Polish Legal Order Research Articles

Edukacja w zakresie ochrony zwierząt (uwarunkowania prawne)

The article is of a scientific research nature, and its main aim is to analyse the legislation providing for obligations for the dissemination of knowledge on animal protection, as well as to evaluate them and formulate optimisation postulates. The formal-dogmatic analysis of the regulations in force in the Polish legal order has been preceded by findings on how this issue is regulated in international and EU laws. This is mainly supported by the fact that formal education has a huge role to play in animal protection. Unfortunately, this issue has been marginalised in all legal orders discussed in this text. All in all, the normative arrangements adopted must be assessed as very insufficient, in particular as regards the fulfilment of the statutory obligation to take account of animal protection issues in the general education core curriculum. Moreover, this issue is very rarely subject to an in-depth scientific analysis. Therefore, the dissemination of previously unpublished research results will help develop better legislative solutions and raise public awareness about the protection of animals, which is one of the conditions for further civilizational progress.

Networking of legal and organizational solutions in energy transition

The article focuses on the question of networking of legal and organizational solutions in the energy transition process, which accepts energy collectives. Energy collectives take on two fundamental forms in the Polish legal order: energy clusters and energy cooperatives. The article presents a description of these two basic legal and organizational mechanisms of energy transition and identifies the main indicators making it possible to compare them to each other. The paper uses the method of content analysis of legal regulations (EU and national) and specialised literature on the subject.

Odpowiedzialność karna skarbowa z tytułu nieprawidłowości w obszarze cen transferowych

The aim of the article is to analyze issues related to fiscal penal liability for inspections in the area of transfer pricing in order to obtain an answer to the question regarding the practical documentation of transfer pricing in the context of securing the interests of the State Treasury in the light of criminal fiscal inspections. The first part discusses the basic concepts introducing the subject of transfer pricing and the issue of transfer pricing policy in an enterprise. In the following part, fiscal offenses related to the transfer pricing issue were indicated and discussed, and the rules of incurring fiscal criminal liability in the area of transfer pricing were analyzed. In the conclusions, an assessment of the practical functioning of fiscal criminal liability in the Polish legal order on the basis of transfer pricing was made, making observations regarding its impact on the implementation of the fiscal interests of the State Treasury and the possibility of contributing to the prevention of the economic crisis.

Od praw naturalnych do godności osoby ludzkiej. Rozważania filozoficzno-prawne w przedmiocie aksjologii Konstytucji Rzeczypospolitej Polskiej

The article is a reflection on the issues of natural law. The dominant view in the literature on the subject is that natural law is a kind of matrix that should be duplicated by the legislator in order to prevent legal injustice. According to the Latin paremia: Lex iniusta non est lex (Unjust law is not law), the legislator must take into account unspecified higher- level norms. The aim of the article is to look from a philosophical perspective at the axiological foundations of the Polish legal order in the context, primarily, of the sources of law. According to the author of the article, in modern times the rationalism of natural law is becoming apparent, and its religious foundations will not necessarily be acceptable in a culturally pluralized society. The legal analysis method was used, the historical-legal method (in terms of examining the evolution of legal ideas underlying individual constitutional regulations) and the hermeneutic method in relation to the examination of the Constitution as a product of culture, not so much in the linguistic, but in the social, cultural and historical layer. The analysis of applicable legal provisions also forced the use of the formal and dogmatic method.

Qualifying for international and national protection under the Polish legal order: Some remarks in the context of the war in Ukraine

The Russian Federation's actions against Ukraine in February 2014, having - at the time - the form of hybrid warfare, followed later by an armed assault that took place on 24 February 2022, have resulted in an unprecedented influx of refugees from across Poland's eastern border. As Poland faced a major challenge (also in legal terms), additional regulations had to be introduced to supplement the refugee protection standards already in place under national and international laws. The purpose of this paper is to identify the prerequisites (conditions) stemming from the catalogue of protective instruments provided for in Polish legal regulations that can be taken advantage of by Ukrainian citizens after the Russian attack of 24 February 2022. The thesis of this study is that Polish protective mechanisms are consistent and complementary, and that, insofar as they apply to Ukrainian citizens, they fulfil international obligations under the Convention relating to the Status of Refugees, adopted on 28 July 1951 and secondary European Union law, mainly Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011.

