Formal-dogmatic Method Research Articles

Przestępstwo uchylania się od wykonania środka kompensacyjnego (art. 244c Kodeksu karnego) – ocena zasadności wprowadzenia regulacji

The purpose of this article was to assess the legitimacy of introducing Article 244c into the Criminal Code. It provides for the possibility of punishing a person who evades to fulfill of a compensatory measure in the form of a duty to redress damage or make restitution, ordered by the court in favour of the wronged party, for a crime prosecuted by public indictment. The regulation was analysed using the formal-dogmatic method, in order to verify whether the introduced provision is consistent with other solutions of criminal law and whether it does not contain any constructional errors. As a result of this analysis, it was concluded that this regulation cannot be reconciled with the nature of redress damage as a compensatory measure. Overly far-reaching penalisation has led to excessive differentiation of the effects of imposing the duty to redress damage on the perpetrator as a compensatory measure and as an effect of allowing a civil action and has led to many systemic inconsistencies related to the imposition of the duty to redress damage in criminal law. The regulation itself, on the other hand, is not very precise and does not properly define when the offender’s fulfilment of the elements of this criminal act occurs, which is its fundamental error.

Member States' obligations resulting from wasteful spending funds in the implementation of projects co-financed by EU funds in the light of the EU law. Searching for a common standard for management and control systems

This study aims to verify whether despite the generally formulated obligations in EU law intended to ensure that European funds are spent correctly, it is possible to clearly identify the scope of these obligations, and at the same time specify the standard recommended by the EU for national management and control systems. Author primarily uses the formal-dogmatic method to analyze the relevant EU law, the decision-making practice of the European bodies involved in the protection of EU financial interests, the Court’s case-law and the legal doctrine. Due to the lack of clearly recommended model at EU level while generally formulated conditions (especially those resulting from the Charter of Fundamental Rights) that need to be considered by Member States when designing their management and control systems, it is difficult to ensure that the systems are effective which is crucial for guarantee the protection of EU financial interests. The analysis showed that the problem starts at the source as the implementation of both fraud and irregularity concepts varies across Member States which significantly hinders their correct identification. To assist Member States in implementation of management and control systems, the respective guidelines adopted at EU level summarizing the key requirements applicable to national authorities involved in distribution of EU funds are worth considering.

The Right to Vote in the Light of an Individual’s End of Life

This paper has the following research thesis: An individual’s end of life has far-reaching legal effects, also in the sphere of the person’s subjective rights. The research problem consists in reflecting on the right to vote, understood as a human right, in the light of a set of legal norms that undergo changes quite frequently. The aim of this paper is to examine what concepts the legislator uses to describe the death of a person and what effects it brings in the sphere of substantive law? Does the current legal state require amendments? If so, what kind of changes? To determine this, I will examine two fundamental normative acts in the Polish system of sources of law: the Constitution and the Electoral Code. In the research conducted, I will apply the formal-dogmatic method. Apart from legal regulations, I will examine the opinions of legal scientists and some relevant judicial decisions. The Constitution does not link the consequences in the sphere of the electoral law to the end of individual’s life. Electoral Code uses the terms “death” and “died” directly providing for the end of life in special situations confirming the natural consequence of a given state of affairs and requiring various procedural steps. The author expresses the hope that his findings will become the basis for further profound research on the issues of electoral procedures related to the death of a person as: a voter, candidate or member of electoral bodies.

