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EN
The debate on the legitimacy of constitutional courts takes place more than two centuries and the positions of the supporters and opponents of constitutional protection of the constitution are widely known. That debate, however, is held in the changing political and constitutional contexts. This article deals with the question whether the evolution taking place in constitutional judiciary in the recent quarter of a century allows us to identify new trends converting the above-mentioned contexts. From this point of view, three phenomena seem to deserve more attention: - fast expansion of constitutional judiciary in the so-called new democracies in our region has provided new arguments for the need of a powerful and independent constitutional court; - the appearance of a 'weak-form' of constitutionality review in some Anglo-Saxon systems proved that it was possible to create an intermediate model that offers compromise between the traditional solutions; - development of jurisprudence of extra-national European courts has resulted in the appearance of a new form of review of laws by national courts, and thereby contributed to the departure from traditional understanding of sovereignty of parliament and inviolability of laws.
EN
The San Remo Manual is not a legal document. It was prepared by a group of experts in the area of naval conflict who took part in a series of round-table meetings between 1988 and 1994. The San Remo Manual is the modern equivalent of the Oxford Manual of the Laws of Naval War (1913) which regulated the relations between hostile forces. The San Remo Manual takes account of international practice, technological development, the content of the UN Charter, the Convention on the Law of the sea (1982), law relating to air traffic, and environmental law. The author of the article discusses the content of the Convention on the law of the Sea from 1982 in relation to the formulations in the San Remo Manual. Since 1995, the San Remo Manual has been obligatory material for training and instruction in the navies of NATO states. It has not yet been translated into Polish.
EN
The article is a thorough analysis af the notion of 'cosmetic' in light of the Council Directive 76/768/EEC on cosmetics, the Polish Act of 2001 on cosmetics, ECJ case law and European Commission guidance documents. It first sets the criteria for products classification and the general guidelines for delineating borders between the products for regulatory purposes. Then the meaning of the word 'cosmetic' is discussed, the nature of cosmetic as a substance (or mixture of substances) and the distinction between the cosmetic-as-substance and the cosmetic product. It is followed by discussion of distinctions between the cosmetic and the medicinal product (this including the issues of 'cosmeceuticals' and 'aromatherapy'), the cosmetic and the biocidal product, the cosmetic and food, the cosmetic and the toy, the cosmetic and washing products. References are being made here also to the proposal for a regulation of the European Parliament and of the Council on cosmetic products of February 2008, which shall replace the Council Directive 76/768/EEC in nearby future.
EN
(Title in Polish - 'Postepowanie w sprawie zalatwienia wniosku wniesionego w trybie art.35c W zwiazku z art.ustawy z dnia 18 grudnia 1998r.o Instytucie Pamieci Narodowej, Komisji Scigania Zbrodni przeciwko Narodowi Polskiemu'). One of the tasks of the Institute of National Remembrance is to publicize information about the officers of the state security institutions of 1944-1989. It is also planned to entitle them to obtain information about their documents if they apply for that. The legal ground for such activities is the provision of Article 35c of the Act of December 18, 1998 on the Institute of National Remembrance - Commission for the Prosecution of Crimes against the Polish Nation. The authors discuss the matters connected with the procedure of revealing such documents and emphasize that making the documents available is the form of a material - technical act, and the procedure is defined in provisions of the Act of December 18, 1998. Making the information available is not an administrative decision. However, the refusal to disclose the documents about the officers of the state security institutions of 1944-1989 is an administrative decision defined by the regulations of the administrative proceeding code. The provision of Article 43 part 2 of the discussed Act appoints the adequate Institute organs, i.e. the Department Directors and the President of the Institute of National Remembrance as consecutive appeal instances in accordance with the administrative proceeding code. The refusal decision to disclose the documents should have all the attributes of an administrative decision in which all the factual and legal reasons for it should be stated. Such decisions are subject to administrative courts' control.
