Professional Self-governance Research Articles

Funkcje oraz zadania samorządu zawodowego komorników sądowych

The professional self-government, as a component of the decentralised public authority, is an institution which derives its legitimacy from the supreme legal act, the Constitution of Poland. Its basic framework is set out in Article 17(1) of the Constitution, according to which: “By means of a statute, self-governments may be created within a profession in which the public repose confidence, and such self-governments shall concern themselves with the proper practice of such professions in accordance with, and for the purpose of protecting, the public interest”. The ratio legis of this regulation is the possibility of statutory entrustment of certain professional corporations with the performance of public tasks in authoritative forms appropriate for public administration. This study presents of the functions and tasks that the legislator has provided for the professional self-government of judicial officers. Currently, the provision regulating the tasks performed by the judicial officers’ self-government is Article 195 of the Act of 22 March 2018 on judicial officers, according to which the tasks of the judicial officers’ self-government include in particular: 1) supporting the administrative supervisory bodies in supervising the conscientious performance of service by judicial officers and the proper performance of duties by assessors and trainees, 2) participating in ensuring the conditions for the performance of the statutory tasks of judicial officers, 3) representing judicial officers and assessors, 4) the professional development of judicial officers and assessors, and participation in the training of trainees, 5) establishing and promoting the principles of professional ethics and ensuring their observance, 6) conducting research into the functioning of judicial enforcement. The authors analyse the normative material regulating the issue in question. Looking through the prism of theoretical concepts of professional self-government, they also assess the legitimacy of the solutions adopted by the legislator. Consequently, they make de lege lata remarks and de lege ferenda postulates.

Prawna ochrona tytułu zawodowego

The study concerns the legal protection of professional titles, which are related to professional activities. It presents the genesis of such professional titles and their protection in Poland, which initially related to the protection of selected so-called ‘free legal professions’ (such as tax advisor, advocate, legal advisor, patent agent). The evolution of the subjective scope of how these professions occurred is also presented, including the introduction of this type of solution in relation to certain professions termed ‘free economic professions’ (chartered accountant, stockbroker and investment advisor), certain ‘free medical professions’ (nurse/nurse, midwife/midwife, laboratory diagnostician, physiotherapist, pharmacist), and selected socalled ‘free professions’, within which no professional self-governments functions (real estate appraiser). In this regard, it is noted that the legal protection of professional titles went beyond the scope of professional activity and also covered certain spheres of economic activity, an example of which are detective services provided by persons holding the professional title of detective. Against the background of the analysis of European standards, it is established here that the introduction of legal protection of professional titles should now be regarded as one of the means of regulating access to a profession. It is shown that the essence of the legal protection of the professional title comes down to the right of authorised persons to use the title on an exclusive basis, in order that other persons may not use the reserved title in this way, nor may their behaviour mislead the users of their services as to the fact that they hold a specific professional title, even if they have the appropriate knowledge and skills. There are various forms of legal protection – criminal, administrative and civil liability measures apply, but there are no comprehensive guarantees. A legally protected professional title can also be regarded as one of the determinants of the concept of a profession.

The role of attorneys-at-law in a democratic state ruled by law

Attorneys-at-law, both at the individual and group level, i.e., as a professional self-government, when performing their duties and obligations arising from the provisions of law and deontological norms defining their professional status, have a role of a systemic nature to play. This role is intended to contribute to the strengthening and development of the democratic character of the Republic of Poland. A particularly important tool for carrying out this task of the National Bar of Attorneys-at-Law is the possibility to present opinions on draft legal acts, a constitutional tool which, due to the very essence of the attorney-at-law’s profession, allows the National Bar of Attorneys-at-Law to present at the stage of legislative work possible threats arising from the proposed normative acts to constitutionally guaranteed civil rights and freedoms. The systemic role of attorneys-at-law in a democratic state ruled by law can also be seen in an individual dimension, which is manifested primarily in the course of providing legal assistance (as part of the professional practice). After all, the rule of law clause cannot be deprived of its fundamental component, which is considered to be the rights and freedoms of the individual. In this concept of the rule of law, attorneys-at-law, who participate in the implementation of the rule of law by providing legal assistance, can and should be treated as its constituent. The systemic role to be played by attorneys-at-law individually and in gremio, i.e., as a professional self-government, becomes particularly important in times of crisis of the state ruled by law. The National Bar of Attorneys-at-Law, like the bar associations of other legal professions, is particularly predestined to take the floor in public debate on changes in the administration of justice that may violate the constitutional order.

