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1

Przesłanki historyczne ujednolicania prawa własności w Unii Europejskiej

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Woźniak B.
Studia Iuridica
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2014
|
vol. 59
285-326
EN
Ownership is a central institution of private law and the core of property law. It is usually treated as strictly national area which has been hardly influenced by the process of harmonization. However, the Europeanization of other areas of private law requires creation of common proprietary rights, including ownership. Crucial differences in the concept of ownership exist between civil law, based on the Roman legal tradition, and common law with its medieval roots. Roman ownership was the most comprehensive right from which simple rights (to use, to dispose, to possess) descend. In contrast to common law, classical Roman law refused temporary ownership or split title. These functions were fulfilled by well-developed limited proprietary rights, strictly separated from ownership. Ownership was usually omitted in the process of harmonization of European private laws. One of the few examples of projects to unify ownership to some extent was presented in the Draft Common Frame of Reference – a private study on European civil code. The DCFR did not answer directly the question which concept of ownership should be adopted in the common European law of the future. Numerous references to Roman law indicate, however, that the authors of the DCFR included Roman legal tradition in their studies and, as regards the ownership right, they preferred continental solutions to the approach of the English common law.
2

Mechanizm przeciwdziałania antyspołecznemu zachowaniu uczestników obrotu w obowiązującym ustawodawstwie cywilnym

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Yatsenko T.
Studia Iuridica
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2014
|
vol. 58
277-290
EN
In the article historical conditions of formation of a category „antisocial” in civil law are analyzed. The existence of the general prohibition of antisocial behavior in the Russian civil legislation, ensue from the content of the legal relationship between the state and the legally capable person, is proved. The content of civil law’s mechanism of prevention and suppression of anti-social activity of the participants of turnover is considered.
3

Profesor na Uniwersytecie Cesarskim w Warszawie V. A. Savalsky

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Ivannikow I.
Studia Iuridica
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2014
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vol. 59
141-148
XX
In the article, on the basis of archival data of the state archive of the city of Warsaw and unknown to the Russian reader works (“State law. General and Russian” ‒ parts I Warsaw 1912, and part II – Warsaw 1913) the author sets out a creative way as well as the doctrine of the state and the law of the forgotten Russian philosopher of the early twentieth century V. A. Savalsky (В. А. Савальский) – the first person in Russia who wrote a work on the philosophy of Marburg School of Law.
4

Pojęcie nieruchomości w orzecznictwie sądowym

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Niewiadomski A.
Studia Iuridica
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2014
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vol. 58
215-228
EN
In the modern law concept of real estate is interpreted differently depending on the scope of regulation act, in which it is contained. The article presents various judicial interpretations refer to the concept of property development, which constitutes a development of the basic meanings of this concept in Polish law. The catalog of decisions is illustrative and it should indicate the role of language interpretation in the process of subsumption and flexibility in expanding legal definitions in court decisions. The assessment of this phenomenon is not easy unambiguous, because on the one hand causes legal uncertainty, through the various possibilities of interpretation of this definition, on the other hand it allows you adapting law to the rapidly changing economic and technical capabilities. Presented decision allows conclusion that there was a great number of interpretations of the concept of real estate in Polish law.
5

Informatyka prawnicza a argumentacja prawnicza

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Lewandowski S.
Studia Iuridica
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2014
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vol. 59
205-216
EN
Although legal informatics and legal argumentation do not belong to the latest topics in the Polish literature, they are rarely discussed together. Prima facie, it may seem that these fields are considerably different from each other, have little in common and even to some degree are competitive against each other. Argumentation is associated with justification, giving the answer to the question “why?”, whereas informatics is perceived as the expression of strict and condensed knowledge. A computer solution resembles a mathematical result obtained after entering the data while the world of law is not a mathematical model. A slightly deeper analysis of the subjects of research, goals and tasks which legal informatics and legal argumentation have to face shows that these disciplines, when skillfully used, may give each other wide support. Legal informatics may provide and frequently does provide far-reaching assistance in finding and gathering arguments. On the other hand, argumentation protects against mechanical and uncritical use of the achievements of legal informatics.
6