EN
The article relates to the issue of transitional justice which has become popular among scholars over the last couple of years. The author gives transitional justice a broader meaning that refers not only to the states undergoing rapid regime transformations but also to stable constitutional democracies that have to deal with the problem of past damage settlements. The latter states have been experiencing an evolution regarding the very definition of justice, not only in the system of law but also outside of it. Transitional justice, as defined above, can be understood as\ a constandy evolving process. To prove the above, the case of the 'Chinese Canadian Head Tax' can serve as a good example of a democratic and developed state dealing with the problem. The Chinese Canadian Head Tax case concerns civil claims of Canadians with Chinese origins that have been discriminated against in the past by Canadian government by means of restrictive tax policies. Should transitional justice refer only to the obvious breaches of human rights committed in the past in states undergoing violent political transformations? Or should it also concern stable democracies? The answers to these questions can be fund in the recapitulated article.
EN
The amendment to the Constitution, dated 2003, one of its most important modification introduced during the Fifth Republic, as concerns the number of articles altered or added, did not undermine the fundament principles of the French state. In Article 1 it was declared that the Republic is organised on a decentralised basis. However, after that modification France has become neither a regionalized state nor, the more so, a state on the path to federalization. The amendment of the basic law, by including the existence of regions, recognizing explicitly lawmaking powers of local government and its financial autonomy, permitting experiments in the exercise of democracy on the local level, has undoubtedly reinforced administrative discretion of local government and authorized its increased diversity, particularly in overseas departments. Five years after this modification, we should say it has not accomplished all the results that were expected. Some of its possibilities, including a decision-making referendum, have not been yet used.
EN
The author provides a critical analysis of case-law and position of doctrines in the case of the temporal problems, which are associated with change of legal basis of seeking claims for damages on account of unlawful administrative decisions - amendment of the Civil Code of September 17th, 2004. The main problem concerns a situation in which an unlawful decision causing damage was released in previous legislation, but its unlawfulness was ascertained already after the entry into force of new regulation. In the author's opinion the event that decides of application of the previous or binding force legislation is the date of ascertainment the unlawfulness of decision, not the date of passing the unlawful decision. When legal basis for the claims is not the Civil Code, but the article 160 of the Code of Administrative Proceeding, the dual course of claiming is necessary: administrative proceedings and recourse to the law. The author assesses critically position of the Supreme Court in the issue of the compensation. The Constitutional Tribunal decided that the limit of the compensatory obligation of the official authority only to the loss actually incurred (damnum emergens) did not conform to the Constitution. Therefore in a case of damage incurred after the entry into force of Polish Constitution from 1997, the compensation should include the lost benefits (lucrum cessans) also when the unlawful decision was given before this date.
EN
The present study comprises, besides law related to environmental statistics, agricultural environment protection, environmental statistics, law related to statistics and EU law. Regarding one of the four main tasks of statistics, namely to reflect the state and changing of the natural and built environment (according to Section 1 of the Hungarian Act on Statistics in force), the study aims at underlining new aspects of legal statistics, and highlighting foreign examples, as well as new tasks of the Hungarian law on statistics, originating from duties of the Hungarian Republic within the reaches of the European Union. Legal disposition should be completed by legal sanction: therefore, a short review of criminal law and police crimes in connection with the law of statistics is discussed alike.
