

The binding Polish Criminal Code from 1997 contains no definition of offence. It can, however, be constructed on the basis of the provisions of art. 1, 2, 7 and 9 of the code. It sounds: 1) an offence is constituted by an act (action or omission) of a man, forbidden under the threat of penalty by a statute, which is a felony or a misdemeanour, culpable intentionally or unintentionally and socially harmful in a degree higher than minimal; 2) special role in the definition is played by the concept of an act as the basis of criminal responsibility.
The most important classifications of offences in Polish criminal law are made on the basis of the following criteria: a) the seriousness of the offence (division into felonies and misdemeanours); b) the presence of the element of consequence in the statutory description of the offence (material and formal offences); c) the damage or the danger of it (offences causing damage in a legally protected value, offences consisting in concrete endangering and offences of abstract endangering); d) type of the offender’s behaviour (action and omission offences); e) form of guilt (intentional and unintentional offences); f) mode of prosecution (offences prosecuted on public indictment, including offences prosecuted on the motion of the victim, offences prosecuted on private indictment); g) features of the offender (delicta communia and delicta propria).
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Article 03PL: Formy stadialne popełnienia czynu zabronionego w polskim prawie karnym
EN: Inchoate Offences in Polish Criminal Law
41-57

JACEK GIEZEK

The effect of the criminalisation of inchoate offences – in fact irrespective of how in a given legal system (e.g. Polish or Ukrainian) they are regulated – is the moving of the protection of a legal value to the foreground of its violation. In case of Polish criminal law, the “depth” of this foreground is decided by the fact that an important stage of the iter delicti is constituted not only by the attempt, which is almost always connected with criminal liability, but also the preparation preceding it, even though it rarely generates such liability. One of the most complex problems therefore is the possibly precise delineation of borders between the individual stages of the commission of an offence. The problem appears to be especially complicated when we are looking for the border between the always punishable attempt and the sometimes and simultaneously – as a rule – less severely punishable preparation. The decision which of these stages has been executed should be first of all based on the evaluation whether the perpetrator’s behaviour has reached the stage of advancement which allows the statement that it is heading directly to commission. The theory of criminal law has long known attempts of elaborating universal conceptions which could facilitate the interpretation of the feature of “directness”, though their results – if one takes into account the imprecision of the border thus delineated – are not thoroughly satisfactory.
The prima facie clear question of the subjective side of individual stages of commission of a forbidden act (only intention is possible) may be the source of some dilemmas when one starts to analyse its relation to the illegality of these forms, which is best visible in case of inapt attempt and preparation. One of the most complicated and – in a way – most unsolvable dogmatic problems of criminal law then appears i.e. the justification of their punishability. Since an inapt attempt cannot lead to the commission of an offence, then – looking at it objectively – it does not create danger for a legally protected value. As a result there also appear significant deficiencies in the objective content of illegality.
In the foreground of the violation of a legal value there lie not only the stages preceding the commission of an offence, but in case of same types of offences also the stage connected with their commission, if the core of the offence is putting the value in jeopardy. This “occupation” of the foreground by the overlapping forms of a forbidden act results – especially in court practice – in difficulties in deciding whether the behaviour of the offender constitutes a committed endangering of a value or can “only” be seen as its attempted violation. The difference lies chiefly in the subjective side (actus reus) which is usually difficult to prove.
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Article 04PL: Zbieg przestępstw w prawie karnym Ukrainy
EN: The Concurrence of Offences in the Criminal Law of Ukraine
59-80

OKSANA GORPYNIUK, VOLODYMYR KOVALENKO, YURIY PONOMARENKO, VOLODYMYR TIUTIUGIN, OLENA KHARYTONOVA

When assessing the state of studies on the institution of concurrence of offences it needs to be stressed that generally there have been discussions concerning the qualification of concurrence of single offences and only a small part of them refers to the theoretical arguments in the discussed field (especially the problem of the qualification of the concurrence of offences, the distinguishing of types of concurrence as “ideal – real” etc.). Although the terms “repeated offence”, “concurrence”, “recidivism” have long been used in the criminal law jurisprudence and have attracted sufficient level of scholarly attention, their representation in the binding Criminal Code of Ukraine is far from perfect.
The lack of compatibility between the norms defining the above mentioned terms results in many questions which cannot be unequivocally answered, mostly referring to the criminal law evaluation of a few acts committed by one person, when each of these acts has the features of a separate type of offence. The analysis of court practice demonstrates that individual courts make mistakes in the application of the Criminal Code of Ukraine as far as the concurrence of offences is concerned. Some of the most prevalent of these are: improper correlation of norms referring to different types of concurrence; accepting multiplicity of offences in cases where one of the acts has lost its criminal relevance; improper qualification of repeated offences. At the same time it seems that the institution of the concurrence of offences can be improved in the future due to the use of the provisions which refer to: the futility of taking into account the punishment for offences committed by a person under the age of 18, no matter when (before or after that person turned 18) the conviction for these offences took place; the problem of recognising the type of concurrence of offences which results in combining punishments; the problem of taking into account the fact the on offence was repeated or committed in the conditions for recidivism, when a person had been convicted by the court of a foreign country.
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Article 05PL: Definicja przestępstwa i podziały przestępstw w prawie karnym Ukrainy
EN: The Concept of Offence and the Classification of Offences in the Criminal Law of Ukraine
81-101

VIKTOR HRYSHCHUK, NELIA MAKOVETSKA, IVAN KRASNYTSKYI, MYKOLA KHAVRONYUK

This paper discusses the problems of the development of offence studies in the theory of Ukrainian criminal law. The first understanding and normative description of the concept of offence can be found most clearly in the oldest Ukrainian legal sources and in scientific sources. Nonetheless, the authors focus their attention on the development of studies on the concept of offence on the territory of contemporary Ukraine from the beginning of the Soviet period till present times.
The authors reach the conclusion that although the Soviet jurisprudence began its development from a total denial of the achievements of its national and foreign criminal jurisprudence, as a consequence of evolutionary development it managed to elaborate a scholarly justified positions referring to the understanding of the essence of offence, distinguishing it from non-criminal acts, the classification of offences, which formed the basis of contemporary criminal law approach to these problems in Ukraine.
Contemporary criminal law defines offence as a socially dangerous and culpable act (action or omission), committed by the subject of the offence. The criminal jurisprudence recognises the following obligatory features: 1) the act is socially dangerous; 2) the act is defined by the Criminal Code of Ukraine; 3) the act is culpable; 4) the act was committed by the subject of the offence; 5) the socially harmful act is punishable. The lack of any of these features means an act constitutes no offence.
Besides the authors analyse the difference between an offence and other socially harmful acts: petty offences, torts etc. and they also make the classification of offences.
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Article 06PL: Zbieg przestępstw i kara łączna w polskim prawie karnym
EN: Concurrence of Offences and Combined Punishment in Polish Criminal Law
103-126

PIOTR KARDAS

This article is devoted to the analysis of the prerequisites of the concurrence of offences and the conditions of imposing combined punishment in Polish criminal law. Both matters are presented against the broader context of the reduction mechanisms serving the purpose of criminal liability rationalisation in cases of evaluation of many acts committed by the same perpetrator. Starting with the rule of unity, fundamental for the Polish criminal law system, according to which the same act can constitute only one offence, the institution of the concurrence of offences has been presented against a background of the following constructions specifically shaped in the Polish law: the continuous offence, the sequence of offences and the negligible concurrence of offences. In each of the above mentioned cases the multiplicity of acts committed by the same offender is the basis of evaluation, and due to the application of one of these institutions this multiplicity does not transform into the multiplicity of offences and as a result does not lead to the imposition of the combined punishment. Hence it has been demonstrated that the reduction mechanisms described above prevent the emergence of the situation of the concurrence of offences and finally the imposition of the combined punishment. They form therefore the normative foreground of these institutions which is specific for the Polish criminal law system. The text contains also the analysis of the statutory prerequisites for the imposition of the combined punishment, which in the Polish criminal law form the basis of the division of the concurrence of offences into two categories: the real concurrence in case of which the imposition of the combined punishment is possible and the concurrence of offences in case of which such a possibility does not exist. The detailed conditions of the imposition of the combined punishment have also been presented, especially the bases, known by the Polish legal system, for the imposition as a combined punishment of a punishment more severe than the individual punishments imposed for the offences which are in concurrence. As far as the second of the above mentioned categories is concerned, the author has presented the conditions of executing the multiple punishments imposed for multiple offences – as a rule they are executed sequentially.
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Article 07PL: Formy zjawiskowe popełnienia przestępstwa w polskim prawie karnym
EN: Complicity in Polish Criminal Law
127-143

MAREK KULIK

The article presents the basic information about complicity in Polish criminal law. The main characteristics of the Polish construction of complicity and the main interpretation problems have been presented against the background of model solutions referring to criminal complicity in European criminal law. The article comprises the genesis of complicity in Polish criminal law, the main advantages of the employed construction, the most important of which is the breaking off with the accessory responsibility of the instigator and auxiliary. The text also comprises a short characteristics of the individual forms, principal and non-principal, of the commission of an offence in the Polish criminal law. The problem of distinguishing individual forms of the commission of an offence using different existing doctrinal and judicial theories has also been discussed. Separate remarks have been devoted to the issues of punishment for complicity and to the lack of consistency in criminal responsibility in that respect, which according to the author, though it does not infringe on the principle of lack of accessory responsibility in the qualitative sense, may however be perceived as introducing such responsibility in the quantitative sense in the field of punishment imposition.
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Article 08PL: Zasady prawa i generalne klauzule odsyłające w operatywnej wykładni prawa
EN: The Role of the Legal Principles and the General Clauses in the Process of the Operative Interpretation of Law
145-157

LESZEK LESZCZYŃSKI, GRZEGORZ MAROŃ

The paper presents the role of the legal principles and the general clauses in the process of the so called operative interpretation of law, being the part of the process of making the decision of implementation of law and undertaken, in the light of the facts of the case, to make this decision. The are two main aspects of the role of both constructs in this kind of interpretation. The first one, at the validation phase of interpretation, deals with the way the principle or clause is accepted by the court as an element of the base for decision. The second one touches the role of principle and clause in the whole reconstruction of the implemented norm, changing the proportions between the impact of the linguistic and systemic rules of interpretation, giving way to axiologically determined teleological and functional directives. The latter appear at the beginning of the interpretative process and influence the contents of the norm and then the judicial decision in a prevalent scale.
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Article 09PL: Konstytucyjne prawo do sądu „każdego” a przymus adwokacko-radcowski w sprawie skargi kasacyjnej w postępowaniu przed Sądem Najwyższym
EN: The Constitutional Right to a Fair Trial for “Everyone” and the Obligatory Assistance of an Advocate or Legal Advisor in the Case of Cassation Appeal in the Supreme Court of the Republic of Poland
159-170

KORNELIUSZ ŁUKASIK

This paper takes up the idea of the constitutional right to a fair trial for “everyone” and the obligatory assistance of an advocate or legal advisor in the case of cassation appeal in the Supreme Court of the Republic of Poland. Earlier Polish constitutions did not recognise the right to a fair trial, this has been recognized since 1997 however. This right applies to all persons – both Polish citizens, and visitors from other countries. It is necessary to improve the obligatory assistance of an advocate or legal advisor in the case of cassation appeal in the Supreme Court with the right to a fair trial and to answer the question: does the obligatory assistance restrict the right to a fair trial? This paper also describes the tasks for advocates and legal advisors when they wish to represent theirs customers in the Supreme Court.
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Article 10PL: Obrona konieczna w polskim prawie karnym (zagadnienia podstawowe)
EN: Self-defence in Polish Criminal Law (Basic Problems)
171-190

