De Lege Research Articles

GENERAL PRINCIPLES OF ENFORCEMENT PROCEEDINGS IN ADMINISTRATION

Numerous general principles are used in administrative enforcement proceedings, which mainly take a directival form. In the study, research has been focused on the description and analysis relating to general rules of law, principles of administrative law and principles of administrative procedure used in enforcement proceedings. However, special attention was paid to the general principles having their source in the Law of June 17, 1966, on Administrative Enforcement Proceedings.The aim of this research is an attempt to synthesize these principles and show their role in involuntary proceeding. When starting the research, a research hypothesis was put forward, which assumes that the application of general principles in enforcement proceedings in administration guarantees their correct course, and the principles themselves are a set of norms shaped mainly by legal provisions. The analyses carried out allowed to confirm the thesis and to identify a number of de lege ferenda conclusions, indicating the need to revise some rules. First of all, attention was drawn to the lack of terminological consistency regarding the general principles of enforcement proceedings. Further attention was paid to the need for legislative changes regarding the formation of the principle of conducting enforcement in a manner least burdensome for the obliged, which in the author’s opinion is too general. Another conclusion is the demand for a revision of the provisions of Articles 8 to 10 of the Law on Administrative Enforcement Proceedings. These provisions, which are a manifestation of the principle of respect for the minimum subsistence, are outdated and do not reflect the current situation, especially of farmers.

Sztuczna inteligencja vs prawo autorskie – pytanie o finał starcia. Futurologia, a może to już jutro?

This research paper concerns the copyright-law consequences of generating literary and artistic creations resulting from the “creative activity” of artificial intelligence (AI). The essence of the problem that rapidly gains practical significance boils down to the question whether, at present (de lege lata) and in the future (de lege ferenda), such creations can be protected under copyright law and who should possibly be considered to be the author. The legal-dogmatic analysis of the normative matter, the current state of science and the case law in force applicable here, shows that under the current legislation the creations generated by AI do not fall within the definition of creative work and do not form the subject of copyright as they were not created by human being. Therefore, the AI may not be considered to be the author and thus endowed with a copyright and even more a moral right to the work. In the de lege ferenda perspective, the proposals to cover AI-generated assets by protection outside the copyright law area, e.g. through related rights or the institution of work made for hire, are not fully convincing for axiological reasons, i.e. the difficulty of identifying a person who deserves to benefit from such protection. Nor can the proposal to grant subjective rights to AI itself be supported, since this would mean changing the axiom of the copyright law, namely that only a human being can be the author. If copyright is to survive as a right of a human creator, which should be advocated, then in the light of this regulation the literary and artistic creations generated by AI should remain in the public domain.

Economic Dependence as a Criterion for the Protection of the Self-Employed under EU Law and in Selected Member States

This paper presents the cornerstones of the conceptual distinctions necessary to map out a separate category of workers, namely “economically dependent self-employed workers” (who fall between dependent subordinated employees and independent self-employed entrepreneurs) from the perspective of the EU law and the laws of selected Member States. The author considers how the economic dependency of self-employed workers should be defined, which method(s) of protection should be applied to these workers, and what scope of protection they should enjoy. The observations in this paper serve as a basis for de lege ferenda recommendations for the Polish legislator. At present, there is no separate category of “economically dependent self-employed workers” in Polish law.

Przepadek zwierzęcia w świetle orzecznictwa sądowego – analiza przypadku i postulaty de lege ferenda w celu podniesienia ochrony prawnej zwierząt