EN
The paper is devoted in fact to two unilateral acts. The first of them is the statement of chancellor Schröder made in Warsaw on 1 August, 2004. The second is the statement of the Polish government on the waiver of payments of German reparations made on 23 August, 1953. The first statement is generally believed to be an act of legal importance. The element that attaches the utmost importance is the promise of the German government to present before international courts the critical evaluation of individual claims of former owners of land on the territories that came under the Polish sovereignty after the Second World War. The elements of that evaluation embrace the conclusions according to which: 'there could be no room for the restitution claims from Germany', such claims would 'put the history upside down', 'proprietary problems connected with the Second World War are no longer a subject for the two governments' and 'neither the federal government nor any serious political force in Germany support such claims if they are nevertheless put'. There could be no room for doubt as to the legal force of that statement. Its descriptive style or inclusion of elements upon which the government has only limited or no influence at all (the behavior of political parties or individuals) cannot change the binding force of statements relating to the German state as such. In fact the statement is not only a promise. I contains also the elements of waiver and recognition (as to the fact that there is no longer a subject of claims and that they would put the history upside down). The waiver results from the same sentences. It is limited to claims made on the state level only. The individual ones are not cancelled as such. If they are however made and not satisfied there is no longer a possibility to put them on the level of states. The second act made in 1953 is also quite general. Although from the historical perspective there could be no doubt regarding the interrelationship between that act and the USSR-GDR agreement, the statement of the Polish government did not refer to the latter expressly. The author analyses critically the arguments aimed at the justification of the nullity of the act presented in the previous literature. In his opinion it would be very difficult (if possible at all) to put into question the legal force of the act. The author however is not prepared to accept the erection of the Chinese wall between the waiver and other international acts giving rise to the obligations of the author. In that context he refers to the 'rebus sic stantibus' argument according to which the presentation of claims on the side of Germany could justify the new evaluation of the results of the war for the Polish state and nation. That solution would not be happy for any party nor for the stability of law, but it could be perceived as an extreme solution for the most extreme course of events.
EN
The article points out to selected problems of the legislative work in Slovakia from the view of its constitutionality. It repeatedly calls attention to the problem of adoption of laws the content of which is identical with the content of those laws that have been declared anti-constitutional by the Constitutional Court of SR. It refers to the solution of similar problem in Austria. The author also analyses some of the laws that he believes to be beyond the limit of constitutionality. He also points out to the international law consequences of such adopted laws and to the threat of suits for the protection of investments.
EN
The paper surveys the most important current international trends. Based on the most up to date literature, and polemically referring to it, the author demonstrates the appearance of the need for growing unity and cooperation in the world in the field of economy and politics, as it is manifest in several areas. The process has become tangible with the appearance of global capital in the contemporary age, followed by the formation of an international organisation of global scale and by regional integration. The author also demonstrates that the concept of globalisation covers several processes and he also surveys its brief history. Next he studies the possibilities of global culture. In this context he quotes among others the work of I. Wallerstein related to the problematics of the world system, and the role of the US, the EU, Japan and China, and also of the major regions. He also deals with the phenomenon of nationalism, and with the issues of national sovereignty. He devotes major space to the much debated work of Samuel Huntington and refutes it on the basis of recent processes. Partly based on Huntington, he analyses the existing or possible conflicts between the different cultures. He calls attention to the changing and growing global role of China. He also deals with the phenomenon of multiculturalism, with the EU, and particularly with its relationship to NATO, with other regional organisations and their internal conflicts. Finally, he focuses on the EU, in which the constitutional order capable of governing the political and economic activities of the Member States has not yet been created.
EN
Throughout its historic development, the stress put in international law on the protection of national minorities has been stronger or weaker depending upon the momentary interest of states. In (general) international law, the term 'national minority' has not yet been legally defined. Such a definition has been formulated only for Europe. This article explores these historical developments and attempts to explain the current differences in the definition in various tribunals and jurisdictions. In this context it also compares the systems of protection of national minorities at the international and European level.