MAREK MOZGAWA

The article presents the basic theoretical and practical problems referring to self-defence as a circumstance excluding illegality of an act in Polish criminal law. The features of self-defence have been presented against the background of the general theory of circumstances excluding illegality, of which self-defence is one of the most notable instances, as well as the interpretation problems connected with it. The basic conditions of self-defence have been discussed, such as: the attack, the repelling of it, the necessity of the defence and its compatibility with the danger of the attack. The issue of the independence of self-defence has been referred to in detail. Separate remarks have been devoted to the features of the attack which has to be illegal, direct and real, as well as to the problem of exceeding the borders of self-defence, including intensive excess and extensive excess, the exceeding of the borders of self-defence as a result of fear or nervousness justified by the circumstances of the attack and the institution of the so called intervention self-defence which is new for the Polish legal system. The issue of the acts of a person who mistakenly believes that a circumstance excluding their illegality occurs has also been mentioned. Up-to-date literature and the court rulings have been extensively used.
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Article 11PL: Historia doktryn polityczno-prawnych jako przedmiot wykładany na studiach prawniczych. Analiza wyników badań opinii studentów pierwszego roku Wydziału Prawa i Administracji Uniwersytetu Rzeszowskiego
EN: The History of Political-Legal Doctrines as a Subject Taught at Law Department of University. The Analysis of the Results of Studies of First Year Students’ Opinion at Law and Administration Department of University of Rzeszów
191-209

MARCIN NIEMCZYK

Many years old model of teaching at university level as we know today is becoming more and more out-of-date. The need of greater correlation of academic education with practical skills demands a sensible connection of teaching contents of both dogmatic and no dogmatic character. The purpose of this article is the presentation and analysis of survey research dealing with the students’ opinion about the history of political-legal doctrines as a subject taught at law department. Thus, the main idea of the research is to answer a question: What is the significance of the history of political-legal doctrines for the intellectual development of future lawyers and what is the role of those doctrines in context of the present issues involving state and law?
The carried out research and the results allow us to formulate the following conclusions: 1) the history of political-legal doctrines should be a subject taught at law department and has a positive influence on the education of future lawyers; 2) the intellectual meetings of the students with the creators of political-legal doctrines present them with the inspiration, enable the formation of ethically valuable attitudes or create the possibility to alter or modify their own ideas; 3) the history of political-legal doctrines makes it possible to understand or interpret contemporary legal and political events and those doctrines influence the creation and application of law as well as formulating analytical and critical abilities of law students; 4) beyond legal professional activities where the qualifications acquired thanks to the history of political-legal doctrines may be useful are: politics, economy and administration.
As you can see, the studies confirm the thesis that the knowledge, abilities and competence acquired thanks to the studies of the history of political-legal doctrines make valuable component of legal education.
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Article 12PL: Zbieg przepisów w prawie karnym Ukrainy
EN: The Concurrence of Provisions in the Criminal Law of Ukraine
211-226

OLEKSANDR MARIN, VYACHESLAV NAVROTSKYY, TARAS MARITCHAK, IEVGEN STRELTSOV

Special difficulties in executing criminal law are caused by non typical situations in its application, one of which is known as the concurrence of criminal law provisions. The cases in which a given socially harmful act is described simultaneously by two or more criminal provisions almost always cause problems connected with properly choosing that provision which should be applied in that specific case. As a result the authors maintain that the concurrence of criminal provisions is a situation which is met only when solving problems connected with the proper criminal law qualification.
The article discusses various approaches to the concurrence of provisions in criminal law literature; the definition of the concurrence of provisions is presented as well as the classification of types of provision concurrence; the authors also discuss the rules of legal qualification in case of provision concurrence, etc.
The authors of this paper consider the concurrence of provisions to be an atypical situation in the application of law (caused by the presence in the criminal law body of at least two criminal law norms), when during the criminal law evaluation of one socially dangerous act two or more active criminal law norms which are functionally connected concur to be applied.
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Article 13PL: Zjawiskowe formy popełnienia czynu zabronionego w prawie karnym Ukrainy
EN: Complicity in the Criminal Law of Ukraine
227-256

MYKOLA SENKO, ROMAN MAKSYMOVYCH, VIRA NAVROTSKA, NATALIYA USTRYTSKA, VASYL FRANCHUK

Complicity in crime is one of the forms of criminal activity. It has its specific features which allow the scholars to treat complicity as a separate criminal law institution. These specific features comprise the following elements: a) the participation in the commission of an offence of two or more persons bears a heightened danger for the public safety; b) an offence with its statutory features is committed only due to the joint action of all participants.
The institution of complicity in the commission of an offence is regulated in greater detail by the Criminal Code of Ukraine from 2001 than it was the case in the Criminal Code form 1960. The whole Chapter IV of the General Part of the Criminal Code of Ukraine entitled “Complicity in the commission of an offence” is devoted to it. Some norms referring to the problem can also be found in the Special Part of the Criminal Code of Ukraine. Despite such a detailed legal cover of the institution of complicity in the Criminal Code of Ukraine, individual problems are not sufficiently explained and there are some internal contradictions as well.
Therefore the issues, conclusions and propositions presented in this article referring to the improvement of the criminal law seem to be up to date and indispensable. It is necessary to amend the individual legal issues referring to complicity and to explain them with greater precision. This will foster greater effectiveness in counteracting such criminal acts.
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Article 14PL: Stadialne formy popełnienia czynu zabronionego w prawie karnym Ukrainy
EN: Inchoate Offences in the Criminal Law of Ukraine
257-280

BOHDAN TELEFANKO, NATALIYA PARASYUK, OLEKSIY AVRAMENKO, SERGII DIACHUK

The person who commits a forbidden act is not always capable of finishing it. The act can be stopped both by some objective circumstances and by the decision of the offence subject. Art. 13 of the Criminal Code of Ukraine distinguishes three stages of perpetration of an offence: 1) preparation of offence; 2) attempt to commit an offence; 3) commission of an offence.
All these stages differ as far as the character of the act and the degree of fulfilling the perpetrator’s intent are concerned. The first two stages are types of inchoate offences. All the three stages need not be present in the perpetration of a given offence. An offence can be committed without the presence of the stages of preparation and/or attempt.
When the Criminal Code of Ukraine was accepted in 2001 the institution of the stages of an offence was significantly modified: 1) for the first time the definition of a committed offence was introduced; 2) for the first time preparation of an offence and attempt to commit an offence were defined as types of not fully committed offence; 3) the law described the types of attempts to commit an offence; 4) the list of types of perpetration of an offence was extended; 5) special rules of punishment for inchoate offences were introduced.
The special features of inchoate offences are constituted by the fact that there is no fulfilment of those elements of an offence which art described in the Special Part of the Criminal Code of Ukraine: there is no full execution of the objective side or the lack of socially dangerous consequences; seen from the subjective side preparation and attempt are characterised by the direct intent only.
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Article 15PL: Zbieg przepisów ustawy w polskim prawie karnym
EN: The Concurrence of Provisions in Polish Criminal Law
281-295

ANDRZEJ ZOLL

Concurrence of provisions occurs when one act, constituting the basis of criminal law reaction, fulfils the features of at least two types of forbidden acts described by the criminal statute. It is therefore mainly the problem of proper legal qualification of a forbidden act. However, greatest difficulties are connected with establishing the unity of the forbidden act which is to be evaluated. The Polish doctrine and court practice represent the point of view that during the establishing of the criminal law evaluation unit, both ontological and normative criteria should be taken into account.
The concurrence of provisions may be of various character. Putting aside the so-called apparent concurrence, on should distinguish the negligible (not proper) concurrence and real (proper) concurrence. In case of the first one, there is, due to the use of special rules which allow for the exclusion of multiple evaluation, a reduction of the legal qualification to one provision, so that the concurrence is neglected in the process of legal qualification. In the second case, the rules which allow for the exclusion of multiple evaluation cannot be applied without the loss of the possibility to reflect the full scope of the illegality of an act in the legal qualification.
Different models of solving the real concurrence of provisions are possible. There are three such models in the Polish legal system: the so-called ideal concurrence of offences (art. 8 of the fiscal criminal code), the eliminative concurrence of provisions (art. 9 of the code of petty offences) and the cumulative concurrence of provisions (art. 11 of the criminal code). The latter is of greatest practical significance. It makes it possible to reflect most fully the complex content of illegality, as in case of this type of concurrence the qualification is based on all the concurring provisions, and only the imposition of punishment is based on the most severe provision. This does not forbid the court to apply the penal measures on the basis of the other provisions which are included in the legal qualification
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PL: Noty o Autorach
EN: Note about Authors
297-299

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PL: Lista recenzentów współpracujących z czasopismem
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Volume 59 - 2012

Article 01PL: Status terytoriów pónocnej Kanady
EN: Status of the Northern Territories of Canada
7-17

Grzegorz Bonusiak

Modern Canada is a federal state, composed of ten provinces and three territories lying above the sixtieth parallel. After union creating they were directly managed by the lieutenant-governor nominated by the Queen of the United Kingdom and government of the Dominion of Canada. Over time, they were becoming more independent and self-managed to become similar to the province today. The first part of the article presents their original place in the governmental system of the Dominion of Canada and the processes of change their status. The second part shows their current place in federation, their authorities, competences and differences with the Canadian provinces. Particular attention is drawn to the major differences between territories and provinces, including the ownership and management of land belonging to the crown, and to the sources of law determining their status.
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Article 02PL: Kilka uwag o sposobie rozstrzygania dyskursu prawnego
EN: Several Notes about Manners of Arbitration of Legal Discourses
19-31

Krzysztof Kukuryk

The subject of this paper is to analyse the problem how to solve the practical discourse. The study presents some chosen ideas how to achieve the solution. One of them is consensual theory of truth. It is based on the idea of consent of competent participants of a discourse, refuses classical definition of truth as adaequatio intellectus et rei. This idea is also a foundation of J. Habermas idea of universal pragmatic. The consensual theory of truth is also a very important element of transcendental hermeneutic created by K.O. Apel. Another approach to this problem was given by Ch. Perelman. His solution is based on the concept of universal auditory, however it isn’t clear if according to Perelman this auditory is real. The matters which are accepted by this auditory are commonly binding as arguments in practical discourse, up to the change of mind of universal auditory. In the article I described moreover the R. Alexy’s theory of practical discourse. It is very interesting, especially in the context of settling down judicial disputes. This kind of resolving controversies in my opinion should be a model for discussion of practical discourse.
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Article 03PL: Polityka rosyjska wobec polski do I wojny światowej w ocenie petersbursko-warszawskich realistów
EN: Russian Policy Concerning Poland until the I World War in the Opinion of St. Petersburg-Warsaw Realist Party
33-61

Zbigniew Markwart

The party of the Realists from St. Petersburg and Warsaw was created at the end of the 19th century and was composed of the people gathered around the weekly “Kraj” (“Country”) – which was published in St. Petersburg – and the journal “Słowo” (“Word”) published in Warsaw. The programme of the party was based on the thesis that regaining the independence by Poland is impossible. The consequence of such an assumption was to treat the loyalty to the invaders’ governments and to undertake actions aiming at ensuring the best conditions for the nation’s existence as the only real alternative for the Poles remaining under partitions. Judging consistently the Tsars’ Policy of russification and repressions – especially after the uprising of 1863 (except from the short periods of easing it) the party assumed that it is unjustified, irrational and did not bring the effects expected by the government. It was based on the belief of the authorities that the Russian power was so great that it was able to suppress all the essays of the Polish resistance and denationalise the Poles. It was also based on the great-Russian nationalism that did not consider the rights of any other nation than the Russians themselves. It was also caused by the misunderstanding of the general difference between the Polish and Russian societies. It did not only harm the Poles but also the state, not only in the area of internal but also external politics. If the authorities taking into account the conclusions from this lack of efficiency and harmlessness would have changed the policy, it would have brought numerous positive effects for the both sides of the conflict: the Poles would have had a possibility of the partial realisation of the national aspirations and the empire would have strengthened the state, would have built internal harmony that had been disturbed by the uprising. They would also have had Poles as an ally instead of an internal enemy and would have more Russian influence on the other Slavic nations. The Realists were also hoping that after a democratisation of Russia (in which they believed despite many disappointments) the equality of rights for the Poles would take place – as it was in Austria. They were also hoping that there would be a Polish-Russian reconciliation and it would be Russia where the Poles had the best conditions not only for the survival but also for the development of the Polishness.
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Article 04PL: Stosowanie środków oddziaływania wychowawczego przez inspektorów pracy
EN: Using Educational Measures by Labour Inspectors
63-69

