Polish Jurisprudence Research Articles

Glosa aprobująca do wyroku TK z dnia 7 marca 2018 r., sygnatura akt K 2/17

Przedmiotem niniejszej glosy jest przełomowe orzeczenie Trybunału Konstytucyjnego w zakresie jednej z instytucji dawności – prekluzji. Problematyka ta w polskim prawie administracyjnym ciągle należy do spornych, a prezentowane poglądy często znacząco różnią się do siebie. Glosowane orzeczenie zasługuje na uwagę, gdyż od dawna w polskim orzecznictwie nie zostało wprost powiedziane, że reguły obowiązujące w prawie cywilnym (powszechnym) nie mogą być wprost aplikowane w prawie publicznym (szczególnym). Stawiana jest w nim teza, że uzasadnienie instytucji dawności nie może być w prawie publicznym identyczne jak w prawie prywatnym, gdyż w tym pierwszym stosunki prawne mają charakter horyzontalny, a w drugim wertykalny. Wskazana nierównorzędność uczestników stosunku prawnego oraz posiadanie zawodowego aparatu urzędniczego dbającego o interesy Państwa, w tym majątkowe, sprawia, że klasyczne uzasadnienie instytucji dawności, w szczególności funkcja stabilizacyjna i dowodowa nie są wystarczającym uzasadnieniem skorzystania z prekluzji. Jest to tym bardziej zasadne gdy publicznoprawna ingerencja w prawa własności następuje bez należytych uprawnień gwarancyjnych.

Konsekwencje naruszenia prawa pierwokupu lub prawa pierwszeństwa nabycia praw udziałowych

Determination of the legal consequences of transfer of shares performed with violation of the pre-emptive right or right of first refusal raises serious controversy in Polish jurisprudence and legal doctrine. This article concludes that if these kind of restrictions on transferability of shares are stipulated in the articles of association or statute of the company, their breach results in suspended ineffectiveness of such action against third parties. On the other hand, violation of the pre-emptive right or right of first refusal provided outside the company’s corporate act effects, in principle, in the inter partes consequences in the form of liability for damages. The complexity of the interpretation of relevant norms concerning the subject matter requires raising de lege ferenda postulate, the purpose of which is to facilitate the determination of the nature of pre-emptive right or right of first refusal on transfer of shares and the consequences of their infringement.

Transport autonomiczny a polskie prawo w kolejnym 100-leciu niepodległości

The article presents legal challenges, that must be tackled by Polish jurisprudence in the upcoming next hundred years of Polish independence. As the key challenge, the author has indicated adaptation of Polish law to an increasingly common use of artificial intelligence in everyday life. But, the author focused his attention to use of artificial intelligence in transport. Concepts of this issue sanctioning were indicated on examples of European Union and the United States of America.

Piercing the Corporate Veil – A Common Pattern?

The aim of this article is to present a comparative perspective of the doctrine of piercing the corporate veil in three major jurisdictions: Germany, the United States, and England in the light of the appropriate legal rules and recent case law. The concept of piercing the veil is still undeveloped in Poland, yet it has already drawn some attention from both the judiciary and legal scholars. It will be argued that despite the fact that the three aforementioned jurisdictions belong to different legal traditions, both the cases in which courts decided to pierce the veil and the nature of veil-piercing are similar among the jurisdictions. However, the study shows growing hostility to the doctrine, especially in continental jurisdictions. The arguments for restricting the scope of veil-piercing formulated under the laws of Germany, United States, and England should be taken into consideration in Polish jurisprudence as well.

Dyskusja nad modelem wykładni prounijnej w polskiej nauce prawa

The aim of this paper is to present the discussion on normative models of the pro-EU interpretation of national law in Polish jurisprudence. The European Court of Justice drew only general assumptions concerning the pro-EU interpretation, and left the Member States free to choose the methods of its implementation. The author analyses the proposals of the models described in the science of European law as well as in the theory of law, and on that basis comes to the conclusion that a universal and consistent model that would ensure full realisation of the EU law objectives regarding the pro-EU interpretation has not yet been developed.