The significance of autonomous interpretation of the term ‘beneficiary’ for the EU funds management system under the Cohesion Policy

Adoption of the EU budget involves drafting of EU regulations that provide a uniform framework for spending the allocated funds. Such was also the case in the current period of programming EU funds what are spent pursuant to regulations that are directly binding in all Member States. The Polish legislator has introduced domestic regulations which accommodate a number of legal definitions including one of the term ‘beneficiary’, which in essence refers to provisions laid down in EU regulations. As a consequence, it means that EU laws that are subject to officially binding interpretation of the Court of Justice should be applied accordingly. Earlier decisions which addressed both the rights and obligations of the ‘beneficiary’ must be recognized as at least substantiated for the needs of implementing the Cohesion Policy. This article aims to analyse and assess the practice of implementing the term ‘beneficiary’ in the European Union from the perspective of European Union law in the context of Cohesion Policy. It considers present Polish legislative changes which followed the changes in at the Union level in the area of Cohesion Policy concerning the term ‘beneficiary’. The author mainly use the formal-dogmatic method typical to law studies. The author analyse the case-law concerning the term ‘beneficiary’ in Cohesion Policy. The analysis is based on the judgments of the Court of Justice of the European Union. The assessment includes only relevant judgements issued by the European Court Justice, which still play a significant role in present legislative changes driven at the Union level regarding Cohesion Policy. This text provides an overview of the general requirements for implementing European Law in accordance with the basic standards construed by the European Court of Justice. The paper deals with the autonomous interpretation of the term ‘beneficiary’ in the procedure of distributing EU in the field of Cohesion Policy. The author indicates the applicable interpretation of the scope of the term ‘beneficiary’ and outlines how the state administration bodies in the domestic legal system are charged with enforcing the term ‘beneficiary’. In conclusion of this paper, the author points out that the European Court of Justice did not directly construe the legal definition ‘beneficiary’ existing in European law. However, the optimal functioning of administrative bodies of Member States should take into consideration some judgements of ECJ concerning the fore-mentioned term. Such proceedings can be helpful in adjusting the legal system of implementation of Cohesion Policy in every Member State. More precisely, such proceedings are necessary to adapt appropriately the provisions of the legislative changes existing in the present EU regulation on the Cohesion Policy. In consequence, it can also eliminate potential administrative barriers and give more protection to the actors applying for EU grants.

The improvement of the institution of railway transportation in the context of modern challenges

Globalization transformations and the military aggression of the Russian Federation on the territory of Ukraine, as well as the blocking of seaports, have significantly changed the sphere of railway transportation. On the one hand, there were new tasks for the railway as one of the transport options for the export/import of products and the organization of passenger transportation, and on the other hand, the need to bring legislative regulation in accordance with European requirements. Therefore, in this context, it is important to analyze the possibilities for improving the institution of railway transport, to pay attention to the problematic aspects and nuances of railway work. The purpose of the work is to study the prospects for improving railway transportation in modern conditions and to consider problematic issues and challenges related to railway communication. The research methods are the dialectical method, the logical method, the concrete-historical method, the comparative-legal method, the formal-dogmatic method, the method of functional-structural analysis and theoretical-pragmatic analysis. As a result of the research, the current state of the railway industry in Ukraine was analyzed. The peculiarities of investment, the dynamics of passenger traffic, the volume of cargo transportation, and the consequences of the war on the territory of Ukraine for Ukrainian railways are considered.

Possible types of the conflicts of interest in advocacy and criteria for their classification

This article reveals problematic issues related to the study of both the essence of the conflict of interests in the aspect of practicing law, and in particular, the identification of possible types of such conflicts and the criteria for their classification. This article is primarily devoted to the study of various positions of scientists regarding the identification of possible types of such conflicts.
 The position is argued, according to which the most common cases of conflict of interests in the professional activity of a lawyer are the representation of two clients whose interests are conflicting. At the same time, one of the most difficult in terms of determining the essence of this kind of conflict is the relationship between a lawyer and a client - a legal entity. First of all, VKDKA significantly expands the understanding of conflicts of interest in advocacy and law enforcement practice.
 Within the framework of this study, the positions of domestic and foreign scientists regarding the allocation of various criteria for the classification of conflicts of interest in the professional activity of a lawyer were disclosed. The study focused on the fact that a significant number of potentially possible conflicts of interest in the professional activity of a lawyer led to the existence of various criteria for their classification (that is: in the legal literature, in particular, the following are distinguished: overt and hidden; real and imaginary; primary and indirect, as well as vertical, horizontal and mixed).
 In this article, general scientific methods of analysis and synthesis are widely used. To achieve the goal stipulated by the author, the methods characteristic of legal science was also applied. The research itself was carried out using, first of all, a formal-dogmatic method, which made it possible to distinguish the types and analyze the criteria for the classification of possible conflicts of interest in the professional activity of a lawyer.