Ewa Ryś

One of labour inspectors’ main tasks is to prosecute legal offences against employees’ laws as well as participation in those legal cases as public prosecutors. Labour inspectors can, however, confine to the use of an educational measure in a form of an instruction, calling attention to, warning to an offender or confine other educational measures. Prerequisites for using educational measures by labour inspectors are, first of all, the following: a slight social noxiousness of committed act and emergency circumstances of the committed act. Moreover, educational measures are used if the offender restores legal order immediately the act had been committed and behaves properly after committing the act as well as in a situation when the act was committed as a result of misinterpretation of provisions of the labour law. On using an educational measure, labour inspectors pay special attention to its exceptionality and inform the offender that future offences against employees’ laws shall result in initiation of proceedings by penal orders or filing a petition. Using educational measures by labour inspectors is a sing of non-punitive measures preference rule.
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Article 05PL: Polscy kronikarze wieków średnich o Rusi i Rusinach
EN: Polish Medieval Chroniclers’ Account of Ruthenia and the Ruthenians
81-93

Jakub Skomiał

The way of describing Ruthenia and the Ruthenians by the chroniclers of the Polish Middle Ages resulted from several circumstances, i.a. the history of Polish-Ruthenian relations (especially the events of the mid-fourteenth century), Poland’s belonging to Latin cultural circle, and the rise of Polish national consciousness.
Successive chroniclers’ records differed in character, scope and degree of detail – from brief in the chronicles of Gallus Anonymus, relatively detailed in the works of Wincenty Kadłubek, to diverse and voluminous in The Annals of Jan Długosz. A distinct change in the approach to the issue appeared after Ruthenians’ entering the fourteenth-century Polish borders. In the space of almost four hundred years, the chronicles gradually included the problems of religion (dominant in the records during the Piast dynasty), the legendary and historical times, and finally the matters of Ruthenian customs (the work of Jan Długosz). These inclusions occurred as a result of deepening of Polish relations with the Ruthenians, leading to increased interest in the eastern neighbour.
The development indicated above was not accompanied by any change of chroniclers’ perception of the Ruthenians. The fact that the chroniclers were convinced of the superiority of the truly Christian Poles over the Ruthenians, led them to depict the latter in a negative way (generally described their faults and weaknesses, unusually merits). Nevertheless, in the portrayal introduced by Jan Długosz – within the realities of the Jagiellonian monarchy – the Christian Ruthenians (starting from the end of the tenth century) were valued higher than Lithuanians, who became Christians in the late fourteenth century.
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Article 06PL: Samorząd zawodowy notariuszy w Polsce – wybrane zagadnienia
EN: Public Notaries Professional Association in Poland – Selected Issues
95-111

Tomasz Woś

The article discusses and analysis selected issues from the public notaries professional association in Poland especially it considers on character and structure of the public notaries. The Profession on Notary Public belongs to “occupational group of public confidence” what means that the public notaries professional association refer to the provision of article 17 section 1 of the Polish Constitution. At determining the definition of essence and character of the public notaries professional association and scope of its entitlements the doctrine opinion as well as jurisdiction of Supreme Court and Constitutional Tribunal are taken into account. The article describes system rules and functioning of the public notaries professional association, especially organizational structure, entity competence and obligatory membership in the public notaries professional association.
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Article 07PL: GLOSA do postanowienia Trybunału Konstytucyjnego z dnia 15 maja 2007 roku (sygn. akt P 13/06, OTK-A Nr 6/2007, poz. 57)
EN: Glosa for Resolution of Constitutional Tribunal from 15 May 2007 (P 13/06, OTK-A No 6/2007, position 57)
113-122

Alicja Kuroń

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Article 08PL: Refleksje po lekturze książki A. Dębińskiego Church and Roman Law
EN: Reflections after Reading A. Dębiński’s Church and Roman Law
123-128

Michał Burtowy

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Article 01PL: Idea „minimum państwa” w koncepcjach Frédérica Bastiata
EN: The concept of “minimal state” in the ideas of Frédéric Bastiat
7-18

Lech Dubel

The views of Frédéric Bastiat were never a subject to thorough scrutiny in Polish literature. This elaboration deals with the reconstruction of the author’s views on the state. It also includes the reconstruction of legal concepts.
Bastiat defined the state as a kind of fiction, as opposed to the real nature of an individual. He was an advocate of the limited state. His objectives were confined to protection of individuals, their possessions, and justice. He strongly criticized any forms of etatism or interventionism. Bastiat was a proponent of natural law. Standards of the law of nature, in his proposal, imply inviolability of possessions, personal individuality, the right to freedom, i.e. human dignity. The purpose of the law in a state is to protect natural and legal rights by granting them the nature of statutory law. He defined law as “the collective organization of the individual right to lawful defence”.
The author of the article believes that the differences between the state and the law, understood in the sense of a normative system, fade away in Bastiat’s doctrine.
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Article 02PL: Koncepcja systemu sądów przysięgłych do 1918 roku w myśli Aleksandra Mogilnickiego
EN: The concept of the jury system in the thought of Alexander Mogilnicki until 1918
19-30

Agata Grudzińska

The institution of jury, which has a long history, had been developing in England since the XIII century. This institution appeared in Europe in the times of the French Revolution. The ukases referring to the court organization and criminal proceedings that were binding on the territory of the former Duchy of Poland did not provide the creation of juries that existed in Russia. The lack of the social factor in the judiciary resulted from political reasons.
Mogilnicki opted for the institution of jury. He was of the opinion that juries should have been introduced on the territory of the former Duchy of Poland after the reforms he called for. The changes he called for concerned, inter alia, the ways the jurors were elected, their number, the creation of special juries, the creation of jury that would make a decision to take the case to the jury like in the English model. Mogilnicki criticized and called for the reforms in the field of criminal procedure applied before a jury.
All the reforms he called for aimed at improving the functioning of juries and at refuting the arguments of those who criticized that idea. Mogilnicki thought that the institution of juries in Russia corresponded to the theory. This should be stressed that he considered the jury as the best way to dispense justice, obviously, in criminal matters with the exclusion of petty crimes. However, none of the changes he called for was introduced on the former territory of the Duchy of Poland, on which the Russian authorities did not provide the existence of juries.
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Article 03PL: Wpływ adopcji na dziedziczenie testamentowe w prawie rzymskim
EN: The effect of adoption on succession upon testament in Roman law
31-42

Marek Kuryłowicz

Adopting a child into a family (adoptio and adrogatio) and appointing a heir in one’s will was a method of securing family continuity. On the other hand, an interesting question arises in this respect as to possible competition between adoption and adopted (arrogated) people and the will as well as the heir appointed in it. Two cases are relevant here as regards the effect of adoptio on the validity of a will: 1. the testator is adopted (arrogated) upon making up a will, or 2. the testator adopts (arrogates) another person into the agnatic family upon making up a will.
In the first case, the will was no longer valid according to Roman civil law, but could remain in force in some cases on the basis of praetorian law. If the will was valid and the testator adopted (arrogated) a person into his family once the will had been made up, the legal situation was expressed by the principle of adoptio rumpit testamentum (or: adgnatione postumi rumpitur testamentum). The will became invalid.
At the borderline of these principles and with concurring civil and praetorian laws many complex situations occurred, examined by Roman jurists. A growing tendency to pay more attention to natural kinship (cognation) could be observed, which lessened civil law effects and made inheriting easier. Changes in regard to adoption and inheritance law eventually precipitated Justinian’s adoption reform (adoptio plena and minus plena).
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Article 04PL: Recepcja myśli św. Tomasza z Akwinu na ziemiach polskich w ujęciu retrospektywnym
EN: Reception of St. Thomas Aquinas’s ideas in Poland in a retrospective approach
43-57

Małgorzata Łuszczyńska

The purpose of this article is to investigate the process of reception of St. Thomas Aquinas’s ideas in Poland. The author points to a varied degree of perception of Aquino’s doctrine from the Middle Ages to contemporary times. Initially, the legacy of the Angelic Doctor was predominantly studied by theologians, with time it became the object of research mainly for philosophers. The reception of Thomism was determined by various factors: a kind of “fashion” for a specific direction of philosophical investigation, socio-economic conditionings creating demand for doctrinal justification of existing status quo, and most of all granting the doctrinal nature to the Church teaching.
The ideas of St. Thomas Aquinas were not easily adopted in Poland, where nominalism and anti-aristotelic tendencies were in the ascendant. Over time, the doctrine became more and more popular amongst rationalistic trends. Due to the efforts of Pope Leo XIII the rebirth of the research occurred. There was a change in the approach to the doctrine of Aquino both qualitative and quantitative. In the interwar period, the style of philosophy defined as Thomism was the second primary trend of philosophy, next to the milieu of the Lvov-Warsaw School. The study of Thomas’s doctrine began to bear varied fruit, and its multi-directionality led to stratification and inconsistency. Analyzing the trends of current philosophical studies on the thought of Thomas Aquinas, the author argues for the necessity – from the scientific research methodology point of view – of the distinction between the terms: Thomas’s thought and Thomistic thought. 61
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Article 05PL: Kilka uwag na temat prawa w państwach totalnych w poglądach Szymona Rundsteina (1876–1942)
EN: A few comments on the law of totalitarian countries in Szymon Rundstein’s views (1876–1942)
59-65

Maciej Marszał

The article presents the views of one the greatest and most versatile interwar Polish lawyers – Szymon Rundstein – on the changes taking place in the law of totalitarian countries. The author shows the originality of Rundstein’s theses in comparison with the interpretation of Polish lawyers who demonstrated their interest in totalitarian systems arising in Europe after World War I. During World War I, the major area of research pursued by Rundstein pertained to the issues associated with the law of nations, reparations and international law. The author proposes a thesis that Rundstein went down in Polish history of legal thought as an adherent of Hans Kelsen’s theory of Grundnorm. He advocated the study of law in its pure form, regardless of the influence of sociological, psychological, historical, or political factors. Rundstein’s subject of study was the law being scrutinized in a “formal and schematic” manner, irrespective of the binding criterion. These were the perspectives from which Rundstein analyzed changes in law that occurred, most notably in the Third Reich. He argued that totalitarian systems (communism and Nazism) rejected the idea of law’s relative autonomy along with inalterability of its concepts, which consequently led to lawlessness and posed a threat of civil liberties. As the result of the discourse on the nature of the totalitarian regime and law system, in whichSzymon Rundstein participated, Polish public opinion on European totalitarian systems was being formed.
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Article 06PL: Podmioty administrujące i prawne formy ich działania w europejskiej doktrynie prawa administracyjnego przełomu XIX i XX wieku
EN: Administrative entities and legal forms of their actions in European doctrine of administrative law at the turn of the 20th century
67-80

