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Demokracja pod specjalnym nadzorem. Uwagi o sędziowskim aktywizmie i granicach zmian konstytucji

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Banaszkiewicz B.
Forum Prawnicze
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2011
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issue 1 (3)
56-68
EN
Referring to the decision of the Constitutional Court of the Czech Republic described in the same issue by Zdeněk Koudelka the author considers the decision a model example of judicial activism (JA). Mainly in the context of Polish experiences, he analyses the specific syndrome of political JA. The area in which JA can manifest itself with all its might is the constitutional jurisdiction with its role of the controller of law constitutionality. However, it is also visible for instance in these decisions of the European Court of Human Rights from which parliaments and governments of the European democratic countries learned with disbelief that the negotiated, signed and ratified Convention results in a ban on practices which at the moment of concluding the Convention were in these countries regarded as normal and obvious. Political JA should not be regarded as an absolute evil. Exceptionally, it can be justified, e.g. if it is to save human beings (preventing from the abortion legalization) or to protect the democracy from its eliminating on a legal way or to protect from other form of an evident “tyranny of the majority“. However, the opportunities to act like this are extremely rare in the democratic system, and the cases of „an everyday” political JA are much less convincing although their official and unofficial justification tends to indicate the threats which the disputable decision would eliminate. Hans Kelsen, the author of a Central European model of the constitutional jurisdiction, has warned against certain forms of political JA. The author also wonders whether the Polish Constitution would allow for any arbitrary amendments to its wording, or whether the Constitutional Tribunal could invalidate some amendments although the required procedure of their introduction was kept if they infringe “the unchangeable material core of the constitution“. Regardless of lack of the explicit indications in the text of the Polish Constitution, the idea of a limited competence of the constitutional lawmaker has a reasonable justification and deserves a comprehensive discussion.
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Uwagi o „Zasadach z Yogyakarty” (The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity)

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Banaszkiewicz B.
Forum Prawnicze
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2010
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issue 1 (1)
24-29
EN
The author delivers a polemic with the paper published in 2007 by an unofficial international group of experts. The group’s aim is to send a message to all countries indicating extensive consequences of general guarantees provided by international human rights law, especially for the purpose of individual’s protection against sexual and gender discrimination. The author does not deny an individual right to define his/her private life without interference from the state or private parties. However he criticizes the group for its demand – made in a spirit of a modern interpretation of traditional human rights – for affirmation and the so called equality of individual’s decisions regarding sexuality in the areas where the state is obliged to guarantee „institutional space” or „institutional infrastructure” for privacy and the right to procreate. For instance, this relates to legal definition of a family. The author claims that definitions of „sexual orientation” and „gender identity” are not commonly recognized and understood in the same way. This thesis relates to the attributes of a private life which are impossible, or hardly possible, to be measured on the basis of external indications or declarations, the ones which individuals should be entitled not to disclose to the state or anyone else. Repeating the phrase „regardless of sexual orientation or gender identification” in the text of the paper implies public and political importance of these attributes. Whereas the author wonders whether the Yogyakarta Principles amount to a form of discrimination and improper political campaign using the individual's private life details without their consent.
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Powojenne przemiany czeskiego ustawodawstwa dotyczącego małżeństwa (wybrane zagadnienia)

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Banaszkiewicz B.
Kwartalnik Prawa Prywatnego
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2021
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vol. 30
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issue 3
369-504
EN
The article presents the evolution of Czech (and, before 1993, Czechoslovak) legislation on marriage after World War II, including the legislation currently in force, as well as selected legal ideas for the future. The author distinguishes five historic stages of the legislative changes in question: (1) unification acts 1949–1950 and their amendments introduced in the 1950s; (2) recodification acts in the 1960s with amendments introduced before 1989; (3) first legislative changes in the wake of the fall of the Communist regime (1991–1992); (4) the so-called big amendment in 1998 and subsequent changes in the Family Act 1963; (5) Czech recodification which entered into force on 1 January 2014. In relation to these stages, the author describes an partially evaluates legislative changes, especially those regarding the following issues: the statutory definition of marriage (insofar as it has been developed), as well as statutory provisions concerning the purpose of marriage and the essential rights and duties of the spouses; capacity to enter into marriage, legal impediments to marriage and the legal consequences of disregarding an impediment; legal reasons for divorce, legal reasons for rejecting divorce petition despite the existence of a divorce reason, divorce proceedings; maintenance obligation between spouses and between divorced spouses; legal standing of a decedent’s spouse under inheritance law. Legislative changes are discussed in the context of the constitutional background and by selective references to Czech case law and jurisprudence. A part of the article includes an overview of and a commentary on the bills filed during the 8th legislative period (2017–2021) of the Chamber of Deputies of the Czech Parliament with a view to amending a number of legal provisions on marriage. The last part of the article includes author’s reflections de lege lata and de lege ferenda on some problems of the institution of divorce and of the standing of a decedent’s spouse in Czech law.
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Zjazd prawników państw słowiańskich w 1933 roku

