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1

POLISH TOXIC CURRENCY OPTIONS (Polskie toksyczne opcje walutowe)

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Gontarski W.
Contemporary Economics
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2009
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issue 2(10)
37-47
EN
Toxic currency options are defined on the basis of the opposition to the nature (essence) of an option contract, which is justified in terms of norms founded on the general law clause of characteristics (nature) of a relation (which represents an independent premise for imposing restrictions on the freedom of contracts). So-understood toxic currency options are unlawful. Indeed they contravene iuris cogentis regulations. These include for instance option contracts, which are concluded with a bank, if the bank has not informed about option risk before concluding the contract; or the barrier options, which focus only on the protection of bank's interests. Therefore, such options may appear to be invalid. Therefore, performing contracts for toxic currency options may be qualified as a criminal mismanagement. For the sake of security, the manager should then take into consideration filing a claim for stating invalidity (which can be made in a court verdict). At the same time, if the supervisory board member in a commercial company, who can also be a subject to mismanagement offences, commits an omission involving lack of reaction (for example, if he/she fails to notify of the suspected offence committed by the management board members acting to the company's detriment when the management board makes the company conclude option contracts which are charged with absolute invalidity) the supervisory board member so acting may be considered to act to the company's detriment. In the most recent Polish jurisprudence and judicature the standard of a 'good host' is treated to be the last resort for determining whether the manager's powers resulting from criminal regulations were performed. The manager of the exporter should not, as a rule, issue any options. Issuing options always means assuming an obligation. In the case of currency put options it is an absolute obligation to purchase a given amount in euro at exchange rate set in advance. On the other hand issuing call options confers an absolute obligation to deliver to the other party to the option contract a specified amount in euro at exchange rate set in advance. This latter position (short call) means unlimited loss in the case of appreciation of euro. This was the situation faced by some Polish exporters in the second half of 2008 who in the middle of 2008 issued the most risky call options for banks and, thus, they bought a currency risk from the banks. Issuing any option always means also buying someone other's risk, in exchange for a relatively small option premium which might trigger a relatively huge and actually unlimited risk of losses, if the assumed forecast does not come true. This is not the economic analysis of law to be relied on any more in respect of the cost of preventing the risk of loss being higher or lower than the amount of damage. The manager of an exporting company, unlike the speculator who sells options (buys risk), usually has no knowledge of financial engineering, which is essential to safely manage such excessive risk through creating a hedging portfolio.
2

Satyra antyczna a współczesne standardy prawne wypowiedzi prasowej

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Gontarski W.
Studia Iuridica
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2016
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vol. 61
53-126
EN
The contemporary truth which applies to journalists (as required by the Council of Europe standards and domestic law) reflects differences between the essence and criterion of Aristotelian truth (material truth – veritas est adaequatio rei et intellectus – ad Aristotle, The Metaphysics IV.7. [1011b 26‒27]), and its practical implementation (objective truth – in medio stat veritas – ad Aristotle, Nicomachean Ethics II.7. [1108a 19‒20]). A journalist is obliged to reconstruct the objective truth (the truth ascertainable by a man who meets the Roman law standard of diligentia boni patris familias, here referred to as diligence expected of a responsible journalist) and not the material truth. Nonetheless, a substantial discrepancy between this journalistic truth and the material truth will constitute a sufficient reason for statutory rectification. As regards the assessing statements, as well as the satirical ones, the proof of truth is only required if the assessment is a conclusion derived from descriptive statements, i.e. the factual basis, and that conclusion must be logical (proportional and therefore just). Satire may not contain words commonly considered as offensive. If a satirical statement is to enjoy the legal protection, it cannot amount to a mere personal attack. Regardless of the fact that satire is a negative assessment and an exaggerated one, it must derive from application of facts, meaning that it must reflect the reality and in that sense it can neither attack human dignity nor contain any discriminatory statements, as confirmed by the latest case law of the Court of Justice of the European Union. Analogical conclusions can be reached upon reading the works of Romanian satirists, for instance Horace.
3
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Aitia – wina arystotelesowska. Zagadnienia definicyjne. Część II