Ius Novum
|
2009
|
issue 4
85-94
EN
(Title in Polish - 'Kwalifikacja przy delegacji...Bezwzgledna przyczyna odwolawcza z art. 439 § 1 pkt 1 k.p.k. czy tez raczej 439 § 1 pkt 2 k.p.k.?'). The article presents a long-lasting controversial issue in the doctrine of criminal trial: if a judge being a member of a bench in a given case is indeed authorized to rule but has no delegation in the particular court or the delegation is imperfect, is it also an instance of absolute reason for negligence as described in article 439 § 1 point 2 of the criminal proceedings code and so an instance of a person who is not authorized to rule? The author discusses the issue referring to the regulations of the criminal proceedings code of 1928 and 1969 and illustrates his statements with judicial decisions made by The Supreme Court and courts of appeal. After a thorough analysis, he states that it cannot be treated as a relative reason for appeal that is described in article 438 point 2 of the criminal proceedings code in connection with the adequate regulation of the act of 27 July, 2001, the Law on the system of general jurisdiction courts, because - due to the importance of the act of delegation - this kind of solution would be a breach of the principle of fair trial.The author believes that most of the doctrine should be agreed with; a judge who has no valid delegation is a member of a bench that is inappropriately filled and is described in article 439 § 1 point 2 of the criminal proceedings code. In the light of this, the concept of 'a person not authorized to rule' should be understood as if the ruling was made with the participation of a person having no judicial entitlements, and so a person acting without the appointment to the post or whose tenure has ended.
EN
The development of the law theory of intellectuall property law in socio-political enviromnet established by the communist coup after the year 1948 in Czechoslovakia. The basic theoretical concepts of the fomation of scientific system of intellectual property law (V. Knapp, S. Luby, K. Knap) and its basic terminology questions. The establishment of a specialized scientific institute for authorhip law, industrial property law and competition law at Charles University, Praque in the year 1967. The preparadness of Czechoslovak legal science focused on questions of intellectual property for new tasks in this field, which have arisen from the transformation process of 1989.
EN
This paper deals with the participation of common law countries in the work of the intergovernmental organization - The Hague Conference on Private International Law. The most significant discussed item of the United States involvement in the Hague Conference was the submission of the method of uniform legislation, in addition to the method of drafting of multilateral conventions. The federalism of the United States, Canada and Australia has left a strong influence on the text of Hague Conventions. It is difficult for these federal countries to complete the process of ratification of such conventions. Generally, it is clear that in common law countries the particular types of conventions have proved more successful than other conventions. The most popular are 'procedural conventions'. The second part of this paper is focused on 'procedural conventions': the Service and Evidence Conventions and those seeking to abolish legalization for foreign public documents.
EN
Rules of competition and the four freedoms of the internal market are one of the most important part of the EC Treaty. Their importance consist in constituing the internal market, which has to be understood as area without internal frontiers in which the free movement of goods, persons, services and capital is ensured. Without any doubt one can say, that rules of competition and the four freedoms are the foundations of the internal market. Each of these philars contributes to the proper functioning of the internal market in different way. Rules of competition are intended to eliminating anticompetitive practices, which are carried out by undertakings. In contrast to that, the four freedoms are directed against Member States and they compel them to abolish all barrier frustrating the free movement. Rules of competition are concerned mainly with activity of private parties (economic operators), which are engaged in the economic life. At the same time the four freedom are linked with powerfull activity of Member State, which can be named imperium. Nevertheless, in the doctrine of EC law and mainly in the jurisprudence of the European Court of Justice (ECJ) there were observed many similarities between these two set of Treaty rules. Above-mentioned similarities are apparent in such fields as: objects of these rules (finally they have one common object: internal market), adressee of the basic prohibitions (rules of competition are adresed not only to the undertakings, but also to the Member State, for example within the framework of so called State Action Doctrine; four freedoms are binding not only for Member States but also determine - at least partly - activity of the private parties) and the exceptions from these two set of rules (these exceptions have its source directly in the text of Treaty and also in the jurisprudence of the ECJ). Worth of mentionig here is also such tendence in the jurisprudence of the ECJ, which consist in using some constructions elaborated in one field (e.g. four freedoms) in order to resolve some problems growed in the second field (e.g. competition rules). Reasuming onep can say, that descibed similarities are sign of process of convergence, which takes place in the sphere of judical rules governing the internal market.