The mission of the self-government of attorneys-at-law and its members

This article presents the issues of the mission of the professional self-government of legal advisers as well as the mission of legal advisers associated with the self-government. The elements defining, in fact, the mission of professional self-government, together with the mission of legal advisers, are determined by the goals set for the profession of legal adviser, being participation in the justice system and supporting a democratic state ruled by law. Art. 17 sec. 1 of the Constitution contains a regulation expressed in the obligation to harmoniously combine the many functions of the self-governments of professions of public trust. Importantly, the function of professional self-government is not only to shape the environmental interests of people performing public trust professions but also to seek to agree them with the public interest. Professional self-governments are primarily committed to the priority of implementing the public interest.

Zasada równości w wyborach do organów samorządów zawodów zaufania publicznego

The aim of this article is to demonstrate that the constitutional principles relating to elections to public authorities should mutatis mutandis be the benchmark for elections to the bodies of self-government of public trust professions. The principle of equality of the electoral law is of particular importance in this area. The analysis has been carried out on the basis of the Polish Constitution, the case law of the Constitutional Tribunal and the laws and internal acts regarding professional self-governments. It follows that a breach of the principle of equality in the internal acts of a professional self-government may be grounds for declaring them unlawful. Whereas, laws concerning these self-governments should enable the scrutiny of elections. The considerations lead to the conclusion that topics combining the position of professional self-governments and democratic standards of the election law can be a field of interesting research in the domain of constitutional law.

Zakres konstytucyjnej pieczy nad wykonywaniem zawodów zaufania publicznego

Exercising custody over the proper performance of professions of public trust is the essence of professional self-government established pursuant to Art. 17 sec. 1 of the Polish Constitution. The scope of this custody is very wide and varied, due to the need to adapt it to the specificity of specific professions of public trust. It covers most of the tasks in the field of public administration, including, inter alia, deciding on the possibility of practicing a profession, registration of persons authorized to practice a profession, as well as controlling the way in which it is performed by disciplinary jurisdiction. Constitutional custody over the proper performance of professions of public trust should be exercised within the limits of the public interest and for its protection, that is, in the interest of the general public and all citizens.

Tasks of the National Bar of Attorneys-at-Law in the light of art. 17.1 of the Constitution of the Republic of Poland

The article deals with the issue of the constitutional basis for the functioning of the National Bar of Attorneys-at-Law as set forth in Article 17 of the Basic Law. The author stresses the particular importance of bar associations functioning independently from political power, linking their constitutional attributes to the axiology of the democratic system. He infers the need to preserve the independence of the National Bar of Attorneys-at-Law from their systemic function as protectors of the freedoms and rights of individuals and as collaborators in the administration of justice. The key determinant of the place and role of bar associations in the system of law protection authorities is their constitutional status of public trust professions and the related function of protecting the public interest in the activities of the National Bar of Attorneys-at-Law. Further in the paper, the author focuses on the issue of ensuring the proper practice of the profession by the National Bar of Attorneys-at-Law, e.g., through disciplinary liability mechanisms, which in essence are supposed to guarantee politically independent, reliable, and effective legal assistance is provided by attorneys-at-law to their clients. In the last part of the publication, the author points out the current threats to the constitutionally guaranteed independence of the National Bar of Attorneys-at-Law, seeing their sources in the consistent questioning of the rule of law standards by political authorities. According to the author, its manifestations include, inter alia, excessive interference by the Minister of Justice in the field of professional self-government of the attorneys-at-law and attempts by politicians of the ruling majority to question the constitutionality of the principle of mandatory membership in the National Bar of Attorneys-at-Law, which is fundamental for the independent and effective functioning of this professional association.

