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1

Czy przebaczenie niweczy skutki uprzedniego wydziedziczenia?

100%
Moskal A.
Studenckie Prace Prawnicze, Administratywistyczne i Ekonomiczne
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2017
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vol. 21
141-151
EN
The legal nature of forgiveness is the subject of passionate debates among the representatives of civil law doctrine. According to the dominant position in the literature, forgiveness is an act of affection or its manifested expression of forgiveness of the perpetrator of experienced injustice and related to this grudge. This institution has been applied three times in the Civil Code — once with the donation agreement, twice in regulations of inheritance law. Article 1010 § 1 provides that a testator cannot disinherit eligible for legal portion if he forgave him. The wording of the above article indicates that accomplishment of disinheritance in case if testator eligible for legal portion has previously forgiven. The legislator did not, however, determine the effects of forgiveness in relation to previous disinheritance. In the act of 1971, the Supreme Court accepted that such forgiveness would automatically nullify the effects of disinheritance, and could be made in any form. In recent years, lower courts have begun to question the Supreme Court's position, and judges increasingly refer to the critical statements of numerous doctrines. As it was rightly stated, admitting the possibility of invoking the forgiveness made after disinheritance poses a serious threat to the realization of the testator’s will, who, by forgiving, does not necessarily want to revoke the effects of his previous disinheritance. The postulate of de lege ferenda is, according to the author of the article, giving of freedom of judging the effects of forgiveness to the courts and each examination of the forgiving testator’s will on the possible abatement of the consequences of previous disinheritance.
2

Mechanizm współpozwania w świetle przystąpienia Unii Europejskiej do Konwencji o ochronie praw człowieka i podstawowych wolności

100%
Moskal A.
Studenckie Prace Prawnicze, Administratywistyczne i Ekonomiczne
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2018
|
vol. 24
63-75
EN
For the past seventy years there have been discussions and activities on the accession of the European Union to the European Convention on Human Rights. The ratio of the Union’s accession to the Convention is a need to harmonize the European system of protection of individual rights. There are numerous problems and obstacles to achieve this goal created by the specific, supra-national character of the Union sui generis. It requires the introduction of unique mechanisms and procedures that would allow an international organization such as the EU to become a party to the Convention. One such procedure is provided in art. 3 of the draft agreement, the co-respondent mechanism of the European Union and the Member State in proceedings under the European Court of Human Rights. The purpose of the article is to present the allegations of the Court of Justice, assess their validity and indicate possible future solutions regarding the co-respondent mechanism. After analyzing the European Commission’s request for an opinion on the compliance of the draft agreement with community law, the CJEU considered the draft as incompatible with EU law and listed ten issues that prevented the Union from joining the Convention in the proposed form. Among them, as many as three points refer to the corresponding mechanism and concern in particular the decision on the validity of the conclusions of the Union or a Member State by the Strasbourg Court, accepting joint liability and deciding on the division of responsibility between the Union and the Member State. In the article dogmatic method was used in order to analyze three aforementioned points. Due to the provision of art. 218 par. 11 p. 2 TFEU, the Commission is bound by the opinion of the Court of Justice, and that the presented draft agreement cannot constitute an international agreement allowing for the accession of the Union to the Convention in the proposed form.
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