Legal Consequences of the Judgment of the Court of Justice of the European Union in Case C-432/21

This article synthetically discusses the judgment of the Court of Justice of the European Union of 2 March 2023 in case C-432/21. It aims to familiarise international readers with this issue, which might be a contribution to an academic, international discussion in this field, significant in the era of climate change. The author first indicates the role of forests in climate policy and considers the socio-economic conditions of the current situation of forests in Poland. Then, the international reader will be introduced to the most critical issues related to the judgment that concern the Polish legal order, i.e., forest management and the code of good practices in forests. In the next part, she moves on to the essential elements of the legal basis for the complaint filed by the European Commission against Poland and shows grounds of action and the operative part of the judgment. Then, the most important points of the parties’ arguments were briefly presented. In addition, reference will be made to the legal consequences of issuing the judgment in question.

Traditions of French Constitutionalism in Polish Constitutional Thought

The influence of French constitutionalism on the Polish legal order is still present in the studies and analyses of the doctrine of constitutional law. Indeed, the French constitutional tradition forms part of the European legal heritage to which the founders of Polish statehood readily referred. The present text outlines the main thoughts and ideas which, over a period of more than two hundred years – from the second half of the 18th century to the present day – have influenced the constitutional shape of the Polish state either by way of recapitulating or negating various institutional solutions.

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.

Wykonywanie zadań publicznych jako determinanta podmiotowych granic publicznego prawa podmiotowego dostępu do informacji publicznej

The study concerns the subjective limits of the public subjective right to public information. It attempts to answer the question of the addressee of the claim characterizing this right in the Polish legal order from the perspective of constitutional regulations and the provisions of the Act on Access to Public Information. The analysis focuses on the interpretation of the statutory concepts of “public tasks” and “entity performing public tasks” using the method of doctrinal interpretation as necessary in this respect. At the same time, such an understanding of doctrinal interpretation was adopted, according to which it is an interpretation carried out in the process of implementing the law, i.e. in specific circumstances, by the entity implementing this law and made from the point of view of the science of law, i.e. when referring to scientific arguments in the justification of the position and proposed solutions presented. For this reason, the results of the doctrinal interpretation of the terms “public task” and “entity performing public tasks” were also referred to the views presented in the jurisprudence of administrative courts. The analysis led to the conclusion that an “entity performing public tasks” within the meaning of the Act on Access to Public Information can be spoken of when the obligation to act of a specific entity corresponding to the content of the public task is anchored in a legal norm addressed to this entity, and the responsibility for its implementation is borne by the public-law community (state, self-government communities), of which this entity becomes a body in the functional sense. At the same time, this analysis justifies the conclusion that the theoretical constructions of administrative law, apart from their obvious scientific value, also have operational significance, and the need or even necessity to use the method of doctrinal interpretation in the area of this law seems obvious.

Harmonization of Consumer Law in the European Union in the Digital Age: an Analysis of the Impact of Directives (EU) 2019/2161, 2019/770 and 2019/771 of the European Parliament and the Council on Consumer Protection and Their Implementation in Poland

The protection of consumer rights has been unified and extended at the EU level by the adoption of a directive of 27 November 2019 amending Council Directive 93/13/EEC andDirectives 98/6/EC, 2005/29/EC, and 2011/83/EU with regard to better enforcement and modernization of EU consumer protection rules. This activity of the European Commission, known as the Omnibus Directive, is a type of strategy involving the introduction of changes in various legal instruments of the European Union through a single comprehensive legal act. As this is a directive, its effectiveness requires implementation into national legislation. In the Polish legal system, the directive has been implemented through two acts amending the Consumer Rights Act, the Civil Code, and the Private International Law Act, and these amendments came into force on 1 January 2023. The purpose of this article is to analyse the changes introduced by the Omnibus Directive, Directive 2019/770 and Directive 2019/771, their impact on consumer protection in the European Union and to discuss the implementation of these directives’ provisions into the Polish legal order.

