Polish Legal System Research Articles

Polish Practice on Promulgation of International Agreements Between Poland and the Ussr, 1944–1960

This article raises the issue of the proper publication of international treaties and their presence in the Polish legal system. The authors analyze this issue based on re¬search conducted on Polish-Russian treaties from 1944–1960. Their research has shown that, during this period, only 11% of treaties were properly published. The research – conducted on a very limited subject: only bilateral agreements between Poland and the USSR – leads to the pessimistic conclusion that in Poland it is customary practice to refrain from publishing an international agreement in the Journal of Laws and that citizens do not have at their disposal a single official or unofficial source to reconstruct Poland’s current obligations, which may indeed directly concern them. Also this finding raises important questions about the accessibility and enforceability of international treaties in the Polish legal system. At the international level, the consequences of failing to publish an act and to ensure official promulgation can be much more serious. In the absence of information about published agreements, it is not possible to sufficiently and completely determine the obligations between states nor to reconstruct the relations binding them. It is also impossible to clearly determine which international agreements are still in force between countries, which are invalid and which have expired.

Medical confidentiality in the Polish legal system: a real or illusory instrument of patient privacy protection?

Health information provided by patients in the doctor's office belongs to the sphere of their private life. Medical confidentiality is intended to prevent unwarranted interference with the content of this information, both by state authorities and private entities. Thus, it is an instrument to protect the individual's constitutional right to privacy and, at the same time, guarantee an effective diagnostic and therapeutic process. For these reasons, access to the information covered by medical secrecy should be exceptional, especially since this data is highly sensitive in nature. This is especially true of psychiatric confidentiality. Contrary to these seemingly obvious assumptions, the Polish legislator introduces into the legal system further legal solutions that seriously interfere in the sphere of information about an individual's health. This makes medical (psychiatric) secrecy an institution of illusory nature and violates the patient's constitutional right to privacy. It also negatively affects the effectiveness of the diagnostic and therapeutic process. The latter requires complete trust in the doctor-patient relationship and, thus, full confidentiality. The article discusses the ratio legis of medical secrecy, the interrelation of psychiatric and medical secrecy, and the prerequisites for abrogating these secrets. It then discusses the relationship between medical confidentiality and other legal duties incumbent on physicians. Against the backdrop of these considerations, legal solutions that reflect the tendency to weaken the legal protection of medical confidentiality and thus pose a real threat to the information covered by it, were analyzed.

The right of perpetual usufruct and the principles of a market economy

The right of perpetual usufruct is deeply rooted in the Polish legal system. Perpetual usufruct has a long history, and it is unlikely to be abolished in the near future. Therefore, the extent to which the right of perpetual usufruct is consistent with the principles of a free-market economy should be determined. In the present study, this issue has been examined comprehensively by describing the economic aspects of this right. The fees associated with perpetual usufruct can attract individuals who have an interest in establishing this right. However, these fees can also discourage potential usufructuaries. Despite the above, perpetual usufruct fees constitute a steady source of income for territorial self-governments which grant the right to perpetual usufruct of municipal land. In addition to a comprehensive overview of perpetual usufruct fees, this study also involved a survey to determine the extent to which territorial self-governments exercise the legal rights associated with the collection of perpetual usufruct fees.

Implementacja do polskiego porządku prawnego dyrektywy platformowej – problem domniemania stosunku pracy (wprowadzenie do dyskusji)

The aim of this study is to present the key challenge faced by the Polish legislator, which is the implementation of the construction of the presumption of employment relationship as regulated in Art. 5 of the Directive in relation to platform employment. In my opinion, the correct implementation of this construction into the Polish legal system will require extending this mechanism to all employment relationships, including those operating outside the online platform sector. In this sense, the implementation of this mechanism will constitute a revolution for the entire Polish employment law. The implementation of the presumption of an employment relationship into our legal order is of fundamental importance for all employment relations in Poland. It will affect not only the online platform market, but also all individuals engaged in gainful employment. The author critically addresses the proposed solutions, pointing out the flaws and risks associated with introducing this legal construction into Polish labour law.

