De Lege Ferenda Proposals Research Articles

Problems of Employment of Academic Teachers—Reflections de lege lata and de lege ferenda

The nature of employment of academic teachers is complex not only because their employment is regulated by the codes of practice with the auxiliary application of the provisions of the Labor Code and other sources of labor law, but also because it is related to the presence of public law elements in the obligatory bond of the employment relationship. The need for pragmatic regulation of the employment relationship of academic teachers seems obvious, and is justified by the differences in their rights and obligations in comparison with the general regulations. However, it should be noted that by approximating the structure of the academic employment relationship to the obligatory mechanism in the context of general labor law, we seem to ignore many specific and important features of this employment. Therefore, normative shortcomings of the applicable act can be observed. It seems that within de lege ferenda proposals, the one referring to the model solution, which takes into account the specificity of the work of academic teachers, is fundamental. Such a solution seems to be expected primarily due to the role played by the system of higher education and science in the structures of the state.

Insurance secrecy

This article discusses the issues related to insurance secrecy, which is an important matter from the perspective of insurance practice. The insurance is based on clients’ confidence in the payment of benefits if an event covered by the insurance has occurred as well as on the assumption that crucial data concerning major facts of the client’s life provided in the course of concluding the insurance contract (specifically in the medical survey concerning the insured’s health condition) and while the insurance relationship persists will be disclosed to nobody in an unauthorised manner. Insurance secrecy is a professional secrecy regulated by the Act of 11 September 2015 on Insurance and Reinsurance Activity in order to ensure the confidentiality of data transmitted and to maintain clients’ confidence in insurance companies. Insurance secrecy is related to the protection standard of the right to privacy, with this right constituting one of the major values.This article deals with the temporal, territorial, material and subjective scope of applying the insurance secrecy, principles of liability for the breach thereof, as well as the admissibility of consent to release the information covered by the secrecy, by citing different voices concerning those issues. In addition, the author presents judgments relating to a number of aspects concerning the practical application of provisions concerning the insurance secrecy and highlighting the basic characteristic of the institution in question. Some practical aspects related to the application of the insurance secrecy are also addressed, taking into account the current realities of the insurance market, including technical solutions (e.g. social media), by means of which beneficiaries of insurance contracts or the insured themselves inform the public about the liquidation procedure, which puts the insurance companies, or more broadly the insurance distributors, in a more difficult position in terms of their image. Finally, some de lege ferenda proposals are put forward in respect of those aspects of insurance secrecy, which, in the authors’ opinion, need to be dealt with by the legislator.

EU Regulation of the Crypto-Assets Market

Abstract The present paper discusses the issue of regulation of the crypto-assets market. This area is still struggling with a lack of legislation, and there are only some initiatives to regulate the market. The aim of the article is to analyse the state of legal regulation of the crypto-assets market while simultaneously pointing out problematic issues with de lege ferenda proposals. For this purpose, we established two hypotheses: the crypto-assets market needs to be regulated by legal acts of a European nature (H1), and the adopted EU legal acts regulating the crypto-assets market are adequate and sufficient (H2). Several types of scientific papers, such as analysis, synthesis, and the historical method, were used in the preparation of this paper.

Obowiązek podatkowy wynikający z przepisów ustawy z dnia 26 lipca 1991 r. o podatku dochodowym od osób fizycznych w sprawach o błędy medyczne oraz zdarzenia medyczne.

The purpose of the article is to present the position of a taxpayer on personal income tax in case of receiving compensation, damages, annuity, temporary annuity and interest on them in the light of the provisions of Polish law, taking into account the provisions of the so-called Polish Order, which entered into force on 1 January 2022. In almost all cases the taxpayer is exempt from personal income tax. An exception is compensation or damages paid as a result of an out-of-court settlement from the health care provider's own assets. The author presented a de lege ferenda proposal to amend the provisions of the Personal Income Tax Act so that out-of-court settlements are exempt from personal income tax. The article has also been expanded to include cases involving medical events, with both the payment of compensation and damages on the basis of the ruling of the provincial commission for adjudication in cases of medical events and the amount of compensation paid under the Vaccination Compensation Fund being exempt from personal income tax. Regarding the interest exemption, this is possible if the principal benefit is exempt from personal income tax.

