De Lege Lata Research Articles

‘Foreign’ Trademarks in Jordan and the Influence of Imperial Powers

Abstract The Jordanian Trademarks Law, as it stands today, suffered from the influence of imperial powers. Namely, the influence of the USA and UK has resulted in the introduction of a classification of trademarks, which is: “Foreign Trademarks”. This paper proves the said influence through the standard of well-known trademarks under the Jordanian Trademarks Law, in addition to the preferential treatment of the foreign trademarks in terms of invalidity and annulment. It is argued that the privileges given to foreign trademarks were to the detriment of national trademarks. This paper is a call for Jordan to put national interests first in this area of law, and advances an argument for a legislative reform, De lege ferenda, and the way Jordanian courts and the trademarks’ registrar should deal with the law as it stands today, De lege lata, in order to mitigate the loss that ‘national’ marks currently suffer from.

Zwolnienie od pracy z powodu działania siły wyższej i urlop opiekuńczy z perspektywy prawa socjalnego

The subject of this study is to critically discuss the implementation of Directive 2019/1158 on time off from work and carers’ leave from a social law perspective, taking into account the objectives of the Directive and in the context of the EU’s competences regarding social policy. The starting point will be to outline both institutions in the light of the statements in the labour law literature. Next, the instruments in force in Germany for the protection of informal carers during time off or carer’s leave will be presented. Against this background, it will be possible to discuss the existing de lege lata and postulated de lege ferenda regulations of Polish social law, which—as it seems—could and should serve to protect employees using the newly introduced labour law institutions, so as to achieve the goal of ensuring a balance between the professional and private lives of parents and carers.

SYSTEMATIC AND LEGAL ASPECTS OF LEGAL RESPONSIBILITY FOR ILLEGAL ACTS WITH AMBER

The article is devoted to the disclosure of certain systemic and legal aspects of responsibility for illegal actions with amber. Relevant judicial practice is analyzed. Proposals for improvement of Art. 240-1 of the Criminal Code of Ukraine “Illegal extraction, sale, purchase, transfer, forwarding, transportation, processing of amber”. The issue of the application of the criminal law norm of insignificance for the legal assessment of illegal amber mining and its illegal handling was considered. The existence of a conflict between the investigated criminal law ban and Art. 47 of the Code of Ukraine on Administrative Offenses “Violation of the State Property Right to Subsoil”, comments are expressed regarding its (collision) overcoming in the aspects of de lege lata and de lege ferenda. It is argued that the socially dangerous consequences of illegal mineral extraction (in particular, amber) should be labeled as damages. It is shown that carried out within the limits of Art. 240-1 of the Criminal Code of Ukraine, the differentiation of responsibility related to the size of illegal actions with amber is insufficient. The relevant provisions of the project of the new Criminal Code of Ukraine were analyzed, the advantages and disadvantages of the relevant formulations were clarified. In particular, the proposal of the drafters of a potential criminal law to distinguish the grounds of criminal responsibility for the illegal acquisition of natural resources, on the one hand, and individual manifestations of involvement in the behavior of those who commit illegal extraction of natural resources from their natural environment, on the other, was supported. The issue of the appropriateness of anchoring in Part 1 of Art. 240-1 of the Criminal Code of Ukraine instructions on actions other than illegal amber mining.

The Legal Requirements for a Shareholder’s Exclusion from a Limited Liability Company According to Article 420 para. 3 of the Companies Act with a Special Reference to Issues Related to the Reimbursement of the Market Value for the Shares Held in the Company

The Companies Act provides that a shareholder can be excluded from a limited liability company if there is an important reason for his exclusion. Besides the existence of an important reason, such exclusion must also be a measure of last resort (ultima ratio) and the excluded shareholder must be reimbursed for the market value of the share it held in the company. The paper analyses and elaborates on these requirements but also emphasizes some of the issues that the existing regulation inadvertently creates with the rules on share capital maintenance and share capital contributions. It will be demonstrated that these rules can hinder or even disable the exclusion of a troublesome shareholder from the company thus preventing the attainment of the purpose of the rules relating to the shareholder’s exclusion. Therefore, specific de lege lata and de lege ferenda suggestions are provided to the Croatian legislator and the practitioners.