Obszary wolne od GMO w Polsce

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Gała P.
Studia Iuridica
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2014
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vol. 59
59-70
EN
The matter of admissibility of broadly defined application of genetically modified organisms raises many controversies in Poland. At the same time, in default of substantial content-related public debate, many myths, ambiguities and misgivings have arisen about the issue. In the European and Polish law, a lack of regulations defines expressis verbis the concept of “GMO-free regions”. But, it appears that it is of various meanings. Sensu stricto, “GMO-free regions” would cover a definite territory within which genetically modified organisms are not generated purposely for deliberate release to the environment. The broad meaning of “GMO-free regions” would cover a territory within which genetically modified organisms are not only not generated in order to be deliberately released to the environment, but their closed use, placing on the market or processing are also prohibited. The analysis of the applicable legislation indicates to the fact that Poland has not established outright and directly such regions, in particular concerning: deliberate use of genetically modified organisms within the territory of the Republic of Poland, deliberate release of genetically modified organisms into the environment and placing GM products on the market. The different situation appears in the case of admissibility of cultivation of genetically modified plant varieties within the territory of the Republic of Poland. In this case, in point of fact, Poland has become “GMO-free region”. The restrictions provided with regard to this issue have already had no primary defect in a form of their clear inconsistency with the law of the European Union, as they are not of global nature. However, still open to question is whether the reasons indicated by the Polish legislator in favour of restriction to market seed of particular genetically modified plants within the territory of the Republic of Poland can be contained in admissible limits under the protective clauses of Directive 2001/18/EC of the European Parliament and the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Directive 90/220/EEC of the Council and Directive 2002/53/EC of the Council of 13 June 2002 on the common catalogue of varieties of agricultural plant species. It may raise some doubts especially after the reading of argumentations of regulation drafts specified above, which in large degree are based on the scientific argumentation of the Republic of Hungary and the Republic of Austria, however not supported by specific domestic scientific researches.
7

Stopień zawinienia jako przesłanka wymiaru kary pieniężnej

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Wojciechowski P.
Studia Iuridica
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2014
|
vol. 58
261-276
EN
During the past decade a shift has occurred, in place of criminal liability is introduced administrative liability based on repressive sanctions in form of administrative fines (financial penalties). Apart from the issue of the legal nature of the administrative fines and conditions of imposing them, an important problem which so far has not been widely analyzed in the literature are circumstances that should be taken into account by the authority in determining the amount of the administrative fine. The Article analyses on one of those circumstances, ie the degree of culpability. Taking into account that administrative fines may be imposed on both individuals and other entities, the author suggests that the assessment of the degree of culpability can not based on guilt as defined in criminal law, which would lead to a breach of the principle of equality under the law of entities engaged in the same activity but in different legal forms, but should based on concept of organizational fault. The article points out that in assessing of culpability should be primarily taking into account the quality management systems used by sanctioned entities, which becomes significantly improved the function of the administrative fines, especially the preventive.
8