Split Genders: Medical versus Legal Understanding of Gender Identity (De Lege Lata and De Lege Ferenda)

Abstract For centuries, the law accepted the legal gender of an individual that was indicated at birth by the appearance of their genitalia and stated on their birth certificate. Nowadays, however, we have plenty of scientific, medical and psychological evidence (and thus reasons) to revise the adopted way of thinking about legal gender to associate it more with gender identity. Most people do not perceive a potential conflict between genital sex and gender identity, because their genital sex is consistent with their gender identity. Trans- and intersex comunnity needs recognition of their gender identity independent of their genital sex as a condition for a life of self-determination, personal freedom, respect and dignity; these are, aft er all, values that are extremely important for the law. The purpose of this analysis is to determine whether the concept of gender identity is perceived generally in the Polish language and the Polish legal system in a way that takes into account current medical knowledge and the legitimate needs of the individual. If not, then what de lege ferenda recommendations can be made to change this situation?

Status prawny zabytkowych obiektów budowlanych w kontekście zarządzania majątkiem przedsiębiorstwa

The purpose of the article is to present regulations relating to monument buildings in various areas of law in the Polish legal system. One of the key aspects is to examine the way of regulating the status of monument buildings in tax law. The article is divided into three parts in which the authors discuss the following issues: civil law regulations, the status of monument buildings in accounting law and taxation of monument buildings. Within the Polish legal system, heritage buildings are typically subject to different regulations than other real estate, as shown in this study.

Procedure on the Assessment of the Environmental Impact of Investment Plans on Natura 2000 Sites in the Polish Legal System

Procedure on the Assessment of the Environmental Impact of Investment Plans on Natura 2000 Sites in the Polish Legal System

Między schematem a prawami człowieka - prawnomedyczne zagrożenia praw osób interpłciowych i europejskie modele ich ochrony, w kontraście do realiów krajowej opieki medycznej - część 2: Europejskie rozwiązania prawne chroniące osoby interpłciowe w odniesieniu do krajowego systemu ochrony praw pacjenta

This text represents second part of the analysis, regarding situation of an intersexual patient, especially a minor, in terms of protection against discrimination and exposure to IGM (Intersexual Genital Mutilation) procedures. Author presents a selection of European legislature regarding the abovementioned issue, comparing them to Polish system ofguarantees, securing patients’ rights in the healthcare system. Analysing position of an intersexual individual, both in terms of a requirement of assigning ones gender at birth, as well as general provisions regarding matter of an informed consent and fair process of decision making, in regard to an underage patient and their treatment, this paper presents set of legal solutions, which upon comparison and study of mechanisms related to protectingaforementioned group from IGM-related treatment across Europe, could be implemented in polish legal system in order to address the discussed matter.

Prawne aspekty dostępu do antykoncepcji w Polsce

The ability to choose safe, effective and affordable contraceptive methods and to have access to comprehensive information on all family planning methods is one aspect of reproductive rights, which are considered an integral part of human rights. According to reports by the European Parliamentary Forum for Sexual & Reproductive Rights, Poland has for years recorded the worst access to contraception among European countries. The purpose of this paper is to determine whether the regulations in force in the Polish legal system provide real access to contraception that complies with international standards. The following methods of contraception were analysed: emergency, chemical, mechanical, hormonal, long-term and permanent. Furthermore, issues affecting access to contraception, such as the conscience clause, sex education, and the lack of autonomy of underage women in deciding on contraceptive methods, excluding mechanical and chemical, were covered. As the majority of contraceptives are intended for use by women, any restriction on access to them can be qualified as a form of gender discrimination.