Grzegorz Smyk

The necessity to observe the principle of legalism by the state apparatus, functioning under conditions of a constitutional state, required the definition of the essence of law of the administrative board, and legal forms of external acts of will of the administrative apparatus, which enable determination of their binding force and possible control by superior authorities, as well as their recipients. These issues were found amongst the central problems of administrative law theory of the turn of the 20th century, which were intensely discussed particularly in French and German literature.
There was a consensus amongst the authors of the period that public administration performance was closely related to the need of isolating organizational units which were appointed to carry out the tasks of the state in this area. Public and non-public entities, which performed the functions of public administration, were mentioned as administrating entities forming the administrative system of the state. However, the question of defining the nature of the administrative body aroused so much controversy that in consequence a unified position on the matter was never reached. In effect, the concept of the administrative authority and its legal nature remained primarily theoretical, being developed by the successive authors in pursuance of domestic administrative law system solutions.
In the first half of the 19th century, the issue of legal forms of the administrative apparatus external activities and the closely related problem of an administrative act did not occur as a separate subject of research, but were derived from the subject area of the administrative judiciary (the French approach) or the issue of the act (the German approach). At the time, the administrative act was treated as one of the internal elements of the administrative activity. This approach changed in the second half of the century. Harmonization of administrative proceedings aimed at issuing a binding administrative decision, called a ruling or an administrative order, resulted in the act shifting from being perceived as an internal administrative issue to a typical form of external articulation of the will of executive-administrative power, characterized by imperious actions of the administrative authority being based on the competence resulting from generally applicable law, and aimed at generating specific, individually marked legal effects.
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Article 07PL: O konieczności transformacji koncepcji praw człowieka w koncepcję prawa do życia
EN: On the need for transformation of the concept of human rights into the concept of the law of life
81-101

Roman Tokarczyk

In the early 21st century, the need for transformation arises; the need for change, modernization of human rights due to their maladjustment to the demands of reality.
The necessity primarily results from tremendous pressure of biotechnology, which arouses high expectations, but at the same time poses threats to the value of values, which invariably continues to be represented by life.
The following text is based on confirmed observations that traditional ethics transforms into bioethics, traditional law into biolaw, traditional jurisprudence into biojurisprudence. These transformations also pertain particularly to human rights, which should be formulated anew in the form of laws of life – biolaw.
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Article 08PL: Organizacja szkolenia obronnego w państwie w świetle obowiązującego prawa i kontroli wykonywania zadań obronnych
EN: Organization of defensive training in state in light obligatory law and control of practice of defensive tasks
103-118

Mariusz Wojciszko

The purpose of this study was to investigate the position of certain state bodies/authorities (defined by the Constitution and other legal acts)in the area of defence preparation in the peace, state of emergency and war time. The position of the state bodies in the area is determined by the adopted system of governance. The study focused on examination whether the adopted constitutional regime creates/generates appropriate/adequate conditions for functioning/operating the state bodies/authorities in the situation of emergency.
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Article 09PL: Refleksje na temat przygotowanego do druku przez M. Marszała i S. Wójtowicz wyboru pism Stanisława Łosia poświęconych sprawie ukraińskiej
119-121

Grzegorz Ławnikowicz

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Article 10PL: Sprawozdanie z Konferencji Naukowej „Tendencje rozwojowe myśli politycznej i prawnej”
123-127

Artur Łuszczyński, Małgorzata Łuszczyńska

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Article 11PL: Sprawozdanie z I Zjazdu Polskiego Towarzystwa Myśli Politycznej (Szklarska Poręba, 23–25 października 2012)
129-130

Artur Łuszczyński, Małgorzata Łuszczyńska

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Volume 58 - 2011

Article 01PL: Państwa zaborcze i Ich polityka wobec Polski w poglądach stronnictwa realistów
EN: The partitioners and their policy towards Poland in the realist party views
8-28

Zbigniew Markwart

The Realist fraction that was created by the group of Polish liberal-conservative intelligence gathered around the weekly newspaper "Kraj" which was published in Petersburg since 1882. The fraction emerged at the end of the 19th century and in 1905 transformed into the political party called Stronnictwo Polityki Realnej (Real Politics Party). Convinced that the loss of independence is definitive, the "realists" advised the Poles under the rule of the partitioning powers the loyalty to the governments and taking actions that would aim at ensuring the most beneficial conditions of living for the nation. The evaluation of each of the partitioning powers included in the programme of the party resulted from an analysis of the situation of the Poles under their rule and from the policy applied to the Polish people. When it comes to Austria the party reckoned that just after the partitions it pursued the roughest germanisation, however, after the reforms in the second half of the 19th century that gave autonomy to particular countries, the situation, not only when referring to protecting but also to developing Polishness, was the most favourable out of all the three partitions. Significantly worse was a situation in Germany where the ruthless denationalisation became a reason of state and there was no chance for any positive change. It was much worse than in Russia, since Germany as a strong and. modern, efficiently administrated state utilised, all the legal and. economic resources to germa-nise the Poles. Russia - retrograded - have never pursued, a rational policy on the possessed Polish land limiting the actions to bloodshed repressions after the uprisings and permanent russification. The realists, however, hoped that after the expected democratisation of Russian.
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Article 02PL: Polska i Polacy w poglądach Adolfa Hitlera (1919-1945)
EN: Adolf Hitler's views on Poland and Poles (1919-1945)
29-61

Marek Maciejewski

In the author's judgment, the opinions of foreigners on Poland and the Polish people of the Renaissance era which were presented above, though by necessity limited, nevertheless entitle us to draw some final conclusions. First and foremost it needs to be pointed out that opinions on Poland, of the mentioned period were very diverse, ranging from flattering to strongly critical. However, it has to be added that positive views prevail. Among critical ones, those concerning the country's development and. Polish national character clearly stand out; foreigners criticize small number of towns which contributes to the increase in travel hardships and negatively evaluate Polish people's excessive predilection for quarrels and squabbles (particularly under the influence of alcohol). In turn, other commentators indicate that the country is well-developed, agriculture is flourishing, the inhabitants are getting richer. Many authors stress the high level of Polish nobility's education and the fluency in foreign languages of many of its representatives. The most prominent humanist of the period, Erasmus of Rotterdam, admires both the Polish ruler and his subjects. He considers them to be reasonable, good-natured and well-meaning towards others, unwilling to quarrel and preferring peaceful resolution of all disputes. It should be especially strongly emphasized that both for earlier and contemporary foreigners writing about Poland, our country was a unique phenomenon on a worldwide scale as far as the question of religious tolerance is concerned. In the Polish Commonwealth not only Protestants or Moslems were able to enjoy their rights; the same was true for Jews who were persecuted on the whole continent during relevant time.
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Article 03PL: Polska i Polacy doby Renesansu w oczach cudzoziemców
EN: Poland and the Poles of the age of the Renaissance in foreginers5 eyes
63-74

Mirosław Sadowski

In the author's judgment, the opinions of foreigners on Poland and the Polish people of the Renaissance era which were presented above, though by necessity limited, nevertheless entitle us to draw some final conclusions. First and foremost it needs to be pointed out that opinions on Poland, of the mentioned period were very diverse, ranging from flattering to strongly critical. However, it has to be added that positive views prevail. Among critical ones, those concerning the country's development and. Polish national character clearly stand out; foreigners criticize small number of towns which contributes to the increase in travel hardships and negatively evaluate Polish people's excessive predilection for quarrels and squabbles (particularly under the influence of alcohol). In turn, other commentators indicate that the country is well-developed, agriculture is flourishing, the inhabitants are getting richer. Many authors stress the high level of Polish nobility's education and the fluency in foreign languages of many of its representatives. The most prominent humanist of the period, Erasmus of Rotterdam, admires both the Polish ruler and his subjects. He considers them to be reasonable, good-natured and well-meaning towards others, unwilling to quarrel and preferring peaceful resolution of all disputes. It should be especially strongly emphasized that both for earlier and contemporary foreigners writing about Poland, our country was a unique phenomenon on a worldwide scale as far as the question of religious tolerance is concerned. In the Polish Commonwealth not only Protestants or Moslems were able to enjoy their rights; the same was true for Jews who were persecuted on the whole continent during relevant time.
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Article 04EN: Poland and Poles with eyes of outstanding Georgian activistas (from the t 19th century up to the twentieth years of the 20th century)
RU: Польша и Поляки глазами выдающихся грузинских деятелей (с начала XIX века - до 20-ых годов XX века)
75-86

Николай Джавахишвили

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Article 05PL: Przywary niewolników pańszczyźnianych w XVIII-wiecznej Rzeczypospolitej w relacji Huberta Vautrina
EN: Vices of serfs in 18th-century Poland in Hubert Vautrin's relation
87-97

Piotr Kimla

This article aims to provide sources of vices of serfs in 18th-century Poland in Hubert Vautrin's L'Observateur en Pologne. Vautrin's comments relating to the Polish countryside have become a subject of analysis because, in spite of the author's deviations from neutrality, he was able to sketch a psychological portrait of serfs. According to Vautrin's relation most negative traits of Polish serfs, such as laziness, passivity, drunkenness, cruelty, greed, jealousy stem from the fact that they are subjected to unlimited, despotic power. Generally speaking, the French Jesuit considers 18th-century Poland as a despotic country of the worst kind. Despotic power is not located in one centre, but separated into several rival aristocratic families and foreign courts.
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Article 06PL: Od zachwytu do sceptycyzmu - upadek mitu Francji w Szkicach piórkiem Andrzeja Sobkowsklego
EN: From admiration to skepticism - the fall of the myth of France in Andrzej Bobkowski's Szkice piorkiem
99-120

Anna Citkowska-Kimla

The article focuses on Andrzej Bobkowski's attitude to France and the French when he was writing his journal Szkice piorkiem (1940-1944). The writer residing in France did not hide his love for this country. With time, however, influenced by observation of behaviour and attitudes of the French during the Second World War he verified his position on this issue. Therefore he covered the distance from admiration to scepticism. The article touches upon several questions: contains a comparison between Poles and the French, the analysis of the French being at war, French attitude to the culinary art, French form and fashion, French administration, the conviction of the French on their own greatness and last but not least French love for a peace of mind.
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Article 07PL: Polskie elity wobec włoskiego faszyzmu 1922-1939
EN: The Polish elite towards Italian fascism 1922-1939
121-137

Maciej Marszał

Considerations of Polish lawyers on the issue of totalitarian regimes in the inter-war Europe - particularly on Italian Fascism - constituted a significant scholarly and journalistic contribution to the discussions undertaken in the then Poland about political systems. The specificity of the Polish debate on Fascism resulted from a number of facts. First, both Poland and. Italy are Catholic countries (and circles connected with the clergy often played an important role in Polish debates on Fascism's relationship with Catholic Church). Second, there was a close cultural and scholarly contact between Poland and Italy which was carefully maintained throughout the inter-war period by members of the cultural and scientific community. Third, similar to Italy (the March on Rome), there appeared in Poland (the March on Warsaw) similar associations concerning the nature of political systems; young Polish democracy, like its Italian counterpart, could not solve many political, social and economic problems and- for this reason - an always fashionable Italy could provide an inspiration for young Polish political elites.
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Article 08PL: Wizerunek Ukraińca w polskiej myśli politycznej -perspektywa historyczna oraz współczesne odniesienia
EN: The image of the Ukrainians in Polish political thought - historical perspective and contemporary references
139-155

Barbara Stoczewska

The image of Ukrainians in the Polish political thought had a variable character and was also the result of extremely complicated polish-ukrainian relations. Great role played historical events, such as the war with Cossacks, the strong polish-ukrainian antagonism in Galicia and the bloody events in Volhynia during World War II. This negative image has been effectively reinforced by the propaganda of the communist period. After 1989, this image was completed by new experience, as the result of the transformation. Before 1918 image of Ukrainians in polish political thought was the result of the historical reminiscences and plans for regaining independence. In this context the Ukrainians were often seen as potential allies in the struggle with Russia. At the end of World War I among the Poles was common belief that Ukrainians are not capable of constructive action, create independent state. Conflict with the Ukrainian national minority in the Second. Republic influenced the strengthening of the negative image of Ukrainians. Modern research shows, that this image is a change. Only the older generation of Poles look at this problem through the prism of history. However, knowledge of Poles about Ukraine and Ukrainians is still very low.
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Article 09PL: Polscy prawnicy w Rosji przed 1917 rokiem: wybrane koncepcje teorii i praktyki prawa
EN: Polish lawyers in Russia before 1917: chosen concepts of theory and practics of the law
157-173

