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  1. 2 Przegląd Sejmowy

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  1. 2 2008

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  1. 1 Cieslik Z.

  2. 1 Zubik M.

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THE SYSTEMIC FOUNDATIONS OF INCOMAPATIBILITY OF A PARLIAMENTARY MANDATE

100%
Zubik M.
Przegląd Sejmowy
|
2008
|
issue 4(87)
103-118
EN
The article discusses selected questions relating to prohibition of holding of several offices at the same time ('incompatibilitas') and undertaking of particular activity by persons performing public functions. The Constitution of 1997 takes different approaches to this issue. The differences concern both subjective aspects (i.e. persons and positions subject to such prohibition) and objective ones (i.e. the content of such prohibitions). Sometimes, the Constitution itself imposes the limitations on incompatibility of positions and activities taken by persons performing public functions. (e.g. in Article 209 paragraph 2). It also allows the legislator to elaborate and extend that catalogue. Incompatibility rules play the role of guarantor and are designed to secure proper functioning of public institutions. Nevertheless, at the same time, they constitute limitation on the rights of the individual. Therefore, the principle of 'incompatibilitas' should be harmonised with the freedoms and rights of persons and citizens. The author examines legal solutions and problems which appeared in the practice of their application. He also discusses the jurisprudence of the Constitutional Tribunal concerning the issue, as well as the views of the study of law in this respect.
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THE ISSUE OF INCOMAPATIBLITY OF THE REPRESENTATIVE MANDATE IN OPINIONS OF THE BUREAU OF RESEARCH OF THE CHANCELLERY OF THE SEJM

80%
Cieslik Z.
Przegląd Sejmowy
|
2008
|
issue 4(87)
135-147
EN
Opinions on the issue of incompatibility are prepared by the Bureau of Research of the Chancellery of the Sejm, directly or through its agency, within the framework of consultative tasks specified in the rules of procedure of the Sejm. Usually, they are produced in the first months of the term of office of the Sejm and are connected with the exercise by the Marshal [Speaker] of the Sejm of his power to pronounce the expiry of the mandate due to the holding by the Deputy of a position subject to incompatibility. The author attempts to sum up the previous results of work of the Bureau of Research of the Chancellery of the Sejm in this field and to indicate main legal problems addressed in the opinions concerning the issue. From an analysis of these opinions it follows that major difficulties relate, firstly, to relations between the notion of 'employment' used in Article 103(1) 'in fine' of the Constitution and 'performance of work on the basis of labour relationship' used in Article 30(1) of the Act on the Exercise of the Mandate of a Deputy or Senator and, secondly, the interpretation of the notions of state and local government administration in Article 30(1) of the Act on the Exercise of the Mandate of a Deputy or Senator. It turns out that the authors of opinions present various solutions of the above-mentioned problems and often their opinions contain totally different conclusions. Taking into consideration their doubts about interpretation of these notions, it is possible to identify prevailing views. A survey of the opinions leads to the conclusion that arising doubts tend to be resolved in favour of incompatibility. Such judgements, as a rule, are justified by the aim of the institution, its guarantee function. The connection between incompatibility and the principle of separation and balance of powers is also pointed out. The authors of the opinions who present different (narrower) approaches do not agree as to the criterion which justifies a more narrow of the notions in the normative context. The results of the survey confirm critical views of the theory concerning the existing regulation on incompatibility of the mandate of a Deputy. The notions and wording used are ambiguous to the extent that it endangers the principle of legal certainty. The proposal to amend the Act on the Exercise of the Mandate of a Deputy or Senator, offered by legal theorists is reasonable.
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