Polish Legislation Research Articles

Prawne aspekty rozpowszechniania wizerunku małoletniego w celu osiągnięcia korzyści majątkowych przez rodziców-influencerów

The article aims to analyze specific legal aspects related to the dissemination of the image of a minor for financial gain by parents acting as internet influencers. The thesis of the article is based on the assertion that the current state of Polish legislation cannot be considered satisfactory or sufficient in light of emerging practical issues concerning the recording and exploitation of a child's image by their legal representatives for profit. The study sequentially discusses the definitions of "image," principles governing the dissemination of the image of a person below 18 years of age, and conducts an analysis of phenomena such as sharenting, commercial sharenting, and parental trolling. The article also identifies potential means of protecting minors against abuses by their parents using civil procedure instruments and labor law. To comprehensively address the topic and substantiate the thesis, the author used a dogmatic-legal and theoretical-legal methodology.

Collective patients’ rights in Polish law. Selected problems

The subject of the analysis in this publication is the problem of patients’ collective rights. In an attempt to find an answer to the questions concerning the essence of these rights and the relation between legal protection against violations of these rights and the protection against violations of individual rights of patients, the analysis covers the legal solutions in the field of patients’ rights in force in Poland, as well as the related literature and administrative court decisions. In this way, it was established that Polish legislation recognises the collective rights of patients understood as the rights of actual and potential patients treated as a collective, i.e. a group that deserves special protection, and establishes an additional method of their protection by way of administration, in which the object of protection is a collective interest (proceedings on practices violating collective patients’ rights before the Patient’s Rights Ombudsman), while some legislation recognises the right to collective patient involvement.

Fabrication and Falsification of Scientific Research – a Challenge for Legislators or an Irrelevant Issue?

The article addresses the problem of fabrication and falsification of scientific research in the context of the role that lawmakers can play in combating this practice. Legisla­tors may establish organisational units specialising in combating scientific miscon­duct (also referred to as ‘research misconduct’), having the authority to, for instance, to conduct investigations or recommend penalties. A researcher who commits such misconduct may face not only disciplinary, but also civil, administrative or criminal liability. The article discusses the results of a survey asking 70 Polish academics about their opinion on the role of legislators in countering fabrication and falsifica­tion in research. The findings show, for example, that respondents mostly support disciplinary responsibility for such misconduct (81%), and also believe that legisla­tors should combat this practice using ‘soft’ measures, such as promoting codes of ethics in research (70%). Half of those surveyed wanted such behaviour crimina­lised. According to almost half of the respondents, the Polish legislator does not combat such misconduct effectively.

The Absence of Young Carers in the Polish Legislation

The article analyses the legal acts dedicated to child and family issues in the context of the issue of young carers which is widely addressed internationally. The questions posed relate primarily to the issue of children’s rights, their protection, the topic of care and parental responsibility, as well as the problems experienced by the family. The article attempts to demonstrate an important research and legislative gap in relation to the situation of children undertaking caring tasks within the family. The analysis reveals the unidirectional nature of guardianship as perceived in Polish legislation. No provision is made for other mechanisms that may take place within the family, making young carers in this situation unnoticeable.

Off-label drugs in otolaryngological practice against the background of legal conditions of Polish legislation.

<b><br>Introduction:</b> 'Off-label drug use' refers to the administration of drugs for unapproved indications or age groups, a different dosage or other form of administration. Considering the legal issues, there clearly exists a need to implement rules that would regulate the use of pharmaceuticals outside the scope of a marketing authorisation. The brevity and diversity of Polish laws in the field of health care leads to many interpretative doubts associated with particular legal acts.</br> <b><br>Aim:</b> We aimed to present clinical examples from everyday practice of off-label drug use from the medical and legal perspectives, and to support it with relevant legal acts.</br> <b><br>Material and method:</b> Off-label drug use in various otolaryngology subspecialties - otology (mesna), laryngology (bevacizumab, cidofovir and botulinum toxin) and head and neck surgery (botulinum toxin) - are presented and discussed in detail.</br> <b><br>Results:</b> Fourteen Polish legal acts regarding off-label drug use and 4 from EU legislation are commented on. The algorithm of cascade of decision-making processes in off-label drug use is shown.</br> <b><br>Conclusions:</b> Off-label use of medicinal products is not prohibited in Poland or the EU; nevertheless, it is undeniable that the unclear legal situation regarding the use of medicinal products for nonregistered indications creates difficulties. To minimise a doctor's liability risk, obtaining the informed consent from the patient for such treatment is advisable.</br&gt.