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Banaszkiewicz B.
Kwartalnik Prawa Prywatnego
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2018
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vol. 27
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issue 2
289-344
EN
The Congress of lawyers of the Slavic states took place in Bratislava, Czechoslovakia from 8 to 10 September 1933. It brought together 1567 people (participants and special guests), primarily representatives of jurisprudence and legal practitioners from Bulgaria, Czechoslovakia, Yugoslavia, and Poland, whereas there were no lawyers from the USSR. The main purpose of the Congress was to establish personal connections and to manifest the willingness to cooperate. Ten sections focused on substantial issues, investigating fifteen major questions. The discussion was held in the participants’ languages as well as in French. During the sessions in the sections the following questions were discussed and then summed up in final conclusions (resolutions): “Unification of the law of obligations in the Slavic states”; “Unification of marital law in the Slavic states”; “Steamboats as an object of mortgage”; “Unification of law on bills of exchange in the Slavic states”; „Unification of execution, bancruptcy and arrangement procedure provisions in the Slavic states”; “Responsibility for crimes committed pursuant to an order of a superior”; “Necessity and scope of criminal law unification in the Slavic states”, “Should the participation of citizens in criminal traials (as jurors or non-professional associate judges) be recommended?”; “The common principles of acquiring the citizenship and the municipality affiliation in the Slavic states”; “Administrative courts”; “The economic cooperation between the Slavic states”; „The common basis of the history of Slavic laws”; “Unification of international private law in the Slavic states”; “The relationship between church and government in the Slavic states”; “To what extent should the limitation of property right be recommended?”. The author discusses the ideological and political background of the 1933 Congress and makes comments as to why the idea to organize the next congress was not successful; introduces the figure of Cyril Bařinka, a Czech attorney working in Bratislava, who was the spiritus movens of the Congress and its General Secretary; depicts the preparation and the course of the Congress; provides a general overview of the topics disscussed at the Congress and its final conclusions.
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Nad komentarzem do nowego czeskiego kodeksu cywilnego

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Banaszkiewicz B.
Kwartalnik Prawa Prywatnego
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2017
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vol. 26
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issue 1
39-73
EN
The Civil Code of 3 February 2012 has been in force in the Czech Republic since 1 January 2014. The new Code constitutes the chief groundwork for a wide-scale recodification of Czech private law, and is envisaged as the core of this part of the Czech legal order and the point of reference for the remainder of its provisions. The present author considers the commentary by Filip Melzer, Petr Tégl et al., launching the series to be published by the Prague publishing house Leges and entitled Občanský zákoník: Velký komentář [The Civil Code: The Great Commentary], from the scholarly point of view, as the most interesting of the several multi-volume commentaries to the new Civil Code which have appeared so far on the Czech book market. Out of the prospective nine volumes of the Great Commentary three volumes – I, III, and IV – were issued by the end of 2016. Volumes I and III address a major part of Book One of the Code (“General Provisions”), Volume IV covers the whole of Book Two (“Family Law”). The article focuses particularly on the way the commentators have treated the following issues: the definition of private law and how its implementation is independent of the implementation of public law (Section 1.1 CC); the special clause intended to prevent arbitrariness in the application of private law (Section 13 CC); the broad legal definition of “thing” (Section 489 ff CC); the new legal institution of family enterprise (Section 700 ff CC); the situation of sexual minorities, especially in the context of sex change (Section 29 CC), adoption (Section 794 ff CC), and the fact that the Czech legislator has left the essential regulation of same-sex registered partnership out of the new Civil Code (cf. Section 3020 CC). One of the Great Commentary’s strengths is its endeavour to show the historical, comparative, and theoretical context of the provisions adopted by the Czech legislator. A full legal exposition of provisions of a code requires showing all the salient factors that have shape them or should be taken into account in their interpretation. This is what the Great Commentary has achieved, albeit not always with the same intensity and thoroughness. Czech private law jurisprudence flourished before the Second World War, and its period of prosperity had already begun under Austrian reign. Had it not been for the unfavourable political situation from 1938 to 1989 which was detrimental to the quality of legislation, the legal sciences, and legal culture, Czech civil law would no doubt have been among the best in Europe in these years. The Great Commentary as well as the new Civil Code prove that the Czech legal community are making up for the time lost, the reservations and criticisms voiced on the Code itself notwithstanding.
6