Participation of the Special Self-Government in the Performance of Public Administration

The aim of this article is to analyse the bases in the Polish legal system for the functioning of the special self-government and its role in the exercise of public administration through the analysis of professional and business self-governments. The professional self-government is the expression of building the civil society. Introduction to the Polish basic law of the self-government of public trust is the expression of creation of citizens’ trust to the specific profession. On the other hand the essence of the economic self-government is seen in the corporation created by law, equipped with administrative authority to perform the decentralized public administration and created for the empowerment of entrepreneurs, thus expanding the scope of participatory management.

Sprawozdanie z Ogólnopolskiej Konferencji Naukowej Prawniczych Zawodów Zaufania Publicznego „Członkostwo w samorządach zawodowych”, Toruń, 20 stycznia 2022 r.

The report on the National Scientific Conference of Legal Professions of Public Trust, “Membership in professional self-governments”, Toruń, January 20, 2022. The third edition of the National Scientific Conference of Legal Professions of Public Trust was held on January 20, 2022. The event was organized remotely, due to the current epidemic situation, and was dedicated to the topic of membership in professional self-governments. The conference was organized by the Department of Administrative Law at the Faculty of Law and Administration of Nicolaus Copernicus University in Toruń. The main topics discussed during the conference were primarily inspired by the legislative changes concerning specific legal professions of public trust and also by de lege ferenda proposals regarding memberships in professional self-governments. A total of eleven presenters delivered lectures during the conference, both representatives of academic circles of six universities, as well as practitioners – representatives of professional self-governments of attorneys-at-law, advocates and notaries.

A pharmacist as a profession of public trust – comments in the normative context of professional misconduct and supervision by a professional self-government

A pharmacist as a profession of public trust – comments in the normative context of professional misconduct and supervision by a professional self-government

Konstytucyjne uwarunkowania tworzenia samorządów zawodowych

Self-governments of professions of public trust are empowered in the Constitution, where it derives its rank. Empowerment of activities of Professional self-government is therefore a very strong and unique. Article 17 of the Constitution establishes two types of self-governments. The legal situation of both types of local government referred in Art. 17 of the Constitution is not identical. Art. 17 Par. 1 of the Constitution shows the basic objectives of the functioning of professional self-governments and „the other types of self-government”, which states in Art.17 Par. 2, does not ascribe objectives, while establishes the limits of their influence. These self-governments cannot in any way infringe the freedom to practice the profession or limit the freedom to undertake economic activity. These reservations do not extend, however, to professional self-governments representing the professions of public trust, which may, in some cases even be limited to a certain extent the freedom of the profession or business for the purposes for which they have been implementing. The essence of the professional self-government mentioned in Art. 17 par. 1 of the Constitution is the exercise by a separate entity, in the limits set by law, a public authority. This is possible by giving him a personality of public law and equipping it with powers to exercise part of the public authority, which can perform without management and another entity interference, such as the state. However, staying under control in this independent action with the authorization of their authority. That relative independence from the state union of professional self- governments and their powers mean that they act as an intermediary between the state and the people performing specific professions, limited direct impact of the administration on certain professional groups.

