Roczniki Wydziału Nauk Prawnych i Ekonomicznych KUL

The principle of separation and balance of powers in Polish constitutional law: A historical view

Piotr Wiśniewski — Wed, 26 Aug 2020 11:58:32 +0200

In the 18^th century, the doctrine of separation of powers was established as a remedy for tyranny. The reception of the principle of separation and balance of powers in Poland was very fast, relative to its formulation. This happened together with the establishment of the Third of May Constitution. The Second Republic of Poland had two constitutions, apart from provisional acts of constitutional rank. The first, March Constitution directly referred to the principle of separation of powers. The other, April Constitution was a contradiction of the former. The political system of the PRL was without any doubt a totalitarian one. The Third Republic of Poland returned to a system based on the separation of powers, especially in the period when it regained full sovereignty and it quickly returned to building its political system based on this very principle.

Whether the Church Court is Other Court of Justice or with Institution in the Understanding Art. 44 Acts – Law on the System of Common Courts?

Marzena Andrzejewska, Maciej Andrzejewski — Wed, 26 Aug 2020 11:59:57 +0200

In this article we addressed the issue of the political position of the church court and its status in law of the state in particular, in the context of Art. 44 of the Law on Common Courts. In other words, the question rises whether the ecclesiastical court is a court or another authority within the meaning of the Act, and if not, what is its position in the political system? Additionally, this article addresses the issues of the access of the ecclesiastical court to documents covered by professional confidentiality, in particular by medical secrecy. There are also comments made about the range of possible judicial cooperation between the church and state in a position of de lege lata and de lege ferenda proposals.

Limitation in the Scope of Freedom of Shaping the Content of the Contractual Employment Relationship

Beata Stanibuła — Wed, 26 Aug 2020 12:00:21 +0200

Shaping the contents of the employment relationship (establishing the conditions of work and pay), according to Art. 11 of the Labor Code is based on the principle of freedom of decision and requires unanimous declarations of the will from both the employee and the employer. This happens on two planes. Firstly, it happens at the stage of concluding the employment relationship, being the effect of negotiations conducted by the parties in order to form a legal bond (this is an obvious question in so far as the parties do not conclude an abstract employment relationship, but one whose content is established in advance). Secondly, a change in the originally established content frequently happens in the course of realization of the employment relationship. At this stage modifications may be made basically in two directions, namely, to the advantage of the employee, or to his disadvantage. They are connected with the duty to respect relevant legal regulations. The aim of the article is to indicate the causes of modifications in the originally established content of the employment relationship and to evaluate the rules of conduct that are defined in the regulations, that set the limits of freedom of the parties in deciding about the shape of the employment contract that binds them.

The Issue of the Employees Improving Professional Qualifications – The Evolution of Changes Remarks Against the Background of the Binding Regulation and the Previous One

Beata Stanibuła — Wed, 26 Aug 2020 12:00:46 +0200

The article contains a discussion of the legal regulation concerning the issue of employees improving qualifications, taking into consideration the changes made in this field in connection with the judgment by the Constitutional Tribunal in its decision of 31 March 2009 saying that Art. 103 § 1 of the Labor Code is unconstitutional. The regulation was the basis (authorization) for passing a law regulating in detail the duties of the employers and the employees connected with making it easier for them to improve professional qualifications. The conducted discussion is an attempt to answer the questions: is the legal character of the duty to make it easier for employees to improve qualifications an authorization to maintain it as a basic rule of the Labor Code; does the shape of the present regulation sufficiently supply employees with the right conditions for their personal intellectual development; is there a need for further changes, and if so, which direction should they go in.

Civil law contracts at school – an outline

Adam Balicki — Wed, 26 Aug 2020 12:01:12 +0200

The article concerns various civil law contracts and employment relationships that can be concluded in Polish schools. The author points to the regulations of the Teachers’ Charter and other legal acts that refer to this matter. The competences of a school head are also outlined in the article. Subjects authorised to enter into contracts on behalf of schools are mainly school running bodies but in real life school circumstances, it is the school head that is authorised to enter into such contracts.

Religious symbol at schools as an expression of religious liberty

Marek Bielecki — Wed, 26 Aug 2020 12:01:42 +0200

The present article investigates the issue of religious symbols as an expression of the religious liberty at Polish schools. The essential condition for the conclusions drawn was the judgement of the European Court of Human Rights from November 3^rd, 2009. The court stated that the presence of a crucifix at Italian schools is the violation of the parental right to educate their children according to their beliefs. The author of the article refers to the particular matters of the judgement of ECHR examining them with reference to current Polish legal regulations.

The economic law in the Ukraine – pragmatic aspects of economic activity. Part I

Jarosław Bubiło — Wed, 26 Aug 2020 12:02:09 +0200

The article presents the specific nature of the economic law of Ukraine, in particular the laws concerning commercial companies. The author delineates the modern day economic legislation of Ukraine, characterizes respective organizational-legal forms of conducting economic activity, including those which are considered most optimal for foreign investors and which operate also in cooperation with Ukrainian entrepreneurs. Additionally, the organizational-legal regulations on obligatory state registration of economic enterprises are analyzed in detail. A separate portion of the article is devoted to selected aspects of Ukrainian tax law, employment laws, and residency laws, acknowledging also the dangers awaiting foreign investors, among others the pressing problem of “corporate raiding” i.e. illegal and hostile takeovers of the functioning companies, and the helplessness of the juristic system when it comes to protection of enterprises in the Ukraine. The scope of the article does not allow a broader view on the issues related to economic activity in the Ukraine, instead it attempts to encapsulate pragmatic benefits and dangers concerning business investments sin the Ukraine.

