Table of contents
Dagmara Pawełczyk-Woicka, judge, Chairman of the National Council of the Judiciary – Foreword
THEORETICA
prof. Andrzej Bałandynowicz - Environmental crime - risk areas
Abstract
For such a rich issue as economic crime, including environmental crime, it is not enough to simply adapt different theoretical constructs; a confrontation of the diverse interpretations of the phenomenon is also required. The fundamental issues to be studied are: a) the reasons and ways in which laws are established, b) the reasons and ways in which they are violated, c) the scope and overlapping areas of activity of the justice and control authorities. At the heart of these three issues is the question of authority – legitimacy for the legislature, for the people associated with the economy and for the actions of coercive bodies. Since the origins of the Old and New Testaments, there have been no more acceptable legitimising principles for the power of individuals and institutions than those which, when used, the authority must justify their existence by the consent of the majority. More recently, according to a study by L. Harris, the American public expects businesses to eliminate crises and unemployment, control air and water pollution, participate in urban redevelopment, stimulate worker development, eliminate poverty and disease, and eliminate racial discrimination. However, public opinion is only an argument, and sometimes an alibi. We must recognise that views on the validity of the law vary widely among authors who are consensualists, pluralists or who view society from a neo-Marxist perspective. Whatever the theoretical alternative for analysis, the study of primary criminalisation processes in the field of environmental crime needs priorities. valuating the functioning of the justice system in the field of environmental crime reduction shows a relativity to criminal-legal interventions, which results in the choice of not necessarily criminal ways of resolving conflicts. On the other hand, the interactions, or lack thereof, between control bodies and the justice system can shape the object of priority research efforts; they extend both in time and in space. Historical research, such as Jean Claude Waquet's study of corruption in Florence in the 17th and 18th centuries, helps us to understand society as a whole, as well as the functions and perceptions of corruption or other economic crimes.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2022.html
Prof. Mariusz Muszyński, jugde of the Constitutional Tribunal - The Constitution of the Republic of Poland and international law - a dispute over primacy in a pluralistic legal order
Abstract
The relationship between international law and domestic law has for many years been ordered on the basis of two opposing constructs: the dualistic and the monistic. The former, in fact, required the political consent of the State to perform an international obligation, while the latter wished to eliminate this will altogether. Today, the idea has emerged to reject the hierarchical approach and to place an unequivocal emphasis on the primacy – at least when fundamental contradictions between international and domestic law arise – of national constitutions. Constitutional tribunals are to be the body to control these conflicts and to block the possible effects of international commitments in conflict with the constitution. Such conceptual changes are perfectly suited to the construction of the Polish Constitution and the constitutional position of the Polish Constitutional Tribunal. The activity of the Constitutional Tribunal in this area will strengthen the legitimacy of international law and mitigate the potential rejection of an international obligation. After all, it is one thing to reject an obligation for political reasons, and another to refuse to implement it justified by the Constitutional Court's finding of the unconstitutionality of an international norm.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2022.html
dr Anna Dziergawka PhD, judge - Decision noise in the judicial application of the law
Abstract
This paper covers issues related to the problem of decision noise in the judicial application of the law. The considerations contained therein mainly concern the threats related to the variety of penalties imposed and the search for ways to reduce the risk of arbitrary decisions. This paper also presents the difficulties that may arise in the case of an attempt to reconcile the uniformity of the application of the law and discretion in the discretionary power of the judge. In addition, the author proposed ways to improve human judgments, rejecting the possibility of replacing them by artificial intelligence.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2022.html
Daria Danecka PhD, Polish Academy of Science, prof. Wojciech Radecki, Polish Academy of Science - Environmental inspections in Polish, Czech and Slovak law
Abstract
The subject of the article is the issue of the establishment, legal nature, organizational structure and competences of specialized bodies under the name of environmental protection inspections or environmental inspections in Poland, the Czech Republic and Slovakia. A look at the competences of these bodies covers not only the legal acts establishing them, but also selected legal acts constituting the core of the environmental law of these three countries: the basic acts on environmental protection, the act on waste and the act on nature protection.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2022.html
PRACTICA
prof. Romuald Kmiecik - Private expert opinion after the amendment of Article 393 § 3 of the Code of Criminal Procedure (in connection with the Supreme Court decision)
Abstract
The amendment of the provision of Article 393 § 3 of the Code of Criminal Procedure. has extended the scope of admissibility of private documents without excluding written expert opinions performed on behalf of parties such as the accused, the auxiliary prosecutor, the private prosecutor and the wronged party. Meanwhile, the Supreme Court questions the admissibility of such private documents as fate evidence, as if there had been no significant amendment to the above-mentioned provision. The article presents a different position on this issue by pointing out the evidentiary significance of a private expert opinion as documentary evidence.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2022.html
Grzegorz Ocieczek PhD, assosiate professor at the Faculty of Law and Administration at the Cardinal Wyszynski University in Warsaw - Fighting Corruption Crime in Poland.Selected legal aspects with special reference to the role of the Public Prosecutor's Office
Abstract
This article aims to signal issues concerning the fight against corruption in our country. Particular attention has been paid to the role and tasks of the Public Prosecutor's Office in this regard and, in particular, to the role of the Department for Organised Crime and Corruption and its local divisions following the 2016 reform of the Public Prosecutor's Office. Particular attention has been paid to statistical results on corruption crime that have not been published so far and to issues related to the duration of such investigations.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2022.html
Paweł Opitek PhD, prosecutor - Legal qualification and the description of forbidden acts regarding inform ation and communications technology crimes (chosen issues)
Abstract
The article presents chosen issues regarding legal qualification information and communications technology crimes, that is punishable acts committed when using information and communications technology systems. In the beginning, the author presents the range of research done. This serves as basis for formulating particular thesis and conclusions. The first two chapters regard mistakes made by trial bodies in the description of the crime and its legal qualification. What follows next is marking borderlines between the appearances of Article 267 § 1 of the Criminal Code and Article 267 § 2 of the Criminal Code. The fifth chapter of the article is devoted to the culture of legal language in passing trial decisions. The paper ends with a summary of the undertaken topic.