Adam Bosiacki

The paper analyses comparative aspect of legal ideas and social views of three eminent Polish lawyers in the Russian Empire in its closing period: Gabriel Shershenevich (Szerszeniewicz), Leo Petrazhytsky (Petrazycki) and Alexander Lednitsky (Lednicki). All three represented the question of Polish lawyers community in this country, focusing science of civil law, legal theory, and the law in action, i.e. the art of advocacy. Shershenevich is admired as one of creators of the Russian commercial and civil law systems, using a number of non-dogmatic methods of legal science and presenting some Russian specifics in this. Based on the Pandektensystem, Shershenevich's attitude added as sources of law quite wide nation's will in law enacting, naturalism, focusing on local communities and customary law, as well as some impact of unwritten rules on civil and commercial law. This scholar also analyzed an idea of good manners and. good will what was also typical for Petrazhytsky. The latter as the sole among Polish lawyers is held, as the creator of a sufficient legal theory (psychologism) but his ideas are somehow linked to Polish, German and Russian attitudes towards law in the 19th century. Also, Petrazhytsky is also widely receipted in Russia and the Bolshevik state. Although his views were not that radical, ideas of unwritten law and a class attitude towards legal order were somehow convenient for communist totalitarianism. On the other side, like his colleagues presented in this paper, Petrazhytsky constitutional democratic views focused on very different manner of political system. The same attitude represented. Alexander Lednitsky, promoting social ideas of moderate state including liberation of Poland, which was typical for most majority of Polish lawyers in Russia. However, what is really paradoxical, academic and social activity of Petrazhytsky and Lednitsky, who moved to Poland after reaching its independence, stopped, and both of them committed suicide protesting against false social and academic accusations and misunderstanding of their ideas. It is now worth to recollect and remind the figures, which played an important role in Polish legal theory and practice, in social activity of Polish society and transforming the Russian Empire to a state of a constitutional character.
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Article 01PL: Louls Plerre Édouard BIgnon a sprawa polska po 1815 roku
EN: Louis Pierre Édouard Bignon and the case of Poland after 1815
7-15

Anna Klimaszewska

Louis Pierre Édouard, Baron Bignon, had performed the function of a French resident in the Duchy of Warsaw since 1811. However, even after his return to the fatherland, he was not only a warm-hearted friend of the Polish people, but first of all a zealous advocate of the Polish affairs. From the moment the Napoleon's power was shaken, through the journalism of the times of the restoration, up to the political fights of the period of the July Monarchy, he demanded a real and actual defence of Poland, since in its restoration he saw compensation to the French interests and a revival of the influence of his fatherland in the north of Europe. Besides practical issues, he was also induced to adopt such an attitude by his own philosophical and. moral beliefs, which he often expressed in his public appearances.
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Article 02PL: Obraz Litwinów - głównych przedstawicieli litewskiego odrodzenia narodowego, w oczach Polaków - mieszkańców byłego Wielkiego Księstwa Litewskiego na przełomie XIX i XX wieku
EN: Image of Lithuanians - of chief representatives of the Lithuanian national revival, rapidly of Poles - of inhabitants of the former Grand Duchy of Lithuania at the turn.of the 19th and 20th centuries
17-32

Przemysław Dąbrowski

Nationalist Lithuanian movement, of which apogee of the bloom it fell to the second-half of the XIX century, had. a few phases of his development. First because, feeling the cultural inflected-ness started emerging, and then political aims appeared. The ones last gave the idea of the shared state rise to at first, work on for her fulfilling so that in consequence appear against her and begin construction of the personal structure. Poles dwelling areas of the former Grand Duchy of Lithuania in, for actions of representatives of the Lithuanian revival, looked in the various way. Not negating aspirations of Lithuanians to granting equal rights, almost unanimously they appeared against the aggressive and fighting nationalism, repelling all centuries-old historical traditions and an attempts at reconciliation of two sister nations. Mutual slanders only fueled conflict which it wasn't possible to untie by way of the dialogue or the compromise. His effects, to spend so that they can, were felt also and after 1918, when began it oneself new "battle of Polish - Lithuania" against Vilnius come to love.
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Article 03PL: Zagadnienia narodowościowe w perspektywie polskich plebiscytów I referendów (19205 1921, 1946)
EN: Nationality issues in perspective of Polish plebiscites and referendums (1920, 1921, 1946)
33-42

Przemysław Krzywoszyński

The article presents some applications of two most popular institutions of direct democracy within nationality issues in Poland. The paper contains analyses of three important direct voting i.e. from 1920, 1921 and 1946 in wide historical, political and. economical contexts. The use of plebiscites on the Warmia, Masuria and Powisle (1920) and Upper Silesia (1921) intensified conflict between Germans and Poles. Moreover, this situation was caused not only by voting results, but also by preceding violent anti-Polish campaigns. The manipulative character of the referendum from 1946 concerning reforms consisted in communists' authorities' presentation of Polish independent opposition (both political parties and resistance) as allies of Nazi Germany.
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Article 04PL: Śladami doktrynalnych spotkań Milovana Djllasa z Polską
EN: Following Milovam Djilas's doctrinal meetings with Poland
43-63

Marcin Niemczyk

Deliberations concerning the relations between Polish and foreign political and legal thought can be shown in various perspectives, which themselves determine an interesting area for a scientific study. The objective of the hereby article is an attempt to present Milovan Djilas's statements touching upon Polish affairs, as well as indicating the influence, which his points of view exerted on the representatives of Polish political thought (dissidents and representatives of communist power as well). Djilas's meetings with Poland presented in the article concern at the same time biographical trains and statements about Poland and the Polish included in his essays and interviews. Doctrine connections of Djilas with the output and representatives of Polish anticommunist opposition have been underlined in a special way, also with the help of a survey, in which participated Bogdan Borusewicz, Zbigniew Bujak, Aleksander Smolar i Romuald Szeremietiew. Presented, in the text doctrine connections of Djilas and Poland apply mainly to the reception of his opinions enclosed in The New Class: An Analysis of the Communist System and their influence on creation of the political consciousness of the anticommunist movement in Poland. These connections are probably turned out the most evidently in one of the essential ideological documents of the anticommunist opposition representatives: ,,An Open Letter Addressed to the Members of the Basic Party Organization of the Polish United Labour Party and the Members of the Socialist Youth at the University of Warsaw" written by J. Kuron and K. Modzelewski.
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Article 05PL: Charakter narodowy Niemców I Rosjan w pismach Jana Karola Kochanowskiego (1869-1949)
EN: Character of national German and Russians in Jan Karol Kochanowski's works (1869-1949)
65-84

Błażej Sajduk

Jan Karol Kochanowski was a famous Polish political thinker of the Second Polish Republic, but today he is largely unrecognized. His book, Polska w swietle psychiki wlasnej i obcej (Poland in the light of our own minds and in those of others) is one of the most important publications on national character. It will be the foundation for the research conducted in this paper. The main aim of the text is to show how his analyses of crowds, masses and individuals were transformed into categories describing traits of the character of nations. The text is divided into five parts. The first introduces the intellectual biography of Kochanowski. The next parts are devoted to two ideas most important to Kochanowski: the masses and individuals, which he uses to describe societal and political life. His further description of national characters is based upon those ideas. The third part tackles the problem of the methodology adopted by the Polish thinker in a study of national attributes. The two last parts are devoted to his description of German and Russian traits of character.
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Article 06PL: Obraz sąsiadów w oczach wybranych przedstawicieli czeskiej myśli politycznej w XIX i XX wieku
EN: The image of neighbours in the eyes of some representatives of Czech political thought in XIX and XX century
85-101

Artur Łuszczynski, Małgorzata Łuszczynska

The main goal of this article is a reconstruction of an image of neighbours in opinion of some selected representatives of Czech political thought in XIX and XX century. At the beginning the authors try to define research area what is specially crucial in the case of countries of Central Europe in the scrutinized period. As it is commonly known it was time of sudden and deep changes of different character: political, social economical, etc. It often results in confusion of notions. The main character whose views are presented is Thomas G. Masaryk, creator and the first president of the Czech Republic. His influence on Czech society is hard to overestimate. There are also mentioned such representatives of Czech political thought as Jan Kollar, Karel Kramaf, Ema-nuela Radl or Karel Havlicek-Borovski. The authors do not determine if views of Czech thinkers on the Czech neighbours are repetition of Czech society opinion or an inspiration for Czech society.
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Article 07PL: Obraz Polaków w twórczości Julesa Micheleta
EN: The image of Polish people in Jules Michelet's writings
103-115

Marta Maj

Jules Michelet (1798-1874) is one of the most renowned French historians of the XlXth century. Born in Paris, descendent of a poor family he became the admirer of the Great Revolution, and the supporter of radical republicanism, believer in the Republic and the French people, "le people", whom he devoted his great "History of France". As the admirer of Republic, he was a decided enemy of Napoleon and Jesuits. Jules Michelet is slightly known in Poland, his historical works have been never translated into Polish, although he met the greatest Polish poet, Adam Mickiwicz and became his friend, during Adam Mickiewicz's exile in France. They met in "College de France". It was Mickiewicz who told and taught Michelet history of Poland. In 1851 Michelet wrote a book devoted to Poland, entitled "Kosciuszko, the democratic legend". The book contains the biography of Polish general Tadeusz Kosciuszko, who organized an insurrection of Polish people against the tsarist Russia just before the third and definitive partition of Poland. Kosciuszko, who was the dictator of the uprising, decided to change the legal situation of Polish peasants, and promised them the personal freedom. In Michelet's work Kosciuszko is portrayed as an outstanding man, strong, brave, sensitive to the sufferings of poor, and ready to die for his country. The Polish people also is depicted as a nation of noble and generous people, heroic in their attempts to save the motherland. He described the Polish nation as a "union of souls", the only place where Poland was still alive. On the contrary, the most strongly criticized Napoleon is shown as an emperor who used, the "soldiers of freedom" e.g. the Poles, for propagating slavery. Showing Poles as a people, who saved western states hundreds of times, Michelet blamed the whole Europe for leaving Poland alone against bad. Russians. The image of Poland created by Jules Michelet is very emotional, exaggerated and not always true. But it gives the reader a clear idea of the essence of Michelet's republicanism.
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Article 08PL: Fizjokratyzm oczyma polskich przedstawicieli myśli polityczno-prawnej
EN: Physiocratism in the eyes of Polish representatives of political and legal thought
117-130

Maciej Indan-Pykno

The paper discusses physiocracy from the polish political thought point of view. First of all I tried to describe this economic theory developed by a Physiocrats, people who believe that the wealth of nations was derived solely from the value of "land agriculture" or "land development". Discussed movement was particularly dominated by Francais Quesnay. His most significant contribution of the Physiocracy was the emphasis on productive work as a source of national wealth. He explains also the role of private property, individualism and laissez-faire. This arguments were analyze by polish thinkers such as Antoni Poplawski, Hugon Kollataj or Hieronim Stroynowski. Some of them create their own theories connecting with physiocracy theory, some of them only try to develop, created already theory, on the polish land.
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Article 09PL: „Biała" Polska I „Czerwoni" Polacy. Polskość w oczach Lwa Dawidowicza Trockiego
EN: „White" Poland and the ,,Red" Poles. Polish identity in Lew Dawidowicz Trocki's eyes
131-140

Paweł Sydor

The present work aims at demonstrating the connection between social and political thought of Leon Trotsky with national politics in marxism and. his vision of Poland and. Polish people. Marx and Engels assumed, that nationality and. the clash between nations is not origin of historical process, but is only effect (in overstructure ) of basic conflict between force of produce and. relations of production. In the conception of permanent revolution Trotsky assumed that revolution in backward country is combined process, which consist of two parts. First - democratic and next - social. In this meaning of revolution the clash between nations can be understanding as origin of revolution as well as economical conflict between social classes. Trotsky thought about polish people as supporters of communistic movement, but governed by burgeois and her regime. He used to use national conflict as possibility to gain power by Bolsheviks party. The best example is war on Poland in 1920.
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Volume 52-53 - 2005-2006

Article 01PL: Ciągłość postępowania sqdowoadrninistracyjnego
EN: The Continuity of Judicial-Administrative Proceedings
7-26