Zarejestrowany związek partnerski a przysposobienie. O wyroku Sądu Konstytucyjnego Republiki Czeskiej z 14 czerwca 2016 r., Pl. ÚS 7/15

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Banaszkiewicz B.
Kwartalnik Prawa Prywatnego
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2016
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vol. 25
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issue 3
691–707
EN
In countries where the institution of registered partnership has been introduced for persons of the same sex, disputes concerning the statutory regulation of this institution have been the subject of constitutional case law. The objections by applicants for constitutional review may take either of two opposite directions. The first is the conservative tendency, querying the admissibility of the institution of registered partnership as such, especially with regard to the constitutional status of marriage and the family. The second direction, which may be called innovative, seeks for removing the restrictions on rights and possibilities of the registered partners, usually with reference to the general principle of equal rights and the prohibition of discrimination. If the democratic legislator hedged his acceptance of the new institution with conditions preventing or restricting child adoption by registered partners, out of concern for the child’s well-being or on other grounds, sooner or later such restrictions will come up against criticism questioning their validity from the point of view of the national constitution or the Convention for the Protection of Human Rights and Fundamental Freedoms. In some situations, constitutional courts have acted substitutively for the positive legislator in removing such restrictions. There have been no applications to the Czech and Austrian constitutional courts against the introduction of the institution of registered partnership, presumably because the national constitutional orders of these countries – unlike the situation in Germany or Hungary – have no provisions for the special protection of marriage. The Czech judgment discussed in this article belongs to the innovative trend and is, in comparison with its counterparts in the constitutional judicature of Germany and Austria, a rather modest step on the road to making 2 child adoption easier for homosexuals: it sets aside the provision of the Registered Partnership Act of 2005 which has excluded individual adoption of a child by a person living in a registered partnership. The essence of the grounds for this decision boils down to the following: since the legislator admits, in exceptional cases, individual child adoption by an unmarried person regardless – according to the interpretation of the Constitutional Court – of his/her sexual orientation, even though the joint adoption of a child by a (heterosexual) married couple should be taken into consideration as a rule, then the legislator should not prohibit an individual child adoption only because the prospective adopter has entered into a registered partnership. “This statutory restriction will not stand in the light of human dignity as a fundamental objective value of humanity and the focal point of other fundamental rights. Actually, if it is based on the fact that a certain group of persons is excluded from a certain right solely owing to the fact that they have decided to enter into a registered partnership, it thus turns them into de facto ‘second-rank’ individuals and stigmatises them groundlessly in a certain manner, which evokes the idea of their inferiority…“ The author of this article observes that although the authors of the grounds for the judgment refer to adoptio naturam imitatur and child’s well-being as the two fundamental principles governing the law on adoption, yet they have failed to notice the provision of the Registered Partnership Act under review as a specific case of relevance of both principles. According to the prevalent opinion in the Polish doctrine on family law, a person’s manifest homosexuality has to be treated as an obstacle debarring him/her from the adoption of a child. In his dissenting opinion, Judge Vladimír Sládeček has contested the decision of the Constitutional Court as an instance of judicial activism: “What matters is not the essence of the case but rather the approach taken by the Constitutional Court […] it is primarily up to the democratically elected legislature whether and how it will regulate the issues of adoption by registered partners or adoptions by same-sex couples.“ As to the point of view of human dignity, he observes that “… the protection of human dignity focuses on protecting the differences arising from natural characteristics of the human being or created by their will or the social environment. The essence of the protection of human dignity results precisely in respecting these differences. In other words, the protection of human dignity consists not in protecting the rights or possibilities which some human beings do not have owing to their nature or due to a social situation, but rather in respecting the fact that they cannot have them. [...]. It is very difficult to accept the conclusion that the person who ‘formally’ does not take care of a child, which may be substantiated by objective reasons, lacks dignity.“
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