An Anti-Enforcement Bias? The Application of the Substantive Public Policy Exception in Polish Annulment Proceedings

This article examines how Polish courts have dealt with annulment applications based upon purported violations of substantive public policy and measures the Polish jurisprudence against the standards developed by the national courts in England, France, Switzerland and Germany. It identifies an anti-enforcement bias of the Polish courts which, in sharp contrast to their European counterparts, still favour an expansive interpretation of the public policy exception and have surprisingly little qualms in engaging in a thinly veiled merits review with unclear boundaries. The markedly interventionist approach of the Polish judiciary encourages annulment applications, which both ill-serves the arbitral process generally and undermines recent efforts to promote Poland as a desirable seat for international arbitration specifically. A solution to these ills can only be found in a narrower interpretation of the substantive public policy exception, in harmony with the standards developed by the national courts in the major European arbitration centres.

Nadawanie uprawnień zawodowych w zakresie szacowania nieruchomości

Empowerment in terms of the real estate evaluationIn Polish jurisprudence we can distinguish two specific groups of professions: the liberal profes­sions and the professions of public trust. The profession of the real estate appraiser for sure may be ranked as aliberal profession. Nevertheless, there is no certainty if this profession may be ranked as a profession of public trust. Qualification of the real estate appraisers to this second group of pro­fessions could be areason to justify achange of the existing regulation concerning empowerment in terms of the real estate evaluation. Therefore there is aneed to determine the legal status of the real estate appraiser profession and to judge the regulations which concern empowerment in terms of real estate evaluation.

Kilka tez o instrumentalizacji prawa i ochronie przed nią

SOME THESES CONCERNING THE INSTRUMENTALISATION OF LAW AND PROTECTION AGAINST ITUsing the concept of instrumentalisation of law developed in Polish jurisprudence, the author of the article:— points out that the instrumentalisation of law can be attributed to various entities: the legis­lator, those interpreting the provisions of law, those applying the legal norms as well as the authors of the legal doctrine;— distinguishes forms of instrumentalisation by each of these entities;— points to dysfunctional acts of instrumentalisation;— demonstrates some mechanisms counteracting the instrumentalisation of law, mechanisms that are to be found in the very concept of law as developed in Western culture.

THE PRINCIPLES OF CIVIL PROCEDURE IN POLAND IN THE TWENTIETH CENTURY. DOCTRINE, DRAFTS AND LAW IN A COMPARATIVE PERSPECTIVE

Three fundamental state system and legal transformations, which took place in Poland in the 20th century, make the history of the Polish law of civil procedure an important and intriguing research thread, especially in a comparative perspective. The aim of this article is to demonstrate the problem of the principles of civil procedure in codification works which were in progress before the regaining of independence in 1918. They were continued in the Second Republic of Poland and developed further after the Second World War until the second Polish Code of Civil Procedure was adopted in 1964. Codification works in the Second Republic of Poland and the People’s Republic of Poland were quite different regarding their determinants and also conditions. However both presented the phenomenon of a deviation from the original assumptions and concepts, which were postulated by the authors of the original drafts. Such deviation was usually adverse. The changing fate of Polish civil procedure did not threaten the heritage of Polish jurisprudence. The adversarial and dispositive principles, as well as the principle of oral proceedings and the principle of the free appraisal of evidence were constantly present in the Polish legal system. Nevertheless, after World War II some significant modifications were imposed that limited the autonomy of the parties and the independence of the court owing to the political subordination to the Soviet Union. However, the attitude of the majority of Polish lawyers enabled many standards of the classic judicial proceedings to be maintained, and thereby also the relations with the European doctrine of procedural law.

