Statutory Representatives Research Articles

Przedstawicielstwo ustawowe jako forma ochrony interesów osób małoletnich w postępowaniu cywilnym

Statutory representation is one of the institutionalized forms of party representation in civil proceeding. In addition, this institution is important from the point of view of children's rights protection due to the fact that it allows their parents, guardians or curators to take procedural actions on their behalf. The aim of this article is to present statutory representation as one of the forms of minors’ interests protection in civil proceeding. For this purpose it uses the law-dogmatic method to analyse the regulations contained in the Law of November 17, 1964. - Code of Civil Procedure, the Law of April 23, 1964. - Civil Code and the Law of February 25, 1964. - Family and Guardianship Code. The article shows the judicial and procedural capacity of a minor, the subject and object scope of statutory representation, as well as the most significant actions that a statutory representative can take to protect minor’s interests in civil proceedings.

Reprezentacja małoletniego pokrzywdzonego w postępowaniu karnym

Representation of a juvenile victim in criminal proceedings This article concerns the representation of a juvenile victim. It analyzes the differences between the statutory representative, the person under whose constant care the injured party remains and the child's representative. The article aims to draw attention to a situation in which there is a conflict of interests between the representative representing a juvenile victim and the other parent, which entails the need to exclude the representation of the juvenile victim by the statutory representative, giving primacy to the child's representative.

Ustawowa rola kościelnych osób prawnych w zakresie prowadzenia placówek edukacyjnoopiekuńczych

Aim: The aim of this article is to determine the importance of cooperation between the state and the Catholic Church in the context of implementing educational activities for the child. Methods: The work adopts methods of dogmatic and legal analysis, subject literature, and case law. Including a comparative method in the field of intra-church and national regulations. Results: It is the duty and right of the Catholic Church to cooperate with the state for the good of the individual and society. Due to the period of development, the child requires special help from third parties, especially parents. However, the Catholic Church has the opportunity to help parents in the upbringing of minors, which must be done with respect for the opinion of legal representatives. Conclusion: The Catholic Church and the state must cooperate with each other in educational activities - and the decision-making power of statutory representatives cannot be omitted in these relations. Originality: The topic of church-state relations touches on a number of important elements of social life. National and church regulations in certain areas must be interconnected. Such relationships make it necessary to constantly implement appropriate business standards, which is particularly important for minors. Therefore, this topic is a recurring discussion. Keyword: principle of cooperation, state-church relations, the welfare of the child, raising a child; parents' rights; freedom of conscience and religion; Catholic schools

The Administrative Court System in the Face of Non-Vaccination of Children. Challenges and Prospects for the (Still) Emerging Line of Jurisprudence

In recent years, there has been a heated public debate about mandatory vaccination of children. The COVID-19 pandemic further underscored the importance of vaccination and the desirability of vaccination for the protection of public health and the health (as well as life) of the individual. Nevertheless, the rise in activity and popularity of anti-vaccination movements has clearly contributed to the upward trend in the number of non-vaccinated children that we have seen since 2010. Statutory representatives of children who oppose their mandatory vaccination cite a variety of reasons, taking advantage of the imperfect legal system. The fines imposed to compel mandatory vaccination, as well as the conduct of administrative enforcement proceedings in this regard, are often challenged in administrative courts. It is of great importance that administrative courts are increasingly referring to the constitutionally protected values, as well as to the axiological justifications for the functioning obligation to vaccinate children. Given the nature of the obligation, this seems understandable, but nevertheless somewhat intrusive into the constitutional sphere, which is reserved for the Constitutional Tribunal. The purpose of the paper is to reconstruct the formation of the line of jurisprudence of administrative courts in cases involving the mandatory vaccination of children. The course of discussion will lead to a full analysis of the grounds of the grounds for the cited judgments and their consistency with the emerging line of jurisprudence on the issue. Particular attention was paid to the references made by the adjudicating panels to the legally protected values of an individual and universal nature. For this purpose the Author used the historical-legal method and the method of analysis of court jurisprudence.