Legal provisions for the facilitation of the transition to a circular economy in the Polish legal system

The transition to a circular economy (CE) is a priority objective for European Union (EU) Member States. Specifically, this goal is stated in the 8th Environmental Action Programme (which outlines a programme until 2030), the European Green Deal, European Commission communications, and the Waste Framework Directive 2008/98/EC as amended by Directive 2018/851. As a member of the EU, Poland is obliged to align its waste management practices with the CE; this work is reflected in legislative changes related to waste, packaging, and the municipal maintenance of cleanliness and order. This article presents the legal status of the transition to a CE in Poland, including the established legal instruments. The Polish legal system has developed measures to protect the environment, life, and human health by preventing and reducing waste and improving the efficiency of raw material use. Waste management is consistent with the waste hierarchy, with a focus on maximising recovery (material and organic recycling, energy recovery), an extended producer responsibility system, and strict requirements for recovery and recycling rates, with a particular focus on plastic packaging. In Poland, the CE Roadmap—which includes a legislative toolkit on sustainable industrial production, sustainable consumption, bioeconomy, new business models, and CE implementation and monitoring – has been developed for the transformation toward a CE. Poland’s priorities in this regard include: (1) innovation, strengthening cooperation between industry and the scientific sector, resulting in the implementation of innovative solutions in the economy; (2) creating a European market for secondary raw materials, where their movement would be easier; (3) ensuring the high quality of secondary raw materials that results from sustainable production and consumption; and (4) developing the service sector.

Usługi wczesnego wspomagania rozwoju dziecka w prawie oświatowym

Early support for child development is a form of targeted and specialized support for a child who has not yet started fulfilling educational obligations. It is implemented in order to stimulate the child’s psychomotor and social development, from the moment of detecting a disability until the child starts school. It is intended to prevent potential future failures in school education. Early support for child development is a conglomerate of public services whose type, scope and frequency of provision are adapted to the needs of a specific child, and take into account their individual limitations. The right to use these services stems from an opinion issued by the adjudicating panel of a public psychological and pedagogical counseling center confirming the child’s need for early development support. The article discusses the legal aspects of the public task of organizing and providing services in the field of early development support. The aim is to explain the meaning of the concept of early support for child development, discuss the legal provisions regulating them and determine the ratio legis of their introduction into the Polish legal system. It also involves identifying intangible services falling within the scope of early support for child development, determines their beneficiaries and identifying the entities providing them. In the context of acquiring the right to use these services, special attention will be paid to the opinion issued on the need to support early child development, in particular, the procedure for its issuance it and its components. In order to achieve the research goals, the dogmatic-legal method will be used, consisting of the analysis and interpretation of the texts of legal acts. Administrative court jurisprudence regarding the subject of the article will also be taken into account to the required extent.

Right to make a mistake according to art. 21a of the Act — Entrepreneurs' Law and the institution of error under criminal fiscal law

The article presents the conditions for applying the provision of Art. 21a of the Act — Entrepreneurs’ Law, which is the legal basis for the institution of the ‘right to make a mistake’ by the entrepreneur in the event of violations of the law, which would result in the imposition of a fi ne or an administrative fi ne. It is an institution that has not existed in the Polish legal system so far, and has been in force since January 1, 2020. In Art. 10 of the Fiscal Penal Code of September 10, 1999, there is an institution of error, well-established in the substantive fi scal penal law, which is considered a circumstance that diminishes or excludes the perpetrator’s fault. The institution in question may partially overlap with the content of Art. 21a sec. 1 e.l.a. The aim of this article is to make an attempt of a dogmatic legal analysis of these relationships between the institution of the right to make a mistake by the entrepreneur and the institution of a mistake in fi scal criminal law, in which it will be possible to apply them and to indicate possible ways of resolving disputed issues. The answers seem to be found on the basis of the procedural prerequisites specifi ed by law that determine the initiation and conduct of a penal fi scal trial.

Bill on High Risk Suppliers

Abstract The subject of this article is the introduction of cybersecurity-related regulations on the providers of infrastructure for the provision of 5G technology services into the Polish legal system. In particular, the implementation of the recommendations of the report prepared by the Network and Information System Cooperation Group entitled Cybersecurity of 5G networks EU Toolbox of risk mitigating measures (referred to as the 5G Toolbox). Following the recommendations of the European Commission, Poland has undertaken work on introducing regulations that would implement the provisions of the 5G Toolbox regarding high-risk suppliers. An amendment to the Act on the National Cybersecurity System of 3 July 2023 (‘the Bill’) has been prepared, which includes recommendations of the 5G Toolbox. The article carries out an analysis to answer the question of whether the provisions of the Bill regarding proceedings in the case of the so-called high-risk suppliers are consistent with the Constitution and basic procedural principles, and in particular whether legal guarantees have been provided for participants in the proceedings regarding high-risk suppliers. The research hypothesis is that not all proposed regulations in this area meet the previously indicated requirements. The analysis takes into account the proposed regulations regarding: proceedings concerning recognition of a supplier as a high-risk supplier; application of the provisions of the Code of Administrative Procedure in these proceedings and the content of issued decisions and remedies. Mainly the dogmatic-legal method, as well as the theoretical-legal method, is used.