Zbigniew Czarnik


Wyższa Szkoła Zarządzania i Administracji w Przemyślu

The continuity of judicial-administrative proceedings is one of the basic principles organizing court proceedings, whose aim is to administer justice. In this way the continuity of judicial--administrative proceedings, as a demand of the rational process, guarantees realization of the constitutional right to the court. Analyzing the principle of the continuity of judicial-administrative proceedings, it was presented as a theoretical category and the rule of practical action. The article stresses these aspects of the principle which lead to court's acting without delay, since only in this way understood principle allows to properly realize the right to the court. The author shows the principle in detail, characterizing the regulations contained in the act of 30th August 2002 - The law on proceedings before administrative courts (DzU no 153, item 1270 with later changes).
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Article 02PL: Granice bezkarności oskarżonego w wypadku składania fałszywych wyjaśnień
EN: The Limits of the Defendant's Impunity in Case of Giving False Testimony
27-41

Dorota Karczmarska


Wydział Prawa i Administracji UMCS Katedra Kryminalistyki i Prawa Dowodowego

The article deals with selected problems pertaining to the right of the defendant to defence and is an attempt to solve the problem whether, and to what extent the fact of being accused of commiting a criminal offence justifies false testimony of the defendant. The Penal Code does not provide for a duty to warn the accused about responsibility before penal authorities for false testimony. Such responsibility does not exist, because the defendant does not commit an offence giving false testimony. The duty to reveal the truth which is unfavourable for the accused would be opposed to the principle nemo se ipsum accusare tenetur, showing the defendant's right to not providing evidence against himself. The legislator then tolerates the lie of the defendant within this principle. Sometimes, however, the defendant giving false testimony, breaks the ban provided for in the penal code. This refers to situations when the contents of the testimony has, e.g., all the hallmarks of the crime of false accusation of another person (Art. 234 P.C.) or defamation (Art. 212 P.C). The right to defence does not guarantee the accused lack of liability for such testimony, even if the accused gives it to defend himself.
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Article 03PL: Cofnięcie odwołania w postępowaniu administracyjnym
EN: Withdrawal of Appeal in Administrative Proceedings
43-59

Zbigniew R. Kmiecik


Wydział Prawa i Administracji UMCS Katedra Postępowania Administracyjnego

The study aims at showing, as exemplified by the construction of withdrawal of appeal, that the existence of the institution of appeal against the administrative decision is justified not only by the protection of subjective rights of an individual, but also by the protection of objective legal order. The Author also made an attempt to prove that withdrawal of appeal cannot be treated equally with a demand for discontinuance of legal proceedings before the organ instance II. Special attention was focused on the essence of withdrawal of appeal and conditions of admissibility to avail oneself of this right, as well as the effects of undertaking this action. Moreover, the article discusses time limits within which withdrawal of appeal is possible, as well as mutual relations between this withdrawal and the ban reformationis inpeius in appeal proceedings.
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Article 04PL: Georg Jellinek. Portret polityczny uczonego
DE: Georg Jellinek. Politisches Portrait eines Staatsrechtlers
61-70

Jarosław Kostrubiec


Wydział Prawa i Administracji UMCS Zakład Historii Doktryn Polityczno-Prawnych

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Article 05PL: Odpowiedzialność za naruszenie dyscypliny finansów publicznych
EN: The Liability for Breach of Public Finances Discipline
71-86

Anna Kościńska-Paszkowska


Katedra Prawa Finansowego

The Author presents the new act of Parliament which regulates liability for breach of public finance discipline - legal institution characteristic of Polish law of public finance. New provisions have come into force since 1st July 2005. The resolution of the new act shall result in better protection of proper usage of public funds by finance sector and entities from outside the sector. The Author presents provisions concerning the subjective and objective scope of liability, adjudicating bodies, principles of liability, penalties and rules of proceeding to evaluate how new regulations differ from the previous ones. The Author analyzed not only the provisions but also took into account the jurisdiction of adjudicating bodies and administrative courts. That allowed her to show how experience of adjudicating bodies and commissioners of public finance discipline let create new, more efficient regulation. In the conclusion the author evaluates the new regulation from the perspective of subjects which apply its provisions and submits the proposition of amendments, especially with regard to adjudicating bodies.
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Article 06PL: Prawo natury a prawo stanowione - dwa antagonistyczne ujęcia filozofii prawa
EN: The Law of Nature and Statutory Law the Two Antagonistic Ways of Approaching the Philosophy of Law
87-108

Małgorzata Łuszczyńska


Wydział Prawa i Administracji UMCS Zakład Historii Doktryn Polityczno-Prawnych

The history of the philosophy of law is the history of relations between its two trends; legal-natural trend and the trend of positive law. Over the successive centuries many antagonisms occurred between them. The origin of the above trends, their ideological assumptions and the grounds of their mutual influence are discussed in the publication. Due to some ambiguities which over the years had gathered around natural-legal problems, much attention was devoted to the natural law. Besides, the ambiguity of the term "the law nature" extorted a position on methodological questions, and especially, on the specific pleonasm; the law of nature - natural law. The debate on the superiority of the natural law over statutory law is not only a purely academic discussion, but it also has practical meaning.
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Article 07PL: „Dziedziczenie" kwot produkcyjnych oraz płatności w rolnictwie
EN: "Inheritance" of the Production Sums and Payments in Agriculture
109-122

Aleksander Oleszko


Wydział Prawa i Administracji UMCS Katedra Prawa Rolnego i Gospodarki Gruntami

The article discusses the problem of "inheritance" of the production sums (surcharge) understood as definite mechanisms of limiting of the agricultural production of selected agricultural markets (milk, sugar, tobacco raw materials) of the European Union with regard to the Polish market, as well as using the financial means of support for these agricultural producers. The succession of the above property values by inheritors intending to manage the above-mentioned production is one of EU's means of support. As a matter of fact, however, we deal with another succession of property, regulated in special regulations (apart from the penal code and the law of inheritance) provided for administrative proceedings.
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Article 08PL: Znaczenie oraz charakter umowy dzierżawy w świetle prawa wspólnotowego i krajowego (zagadnienia wybrane)
EN: The Importance and Character of the Contract of Lease in the Light of Common Law and National Law (Selected Problems)
123-136

Radosław Pastuszko


Wydział Prawa i Administracji UMCS Katedra Prawa Rolnego i Gospodarki Gruntami

The article discusses and analyzes selected aspects and functions of lease agreement in agriculture, beyond the most traditional aspect of its functioning, consisting in possession of arable land; it is worth paying attention to its importance and usefulness in perspective determined by the community legislative. Covering the Polish agriculture with the system of common agricultural policy is related to the occurrence of new legal institutions which consist in regulating the so-called trade agricultural markets and the sphere of structural policy in agriculture. The study aims at pointing to the importance of the contract of lease in relation to three basic spheres - the problem of production sums, institution of structural pensions (earlier retirement pensions) and the legal act of lessee's reemption.
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Article 09PL: Z problematyki bezpośredniego stosowania konstytucji
EN: The Problems of Direct Application of the Constitution
137-154

Agata Przylepa-Lewak


Wydział Prawa i Administracji UMCS Zakład Socjologii Prawa

The article is an attempt at showing and analyzing differentiated points of view of many authors on the functioning of the principle of direct application of the constitution expressed in Art. 8, item 1, 2 of basic law in the Polish system of law. Authors' position as well as judicial decisions very often differ. Basic differences concerning the doctrine refer to three questions: the range of the notion of direct application of the constitution, the range of the constitution norms which can be subject to direct application, and legal subjects that can apply the constitution. An additional problem related to the issue of direct application of the constitution discussed in the article is the institution of legal questions. Differences as regards views concerning this problem come down to the question whether at the moment of recognizing discrepancy between the law and the constitution the court has the right or duty to address the Constitutional Tribunal.
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Article 10PL: Prawnorzeczowe skutki wylewów rzecznych i powodzi według prawa rzymskiego
EN: Legal Effects of River Outflows and Inundation According to Roman Law
153-165

Renata Świrgoń-Skok


Wydział Prawa Uniwersytetu Rzeszowskiego Zakład Prawa Rzymskiego

The Roman law had separate regulations concerning property questions connected with deserted river beds (alveus derelictus) and inundation of the ground (inundatio). The deserted river bed in the Roman law was not treated as someone's property, nor was it subject to appropriation. When the river changed its course, the deserted river bed (alveus derelictus) became the subject of accession. The proprietors of the deserted river bed became, according to the principle accession cedit principali, those who owned riverside grounds in parts corresponding to the width of their grounds near the shore, along the line drawn through the centre of the former river bed. During inundation (inundatio) there occurred no changes referring to property relations, neither during inundation nor after withdrawal of the water. The literary sources indicate the continuity of the accepted relevant solutions both in classic law (D. 41, 1, 7, 5-6 Gaius) and Justinian law (I. 2, 1, 23-24).
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Article 11PL: Ludzie wieku podeszłego w kulturach świata
EN: The Aged in the Cultures of the World
167-184

Roman Tokarczyk


Wydział Prawa i Administracji UMCS Katedra Teorii Organizacji i Kierownictwa

Obecnie, kiedy w wielu krajach świata postępuje duży i szybki przyrost odsetka ludzi starych wśród ogółu społeczeństw, zwany niekiedy „wyżem dziadków" (papy boom), nawet zwięzłe przypomnienie ich losu w przeszłości wskazuje na istotne przemiany. Wśród różnych teorii przyczyn starości najszersze uznanie zyskała teoria o genetycznym zaprogramowaniu procesu starzenia się. Jako nieuchronna rzeczywistość starość napawa ludzi obawą, lękiem, pragnęliby ją od siebie odsunąć i zachowywać jak najdłużej młodość, aż po granice wieczności. Medycyna „od tysięcy lat starała się [...] zrozumieć przyczyny starzenia się i opóźnić jego skutki, ponieważ jednak była bezsilna wobec tego przyrodzonego fatum, ograniczyła się w końcu do wyliczania typowych patologii starych ludzi, umieszczając je w kategorii nieuleczalnych chorób. Starego człowieka, jako pacjenta nierokującego nadziei na wyleczenie [...] odesłano do hospicjum". Przegląd miejsca ludzi starych w różnych kulturach, mimo pewnego zróżnicowania, pozwala jednak określić kilka cech wspólnych ich statusu społecznego. Po pierwsze, jest to głównie i niewątpliwie fizyczna słabość; dyskryminuje ona starych w społeczeństwach ubogich i źle zorganizowanych, przebiega zaś łagodniej w społeczeństwach bogatszych i dobrze zorganizowanych. Po drugie, jest to duża wiedza i duże doświadczenie, wyżej cenione w kulturach pierwotnych, w których mowa i obyczaje są łącznikami między pokoleniami a skarbnicą pamięci zbiorowej. Po trzecie, degradacja urody; czynnik ten odgrywa duże znaczenie we wszystkich kulturach, w których panuje kult piękna ludzkiego ciała. Po czwarte, poszerzanie się kręgów krewnych i powinowatych, co pomnaża wielość rodzinnych relacji człowieka starego. Po piąte, usunięcie się z czynnego życia zawodowego. „Każda kultura ma swój model starca i osądza starych ludzi według tego wzorca. Im bardziej model jest wyidealizowany, tym bardziej wymagające i okrutne jest społeczeństwo, i dopóki podejście to nie zostanie odwrócone, stary człowiek nie stanie się naprawdę pełnoprawnym członkiem grupy. Wszystkie bowiem znalezione [...] opisy stanowiły w istocie osąd; była w nich zawsze mowa o dobrym lub o złym starcu, mniej lub bardziej zbliżonym do ustalonego z góry ideału. Gdy punktem wyjścia stała się dla społeczeństw rzeczywistość, konkretna starość, a nie abstrakcyjny model, przekroczyły one ważny próg. Aby to mogło nastąpić, trzeba jednak było doczekać powstania nauk społecznych, psychologii i geriatrii; poznawać starych ludzi i dostosowywać społeczeństwo do ich potrzeb, a nie na odwrót; przyjąć do wiadomości, że stary człowiek ma swoje potrzeby, także i fizyczne, i umożliwić zaspokojenie tych potrzeb, a nie zarządzić, że starzec jest mędr-cem i zmuszać go do tego, aby nim został".
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Article 12PL: Sądownicza erozja swobód demokratycznych (przyczynek do filozofii prawa karnego)
EN: Judicial Erosion of Democracy (A Contribution to the Philosophy of Penal Law)
185-190