POLISH SMART CITY – THE LEGAL PERSPECTIVE

The intensification of urbanisation processes, involving the population moving to cities, poses a challenge to public administration. The smart city concept can help to challenge them. In this article, I will introduce its historical background and doctrinal approach to it as well perform research on it from a legal science perspective. I will analyse the international, EU and national regulations constituting the legal basis for the establishment of smart cities in Poland. In the search for a legal definition of the concept of a smart city, I will refer to the methods of measuring it. I will attempt to answer the question of whether we can currently discuss Polish smart cities at all. I will also state the de lege ferenda proposals for the definition of a smart city.

IN SEARCH OF A RATIONALE FOR THE PROCESSING OF A PERSONAL HEALTH DATA, INCLUDING A CHILD’S ALLERGIES, BY A SCHOOL

The aim of the article is to point out the difficulties encountered in practice in identifying and applying the relevant prerequisite that entitles the headmaster of a kindergarten, school or other institution to process personal data concerning a pupil’s health condition or diet. The author interprets the regulation of Article 155 of the Education Act providing for the provision of the above-mentioned information by parents of students. She examines who exactly, what kind of data and to whom, on the basis of this provision, can transfer it. She then analyses the three prerequisites for the processing of sensitive personal data under Article 9(2) of the RODO, which may constitute a ‘potential’ legal basis for the processing of the aforementioned pupil’s personal data by a school or kindergarten, identifying doubts that may arise in this regard. The article concludes with the formulation of a de lege ferenda proposal addressed to the legislator to add provisions to the Education Law Act specifying appropriate measures to protect the rights and interests of the data subject.

Analiza pravnog uređenja audiovizualnih medijskih usluga nakon stupanja na snagu Direktive (EU) 2018/1808

The paper analyses the provisions of Directive (EU) 2018/1808, which amends and supplements the Directive on Audiovisual Media Services 2010/13/EU. In the analysis of the new legal regulation of audiovisual media services by Directive (EU) 2018/1808, the author compares the de lege lata provisions and gives de lege ferenda proposals for the new legal regulation of electronic media in the Republic of Croatia. The paper analyses the new provisions that regulate the principle of the country of origin of audiovisual services, the novelties brought by the legal regulation of video sharing platforms as a new form of audiovisual media services, better protection of minors from harmful content in audiovisual media services, new provisions related to enhanced protection from program content that incites hatred, violence, and public incitement to terrorist acts. Furthermore, the paper deals with provisions that increase the requirements regarding the share of European works in programmes and provisions that regulate the quantity and quality of audiovisual commercial communications in traditional audiovisual media services. Along with the analysis of the new provisions of Directive (EU) 2018/1808, the relevant practice of courts and national regulatory authorities are also discussed. Finally, the author deals with the strengthening of the role of independent regulators and makes de lege ferenda proposals for the legal regulation of electronic media and audiovisual media services after the transposition of Directive 2018/1808 into the Croatian legislation.

Issuance of the European investigation order at the stage of a preparatory proceeding for the purpose of obtaining information constituting bank secrecy

Abstract The article discusses matters related to the issuance of the European Investigation Order (EIO) during the stage of a preparatory proceeding, the objective of which is to obtain information protected by banking secrecy from a foreign bank. Attention is drawn to the essence of this instrument of international cooperation in criminal matters and its comprehensive nature. A key problem revealed in prosecutorial and judicial practice consists of determining the entity competent to issue the European Investigation Order in the in rem phase of the preparatory proceedings. This issue also necessitates determining whether, in such a procedural situation, it is necessary to obtain the consent of the district court to access information subject to bank secrecy and whether this affects the scope of competence of the court or the prosecutor. An examination of case law and the accompanying opinions of the doctrine presented in the article reveals a non-uniform, even mutually exclusive, approach to this issue. A critical look at the presented range of views enables a clear stance on the aforementioned issues and the formulation of a de lege ferenda proposal.