Przerywanie ciąży (aborcja) w świetle orzecznictwa polskiego Trybunału Konstytucyjnego

The purpose of this study is primarily to analyse the jurisprudence of the Polish Constitutional Tribunal regarding the compliance with constitutional norms of the conditions for the admissibility of termination of pregnancy (abortion). The Constitution of the Republic of Poland provides every person with legal protection of life. Although its provisions do not explicitly specify that it is about the legal protection of life from conception to natural death, this type of interpretation seems to be adopted by the Constitutional Tribunal, which results in subsequent judgments on the assessment of compliance with this constitutional model of the conditions for the admissibility of abortion in Poland. In its jurisprudence, the Constitutional Tribunal first drew attention to the constitutional guarantees for the protection of human life at every stage of its development, and thus questioned the admissibility of termination of pregnancy due to difficult living conditions or the difficult personal situation of a pregnant woman, as well as in the case when prenatal examinations or other medical conditions indicate a high probability of severe and irreversible impairment of the fetus or an incurable disease threatening its life. In this context, however, it is worth noting that abortion is permissible when a high probability of severe and irreversible impairment of the fetus or an incurable disease threatening its life simultaneously poses a substantial risk to the life and health of the mother. The analysis of the jurisprudence of the Constitutional Tribunal therefore allows to formulate a conclusion on the conservative and restrictive approach of this body regarding the conditions for the admissibility of abortion in Poland and the recognition of the legal protection of life as a cardinal constitutional value of the Polish legal system.

Ewolucja polskiego ustawodawstwa w zakresie ciężarów publicznych w przypadku stanu wojennego

The article analyses legal regulations relating to the constitutional duty to bear public burdens. The author examines the development and formation in the Polish legal system of legal norms relating to one of these burdens, namely personal services and in-kind contributions. The discussion concerns only the duty to bear these burdens in the event of occurrence of premises for introducing one of the three, apart from a state of emergency and a state of natural disaster, extraordinary measures mentioned in the Constitution of the Republic of Poland – martial law.

Compulsory enforcement of the fee for the transformation of the perpetual usufruct right into ownership of real estate

In the Polish legal system, there are two ways of compulsory enforcement of obligations. It takes place either in administrative enforcement proceedings, which have no connection with the administration of justice, or in judicial enforcement proceedings, which are part of civil proceedings, ultimately determining the fulfilment by the courts of their respective judicial functions. Those proceedings are separate and independent of each other. Sometimes the obligation meets the conditions for administrative and judicial enforcement at the same time. Such an example is the fee for the transformation of perpetual usufruct into ownership. It has a civil law character, results from the operation of law or from an administrative decision, and a special provision does not specify the way of its enforcement. There is a convergence of criteria distinguishing between administrative and judicial enforcement.Currently, there is no doubt that the compulsory recovery of the transformation fee resulting from an administrative decision takes place in the mode of administrative enforcement, despite the civil law nature of this fee. Uncertainty arises as to the method of enforcement if the fee arises by operation of law. There are both sentences in favour of the admissibility of administrative enforcement and dissenting opinions favouring the admissibility of compulsory recovery of the fee in question by way of judicial enforcement.The aim of the article is to indicate the decisive criterion demarcating the path of administrative and judicial enforcement and to determine the method of enforcement of the fee for the transformation of the perpetual usufruct right into ownership. The work uses a formal-dogmatic method of work.