SPC squatting

Abstract Supplementary protection certificates (SPCs) for pharmaceutical products are an important complement to patent protection which is often inadequate in commercial terms. SPCs are designed to ensure that originators can amortize their high investments in research and clinical trials. But unlike in the USA, for example, the European SPC is not simply a patent term extension. Rather, it is a unique form of intellectual property right whose subject matter is not the overall patented invention, but the active ingredient or combination of active ingredients of a patented and authorized pharmaceutical product. This link between the basic patent and market authorization has led to many questions of interpretation and Court of Justice of the European Union (CJEU) rulings since the SPC Regulation was adopted. An issue that has not yet been decided by the CJEU concerns the discrepancy between the ownership of the patent and the marketing authorisation under pharmaceutical law. This scenario, in which a patent proprietor relies on the marketing authorisation of a third party (possibly even a competitor) in said patent proprietor’s application for an SPC, is also referred to as “SPC squatting”. The following article discusses the admissibility of such a practice de lege lata, which also becomes relevant in light of current reform efforts by the legislator.

Petitions and complaints against police officers in the Republic of Croatia de lege lata and de lege ferenda

U ovom radu daje se analiza postojećeg zakonodavnog modela podnošenja i rješavanja predstavki i pritužbi na rad i ponašanje policijskih službenika u Republici Hrvatskoj. Nakon analize pravne regulative, stajališta pravne doktrine, sudske prakse, statističkih pokazatelja, kao i rezultata empirijskog istraživanja provedenog anketom među studentima Veleučilišta kriminalistike i javne sigurnosti u Zagrebu, daju se prijedlozi za izmjene zakonodavnog okvira. Autori su stajališta da je uvođenjem civilnog nadzora nad radom policije napravljen značajan iskorak u zaštiti ljudskih prava i nadzoru nad radom policije, međutim ističu da se institut predstavke i pritužbe često zlorabi na štetu policijskih službenika zbog čega im u svakom takvom slučaju treba pružiti pravnu zaštitu u vidu procesuiranja podnositelja koji u tim podnescima vrijeđaju policijske službenike ili ih lažno terete za počinjenje kaznenog djela. Smatraju i da je potrebno regulirati postupanje s anonimnim podnescima i detaljno propisati prava policijskih službenika čiji se rad i ponašanje provjeravaju (pravo uvida u spis, pravo sudjelovanja u postupku, pravo na dobivanje predstavke ili pritužbe i odgovora koji se dostavlja podnositelju predstavke ili pritužbe).

Legislative Function of the Second Chamber of Parliament of Poland Against the Background of the Solutions of Czech Republic and Romania: de lege lata v. de lege ferenda

Legislative Function of the Second Chamber of Parliament of Poland Against the Background of the Solutions of Czech Republic and Romania: de lege lata v. de lege ferenda

Criminal Law Assessments of the Exploitation of Prostitution Practised by Humanoid Robots

Abstract The subject of this study is the criminal law issue of exploiting prostitution practised by humanoid robots. Interest in this issue stems from two main reasons. Firstly, the development of new technologies, including artificial intelligence capable of self-education, analysis of the surrounding reality, and decision-making necessitates the consideration of its legal subjectivity. Secondly, the emergence of brothels employing humanoid robots prompts reflection on the criminal responsibility of those who benefit from the prostitution facilitated by them. This article aims to highlight the phenomenon of using humanoid robots in prostitution, offer a criminal law assessment of such behaviour from the perspective of Polish criminal law, and suggest the direction for the development of domestic criminal law to accommodate this phenomenon in the future. Additionally, it addresses the issue of criminal liability for harm caused by a humanoid robot equipped with artificial intelligence while providing sexual services. The article predominantly employs the dogmatic-legal method, performing an exegesis of the provisions of Article 204 of the Criminal Code in the context of the issue signalled. The analyses have concluded that this norm does not encompass in which the perpetrator facilitates, induces prostitution of a humanoid robot or derives financial benefits from such activities, despite such behaviour being detrimental to morality, the fundamental good protected under Article 204 of the Criminal Code. De lege lata, a humanoid robot may also not be subject to criminal liability if it harms a person using its sexual services, as such an ‘essence’ does not align with the current structure of crime and the concept of criminal punishment. However, the liability of manufacturers or users of such devices is not ruled out. It should be noted that as humanoid robots become more autonomous, holding producers or users criminally liable for damages they cause becomes less justifiable, and the applicability of artificial intelligence liability similar to the criminal liability of legal persons becomes more relevant.

