Common Courts Research Articles

Prawo konsumenta do obniżenia całkowitego kosztu kredytu konsumenckiego – zarys problemu

The purpose of the article is to present the issues related to qualifying the costs of a consumer credit, such as commission and fees, to costs associated with the loan period, and thus subject to reduction in the event of early loan repayment. Based on the research, a thesis was formulated that for the correct transposition and implementation of EU law, it is required to ensure the possibility of reducing all costs of a consumer loan, therefore the above costs should be considered related to the loan period and should be proportionally reduced.
 Methodology: For the purposes of the research, the legal-dogmatic and analytical methods were used. The jurisprudence of Polish courts and the Court of Justice of the European Union was analyzed. The adopted time horizon of the study covered the period from 12/05/2010 to 31/12/2020. The judgments published in the resources of Lex and Legalis Legal Information Systems and the Portal of Judgments of Common Courts as at 31/12/2020 were taken into account.
 Results of the research: It was found that the judicature largely adopted a broad approach to the problem presented, even before the judgment of the CJEU in case C-383/18, which confirms the thesis adopted for the purposes of the article. Consequently, consumers who have concluded a consumer credit agreement are entitled to a proportional reduction to all costs they had to incur in connection with the concluded agreement. In particular, these are incidental, one-off costs such as commission and preparation fee, which are subjected to reduction.

The community involvement of courts: an action research study in the context of the Polish justice system

PurposeAs a rule, common courts are hermetic organizations, separated from their stakeholders by procedures based on legal provisions. For these reasons, they are often perceived as unreliable and non-transparent, and as such, they do not inspire trust among stakeholders. The authors posit that the court’s community involvement may lead to the increased accountability and legitimacy of courts, which should in turn result in jurisprudence benefits. This paper discusses the concept of community involvement of courts, demonstrates how this idea may be implemented and explains its benefits for courts.Design/methodology/approachThe results of an action research study undertaken between June 2013 and March 2018 at the Regional Court in Gdansk (Poland) are discussed.FindingsThe results highlight factors underlying the implementation of the idea of community involvement, as well as the areas in which courts take these actions, and explain how it influences their accountability and legitimacy. This research describes the interests of different stakeholders and proposes a range of actions that may be taken by courts while cooperating with stakeholders to achieve the aims of community involvement. It also proposes a set of steps that enable courts to implement the idea of community involvement.Originality/valueThis paper develops the idea of the community involvement of courts, which may be used as an operating rule for public institutions to increase their legitimacy and accountability and explain its introduction in the context of courts. It offers a universal framework for the community involvement of courts that can be used in the context of any court in both the continental and Anglo-Saxon systems.

Skarga o stwierdzenie niezgodności z prawem prawomocnego orzeczenia jako sformalizowany mechanizm służący dochodzeniu roszczeń odszkodowawczych od Skarbu Państwa

The institution of a complaint for a declaration of non-compliance with the law of a final judgment was introduced by the regulations of the Act of 17 November 1964 – Code of Civil Procedure. It is a specific legal measure aimed at obtaining a judgment of the Supreme Court stating that a final judgment issued by a common court is inconsistent with applicable law. A complaint is used to challenge a legally valid ruling ending the proceedings in a given case, when a party has suffered damage as a result of its issuance and it has not been and is not possible to amend or revoke this ruling by means of legal remedies available to the party. Obtaining this type of a preliminary ruling is necessary in order to later pursue claims for damages in separate proceedings. In this respect, the main difference between this legal institution and other appeal institutions formed in the Polish legal system becomes apparent. A complaint is an institution applicable to both procedural and non-litigious proceedings. However, it is encumbered with many restrictions of a legal nature which the complainant must meet in order to effectively seek legal protection based on its mechanism. The purpose of this article is to present and explain the formal mechanisms influencing the correct shaping of a legal measure intended to constitute a preliminary ruling, on the basis of which the complainant will be able to claim compensation for an unjustifiedjudgment of a common court. This article is the first part of a comprehensive discussion of the issue of an action for a declaration.