Prawna płaszczyzna zwalczania terroryzmu w Polsce

This article addresses the issue of terrorism and its counteraction in Polish legislation. Its aim is to demonstrate how Polish law is prepared to prevent terrorist incidents and which agencies and authorities are responsible for these actions. The article applies the method of institutional-legal analysis. Based on it, conclusions can be drawn that Polish legislation is relatively well-prepared to combat terrorism.

The Impact of EU Law On the Definition of Advertising By Polish Courts Using Pharmacy Advertising as An Example

Competition is one of the basic foundations of a free market economy, being at the same time the basis of freedom of economic activity. Competition has a positive impact not only on professional entities, motivating them to develop, but also on consumers, who, thanks to it, gain the possibility to choose. One of the pillars of competition is, of course, advertising. Advertising, which, as an economic phenomenon, is constantly evolving. This development has, of course, many positive aspects, but at the same time it obliges the authorities to take action to regulate it. The Polish legislator has rationed advertising in a number of specific acts, doing so mostly due to the need to protect superior values, such as human health or life. However, each aspect of advertising rationing first requires a definition of this concept, which under Polish law poses many problems of interpretation and practice. In this article, attention will be focused on the problem of advertising rationing on the part of the Polish legislator without simultaneous normative definition of this notion. The above imposes an obligation on the courts to define the notion of advertising in each case, which has led to the development of a certain scheme of definition, which includes, inter alia, reference to EU law. The main objective of this paper is to show the impact of EU law on the definition of the notion of advertising by Polish courts. The issue of legal definition of the notion in question is a complex problem, for the analysis of which the exemplification of pharmacy advertising was used. This example may be regarded as representative given the fundamental problems that will be addressed in the speech, while at the same time having special features of interest in the legal sense. In order to achieve this goal, a dogmatic-legal method has been used, which allows the examination of both the existing legal regulations and the jurisprudence and doctrine.

Actual coverage of the funds in the account by order on physical evidence under Polish criminal procedure

The subject of this article is a consideration of recent changes to the current Polish criminal procedure. The changes concern in particular the investigation. Initially, the Supreme Court issued two resolutions, which eliminated the actual coverage of the funds in the account by order on physical evidence (this is a legal fiction - funds in an account are not physical objects). At that time, the public prosecutor could only use the "transaction suspension" or "blocking of an account" to freeze the funds. Later, the Polish legislator added Art. 236b to the Code of Criminal Procedure. The purpose of this provision is to outdate the above-mentioned resolutions. Instead of a suspension or blockade, the actual coverage of the funds in the account by order on physical evidence may take place. However, in the authors' opinion, this should only take place in the case of an ultima ratio action. This means, firstly, the end of the maximum duration of the "transaction suspension" or "blocking of an account" and, secondly, the impossibility to apply property collateral. These restrictions are not currently in Polish law. This means that the Polish public prosecutor can theoretically omit the provisions on the "transaction suspension" or "blocking of an account". This possibility applies to fiduciary currencies and virtual currencies. This paper may be useful in considering the options currently available to the public prosecutor in relation to a request for legal assistance to Polish law enforcement authorities which concerns the seizure of funds in an account.