Prawo Unii Europejskiej a krajowe systemy prawne – przyczyny komplikacji

The aim of the article is to analyse the implementation of European Union law into the Polish legal system and the resulting expansion of legal acts at the national level.In Poland, the introduction of subsequent changes in regulations or the creation of new ones is justified by the need to adapt our law to the requirements of EU legislation.The research results presented in this article are part of a broader research project aimed at the analysis of long-term trends in Polish legislative policy. The project was conducted at Lazarski University by a team of researchers from different academic centres, with legal and economic background. In the process of data collection, an innovative research method was used based on the assumption that lawmaking is subject to the same long-term tendencies as any other commodity, i.e. the law of supply and demand. For the purpose of the study, 10 research questions on legislative trends were formulated. The study itself was a two-stage process: in the first stage, the researchers collected data; in the second, they analysed the data.In the publication, the authors presented the general results of the research, and then analysed and evaluated those laws in which the studied phenomenon of system complication occurred, understood as the introduction to the legal system of more complex and complicated regulations concerning the model of activities, in relation to those previously in force.

THE LEGAL BASIS OF BILATERAL RELATIONS BETWEEN THE REPUBLIC OF POLAND AND CENTRAL ASIAN STATES (WITH A FOCUS ON THE REPUBLIC OF KAZAKHSTAN)

Today, international treaties are the main source of international law and constitute a mechanism of regulation of bilateral and multilateral relations. International agreements provide states with an opportunity to run peaceful and profitable foreign policy in economics, security, and others. The number and the scope of bilateral agreements indicate the mutual interest of countries and reveal the main fields of cooperation. The following paper is devoted to the legal basis of bilateral relations between Poland and Central Asian republics with a particular focus on Kazakhstan. The first part of the paper argues, that ratified treaties belong in the Polish legal system to the sources of law. Among them, the crucial role play inter-state treaties and inter-government agreements. The next part of the paper reveals that the biggest number of treaties Poland has concluded with Kazakhstan and Uzbekistan. Only with the latter Poland has signed a treaty of friendship. The agreements concluded by Poland with Central Asian countries are mainly devoted to trade, investments, taxation, and consular matters. The unique feature of mutual Polish-Kazakh cooperation constitutes agreements in the fields of security, defence industry, secret information, and agriculture. In general, taking into account the strong and comprehensive cooperation between Poland and Kazakhstan, the paper asserts the need for concluding a treaty of friendship and cooperation. It could serve as a good starting point for the fourth decade of bilateral official relations.

Legal transplants and legal translation: a case study of the borrowing of the U.S. limited liability partnership into the Polish legal system

ABSTRACT The phenomenon of legal transplants, which refers to the diffusion of law across legal systems, is widely discussed by comparatists. The present paper seeks to explore its links with legal translation, so far mainly observed from the comparative law perspective, focusing on the impact of legal transplants on translation practice. To achieve this goal, one specific case is discussed, namely the borrowing of the U.S. limited liability partnership into the Polish legal system. This particular case raises the question of whether the term spółka partnerska, designating this relatively new Polish structure, and the term ‘limited liability partnership’ may be used as natural (functional) equivalents. Answering it becomes more complex when one realises that an entity called ‘limited liability partnership’ was subsequently also introduced in the United Kingdom – yet in a fundamentally different form. To identify the implications that these legal transplants have for legal translators, the nature of the U.S., U.K. and Polish business structures is discussed, and their essential features are compared. The findings demonstrate that the dynamics involved in legal transplants are likely to produce terminological traps, which, in turn, suggests that translators should be aware of this phenomenon and take particular care when faced with it.

Zasada nierozdzielania rodzeństwa na tle prawa rodzinnego

This article deals with the implementation of the principle of not separating siblings introduced by the legislator in the Polish family law system in the context of protecting the interests of a minor in the Polish legal system using the document research method and the method of literature analysis and criticism. The article analyzes the reasons for systematizing the principle in the Polish family law system and its concretization in the family law institutions such as divorce, separation, marriage annulment, exercise of parental authority when parents live apart, custody, foster care and adoption. The discussed solutions have their sources in particular in the Act of February 25, 1964 – Family and Guardianship Code (i.e. Journal of Laws 2020.0.1359) and the Act of June 9, 2011 on supporting the family and foster care system (i.e. Journal of Laws 2022.0.447).