Hube – Makarewicz – Wolter. Trzy koncepcje karania na przestrzeni stu lat

The article presents the views of three prominent thinkers regarding criminal punishment: Romuald Hube (1803–1890), the father of Polish criminal law, Juliusz Makarewicz (1872–1955), the most distinguished interwar Polish lawyer, and Wladyslaw Wolter (1897–1986), the founder of the Krakow school of criminal law. A presentation of the ideas on punishment developed by these masters of Polish jurisprudence provides an overview of the evolution of criminal law and political-criminal thought in Polish lands over the course of a century. Citing selected fragments from the works of the three professors, the Author examines how they interpreted punishment, what they believed its role to be, and what theories of punishment they put forward; moreover, which specific sanctions they supported. The article also assesses the language and discursive style of these leading lights of Polish legal science. Romuald Hube represented the classic school of criminal law. He published his Ogolne zasady nauki prawa karnego (General principles of the study of criminal law), a rudimentary, systematic interpretation of criminal law, at the age of 27. He was one of the first scholars in Europe to promote a mixed theory of punishment, inspired by Hegelianism and combining the idea of retribution with the preventive aims of punishment. Juliusz Makarewicz was a representative of modernism, the leader of the sociological school of criminal law, and the father of the first penal code in independent Poland. He made his reputation in 1906 with the publication of a work on the philosophy of criminal law. He published a broad range of dogmatic and historical studies, textbooks and a commentary on the 1932 Polish penal code. Makarewicz proposed an absolute justification of punishment, yet he saw retribution as ultimately preventive, nolens volens developing a mixed theory of punishment oriented towards specific prevention. Wladyslaw Wolter was a student of the last eminent exponent of the classic school in Poland, Edmund Krzymuski (1851–1928), and at the same time a representative of normativism. He dealt mainly with general issues in criminal law, particularly criminal science. After the introduction of Makarewicz’s penal code, he immediately published his first textbook. He continued his academic career after the war all the way into the 1970s. Wolter adopted a modernist position within penal science and indicated the need for purposive punishment within the bounds of justice; he was therefore also a supporter of a mixed theory of punishment. Although all of the named professors promoted or embraced a mixed theory of punishment, their approach to the penal system differed to some extent. Hube gave priority to imprisonment, which he strongly believed to be important and effective. Makarewicz questioned the effectiveness of imprisonment and proposed a broad array of protective and probation measures, in addition to non-prison punishments. Like Wolter, he espoused the idea of two-track penal repression, i.e. a system of penalties and protective measures in response to criminal offenses. None of the named scholars rejected capital punishment outright, although all of them distanced themselves from it and hoped that it would be abolished in the future. Hube saw death as an exceptional, rarely used sanction. Makarewicz still foresaw no possibility of removing it from the catalogue of punishments due to the needs of criminal policy – he saw capital punishment as a deterrent, thus a general preventive measure. Wolter denied that it had any such impact, arguing that capital punishment did not deter offenders and was only a protective measure. As for monetary fines, Hube believed them to be appropriate only in the case of petty crimes, although he rejected confiscation of property as a sanction that affected the convict’s family. Makarewicz accepted fines, although he pointed to their limited impact and inequality. Wolter wrote in a similar vein, expressing an ambivalent attitude toward this legal sanction, revealing the inequality of its burden given convicts’ differing material status and recommending different legal solutions when it came to this type of punishment. The excerpts from the works of the great masters of Polish criminal science cited by the Author also allow us to see how the language and style of criminal science has changed. Hube was the father of Polish legal language. His analyses were mainly conducted in a philosophical and historical vein. Makarewicz employed a rhetorical style, often emotional, making legal comparisons. Wolter perfected his arguments, often highly abstract, relying mainly on logic and dogmatics. All three scholars were quite familiar with European legal theory and drew on its achievements

„Piercing the Corporate Veil Doctrine in Poland?” A Comparative Perspective

This article explains the concept of piercing the corporate veil doctrine which is widely recognised in common law countries. Generally, the doctrine allows the extension of liability for a company’s debts to shareholders and officers, if any kind of fraud or unfairness is involved. This dissertation focuses on differences between American and British attitudes towards the doctrine and analyses the grounds for the what is known as “judicial piercing” and “statutory piercing”. Nevertheless, the main purpose of this paper is to answer the question of whether the piercing doctrine can be applied to the Polish legal system. Officially, it has never been recognised by Polish jurisprudence and courts. However, in-depth research on that issue can provide really surprising results. It seems that current statutory measures in Poland can extend the liability of a company towards officers, directors etc. and can easily be compared with “statutory piercing”. The article also touches on the problem of shareholders’ tort liability under Polish law. Furthermore, the article sheds light on the new Polish Insolvency Act and its consequences for the concept of corporate liability as well as the “Amber Gold” case, one of the biggest financial scandals in Poland for many years.

Lack of a Price Reduction Despite a Decrease in Service Quality as an Unfair Price and Abuse of a Dominant Position. Case Comment to the Judgment of the Supreme Court of 13 July 2012, Autostrada Malopolska (Ref. No. III SK 44/11)

The Polish Supreme Court delivered in 2012 an important ruling with respect to the definition of unfair prices charged by a dominant firm. Imposing unfair prices was so far generally associated in Polish jurisprudence with either excessive prices (exploitive practices) or predatory pricing (exclusionary practices). The Supreme Court held here, instead, that the lack of a reduction in a set service fee (toll) despite a decrease in quality of the service provided by a dominant company can also count as imposing unfair prices.