PREVENCIJA I MIRNO RJEŠAVANJE RADNIH SPOROVA U FEDERACIJI BOSNE I HERCEGOVINE

Procedures and mechanisms for effective prevention and peaceful resolution of la- bor disputes are of key importance for promoting healthy labor relations, ensuring a functional labor management system and improving access to justice, for employers as well as for workers. On the other hand, the peaceful resolution of labor disputes has multiple significance for the state as well, as it leads to the relief of the courts from lengthy procedures, but also to an increase in the efficiency of the work of the judiciary in a wider context. Peaceful resolution implies “out-of-court” alternative options for resolving labor disputes, i.e. conciliation, mediation and arbitration. A significant progress in the reform and modernization of labor legislation in the Fede- ration of Bosnia and Herzegovina is the adoption of the Law on Peaceful Resolution of Labor Disputes from 2021. This paper aims to present an analysis of the aforementi- oned Law, but at the same time points out the importance of applying indispensable instruments and standards in the process of prevention and peaceful resolution of labor disputes, established in the conventions and recommendations of the Interna- tional Labour Organization. In sense of the increasing digitization of many aspects of social life, which has also affected the field of law, the paper will briefly analyze relatively recent phenomenon of online dispute resolution. Ultimately, the paper will offer de lege ferenda proposals in order to further improve the institute of peaceful resolution of labor disputes in the Federation of Bosnia and Herzegovina. Key words: labor dispute, prevention, peaceful resolution, conciliation, arbitration

THE CONVENTION ON INTERNATIONAL LIABILITY FOR DAMAGE CAUSED BY SPACE OBJECTS FROM THE HUMAN RIGHTS PERSPECTIVE – SELECTED ASPECTS

In spite of the Convention on International Liability for Damage Caused by Space Objects being in force for a long time, it has not as yet been analysed from a human rights perspective. While at the beginning of the space age activities in space were associated only with states, the progress on humankind in the conquest of space has significantly changed that. Nowadays, the role of individuals in space operations is growing. The well-established human rights law on Earth also needs to be reflected in regulations concerning outer space. This paper assesses selected aspects of the Convention from the human rights perspective. The analysis encompasses the definition of “damage” along with the possible amount of compensation due to individuals and the different aspects of procedural guarantees available for them. The paper presents two possible routes for obtaining compensation: one through diplomatic channels and another using national channels of launching states. This study offers a de lege ferenda proposal to appeal to state parties to introduce internal regulations aimed at avoiding human rights infringements. Domestic law systems may create legal provisions that may fill the gaps caused by the Convention’s limitations, e.g. by introducing an appropriate insurance system for space passengers.

Ecocide - a new crime under international law?

It is indisputable that ignorance, or lack of interest, as well as underestimation of the importance of environmental protection, has an impact not only on the quality of the environment but also poses a significant risk to human health, as well as all other organisms on Earth. It is for this reason that the issue of environmental protection is increasingly discussed, topical and desirable not only at the level of individual states but also within the international community. Taking into account the above, it is for this reason that the issue of environmental protection is increasingly discussed, topical and desirable not only at the level of individual states but also within the international community. Taking into account the above, the authors in the presented article deal with a critical assessment of the appropriateness of the proposal contained in the embedding of the special crime of ecocide originating from 2021 in the Rome Statute, including the formulation of appropriate de lege ferenda proposals.

Oportunitet na klackalici - od pretpostavke nevinosti osumnjičenog do presuđene stvari

The criminal-political justification of the principle of opportunity is undoubtedly of significant importance for criminal justice, with multiple and diverse objectives and functions. Despite the fact that the application of this criminal procedural mechanism in public prosecution practice has been ongoing for over two decades, research results indicate that essential questions regarding its legal and procedural nature remain veiled in dilemmas even today - whether the suspect subject to its application should be considered innocent, and whether the decision to dismiss a criminal complaint based on the principle of opportunity can be equated with the res judicata. The paper presents specific research results regarding the interpretation of the effects of applying the principle of opportunity in criminal proceedings and the legal effects of decisions to dismiss criminal complaints based on the principle of opportunity in civil proceedings for compensation of damages arising from a "criminal act." By analyzing the concepts expressed in criminal legal science and utilizing the comparative legal method to a certain relevant extent, the authors aim to, starting from the procedural guarantee of the presumption of innocence, highlight the risks of equating the decision to dismiss a criminal complaint based on the application of the principle of opportunity with a final judgment. The primary de lege ferenda proposal is to establish a prohibition on criminal prosecution for the same criminal offense in cases of applying the principle of opportunity.