DOCTRINAL ASPECTS OF OPTIMIZATION OF ADMINISTRATIVE PROCEEDINGS OF UKRAINE

The article is dedicated to the problems of optimization of administrative court system of Ukraine in connection with the ongoing reform of the courts. The available arguments for and against reforming the acting model of administrative justice of Ukraine are discussed. It has been clarified that the system of administrative courts in force has been specially approved for the adoption of Ukrainian society. The results of the statistical analysis show how it can successfully cope with deliveries to its arrogance. Indicate that you must reinsert the court system and recapture the administrative courts with the common courts. At the same time, with healthy administrative conviction, there are a few significant problems, among them we can call access to administrative justice and delimitation of administrative court jurisdiction from commercial and common courts jurisdictions. A closer look at the problems that need to be solved will require a farther and more thorough amendments to optimize the administrative courts activity. It has been concluded that the model of administrative justice in Ukraine since 2005 in the form of a separate subsystem of administrative courts of both the first and second links fully meets European standards and ensures the implementation of the rule of law, protection of rights and legitimate interests of individuals and legal entities, judicial control over legality and decisions of public authorities and their officials. There are no good grounds for its change (merger with courts of civil and criminal jurisdiction). Such reform will do more harm than good, negatively affect the quality of justice, the professional level of the judiciary. Prospects for further reform of administrative proceedings in Ukraine are in the area of introduction of modern mediation procedures, electronic proceedings, improvement of control over the legality of court decisions by higher courts (especially the Supreme Court of Ukraine), optimization of the burden on judges by establishing rational norms of their activity, depending on the number of cases received by the courts, the development and implementation of more effective mechanisms for the selection, training, retraining and accountability of judges.

Justice for Families

Abstract. When a substantiated allegation of child maltreatment occurs, a family may be referred to the child welfare court. This court may temporarily remove children from their homes, making them dependents of the state. Over the course of a case, the judge assesses the child's needs and safety, and orders services for the family to help them reunify. Internationally, the child welfare court process is complex and lengthy, with a number of hearings that parents are required to attend, and a host of legal decisions rendered. One major decision that may arise from these proceedings is a permanent legal separation of children from their parents, referred to as a termination of parental rights. A decision to terminate parental rights can be life-altering for the entire family. Yet, very little is known about parents' experiences during child welfare court cases, particularly about their legal understanding. A lack of parent understanding may contribute to difficulties with navigating cases and complying with court mandates. Recent mixed-methods research conducted with parents in child welfare proceedings in the United States systematically examined parents' understanding. Findings revealed that parents had a limited understanding of common court terms, professionals' roles, and key processes. Furthermore, 12% of parents could not describe the judge's most recent decision in their case. Qualitative research in the United Kingdom and Canada demonstrates that parents in these countries may also experience challenges with understanding child welfare proceedings. Policy recommendations are offered to underscore the importance of assessing and promoting parents' legal understanding, globally.

THE ROLE OF GUARDIAN FOR AN AGGRIEVED MINOR IN CRIMINAL PROCEEDINGS

The study presents the problem of the role of guardian for an aggrieved minor in criminal proceedings. The legal regulations and court decisions are indicated regarding the role of guardian for a minor. The author attempts to solve the problem of how the role of guardian for minors should be perceived, given the existing jurisprudence of the Supreme Court and common courts. The conclusions from the evaluation of the regulations and judgments, based on the available statistics, form the starting point for the assessment of the guardian’s capacities in legal proceedings.

Znaczenie szkoły jako instytucji oświatowo-wychowawczej w postępowaniu dowodowym dotyczącym pozbawienia władzy rodzicielskiej

The goal of this article is to highlight the role of a school, here understood as an educational facility, during the course of parental rights termination proceedings. There can be no doubt that the process of upbringing, especially the domestic factors and intense stimulus to which the child is subjected translate into patterns of behaviour and the way the child functions at school. Notably, prolonged learn-ing difficulties among children or periods in which the child presents complete disregard for societal norms and a lack of discipline should be a clear signal for the teachers and counsellors to review the family environment of the pupil in question. The article covers data regarding the school’s participation in the parental rights termination proceedings – e.g. opinions and recommendations formulated by the schools, teacher’s testimonies and children scorecards which reflect the educational progress of the child. The materials used include source materials (acts and ordinances, written opinions, Supreme and common court rulings), results of own research – casefile review based on a targeted casefile research questionnaire.

