Polish Legal System Research Articles

Ochrona oznaczenia przedsiębiorców działających w formie spółki cywilnej

This article considers the impact of the designation of entrepreneurs doing business in the form of a civil partnership on the possibility of claiming protection of the name of the partnership under the Civil Code. This problem seems worth exploring as the issue of the protection offered by the designation of a civil partnership is so far unresolved on legislative and jurisprudential grounds. The authors use the dogmatic method, analysing judgments, articles, monographs and commentaries related to this issue. The first section is devoted to characterizing the concepts of name and company in the context of their divergence and possible correlation. The second describes how the protection of the name of a civil partnership was asserted before the 2003 amendment to the Civil Code. The third contains the views of doctrine and case law in relation to the construction of business designations, in light of the current state of the law. The final section compares the Polish legal system with the German system in terms of civil partnership identification.

Legal Aspects of Futile Therapy in the Face of the End of Life

AbstractThis article presents legal issues related to therapeutic decisions made by doctors and to euthanasia and assisted suicide, which are prohibited and penalized in the Polish legal system. The paper refers to the terms ‘futile therapy’ and ‘over-zealous treatment’. It was also considered appropriate to refer to the concept of resuscitation, which can be understood narrowly as cardiopulmonary resuscitation or broadly as all activities aimed at potentially reversing the dying process. Completion of resuscitation as it is broadly understood means that (unless there has been recovery) it is considered a futile therapy.De lege latathere are no statutory regulations in the Polish legal system that could be directly related to the decision to abandon futile therapy in order to assess its legal legitimacy. The aim of the study is to present the problem of futile therapyde lege lataandde lege ferendain the face of the end of life. The article also presents the latest draft of legal regulation regarding futile therapy developed by an interdisciplinary team appointed by the Patients’ Rights Ombudsman in the form of ‘Standards of conduct in medical therapies used in the end-of-life period’.

Mowa nienawiści a dobra osobiste – wybrane aspekty ochrony cywilnoprawnej

The subject of this article is the analysis of hate speech in civil law terms through the prism of the institution of personal rights. The author points out that the issue of hate speech is an interdisciplinary phenomenon, but one that is strongly related to legal sciences, in particular criminal law. It would be of great value to science to consider the topic more broadly from the perspective of administrative and civil law. The author links the issue of hate speech with personal rights and points out that, on civil law grounds, hate speech is an attack on specific personal rights. Then he discusses the essence of the regulation of personal rights. Next, he goes on to analyse the position of the entitled and responsible parties and extensively analyses claims arising from the violation of personal rights in the context of hate speech. The author also proposes solutions that could increase the level of civil law protection (i.e., the institution of a blind civil lawsuit) and points to the important role of legal education. According to the author, the Polish legal system provides civil law institutions that are effective protection against hate speech. Nevertheless, the phenomenon in question must be constantly analysed in the context of contemporary social and civilisation challenges so that the legal system in Poland responds to these challenges.

The constitutional principle of decentralizing public power in the Polish legal system

Decentralization of public power is one of the fundamental principles present in rule of law democracies. It is a constitutional principle that is materialized through the functioning of local self-government. The article concisely characterizes the decentralization of public power in Poland, with particular emphasis on the basic principles governing the functioning of local self-government. The author also points to problems related to the implementation of the said principle.

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.

Legal Regulations of Clinical Trials in the Polish Legal System

The article deals with the issue of regulation of clinical trials against the background of the Polish legal system. The starting point is the analysis of the institution of medical experimentation in the context of clinical trials on humans. The paper pays particular attention to the informed and voluntary consent of the participant in a clinical trial, taking into account the current case-law of the Supreme Court. Drafts of future legislative changes concerning clinical trials have been announced recently.