Pożyczka morska w zachodniej tradycji prawnej

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Blicharz G.
Studia Iuridica
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2014
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vol. 58
9-30
EN
Researches on the sea loan in Roman law have led to the question of its fate in the western legal tradition, and its actuality for the legal science. Following the history of pecunia traiecticia from medieval times until the nineteenth century, it is fair to talk about the creation of a common framework of sea loan, which, in practice, completely relied on the achievements of Roman legal thought. Ancient heritage is evident from the name itself. Fenus nauticum, sometimes written foenus nauticum, pecunia traiecticia and even usura maritima were constantly present in glosses, commentaries and textbooks of ius civile and common law. They remained in legal science, even if much more popular have become a contract of insurance, bottomry loan or respondentia, different types of contracts that aimed to be a continuation of ancient sea loan. With the full awareness legal tradition preserved sea loan and in order to provide the dogmatic distinction, it found new names for other similiar but not the same contracts. For historical and comparative legal perspective, much more important, however, is the influence of the Roman conceptual framework on the structure of sea loan itself. Undoubtedly, the greatest hero of these ages has been the expression pretium periculi. Together with another ancient formulation si modo in aleae speciem non cadat, they were constant points of reference in the legal tradition. It turns out that not only the Romans feared that the sea loan does not become an convenient opportunity for speculation, or maybe even a way to circumvent the limits for interest. Gregory IX, decretalists, representatives of the usus modernus, nineteenth-century French doctrine and finally jurisprudence and doctrine of English and American common law, emphasized that such an agreement is binding on the parties in so far as it is circumvention of interest or „pure gambling”. In this form sea loan remained an important solution in the western legal tradition that has preserved its autonomy in relation to other types of contracts until the end of the nineteenth century.
9

Dziennikarski obowiązek zachowania szczególnej staranności i rzetelności przy zbieraniu i wykorzystaniu materiałów prasowych

100%
Jaworski L.
Studia Iuridica
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2014
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vol. 59
149-168
EN
A journalist while conducting his/her job has certain rights and prerogatives in the process of mass communication. They are, however, connected with certain obligations and responsibilities. The press must present events factually and a journalist’s work must meet specific standards. One of them is the obligation to observe due diligence and reliability while collecting and using press materials, especially checking the truthfulness of information obtained or naming its source. The notion of a journalist’s diligence has not been defined in the press law. Therefore, attempting to define it on the grounds of the press law, it is necessary to resort to other laws, works of literature as well as the case law, which is abundant in this matter. The difference between the requirement of due diligence from journalists and expectations from other professions comes from the fact that more is expected from journalists than just professionalism and following professional procedures. It is important not to be just professionally skillful, looking for sensation, tracking wrongdoings, but also to be able to see all sides of the story and to write in a truthful and reliable way. Due diligence is a special skill, therefore the work of a journalist should be also particularly, extraordinarily diligent. Apart from the requirement of due diligence, the legislators expect reliability from journalists. It has to be noted that the term ‘diligence’ refers mainly to the intellectual parameters of quantity, while ‘reliability’ refers to the intellectual parameters of quality of the written work. Both requirements, however, are mutually complimentary and both form a holistic aspect of fulfilling a journalist’s obligation while collecting and using materials. The issues connected with protecting personal rights of informants and other persons are not the subject of this publication; however, it is not possible to ignore them completely, as they are closely connected with the regulation described in the paper, affecting the assessment of a journalist’s behaviour in the context of breaching those rights, in the light of both civil as well as criminal law.
10

Ochrona gruntów rolnych na obszarach realizacji inwestycji przeciwpowodziowych – wybrane zagadnienia prawne

100%
Stańko M.
Studia Iuridica
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2014
|
vol. 59
263-274
EN
Widespreading floods for many years call for undertaking a numer of prevention measures. It is also necessary to create new legal instruments enabling faster reaction to occuring disasters. The problems were reflected at the European Union level which was expressed in the Directive 2007/60/WE of the European Parliament and Council of 23 October 2007 on flood risk assessment and management. The expression of legislative work at the domestic level is, among others, the Act of 8 July 2010 on special principles of preparation of investments within the scope of flood constructions. Against the background of the act a problem has occurred whether within the framework of undertaken construction processes, which are often implemented on agricultural areas, the issue of land protection has been pushed aside or generally stopped being of crucial, if any, importance. The problem is the subject matter of considerations of the article. The considerations resulted in drawing some conclusions and enabled to put forward some demands on the legislature.
11