EN
The Aland Islands are comprised of 6500 islands, eighty of which are inhabited, with a combined area of 1500 km2. The entire territory is inhabited by 27 000 Swedish-speaking people. The international agreements currently in force regulate the use of the Strait of the Aland Islands just to a certain degree and refer only to navy vessels. Therefore, it can be concluded that the strait's particular legal regime is described primarily by the regulations of the 1921 Geneva Convention. For other ships, the principles of common use and treaties of international maritime law apply. Foundations exist to recognize a transit passage in the strait beyond the demilitarized zone. The current status of the islands and the surrounding waters is commonly accepted by both the Swedish inhabitants of the archipelago - who have considerable political and economic autonomy within Finland, the countries on both sides of the strait, and the international community throughout the Baltic region.
EN
The study deals with the role of the right to health and that of the right to life in the society. The study is about the function filled, ab ovo, by these two human rights, and about that developed by the inhabitants of the sociosphere in the course of human history. The law-forming activity of the sociosphere's inhabitants, so, first of all that of the mankind, has strongly modified the existence and modus of these two basic rights. As for the 'ius ad vitam' and the 'ius ad sanitatem', our society provides a more or less 'developed' and 'western-type' attitude. However, some digressions show up. All these follow from Hungary's special geopolitical situation, historical background and from the specific characteristics of our society. Life and health are fundamental values, which should not be impaired. Amending these belongs to one of the goals of every democratic government, since society and public administration can be sustained only in synergy with each other. Relativisation of absolute rights solicits a sincere pre-consideration and preparation. The situation of life and health protection should not depend on political or other spiritual tendencies. In the Hungarian (and, more broadly, in the 'western') public thinking, exclusively those views might find place, which do not question the right to life and the right to the highest level of physical and mental health for the individuals and the community. This is to be alpha and omega in every democratic social structure.
EN
The aim of the article is to determine the common and distinct features in the relationship between the copyright law and competition law. In this point of view, those cases are stressed in the article, in which it can come to concurrence between both branches of law. The copyright law and intellectual property law as well, includes in itself an exclusivity, therefore the possible restrain of the competition in the market can not be precluded. In the article are emphasised those cases, when it can come to anticompetitive behaviour on the market and that by concluding agreements restricting competition or by abusing a dominant position on the market. Those cases are especially those, when contractual terms in the licences are able, after fulfilling special circumstances, to restrict the competition. Collective management organizations of copyright and related rights are also not allowed to perform those activities, which can lead to separation of the market. Effective disclosure of the anticompetitive behaviour is therefore an actual question in the context of EC law and Slovak legal system as well.
EN
In 2005 contiguous zones have been established by more than seventy states. Poland since 1932 has had three mile of the territorial sea and three mile of a contiguous zone which disappeared in 1978 when twelve mile territorial sea was proclaimed. First claims by coastal States to control rights in zones contiguous to their territorial seas, can be already found in XVIII century. In the first half of XX century the contiguous zone became a customary norm. In 1958 the I Geneva Convention determined its status providing that the coastal State in twelve mile zone of the high seas contiguous to its territorial seas may exercise the control necessary to prevent and punish infringement of customs, fiscal, immigration or sanitary regulations. The Convention on the Law of the Sea of 1982 in articles 33 and 303 has changed the concept of the contiguous zone recognizing that it can be extended to twenty four miles and giving the coastal State in addition to rights recognized in the Geneva Convention the right to protect the underwater cultural heritage. Polish specialists have argued on several occasions for the establishment of a contiguous zone. This idea has been recently supported by the Advisory Legal Committee by the Ministry of Foreign Affairs and the Commission of Maritime Law of the Polish Academy of Sciences. Several arguments may be presented in favour of the establishment of Polish contiguous zone. It can better protect Polish interests, gives additional rights which do not exist in the exclusive economic zone, enables better safeguarding of frontiers against terrorism, proliferation of weapons of mass destruction, smuggling of migrants, drug trafficking and give the right to the protection of underwater archaeological finds. The Ministry of Infrastructure recognizing the importance of these arguments, has already undertaken first steps aimed at the change of Polish Bill of 1991 and establishment of the contiguous zone.
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