Errare Humanum Est. The Right of Businesses to Make a Mistake and the Inspection Process

Abstract The statement errare humanum est undoubtedly takes on particular importance in the course of inspection proceedings, in particular as businesses are often lost in the maze of legal regulations. In order to make doing business easier, a new provision was introduced to the Polish Business Act from 6 March 2018 – “the right to make a mistake”. The paper aims to present a consideration of the essence of “the right to make a mistake” by businesses, looking at the procedures for correcting established violations of legal regulations by recently started businesses, as well as the negative aspects of exercising the right. The paper uses the formal-dogmatic method of analysing legal regulations. The presented conclusions may be particularly attractive businesses that are just commencing their business activity, for which their short period of operation may turn out to be a mitigating circumstance in the case of an ongoing inspection procedure.

Legal Institutions Regulating the Subject and Rules of Liability of Debtor’s Heirs: Comments on the Background of Polish and German Law Solutions

The article attempts to answer the question whether legal regulations regulating the aspect of the of succession law referred to in the title, i.e., the subject and principles of liability of the debtor’s heirs and the closely connected rights of the creditors, introduced by the Act of 20 March 2015 Amending the Act – the Civil Code and Certain Other Acts (official journal ‘Dz.U.’ of 2015, item 539), are sufficient. The considerations aimed at formulating conclusions were conducted on the basis of research methods appropriate to civil law. First of all, a formal-dogmatic method has been applied in order to present the current legal solutions and allowing, at a further stage of the considerations, to verify the research thesis and the underlying research hypotheses. In order to assess the degree of dissimilarity of solutions adopted in the Polish law, pertaining to the examined issue, with the solutions applied in other countries, the method of legal-comparative analysis was applied. For this purpose, the system of German law was chosen as, alike in the Polish law, in this legal system unlimited liability for inheritance debts is the rule. Some of the considerations were also based on the historical-comparative method and concerned mainly the discussion of other legal institutions known to the succession law relating to the scope and subject of the liability of the debtor’s heirs. These remarks referred primarily to regulations in force prior to the entry of the Polish Civil Code and the Code of Civil Procedure into force. The final part of the article presents conclusions and de lege ferenda postulates.

Features of the professional activity of a lawyer and the Ukrainian bar under martial law

This article is devoted to the disclosure of issues related to certain specifics of the professional activity of a lawyer and the Ukrainian bar in martial law.
 To achieve this goal, the author used a set of general and special methods that are characteristic of legal science. The research was conducted using primarily statistical and sociological methods, system-structural and formal-dogmatic methods, as well as the dialectical method of knowledge of legal reality.
 This article analyzes the practical activities of bar associations, in particular the National Bar Association of Ukraine, in the context of armed aggression by russia. It is concluded that in order to improve the quality of advocacy, primarily on a free basis, the National Bar Association of Ukraine established a Center for Methodological Assistance and Coordination of Volunteer Assistance to Military Servicemen. Also, the National Association of Advocates of Ukraine and the Bar Councils of the respective regions took many different measures to address pressing issues of protection of the rights and interests of citizens, servicemen and lawyers themselves.
 Emphasis is also placed on the activities of the Board of Trustees of the National Bar Association of Ukraine and foreign partners in assisting Ukrainian lawyers. The position is argued that the number of national professional organizations (associations) of lawyers, law firms and law firms, as well as ordinary lawyers from all over the civilized world, united by the desire to support Ukrainian lawyers and Ukrainians in general and provide them with various assistance, is incredible. which they need in connection with russia's military aggression.