Odpowiedzialność przedstawicieli ustawowych małoletnich sprzeciwiających się obowiązkowym szczepieniom ochronnym

The aim of the article is to present legal regulations concerning the liability of statutory representatives of minors opposing mandatory preventive vaccination. In the event of failure to comply with this duty, execution procedure is instituted through administrative enforcement proceedings. The enforcement authority is of course the provincial governor who, pursuant to Article 121 of the Act of 17.06.1966 on administrative enforcement proceedings, can impose a fine of up to 50,000 PLN. On the other hand, a doctor is authorized to notify a family court. According to Article 109 section 1 of the Act of 25.02.1964: The Family and Guardianship Code, if a child’s welfare is at risk, a guardianship court shall issue relevant decisions. Moreover, a guardianship court can order that the minor’s parents should take certain actions (Article 109 § 2 item 1 of the Family and Guardianship Code) or that their parental authority should be exercised under permanent supervision by a probation officer (Article 109 § 2 item 3 of the Family and Guardianship Code). Furthermore, an ultimate step is deprivation of parental authority. If parental authority cannot be exercised due to a lasting obstacle, if parents abuse their parental authority, or if they neglect grossly their duties towards the child, a guardianship court shall deprive them of parental authority.

Reflections on the functioning of the guardian ad litem appointed for a minor victim during a criminal trial: A prospects for change

A minor as a victim cannot act independently in a criminal trial. In accordance with Article 51(1) of the Code of Criminal Procedure, the rights of the minor are represented by their statutory representatives, i.e. their parents (if the minor remains under their parental authority). If, however, the perpetrator of the crime against the child is the other parent or a spouse of the parent, the non-offending parent is excluded from representing the child. In this case, the guardianship court will appoint a guardian ad litem. The goal of this institution is to implement and safeguard the interests of the child during the criminal trial. In practice, however, it often happens that these guardians do not fulfil their duties in a way that guarantees the due protection of the minor. In extreme cases, they are not appointed at all or are appointed too late. While looking for a solution that would guarantee the proper protection of the rights of the minor, the Ministry of Justice presented a proposal for the introduction of the position of “helper” of a minor who is a victim. This publication is a detailed analysis of the institution of the guardian ad litem, and studies the validity of the introduction of an additional entity with the authority to defend the rights of an aggrieved child.

Samodzielność decyzyjna małoletniego w kwestiach zdrowotnych. Uwagi de lege ferenda w związku z projektem ustawy o zmianie ustawy o zawodach lekarza i lekarza dentysty (druk sejmowy nr 1432)

The article analyzes the scope of the minor’s decision-making independence within medical procedures. As the child, who is the patient, does not have actual and formal possibilities to make independent decisions and give consent, the legal system has developed instruments for the protection of the minor’s health interest, and the implementation of health-related well-being was entrusted to parents (statutory representatives). The provisions of the applicable law provide for the existence of age limits for making decisions within the patient’s health situation. This fact is criticized. Proposals for changes and lowering the age of the minor’s decision-making independence are presented. The author analyzes the assumptions of the draft amendments to the Act on doctors and dentists professions and addresses the problem of a minor’s independence in gynecological, dermatological, and urological procedures. Considerations are carried out both under Polish medical law and family law, and the author accuses the authors of the project of lack of knowledge of system solutions and proposes de lege ferenda postulates.

OCCUPATIONAL MEDICAL RISKS: CONDITIONS OF LEGITIMACY IN THE CONTEXT OF CURRENT CRIMINAL LAW

Background. Medical practice requires decisions that are risky in nature and their positive outcome cannot be guaranteed. The reasons for this can be varied, but also with a proper and professional approach by the treating attending physician and other medical personnel adverse effects of the treatment or research carried out should not also be interpreted as criminal acts, which justifies a thorough examination of the attributes and types of reasonably medical risks and the conditions for their legitimacy.
 Materials and methods. An analysis of the sources of legal regulation of medical activity, including criminal legislation, was carried out and law enforcement practice was studied. The paper used the formal-legal method to identify and specify the conditions for the legitimacy of medical occupational risks.
 Results. Occupational medical risk is a type of reasonable risk, that is a circumstance precluding criminality of an act, and depending on the socially useful purpose of the intervention in the functioning of the human body, it can be innovative and treatment.
 Conclusion. Qualification of occupational medical risk as a reasonable risk requires taking into account consideration of the full content of the situation of its application in each case. In doing so, there is no need for a separate regulation on the legitimacy of medical risk, but Article 41 of the Criminal Code may be supplemented by a condition to exclude informed consent of the patient or his statutory representative, when it is carried out on emergency evidence to eliminate the threat to a person’s life.