THE RIGHT TO WORK UNDER CURRENT POLISH LAW

This paper addresses the important topic of the right to work in the context of current Polish law. After introducing the origins and axiological grounds of this right, the problem of the actuality and place of the right to work in Polish law is presented - in particular, selected regulations of constitutional law, the Labour Code and the Employment Promotion and Labour Market Institutions Act are analysed. The publication seeks to answer the fundamental questions: Has the right to work ever been included in the Polish legal order? Are we still dealing with this right? If so, what constitutes the right to work? Are the existing solutions the best possible?

Rekompensata za koszty odzyskiwania należności – wybrane zagadnienia

Compensation for recovery costs – selected issues The subject of consideration is the right of the creditor to demand a flat-rate compensation for recovery costs from the debtor, established in the Act on Prevention of Excessive Delays in Commercial Transactions. Since its introduction into the Polish legal order, this right has given rise to significant interpretative doubts, particularly concerning the prerequisites for rendering the compensation immediately due and payable, the debtor’s ability to defend against this claim, and the issue of including the compensation in the costs of the lawsuit or in the value of the subject matter of the dispute in court proceedings. These doubts, in the author’s opinion, are largely due to the shortcomings of the legal regulation of compensation, which does not include in its scope many important issues, as well as its highly autonomous nature, which in turn prevents the analogous application of solutions concerning other legal institutions

THE LEGAL PROTECTION OF THE JOURNALIST PROFESSIONAL PRIVILEGE IN THE POLISH LEGAL ORDER SELECTED ISSUES

In todays world, the social media play an important role in shaping reality. In democratic societies, they also act as a kind of controller of public life. The journalists primary task is to serve society and the state. Journalists have a special duty to act in accordance with professional ethics and the rules of social interaction, in line with the rules prescribed by law.In the performance of their profession, journalists enjoy legal protection designed to ensure that citizens may exercise their constitutional right of access to information and public criticism.However, the right to freedom of expression, including freedom to hold opinions and to receive and impart information and ideas without interference by public authority in accordancewith European standards, is not absolute in nature. An important factor contributing to the freedom of expression and independence of the press, which makes journalism to be perceived as a profession of public trust by the society, is the legal protection of the journalist professional privilege. This article attempts to present the current views of the doctrine and jurisprudence on the adopted principles of protection of the journalist privilege in the Polish legal order, with a particular emphasis put on inadmissibility in evidence arising from the legal standards defined in Article 180 of the Code of Criminal Procedure.

The Conscience Clause of Service Providers from the Perspective of Legal Security

This paper discusses the issue of legal applicability of the conscience clause with respect to service providers. In the Polish legal order, at the statutory level, currently there are no provisions regarding the conscience clause of service providers. When assessing the issue from the perspective of legal security, the implementation of the abovementioned legal provisions into the Polish legal system appears to be a priority, since it would significantly improve the legal security of both service providers and service recipients.

Wybrane problemy procesowej kontroli i utrwalania rozmów

This study addresses certain aspects of procedural surveillance and recording of wiretapped calls which are relevant to prosecutorial practice. This subject matter, regulated in Chapter 26 of the Code of Criminal Procedure, involves fundamental rights of individuals which are strictly protected under the Constitution and the highest-ranking instruments of international law. Therefore, it is of utmost importance to not only appropriately elaborate the legal regulations that permit the surveillance of citizens, but apply them in the everyday practice of law enforcement and the judiciary. The author discusses the evolution of procedural wiretapping in the Polish legal order in order to facilitate the understanding of the current regulations in this field. He also points out to specific difficulties in interpreting certain vague terms such as ‘an urgent case’, whereby a public prosecutor may order surveillance and recording of the content of telephone conversations; or a ‘particularly justified case’ which constitutes the grounds for extended surveillance and wiretapping of telephone conversations. In addition, the article takes a closer look at a possibility of procedural wiretapping under a relatively new legal institution, i.e., the European Investigation Order. With regard to this issue, mention was made of numerous controversies amongst legal scholars as to the amendment to Article 237a of the Code of Criminal Procedure, which has eliminated the so-called ‘subsequent consent of a court of law’ and placed the decision on the use of the information obtained by way of procedural wiretapping in the hands of a public prosecutor within the framework of expanding the objective or subjective boundaries of surveillance.

