Full-text resources of CEJSH and other databases are now available in the new Library of Science.
Visit https://bibliotekanauki.pl

Results found: 9

first rewind previous Page / 1 next fast forward last

Search results

Search:
in the keywords:  Constitution,
help Sort By:

help Limit search:
first rewind previous Page / 1 next fast forward last
1
Publication available in full text mode
Content available

Problems of interpretation of law in accordance with the Constitution – Polish construction in historical and comparative aspects

100%
Minich D.
Studia Politologiczne
|
2019
|
vol. 52
227-238
EN
In the light of art. 188 of the Constitution of the Republic of Poland The Constitutional Court adjudicates on the compliance of laws and other normative acts with the Constitution. The interpretation of law in accordance with the Constitution has been a key issue since the beginning of the jurisprudential activity of Polish Constitutional Court. It is stressed on the ground of the American doctrine that the problem of interpreting law in line with the constitution raises the need to compare the content of a controlled act with its constitutive pattern. This type of interpretation was defined as an interpretation in harmony with the Constitution. In American constitutionalism two concepts of constitutional interpretation can be distinguish: Living Constitution and Originalism. Nowadays, one can see the emergence of the third way of interpreting the constitution which allows to eliminate the shortcomings of the two mentioned above. This concept, referred to as Non Originalism (or Living Originalism). The model of judicial review was adopted in the USA whereas the model of the constitutional court was introduced in Europe. Austria is widely regarded as the cradle of constitutional judiciary. Hans Kelsen designed a system of constitutional review. He provided the Constitutional Court with the power to scrutinize abstractly the legality of legal acts in terms of their compliance with the Constitution. It was not until the 1960s that the so-called interpretation of laws in accordance with the Constitution appeared in the case-law of this body. The cataclysm of fascism and Nazism ruined constitutional theories based on the primacy of the constitutional law. As the founders of the Basic Law of the Federal Republic of Germany of May 23, 1949 were conscious of that, they adopted the solutions of the Austrian model whose essence was the examination of the conformity of legal acts with the constitution. The discussion on the correct methods of interpreting the constitution is the “Archimedes point” of constitutional law. The activity of the Federal Constitutional Court of Germany and the achievements of the constitutional law in this country had the greatest influence on Polish judicial practice. The Polish name of this institution is a translation of the German term fervassungskonforme Auslegung von Gesetzen.
2
Publication available in full text mode
Content available

The Issues of Differentiation of Constitutional Policy from Ongoing Politics

88%
Manasyan A.
Studia Politologiczne
|
2019
|
vol. 52
218-226
EN
The article considers the issues of differentiation of constitutional policy from ongoing politics. The author concludes that Constitution and politics should have one main common aim – regulation of social relations via guaranteeing the principle of rule of law. The Constitution should be not a tool for politics, but a bound, framework for it. Moreover, the constitutional developments should express not the current political preferences and interests, but be superior to them and define fundamental legal framework for political actors and events. In other words, constitutional policy should be clearly differentiated from the current politics, and the Constitution should be not a part of the ongoing political game, but should have a role of defining the rules of that game. The Constitution should not be subject to amendment parallel to every change of political situation of the state or formation of a new political majority. The Basic Law has a fundamental role from the aspect of regulating social relations and can’t be used just as a tool for solving ongoing political problems. It is a symbol of a concrete constitutional system, and should in reality be perceived as such.
3
Publication available in full text mode
Content available

Proceduralna niekonstytucyjność nowelizacji ustawy o stosunku Państwa do Kościoła Katolickiego w Rzeczypospolitej Polskiej

88%
Sobczyk P.
Studia Politologiczne
|
2012
|
vol. 23
235-248
EN
On the 16th of December 2010 the Act amending the Act on relations between the State and the Catholic Church was enacted in the Republic of Poland. On its basis (Article 2) legislators abolished Property Commission with the effect on the 1st of March 2011, while agreeing that it completed its work by the 28th of February 2011. The Act concerning amendments to the Act on the Relation of State to the Catholic Church was passed without an agreement between the Council of Ministers and the Conference of the Polish Episcopate. Meanwhile, in accordance to the ruling of the Constitutional Court, Article 25 of the Constitution results in the binding obligation of public authorities in searching for legislative solutions of a consensual character in the area of relations with churches and religious associations that are accepted by the recipients. It has been confirmed by the Legislative Council, which in its opinion stated that the Council of Ministers before the enactment of the Church Act, is obliged to use its best endeavors in pursuing to draw up an agreement with the appropriate authority of a church or religious organization on the proposed content of the normative. Therefore, legal uncertainties arise, which are the subject of this article, concerning the procedural legality of the Act amended on the 16th of December 2010 with Article 25.4 of the Polish Constitution.
4
Publication available in full text mode
Content available