Obustava ovrhe zbog ovrhovoditeljevog nepoduzimanja radnji u postupku

At the end of 2020, the amended provision of Art. 72 of the Croatian Enforcement act entered into force, paragraph 3 of which now provides that enforcement shall be terminated ex officio if the party seeking enforcement did not perform a single legal action in the proceedings within one year. After the introduction which reflects on general and special reasons for termination of enforcement in general, the authors analyze the subject provision de lege lata. They point out the positive and negative effects of that provision, linking them with the original intent that the legislator had upon its enactment. In that part of the paper, the authors compare the subject provision with the provision of Art. 72 para 2 of the Enforcement act and point out its (in)existence in the legal orders of other European countries. Special attention in the analysis is given to the character i.e. to the content of the legal action that the party seeking enforcement has to undertake within a year in order to avoid termination of enforcement by application of the subject provision. The authors also point out the modalities in which domestic courts interpret the subject provision and it is also analyzed from the viewpoint of the right of access to a court. Finally, the authors warn about the problems that may appear because of egregious formalistic interpretation of the subject provision and they discuss de lege ferenda suggestions to limit its application exclusively to proceedings for enforcement of monetary claims.

At the EU Borders – Between the Use of Information Systems in Migration Procedures and Refusal of Entry into The Country

The reason for writing this article is the fact that the migration crisis that has been ongoing in Europe since 2015 is one of the greatest challenges that the European Union (EU) has faced since its establishment. It requires Member States to fulfill their obligation to ensure the security of the EU’s external and internal borders, while respecting common values, which include solidarity and human rights. The aim of the article is to analyze and evaluate the currently functioning migration policy, especially in the context of the use of EU IT systems in the face of the phenomenon of refusal of entry into the territory of the receiving country. This combination of two research areas fills a certain gap in the current literature on the subject. De lege lata comments and de lege ferenda demands will be presented, focusing primarily on criticism of the current system. The research used two research methods typical of legal sciences: the formal-dogmatic method and the comparative method. As a summary of the findings, it can be noted that investments are actually being made in new IT systems, the potential of which is still unused, and on the other hand, it is clear that basic human rights are not fully respected in the form of allowing applications for international protection. There is a need to reform migration management at the national level of Member States to be as consistent as possible with EU law and, in particular, its fundamental values.

Pravni položaj Evropske centralne banke u savremenim društvenim prilikama

This paper analyzes the legal position of the European Central Bank (ECB) within the context of contemporary social conditions, focusing on the ECB's tendency to expand its competencies and the judicial evaluation of the current monetary legislation in the practice of the European Court of Justice (ECJ). In this sense, the paper analytically examines the concept and characteristics of monetary disputes, while exploring the ECB's contribution to democratic monetary governance through respect for the rule of law. The author pays special attention to the ECB's role in protecting human rights, specifically considering the trend towards a so-called "humane approach" to monetary management, which has significant consequences for the preservation of monetary stability as a public good. Using the dogmatic, comparative, and axiological methods, the author aims to highlight the main dilemmas in this area from the perspective of de lege lata and possibly offer certain guidelines for de lege ferenda.

Możliwość orzeczenia zakazu zajmowania stanowiska (stanowisk), wykonywania zawodu (zawodów) lub prowadzenia działalności związanej z wychowaniem, leczeniem, edukacją małoletnich lub opieką nad nimi za przechowywanie lub posiadanie treści pornograficznych z udziałem małoletniego – analiza empiryczna i formalno-dogmatyczna