Kurator dla osoby niepełnosprawnej a kurator dla osoby ubezwłasnowolnionej częściowo

<p>A guardianship court may appoint in non-litigious proceedings a guardian for a disabled person (Article 183 of the Polish Family and Guardianship Code, hereinafter: FGC) and for a partially incapacitated person (Article 181 FGC). It is not always possible to precisely delimit the areas of application of these provisions which entails problems in practice. Particularly problematic is the nature of the guardianship established for a disabled person and for a partially incapacitated person and the scope of the powers of both guardians. Especially debatable is the status of the guardian of a partially incapacitated person, who has not been authorized by the court to manage the assets of the ward and represent him/her. The purpose of this article is to indicate the scope of action of the guardian appointed for a disabled person and for a partially incapacitated person together with the determination of their status. The guardian is established for a partially incapacitated person, who, under the authority to represent and manage the property of the ward, is the ward’s statutory representative. The guardian appointed for a disabled person, who is not a statutory representative of this person, has a different status. The guardian under Article 183 FGC provides, above all, factual assistance to a person who has not been incapacitated, even if the person is affected by mental dysfunctions, while the guardian under Article 181 FGC provides assistance in legal acts, procedural acts and factual acts not relating to legal acts for a person who has been partially incapacitated.</p>

Szczególni pełnomocnicy spółek kapitałowych w sporach ze spółką

<p>The study provides an analysis of the status of representatives in disputes with the company and, consequently, of the rules of representation in those disputes. The research problem addressed herein is based on the analysis of Article 210 § 1 and Article 253 of the Polish Code of Commercial Partnerships and Companies (CCPC). These rules govern issues related to the occurrence of disputes with the company and, in particular, the problem of the participation of the company’s representatives in those disputes. It should be clear that power of attorney plays a special role in the regulation of the Code of Commercial Partnerships and Companies. It is also widely applicable not only in the classic representation of entities or persons within the company, but also of the company itself. A representative is granted a special status due to the transactions in which he participates. One should also keep in mind the situations where a representative represents the company in classical activities besides Articles 210 or 253 CCPC. In that case, the representative’s authorisation is “activated” by the body usually having the power to do so (the management board) or by other representatives (statutory representatives or representatives appointed under a power of attorney, if the conditions laid down in Article 106 of the Polish Civil Code are met). Another situation is when they are appointed by a meeting of shareholders or partners (Articles 210 and 253 CCPC). Another feature of the special power of attorney is the use of it in disputes and not in legal transactions. It can therefore be concluded that the use of the word “representative” in the context of the provisions of the Polish Code of Commercial Partnerships and Companies may be of particular importance.</p>

Právnická osoba v trestním řízení a střet zájmů

The criminal liability of legal person is connected with many problems. The problem of acting on behalf of company in criminal proceedings is very topical especially if the statutory representative is in conflict of interest. The article looks just their conflict of interest if they and their company are in position of accused or a witness. The work tried to offer such an interpretation that takes into account the purpose of criminal proceedings and the right to defense.

Piecza nad majątkiem dziecka

The subject of considerations in the article is the issue of the content of parental authority, with particular emphasis on one of its components, namely the care of the child. An analysis of the provisions of the Family and Guardianship Code allows us to assume that the main elements of parental authority are taking care of the child, custody of the child’s property and representing it. Custody of the child’s property is a very important element of parental authority because the child, due to the lack of legal capacity or its limitation, needs the help of its statutory representatives. The statutory representative either performs in person the legal act on behalf of and with legal consequences directly for the child or gives consent to perform it by the minor. In order to ensure the protection of the child’s interests, the legislator introduces certain rules for exercising custody over the child’s property, including the obligation for parents to obtain court permission to perform activities exceeding the scope of day-to-day management, carrying out the property management with due diligence, the principle of an equal standard of living for the family remaining in the household, or the order to make an inventory of the child’s property. The article ends with considerations on the termination of the management and its consequences.