Wolność działalności gospodarczej — rozważania na kanwie sprawy „drukarza z Łodzi”

Artykuł poświęcono problematyce wolności działalności gospodarczej w prawie polskim. Analiza skupia się wokół rozważań Trybunału Konstytucyjnego, Sądu Najwyższego oraz sądów powszechnych związanych ze sprawą „drukarza z Łodzi”, stanowiącą przedmiot ożywionej debaty publicznej w ostatnim czasie. W ramach uwag wprowadzających zaznaczono, jak istotna dla współczesnego państwa liberalnego jest wolność działalności gospodarczej. Wskazano też, jakie zagrożenia niesie z sobą pełna liberalizacja rynku. Uwagi szczegółowe podzielono na pięć części.Pierwsza część poświęcona została regulacjom konstytucyjnym. Podkreślono przewodnią rolę wolności działalności gospodarczej pośród elementów społecznej gospodarki rynkowej jako modelu, na którym oparto ustrój gospodarczy Rzeczypospolitej Polskiej. Wskazano też przesłanki dopuszczalności ograniczenia tej wolności.W ramach rozważań ujętych w drugiej części wyróżniono dwie swobody działalności gospodarczej — w ujęciu formalnym i materialnym. Stwierdzono, że ze względu na specyfikę każdej z nich ewentualne ograniczenia powinny mieć przede wszystkim charakter odpowiednio: publicznoprawny albo prywatnoprawny.W trzeciej części uwag szczegółowych przedstawiono stan faktyczny, na podstawie którego zapadły orzeczenia w sprawie „drukarza z Łodzi”. Wskazano też twierdzenia sądów, do których odnoszą się dalsze rozważania. Wynika z nich, że samo prowadzenie działalności gospodarczej obliguje przedsiębiorcę i jego pracowników do spełniania świadczeń na rzecz osób zainteresowanych dobrami lub usługami dostarczanymi przez przedsiębiorcę.Czwarta część rozważań zawiera analizę zasadności konkluzji, o której mowa w części trzeciej. Zasadniczo została ona poddana krytyce. Wskazano, że za jej odrzuceniem w odniesieniu do przedsiębiorców przemawiają sprzeczność przedmiotowego nakazu z istotą konstytucyjnej wolności działalności gospodarczej oraz ograniczony zakres przedmiotowy ustawowych i unijnych przepisów o funkcji antydyskryminacyjnej. Wskazano jednak, że badany obowiązek ciąży na niektórych przedsiębiorcach. Jako przykłady takich podmiotów wyliczono profesjonalistów działają-cych na rynku farmaceutycznym oraz ubezpieczeń obowiązkowych, a także podmioty o pozycji dominującej na rynku właściwym, o ile ich odmowa spełnienia świadczenia jest przejawem nadużycia tej pozycji. Odnośnie do pracowników przedsiębiorców podkreślono, że nie są oni powiązani z klientami pracodawcy stosunkami prawnymi obejmującymi obowiązek spełnienia świadczenia.
 Zauważono, że ewentualnie ciąży na nich powinność wykonywania określonych czynności na rzecz kontrahentów zatrudniającego, ale wynika ona z relacji prawnych łączących ich z przedsiębiorcą.Piąta część uwag szczegółowych dotyczy wyroku, na mocy którego Trybunał Konstytucyjny uznał przepis kodeksu wykroczeń, będący podstawą prawną orzeczeń wydanych w sprawie „drukarza z Łodzi”, za niezgodny z konstytucyjną zasadą proporcjonalności. Wyrażono w niej aprobatę dla stwierdzenia, że ustawodawca powinien wprowadzać sankcje karne jedynie w ostateczności, gdy nie sposób osiągnąć zakładanych celów w inny sposób. Krytyce poddano natomiast zaaprobowaną przez Trybunał tezę, że analizowany przepis kodeksowy mógł stanowić samodzielną podstawę prawną obowiązku spełnienia świadczenia z uwagi na jego rzekomą antydyskryminacyjną funkcję.Artykuł zakończony jest wnioskami. Ogólny kierunek regulacji wolności działalności gospo-darczej w prawie polskim oceniono pozytywnie. Nie wykluczono jednak, że w pewnych obszarach działania ustawodawcy zasługują na ocenę odmienną — wskazano przykład ustawy „apteka dla aptekarza”. Krytyce poddano też spotykaną w doktrynie i judykaturze rozszerzającą wykładnię przepisów ograniczających badaną wolność.