CHANGES IN POLISH TAX LAW IN RESPONSE TO THE COVID-19 PANDEMIC AGAINST THE COMPARATIVE LEGISLATIVE CHANGES IN THE CZECH REPUBLIC AND SLOVAKIA

The article describes the most important characteristics of legislative changes made in the Polish tax law in connection with the COVID-19 pandemic. They undergo comparison with changes made in this branch of law in the Czech Republic and Slovakia. This juxtaposition serves the authors to show that the main trend was, in the first place, to suspend the deadlines in tax procedures. It was an ad hoc change and did not affect any significant changes in tax procedures in the long run. The authors also point to certain restraint of the Polish legislator as regards adoption of serious changes to substantive tax law during the period under examination and touch upon the issue of transferring certain competences (in terms of exemptions) from the legislative authority to: (1) local governments or (2) the executive branch.

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.

COLLECTION AND REUSE OF DATA BY LOCAL GOVERNMENT AUTHORITIES

The Act on open data and the reuse of public sector information contains regulations for open data and principles and procedures for making available and providing public sector information for the purpose of reusing them. This act of law is consequential for entrepreneurs and businesses in terms of the creation of products and services based on artificial intelligence where various types of data are used, among others. The Act on open data and the reuse of public sector information significantly affects the collection and reuse of data by local government authorities. The reuse of data by local government authorities can take many forms. One of them is services related to applications based on the data or various legal information systems, maps, dictionaries, or calculators. The article analyses regulations in Polish legislation regarding the collection and reuse of data, particularly by local government authorities.

IS A RESOLUTION OF THE MUNICIPAL COUNCIL CONCERNING A PERIODIC SPORTS SCHOLARSHIP FOR INDIVIDUALS ISSUED UNDER ARTICLE 31(3) OF THE LAW ON SPORTS OF JUNE 25, 2010 A LOCAL LAW?

The purpose of this article is to review and analyze the statements of doctrine and case law on local laws. In addition, the author in the study attempted to assess the legal evaluation of the resolution of the municipal council issued under Article 31 paragraph 3. of the Law of June 25, 2010 on sports, establishing and financing periodic sports scholarships for individuals through the prism of the features characterizing acts of local law, developed by the doctrine of administrative law. The considerations contained in the work support the claim that this normative act has all the characteristics that characterize this source of universally binding law. The analysis of the problem was made primarily on the basis of Polish legislation, case law and doctrine. The inclusion of administrative-legal aspects in the study of the sports scholarship issue complements the legal-financial and physical culture research.

Standard of protection of property rights of owners of residential premises in a democratic country – selected problems considered in the light of Polish constitutional law

The article focuses on presenting key issues revealed in the context of the standard of protection of property rights of owners of residential premises in a contemporary democratic state governed by the rule of law. The considerations presented take into account the perspective of Polish constitutional law and the guarantees of protection of ownership and other property rights as regulated in the Constitution of the Republic of Poland of April 2, 1997 (with particular emphasis on Article 21 and Article 64). The issue addressed in this paper of particular importance from the Polish perspective because, on the one hand, Polish constitutional law formulates relatively broad guarantees for the protection of ownership and other property rights (including those rights of owners of residential premises and tenants – as outlined in Article 21 and Article 64 of the Polish Constitution). On the other hand, there are several practical problems in Poland in this context, including a very significant systemic issue related to the lack of any systemic solutions in the regulation of the short-term rental market by the Polish legislator.

Polish Concession Fee on Offshore Wind Farms: A Quasi-Tax Hidden in the Energy Law

The production of electricity using offshore wind farms is at a preparatory stage in Poland. However, it has the opportunity to become the most dynamically-developing segment of the power industry, especially considering ambitious targets for reducing CO2 emissions. The development of the renewable energy sector in Poland has major real estate tax context when one takes into account that RET paid for the infrastructure projects constitutes an important source of tax revenue for the local communities. The taxation of wind farms is a well-recognised issue, but jurisprudence developed in this area cannot help in solving the problem of the taxation of the offshore wind farms. A legal loophole in the Polish RET provisions made it impossible to tax the offshore constructions. In order to capture the tax from offshore wind farms, the Polish legislator introduced a special concession fee, whose amount is approx. equal to the hypothetical RET to be paid from the wind farm if it was located onshore. The purpose of the article is to present the doubts regarding the offshore concession fee from the perspective of Polish constitutional standards as well as the Polish tax system consistency.

