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1

The Austrian matrimonial property law as applied in the practice of Cracow notary public offices (1918–1939)

100%
Stus M.
Krakowskie Studia z Historii Państwa i Prawa
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2013
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vol. 6
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issue 1
37-44
EN
The article presents the process of applying the Austrian matrimonial property law in Poland based on the example of the interwar notary practice in Krakow. The subject of the analysis are the marital property agreements, which, in accordance with the legal provisions of the time, were mandatory and took the form of a notary deed. Based on the content of those contracts, an attempt was made to answer the question of whether and to what extent the marital property law included in ABGB affected the shape of the matrimonial property relations of the spouses. The analysis focused in particular on the legal functioning of such notions as dowry, hope chest, bride price, dower or contract of inheritance.
2
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SAMOBÓJSTWO WSPOMAGANE JAKO FORMA WYKONYWANIA PRAWA JEDNOSTKI DO SAMOSTANOWIENIA W AUSTRIACKIM SYSTEMIE PRAWNYM

88%
Wróbel I.
Przegląd Zachodni
|
2022
|
issue 1 (382)
105-120
EN
In the Republic of Austria, until the end of 2021, supporting an individual in his or her suicide was punishable by the law which reads as follows: „Whoever incites or assists another person to commit suicide shall be liable to imprisonment for a term of between six months and five years”. The Constitutional Tribunal (Verfassungsgerichtshof - VfGH), in a court ruling of 11 December 2020, lifted the prohibition of assisting in suicide, with effect from 1 January 2022. At the same time, VfGH called on the legislator to adopt abuse prevention measures. The executive and legislative bodies responded to the VfGH’s call and as a result changed the law in Austria with regard to assisted suicide in early 2022 in a way that corresponds to the interpretation of constitutional regulations by the VfGH. The aim of the paper is to analyse and assess the scope and significance of the normative change in the Austrian legal system initiated by the VfGH ruling. In the course of the undertaken research, the hypothesis was verified that on January 1, 2022, there was a change in the Austrian legal system of fundamental significance in terms of the most important fundamental rights of an individual, in particular his/her right to self-determination. The research was conducted primarily with the use of the dogmatic-legal method.
3

Czy na pewno martwa instytucja? Staropolskie i austriackie pactum advitalitium w perspektywie współczesnej

63%
Bokwa K., Jarosz I.
Studenckie Prace Prawnicze, Administratywistyczne i Ekonomiczne
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2018
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vol. 25
109-124
EN
Pactum advitalitium was an early Polish legal institution established through a marital agreement. It was a form of annuity by means of which spouses established a right of usufruct of the entirety of an estate, effective upon the passing of one spouse and existing for the lifetime of the beneficiary. The practical purpose thereof was to secure the material well-being of a widowed spouse, usually the wife, given not only that the legal system did not provide for commune marital property, as well as that there was no statutory spousal succession. Later, after the partitions of Commonwealth of Poland and Lithuania, the institution discussed herein was adopted by Austrian law and regulated in the newly enacted Austrian Civil Code (ABGB), with slight modifications enabling i.a. to encumber not only the whole estate or a part thereof, but also several assets of a future estate. Thus advitalitium had become available within the vast Austrian Empire, yet it did not gain a wide recognition among the nations of the Monarchy, remaining an infrequently used institution, which led to its repeal in 21st century. The very legal character of pactum advitalitium was and is still controversial, leading the academia to suggest multiple explanations of its nature, often varying significantly dependent on the subject of advitalitium in a specific case (the entirety of an estate or a part thereof or several assets). The authors aim to examine the origins and history of advitalitium regulation in early Polish and Austrian law in their historical context, later to recount the doctrinal concepts explaining its character. To pursue both there aims, historical and formal-dogmatic methods are employed. The authors then move on to discuss the possibility of reaching results identical or just similar to ones achieved by means of an advitalitium in modern Polish law, applying the formal-dogmatic method, to show that not only no comparable institution exists in Polish law nowadays but, moreover, that similar results cannot be achieved by applying instruments known to Polish law. Such analysis enables the authors to arrive at conclusions regarding the possible application of advitalitium as an instrument of estate planning in the context of modern family relationships, which could lead to the rediscovery thereof in modern legal systems.
4