The objective of this study is to answer the question whether adjudicating a ban on holding a position (or positions), practicing a profession (or professions) or conducting activities related to the upbringing, treatment, education or care of minors for storing or possessing pornographic content with the participation of a minor child is legally justified de lege lata. The authors present their standpoint on the basis of a detailed analysis of the elements of penal measures under Articles 39(2) and 39(2a) of the Polish Criminal Code and the conditions for adjudicating these measures provided for in Articles 41(§1) and 41(§1a) of the Criminal Code. For this purpose, a review of Canadian, American, Swiss, German and Czech studies on the correlation between crimes involving child pornography and physical sexual abuse of minors has been conducted. At a later stage, a formal-dogmatic exegesis of rights protected by the types of prohibited acts criminalizing the possession or storage of child pornography, the concept of ‘damage to a minor’ and the collision arising from the application of Article 41(§1) and Article 41(§1a, sentence 2) of the Criminal Code has been undertaken. The conclusion that emerges from both the hitherto achievements of empirical research and the appropriately made formal-dogmatic analysis indicates that at present there are no legal grounds to adjudicate the said criminal ban in the case of possessed or stored, and not self-created, child pornography. Nonetheless, a possible social unrest arising from the fact of a professional contact with children by persons having or storing such materials may be accommodated by a simple amendment to the Article 41(§1a, sentence 2) of the Criminal Code, as proposed by the authors.

Competence of Tax Authorities in the Gift and Inheritance Tax

The topic of tax authorities is essential from both theoretical and practical perspectives. It encompasses a variety of questions related to the fundamental features of these institutions and to the identification of comprehensive regulations for establishing their competency. Additionally, it holds particular importance regarding taxes since tax liability arises following the delivery of a constitutive decision by such an entity (a decision that determines the amount of tax liability). These premises facilitate an in-depth examination of the legal measures relevant to this case. Thus, the research presented here encompasses the relevant statutes, an implementing act, and the perspectives of legal scholars and commentators. Special attention is paid to the judiciary’s stance. The conclusions drawn from this study are useful for formulating de lege lata and de lege ferenda recommendations.

Construction Legislation – Current and Future in the Legal System of the Slovak Republic

Abstract The importance of addressing the effective functioning of competence execution in the construction sector primarily lies in its impact on the efficiency and quality of these competences. Currently, in Slovakia (SR), municipalities exercise the competences of spatial planning and building regulations within their transferred competence from the state. Through the government’s program statement for the years 2020–2024, the SR government committed to abolish municipal building authorities. With the new legislation that becomes effective on April 1, 2024, there will be a reverse transfer of construction competence from municipalities to state administration, to the newly created Office for Spatial Planning and Construction of the Slovak Republic and regional building authorities.The authors take a critical approach to the original construction legislation (de lege lata) as well as to the newly adopted laws on construction and spatial planning in terms of substantive and procedural provisions, noting the exclusion of the application of Administrative Code in spatial and building proceedings. Through our research on this issue, we suggest de lege ferenda two alternatives regarding the exercise of construction competences at the municipal and state levels and the preservation of dual jurisdiction in building proceedings according to the current administrative procedure.

State Immunity from Civil Jurisdiction in Transboundary Environmental Litigations

Abstract The paper offers a de lege lata and de lege ferenda analysis of State immunity from civil jurisdiction in cases related to environmental transboundary damage, including climate change litigations. De lege lata, the analysis focuses on the customary exceptions to State immunity, namely the restrictive doctrine and the forum tort exception. De lege ferenda, the contribution firstly discusses the recent domestic case law lifting jurisdictional immunity for acts jure imperii which amount to serious violations of human rights and/or humanitarian law. Secondly, it seeks to open the discussion on a possible reform of the forum tort exception on the model of the European discipline of private international law in matters of tort, in order to ensure better protection of the individual right to an effective remedy.

The Problems of Remote Work in Polish Labour Code

Section IIC of the Labour Code that was adopted by the Parliament in December 2022 introduces new regulations concerning remote work to Polish labour legislation. Thus, the binding legal provisions included in the anti-Covid legislation were repealed. The legislation authority established a new model of remote work. The aim of this study is to provide a general characteristic of this model. For the purposes of this article, I will focus mainly on the subjective and objective issues. The essence of remote work consists in performing this work at a location specified by the employee and agreed with the employer. The results of remote work are submitted with the use of means of remote communication. De lege lata, two types may be distinguished: contractual remote work and remote work that is designated unilaterally. This allows the parties to the employment relationship to adapt it in a flexible way to the diverse conditions of the work environment at the dawn of the post-industrial era.