Direct and indirect effect of European Uniondirectives in the context of European UnionCourt of Justice decisions

The objective of this article is to analyze the direct effect of EU directives in vertical and horizontal legal relationships as well as theindirect effect of EU directivesin the context of EU Court of Justice decisions. In particular, attention is paid to the study of the consolidated legal positions regarding the possibility of the “verticaldirecteffect”, “horizontaldirecteffect” and “indirect effect”of EU directives.Dialectical, comparative-legal, historical, and formal dogmatic methods were used in the research.As the resultof analyzewas made the conclusion that the EU directives, which are used by national courts to fulfill their obligations regarding the respective interpretation, can not be considered with direct effect, because in such disputes they serve as a means of determiningthe scope of other legal provisions that the national court treats or interprets. In such situations, the directive may be applied in cases indirectly, that is, by virtue of another (national) provision, as interpreted.

Individual Сontract as a Form of Law and its Normativity

Modern society cannot be imagined without the institution of individual contractual regulation – our daily life is surrounded by a large number of contractual legal relations. In this regard, it is relevant to consider such a controversial topic as the recognition of the status of a form of law for an individual contract. The object of the study is social relations related to the conclusion, modification and termination of an individual contract. The empirical base consists of labor and civil law contracts. Based on this, the article has an interdisciplinary character – therefore, the subject is in the field of development of three legal sciences at once – the theory of state and law, civil and labor law. The science of the theory of state and law acts as a methodological basis necessary for evaluating the obtained industry data. General scientific methods are used – structural and functional method, analysis and synthesis, induction and deduction, analogy. Both private scientific methods are used – a formal dogmatic method necessary for the study of law, and a retrospective (historical) method for looking at the problem not in statics, but in dynamics. The novelty is expressed in the substantiation of the normativity of an individual contract and the recognition of its status as a form of law not only within the existing paradigm, but also by offering a different view of the very concept of normativity. The analysis of contracts is proposed to be carried out with the hypothesis of the presence of regulatory regulation in them as well. This approach allows us to talk about contracts that were previously recognized as containing only individual regulation, at least partially normative and, as a result, to see them as a right. As the main conclusion, it should be noted that a significant number of individual contracts contain not only individual, but also regulatory regulation. It also seems reasonable to talk about the existence of individual contracts consisting entirely of regulatory regulation.

FROM THE HISTORY OF THE AMERICAN STATES CONSTITUTIONAL CONFRONTATION TO PRIVILEGES

The current stage of development of complex states is characterized by the growing equality of citizens in the constitutional law sphere. The American experience is particularly important in this regard. Purpose: to analyze the constitutional law aspects of the struggle of the North American states with privileges and immunities for a century – from the late 18th to the late 19th century; to trace the historical roots of religious intolerance, their fixation in the early forms of American constitutionalism, i.e., early state constitutions and colonial charters. Methods: historical, logical, comparative legal, formal dogmatic methods are applied. Results: it is concluded that the achievement of constitutional equality for American citizens has been a joint federal and state endeavor since at least the mid-19th century. Their struggle against privileges and immunities was long and inconsistent, including in relation to religious intolerance. The latter traditionally prevented the establishment of religious freedom in North America since the earliest phase of the colonial period in its history.

Lobbying in the European Union and Interinstitutional Agreement on a Mandatory Transparency Register for Lobbyists

The article presents the effects of an attempt to ascertain to what extent the Interinstitutional Agreement on a mandatory transparency register affects the phenomenon of lobbying in the European Union (EU). In order to examine the issue, the concept and essence of lobbying in the EU were introduced. Legal regulations concerning EU lobbying were also identified. A further portion of the article analyses the Interinstitutional Agreement of 20 May 2021 between the European Parliament, the Council of the European Union, and the European Commission on a mandatory transparency register (IAMTR) in relation to the previously binding Agreement between the Parliament and the European Commission on the transparency register for organisations and self-employed individuals in EU Policy-making and Policy implementation (ATR). The article uses the formal-dogmatic method. As a result of the analysis, it was concluded that the Interinstitutional Agreement on a mandatory transparency register contains numerous exclusions, both subjective and objective, to registration in the Transparency Register. One positive aspect is the application of the IAMTR to the EU Council also.