Monetary compensation for marital infidelity and damages resulting therefrom in comparative perspective

51%
Bokwa K., Jarosz I.
Studenckie Prace Prawnicze, Administratywistyczne i Ekonomiczne
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2019
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vol. 29
159-170
EN
The way the law regulates marriage and marital relations stems, at least to a certain extent, from the common beliefs of the society concerning these issues. The same can be said of the law of torts, whose norms arise from the social convictions regarding who and to what extent shall bear certain damages, including the fundamental issue of whether such damages should be subject to compensation at all or should they be incurred by the party (at least allegedly) injured. This paper aims to present a brief comparative analysis of the admissibility of seeking monetary compensation for marital infidelity in legal systems close to Poland (German, Austrian), as well as in common law systems, and then present the possible legal grounds for such claims under Polish law, acquis of case-law and legal academics, namely — the claims related to the infringement of personal rights (Article 23, 24 and 448 of the Polish Civil Code). The Polish approach is discussed in the context of a recent landmark Polish Supreme Court decision, where it has been ruled that the abovementioned provisions cannot be construed as to provide monetary relief for non-material damages suffered by betrayed spouses. The authors employ legal comparative and historical methods, supplanted by formal-dogmatic ones, to describe and show the evolution of the law concerning monetary liability for marital infidelity, in light of the statutory law and jurisprudence of Poland.
PL
Sposób, w jaki prawo reguluje małżeństwo i relacje między małżonkami, jest silnie zakorzeniony w powszechnych osądach moralnych dotyczących tych kwestii. Podobnie rzecz się ma z wynagrodzeniem szkody, w wypadku którego zasadniczą rolę odgrywa społeczne przekonanie co do tego, kto, czy i w jakim stopniu powinien ponosić odpowiedzialność za jej wyrządzenie. Niniejszy artykuł ma na celu ukazanie możliwości dochodzenia pieniężnej rekompensaty za niewierność małżeńską w perspektywie komparatystycznej, analizując pokrótce możliwości istniejące w tym zakresie zarówno w systemach bliskich polskiemu (niemiecki, austriacki), jak i w systemach common law. W dalszej kolejności prezentowane są potencjalne prawne podstawy dla tego rodzaju roszczeń w prawie polskim, mając na uwadze tezy doktryny i orzecznictwa, w szczególności na gruncie przepisów o ochronie dóbr osobistych (art. 23, 24 i 448 k.c.). Autorzy odnoszą się zwłaszcza do niedawnego wyroku Sądu Najwyższego wyłączającego zastosowanie przepisów o ochronie dóbr osobistych do konstruowania roszczenia o zadośćuczynienie za krzywdę wyrządzoną zdradą małżeńską. Autorzy używają metod komparatystycznej i historycznej, wspartych analizą dogmatyczną, by ukazać ewolucję różnorodność i ewolucję norm dotyczących majątkowej odpowiedzialności za zdradę małżeńską, w szczególności w świetle polskiego prawa i orzecznictwa.
5

Edition of the Provisional Judicial Rules of the Judex-Curial Conference from 1861 and the Methodology of Editions of Historical Legal Sources