Implementation of the Istanbul Convention into the National Criminal Legislation in Poland

The Council of Europe Convention on preventing and combatting violence against women and domestic violence (further: Istanbul Convention) became part of the Polish legal system on August 1, 2015. The ratification process of the Istanbul Convention was marked with difficulties from its very opening for signature. The provisions of the Convention have caused – and continue to arouse – a range of extreme emotions and doubts. The fierce dispute that has emerged over the implementation of the Convention in Poland at some point even led to action being taken for termination. As things have been to date, Poland has not terminated of the Istanbul Convention. Five years following ratification of the Convention, in March 2020, Poland submitted a report on the implementation of measures giving effect to its provisions into the Polish legal system, as required under the monitoring mechanism. Poland’s report was considered by GREVIO, with an assessment made of Polish legislation in this regard and an evaluation report issued in June 2021. Notwithstanding the comments that Poland made to the GREVIO report, the key conclusions of the assessment should be highlighted as regards compliance of Polish criminal legislation with the standard of protection of women against violence, including domestic violence, under the Convention. Since the Convention was opened for signature, and in particular since its ratification, the Polish legislator has introduced a range of amendments to the Criminal Code aimed at raising the standard of protection for victims of domestic violence and of effective prosecution of offenders. This text highlights the most important of these changes and presents the current state of implementation of the Istanbul Convention into Polish criminal law.

Certain issues of responsibility for human trafficking under the criminal law of Ukraine and Poland

The purpose of the study is to analyze certain issues of responsibility for human trafficking under the criminal law of Ukraine and Poland, as well as to develop proposals aimed at improving the criminal legislation in the relevant part.
 The methodological basis of the research is the comparativist method.
 Results. The article proves that human freedom and dignity should be recognized as the object of human trafficking. The omission of the Polish legislator is that in the title of Chapter XXIII of the Special Part of the Criminal Code of Poland, unlike the title of Chapter III of the Special Part of the Criminal Code of Ukraine, human dignity is not mentioned.
 The article argues that it does not make sense to single out an independent article in the Criminal Code of Ukraine on responsibility for child trafficking, because the relevant actions may well be qualified under the current Article 149, which among the forms of human trafficking singles out human trafficking as such committed without the purpose of human’s exploitation. The problem of criminal legal countermeasures against child trafficking committed without the purpose of exploitation remains relevant for Poland. Possible options for its solution may include amendments to Art. 115 § 22 of the Polish Criminal Code or the inclusion to the criminal law of an independent article on responsibility for the specified offense.
 The opinion expressed in the legal literature about the expediency of completely refusing to indicate the methods of committing human trafficking should be recognized as unfounded. It is in view of deception, blackmail, being in a vulnerable state, etc., that a person gives his/her consent to the work offered to him/her, to engagement in prostitution, etc., and it is in view of this, and also in view of the purpose of further exploitation, that even his/her voluntary consent does not exclude criminal liability of the perpetrator.
 The article argues that indicating the purpose of exploitation allows to distinguish a criminal act from actions that are not criminally punishable. Persons who recruit, move, hide or transfer a person are, of course, primarily interested in the material benefit they wish to receive as a result of their actions. At the same time, they act in this way, realizing that the person recruited (moved, etc.) by them will be exploited by others in the future. The realization of the goal of exploitation lies outside the scope of human trafficking, and therefore human exploitation must be additionally qualified under other articles of the law on criminal liability.
 Conclusions. The article establishes that despite some differences in the wording of the criminal law prohibition of human trafficking the legislators of Ukraine and Poland have by now approximated their understanding of the essence of this act with its definition formulated in the Palermo Protocol and the Council of Europe Convention on Action against Trafficking in Human Beings.
 The analysis of scientific works devoted to the issue of human trafficking proved that many questions raised by Ukrainian and Polish researchers are identical. The solutions they offer are often similar too.