Zadośćuczynienie za naruszenie praw pacjenta

Ogólne zasady zadośćuczynienia za naruszenie dóbr osobistych regulowane są w kodeksie cywilnym. Mimo ewidentnego powiązania praw pacjenta z dobrami osobistymi, w sposób szczególny potraktowano zadośćuczynienie za zawinione naruszenie praw pacjenta, które zostało przewidziane w art. 4 ustawy o prawach pacjenta i Rzeczniku Praw Pacjenta. Celem opracowania jest analiza powołanej regulacji ustawowej i jej konsekwencji. Zadośćuczynienie za naruszenie praw pacjenta przewidziane zostało w przypadku naruszenia praw pacjenta wskazanych przez ustawodawcę. Z katalogu wyłączone zostały: prawo do przechowywania rzeczy wartościowych w depozycie podmiotu leczniczego wykonującego działalność leczniczą w rodzaju stacjonarne i całodobowe świadczenia zdrowotne, prawo do informacji o rodzaju i zakresie świadczeń zdrowotnych udzielanych przez podmioty udzielające świadczeń zdrowotnych, prawo dostępu do dokumentacji medycznej dotyczącej stanu zdrowia, prawo do zgłaszania działań niepożądanych produktów leczniczych. Ustawodawca przewidział również dla małżonka, krewnych lub powinowatych do drugiego stopnia w linii prostej lub przedstawiciela ustawowego możliwość dochodzenia zapłaty na wskazany cel społeczny w przypadku zawinionego naruszenia praw pacjenta do umierania w spokoju i godności. W obu przypadkach dochodzenie roszczeń następuje na podstawie art. 448 k.c., w stosunku do którego art. 4 ustawy jest traktowany jako lex specialis. Podjęte rozważania wskazują, że przyjęte rozwiązanie jest pożądane z punku widzenia pacjentów i coraz częściej jest przez nich wykorzystywane.

Administracyjnoprawny obowiązek szczepienia dzieci a zgoda przedstawiciela ustawowego na badania kwalifikacyjne

The article focuses on the analysis of the parent situation (or statutory representatives) who are under legal requirement to subject their children to preventive vaccination. The main deliberations focus on answering the question of how the parents’ (or statutory representatives’) position should be treated if they, relying on the principle of autonomy and their parental rights, and pointing to their duty to exercise care of a minor and to represent a minor child, fail to take any action intended to implement the obligation imposed by law. Parents refer to the principle of child’s welfare and argue that vaccination constitutes an essential threat to the values they recognise, such as autonomy, freedom to make decisions regarding the actual situation and legal position of a child, or the child’s welfare. The issue of parents’ autonomy and implementation of child’s welfare is raised. Parents often bring up an argument of the harmful eff ects of vaccination and claim that by refusing to agree to vaccination they exercise the principle of child’s welfare. The legal character of the refusal to consent to child vaccination is also analysed. Here, deliberations are set in the context of imprecisely formulated statutory provisions and their mutual relations, especially in the context of the meeting of acts from two branches of law: administrative and civil, and within the latter family law in particular. An attempt has been made to explain doubts whether despite the mandatory requirement and resulting from it obligation threatened with an administrative fi ne statutory representatives still have a right to express or not consent for vaccination of their children or to decide about at any stage of the procedure.

Health Security in a Democratic State: Child Vaccination – Legal Obligation Versus the Right to Express Consent for a Medical Intervention

Abstract One of the major objectives in a democratic state is ensuring health security of the citizens including combating epidemic diseases. The subject matter of this article is the presentation and analysis of legal regulations regarding preventive vaccination in Poland, in particular the aspect of imposing a legal obligation and restricting parents’ right to express consent for medical intervention. The reflections made herein are aimed at finding an answer to the question whether the adopted legal solutions are admissible in a democratic state with regard to ensuring health security. The purpose of the analysis is also to assess whether the abovementioned legal regulations have been formulated in a clear way and do not raise interpretation doubts and, consequently, whether they are comprehensible to the parents obliged to comply with them. As it follows from analysis of the legal provisions, parents must not refuse to subject a child to obligatory preventive vaccination and their consent is not required by law, both as regards the medical qualifying examination to exclude contraindications to performing vaccination and the vaccination itself. It is a legal obligation, from which exemption is only possible on grounds of certain medical conditions that would render vaccination inadvisable. The legal provisions that concern obligatory preventive vaccination in Poland, including in particular those referring to its enforceability, have not been formulated in a way that is sufficiently comprehensible to parents who are under the obligation of complying with them, irrespective of the fact that the language of the provisions of law should be clear and raise no interpretative doubts. In a democratic state the protection of public health against epidemic hazards justifies the implementation of legal solutions that restrict an individual’s freedom of self-determination, thus limiting the right of patients or their statutory representatives to grant or refuse consent for a medical intervention in the form of preventive vaccination – the purpose of this legal solution being to prioritize the safeguarding of state health security. It is vitally important to engage in a social dialogue with the purpose of convincing the public of the need for vaccination, its significance and its implementation for the better good.