51%
Gábriš T.
Krakowskie Studia z Historii Państwa i Prawa
|
2014
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vol. 7
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issue 3
463–483
EN
The paper explains the methodology applied in the edition of historical legal sources of major importance for the 19th and 20th centuries Slovakia – the edition of the Provisional Judicial Rules (“PJR”) of the Judex-Curial Conference of 1861. At the Conference, legal scholars and politicians adopted a decision to abandon the previous twelve years of neoabsolutism and centralism introduced by the Austrian law, and opted for a renewal of the traditional Hungarian legal system with some changes introduced by the laws of March 1848 (the March Constitution of 1848). At the same time they retained some rules of Austrian origin and created some rules that were entirely new, particularly in the field of civil procedural law and inheritance law. While evaluating the legal nature of the PJR, the literature used to claim that they never became law because Parliament of 1861 was not created legally (representatives were not elected under the electoral law enacted as part of the March Constitution of 1848) and because the monarch, Francis Joseph I, had not yet been crowned (his coronation took place in 1867). Therefore the legislative process could not be successfully completed. The only solution that was reported to was the recognition of the exceptional situation which dominated in Hungary between 1861–1867 – it was the period between neoabsolutism and another provisorium, a period of “limited constitutionalism”. Under such conditions it was not possible to meet the formalities of official legislation process. Thus PJR could become binding only de facto – through the power of persuasion. However, after a corpus of case law began to consolidate during several years, it could be argued that the PJR was transformed from the actual source of judicial decision-making into customary law.
6

Odpowiedzialność odszkodowawcza państwa za bezprawne działania jego organów według ABGB w świetle wykładni Sądu Najwyższego (1918–1939). Przyczynek do dziejów austriackiej tradycji prawnej w Polsce

51%
Dziadzio A.
Krakowskie Studia z Historii Państwa i Prawa
|
2012
|
vol. 5
|
issue 4
295–305
EN
The paper analyses the fundamentals of civil law liability of the State for the harm resulting from the excercising of public power in both the Austrian constitutional monarchy(1867-1918) as well as in the Second Republic of Poland (1918-1939). The paper is designed to demonstrate the extent to which decisions of the Austrian Supreme Tribunal in the area of compensatory liability - were reflected in the decisions of the Polish Supreme Court of the inter-war time. The possibility of survival, in this area, of the Austrian legal thought in the independent Poland was justified both by the binding force of the same Civil Code (which was the ABGB still in force until 1946 in the area of former Austrian partition) as well as by similar constitutional regulations. Both the Austrian Constitution of December 1867 as well as the Polish Constitution of March 1921 accepted the liability of State for harm done to an individual by the agencies of State power, the harm resulting from the activities of the officials who operated contrary to law. Yet the regulations of both Constitutions were deprived of executory provisions. Similiar (and partly even identic) legal state was, to a large extent, decisive of the adopting by the Polish courts of the adjudicating line characteristic of the Austrian courts. The analysis of both the Austrian as well as the Polish court decisions disclosed that in numerous cases in which compensatory claims were raised the courts tended toward the weakening of the principle of the absence of liability of the State for the harm done by its agencies as due to the shortage of the detailed provisions. The first attempt to remedy this absence was made by the Supreme Tribunal (Ober-Gerichtshof) as well as by the Tribunal of State (Reichsgericht) in the monarchical Austria. The arguments resorted to by the two Tribunals facilitated the recognition in 1931 by the Polish Supreme Court of the principle of limited liability of State Treasury for the harm done to somebody as a result of excercising the public power by the State agencies.
7

„Pflegevermächtnis” - austriacki sposób na wynagrodzenie za opiekę nad zmarłym

51%
Sobański P.
Rejent
|
2022
|
issue 2 (370)
47-67
EN
The purpose of this article is to present and analyze the new institution in the austrian inheritance law, ie Pflegevermächtnis - the care legacy. The problem of an aging population refers to the vast majority of European countries, and thus there is a need to adapt legal regulations to the new circumstances. The examined issue has two important social goals: providing elderly people with proper care in the last years of their life and due remuneration of family members who have been provided with care over a deceased. So far, in Austria, people who looked after the deceased before his death were forced to seek compensation in difficult and lengthy trials, with the lack of a settled case-law in this regard. The presented analysis of the Austrian care legacy can be an interesting material for analysis for the Polish legislator in the case of the desire to solve the problem of remuneration and care for a testator before his death.
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