Identification of Procedural Acts Performed at the Hearing: Considerations in the Context of the Actual Utterances of Non-professional Participants of Court Proceedings

The empirical research of the communication process at the trials which were held in common courts indicated, in particular, that the utterances of trial participants, despite their varied verbal forms, were identified as procedural acts. In addition, these verbal forms were often significantly different from the explicit forms where proper legal terms were used. The aforementioned results of the analysis lead the author to pose the following question: what thought processes (mechanisms) allow for the identification of procedural acts based on the utterances which are not explicit for the performance of these acts. The aim of this paper is to describe these types of mechanisms. The utterances of participants of a trial illustrate the issues taken into consideration in this paper.

Zatrudnienie funkcjonariuszy w administracji celno-skarbowej po reformie

ABSTRAKT Employment of officers in customs and tax administration after the reform The article presents the legal regulations concerning the officers of the former Customs Service adopted by the legislator on the occasion of the reformed customs and tax administration and the establishment of the National Tax Administration. The institution of terminating the service relations of officers by law was introduced, as well as transforming the service relations into contractual relations as a result of offering the officer further work in the structures of this administration and accepting this proposal by him. Problems with interpreting these solutions were visible in the varied jurisprudence of administrative courts as well as common courts. In order to understand these difficulties, some of the justifications of the judgments have been presented more broadly. In line with these considerations, the thesis is justified that in recent years the legislator has increasingly resorted to this type of solutions and introduced institutions of termination of employment relations by law, and their cause is not “exceptional, special circumstances justified by the state system reform,” which was emphasized by the Constitutional Tribunal, only reforms related to organizational transformations in public administration. This is viewed as the means of replacing public administration staff.

Administracyjnoprawne środki zaskarżenia decyzji w sprawach z zakresu ubezpieczeń społecznych

In proceedings in social insurance cases, the system of appealing of decisions is based on a noncompetitive system of verification of decisions with the use of ordinary legal remedies. Due to the model of of appealing of decisions in the proceedings before the common court adopted in Article 83 act 2 of the SysUbSpołU, the possibility of the right to an administrative appeal was excluded, as well as the right to a complaint to an administrative court. However, this is not an absolute exclusion. Article 83 act 4 of the SysUbSpołU repealed the formula of a judicial appeal in favour of the construction of an application for reconsideration of the case and, as a further consequence, a complaint to an administrative court in particular categories of cases. The methodology and systemic coherence of such a procedure, the legal nature of the application for reconsideration of the case, as well as the legitimacy of excluding the option of legal protection in the proceedings before the common court in favour of the administrative court review remain to be considered.

Specyfika reguł przyznawania wynagrodzenia za czynności podejmowane przez kuratora spadku przed sądem administracyjnym

The curator of the estate, who is established to exercise custody of an unincorporated estate, may also institute proceedings before an administrative courts or join proceedings that are already pending. The curator of the estate retains the right to remuneration for his action. Therefore, it is important to determine the rules on the basis of which it can be granted. The law on proceedings before administrative courts can not constitute grounds for awarding of such a remuneration. In this respect, the procedural provisions on granting remuneration to the curator of the estate in proceedings before common courts are also not applicable. All in all, it is crucial to determine which provisions in the legal system may be taken into account for the correct award of remuneration to the curator of the estate for the actions taken before the administrative court.

Odpowiedzialność odszkodowawcza za szkody wyrządzone przez drzewa i krzewy

Liability for damages caused by trees and bushes The following article outlines the administrative-legal aspects of the proceedings for the logging of trees or cutting down bushes. This presentation is a starting point for further civil law considerations on the liability for damages caused by trees and bushes. The analysis examines instances of omissions or abuses by the entity authorized to log trees, examples of such activities and their potential consequences. The issue of the liability of administrative officials for erroneous administrative decisions regarding logging is also addressed. The concluding part of the article focuses on civil law claims (non-tort ones or not necessarily tort ones) related to the presence of trees and bushes – and involves the analysis of examples of factual status which were the subjects of common courts’ decisions.