Bogusław Wolniewicz


Uniwersytet Warszawski Instytut Filozofii

In Western judiciary an alarming trend is on the rise to pass as purely legal verdict what in fact are covert acts of legislation. "Authoritative judiciary" - in this sense - does not ensure the due application of law and human rights protection. On the contrary, human rights are exposed to violations; especially the right to freedom of opinion and expression. A case in point is the recent decision of our Constitutional Tribunal to declare valid the moot article in The Penal Code pertaining to slander - and the coercive apologies it entails.
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Article 13PL: Kształtowanie się notariatu Drugiej Rzeczypospolitej (wybrane zagadnienia ustrojowe)
EN: The Shaping of the Notary Public's Office of the Second Republic (Selected Political Problems)
191-205

Tomasz Wojciech Woś


Wydział Prawa i Administracji UMCS Zakład Socjologii Prawa

The article shows the process of shaping of the notary public's office in Poland in 1918-1939, after a period of its differentiated legal status on the Polish territories at the end of the I World War. It discusses first attempts at creating a uniform notarial law and analyzes S.Gora's project and the so-called project of Malopolska houses. In the study special attention is focused on W. L. Jaworski's views related to the notary public's office organization. The article also discusses works on the notarial law project carried out by the Codification Commission and works on the project elaborated by the Ministry of Justice. The article shows basic political principles of law on the notary office on 27th October 1933, discussing the problems of definition and political position of the notary, the notary public's office organization, as well as problems connected with its supervision. These issues are of special importance for the contemporary model of the notary office in Poland, since the essential political solutions, worked out in the inter-war period served as instructions during legislative works on the law on the notary office of 14th February 1991.
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Volume 50-51 - 2003-2004

Article 01PL: Finanse sądów gminnych w Królestwie Polskim w latach 1876-1915
EN: Communal courts finances in the Polish Kingdom in the years 1876-1915
7-30

Arkadiusz Bereza


Katedra Państwa i Prawa

Communal courts initiated in the Polish Kingdom in 1876 were in the system of courts of common law the institution of peace administration of justice. The principle of the choice of the communal court staff as well as financing through collection of money by the tenants of the court district, gave them the attributes of a self-governing organ. Costs per person and chancellery costs were very low in the beginning. Russian authorities tried thereby to enlist cooperation of the local population for the new communal courts, since it is this population that incurred the costs of the courts' maintenance. Unfortunately, it had a negative effect also on their functioning. The problems related to the obtainment of financial means from local population causing serious disturbances in courts' activity, inclined the tsarism to reform the mechanism of financing communal courts. Since 1888, the direct collection made by commune inhabitants for the maintenance of the communal court was replaced by budgeting from the State Treasury. Taking advantage of specialized tax office, a number of fees were extracted (including court fees introduced in peace courts in 1882), which allowed to finance new, slightly higher since 1888 costs of the maintenance of communal courts.
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Article 02PL: Klasyfikacja przestępstw według nowego kodeksu karnego Ukrainy
EN: The classification of offences in the new Ukrainian Penal Code
31-44

Oksana Gorbata


Katedra Prawa Karnego

The development of Ukrainian penal law is strictly connected with the problem of the individualization of penal responsibility and of penalty in relation to the gravity of an offence. For the first time offences in the Ukrainian penal legislation are classified into four groups according to the degree of their gravity: there are petty offences, offences of medium gravity, grave offences and offences of exceptional gravity. The statutory classification of offences has been introduced on the basis of just one substantive criterion - the degree of gravity, while the type of social danger (social harmfulness) and guilt were not taken into account. This fact has caused a few misunderstandings and contradictions in the legal practice, which are analyzed by the author. The classification of offences in the Ukrainian Penal Code is of great significance: it designates many institutions of penal law, differentiates the scope of penal responsibility, influences the structure of sanctions in the articles of the special part of the penal code. The belonging of an offence to a given classification category is connected with many factors: the possibility of discharging from liability, the conditional release from serving the full sentence, the commutation from the remaining part of penalty to a less severe one, the use of amnesty and others.
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Article 03PL: Inicjatywa ludowa w sprawie przeprowadzenia ogólnokrajowego referendum wpływającego na ustawodawstwo (na przykładzie uregulowań szwajcarskich, włoskich i polskich)
EN: Popular initiative regarding carrying out nationwide referendum influencing legislation in selected European countries - Switzerland, Italy and Poland
45-73

Sabina Grabowska


Zakład Komparatystyki Prawniczej Wydział Prawa Uniwersytetu Rzeszowskiego

The article touches upon one of the forms of direct democracy, that is the institution of popular initiative concerning usual referendum. The initiative has been exemplified by three European countries, i.e. Switzerland, Italy and Poland. Usual referendum can be held only when the law to be voted by popular voting is the referendum law. In Switzerland and Italy it is the law which after being passed by the Parliament, but before its coming into effect, is subject to the referendum, the so-called popular veto. In Poland, the referendum law is understood as the law whose bill or text can be subject to a popular vote before its passing by the parliament. In the countries under discussion, the subjects entitled to move for popular initiative regarding usual nationwide referendum are citizens. The minimum number of signatures which is necessary for a proposal to be put forward in accordance with the law has been adjusted to the number of citizens in a given country. A number of people supporting the referendum proposal have their own representative or representatives who are obliged to coordinate matters connected with organizing popular initiative and representing it before the organs responsible for its admission. Depending on legislative regulations in individual countries the motion to carry out the referendum is put forward either by legislative authority (one of the houses of parliament) or executive authority (President). Each of the legislators treated the problem of matters connected with popular initiative differently: either in a detailed way (Switzerland), or quite casually (Poland), up to complete passing over this matter in the law regulating questions related to the popular initiative (Italy).
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Article 04PL: Zasada autonomii woli stron stosunków cywilnoprawnych na gruncie polskiego prawa podatkowego
EN: The will of parties to civil law relations in Polish tax law
75-86

Antoni Hanusz


Katedra Prawa Finansowego

Jedną z fundamentalnych reguł prawa cywilnego jest zasada autonomii woli stron stosunków cywilnoprawnych. Skuteczność dokonywanych w ramach tej zasady czynności cywilnoprawnych, oceniana na gruncie prawa podatkowego, zależy od wielu czynników. Dla oceny tej istotne jest przede wszystkim to, czy przepisy prawa podatkowego w konkretnym przypadku opierają się na pojęciach i instytucjach prawnych w znaczeniu nadawanym im w prawie cywilnym, czy też posługują się nimi w sposób właściwy wyłącznie dla stosunków prawnopodatkowych. Jednakże analiza prawna znaczenia treści czynności cywilnoprawnych na płaszczyźnie prawa podatkowego zawsze podporządkowana musi być zadaniom, jakie ustawodawca stawia regulacjom tej gałęzi prawa, nie zaś prawa cywilnego. Dość powszechnie przyjmuje się, że organy podatkowe mają prawo badać i oceniać treść bądź formę czynności cywilnoprawnych. Analiza ta powinna być z kolei dokonywana w zakresie wyznaczonym przez normy prawa podatkowego. Należy również pamiętać, że skutki określonych czynności cywilnoprawnych mają znaczenie dla organów podatkowych tylko wówczas, gdy są one objęte hipotezami norm prawnopodatkowych, a więc elementem danego prawnopodatkowego stanu faktycznego. Wydaje się jednak, że w obowiązujących przepisach regulujących postępowanie podatkowe brak jest wystarczających gwarancji przestrzegania przez organy podatkowe autonomii woli stron stosunków cywilnoprawnych. Obecna sytuacja prowadzić może w konsekwencji do ograniczania, a nawet eliminowania niektórych typów i rodzajów czynności cywilnoprawnych z obrotu gospodarczego. Dostatecznych gwarancji przestrzegania omawianej zasady udzielałoby natomiast z konieczności postępowanie przed sądem powszechnym, prowadzone w celu rozstrzygnięcia kwestii oceny rzeczywistego charakteru treści danego stosunku cywilnoprawnego jako zagadnienia wstępnego.
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Article 05PL: Podstawy mocy obowiązującej niemieckich pokojów ziemskich do połowy XIII wieku
DE: Grundsätze der Geltungskraft der deutschen Landfrieden bis zur Mitte des 13. Jahrhunderts
87-113

Marian Lech Klementowski


Zakład Historii Państwa i Prawa

Niemieckie pokoje ziemskie stanowią wynik współdziałania trzech elementów: zwierzchnich władz państwa bądź jego poszczególnych terytoriów, ówczesnej feudalnej grupy kierowniczej (książęta i inni możni), wyrażających consilium et consensus, oraz szerokich kręgów społeczeństwa. Konsensus feudalnej grupy kierowniczej był niezbędnym składnikiem i zarazem najważniejszą podstawą mocy obowiązującej pokojów ziemskich i innych aktów władczych panującego. Treść pokoju ziemskiego, ogłaszanego zwykle na zjeździe feudalnym (Hoftag) przybierała specyficzną formę prawną zaprzysię-ganąprzez układające się strony. Różny był walor tych przysiąg. Przysięga możnych była konsensusem, a zarazem stanowym przywilejem nil de nobis sine nobis. Przysięga szerokich kręgów społeczeństwa miała charakter tylko deklaratoryjny. Wynikało to z przymusu składania przysięgi, a także faktu, że składali ją również ludzie nie wolni. Szczególnym sposobem ogłaszania pokojów ziemskich były formy orzeczeń sądowych. Pokoje ziemskie, jako specyficzny twór prawny, łączyły w sobie zarówno elementy ustawowe, jak i umowne - w różnym stopniu, w zależności od konkretnej sytuacji politycznej. Stąd przewaga jednych (np. w pokojach ziemskich cesarza Fryderyka I z lat 1152, 1158 i 1186) stwarza pozory konstytucji cesarskich, wzorowanych na konstytucjach imperatorów rzymskich. Nasilenie elementów umownych w innych pokojach sprawia, że niektórzy uczeni (np. H. Holzhauer122) przypisują słynnemu pokojowi ziemskiemu Rzeszy cesarza Fryderyka II z 1235 roku tylko charakter umowny.
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Article 06PL: Suwerenność państwa w polskiej doktrynie prawa międzynarodowego
EN: State sovereignty in the Polish doctrine of international law
115-126

Roman Kwiecień


Zakład Prawa Międzynarodowego Publicznego

Artykuł analizuje rozumienie suwerenności państwa w polskiej nauce prawa międzynarodowego w kontekście następujących problemów: 1) definicji suwerenności państwa; 2) stosunku suwerenności do norm podstawowych prawa międzynarodowego; 3) ograniczeń suwerenności państwa; 4) wpływu procesów integracyjnych na suwerenność państwa. W nauce polskiej powszechny jest pogląd uznający suwerenność za konstytutywną cechę państwa. Ten wynikający z pozytywizmu prawniczego punkt widzenia wpływa na rozumienie roli suwerenności w prawie międzynarodowym. W nauce polskiej w szczególności ciągle podkreślane jest zasadnicze znaczenie suwerenności państwa dla systemu prawa międzynarodowego. Z drugiej jednak strony zauważalne jest odchodzenie od powszechnej niegdyś definicji suwerenności jako sumy wyłącznych kompetencji państwa na rzecz pojmowania jej jako pełnej zdolności do wykonywania funkcji państwowych. Dlatego też rzadko w polskiej nauce prawa międzynarodowego występuje pogląd o ograniczeniu suwerenności państwa na skutek członkostwa w Unii Europejskiej.
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Article 07PL: Norma prawa międzynarodowego a norma prawa krajowego
EN: The norm of international law versus the norm of domestic law
127-136

