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1

Prawo rzeczowe, spadkowe i rodzinne w orzecznictwie Trybunału Konstytucyjnego

100%
Podkowik J.
Kwartalnik Prawa Prywatnego
|
2017
|
vol. 26
|
issue 4
775-803
EN
The article discusses the case-law of the Constitutional Tribunal of 1997-2017, regarding to property, inheritance and family law, mainly in matters of the provisions of Book Two and Book Four of the Civil Code, as well as the Family and Guardianship Code. It referred to following issues: protection of ownership of public entities, renuntiation of property ownership, dissolution of co-ownership or prescription of easements. The issue of statutory rules governing inheritance, institution of lawful share and detailed rules of inheriting farms is also discussed. Regarding family law, the views of the Constitutional Tribunal on freedom of marriage and the institution of its protection is on the table. Additionally it is pointed out at obligations of former spouses to alimony as well as issues of filiation.
2

Konstytucyjna zasada równości i zakaz dyskryminacji w prawie cywilnym

100%
Podkowik J.
Kwartalnik Prawa Prywatnego
|
2016
|
vol. 25
|
issue 2
229-279
EN
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.
3

Część ogólna prawa cywilnego i prawo zobowiązań w orzecznictwie Trybunału Konstytucyjnego

100%
Podkowik J.
Kwartalnik Prawa Prywatnego
|
2017
|
vol. 26
|
issue 3
521-558
EN
The article discusses case-law of the Constitutional Tribunal of Poland concerning provisions of civil law, in particular, general provisions and obligation law of the Civil Code. Constitutional case law under the Polish Constitution of 2 April 1997 r. serves as the reference point. At the outset, the nature of judicial review of the civil law as the standards governing horizontal relationships is discussed. It has been shown that the specificity of civil law provisions affects the methodology of adjudication and the effects of judgments itself. Moreover, it was pointed out that while there are public entities in the legal relationships under civil law, there are no grounds for applying constitutional guarantees of freedom and rights to such entities. Then the most important rulings and constitutional problems were discussed, i.e. incapacitation, protection of personal rights, freedom of contract, legislative interference in the ongoing contractual relationship, as well as liability for damages.
4

Wyroki argumentacyjne Trybunału Konstytucyjnego

100%
Podkowik J.
Przegląd Legislacyjny
|
2017
|
issue PL 2(100)
33-48
EN
The aim of the article is to analyze the nature and legal effects of judgments of the Constitutional Tribunal of Poland, in which its operative part explains motives of the decision or indicate what constitutional principle has been violated. These judgments can be described as argumentative judgments. The article attempts to explain why and in what situations the Tribunal has used the argumentative formula. Such formula has to be seen as a necessary instrument which makes the Tribunal’s jurisdiction effective and thus should be considered acceptable in some cases. In the article, attention is also given to practical problems related to the legal effects of argumentative judgments and their implementation by the lawmaker and courts.
5
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Ochrona dziennikarskich źródeł informacji w dobie cyfrowej w świetle Konwencji o ochronie praw człowieka i podstawowych wolności oraz Konstytucji RP

100%
Podkowik J.
Przegląd Sejmowy
|
2015
|
issue 3(128)
67-87
EN
Secret surveillance measures based on new technologies, particularly interception of telecommunication, spy software or traffi c and location data are among the most effi cient methods of preventing and detecting various perils to the security of the state. However, they can become an exceptionally severe interference with the fundamental rights of individuals. Exceptional threat posed by the use of secret surveillance measures is the possibility of gathering information obtained “in confi dence”, particularly when identifying informant’s identity. Even the mere admissibility of the secret surveillance of journalists can cause “the freezing effect”, preventing them from publishing information considering public authorities activities. The possibility of investigating the private lives of journalists can stop them criticizing the government, even if the criticism is justifi ed. The consequence of it is the decline of the supervisory role of the press as a “guardian of democracy and pluralism”. The aim of this paper is to refl ect on the limits of the surveillance, the object of which — whether direct or indirect — are journalists. An attempt of creating an operative test based on Strasbourg and Polish constitutional case law, especially latest judgment K 23/11, estimating the relevance of provisions on surveillance considering the protection of reporter’s privilege and the freedom of press are also undertaken.
6
Content available remote

REQUIREMENTS OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS CONCERNING MILITARY JUSTICE (Wymogi europejskiej Konwencji o ochronie praw czlowieka i podstawowych wolnosci dotyczace sadownictwa wojskowego)

100%
Podkowik J.
Przegląd Sejmowy
|
2010
|
issue 3(98)
85-100
EN
Military courts are a special category of bodies in the administration of justice, distinguished from ordinary courts by subject-matter and personal jurisdiction. They stand in the tradition of many European states, and also exist in Poland. This article deals with requirements put on such bodies by the European Convention on the Protection of Human Rights and Fundamental Freedoms in the context of the jurisprudence of the European Court of Human Rights in Strasbourg. Although the Convention does not directly address the issue of military justice, the general requirements concerning any law-administration body existing in the state apply also to the Tribunal, as it stressed itself. However , the unique nature of these bodies and, particularly, the status of judges of military courts, along with their jurisdiction including, sometimes, not only members of the armed forces, but also civilian personnel or even persons unrelated to the armed forces, raises a question of their independence and impartiality. First, the article examines the position of the armed forces in the system of government and the status of military courts. Next, it considers the issue of jurisdiction of military courts over both members of the armed forces and civilian. Moreover, the status of judges of military courts is widely discussed. Finally, the article deals with most important problems of appellate justice. The cited judgments of the European Court of Human Rights allow us to formulate general guidance that are applicable to military courts in the states parties to the Convention. They include, in particular: the limitation of their jurisdiction, generally, to members of armed forces and civilian employees of the armed forces, guarantees of independence and impartiality of the judges and establishing an effective appellate mechanism in criminal cases.
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