Conditions for the reinstatement of the statute of limitations in civil court proceedings and in general administrative proceedings (comparative remarks)

Edyta Gapska, Maciej P. Gapski — Wed, 26 Aug 2020 12:02:33 +0200

All proceedings before the organs of public administration and the administration of justice are characterized by formalism, which is a necessary condition of respecting the principle of equality of both interested parties. One of the most significant aspects of this formalism is – both in civil procedure and in general administrative proceedings – undertaking procedural actions with an adherence to a time limit. The importance of fulfilling this condition is strictly connected with the problem of effectiveness of procedural actions performed by the participants of litigation. The comparison of time limitations and its consequences in civil procedure and general administrative procedure reveals a relative similarity in the sphere of prerequisites to reinstate the time limit, with the major differences focusing on the manner of proceeding and deciding upon the subject matter of the motion. Both procedures provide a relatively suspensory character of the motion for reinstatement of the time limit and the possibility of discontinuing the proceedings or execution of the decision or judgment by the authority or the court. Despite many similarities, there is a significant difference concerning the issue of appealability of the decision referring to the reinstatement of the time limit.

The principles of guilt – remarks on the background of the Polish penal code

Anna Komadowska — Wed, 26 Aug 2020 12:02:59 +0200

Guilt, besides punishability and culpability, constitutes an element of the definition of a crime. Scientific literature broadly describes problems pertaining to the essence of guilt and it creates its definitions. However, there is no agreement in this respect and a few more important theories of guilt have been put forward. The 1997 code for the first time introduced the declaration of guilt and the solutions about guilt which principally differ from the previous ones. The Author of the present paper makes an attempt to get a closer look at the problem of guilt, its importance for penal liability as well as trying to point out which solutions concerning the perpetrator’s guilt have been adopted in the present code.

Religious policy in Poland towards catechetical teaching in the years 1961-2001

Ryszard Mazurkiewicz — Wed, 26 Aug 2020 12:03:36 +0200

The Universal Declaration of Human Rights passed by the United Nations Organization in 1948 proclaims man’s rights to liberties of thought, conscience and religion. The Declaration emphasizes that this right also includes the freedom to profess one’s religion or faith, individually or in a community, publicly or privately, through teaching, practising, worship or observance of customs. A clear emphasis of man’s right to get to know the principles of faith (both in the teaching of Church and the statements of the United Nations Organization) was influenced by the experiences of the Church in totalitarian system in recent decades, and especially in the system based on Marxist ideology. It was the situation in which the Church remained in Poland since World War II till 1989, constituting a part of the social organism that was forced to live in co-existence with the communist system. Hence, it was difficult to expect a compromise or – even more – a favourable attitude on the part of the state authorities as far as catechetical teaching of that period was concerned. In the times of PRL, the law, administration acts and regulations served as means to strengthen the communist rule and subordinate all spheres of social and state life to it. The legal system did not give any guarantees of respecting the rights of a human person and, what is more, it limited the age-old rights of the Church, including the right to teach religion. The situation underwent a decisive change only after 1989 as a result of the political transformation, when the totalitarian communist system was replaced by a democratic one. The present article covers the years 1961-2001, which is from the moment when religious instruction was removed from school till the promulgation of the Polish catechetical directory.

Worker participation in a company’s decision making process

Kazimierz Ostaszewski, Olga Ostaszewska — Wed, 26 Aug 2020 12:04:05 +0200

This article discusses the origin and development of worker participation in the European Union legislation and its implementation into the Polish legal system. The idea of worker participation is deeply rooted in Roman Catholic social thought, today highlighted in the Magisterium of the Church. Through the right to participate, employees or their representatives may have influence over decisions related to all key aspects of the company’s operation. The legal guarantee of worker participation in decision-making has a positive economic impact resulting in increased competitiveness.

A public authority’s liability for damages according to the principle of equity in Polish law

Jerzy Parchomiuk — Wed, 26 Aug 2020 12:04:51 +0200

The state’s liability for tort according to the principle of equity was introduced in Poland for the first time in the act from 1956 on the State’s liability for damages done by the state functionaries. Respects of equity assume an assessment of the situation when the damage occurred through the prism of moral convictions and axiological principles consolidated in the society and accepted in the legal system. The assessment of the validity of adjudication for damages should consider both the objective circumstances of the matter and the injured person’s situation. Liability comes into play in the situation when the damage was done by the action of an organ of public authority which was according to the law. The exceptional character of liability determines limiting it only to the injuries on a person, which is justified by the special character of goods included within compensation protection.

A synthesis of Polish law [Synteza prawa polskiego], red. Tadeusz Guz, Jan Głuchowski, Maria Pałubska, część 1-2, Frankfurt am Main–Berlin–Bern–Bruxelles–New York–Oxford–Wien: Peter Lang 2009, część 1 – ss. 742; część 2 – ss. 411

Jerzy Markiewicz — Wed, 26 Aug 2020 12:05:59 +0200