Bartosz Liżewski


Katedra Teorii i Filozofii Prawa

The main aim of the article is to carry out a legal-comparative analysis of the norms of domestic law and international law. To a larger extent the article shows the specific character of the norm of international law which, firstly, can be reconstructed from written and non-written sources of international law and secondly, can be applied at the level of international and domestic law. The article compares in a concise way the main characteristics of legal systems - international and domestic law, and shows the evolution of the subjective range (indication of an individual's being a carrier of international rights) as well as objective range of international law. It also enumerates the factors determining dissimilarities between the norm of international law and that of domestic law. A theoretical aspect of such a comparison leads to a practical conclusion showing the possibility of using the norm of international law in the State legal order. In this connection there was presented a construction of self-executing norms and optimum assumptions (the character of the source of law, its subjective and objective range) which enable using the norm of international law in the state legal order.
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Article 08PL: Skutki prawne zamknięcia rozprawy sądowej w procesie cywilnym - zarys problematyki
EN: Legal effects of closing the trial in the civil proceedings - an outline of problems
137-149

Piotr Osowy


Wyższa Szkoła Administracji i Zarządzania w Rzeszowie

The paper considers the problem regarding the meaning of legal effects of closing the trial in the civil process. The first part discusses the role and meaning of the civil proceedings for a proper recognition and deciding about the matter. Next, the author of the article proves that the trial, both in its static and dynamic form is at the same time an expression of fulfilling the principle of oral examination of cases by law courts, the principle of the equality of hearing of the parties and remarkably contributes to the gathering of materials connected with the case and plays a key role in striving for finding out the truth, which is undoubtedly one of the most important aims of the civil process. The examples given in the text and their systemic analysis enabled to verify a thesis that only the activity of both parties of the proceedings and of the third party, whose rights are involved in the proceedings, their care and abiding the dates of trial realization forced on by the law, leads to their creativity in the proceedings. Care about the parties' rights is currently forced on by the legislator through formalizing the principles that all the participants of civil proceedings have to keep to, which in turn influences the shaping of definite positive patterns of behaviour (the so-called „prozeßgestaltende Verhalten, die das Urteilsverfahren gestaltende Parteilhandlungen").
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Article 09PL: sada prawa do sądu w Konstytucji Rzeczypospolitej Polskiej i Konstytucji Federacji Rosyjskiej
EN: The principle of the right to a fair trial in the Constitution of the Polish Republic and the Constitution of Russian Federation
151-165

Sławomir Pilipiec


Zakład Socjologii Prawa

The article deals with a theoretical-legal analysis, which compares the functioning of the constitutional principle of the right to receive a fair trial in the Polish Republic and the Russian Federation. The article describes the right to a fair trial understood as the principle of law being an element of the democratic state of law, since the right to a fair trial is included in the catalogue of personal rights and every human (art. 45 of the Constitution of Polish Republic, art. 46 and 47 of the Constitution of Russian Federation) and is the first basic means of protection of infringed freedom and rights of man and citizen (art. 77, act 2 of the Polish Republic Constitution, art. 46 of Russian Federal Constitution). The paper contains theoretical deliberations defining the principle of the right to a trial in the Polish Republic Constitution and the Russian Federation Constitution. The contents of this principle was shown through an analysis of several inseparable elements forming it: the right to the access to the trial (real initiation of carrying out the procedure before the court that everyone is entitled to), the right to fair proceedings (the right to just, open and immediate legal proceedings), the right to judgement as well as the right to defence and to hearing out). The paper exposes the role of the state as the guarantor of the right to receive a fair trial and indicates the bodies of the judiciary, before which the right to the trial is realized, both in Poland and Russia. It was also stated that in the system of contemporary guarantees of obeying and protecting the rights and freedom of man in Poland and Russia an important role plays an international constituent, that is the right to turn to the European Tribunal of Human Rights (Poland and Russia) and the European Tribunal of Justice (Poland). The article stresses the fact that the principle of the right to the trial is an instrument of social order in the contemporary state and performs important social functions; it constitutes a legal instrument by means of which an individual can vindicate his rights.
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Article 10PL: Próba rekonstrukcji dyskusji nad normatywnymi uzasadnieniami hipotezy transplantacji głowy człowieka
EN: An attempt at reconstruction of the discussion of normative reasons of the hypothesis of man's head transplantation
167-187

Iwona Ramus-Szatko


Katedra Teorii Organizacji i Kierownictwa

Dr Robert J. White, aged 75, is Professor of Neurosurgery at the Case Western Reserve University in Cleveland, Ohio. He is the first surgeon in the world to surgically remove a monkey's brain from its skull and keep it alive by artificial means (1963). He is also the first to successfully transplant monkey heads. White is a member of many prestigious scientific organizations, among which is the Papal Scientific Academy. He has the project to transplant heads. The notion "the transplantation of head" is formulated for mediumistic needs rather than scientific ones. A more suitable notion would be "the grafting of the body".
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Article 11PL: Dyskusja nad projektem ustawy o partiach politycznych na Białorusi
EN: Discussion of the project of the law about political parties in the Republic of Belarus
189-201

Jacek Sobczak


Katedra Prawa Konstytucyjnego

The formation of the party system in the Republic of Belarus has met different political and legal obstacles since this state regained its independence. Although the Bela-russian Constitution of 1994 brought into existence the principle of political pluralism, the status of political parties was determined by an act - the Law on political parties of 1994, and above all, by the political system practice resulting from non-democratic methods of exercising power by Alexander Lukaszenko. An insignificant meaning of the party in the state system of Belarus caused that research centers being only recently in opposition to the President's rules have recently initiated the discussion of the new status of political parties. Such a meaning has, presented for a wider discussion, the project of the law relative to political parties prepared by the Belarussian Centre of Constitutionalism and Comparative Studies. The analysed project, taking into account the constitutional, practical and social realities of Belarus, much wider than it was assumed by the hitherto regulation takes into account the principle of the freedom of forming and acting of new political parties as well as the principles of democracy, independence, law and order, openness and equality. The project of the law assumes the registration system of forming parties. Although the court is not the registration body (the Ministry of Justice), the parties and their laws are subject to wide protection. The authors of the project have proposed a number of guarantees of separating the parties from the State. The project also assumes full freedom of joining or leaving a party, a ban on financing parties from State budget and the control of the Supreme Court over strictly determined in the act cases of banning of political parties.
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Article 12PL: Preambuła do Konstytucji RP z 2 kwietnia 1997 roku w orzecznictwie Trybunału Konstytucyjnego
EN: The Preamble to the Constitution of the Polish Republic of 2nd April 1997 in the judicature of the Constitutional Tribunal
203-223

Małgorzata Stefaniuk


Zakład Socjologii Prawa

The paper analyses the judicature of the Polish Constitutional Tribunal, referring to the Preamble to the Constitution of the Polish Republic of 2nd April 1997. Applicants, participants in legal proceedings as well as the Tribunal referred to it while stating the grounds for their decisions. Specially often referred to was the principle of being auxiliary, especially in the matters concerning the legal and actual situation of the territorial self-government. The principles of social dialogue, justice, the need for cooperation with all countries for the good of the Human Family, ensuring reliability and efficiency in the work of public bodies were also referred to. A fragment of the Preamble also served to determine the dividing line (with regard to time) between the epoch in which "fundamental freedoms and human rights were violated in our Homeland" and the moment when building up of the democratic state ruled by law became possible. The judicature of the Constitutional Tribunal confirms the presence of the afore-mentioned principles of the political system of the Third Republic, which is specially important with reference to the principles which were absent in the text of the Constitution. The Constitutional Tribunal contributes with its judicature to the popularization and orientation of these principles.
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Article 13PL: Próba określenia przedmiotu etyki adwokata
EN: An attempt at describing the subject of barrister's ethics
225-252

Roman Tokarczyk


Katedra Teorii Organizacji i Kierownictwa

The subject of ethics of a barrister is described, above all, by moral norms applied to the members of the Bar in the cases in which legal norms do not show clear norms of proceeding. The subject of the barrister's ethics results from applying the norms of general morality with regard to a barrister's profession. However, even where law regulates the barrister's proceedings, the range of ethics is extended, as he has to obey both the norms of the law being in accordance with morality, and the moral norms themselves. The legal profession is the manifestation of free humanistic profession, in which there is a place for good law, protection of human rights, professional ethics and presentation of universal values. The meaning of the barrister's ethics results mainly from a great social importance of the barrister's profession. Besides the services paid by civil servants and notaries, barrister's services are the most needed among the clients. Dealing with many legal matters the barrister can, to a large extent, co-create in society proper conditions for existence of law and order and morality and contribute to maintenance of high level of prestige legal professions. Prestige, however, is determined not so much by barristers as by their clients, that is society. Certainly, the norms of barrister's ethics do not contain ready recipes for all varied, fully unpredictable life situations. They fulfil, however, a certain role, if at least they point to the presence and meaning of morality in shaping culture related to law and lawyers, as the basis for estimation of barristers behaviour. The subject of barrister's ethics also included sets of practical advices for these lawyers. For example, the members of the Bar some time ago had to: 1) listen to the opponent carefully; 2) consider in detail everything that has been said; 3) answer in accordance with the results of considerations; 4) briefly state the charges. These pieces of advice are applied to those who make use of the achievements of rhetorics and eristic.
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Article 14PL: Rozważania nad pojęciem ekstremizmu
EN: Deliberations on the notion of extremism
253-280

Roman Tokarczyk


Katedra Teorii Organizacji i Kierownictwa

The paper aims at synthetic presentation of the most important elements making up the issues related to extremism in general, with particular attention paid to theoretical and practical essence of contemporary political extremism. With such research assumption the issues related to notions, definitions, sources, estimations, as well as typological, methodological, comparative and creative problems come to the fore. The scientific literature devoted to political extremism, despite its great volume, disappoints with very modest results of research. Extremism, that is, a synthetic cross section of the essence of all forms of extremism only sometimes becomes the subject of research. It may result from the fact that the studies in this field have been dominated by the interest in political extremism mainly, which added to them the cognitive character, incapable of grasping the complex phenomenon pervading the whole social reality, which extremism is in its different forms. Multidimensional, systematic analysis of extremism requires defining and typology of its forms, elucidating their connections, showing differences, similarities and identities. However, even the results of studies of political extremism cannot impress, since they mostly consist in the statement that extremism is antidemocratic, dogmatic, funda-mentalistic, repressive, terroristic, etc., so the results of the studies point to the characteristics assumed at the very beginning of these studies. Attempts at striving for cognitive multidimensionality meet with basic difficulty connected with constructing the conception adequate to it. Normative interpretation of political extremism, reducing its deepest sense to the extreme forms of opposition to the democratic state of law, reveals many doubts, but still, it does not elucidate them. New questions thus arise. Is there a substantive connection between aims and methods? Do non-democratic means that extremism reaches for, have to be connected with non-democratic aims? Maybe, there are democratic aims, which are, or even should be reached with the use of non-democratic means. And perhaps there are democratic aims which are or even should be attained by non-democratic means. Do all the groups, defined as extremist, strive for non-democratic aims, or do they use only non-democratic means? Does the aim become non-democratic, because it has to be attained by non-democratic means? These questions await well-founded answers. Philosophical interpretations of extremism help understand the contemporary political extremism, both rightist and leftist. Significant results of studies refer to the contemporary rightist extremism, but they are unsatisfactory, with regard to elucidating the contemporary leftist extremism, which results, first of all, from a significant transportation of thoughts, movements, parties, states and means of operating, described together as leftist extremism, after the collapse of the socialist system. Clear separation of what is anarchistic, communist, socialist, socialdemocratic, autonomic, or related to protest, anti-establishment and terrorism should be regarded as a great research success.
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