Essence of Self-governance Illustrated with an Example of the Professional Self-government Body of Legal Counsels (in Poland)

The subject of the article covers the issues concerning the concept of self-government and the constitutionally differentiated types thereof, which realise the principle of decentralisation of public power. The systemic principles of the functioning of the democratic state are defined by the operation of self-governments, including the professional self-government bodies which associate the people who perform the public trust professions. Therefore, it plays a key role both in forming the political system of the state and, consequently, in performing public tasks. The aim of the article is to show the basic features of self-governance which form this concept. It in turn allows to define the essence of self-governance, however, not only abstractly but on a given example – the professional self-government of legal counsels in Poland. The basic thesis of the article is the statement that the self-governance is the best form of exercising power in the democratic systems, which enables the proper performance of the public tasks of major importance. It concerns both the territorial self-governments and professional self-governments, but also, first and foremost, the ones that associate the people who perform the professions of public trust, and the legal counsel is one of such professions.

Pozycja ustrojowa notariusza na gruncie pierwszego polskiego Prawa o notariacie z dnia 27 października 1933 r. Część druga

<p>The article addresses the notary’s systemic position under the first Polish Law on Notaries of 27 October 1933. The analysis of the position of the notary carried out in part one of this article pointed to serious difficulties in the precise defining of this position, both among the scholars in the field and the judicature. To precisely define the systemic position of the notary, part two has provided an analysis of the provisions of the Law on Notaries regarding the professional self-government of notaries, supervision over notaries and their activities, disciplinary liability and compensatory liability of the notary, and the rules of preparation for the profession of notary. The analysis of the Law on Notaries of 1933 presented in the first and second part of this article, leads to the conclusion that the notary’s position included in its legal position a combination of features of a public officer and a liberal profession. The legislature, using in Article 1 the term “public functionary”, and not “state official”, and giving notaries in Article 23 of the Law on Notaries the legal protection enjoyed by state officials, wanted to clearly emphasize the existing differences between them while at the same time underlining their close relationship to the state. The adoption of such a definition made it possible to grant notaries a wide range of powers. At the same time, it provided the basis to establish a professional self-government and entrust its bodies with significant powers in the area of disciplinary jurisdiction. The dualistic approach to the position of the notary was also reflected in the separate rules of training for the profession and in the special rules of notary’s liability for damages. The state, by entrusting notaries with activities related to non-contentious judiciary, secured for itself an exclusive influence on the staffing of notary positions and covered the system of notaries by a strict supervision exercised by the Minister of Justice. The discussion presented in the article leads to a conclusion that the legislature approached the position of a notary in the Law on Notaries of 1933 in a special way, creating a combination of official and professional elements, which can be called a public function. In terms of the political and administrative system, regardless of the definition itself, the notary in practice performed the function of a person of public trust.</p>

Aspekty prawne terapii konwersyjnej

Legal aspects of conversion therapy The aim of this article is to discuss the issue of conversion therapy provided to adults from the perspective of Polish law and to analyse the postulate to ban the provision of this type of therapy from the constitutional perspective. Conversion therapy refers to various types of activities aimed at changing the sexual orientation of homosexual or bisexual people to a heterosexual orientation. In contemporary psychiatry and psychology, the prevailing view is that such practices are ineffective and even harmful. Nevertheless, in many countries in the world, this type of therapy is carried out. At the same time, with the development of standards against the background of the protection of the rights of LGBT people, it is sometimes proposed to introduce a legal ban on therapy aimed at changing sexual orientation. Such provisions have already been introduced, among others, in Malta, Germany and some US states. However, the solutions adopted in this area differ significantly, e.g. in terms of the scope of the prohibition (in some legislations, the provision of therapy to children is prohibited, in others - also to adults) or the sanctions provided for its violation. So far, Polish law has not introduced any solutions in this regard. The current legal regulations cannot constitute an effective tool to restrict the conduct of conversion therapy - only in extreme cases, involving the use of coercion, deception or invasive forms of influence, could the activities of providers of such practices be qualified as a crime. Civil liability for therapists, although not excluded in certain cases, could also be difficult if the therapy was provided with the consent of the adult concerned and was limited to psychological treatment. At the same time, due to the ineffectiveness of the Act on the Psychological Profession and the Professional Self-Government of Psychologists, there are no effective tools to punish those providing various types of harmful pseudo-therapies. In Poland, however, there are also calls for a ban on conversion therapy. The introduction of such regulations would undoubtedly constitute an interference in the sphere of constitutional freedoms and rights of persons providing therapy and those interested in it, and it would therefore be necessary to comply with the requirements arising from the principle of proportionality. In this regard, it appears that the prohibition of conversion therapy could be considered useful and necessary to achieve important objectives, such as the protection of public health and the freedoms and rights of others. It would also be possible to comply with the proportionality requirement stricto sensu if the concept of conversion therapy were sufficiently clearly defined so as not to hamper the provision of reliable psychological services to persons experiencing difficulties in relation to their sexual orientation and to enable religious organisations to preach the principles of their faith against a moral background in the area of sexuality.

