- Details
- Written by Wojciech Potocki
- Category: Archive
Number 6
Prof. Andrzej Bałandynowicz - Victims of crime against the natural home
Abstract
For such a rich issue as economic crime, including crime against the natural home, it is not enough just to adapt various theoretical constructs, a confrontation of diverse interpretations of the phenomenon is also required. The fundamental issues to be investigated are: a) the causes and ways of establishing laws, b) the causes and ways of violating them, c) the scope and overlapping areas of activity of justice and control authorities. At the heart of these three issues is the question of authority – legitimacy for the legislature, for the people involved in the economy and for the actions of coercive bodies. As the world faces a growing threat of climatic change, more and more people are becoming victims of crimes against the natural home. The author points to children and adolescents as the groups most at risk of such crime.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/2028-consilium-iuridicum-nr-6-2023.html
Prof. Wojciech Radecki - The liability for offences against the environment under the international and union law (part 1)
Abstract
The subject of this reviewing article in its first part is the presentation of considerations of Czech authoress Tereza Fabšíková published in the monograph on criminal law’s instruments of environmental protection in chapters comprised the international and union environmental law. This presentation is supplemented by own thinking over of reviewer and opinions of other authors, with references to issues discussed in the monograph.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/2028-consilium-iuridicum-nr-6-2023.html
Prof. Grzegorz Maroń - Judicial assessment of the sincerity of religious beliefs
Abstract
The article deals with the issue of admissibility, legitimacy and, above all, criteria for judicial assessment of the sincerity of religious beliefs of a party to the proceedings, e.g. a conscript refusing to perform military service on the grounds of religious conscientious objection, a prisoner demanding a diet consistent with his declared religion, or a person applying for refugee status due to religious persecution. Firstly, it was pointed out that the fact that the state, society, and third parties bear the costs of accommodating claims falsely based on religious freedom justifies the need to verify the sincerity of the believer in doubtful cases. Secondly, it was pointed out that the assessment of whether a person actually holds certain religious beliefs is different from the unacceptable – because it violates the requirement of religious neutrality of the state – judicial assessment of the truth (truthfulness) of these beliefs. Thirdly, several determinants of sincerity were analysed, such as the compliance of the believer's beliefs with his conduct, possession of appropriate religious knowledge, readiness to bear certain burdens in exchange for the possibility of not betraying his faith, or the lack of ulterior non-religious motives for invoking religious freedom. The author, defending the possibility of assessing the sincerity of religious beliefs by the judiciary, at the same time advocates that the courts should make this assessment contextually, and, as part of a certain restraint, resolve irremovable doubts in favor of the believer.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/2028-consilium-iuridicum-nr-6-2023.html
Judge Edyta Dzielińska, Legal Counsil Anna Stasiak – Criminal liability of board members of capital companies stated in the Bankruptcy Law and the Restructuring Law
Abstract
The article covers the issue of criminal liability of natural persons who are members of the management bodies of capital companies under the Polish insolvency law system. The aim of the authors was to present the scope of duties incumbent on members of the management board, resulting from the provisions of the Bankruptcy Law and the Restructuring Law, the violation of which may constitute the criteria of offences described in these legal acts. The study also includes considerations regarding the reasons for the legislator's penalization of specific behaviors of managing entities, by indicating goods that require special protection in the event of insolvency or threat of insolvency of a capital company.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/2028-consilium-iuridicum-nr-6-2023.html
Judge Igor Zduński, Lawyer Katarzyna Bakuła - Concepts of the liability of members of the board of directors of a limited liability company in light of Article 299 of the Code of Commercial Companies
Abstract
The article presents the most important divergences of doctrine and judicature concerning the liability of members of the management board of a limited liability company under Article 299 of the Code of Commercial Companies. The liability of members of the board of directors of a limited liability company for its obligations is undoubtedly one of the most frequent subjects of consideration in the jurisprudence of the Supreme Court. The diversity of jurisprudence with regard to the nature of liability does not allow to resolve the existing dispute in the doctrine.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/2028-consilium-iuridicum-nr-6-2023.html
Prosecutor Robert Kucharski - Judiciary of the Duchy of Warsaw – the foundations of the modern judiciary
Abstract
The fall of the Commonwealth of Nobles as a result of internal political decay and the agent interference of neighboring countries was associated with the end of an era in the functioning of the judiciary in Poland. „Ancient” institutions had to give way to new ones. These, in turn, were brought by Napoleon and his modern codification. Their reception in Poland was a huge change both in social awareness and in the functioning of judicial institutions. In the content of the article in question, an attempt will be made to briefly discuss the changes that occurred with the creation of the Duchy of Warsaw and the reception of Napoleonic regulations in the Polish judiciary. The scope of changes covered the entire judiciary, however, due to their extensiveness, this study will only discuss the order of judicial authorities, excluding the Prosecutor's Office. The introduction of new courts was associated with the liquidation of noble institutions as obsolete, and never really introduced uniformly in Poland. This study covers the issues of the legal and systemic basis for the functioning of the courts of the Duchy of Warsaw and their respective structure, with emphasis on the institution of the Court of Cassation.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/2028-consilium-iuridicum-nr-6-2023.html
- Details
- Written by Wojciech Potocki
- Category: Archive
Prof. Andrzej Bałandynowicz: Individual-collectivist attitudes toward
environmental crime
Abstract
Rapidly progressing and uncontrolled economic and civilization development has consequently led to a situation where irreversible changes are occurring in the natural environment, posing a real threat to human life and health.