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Gontarski W.
Archiwum Filozofii Prawa i Filozofii Społecznej
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2013
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vol. 1(6)
68-92
PL
When engaging in polemics with Pythagoras, Aristotle observed that the retributive function of punishment, as distinguished from the preventative one, does not involve revenge understood as material retaliation (i.e. suffering for suffering, meaning retaliation proportional to the damage suffered). It does not encompass a simple reciprocity, such as suffering in turn (ἀντιπάσχω), but instead shall be considered as a just reciprocity, meaning doing in return (ἀντιποιέω), whereby the degree of mental contribution is taken into account. The classical theory of responsibility, at least under the meaning assigned to it by Aristotle, considers human responsibility by means of reference to mental capabilities of the actor in respect to a particular harmful action. An action involving human guilt is consequently contrasted with an accidentally caused action. In the works of Stagirite the mental attitude of the actor towards his action distinguishes human causation from the accidental one and from the forced one. Pythagoras, on the other hand, discussed material retaliation, meaning objective responsibility. At the same time, the author of Nicomachean Ethics had already experienced the system of subjective responsibility based on the concept of knowingly caused damage as opposed to the system of objective responsibility involving the objective causal relationship between the actor’s behavior and the resulting damage). Aristotle has extended the concept of subjective responsibility to cover both knowingly caused damage (intentional fault) and unintentional fault, whereby the damage is directly caused by the negligent conduct of the actor, meaning the failure of the latter to observe required objective and abstract standards. The mental component and the related subjectivization involve the actor possessing required intellectual capabilities, but not using them in a way as to observe the aforementioned imposed standards. Nonetheless, the potential mental component is itself not sufficient to establish guilt. Otherwise, all the people (apart from those lacking capacity at all) shall be declared guilty regardless of the fact that the damage was caused by them accidentally.
4
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Aitia – wina arystotelesowska. Zagadnienia definicyjne. Część I

100%
Gontarski W.
Archiwum Filozofii Prawa i Filozofii Społecznej
|
2012
|
vol. 2(5)
51-66
PL
When engaging in polemics with Pythagoras, Aristotle observed that the retributive function of punishment, as distinguished from the preventative one, does not involve revenge understood as material retaliation (i.e. suffering for suffering, meaning retaliation proportional to the damage suffered). It does not encompass a simple reciprocity, such as suffering in turn (ἀντιπάσχω), but instead shall be considered as a just reciprocity, meaning doing in return (ἀντιποιέω), whereby the degree of mental contribution is taken into account. The classical theory of responsibility, at least under the meaning assigned to it by Aristotle, considers human responsibility by means of reference to the mental capabilities of the actor in respect to the particular harmful action. An action involving human guilt is consequently contrasted with an accidentally caused action. In the works of Stagirite the mental attitude of the actor towards his action distinguishes human causation from the accidental one and from the forced one. Pythagoras, on the other hand, discussed material retaliation, meaning objective responsibility. At the same time, the author of Nicomachean Ethics had already experienced the system of subjective responsibility based on the concept of knowingly caused damage as opposed to the system of objective responsibility involving the objective causal relationship between actor’s behavior and the resulting damage. Aristotle has extended the concept of subjective responsibility to cover both knowingly caused damage (intentional fault) and unintentional fault, whereby the damage is directly caused by the negligent conduct of the actor, meaning the failure of the latter to observe required objective and abstract standards. The mental component and related to it subjectivization involve the actor possessing required intellectual capabilities, but not using them in a way as to observe the aforementioned imposed standards. Nonetheless, the potential mental component is itself not sufficient to establish guilt. Otherwise, all the people (apart from those lacking capacity at all) shall be declared guilty regardless of the fact that the damage was caused by them accidentally.
5
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Możliwości zablokowania ustanowienia powiązania budżetu Unii Europejskiej z praworządnością