Irregular Migration in Poland and the Importance of Readmission Agreements in Theory and Practice

Poland is a Member State of the European Union and a part of the Schengen area, which ensures free movement without controls at its internal borders while strengthening the security of its external borders. It plays a special role here, as its eastern border is simultaneously its external border. This importance has been further increased by recent events in the eastern part of Europe, particularly through the smuggling of migrants and refugees into the European Union from, inter alia, Iraq, Afghanistan, and other countries in the Middle East and Africa via the Belarusian-Lithuanian, Belarusian-Polish, and Belarusian-Latvian borders in 2021, and because of Russia’s aggression against Ukraine on 24 February 2022 resulting in millions of people fleeing war and seeking protection, particularly in the eastern part of the European Union. The increased migratory movement along the eastern borders of the Republic of Poland observed in 2021, was a direct cause of the changes introduced in Polish legislation on foreigners. The possibility of returning migrants apprehended immediately after crossing the border in violation of the law was introduced. In such cases, the competent commanding officer of the Border Guard could draw up a report on crossing the border and issue an order to leave Poland. The appeal against this order may be presented to the Commander-in-Chief of the Border Guard, which, however, does not suspend it. The aim of these provisions was to protect the border from a mass influx of irregular migrants. However, it is questionable whether they simultaneously ensure the fundamental human right to be treated with dignity.

Brokerage Agreement as Contractus Uberrimae Fidei

Obligation relationship results from a particular legal circumstance. In current Polish legislation, the legislator provides neither for a systematized catalogue of sources of obligations, nor for a compiled version thereof. An obligation can result not only from a legal basis, but also from case law or administrative decisions. Under substantive civil law, obligations can be divided into unjust enrichments, unlawful acts and acts in law. In addition, acts in law can take form of unilateral acts or form of agreements which are discussed in this article. Brokerage agreement, which is an innominate contract not specified by the Polish legislator, also constitutes a contractual obligation. This type of agreement is subject of constant evolution in the insurance law doctrine, by becoming a kind of obligation which takes shape and assumes its unique features, distinguishing it from other agreements. The author makes an attempt to define the essential aspects of a contract concluded between subjects seeking insurance protection and professional insurance intermediaries, and to determine whether this agreement requires the standard of the utmost good faith. Having applied dogmatic and empirical legal methods, he considers the legitimacy of demands for treating this obligation as a nominate agreement.

Consideration of risks to people and the environment related to accidents on natural gas transmission pipelines in LUP and SEA processes in Poland

ABSTRACT This study concerned the integration of gas pipeline safety issue into the LUP (Land Use Planning) and SEA (Strategic Environmental Assessment) processes in Poland. It focused on the early stage of natural gas transmission pipeline localisation, i.e. the preparation of land use development plans (the plans) and accompanying SEA documents. It aimed to analyse a set of selected plans and SEA documents taking into account risks to people and the environment resulting from accidents on gas pipelines. The results of the analysis showed that although the Polish legislation defining the content of these documents does not explicitly refer to these risks, they are included, but to a limited extent, in the documents examined. It is proposed to modify the EU and Polish legislation for the control of major accident hazards on gas pipelines. In particular, in addition to the generic-distances approach currently used in Poland for maintaining the separation distances between the gas pipeline and other buildings it is suggested to introduce a risk-based approach to support LUP decisions near gas pipelines in Poland.

SYSTEMY WARTOŚCI ZABYTKOWEJ A USTALANIE ZNACZENIA WARTOŚCI HISTORYCZNYCH W ZABYTKU ARCHITEKTURY

The work analyzes the value systems of historical heritage in the context of Polish legislation, and also builds a background for assessing the historical value of architectural monuments. The presented investigations extend the discussion of the original HeV method, used in historic value assessment procedures. The specificity of historical values indicates the validity of starting with historical analyses, building a narrative, and then searching for ways to discover the extent to which the architectural substance perpetuates and transmits this narrative, as well as what specific values are associated with it according to the selected system.