The article aims to present the functioning of the institution of animal forfeiture under the Act of August 21, 1997 on animal protection. It is a repressive-preventive institution, which is closely related to the property rights of every citizen under the Constitution of the Republic of Poland. At the beginning of the considerations, an attempt was made to define the concept of “animal forfeiture” and to indicate the legal basis for ruling on this legal measure. The types of animal forfeiture occurring under the Act are presented and the circumstances determining their ruling identified. The analysis is extended to include the presentation of cases of application of this institution taken from court rulings and supported by statistical data regarding their adjudication. An interesting aspect of the article is the presentation of resolutions of City Councils, which were declared invalid by the Provincial Administrative Court to the extent that they were inconsistent with the Animal Protection Act. Extensive legal considerations, reinforced by case law and analysis of statistics, have made it possible to present de lege ferenda postulates with regard to raising the level of protection of animal rights. One of the proposals is to combine the institution of forfeiture with a total ban on animal ownership, as well as to articulate in the law the justification for ordering the forfeiture of an animal’s carcass. The article is an attempt to present legal solutions that will enhance the legal protection of animals. As shown in the article, this measure is used relatively rarely. Statistics show that it was applied in only 21.5% of the cases analyzed. Such results may raise legitimate doubts, since most animals against which crimes have been committed are still under the care of their perpetrators, which should undoubtedly change.

Account Information and Payment Initiation Services and the Related AML Obligations in the Law of the European Union

Account Information and Payment Initiation Services and the Related AML Obligations in the Law of the European Union

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.

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.

Мировая юстиция в современной России: быть или не быть?

The article studies the institution of justices of the peace in the historical and comparative law aspects and uses such study as the basis to determine de lege ferenda the role of a contemporary Russian justice of the peace in the national legal system along with the vector of development of the domestic criminal lay justice. The author justifies the need for the revival in the contemporary conditions of the “peace making” model of justice of the peace court to be used in cases where criminal punishment can be much less effective than conflict resolution through settlement: by performance of a number of conditions that wind such conflict down and eliminate its consequences. The publication suggests the respective expansion of professional competencies of a justice of the peace and statutory consolidation of his mission as a mediator, which can be an important step in the improvement of this critically important Russian judicial institution.

The Doctrine of Subrogation and the Specifics of its Interaction with Regression in Russian and Foreign Law

The author examines the doctrine of subrogation in historical and comparative legal aspects. The paper analyzes the interaction of the rules on subrogation and regression and examines the cases of applying the rules on subrogation to regression claims. The interaction between regression and subrogation is not limited to the default use of one or another model, depending on the normative regulation of the legal institution. This concerns the application of the nemo subrogat contra se principle to impose the prohibition to act to the detriment of the creditor under the main obligation in case of its partial fulfillment, the possibility of transferring recourse obligations to other persons through the subrogation mechanism. In some cases, the fulfillment of a recourse obligation may result in the subrogation of the regressant’s rights to the regredient. The author analyzes the choice of the legislator in terms of the model of the reverse claim in surety and insurance. It is indicated that in a situation where the rule of law does not allow the executor to exercise the rights of the creditor through subrogation, he is given the opportunity to reimburse his expenses through recourse. Regression in this regard does not mean an improvement in the position of such a person, but allows an individual to protect his interest where, for formal reasons, he does not have other legal means, which fully corresponds to the regime of a subsidiary remedy. The paper elucidates the arguments for and against the ability of the executor to independently choose the model of the reverse claim. It is concluded that de lege ferenda there are grounds for the executor in a number of cases (primarily with a joint obligation) to independently choose a model of a reverse claim, if this is not carried out to the detriment of the interests of the debtor and third parties.

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.

Aktualna regulacja użytkowania dronów w prawie polskim – ocena i postulaty de lege ferenda

The article highlights the problem of the lack of drone regulations in Polish aviation law. The authors identify areas of use of unmanned aerial vehicles and propose possible solutions to problems related to drones. They also specify particular de lege ferenda postulates in the area concerning the operation, exploitation, and use of unmanned aerial vehicles.

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.

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.

