LIABILITY FOR LEGISLATIVE UNLAWFULNESS IN THE EVENT OF DEFERRED BINDING FORCE OF NORMATIVE ACT (COMMENTS ON THE RESOLUTION OF SUPREME COURT OF DECEMBER 7, 2007) (Odpowiedzialnosc za bezprawie legislacyjne w sytuacji ..utraty mocy .. aktu normatywnego

• Authors: Parchomiuk Jerzy
• Languages of publication: PL

Abstracts

EN

In accordance with the provisions of the Civil Code, in case of legislative unlawfulness (i.e. where harm was caused by the issuing of a normative act), compensation would be granted where a confirmation (in Polish: prejudykat) was obtained, within relevant proceedings, that this act did not conform to the Constitution, a ratified international agreement or a statute (Article 4171 § 1 of the Civil Code). The requirements of such confirmation is fulfilled, inter alia, by a judgment of the Constitutional Tribunal finding a normative act not to be in conformity with an act situated higher in the hierarchy of the system of the sources of law. The Constitutional Tribunal must predict the effects of its judgments in order to prevent a situation in which the derogation of a particular provision from the legal system, resulted from its judgment, would lead to 'even more unconstitutional' circumstances or inconsistency with fundamental rules and principles of the legal order of the State. Among the instruments to be used to balance the values whose collision would be a result from the judgment, is a possibility of deferring the date for the end of the binding force of a normative act (Article 190 para. 3 of the Constitution). In consequence of the deferral of binding force, the questioned provisions, even if their defectiveness has been declared by the judgment of the Constitutional Tribunal, should - by way of exception resulting from the content of that judgment and based on Article 190 para. 3 of the Constitution - be applied until the expiry of the time limit specified in the operative part of the judgment of the Tribunal, unless, prior to that date, the legislator has taken appropriate steps to adjust the defective regulation to the requirements ensuing from hierarchically higher acts. The adoption of such assumption excludes possibility of seeking compensation for damages caused by the said act. One the structural prerequisites of tort liability is that unlawfulness of the causative event must exist at the time of its appearance. If, by virtue of a universally binding judgment of the Constitutional Tribunal (Article 190 para. 1 of the Constitution), an act is declared defective, but formally is still in force, there is no ground to claim unlawfulness of its application.

Keywords

EN

LEGISLATIVE UNLAWFULNESS; NORMATIVE ACT'S FORCE

Discipline

• LAW_&_ADMINISTRATION: LAW & ADMINISTRATION

• Publisher: Kancelaria Sejmu / Chancellery of the Sejm
• Journal: Przegląd Sejmowy
• Year: 2009
• Issue: 1(90)
• Pages: 107-121
• Document type: ARTICLE

Contributors

author

Parchomiuk Jerzy

• Jerzy Parchomiuk, Katolicki Uniwersytet Lubelski, Wydzial Zamiejscowy Nauk Prawnych i Ekonomicznych, ul. Lwowska 80, 22-600 Tomaszów Lubelski, Poland

Identifiers

CEJSH db identifier

09PLAAAA05965