Tax and Legal Issues Related to the Implementation of Research and Development Projects in the Area of "Security and Defense"

Purpose: The aim of the article is to discuss tax issues related to the settlement of subsidies for the implementation of projects in the area of"Security and Defense". The grant beneficiaries face numerous problems with the interpretation of the provisions of the VAT Act, which may result in serious financial consequences in the event of incorrect application of the VAT Act. This publication analyses and indicates solutions to these problems, which are most often raised by consortia, both in applications for tax interpretations and in complaints to administrative courts of both instances. Introduction: Among the important forms of activity for the security and defence of the state, a special role is played by scientific and research and development projects, which not only increase the potential of scientific and industrial entities, but also create Polish know-how in the field of critical technologies in the area of "Security and defence". The implementation of projects financed from the state budget places on the beneficiaries the obligation of a "regime" method of settling public funds, both by applying the provisions on public procurement, constructing civil contracts, taking into account the fact that funds from subsidies are available, as well as performing special diligence in tax settlements with the tax authorities. Methodology: The theoretical research methods were used in the work, including the analysis of literature, judgments of common courts and the Pro - vincial and Supreme Administrative Court, as well as tax interpretations issued by the Director of the National Revenue Administration. The publication also provides an interpretation of national regulations as well as directives and case law of the Court of Justice of the European Union. Conclusions: Tax law is the branch of law that arouses the greatest emotions and controversy. It affects all of us, and in the event of incorrect application of the rules – it has serious financial consequences. Members of consortia implementing projects financed by the The National Centre for Research and Development (NCBR) also remain taxpayers, to whom the author of the article proposed the interpretation of the provisions of the VAT Act and discussed national and EU jurisprudence in order to facilitate the correct implementation of tax obligations by the consortia. Keywords: VAT taxation of subsidies, eligibility of expenses, right to deduct input tax, transfer of proprietary copyrights to the State Treasury, commer - cialization of results of scientific research and development works Type of article: review article

Tajemnica adwokacka jako element realizacji prawa do sprawiedliwego procesu sądowego oraz prawa do poszanowania korespondencji

The issue of exemption from the attorney-client privilege and the nature of this attorney-client privilege is widely discussed both in the literature on the subject and in the doctrine. In order to analyze this subject, it was necessary to interpret the provisions of the Law on the Bar Ac (26 May 1982), the provisions of the Code of Bar Ethics (23 December 2011) the Constitution of the Republic of Poland (2 April 1997), both guarantees enshrined in the Convention for the Protection of Human Rights and Fundamental Rights of liberty from 1950. The interpretation was made in conjunction with Polish case law common courts and case law of the European Court of Human Rights. This also presents the view of the polish Ombudsman’s Office. Given that the professional secrecy of lawyers is an inseparable element of justice, it would be wrong to omit the generally accepted moral norms of society in relation to the procedural role of a lawyer. The thesis put forward that the professional secrecy of lawyers is part of the implementation of the right to a fair trial and the right to respect for private life. The purpose of the work was to emphasize the essence of lawyers’ secrecy as an inseparable element of defense of the parties to the proceedings and to indicate interpretation differences between Polish courts and the case law of the European Court of Human Rights.

O sędziach pokoju w pracach Komisji Kodyfikacyjnej II Rzeczypospolitej Polskiej

The article presents work on the unification of the Polish judiciary in the Second Republic in the years 1918–1928. It was carried out in three tracks. The initiator of the first moves consisting in unification of district regulations, reorganisation and taking over the judiciary was the government and the Ministry of Justice. Since February 1919, these measures were supported and approved by the Legislative Sejm (later the Sejm). Since November 1919 the burden of work was taken over by the Codification Commission of the Republic of Poland. The aim of this article is to discuss the course of work on the law on the system of common courts within the Codification Committee of the Republic of Poland, with particular emphasis on the provisions on justices of the peace. From this point of view, it will help to solve the main research problem of the article: to what extent did the Polish Codification Commission contribute to shaping the institution of justices of the peace in the Ordinance of the President of the Republic of Poland on Law on the System of Judiciary of 6 February 1928. The article makes use of archival materials, protocols from the sessions of the Codification Commission of the Second Polish Republic, the legal literature of the Second Republic and the current literature on the subject.

Difficulties involved in the formulation of forensic opinions in cases of severe injuries to the facial and cerebral parts of the skull due to punching.