Cooperation of the Central Government, Local Government and Self-Government of Legal Professionals in Organising the System of Legal Aid in Poland

A deliberately organised system of legal aid financed by the State was introduced in Poland under the Act of 5.8.2015 and is based on the cooperation between local government units and legal professional self-government, under supervision by the bodies of public government which finance this task. The legislature uses for this purpose the solutions that are already known in administrative law, i.e. contract for the performance of a public task, grant for the performance thereof, an agreement between local government units and bodies of legal professional self-government organizations, agreements with third parties providing a public service.

Features of Development of Professional Self-Government in the System of Prosecution, Judiciary and the Bar of Ukraine

Based on a comparative analysis of the sectoral legislation of Ukraine and the practice of its application, the article studies the features of the development of professional self-government in the system of prosecutors, judicial authorities and the bar. It has been found out that prosecutorial self-government in Ukraine is conducted through the Council of Prosecutors of Ukraine (the highest body of prosecutorial self-government in the period between all-Ukrainian conferences of prosecutors) and the all-Ukrainian conference of prosecutors (the highest body of judicial self-government). It has been determined that prosecutorial self-government is a collective independent decision of prosecutors on issues related to the activities of prosecutorial bodies. It has been established that the system of bar self-government bodies in Ukraine is formed by: 1) the Congress of advocates of Ukraine; 2) the Bar Council of Ukraine; 3) the Supreme Qualification and Disciplinary Commission of Advocacy; 4) the Supreme Audit Commission of the Bar; 5) the Regional Conference of Advocates; 6) the Council of Advocates of the region; 7) the Qualification and Disciplinary Commission; 8) the Audit Commission of the region. It has been found that the bodies of judicial self-government in Ukraine are: 1) a meeting of judges, which is a gathering of judges belonging to the corresponding court aimed at discussing the internal activities of such a court and making appropriate collective decisions based on the discussion of such issues; 2) the Council of Judges of Ukraine (the highest body of judicial self-government, which also functions as the executive body of the Congress of Judges of Ukraine); 3) the Congress of Judges of Ukraine (the body that makes decisions that are binding on all bodies of judicial self-government and all courts in Ukraine). It is noted that the prospects for further research in this area are to determine the role of the judiciary in the constitutional and legal mechanism for the protection of human rights and freedoms and to study the requirements for incompatibility of a judge, prosecutor and lawyer with other activities in the context of comparative constitutional law.

The research of activities of professional pharmaceutical self-government organizations abroad

Aim. To study the international experience of the activities of professional pharmaceutical self-government organizations (OPFS) on the issues of professional protection of pharmacy specialists (PS) and the possibility of its use in Ukraine.
 Materials and methods. During the research, a comparative analysis of the OPFS activities, data from official sites, scientific literature were used.
 Results. It has been found that abroad the state creates legal regulation of the OPFS activities. It is the state that takes responsibility for the activities of the pharmaceutical industry and for the list of powers for OPFS in all areas of its activities. In Ukraine, professional associations are involved in the implementation of these issues, but the lack of regulation of their relations with the governing bodies complicates their implementation. Over the past years, the foundations of the formation and functioning of OPFS, the relationship not only with the management bodies, but also with individual specialists (individuals and legal entities) have been studied. In modern conditions, each association chooses its own directions of its implementation independently since there is no clear distribution of powers.
 Сonclusions. According to the results of the foreign experience studies, it has been found that the main task of OPFS is to protect the rights and interests of PS, provide legal and economic advice, support the continuous professional development of PS, consider the issues of professional ethics, promote and increase the role of pharmacists in the healthcare sector, etc. These studies can be used to regulate the activities of OPFS.
 Key words: professional pharmaceutical self-government organizations; pharmacy specialists; pharmaceutical institutions; professional activities

