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DEFINICJA ZABYTKU NIERUCHOMEGO W PRAWIE POLSKIM I FRANCUSKIM

100%

Drela M.

Ochrona Zabytków

2008

issue 1

111-118

The term 'historical monument' appeared in the vernacular, but has numerous designates since a characteristic feature of the vernacular is the spontaneous emergence of concepts, without the necessity of their rigid systematisation. Defining an immobile historical monument for the purposes of the application of the law calls for resorting to suitable regulations foreseen in the statute of 23 July 2003 on the protection of historical monuments, the regulations of the statute of 21 August 2007 on real estate administration, and the civil code. The aforementioned regulations state that an immobile historical monument can denote real estate as a whole, its component or real estate complexes. An immobile monument can also designate space historically shaped due to man's activity, containing the products of civilisation and natural elements (the cultural landscape), while protection foreseen for immobile monuments may encompass also their surrounding. French law does not have a special statute formulating a definition of the historical monument. Book VI of 'Code du patrimonie', in force since 2004, concerns historical monuments and contains separate regulations on immobile and mobile monuments, presented in distinct sections. Immobile monuments are divided into two groups, but affiliation is based on a formal criterion of inclusion in a suitable register. The text of the statute does not define the nature of a monument and merely describes which real estate can be registered as historical monuments, and which - placed on a supplementary list (literally known as an additional inventory). The difference between classified (i. e. registered) monuments and listed ones relates to the range of state intervention and the scope of subsidizing the construction work conducted in the case of such monuments. France is familiar also with the concept of the natural monument, whose legal status is defined by the regulations of 'Code de l'environnement'. Both types of immobile monuments can be subjected to the procedure of view protection, which either coincides with work on the registration (or the list) or is performed later. In Poland and France conservation authorities deciding on the historical character of real estate or the need to protect an immobile monument, act independently of the decisions of spatial development plans.

NIERUCHOMOŚCI ZABYTKOWE W ROZUMIENIU USTAWOWYM

80%

Sławomirska A.

Ochrona Zabytków

2004

issue 3-4

200-208

In the wake of a lengthy discussion, on 23 July 2003 the Polish Sejm (Parliament) passed a statute based on a government project. Dealing with the protection and custody of monuments, it replaced the statute of 15 February 1962 on the protection of cultural property, becoming the first legal act to interpret the protection of historical monuments in Poland in a complex manner, and to comprise a foundation for pertinent legal regulations. The statute of 1962 was not adapted to the contemporary legal turnover, and contained numerous indefinite concepts; it also lacked certain fundamental definitions, such as that of historical real estate. The legislator distinguished duties encumbering public administration organs and the owners of historical monuments by employing two distinct concepts : “protection” and “custody”, which have been accurately defined. In comparison with the previous statute, the new legal act identified the object of protection and custody by dividing all historical monuments into immobile, portable, and archaeological. Furthermore, the legislator had expanded the object of protection by including non-material property, thus deciding that protection may encompass also the geographic, historical or traditional names of a building, a square, a street, or a settlement unit. The statute of 2003 rendered more precise principles concerning the inclusion and elimination of real estate in a register of historical monuments; it also contains a legal definition of the historical monument, including the immobile monument, the first such distinctness to appear in Polish legislation. In contrast to the previous statute, the new act has expanded the range of subjects which could be obligated to conduct conservation and are conceived as an objective element, essential in a sales contract, exchange, or lease of real estate listed in the register and constituting property of the State Treasury or a territorial self-government unit.The owners of historical real estate or real estate possessing the features of a historical monument have received new privileges, including the right to compensation for eventual losses incurred as a result of research involving the objects, based on principles defined in the civil code. The duties of the possessors of historical real estate, which stem from the contents of statute regulations about the protection and custody of monuments, basically do not differ from those which had been formulated upon the basis of the regulations of the previous statute. Greater sanctions have been imposed as regards neglect of the majority of those obligations. The most severe penalty is foreseen in article 108, excerpt 1, according to which all those who have destroyed or damaged a historical monument face imprisonment from three months to five years. On the other hand, article 100 introduces penal liability for the owners of those historical monument which have not been suitably protected against damage, destruction, loss or theft.

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2 Ochrona Zabytków

1 2008

1 2004

1 Drela M.

1 Sławomirska A.

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DEFINICJA ZABYTKU NIERUCHOMEGO W PRAWIE POLSKIM I FRANCUSKIM

NIERUCHOMOŚCI ZABYTKOWE W ROZUMIENIU USTAWOWYM