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SOME REMARKS ON THE CONSTITUTION OF THE FIFTH REPUBLIC AFTER 50 YEARS OF ITS EXISTENCE (Konstytucja V Republiki po 50 latach obowiazywania. Kilka refleksji)

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Jamroz A.
Przegląd Sejmowy
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2008
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issue 6(89)
15-34
EN
The Constitution of 1958, approved in the constitutional referendum on 28th September 1958, was - from the beginning of its operation - a subject of heated disputes. The controversy related to a particular situation in which its text was prepared, the procedure of its adoption and the nature of the system of government it introduced. The article presents main aspects of the discussions on this subject and, then, focuses on constitutional practice established in the last tens of years of existence of the Constitution. It has turned out that, owing to the amendment of 1962 establishing universal and direct election for the Presidency of the Republic, the Constitution (particularly in the sphere of functioning of the executive, and more precisely - the relations between the President and the Government headed by a Prime Minister) allows two different constitutional approaches depending on the relations between political forces and on ideological divisions. The first approach is close to the presidential system, the second one resembles a parliamentary system of government. In the author's opinion, both the constitutional approaches are fully permissible, which shows that, despite its concise nature, the Constitution of the Fifth Republic is quite comprehensive. This results not only from a flexible interpretation of the constitution, but is also based on the consensus between main political forces.
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SCOTTISH MODEL OF REGULATION OF COHABITATION (Szkocki model regulacji konkubinatu)

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Pawliczak J.
Kwartalnik Prawa Prywatnego
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2010
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vol. 19
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issue 3
695-716
EN
On 4 May 2006 the Family Law (Scotland) Act 2006 came into force as a part of Scottish law. The Act has amended Scottish family law as well as provided for a completely new legal framework of financial relations between cohabitants in the event of separation or death of a partner. The introduced scheme is an example of the so-called presumptive (default) model for regulating cohabitation. It deals with financial relations between partners of informal relationships who are living together in a manner prescribed by law. Scottish approach to this problem significantly differs, however, from the legislation adopted in Australia and New Zealand, where informal cohabitants have been given similar rights to those of persons living in formal relationships. The Scottish cohabitation law has mainly a 'compensatory' character, since it is aimed at redressing economic disadvantages suffered by one of the partners during the time of cohabitation.
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LAWMAKING POWERS OF THE EXECUTIVE UNDER GERMAN BASIC LAW (Dzialanosc prawotwórcza egzekutywy w swietle Ustawy Zasadniczej RFN)

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Bien-Kacala A., Tarnowska A.
Przegląd Sejmowy
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2010
|
issue 2(97)
99-115
EN
There are two major legal regimes in Europe: the Anglo-Saxon (or common law) and the continental one. One of the features of the common law system is that it is aimed at resolution of disputes and restoration of endangered or disturbed peace. Under this system, no confidence is placed in principles and views being too abstract in nature. On the other hand, the continental conception of law, that prevails in Europe, is focused on establishing general principles of social order. It is based on the educational role of law, and also is rational and universal, and even moralizing, in nature. A law is treated as a product of the will of the state. In general, two systems (the French and German ones) are distinguished under the continental regime. In the context of comparative law, the differences between these systems reflect their different theoretical foundations. In Germany, the theory of a state ruled by law (Rechtsstaat) has been preserved, while the notion of a law-abiding state (l'État légal) and the theory of popular sovereignty prevail in France. In Germany, the principle of homogeneity of a statute is derived from the constitution. The theory of the statute is based on the classic separation of substantive and formal meaning of that act. There exists a notion of 'reservation of statutory powers' (Gesetzesvorbehalt), as well as that of 'reservation of parliamentary powers' (Parlamentsvorbehalt). The latter is associated with the definition of not only the sphere of exclusive powers of the legislative body, but also an appropriate extent of these powers. As concerns lawmaking by the executive, we should distinguish a regulation (Rechtsverordnung), being a specific and generally binding executive act, from other normative acts of the executive - i.e. (internal) administrative regulations (Verwaltungsvorschriften), relating mostly to organizational matters, administration and operation of administrative establishments, and instructions. There is a requirement for statutory delegation to issue regulations. A regulation is, formally and explicitly, distinguished from a statute by its authorship, as its norms are created by an executive body. Except for temporary exceptions, the constitution does not authorize the executive to pass acts having the force of a statute. Therefore, one may conclude that in Germany the system of sources of law enacted by the executive bodies on the federal level of is relatively well organized. Generally binding law is based on statutes and executive regulations. As regards administrative regulations, the situation is more complicated, due to their different content and form. Moreover, they cannot be treated as binding on citizens. .
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