O koncepcji klauzuli zaporowej w wyborach do rad gmin

The barrier clause is an institution of special importance in the context of the proportional system. The aim of this article is to present and evaluate the course of parliamentary work accompanying the transformation of the concept of the prohibition clause in the elections to municipal councils in 1990–2018. The research carried out on the basis of the formal-dogmatic method allows us to assume that the position of the dominant political forces on the application and level of the election threshold in local elections was characterized by considerable variability, showing connections with the lack of a clearly crystallized view on the shape of the electoral system in the strict sense of the organs constituting the basic level of local government.

The essence of the conflict of interest in the professional activities of a lawyer

This article is devoted to the disclosure of problematic issues related to the study of the essence of the conflict of interest in the aspect of advocacy. The article reveals the various positions of scholars to determine the legal nature of the conflict of interest as a whole through its general theoretical perception, and directly - during the implementation of the lawyer's professional activity.
 Within the framework of this study, the positions of the Ukrainian legislator on the regulation of such a fundamental principle of advocacy as the principle of avoiding conflicts of interest were revealed. The study also focused on revealing the relationship between this principle and other defining principles of advocacy. It is concluded that the positivity of domestic legal regulation of this principle is manifested primarily in the fact that the main goal is precisely preventive measures that would prevent its occurrence. Such leg*al regulation generally complies with international standards of advocacy (Charter of Core Principles of the European Legal Profession, The Code of Conduct for European Lawyers etc.) and the legislation of a number of foreign countries.
 The position is argued that the absence of conflict of interest, as a determining component of trust is a fundamental aspect of the relationship between a lawyer and his client, and trust should be the quintessence of professional advocacy in general.
 To achieve the goal set before the author, methods typical of legal science were used, namely the study was carried out using primarily formal-dogmatic method, which provided an opportunity to reveal the essence and interpret the content of domestic and international regulations that determine the principle of avoiding conflicts of interest activities of a lawyer. General scientific methods of analysis and synthesis have also become widely used.

Restrictions on confidential communication between a lawyer and his client under the legislation of foreign countries and the practice of the ECHR

This article reveals the problematic issues related to the implementation of one of the main guarantees of a lawyer's professional activity, namely ensuring the confidentiality of his communication with his client, in particular, regarding the possibility of limiting such confidentiality.
 The study revealed the positions of foreign legislators, who set certain restrictions on the implementation of the guarantee of a ban on interfering in the private communication of a lawyer with his client. The positions of the European Court of Human Rights, which allow for the possibility of limiting the confidentiality of communication between them, are also analyzed. The position is argued, according to which Ukraine, along with many foreign countries, proceeds from the need to ensure absolute confidentiality of communication between a lawyer and his client.
 To achieve this goal, the author used methods typical of legal science. The study was conducted using primarily a comparative legal method, which provided an opportunity to analyze the experience of foreign countries in implementing the guarantee of prohibition of interference in private communication with a client, while the formal-dogmatic method allowed to analyze the case law of the European Court of Human Rights.
 The study allows us to conclude that a significant number of countries enshrining the right of a lawyer and his client to such communication, set certain restrictions on its implementation, in particular: an exception to the confidentiality of correspondence is possible if the judiciary has reasonable grounds to believe that it is criminal ( Italy); if there is a reasonable suspicion that the accused may violate the detention regime (Macedonia); or only in cases involving the establishment of terrorist organizations and criminal organizations abroad (Germany), etc.