The right of access to restorative justice and mediation at the stage of criminal enforcement proceedings. Comments de lege lata and de lege ferenda

The subject of the article is a formal and dogmatic analysis of the right to mediation, which is part of the right of access to restorative justice. The aims of the article are determined by the structure of the content, with the limitation of considerations to the stage of executive proceedings in criminal cases. First, the aim is to analyze the legal structure of the right of access to restorative justice and mediation. Secondly, the answer to the question of whether, in the light of EU and international law, there is an obligation for state authorities to ensure that the right to mediation is exercised, together with an analysis of its content. Third, the formulation of de lege ferenda proposals related to the establishment of the right of access to restorative justice and mediation. Despite the position, formulated for years in the documents of the Council of Europe, that restorative justice and mediation should be a public service at every stage of criminal proceedings, it has not been established at the stage of executive proceedings. However, this does not result from a defective implementation of EU law, which does not impose an obligation to ensure the right of access to restorative justice and mediation services in areas where these services are not available, making EU Member States only guardians of the standards of services provided, and not guarantors of the possibility of implementing the right to use mediation. De lege ferenda establishing the right of access to restorative justice and mediation would include the power to submit a request for mediation and the obligation of state authorities to create conditions enabling its implementation but not guaranteeing mediation. The analysis of the right to access mediation, which has not been the subject of an explication in the doctrine so far, is to provide knowledge on the structure and potential directions of normative work, taking into account the regulations of EU law and documents of the Council of Europe related to the regulation of mediation proceedings at the stage of executive proceedings in criminal cases.

Historical Aspects of the Development of the Mediation Institute Before the Divorce of Marriage in Bosnia and Herzegovina with a Focus on Positive Legal and Sociological Aspects

Every social phenomenon has its own "life" cycle from origin and development to termination. It's the same with marriage. However, the termination of marriage should not produce negative consequences primarily for children, as subjects who did not decide on the formation or termination of marriage, but also for the family as a community of special social interest. That is why the institution of mediation has been established in the legal order, as a kind of "therapeutic" institute that should help overcome all the negative consequences of the end of a marriage, both on the part of the children and the spouse. The paper, therefore, emphasizes the constitutional foundations of marriage and the family, with a special focus on mediation before divorce, intending to analyze normative solutions and their application in practice, and offering de lege ferenda proposals in the existing constitutional and legal frameworks to help people when solving possible misunderstandings that can weaken marital bonds and destabilize the entire family system with their negative consequences. We focused special attention on the advantage of mediation in resolving marital disputes, and the most common contents of mediation during divorce are also listed. If problems arise in the marriage due to which it cannot survive, thereby losing its function, the spouses initiate a divorce case before the competent court. Before making the final decision on divorce, the spouses are obliged to turn to a competent mediator who will provide them with the necessary assistance to determine the possibility of survival of the marital union. To collect the highest quality data, empirical research was conducted in cooperation with centers for social work throughout Bosnia and Herzegovina, which we used when analyzing the current situation and synthesizing conclusions to improve it.