Ku nowej perspektywicznej regulacji umownej stosunków między Rzecząpospolitą Polską a Stolicą Apostolską (w związku z analizą dotychczasowych relacji bilateralnych)

75%
Leszczyński P.
Studia Politologiczne
|
2012
|
vol. 23
179-217
EN
The article contains proposals for a new regulations of relations between the Polish and the Holy See, which is related with a new interpretation of art. 25. 4 Constitution of Poland. The new law should be called “the Agreement” not “Concordat” and should be different from the current (concordat) regulations. On the other hand, postulated by the author the Agreement should include issues not governed in the concordat of 1993 relating to the Catholic Church in the Polish Army and Border Guard. The basis for the proposals of a new bilateral adjustment is critical analysis of historical, political and legal aspects of relations between the Polish-Vatican.
5
Publication available in full text mode
Content available

Konstytucyjna regulacja problematyki wyznaniowej w Polsce Ludowej

75%
Winiarczyk-Kossakowska M.
Studia Politologiczne
|
2012
|
vol. 23
161-178
EN
The article entitled “Constitutional regulations of religious life in the Polish People’s Republic” is an analysis of the Polish People’s Republic legislation and its influence on religion. The first part presents eight years period before the Constitution of 1952 was passed, when legislation relating religion developed based on the July Manifesto and linked to regulations of the March Constitution of 1921. Then the author focuses on discussion between authorities, Catholic episcopate and constitutional lawyers, which directly relates to the July Constituion of 1952 regulations on religion, as well as further evolution of these regulations.
6
Publication available in full text mode
Content available

Immunitet jako przedmiot dyskusjio przywilejach parlamentarzystów

75%
Kozłowski S.
Studia Politologiczne
|
2017
|
vol. 45
254-275
EN
The need for the functioning of immunity should be weigh up according both the system benefits which it provides and risks, and various pathologies or abuse. A balanced view of the benefits and vices for the functioning of public authorities requires reflection from the point of view of historical experiences and current, nowadays problems. It seems to be important prognostic aspect of possible organizational disruption for the amendment of regulations in this sphere. Today, we can not specify a uniform trend in European parliaments, which would prove that there is an authentic need to limit immunities. Journalistic comments appear sometimes in simplifying the problem of waive the Member’s immunity. However it is important to notice that immunity may not be waived in all circumstances, in every dimension, but only in particular, specific case. The problem of immunity is accompanied by many myths that are the source of inspiration for politicians and journalists calling for its total elimination. One of the myths is based on description of immunity only as a privilege. In the light of the Polish Constitution, system of the protection of parliamentarians is built on two immunities (absolute and relative), and the privilege of immunity. Parliamentarians in most countries are entitled to protection from criminal prosecution, but generally it does not extend to the realm of civil law. In Poland we can see the limitation of protection of the individual rights, guaranteed by Constitution, in situation of hold a parliamentarian to account for the infringement of the rights of any third parties, because is required endorsement of the Chamber, in which he sits. Furthermore, the operation of formal immunity causes some inconvenience not only for citizens but also from the point of view of the proper functioning of the Sejm and the Senate. It also entails discomfort for the parliamentarians, who are involved in various situations, being of excessive interest from the media.
7
Publication available in full text mode
Content available

Stosowanie prawa łaski przez Prezydenta RP

63%
Piotrowski R.
Studia Politologiczne
|
2016
|
vol. 42
89-106
EN
The Polish Constitution provides – in its Article 139 – that the President of the Republic “exercises the right of pardon”. The exact meaning of this right and the nature and extent of the activities to be undertaken by the President are not defined in the basic law, though. One’s understanding of the “right of pardon”, however, must not lead to results that produce an unconstitutional interpretation of the Constitution – and this, I believe, is the case with the interpretation to the effect that the exercise of the right of pardon extends beyond the pardoning itself, i.e. absolving a lawfully convicted person of the punishment meted out to them and of other effects of punishment, and that it also permits individual abolition, i.e. exempting the person concerned from responsibility, thus making criminal proceedings impossible. The President is part of the executive branch of government, and his competences in respect of blocking criminal proceedings must not rest on presumption. Under the Constitution, courts are independent and separate from other branches of government. But there are grounds to interpret the right of pardon, referred to in Article 139 of the Constitution, as encompassing limited individual abolition, where the President exempts a person under a criminal proceeding from the outcome of this proceeding (i.e. a lawful sentence, no longer subject to appeal), but where courts are not exempt from their constitutional responsibilities and where there is no demolishing of the right to fair trial – which in fact is the right to seek the truth, enjoyed by everybody, including the society and the court itself. The criminal trial of a person under individual abolition should be crowned with the passing of a lawful sentence, no longer subject to appeal – but in this case a guilty sentence would not be enforced, because of the right of pardon having been granted prior to the passing of the sentence. Legal disputes over exercise of the right of pardon are, in fact, disputes over application of the Constitution – and this application should be founded on respect for the Constitution as the basic law of the Republic of Poland. An interpretation of the Constitution must not justify practices that threaten the democratic identity of a state governed by the rule of law, such state having been proclaimed by the Constitution itself.
8
Publication available in full text mode
Content available