ТИПЫ ДЕЙСТВИЯ НОРМ ПРАВА ВО ВРЕМЕНИ

Introduction: the article studies the typology of legal temporality. The changes, evolution, improvement of legal regulation of social relations objectively entail the problem of temporality of legal norms. Consequently, there arise issues of maximum protection for the participants in legal relations, of fair restoration of violated rights in a situation of legislative changes. Purpose: to describe the use of different types of law operation in time (prospective, retroactive, and ultra-active operation). Methods: the study was conducted on the basis of the general philosophical dialectical approach; a system of general scientific and special legal methods was used. The formal dogmatic method and the method of legal interpretation made it possible to clarify the content of the legislative rules on the operation of the law in time. The types of legal norms’ operation in time were identified as a result of combining the legal modeling method and a mental legal experiment. Results: the prospective and immediate effects of legal norms coincide in content and should be treated as identical. The application of the legal norms’ retroactivity is fundamentally different in the branches of public and private law. In private law relations, based on equality of participants, retroactivity of law does not apply to a new law improving the legal status of the legal relationship participants. Due to the absence of both doctrinal and law enforcement certainty regarding the understanding of the rights and obligations arising from, but later than, a relationship, the legislator should define as accurately as possible which rights and obligations fall under the ultra-active operation of an old law and which ones – under the prospective operation of a new law

Legal aspects of green-branding

Trade mark law reflects economic and social trends. With the shift towards an economy based on sustainable development, the rise of environmental awareness among consumers, and the growing popularity of eco-marketing, marks containing indications such as „green”, „eco” or „bio” appear increasingly on the market. Such labels can inform and assist consumers in purchasing products that comply with the eco-requirements, strengthen the competitiveness of producers by promoting the least environmentally damaging products, offering higher quality products, and consequently encouraging both parties to act in an eco-friendly manner. Their registration is possible, but more difficult than for „classic trade marks” submitted for protection before the patent offices. This text is intended to provide an overview of the registration requirements of so-called „green trade marks”. The study mainly used the formal-dogmatic method. Based on an analysis of the European Union Intellectual Property Office practice and the judgments of the Court of Justice of the European Union, authors indicate the applicable interpretation of EU trade mark law. They analyze binding restrictions taking into account the interests of both individual market players and the public. This issue has not yet been commented on by the doctrine. Eco-labels and symbols, which can be used by entities meeting criteria that are defined by certification bodies are outside the scope of this review.

BANK ACCOUNT OF A CAMPAIGN COMMITTEE

This study covers the subject matter of bank accounts of campaign committees, including the ones taking part in the local government elections of 2018. It was also the author’s intention to discuss the background of the subject matter, which is why the presented discussion of the legislative framework refers also to bank accounts in general. Such an approach allows to refer the conclusions drawn to campaign committees taking part in other elections. Using the formal dogmatic method, the Author discusses the legal grounds for establishing cooperation between a bank and a customer (as parties to a bank account contract) and, then, between a bank and a campaign committee (as a specific customer type), obligations of the parties to that relationship and the bank’s obligations under other provisions performed in relation to campaign committees and bank accounts maintained for such campaign committees, including in particular in the area of counteracting money laundering and terrorist financing, and their impact on the performance of supervisory obligations and safety of the economic system.

Some Remarks on the Changes in the Polish Penal Code During the Pandemic

Abstract The study indicates the solutions introduced by the amendment to the Penal Code during the pandemic. These are the so-called anti-crisis shields - shield 1.0, shield 3.0 and shield 4.0. The primary role of these laws was to respond to the crises related to the COVID-19 epidemic. Amendments to the Penal Code were introduced in a manner inconsistent with the Constitution of the Republic of Poland and the Regulations of the Sejm of the Republic of Poland. The mere legislative change and increasing punitiveness of the criminal law system and penal policy will not significantly reduce crime. The work is of a presentative and systematising character. The assumed hypothesis boils down to the assertion that the changes to the penal code made pursuant to the so-called anti-Covid laws are irrational and introduced without the required legislative procedure. The study mainly used the formal-dogmatic method.