There is a growing awareness that human interference significantly interferes with the self-regulatory capabilities of nature, and to prevent catastrophic environmental degradation, it is necessary to create and apply normative solutions that enforce human behavior aimed at respecting the surrounding nature.
Full text in Polish – https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/1925-consilium-iuridicum-nr-5-2023.html
Irena Bochniak: Functioning and management of the land and mortgage register department (selected issues) – specificity of a department operating in a large city
Abstract
The land and mortgage register division is one of the divisions of the district court, but it has its own specificity which distinguishes it from other court divisions. This specificity results from the types of cases examined and their number. Due to this specificity, there are also problems related to the management of such a division, unknown in other court divisions. Additional faculty management problems arise in the case of large departments covering areas of large cities. The article presents selected problems and an attempt to solve them in practice, as well as the special role of the head of the division and the president of the court in finding and applying appropriate solutions for the efficient work of the land and mortgage register division.
Full text in Polish – https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/1925-consilium-iuridicum-nr-5-2023.html
Prof. Joanna Haberko: Conflict resolution between family members and child welfare
Abstract
The subject of the article is an important contemporary issue, from the perspective of law, but also from the perspective of broadly understood social sciences (pedagogy, psychology), of taking into account the welfare of a child in the event of a conflict between family members. The author shows the instruments developed by the legal system to protect the interests of individual family members, in particular the interests of a minor in case of conflict. The considerations cover the material and legal bases for the settlement of conflict situations between family members, with particular emphasis on the implementation of the postulate of the child's welfare at each stage of the proceedings and regardless of the personal situation of the child's parents.
Full text in Polish – https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/1925-consilium-iuridicum-nr-5-2023.html
Anna Dziergawka PhD: Compensation liability of parents for the child
Abstract
This paper covers issues related to the problem of parents' civil liability for damage caused by their child. The considerations take into account the responsibility of parents in the context of their exercise of parental authority. The author treated the subject comprehensively and interdisciplinary, analyzing legal regulations in four areas of law, i.e. misdemeanor law, family law, civil law and the act on supporting and social rehabilitation of minors. In the summary, de lege lata conclusions and de lege ferenda conclusions were formulated, which aim to propose favorable solutions for the practice of applying the law, taking into account the social dimension of the discussed issue.
Full text in Polish – https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/1925-consilium-iuridicum-nr-5-2023.html
Adam Jaworski: Abolition of co-ownership by division of the real estate in the conciliation proceedings
Abstract
The scope of the paper explains the admissibility of conciliation proceedings in the case concerning abolition of co-ownership. Each of the co-owners may require that the abolition of joint ownership takes place by a breakdown of the joint-ownership. In general, such a case can be closed by a friendly settlement in the so-called conciliation proceedings. However, the admissibility of the settlement is restricted by requirements provided by the (Real) Property Management Act and Act on/concerning Ownership/Proprietorship of Premises.
Full text in Polish – https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/1925-consilium-iuridicum-nr-5-2023.html
Robert Seweryn: The issue of transferring a judge without his consent to another court division as a result of allocation of tasks
Abstract
The article discusses the issue of transferring a judge to another court division without his consent. The author debates on the status of a judge as an employee, as well as on the procedure and conditions of transferring a judge to another court division without his consent.
Full text in Polish – https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/1925-consilium-iuridicum-nr-5-2023.html
Robert Kucharski: Crown Tribunal: the nobility's highest court
Abstract
The creation of the supreme court during the First Republic of Poland, which was the Crown Tribunal, was an important step in modernizing the system of justice. The introduction of the institution of appeal and other related institutions to the court procedure, enabling appeals against a judgment, was associated with a natural limitation of the monarch's prerogatives in such a state of affairs. The king as sovereign always issued a final judgment, from which no appeal was possible. The need to consider an appeal against a first instance decision necessitated the establishment of a supreme judicial authority. The Crown Tribunal has written a great page in the history of the Polish judiciary based on original and interesting legal and practical solutions. This study will present the genesis, functioning and influence of the Crown Tribunal on the development and functioning of the judiciary bodies of the Republic of Nobility in the period from the 16th to the 18th century.