Principle of Reliability of Business Trading in the Context of Personal Changes in Partnerships

The article presents the issue of personal changes in partnerships from the perspective of dangers to the interests of partners of such partnerships and third parties. The analysis is carried out primarily in the context of the norms concerning the national court register, but also the relevant regulations of the Code of Civil Procedure. On this basis, the author evaluates the current regulations and concludes that they pose significant dangers to both partners of partnerships and creditors as third parties. These dangers arise mainly from the way the system of presumptions provided for in the provisions of the Act on the National Court Register is shaped. The author refers to the de lege ferenda postulates expressed in the past and selects the optimal solution from the perspective of implementation of the principle of reliability of business trading, and also presents his own de lege ferenda proposals. In the author’s opinion, in order to secure the interests of a partner withdrawing from a partnership against the risk of attempts to hold him/ her liable for obligations arising after his/her membership in the partnership has ceased, it would be sufficient to grant such a person the right to file an application to remove him/her from the register of entrepreneurs as a partner of the partnership. On the other hand, in order to safeguard the interests of third parties, it would be advisable to broaden the scope of application of the norm arising from Article 14 of the Act on the National Court Register and subject the former partner of a partnership to the rigors of this regulation. In addition, in order to ensure greater transparency of the data disclosed in the register, in the author’s opinion, it is advisable to consider the possibility of introducing, within the framework of the register of entrepreneurs, an institution similar to that provided for on the grounds of land and mortgage register proceedings, concerning the obligation of the court to disclose ex officio an identified inconsistency of the actual state of affairs with the state of affairs disclosed in the register of entrepreneurs.

Critical Analysis of the Legal Regulation of Assisted Reproductive Techniques and Biomedical Research in the Slovak Republic in the Context of Natural Law

The study critically analyses the Slovak legal regulation of assisted reproductive techniques and biomedical research through the prism of natural law attributes. The study confirms the hypothesis that the legal regulation of assisted reproductive techniques and biomedical research in the Slovak Republic is insufficient, does not reflect the actual practice, and allows interpretations and application that are not in line with natural law. The identified shortcomings do not correspond to the fact that the Slovak Republic is one of the countries with a restrictive biopolitics. The study demonstrates that even in the case of conservative legislation, the natural-law basis can be undermined or denied if the legislation does not sufficiently reflect all contexts. For comparison, we present selected legislation from the Czech Republic, which is more precise and consistent, although more liberal. The study also contains specific de lege ferenda proposals that are based on natural law foundations and at least partially remedy the identified shortcomings.

О процессуальном статусе должностных лиц органов прокуратуры, участвующих в уголовном судопроизводстве

Introduction: the paper analyzes some problems of participation in criminal proceedings of officials of the prosecutor’s office, caused by not quite clear regulation of these issues at the level of the Constitution of the Russian Federation, the Federal Law “On the Prosecutor’s Office in the Russian Federation”, the Criminal Procedure Code of the Russian Federation, Orders and Instructions of the Prosecutor General of the Russian Federation. There is an ambiguity in the use of the names of officials of the prosecutor’s office who perform various criminal procedural actions, the lack of a clear division of their procedural powers, forms and principles of interaction. The purpose of the study is to identify the forms of participation of officials of the prosecutor’s office in criminal proceedings, to identify the shortcomings of the legal regulation of procedural statuses, to determine the prospects for the development of the criminal procedure legislation in terms of the registration of the procedural status of officials of the prosecutor’s office. In the course of the research, the methods of both formal-legal and system-structural analysis and synthesis of legal phenomena are used. The results are presented in the form of delegeferenda proposals, taking into account the difference in the procedural statuses of officials of the prosecutor’s office involved in criminal procedural activities in pre-trial and judicial proceedings, on whose basis a model of procedural differentiation of officials of the prosecutor’s office has been developed. The main conclusion is that the procedural statuses of the prosecutor and the state accuser provided for by the current Code of Criminal Procedure of the Russian Federation are not sufficient to cover all forms of participation of officials of the prosecutor’s office in criminal proceedings. In this regard, the proposal is justified to further consolidate the procedural statuses of the superior prosecutor and other participants from the prosecutor’s office.