Comparison of injuries to the facial and cerebral parts of the skull causing death and grievous bodily harm, resulting solely from punches to the facial area of the skull. Assessment and confrontation of both groups in terms of the final criminal-legal classification of the perpetrator's acts. Review of reasons for court judgements with a focus on the subjective elements of the prohibited act. Attempt to verify the hypothesis assuming that death or grievous bodily harm can be caused by a single punch to the facial part of the skull. Final judgements passed by criminal divisions of common courts of law in cases where death or grievous bodily harm was caused by injuries to the facial and cerebral parts of the skull resulting solely from punches to the facial area of the skull. Assessment of individual cases within each group to determine similarities and differences. Comparative analysis of both groups. The cause of death in cases involving injuries to the facial part of the skull was rapid suffocation following blood aspiration into the respiratory tract. However, the criminal-legal classification of the perpetrators' actions in these cases was varied. In one case, death resulted from injuries to the cerebral part of the skull, which are extremely rare as a result of a punch to the facial area within the skull. Grievous bodily harm was due to the loss of vision in the eye, typically due to eyeball rupture. Even though the circumstances of the injuries were similar, different mechanisms were responsible for causing death and grievous bodily harm in the victims. The most severe consequences (death and grievous bodily harm) were not caused by injuries of the same type in any of the cases studied. A single punch to the facial part of the skull may be enough to lead to either grievous bodily harm or death, but the criminal-legal assessment of punching to the face can vary greatly.

COMMENCING A PRIVATE PROSECUTION AND THE GROUNDS FOR DISMISSING A LAY JUDGE FROM HIS FUNCTION

The institution of the participation of the social factor in the justice in Poland has a long and well-established tradition. In accordance with Art. 4 of the Law on the System of Common Courts, citizens take part in administering justice through the participation of lay judges in hearing cases before courts in the first instance. The jurors are elected by the borough councils for a four-year term. Dismissal of a lay judge before the end of his term of office is possible in the cases enumerated in the Act. This article attempts to analyse the issue of the impact of the circumstances of instituting private indictment against a lay judge on the possibility of dismissing a lay judge from his function at the request of the president of the court. The article presents the following problems and issues: is the initiation of a general criminal procedure against a lay judge for an offense prosecuted on a private indictment basis for the dismissal of a lay judge by the municipal council?; Does instituting criminal proceedings against a person for an offense prosecuted by private indictment prevent that person from standing for the post of a common court lay judge? Is a person running for the post of a common court lay judge obliged to disclose in the course of the procedure of electing lay judges (before being elected by the borough council) that there are private criminal proceedings against that person? The findings made by the authors lead to the conclusion that in the event of instituting private criminal proceedings against a lay judge, the provision of Art. 166 § 2 point 3 of the Act on the System of Common Courts does not apply, and the fact of prosecuting a lay judge as a result of bringing a private indictment to a court should not constitute the basis for a motion by the president of the court to the municipal council to dismiss a lay judge from his function.

The Disciplinary and Criminal Liability of Judges in Poland. A Criminalistics Study of Cases of Disciplinary and Criminal Liability of Judges in the Years 2010–2018

The article presents basic findings about the disciplinary and criminal liability of common courts judges in Poland. These findings are presented from a criminalistics perspective. The article provides data on the following issues: the basics of the disciplinary and criminal liability of judges, the number of disciplinary cases of judges in the years 2010–2018 and the number of criminal cases of judges in the years 2001–2017, categories of the disciplinary violations and crimes committed, decisions taken in cases of disciplinary violations, and imposed penalties. The article is based on an examination of Supreme Court verdicts issued in disciplinary cases of judges and data provided by the Ministry of Justice

SENTENCING FOR THE OFFENSE OF FALSE TESTIMONY IN THE LIGHT OF JUDICIAL DECISIONS

The study presents the problems of courts, in the case of sentencing for crimes of false testimony in the light of judicial decisions. The article is, therefore, a presentation of issued decisions of common courts and the Supreme Court in the scope of this off ense, indicating the changes made to the law. The author will attempt to resolve the problem of the circumstances in which a false testimony is sentenced for as an off ence, given the current case-law of the Supreme Court and common courts. The conclusions of the discussed principles of sentencing for this crime (based on available statistics), will be the starting point for the assessment.