What do we know about our professional self-government of nurses and midwives? Preliminary study

Abstract Introduction. Professional self-government is a form of association of persons who practice the same profession, established in order to represent their interests against the state authorities. Aim. The aim of this study was to assess the knowledge of nurses and midwives on their professional self-government and their engagement in its activity. Material and methods. The study was conducted among 1,143 nurses and midwives. An originally designed questionnaire was used. The survey was administered via the Internet. Findings from questionnaires completed by 895 members of the Warsaw Regional Chamber of Nurses were analysed statistically. Statistical analysis was performed using intergroup comparisons or interfactor correlation tests, depending on the type of variables; statistical significance was set at p≤ 0.05. Results. Nearly 3/4 of respondents had low-to-medium knowledge on their professional self-government. Age and career length were positively correlated with a high level of knowledge. Conclusions. The knowledge of nurses and midwives on their professional self-government and news related to its functioning should be considered unsatisfactory and fragmentary. Further studies to determine the way to convey this knowledge to nurses and midwives are needed in order to expand this knowledge.

Wątpliwości wokół instytucji Rzecznika Praw Podatnika

A public advocate (also called “an ombudsman”) is a term derived from the Swedish language, which defines it as an independent official to whom one can appeal after exhausting legal remedies. According to the draft of law, the public advocate’s primary role will be helping citizens in tax issues. This institution will be territorially decentralized, namely the office will be located in each of the sixteen tax chambers in Poland, the headquarters will be located in Warsaw. Taxpayers will have an access to the Ombudsman throughout the country, not only in the capital. The Taxpayer’s Ombudsman will have to have 10 years of practice of applying the law and his deputies – 5 years of the practical experience. The first part of the article will deal with the scope of the duties assigned to the Tax Ombudsman. The interventionist function will be discussed: participation in ongoing proceedings, as well as a possibility of lodging appeals and complaints to the court. The Taxpayer’s Ombudsman will also be able to conduct the mediation procedure envisaged in the tax code. The second part of the article will take an attempt to give an answer to the following question: whether and how the Taxpayer’s Ombudsman will support the entrepreneurs and the professional self-governments? Will it be a neutral institution? It is assumed that the Taxpayer’s Rights Ombudsman will be appointed by the Prime Minister for a 6-year term and designated by the minister responsible for the public finance – presuming that it will be difficult for the Ombudsman to maintain impartiality. In, the end, data will be presented – how much creation and maintaining of this institution will cost. The article was prepared on the basis of Taxpayers’ Ombudsman draft act No UD421 and official publications of the Ministry of Finance.

Prawnicze samorządy zawodowe w orzecznictwie sądu najwyższego w sprawach dyscyplinarnych

Legal profession self-governments in the rulings of the Polish Supreme Court in disciplinary cases The issue of the status of legal professional self-governments is not only of theoretical nature, but also is of significance for the practice of lawmaking in the area of regulations of the professions of public trust and disciplinary cases. This article examines three aspects. Firstly, it examines the possibility of deriving an obligation to establish self-governing bodies for certain legal professions directly from the Constitution. Secondly, it identifies the immanent competences of the professional self-government that the legislature cannot deprive it of. Thirdly, the article discusses the connections between the principle of autonomy of professional corporations and the restraint of the Polish Supreme Court in disciplinary proceedings.