Instrumentalizacja prawa i instrumentalne użycie prawa a jego wykładnia

The paper analyses notions traditionally related to ideologisation of the law in the context of statutory interpretation. Adopting a non-judgemental, positivist scientific approach, the author describes instrumentalisation of the law and instrumental “use” of the law in the view of theoretical concepts pertaining to law interpretation, developed under Polish jurisprudence. Hence the paper aims to outline basic problems with the development of semantics from the perspective of political authority’s “claim” to apply the statutory interpretation that involves certain assumptions resulting from a philosophy of the law and/or philosophy of politics which are treated as the appropriate ones (based on non-juridical criteria). In this respect, it seems crucial to analyse possible configurations of the stages of interpretation process (established and labeled by H. Rabault) as a pre- and overdetermination of the semantics which is the basis for law application decisions.

Zjawisko multicentryczności systemu prawa z perspektywy koncepcji integracyjnej

The paper presents the theory of legal system polycentricism from a new perspective, i.e. the one integrating essentially contradictory concepts which explain this phenomenon in the context of the Polish jurisprudence. Apart from attempting to establish “common features” of these well-known concepts explaining the essence of polycentricism in the legal field, the presented point of view pertains to defining the relationship between the phenomenon of polycentricism from the legal discourse theory perspective and the Luhmann’s systems theory. The paper aims to prove the thesis that at present the legal system is internally taking on (transforming into) the heterogeneous type of internal structure due to interaction with already polycentric non-juristic domain, i.e. the social one.

Terrorist suicide bombings — A review of Sri Lankan perspectives in the past two decades

practice in this respect has been presented, starting from anthropological examinations through fingerprint evidence and expertisebased DNA polymorphisms. Declared ideas constitute a review of judicial approach and do not construct its uniform line. Therefore the main part of the paper has been devoted to scrutiny of Polish jurisprudence, trying to create a commonly accepted definition of scientific evidence which could be implemented into practice. For the last 15 years the Polish Supreme Court has expressed its view several times on that problem regarding, for example, DNA examination as well as dog-scent-identification. The Court has tried to establish clear conditions of the acceptance of new scientific evidence which read as follows: the method has to be practised in a distinguished, attested laboratory or in the one of the university's chair; the method should be based on a scientific theory and until it is eventually confirmed, the concrete examination has to be always repeated by an independent laboratory; results should be — if possible — be given in figures. In the paper we try to discuss these scientific foundations.

Wacław Makowski o radzieckim prawie karnym

Summary Waclaw Makowski (1880–1942) was an outstanding Polish politician, lawyer and scientist. He was one of the authors of the 1932 criminal code and of Polish constitution of 1935 (so called April Constitution). His scientific interests included also Soviet penal law. He wrote the preface to Soviet Penal Code of 1927 (Kodeks karny Rosji Sowieckiej 1927, Warszawa 1928). His critical remarks on Soviet penal law, although not very spacious, are important, because he questioned common opinion in the scientific Western world about this law. He criticized opinion that Soviet penal law was based on views of the Italian school of positive law. He started the discussion on Soviet penal law in Polish jurisprudence. This discussion seemed to be very interesting, but it was interrupted by the outbreak of World War II.

Suretyship in German and Polish Law: A Comparative Analysis

AbstractThis paper analyzes the institution of suretyship in the German and Polish legal systems. It highlights both differences and similarities of the main characteristics, such as conditions to validity, scope of liability, defences available to the surety and the recourse by the surety in case of payment. The analysis is based not only on the relevant legal provisions, jurisprudence and doctrine, but also on their application in the business practice of the two countries.The comparative overview of the suretyship permits the conclusion that both legal systems regulate the principal features of this institution rather similarly. However, there are also a number of significant differences. Notably, German jurisprudence and doctrine appear to adopt a more flexible approach to this institution than the prevailing position in Polish law. On the other hand, the liability of the surety is more rigorously shaped under Polish law. Whereas German law and practice seem in many respects to be more protective of the surety than Polish law and jurisprudence, the latter provides the surety with far less possibilities to be released from the assumed liability.