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Gontarski W.
Przegląd Sejmowy
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2021
|
issue 5(166)
35-54
EN
The new regime of conditionality for the protection of the rule of law, understood as the rule of law (new conditionality), appears to be contrary to the European Union Treaties, in particular because its essential provisions are incompatible with the requirement of legal certainty which underlies the rule of law. This conditionality is based on financial liability for the risk of illegality, that is, in sum, for lawful acts of a Member State which may possibly turn out to be unlawful, but after financial sanctions have already been applied. This publication deals with the identification and management of legal risks that give rise to financial risks. After characterising the basic EU budgetary instruments on the basis of the acquis of economic and legal sciences (which implies the application of the external integration method), using a dogmatic method, the author discusses the possibility of blocking by a Member State the introduction into EU law of a mechanism binding the budget with the broadly understood rule of law in connection with the signalled incompatibilities of the new conditionality mechanism with primary Union law. The aim of the paper is to answer the question of what legal possibilities an individual Member State has to counteract a Union regulation prima facie incompatible with the rule of law, apart from challenging the regulation before the Court of Justice (review of the legality of legal acts), on the assumption that the rule of law imposes an obligation to first counteract bad legislation (decent legislation as an element of the rule of law) and only as a last resort to lodge a complaint with the Court against a given act of derived Union law.
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Konsekwencje powołania do pełnienia urzędu sędziego w procedurze, która mogła być dotknięta wadą prawną. Glosa do Wyroku Naczelnego Sądu Administracyjnego z dnia 4 listopada 2021 r., sygn. akt III FSK 3626/21

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Gontarski W.
Przegląd Sejmowy
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2022
|
issue 6(173)
143–158
EN
The commented judgement concerns the consequences of an appointment to the office of a judge in a procedure that may have been affected by a legal defect. In the judgement in question the Supreme Administrative Court held that a judge or an assistant judge of an administrative court appointed by the President of the Republic of Poland is a(n) (assistant) judge in the Republic of Poland and a European judge within the meaning of the EU Treaties and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms even if the procedure preceding the appointment may have been defective (a potentially legally defective procedure). Agreeing with the aforementioned view, the author notes that, firstly, the definitive nature of judicial appointments made by the President of the Republic of Poland does not, according to the case law of the European Court of Human Rights in Strasbourg and of the Court of Justice of the European Union, provide an answer to the question whether each judge provides sufficient guarantees of independence and impartiality due to the procedure pursuant to which she or he was appointed. Secondly, the in abstracto test taken into account in some judgements of both Courts (examining the law as regards the legality of the appointments of judges) assessing the independence and impartiality of judges and whether a court is established by law, as opposed to the in concreto test applied in some other judgments of both Courts (concerning the conduct of a given judge in a given case, precluding the questioning of judgements solely on the ground that they were issued by persons appointed at the request of the current National Council of the Judiciary), infringes the principle of legal certainty, which constitutes an element of the rule of law. Thirdly, such dualism in European jurisprudence consequently leads to a destabilisation of the judicial system, which is opposed by the judgement under comment.
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Glosa do wyroku włoskiego Sądu Konstytucyjnego z dnia 22 października 2014 r., nr 238

100%
Gontarski W.
Przegląd Sejmowy
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2018
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issue 5(148)
163–171
EN
The commented judgment makes the essence of the right of access to court an ius cogens norm — as such it takes precedence over state immunity that amounts only to a customary rule. At the same time it maintains the necessary balance between interests of entities recognized by international law and individuals, which had not been accomplished by the International Court of Justice, the Italian legislator or the national courts of other countries, including the Polish Supreme Court.
8
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Prawda arystotelesowska w procesie administracyjnym i sądowoadministracyjnym

100%
Gontarski W.
Acta Universitatis Lodziensis. Folia Iuridica
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2014
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vol. 73
EN
The contemporary truth reconstructed in a trial reflects differences between the Aristotelian truth in terms of its essence and criterion (material truth – veritas est adaequatio rei et intellectus – ad Aristotle, The Metaphysics IV.7.[1011b 26-27])- and its practical realisation (objective truth – in medio stat veritas – ad Aristotle, Nicomachean Ethics II.7.[1108a 19–20]). In a non-adversarial processes – such as the Polish criminal trial - as opposed to the Anglo-Saxon one - the Polish administrative procedure (an administrative court has only a controlling function, not a reformative one and does not ascertain facts on its own) or separate proceedings in the Polish civil procedure – the court is expressis verbis obliged to reconstruct the objective truth (i.e. the truth which can be ascertained by a man meeting the diligentia boni patris familias standard) and not the material truth. Nonetheless, if the judicial truth understood in this way (the truth ascertained by the court; if the court does not demonstrate an evidential initiative, then it will not ascertain the truth, but it will merely assess the reliability of the evidence submitted as in the Anglo-American criminal trial) will differ from the material truth, it can act as a statutory premise to resume the proceedings. That is, generally speaking, the main difference between the inquisitorial and the adversarial models.
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