Konstytucyjna zasada równości i zakaz dyskryminacji w prawie cywilnym
The principle of equality and the prohibition of discrimination in the civil law
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The problem of implementation of the principle of equality and anti-discrimination clause in private law causes controversies. It results from the fact that the civil law regulates the horizontal relationships between equal subjects. It is based on the freedom (the autonomy of will) of individuals, in the nature of which are the discretion and subjectivism of the choices that do not concern the equality criteria. In its broad sense, the principle of equality, by contrast, is based on the objectifying of the criteria of the choices (actions) made by the subjects of law. Prima facie, application of the abovementioned equality principles in the private law relationships will stay in contrary to the freedom understood as the ability of the free creation of your own life and legal situation. The article concerns some matters connected with the application of the principle of equality and the prohibition of discrimination, which are stipulated in the Polish Constitution, in Polish private law. The paper is organized as follows. Firstly, the matter of normative content of the Article 32 Paragraph 1 and 2 of the Constitution, which express the principle of equality and non-discrimination, as well as the admissibility of the horizontal application of these provisions for the assessment of civil law relations is discussed. Secondly, the so-called test of equality of the civil law regulations, in particular, the criteria for the recognition of similar entities is analyzed. Thirdly, the mutual relations between the general principle of equality (Article 32 Paragraph 1) and the right to the equal protection of property expressed in the Article 62 Paragraph 2, and application of these provisions in the procedure judicial review. The basic research problem is the decision whether or not – and if yes, in what area – the private subjects are bound by the abovementioned constitutional regulations due to the performing of the legal actions and the performing of the non-contractual obligations, as well as which obligations result from those standards for the lawgiver who provides the civil law provisions and for the courts adjudicating the cases of the civil-law relationships.
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