Status Issues of Platform Work

The subject of the author’s analysis is the performance of work for digital platforms, which is currently developing very dynamically and is significantly ahead of legal regulation. The first legal regulation of work performed for digital platforms at the level of the European Union will be the upcoming directive on improving the working conditions of persons working through digital platforms. The author examines the draft of the aforementioned directive, especially its legal consequences for the legislation of the Slovak Republic. Since the work for digital platforms with algorithmic management often does not meet either the legal characteristics of “dependent work” or the legal characteristics of “independent work”, the author de lege ferenda proposes a legislative solution to the status issues of persons working for digital platforms also by means of a reassessment of the current normative definition of the term “dependent work” as well as the term “employee” which, according to the legal status de lege lata, is defined significantly narrower compared to the personal scope of the proposed directive. In this way, it would be realistically possible to ensure the social protection of natural persons working for digital platforms in the near future.

New regulations on the sale and supply of digital services and digital content in consumer turnover (I)

The first part of the article describes how the Directive of the European Parliament and of the Council (EU) 2019/771 of May 20, 2019 on certain aspects of contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC and repealing Directive 1999/44/EC was transposed into Polish legislation. The obligation related to the implementation of the aforementioned directive, which is of a maximum nature, forced a return to the concept of seller's liability for non-conformity of goods with the contract, which was in force in consumer trade until December 24, 2014. De lege lata, the provisions on guarantee for defects of goods contained in Civil Code will not apply to contracts for the sale of goods that are movables concluded between a consumer and a businessman. The paper describes which regulations have worsened and which have improved the position of consumers purchasing goods from entrepreneurs. The second part of the study will address the implementation into Polish law of Directive 2019/770 of the European Parliament and of the Council (EU) of May 20, 2019 on certain aspects of contracts for the supply of digital content and services, which regulates the rights and obligations of entrepreneurs and consumers who are parties to contracts for the supply of digital content or services for the provision of digital content or digital services.

The Concept and Types of Liability in Russian Civil Law

The paper describes the results of the study of the concept of liability under the civil law of Russia as it is reflected in the current legislation of the Russian Federation. The authors proceed from the fact that such an approach to the study of civil law phenomena, including liability, is constructive, since the phenomena under examination are investigated first in the context of de lege lata, and then in the context of de lege ferenda. Research in the aspect of de lege lata involves identification of the legislator’s understanding of the content of the category of liability under civil law that is expressed in the current civil legislation. It is emphasized that the interpretation of liability in the aspect of de lege lata can be used in the interpretation and application of current legislation. The understanding of liability expressed in the legislation should be mainly used in the interpretation of the truth before the purely theoretically cognizable essence of responsibility under civil law, and the theoretical essence of responsibility should be taken into account when making amendments and additions to the current legislation. The paper critically assesses the tendency to cumulate liability measures by introducing such new types of liability as fair compensation (Article 65.2 of the Civil Code of the Russian Federation) and compensation for damage (Article 16.1 of the Civil Code of the Russian Federation). The authors criticize the attempts of the judiciary to legalize such a type of liability as compensation for causing reputational damage to legal entities through its own practice (and not through the legislative process). The authors conclude that it is possible to distinguish between liability measures and other civil law methods provided for by the current legislation of the Russian Federation, which does not exclude the need for its further improvement both in terms of the development of general provisions and in relation to the regulation of individual civil liability measures

The Death of an Insolvent Entrepreneur in the Light of Bankruptcy Law Regulations

Abstract This study aims to identify and analyse the specific regulations of the Bankruptcy Law to the extent that they relate to the death of an insolvent debtor. The authors attempt to determine the correct interpretation de lege lata, and where it is justified, draw conclusions de lege ferenda. Due to the fact that regulations must be interpreted together with the provisions of inheritance law and other regulations, their correct interpretation may be difficult. This study contains an analysis of three possible cases: when death occurred after the filing of a bankruptcy petition, during the course of bankruptcy proceedings, but also on the brink of bankruptcy before the petition was filed by an authorized person. In the event of death after filing for bankruptcy or after its declaration, the problem is essentially of a procedural nature and is generally resolved by identifying the persons participating in the proceedings (usually a trustee). On the other hand, in the event of the death of an insolvent entrepreneur before they file for bankruptcy, the Bankruptcy Law provides for a separate procedure. At the same time, it seems that due to the distinctness of this situation, the introduction of a different, specific definition of insolvency is justified, which the authors present in this study.