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2012 | 6(113) | 29-48

Article title

„Przywilej korzyści” w orzecznictwie Trybunału Konstytucyjnego

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”Benefit privilege" is used by the Constitutional Tribunal in its decisions, issued in concrete review procedure, to delay the date of the loss of binding force of an unconstitutional provision on the basis of Article 190 para. 3 of the Constitution. In proceedings initiated by means of filing a constitutional complaint, it is usually contained in the operative part of the judgment, becoming a part of the settlement of a generally binding nature. In proceedings initiated by submitting a question of law, "benefit privilege" is introduced in the justification of the judgment of the Constitutional Tribunal, as a specific interpretive directive for the court. In both cases, it has to guarantee the continuity of the proceedings to restore the constitutionality in general and specific dimensions. "Benefit privilege" allows a person who has filed a constitutional complaint to reverse – in the period of delay – a res judicata ruling or a final decision and to obtain a judgment taking into account the consequences of the finding the provision as unconstitutional. “Benefit privilege” allows the court which has submitted a question of law, to take into consideration the fact of recognition of the provision to be unconstitutional in its judicial decisions issued in the period of the delay. The authorising nature of "benefit privilege” raises some questions. First, whether after the expiry of the period of delay, the applicant who has not benefited from the „benefit privilege" may – like others – resume the proceedings according to general rules. Second, whether after the reopening of the case, the court has – or just may – take into account the fact that the applicant has been granted the "benefit privilege." The granting of „benefit privilege" to the court that has submitted a question of law gives that court the possibility of using it to settle the matter on the basis of which it has referred the question of law. But it is not the obligation of the court. Since the delay is most often applied in cases requiring the amendment of an unconstitutional provision, the adjudicating court using the privilege prior to enforcement of that amendment often needs to independently create a legal norm, on the basis of which it will pronounce its judgment. Now, when the Court accepts that in the period of the delay, an unconstitutional provision must be applied in a modified way, taking into account the principle of direct application of the Constitution, the desirability of granting "benefit privileges" raises serious doubts.





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  • Uniwersytet Jagielloński


Document Type

Publication order reference


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