DISCIPLINARY LIABILITY OF JUDGES OF THE CONSTITUTIONAL TRIBUNAL IN THE POLISH LEGAL ORDER PART II

This article is devoted to the problems of disciplinary liability of judges of the Constitutional Tribunal in the Polish legal order. The second part of the study discusses the subjective and objective scope of disciplinary liability of judges of the Constitutional Tribunal. In this context, the article considers specifically the constituent elements of a disciplinary offence and temporal limits of disciplinary liability of the Tribunals judges. In the second part of the study, also the course of disciplinary proceedings was presented and conclusions were given, including proposals de lege ferenda, following from both parts of the publication.

PRINCIPLES OF PROCEEDINGS IN A CONSTITUTIONAL COMPLAINT

The constitutional complaint was introduced into the Polish legal order with the entry into force of the Constitution of the Republic of Poland of April 2, 1997. In accordance with the will of the legislator, the Polish model of a constitutional complaint has been shaped as narrow, both in the sphere of the objective scope, which by definition includes normative acts, and the scope of complaint protection granted to the complainant, which is of a limited nature. The doctrine rightly emphasizes that the Constitution of the Republic of Poland has relatively broadly defined the system of individual freedoms and rights, thus giving them the rank of constitutional fundamental rights. The effective implementation of these rights depends on the provision of effective means of their protection. Among the latter, the constitutional complaint comes to the fore as a special, extra-instance and extra-judicial means of legal protection, opening an individuals access to the Constitutional Tribunal. The principles determining the proceedings before the Constitutional Tribunal include the principle of the right of citizens to court, the principle of material truth, the principle of equality, the principle of availability, the principle of constitutional legality, the principle of adversarial procedure, the principle of openness of proceedings, the principle of collegiality, the principle of directness, the principle of orality, the principle of concentration evidence, and finally the principle of procedural formalism.

PRAWO DO SĄDU W DOBIE PANDEMII COVID-19

The right to court is one of the basic constitutional principles in the Polish legal order. The occurrence of COVID-19 forced the legislator to introduce a number of procedural solutions adjusting the judicial reality to this situation. Therefore, the institution of a remote hearing was introduced, the number of cases allowing for remote hearings increased, and greater emphasis was put on the presentation of written positions by the parties to the proceedings. It also significantly affected the preservation of the right to a court, especially in the case of persons less familiar with modern technology and without the support of a professional attorney. This article analyses the provisions introducing new institutions into the Polish civil procedure and leads to the conclusion that the adopted solutions violate the constitutional right to a court. The study touches upon a new subject in the literature on the subject, which undoubtedly constitutes an added value for this issue.

Próba określenia roli i miejsca pieczy naprzemiennej w polskim prawie rodzinnym

The article focuses on alternating custody as one of the acceptable forms of childcare by the divorced or separated parents in the system of Polish family law. Alternating custody system, introduced in 2015, has become a real turning point in the family law. Changes in the Polish legal order, already initiated in the Family and Guardianship Code of 1964, allow the transition from the judicial model, referred to as "leave - limit" parental authority to both parents, to solutions that allow the introduction of a real balance and equal treatment of parents holding joint and full parental responsibility. Such shift will open the way to predestinate custody of a child in alternating periods of time.

Digitalization of civil proceedings in the light of openness, equality and immediacy in the Polish legal system

This article is a voice in the discussion on the aims and function of digital transformation of the Polish civil procedure. The author also points out the changes in the Polish legal order introduced by the legislator in recent years, in particular those connected with temporary solutions for the time of Covid-19 Pandemic. She analyses ITtools used in civil proceedings in the light of procedural rules. At first glance, it seems that digitalization may have quite an impact upon all the construction rules of civil procedure. However, contrary to this impression, it does not directly affect all of them. The greatest correlation can be seen in the case of the principle of openness, the principle of equality and the principle of immediacy. As the conclusion the author indicates that digital transformation allows for a more complete implementation of procedural principles and it supports the realisation of those rules.