Smart Contract – Problems with Taking Evidence in Polish Civil Proceedings in the Light of European Regulations

In recent years, we have observed an amazing development of new technologies; many contracts come into effect without paper documents being signed. New possibilities have appeared, for example, the smart contract (also known as the digital contract or blockchain). In some cases, there is a dispute between the participants in the smart contract, e.g., as to the manner of its implementation. A court case might be necessary to resolve the dispute. As in any dispute, evidence proceedings will have to be conducted. The smart contract should appear as a proof. However, due to its unusual nature and complicated status under substantive law, as well as the fact that it is produced by new technological solutions, it is essential to determine its admissibility as evidence. The procedural law regulates in detail only traditional evidence. The smart contract has not been regulated in procedural regulations, therefore, its status needs to be established in the context of the existing documentary evidence. This article aims to contribute to the discussion on the status of smart contracts in civil court proceedings. Primarily, it should be determined whether the smart contract can be considered a document within the meaning of procedural law. In the Polish legal system, the document is defined as an information carrier whose content can be read. Accordingly, the smart contract meets the definition criteria. However, in the absence of provisions governing the manner of taking documentary evidence, it may be difficult to actually take such evidence and establish its value. The article also draws attention to Regulation (EU) No 910/2014 of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93 / EC. Its art. 46 refers to the legal effectiveness of electronic documents and prohibits discrimination against evidence from such documents, which should undoubtedly contribute to the acceptance of a smart contract as evidence in civil proceedings.

Szczególne uprawnienia osób niepełnosprawnych w zakresie zakazu dyskryminacji

Special rights of persons with disabilities in terms of non-discrimination Discrimination based on disability is indicated in the Polish legal system as one of the prohibited discrimination criteria. However, the definition of the term “disability”may cause difficulties due to the differences in the meaning of this term on medical and legal grounds. There are diverse models of perceiving disability that affect not only its various definitions but also influence the existing forms of assistance and means used to combat discrimination. Limited ability to work makes people with disabilities particularly vulnerable to discrimination in the sphere of employment. Special rights for people with disabilities are aimed at reducing or completely eliminating existing barriers that prevent these persons from fulfilling their social roles. The purpose of this study is to discuss the special rights of people with disabilities in the sphere of employment, with particular emphasis on the employer’s obligation to provide the disabled person with the necessary reasonable improvements. The analysis of the existing legal solutions leads to the conclusion that further legal and social changes are necessary, with the main emphasis on the elimination of social disability.

ADMISSIBILITY OF HEMP CROP OTHER THAN FIBROUS IN POLAND

Implementation in the Polish legal system of the amendment of the Act on Counteracting Drug Addiction on 7 May 2022 allowed for a possibility of cultivating in Poland hemp other than fibrous for the needs of the pharmaceutical industry. The paper discusses the path that has led from the legalization of cannabis and its products to a gradual change of attitude both in international and national legislation. The aim of the study is also to familiarize the reader with the requirements the Polish legislator has placed on entities that intend to grow hemp other than fibrous for the production of pharmaceutical raw material.

Combating Organised Economic Crime in Poland: Statistical and Organisational Aspects

The subject of the article is to discuss the determinants of economic crime in Poland from a criminal law perspective. The author discusses the characteristics of the issue and the genesis of organized crime in Poland. He presents statistics that discuss the activities of criminal groups and the development of economic crime in Poland. The text discusses important issues from the perspective of the prosecution of the crimes in question and the role and position of selected legal protection authorities. The author points out the strengths and weaknesses of the Polish system for combating economic crime. The article provides guidelines and recommendations for changes in the Polish legal system to improve the prosecution and detection of economic crime.

The concept of de facto relationships in Poland

This article is the first in a series of articles dedicated to de facto relationships, i.e. cohabitation, in Poland. Traditionally, cohabitation has been defined in Poland in opposition to marriage, and means a long-term relationship between a man and a woman who are living together outside a formal marriage. Cohabitation is widespread in Poland and is accepted by the great majority of citizens. At the same time, currently, there are no legislative proposals aimed at regulating in a comprehensive manner cohabitation, and it seems unlikely that this will change in the near future. Attempts to create a legal framework for cohabiting persons have, to a modest extent, and limited to selected aspects of civil law, been undertaken in the past. Looking to the future, then, we can expect to see a continuation of the past pattern of uncoordinated, scattered legislation. The concept of cohabitation will likely be introduced into various legal acts, and thus, indirectly, cohabitations will be partially integrated into the Polish legal system.

Prédications juridiques avec les termes maternité, paternité et leurs équivalents polonais

Legal predications with the terms maternité, paternité and their Polish equivalents This article aims to analyze legal predications with the terms maternité, paternité and their Polish equivalents as an argument. The methodological framework of this study centers around the language expression of specialized concepts. The observed predications refer to legal actions for the purpose of establishing and contesting filiation in the French and Polish legal systems. We observe a strong use of nominal action predicates and an almost exact equivalence of expressions with the terms in question.