Foreign children in foster care (on the example of Bialskie region)

This publication concerns refugee children who are not adequately cared for by adults and come to foster care in Poland. "Unaccompanied foreign child" means a child who does not have Polish nationality and is without a statutory representative, i.e. a parent or a guardian. The publication contains information obtained through interviews conducted with three educators who are long-term employees of care and educational institutions in the Bialskie region. The subject of interest was the situation of unaccompanied minors coming to care and education institutions. The analyses included family situation of these children (along with the status of their parents), length of their stay in foster care, types of emerging educational and upbringing difficulties and the possibility of implementing intercultural education in a care and education institution.

Perceptions of social services from the perspective of their users and providers in the selected region of the Czech Republic

Act No. 108/2006 Coll., on Social Services, brought a number of conceptual changes. The main aim of this paper is to compare the quality of social services in terms of user satisfaction in relation to the provider, and to find out whether these facilities are comparable in providing social services, whether they meet the needs of the target group of seniors and whether the seniors are satisfied with the service. A field survey was performed both quantitatively and qualitatively. The sample of respondents (n=108) was composed of seniors using residential social services for the elderly provided by both public and private entities. The questioning was conducted through structured interviews, taking into account the specificities of the questioning of the elderly. The qualitative survey was carried out using a semi-standardized interview with statutory representatives of homes for the elderly, family members and representatives of the founders of public organizations. More than three quarters of respondents rated the social service provided to them very positively. In the field of technical security, it was the non-state facility which received the better evaluation. Furthermore, the investigation conducted with statutory representatives of the organizations has provided valuable information on the funding of social services. The current funding method does not allow longer-term planning of organizational development, investment, and personnel policy. Finally, recommendations for practice are mentioned.

The Limits of Legitimacy: Former Loyalist Combatants and Peace‐Building in Northern Ireland

The British government has a fraught relationship with former combatants in Northern Ireland. It simultaneously benefits from former combatants’ peace‐building efforts, whilst being reluctant to grant them statutory recognition and funding. Drawing on interviews and focus groups with politically motivated former loyalist combatants and statutory representatives in Belfast, this paper explores the complex and sometimes contradictory relationship between them. It argues that a lack of legitimacy is the biggest obstacle to good working relationships, and that positive engagement may be crucial in order to promote the implementation of peace in the most difficult to reach and volatile constituencies in Northern Ireland.

Orofacial Dysfunctions, Drinking Regimen and Quality of Life - Long-term Prospective Study

The care for mentally ill patients with combined impairment deals with orofacial dysfunctions of the mentally ill, especially children suffering from Down syndrome and cerebral palsy. Objective of the study was to assess urine fluoride excretion in disabled patients with orofacial dysfunctions in relation to prevention of dental caries. The urine fluoride concentrations in disabled people were analysed to assess their fluoride exposure and possibly preventive contribution of fluoride intake. The patients for the study were recruited from the clients of three day-stay establishments from two regions in the Czech Republic. All the clients from the selected establishments were examined except for a small number of clients, whose statutory representatives (usually parents) did not agree with oral examination. Signed informed consents were obtained from the statutory representatives of all the examined patients. Totally 95 mentally disabled patients were examined with the mean age of 11.8 years (ranging from 6 months to 28 years) for orofacial dysfunctions using the Castillo Morales concept. Fluoride concentrations were measured by fluoride-selective electrode. The urine density was measured by means of hydrostatic weighing. The above-mentioned analytical methods were chosen since urine density reflects the overall liquids intake by the person and the fluoride excretion by the urine reflects its intake from all environmental sources. Atypical swallowing act was found in 98% of the cohort. Mean urine density was 1.038 g/ml ranging from 1.002 to 1.069 (77 samples). The mean urine fluoride concentration was 0.816 mg/l ranging from 0.045 to 3.225 (82 samples). Orofacial dysfunctions decrease the quality of life. Among other aspects, they influence liquids intake due to an impaired swallowing act. Moreover, patients are often dependent on the assistance of the other persons.

Supervisory Participation in Professional Associations: Implications of North Shore University Hospital

A recent ruling by a circuit court—in NLRB v. North Shore University Hospital—prohibited a professional association from serving as a collective bargaining agent of a unit of registered nurses because the court found that statutory supervisors participated in the governance of the association. In this article, the authors analyze the case law concerning supervisory participation in professional associations; discuss nursing representation cases prior to North Shore; describe the responses of nurses' professional associations to North Shore in three states; and discuss the implications of North Shore and related decisions for the representation rights of professional employees. They also propose an analytical model for the NLRB to follow in determining whether supervisory participation in a professional association so endangers the collective bargaining process as to warrant disqualification of that association as a statutory representative.