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prof. Zbigniew R. Kmiecik, Faculty Of Law And Administration, The Maria Curie-Skłodowska University in Lublin - The boundaries, existence andidentity of an administrative matter
Abstract
The identity of an administrative matter disposed of in the form of an administrative decision is an important issue that should be taken into account by both the authorities conducting he proceedings in the first instance and the authorities conducing the appeal proceedings. The principle of deciding within the boundaries of the matter requires that the authority of first instance should not decide on issues that go beyond the boundaries of the matter. The elements that determine the boundaries of a matter vary over time; therefore, in order to determine the boundaries of the matter, we must know when it arose. On the other hand, the cessation of an existing matter (including the cessa tion of it as a result of its transformation into a new one) renders the proceedings to which it was the subject groundless. The principle of two-instance proceedings requires that the appeal authority decides in the same matter as the authority of first instance. Thus, the question arises about the boundaries of the administrative matter, he moment of its creation and the elements whose change leads to the creation of a new matter, ending the existence of the existing one, and those whose replacement does not affect the identity of a matter.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2022.html
Marcin Śliwka PhD, Anita Gałęska-Śliwka PhD, The Nicolaus Copernicus University in Toruń - Practices violating collective patient rights in the jurisprudence of administrative courts
Abstract
The Act on Patients' Rights and the Patient's Rights Ombudsman was passed on November 6, 2008. At that time, one of the significant novelties was the provisions on conducting proceedings in cases of practices violating so called collective patient’s rights. The new regulations, at the time of their enactment, became the subject of interesting doctrinal disputes. In recent years, we have also observed the development of the jurisprudence of administrative courts examining complaints against decisions issued by the Ombudsman for Patients' Rights. The purpose of this paper is to discuss the current state of administrative courts jurisprudenc.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2022.html
prof. Robert Stefanicki,
Faculty of Law, Administration and Economics University of Wrocław - Public interest litigation in the light of jurisprudence of Indian courts
Abstract
Public interest is a directive of conduct prescribing the protection of values common to society. There is an important issue of the limits of individual autonomy. From this point of view, references to the 'world's largest democracy' are included, as this article deals with the Indian public's desire to ensure that the country develops in a democratic direction, guaranteeing social justice, equality and freedom to its citizens. The historical remnants of drastic economic, social and cultural differences still make themselves known. One important instrument, constitutionally guaranteed, is the institution of a public interest complaint, entitling any individual whose rights and freedoms have been violated or infringed to approach the Supreme Court of India or the state courts for redress of grievances. Indian jurisprudence is characterised by a high degree of axiological activity in bridging social disparities, which seems interesting from our national perspective.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2022.html
VARIA
Robert Kucharski, prosecutor - Genesis of the Polish courts
Abstract
The pedigree of judicial institutions in Poland goes back far back in to tribal times. This paper is an attempt to synthetically outline the in stitutions of the justice system in Poland during the feudal period and during the Piast Monarchy. The development of judicial institutions that developed in The Kingdom of Poland will be presented, taking in to account the specific social and political system for the formation of their practice, organization and system principles. It is in the institutions and practice of The Piast Dynasty Poland and then of the Noble Republic that we should look for from the origins of the concepts and judicial institutions that we know these days. The article discusses the formation of courts in the tribal and ancestral times, i.e. before the formal establishment of the Polish State and in the Piast period, which were the beginning of the Polish judiciary. The activity of King Casimir the Great is particularly important, as he initiated full legislative activity, which later became the foundation of the judiciary of the First Republic period.
Full text in polish - https://krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2022.html