The “Other” in Court: Islam and Muslims in Polish Judicial Opinions Published Online

Muslims are a marginal minority in Poland, but research shows that they are often subject to negative perceptions and hostility from the majority. Orientalist stereotypes about Islam and the people associated with it are widespread and often reproduced in the media. Research from North America and the European Court of Human Rights suggests that such prejudices can affect the adjudication of cases involving Muslims. It may be presumed that Poland is no exception to that, and this assumption was the starting point for our empirical study. To date, there have been no studies on the perception of Muslims and Islam in the Polish legal system. This article presents the results of a qualitative thematic analysis of 57 judicial opinions issued by the common courts in Poland and published online, in which Islam or being Muslim was mentioned. The cases were categorised and texts of the judicial opinions closely analysed (with computer-assisted qualitative data analysis software) to identify recurring themes. The findings of this first exploratory study show that stereotypical representations and the “‘Othering” of Muslims do indeed occur in Polish courts, with some judges repeating Orientalist tropes that have become normalised in Polish society.

CHARAKTERYSTYKA DEFINICJI LEGALNYCH „BENEFICJENTA” W RAMACH POLITYKI SPÓJNOŚCI

The term ‘beneficiary’ used for the purposes of spending the EU aid funds was introduced into the Polish legal system before Poland became member of the European Union. Initially, the national legislator used this term only in the domestic regulations on the basis of which public funds were transferred. Over time, the legislator also introduced the definition of the beneficiary to national regulations adapted to the needs of the cohesion policy. It can be observed that the legislator, while initially providing own definitions of the beneficiary, recently has only referred to particular provisions of the directly applicable EU regulations. Obviously, national authorities must operate in an integrated legal system, in which there are many sources of binding law that define ‘beneficiaries of funds allocated to the implementation of the cohesion policy’. In this context, one can speak of the Europeanisation of national law with regard to the implemented policy.

PROBLEMATYKA ODPOWIEDZIALNOŚCI WŁADZ PUBLICZNYCH ZA OCHRONĘ ŚRODOWISKA. ANALIZA ZAGADNIENIA OCHRONY ŚRODOWISKA W ŚWIETLE PRAWA POLSKIEGO I UNIJNEGO

Unimpeded functioning of the natural environment is the basis for the operation and effective development of society. However, the fundamental role that nature plays in the existence of society has not protected it from overexploitation. Human activity focused mainly on the progressive economic development has gradually led to a significant environmental degradation. Therefore the problem of environmental protection has rightly become the main topic of public discourse worldwide. In response, governments and international organizations have taken a series of coordinated actions to prevent further destruction. Law is one of the most effective instruments in environmental protection. The Polish Constitution provides that environmental protection is a duty of public authorities, which they are obligated to fulfil. The EU law also protects the environment by means of many legislative acts. Over the years, the European Union, as the economic and political union of states, has developed one of the most restrictive mechanisms of environmental protection. The EU legislation has always emphasized that sustainable development and green economy are the supreme values for the Union. The EU law is part of the Polish legal system, and thus also imposes the obligation on Polish public authorities to care for the environment.

Ostatni referat Edmunda Krzymuskiego w pracach Sekcji Prawa Karnego Materialnego Komisji Kodyfikacyjnej Rzeczypospolitej Polskiej – wybrane zagadnienia

Edmund Krzymuski’s Final Paper in the Work of the Section of Substantive Criminal Law of the Codification Commission of the Republic of Poland – Selected Issues The paper presents the course of the discussion of Edmund Krzymuski’s essay on crimes against life and health, which took place as part of the Section of Substantive Criminal Law of the Codification Commission of the Republic of Poland in June 24–27, 1920. The article focuses on the main threads of the referent’s questionnaire and is devoted i.a., to the crimes of murder, bodily harm, incitement to suicide, or the killing of a fetus. The work highlights both Krzymuski’s proposals, as well as different concepts supported by other members of the Section, which were included in the draft criminal code of 1932. That discussion was significant because most of these solutions are still in force today in the Polish legal system. The article also attempts to answer whether the circumstances related to the referent’s proposals could have influenced his decision to resign from further work within the Substantive Crim

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.