Full text in Polish – https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/1925-consilium-iuridicum-nr-5-2023.html
- Details
- Written by Wojciech Potocki
- Category: Archive
Jakob Maziarz PhD - The social factor in the history of the Polish judiciary: jury courts, magistrates, jurors since the unification of the judiciary (until 1929)
Abstract
The issue of the participation of the social factor in the administration of justice has definitely experienced a renaissance in recent years. Only a dozen or so years ago it seemed that the only acceptable form of citizens' participation in the judiciary was lay judges, now the possibility of restoring the institution of justices of the peace is seriously considered. In the history of the judiciary in Poland, in different periods and in different areas, basically all forms of public participation in the administration of justice were known; in addition to those mentioned above, also courts of assizes and direct election of judges by the citizens. The article concerns the participation of the social factor in the judiciary until its unification on the basis of the Act – Law on the System of Common Courts of 1928, but focuses more on the reasons for the introduction of the social factor as such and its various varieties. As a side note, the author leaves detailed factual findings regarding the nature of non-professional courts in particular epochs (as these have recently been the subject of at least several studies).
Full text in Polish – https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/1877-1-2023.html
Bartłomiej Migda - The social factor in the history of the Polish judiciary: jury courts, magistrates, jurors since the unification of the judiciary (since 1929)
Abstract
The subject of the study is the presentation of the occurrence of the social factor in the administration of justice in the law of the Second Republic after the unification of the judiciary and after World War II. The forms of this participation and knotty issues related to it are discussed. The issues are presented in three levels. The first normative – takes a closer look at the legal solutions related to the participation of the civic factor in the administration of justice. The second dogmatic – brings closer, to the necessary extent, the views of science and projects. The third practical – brings closer the functioning (or lack of) normative solutions. The indicated dimensions interpenetrate each other, and therefore their strict separation is not possible.
Full text in Polish – https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/1877-1-2023.html
Prof. Piotr Juchacz - Development of the European movement of associations of social judges
Abstract
The article starts with analysing citizen participation in the administration of justice as a fundamental principle of a democratic rule of law and a fundamental political right of citizens. Afterwards, the four phases of the development of associations of lay judges in Europe (1920–2022) are presented, followed by the history of the establishment and development of the European Network of Associations of Lay Judges (ENALJ) from 2012–2022, as well as the primary goals and activities undertaken by the association. The next part of the article presents two selected postulates formulated by the community of lay judges in Europe: the participation of one representative of lay judges in national judicial councils and the reform of the training system for lay judges. Each of the postulates is referred to the context of the Polish judiciary. In conclusion, the cooperation of European associations of lay judges is analysed in the context of the challenges, threats, but also expectations facing it.
Full text in Polish – https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/1877-1-2023.html
Prof. Dariusz Dudek - Magistrates in presidential bill
Abstract
The subject of the study is the draft Act on the Courts of the Peace introduced by the President of the Republic of Poland on November 4, 2021, which is currently (along with other drafts on the same subject) the subject of legislative works in the Sejm. At the beginning, the author discusses the concept presented by the Ministry of Justice, based on the premise of the need for a prior amendment to the Constitution as a condition for the legal appointment of courts (judges) of the peace; the author presents a different view. The analysis of the presidential project is made through the prism of not only the regulation, but also its justification, showing the ratio legis of establishing the judiciary of the peace and the essence of the proposed solution, based on the fulfillment of binding constitutional standards, regarding the judiciary. It characterizes in more detail the model of universal elections and subsequent appointment of justices of the peace (by the President at the request of the National Council of the Judiciary) and the essential features of the status of these judges, including their rights and duties, or the cognition area (votum). In addition, it shows the financial effects of the proposed regulation for the state budget expected by the applicant and the assumed positive social effects. In conclusion, recalling the basic assumptions of the President's project, the author estimates that if the concept of establishing courts and appointing justices of the peace has a chance of success in the legislative procedure in the parliament, then it may then bring a new social value to the functioning of the Polish judiciary in constitutional practice.
Full text in Polish – https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/1877-1-2023.html
prof. Andrzej Bałandynowicz - Magistrates in presidential bill – an ontological-gnoseological thinking perspective using the method of idealization
Abstract
The subject of the study is the presidential draft Act on the Courts of the Peace, currently undergoing legislative work in the Sejm. The author supports the presidential draft, arguing that it is evidence of the realization of the ideal of justice on the subsoil of naturalistic normative essentialism and constitutes for the judicial system the principle of equipotentiality (equality) and is a model of humanistic-interpretive thinking.
Full text in Polish – https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2023/1877-1-2023.html