The complaint process and the need to ensure a high level of protection for customers of financial market entities in the light of the Act of August 5, 2015 on complaints handling by financial market entities and on the Financial Ombudsman – practical comments

Since the Insurance Ombudsman was established in Poland, customers of financial institutions, consumers in particular, are being placed under an increasingly broader and more strongly enforced statutory protection in the scope of infringements of their individual rights and interests. Under the previously applicable legal status there were no generally applicable regulations imposing the obligation to consider complaints within a reasonable time on financial market entities. This has changed with the entry into force of the Act of 5th August 2015 concerning the complaint handling process by the entities of financial market and Financial Ombudsman. The existing legislation does not provide full consumer protection, however, legislation in this area is constantly developed and still better enforced. In this article, the authors present the right to consider a complaint as a fundamental consumer right. The authors discuss the scope of application of the Act of 5th August 2015, the course of the complaint procedure, including the form and manner of delivering the response to the customer – at the same time formulating numerous practical comments and de lege ferenda proposals.

Sprawozdanie z Ogólnopolskiej Konferencji Naukowej Prawniczych Zawodów Zaufania Publicznego „Członkostwo w samorządach zawodowych”, Toruń, 20 stycznia 2022 r.

The report on the National Scientific Conference of Legal Professions of Public Trust, “Membership in professional self-governments”, Toruń, January 20, 2022. The third edition of the National Scientific Conference of Legal Professions of Public Trust was held on January 20, 2022. The event was organized remotely, due to the current epidemic situation, and was dedicated to the topic of membership in professional self-governments. The conference was organized by the Department of Administrative Law at the Faculty of Law and Administration of Nicolaus Copernicus University in Toruń. The main topics discussed during the conference were primarily inspired by the legislative changes concerning specific legal professions of public trust and also by de lege ferenda proposals regarding memberships in professional self-governments. A total of eleven presenters delivered lectures during the conference, both representatives of academic circles of six universities, as well as practitioners – representatives of professional self-governments of attorneys-at-law, advocates and notaries.

Szczególne korzyści przyznane wspólnikowi w umowie spółki z ograniczoną odpowiedzialnością

Przedmiot badań: W tekście poddano analizie art. 159 kodeksu spółek handlowych. Cytowany przepis przewiduje możliwość przyznania „szczególnych korzyści” wspólnikowi spółki z ograniczoną odpowiedzialnością. Regulacja ta ma wyjątkowy charakter, biorąc pod uwagę fakt, że wpływ udziałowca na funkcjonowanie tego podmiotu – co do zasady – zależy od wartości posiadanych jednostek uczestnictwa.
 Cel badawczy: Celem publikacji jest kompleksowe przedstawienie problematyki związanej z przedmiotem oraz zakresem przywilejów przypisanych uczestnikowi spółki z ograniczoną odpowiedzialnością, ich przyznawaniem oraz wygasaniem. Cel ten starano się osiągnąć poprzez analizę wymienionych aspektów w trzech jednostkach redakcyjnych. W pierwszej skupiono się na zagadnieniach związanych z przedmiotem oraz zakresem przedmiotowym dodatkowych kompetencji. W drugim na ich przyznawaniu. W trzecim z kolei na wygaśnięciu.
 Metoda badawcza: W pracy wykorzystano metodę dogmatycznoprawną. Sięgnięto w szczególności do tekstu ustawy z 15 września 2000 r. kodeks spółek handlowych, komentarzy, artykułów oraz monografii, a także orzecznictwa. 1
 Wyniki: Skutkiem bliższego przyjrzenia się omawianej problematyce jest sformułowanie trzech kategorii konkluzji oraz ewentualnych wniosków de lege ferenda. Pierwsze są pozytywne. Dotyczą one istnienia unormowań umożliwiających przypisanie szczególnych uprawnień wspólnikom spółki z ograniczoną odpowiedzialnością. Drugie zaliczają się do mieszanych. Chodzi tu o brak określenia przedmiotu oraz zakresu przedmiotowego omawianego zagadnienia. Prima facie stan ten może wydawać się korzystny, choć – jak się okazuje – nie do końca tak jest. W tym przypadku zaproponowano konkretne rozwiązania legislacyjne, mogące poprawić tę sytuację. Ostatnie są krytyczne. Odnoszą się one do kwestii wygasania „szczególnych korzyści”. De lege lata nie jest ona jednoznacznie uregulowana. Wobec tego powstają wątpliwości na gruncie stosowania art. 159 kodeksu spółek handlowych. W tej materii także wzmiankowano o sposobie poprawy redakcji przepisu.