Wizerunek pełnomocnika procesowego w polskich utworach literackich i piśmiennictwie politycznym XVI i XVII stulecia

The Image of an Attorney as Illustrated in Works of Polish Poets and Political Writers in the 16th–17th Centuries The article presents the image of an attorney as characterized in Old Polish literature of the 16th and 17th centuries. It reflected, to some extent, the attitude of the people of the time (primarily the nobility) towards the legal profession. There is no doubt that Old Polish society’s perception of attorneys was unequivocally negative. They were portrayed as greedy, dishonest men, liars with no respect for the law, and even instigators of non-compliance with the law. Literary works and political writings broadly condemned such behaviors. However, this stereotype applied only to professional attorneys-at-law. By no means were non-professional agents (attorneys-in-fact) attacked, nor was the institution of the power of attorney itself criticized. It seems that this sort of critical attitude was not estate-based (lots of attorneys were noblemen), although it is possible that the low descent of lawyers influenced the virulence of the criticism. The paper attempts to answer the question as to what extent the literary image of an attorney corresponded to reality. It seems that the works comprised objective reflections on the legal profession and the emotional attitudes of individuals (including authors themselves) or social groups. It is noteworthy that these pieces of literature often regarded the entire Polish legal system of the time as dysfunctional. Nevertheless, the recurrence of motifs such as greediness or dishonesty gives reason to believe that at least some of these allegations were not unfounded. At the same time, it should be noted er corresponded with the stereotype present in European and non-European culture from antiquity to contemporary times.

Tryb procedowania oraz przesłanki przekształcenia użytkowania wieczystego w prawo własności

The right of perpetual usufruct has been operating in the Polish legal system since the 1960s. The essence of this right consists in the possibility for the perpetual usufructuary to use land which is publicly owned, to the exclusion of other persons, along with the right to dispose of it. The content of the right to perpetual usufruct is therefore similar in substantive terms to the ownership rights, although it is subject to certain determinants particular only to this law. The limits of the rights of the perpetual usufructuary are determined not only by the provisions of acts, rules of social coexistence, but also by the provisions of the agreement for subjecting land to perpetual usufruct. In addition, the temporary nature of the law and the rules of payment, including the possibility of updating the annual fee for perpetual usufruct, meant that for many years legislative activities were undertaken in the scope of enfranchising perpetual usufruct users. The Act of 20th July 2018 on the transformation of the right of perpetual usufruct of land developed for housing purposes into the ownership right to this land performed normative enfranchisement of perpetual usufruct users. The procedure of confirming enfranchisement is made by the public administration authority in the form of a certificate. The requirement to issue a certificate sometimes demands that the authority conduct a multi-faceted analysis in terms of meeting the conditions for such enfranchisement. Both the material scope of the act, the content of the issued certificate and the paid character of the enfranchisement to which the provisions on state aid apply in practice generate many obligations on the part of the authority issuing the certificate. Due to the universal character of the enfranchisement process and some of its specific features, the legal solutions proposed by the legislator in this area require a more in-depth analysis.

The internment of patients undergoing treatment for alcohol addiction as a result of a specific interpretation of legal provisions by some judicial authorities.

In the Polish legal system, each medical procedure requires patient's consent. Exemptions from the obligation to obtain such a consent are limited by the legislator to exceptional situations, i.e., when the delay caused by the procedure for obtaining consent would pose a threat to patient's life, serious injury, or serious health impairment. Undergoing addiction treatment is also voluntary. Exceptions to this principle are stipulated by a legal act. People who abuse alcohol and therefore break down family life, demoralize minors, avoid the obligation to meet the needs of their families, or systematically disturb peace or public order, may be obliged to undergo addiction treatment in an inpatient or outpatient treatment centre on condition that they are addicted to alcohol. A patient who fails to report to the medical entity designated by the court to execute the decision on the obligation to undertake addiction treatment may be brought to this entity by the police. In the context of the obligation to obtain a consent for treatment by a person against whom a court decision containing an obligation in this respect has been issued, there are discrepancies in the application of law provisions. In some medical entities, this results in the forced continuation of addiction treatment by a given patient in hospital, as discharge from the hospital depends on a court order issued in this regard, not on the consent of the patient himself/herself. In other medical entities, patients are not admitted for treatment due to the lack of such a consent, despite the court's obligation in this respect. The article confirms that a specific practice of applying the law, which downgrades the role of the patient's consent in the therapeutic process, has negative consequences for the effectiveness of the therapy.