ECOSCHEMES AS A NEW LEGAL INSTRUMENT OF THE COMMON AGRICULTURAL POLICY

The article presents the issue of ecoschemes as a legal instrument of the Common Agricultural Policy. Its legal construction in European and Polish law is discussed. The effectiveness of the proposed solutions in legal and economic terms is assessed ex ante. At the same time, the article presents possibilities of changes in the Common Agricultural Policy in the scope of such ecoschemes as voluntary payments after 2027. The effectiveness of the proposed mechanism is also assessed in the context of the existing legal instruments, such as the greening policy, which does not achieve the objectives of the CAP. De lege ferenda postulates for selected ecoschemes are included.

CIVIL LIABILITY FOR DAMAGE CAUSED BY A DIETARY SUPPLEMENT

This paper is an attempt to answer a question concerning the existing legal framework and whether or not it is sufficient to ensure civil liability for damages caused by the consumption of a defective dietary supplement. The issue of proper regulation of liability for the defects of unsafe food products will become increasingly important in view of the rapid development of food production and consumption. It is assumed that normative sanctioning of that type of liability should primarily contribute to ensuring better protection of the consumer. However, the example of liability of damage caused by consuming dietary supplements illustrates that we are dealing with a multi-dimensional issue that may go beyond the applicable regime. The existing legal framework is insufficient to ensure civil liability for damages caused by the consumption of a defective dietary supplement. It is a direct consequence of the specific nature of dietary supplements and the lack of an adequate risk analysis when adding a definition of that product to EU law. De lege ferenda, it is imperative that the term of a product ‘defect’ be expanded and that additional disclosure duties are imposed on manufacturers, among others.

The Case Law Of The Court Of Justice Of The EU On Art. 17 Of The 1999 Montreal Convention: An Evaluation From A Comparative Perspective

This paper analyzes the case law of the Court of Justice of the European Union (CJEU) on Article 17(1) of the 1999 Montreal Convention (MC99) regarding the liability of international air carriers for death or bodily injury to passengers. The interpretational principles and methods applied by the CJEU are examined, accounting also for the particularities of the EU legal order. Furthermore, the results reached by the CJEU are compared with the case law of other jurisdictions, mainly the US, and doctrinal writings. Nonetheless, this paper does not explore the pertinent issues from a de lege ferenda perspective. The paper concludes that the judgments of the CJEU on Art. 17(1) MC99 have interpreted the notions of “passenger,” “accident,” and “bodily injury” broadly, in a passenger-friendly way. Although the interpretation of ‘passenger’ does not differ from the established case law in other jurisdictions, some aspects of the interpretation of “accident” and the interpretation of “bodily injury” significantly depart from the view currently prevailing among courts internationally. The CJEU has yet to rule on the scope of the exclusivity of the MC99, under Art. 29 thereof, regarding personal injury of passengers. However, the expansive interpretations of “accident” and “bodily injury” by the CJEU limit the practical effect of Article 29 compared to other jurisdictions. Given the regulatory influence that the EU exercises world- wide, the CJEU judgments might guide courts also outside the EU. Although this would bolster passenger protection, it would exacerbate the already fragmented application of the MC99 internationally.

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.

On certain issues of testamentary inheritance in Serbian law: De lege ferenda (part II)

On certain issues of testamentary inheritance in Serbian law: De lege ferenda (part II)

Uwagi o implementacji dyrektywy towarowej do polskiego porządku prawnego

The purpose of the article is to examine the effects of the entry into force of the Act of 4 November 2022 amending the Consumer Rights Act, the Civil Code Act and the Private International Law Act, being a result of the implementation of the so-called Sale of Goods Directive. The author analyses the issue using the formal-dogmatic method, focusing on the impact of the changes introduced by the above-mentioned Act on the standard of consumer protection and the manner in which entrepreneurs conduct their business activities. Moreover, he identifies the most significant problems related to the implementation of the Sale of Goods Directive into the Polish legal order, drawing attention to the legal and economic consequences of the choices and solutions adopted by the Polish legislator. He also assesses both the content of the Act in question and the content of the Sale of Goods Directive, formulating de lege ferenda conclusions.