Ochrona dziedzictwa narodowego jako przesłanka ograniczenia swobód rynku wewnętrznego UE

63%
Serzhanova V., Plis J.
Studia Europejskie-Studies in European Affairs
|
2017
|
issue 4
141-161
EN
It goes without saying that protection of the national heritage is a significant objective and task of modern states and all the international community, for it constitutes the nations’ identity and is a universal value which cannot be overestimated. In the integrated Europe it can become a premise restricting the freedom of goods flow in the European Union internal market because of its special signifi cance and value. The hereby paper aims at analysing the problems of restricting the freedom of merchandise in relation to the cultural goods and national treasures both on the level of the EU law and based on the judicature of the Court of Justice of the EU, as well as in the plane of the limits introduced by the national law following from the idea of special protection of the state’s interest and the constitutional values on the example of Poland. The subject of the paper in particular comprises some reflections concerning the definition of the concept of cultural goods, presenting the EU approach to the problems of the cultural heritage preserving, the analysis of the EU primary and secondary law normalizing the matter under the discussion, as well as the judicature of the CJEU. Moreover, it concentrates on the analysis of the provisions of the Constitution of the Republic of Poland of 1997 and the legislature, as well as the judgements of the Constitutional Tribunal in this scope.
9
Publication available in full text mode
Content available

Kilka uwag na temat procedury głosowania w nowym kodeksie wyborczym.

63%
Borski M.
Roczniki Administracji i Prawa
|
2012
|
vol. 12
63-74
PL
5 stycznia 2011 r. został uchwalony kodeks wyborczy, który zastąpił aż pięć dotychczas obowiązujących ustaw wyborczych (ustawę o wyborze Prezydenta RP, ordynację wyborczą do rad gmin, rad powiatów i sejmików województw, ordynację wyborczą do Sejmu i Senatu RP, ustawę o bezpośrednim wyborze wójta, burmistrza i prezydenta miasta oraz ordynację wyborczą do Parlamentu Europejskiego). Część przepisów nowo uchwalonej ustawy stała się przedmiotem kontroli konstytucyjności Trybunału Konstytucyjnego, który 20 lipca 2011 r. wydał zaskakujące orzeczenie (orzeczenie nie zapadło jednomyślnie, zdania odrębne złożyło aż dziewięciu sędziów), w którym skonstatował, iż art. 4 § 2 i 3 Kodeksu, przewidujący możliwość zarządzenia dwudniowego głosowania w wyborach do Sejmu i do Senatu oraz na urząd Prezydenta RP, jest niezgodny odpowiednio z art. 98 ust. 2 i 5 oraz art. 128 ust. 2 Konstytucji. Niniejszy artykuł stanowi próbę przedstawienia argumentacji, jaką przyjął Trybunał, wydając przedmiotowe orzeczenie, a także skutków tego orzeczenia dla realizacji zasady powszechności wyborów w Polsce.
EN
On 5th January, 2011 the Election Code was enacted, which replaced five then currently valid election acts (the act on the election of the President of the Republic of Poland, town council, district council, and provincial parliament electoral law, Republic of Poland’s Sejm (lower house of the Polish Parliament) and Senate electoral law, law on direct election of the rural commune mayor, mayor, and mayor (of cities), and the European Parliament electoral law). A part of the regulations of the newly enacted act became the subject of the control of constitutionality by the Constitutional Tribunal, which on 20th July, 2011 gave a surprising judgement (this judgement was not passed unanimously, nine judges were of a different opinion), in which it stated that art. 4 § 2 and 3 of the Code, which provides for the possibility of ordering a two day voting in the elections to the Sejm and Senate and for the office of the President of the Republic of Poland, is inconsistent with art. 98 passage 2 and 5 as well as art. 128 passage 2 of the Constitution. This article constitutes an attempt to present the argumentation adopted by the Tribunal when issuing this judgement as well as the effects of this judgement to the realisation of the rule of generality of the elections in Poland.
first rewind previous Page / 1 next fast forward last
JavaScript is turned off in your web browser. Turn it on to take full advantage of this site, then refresh the page.