Wynagrodzenie mediatora w sprawach cywilnych

100%
Czepik A.
Studia Iuridica
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2014
|
vol. 58
65-82
EN
Salary of mediator in the mediation contract is usually indicated in its content and is the result of mutual agreement of parties of the dispute with a neutral third party. While in mediation led by order of the court is regulated by Ordinance of the Minister of Justice on wages and reimbursable expenses of a mediator in civil proceedings on 30.11.2005. It is advisable to change this legislation towards aligning mediator charges to market realities. The legislator should also introduce legislation amendments to exempt parties from the costs of the mediation, which they can not bear. Lowering costs of mediation may occur by more frequent use of means of distance communication. But it must be remembered that mediation might be less expensive alternative to the administration of justice, but only if it is used in cases where there is a real chance for an amicable solution of the dispute.
12

Sprawozdanie z IV Konferencji Europejskiego Stowarzyszenia Prawa Zdrowia na temat Bezpieczeństwa Pacjentów (9–11 października 2013 roku, Coimbra, Portugalia)

100%
Sarnacka E., Kapelańska-Pręgowska J., Syroka-Marczewska K., Jacek A.
Studia Iuridica
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2014
|
vol. 58
301-322
13

Occupatio jako sposób nabycia własności dziko żyjących zwierząt w prawie rzymskim

100%
Benincasa Z.
Studia Iuridica
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2014
|
vol. 59
9-40
EN
The paper discusses the legal questions concerning occupatio as a way of acquiring the ownership of wild animals (ferae bestiae) in Roman law. According to the fundamental principle of ius gentium, wild animals were the property of no one (res nullius) and could be captured by anyone, at which point they became the property of the captor whether captured on his own land or somebody else’s. Thus, the animal captured was deemed to be the property of the captor as long as it remained under his control (custodia). As soon as a wild animal has escaped from the control (custodiam evadere) recovering natural liberty (libertas naturalis), it became res nullius again and belonged to the first person who subsequently caught it. The problems discussed by the Roman jurists focused, first of all, on determining the moment in which a captor acquired the property of a wild animal: whether it became the property of a hunter as a result of having been severely wounded and prosecuted by him, or if it was necessary to actually capture it. The Roman jurists also considered the question of a wild animal caught in a trap. The other issue elaborated by classical jurisprudence was the concept of custodia as a guaranty of keeping ownership of a wild animal and the related concept of natural liberty as a state opposite to custodia, in which a wild animal preserved the status of res nullius and thus could be captured by anyone. According to the evidence given by legal texts, the concept of custodia was interpreted very widely as a possibility to control a wild animal. It referred not only to wild animals kept enclosed, but also to the tame ones (mansuetae) that live in their natural environment but preserved a habit of returning to their owners (consuetudo revertendi). The attention that classical jurisprudence paid to the question of acquiring the property of wild animals indirectly shows that at the end of the republic the profits from hunting and fishing became a conspicuous source of revenue for Roman landowners so they tended to keep to themselves the exclusive right to hunt on their land.
14

Zapewnienie bezpieczeństwa zdrowia człowieka – jeden z priorytetowych kierunków współczesnej polityki karnej Federacji Rosyjskiej

100%
Tishchenko E.
Studia Iuridica
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2014
|
vol. 58
243-260
EN
The question of social determination of legal support of personal health and community health in the context of modern criminal policy of the Russian Federation is given in the article. The author reveals the main directions of national security in health care and the nation’s health in the Russian Federation and the role of the criminal justice response.
15

Transfer tradycji. Zmiany prawa na Bałkanach

100%
Giaro T.
Studia Iuridica
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2014
|
vol. 58
95-104
EN
Not all legal traditions display necessarily the same linear stability as the western tradition in its central sector. For instance the Balkans, which are now generally considered to form a sub-tradition of the western one, were originally subjected to the Byzantine influence. Together with the Christianization by the orthodox Church of Byzantium, they received simplified versions of Roman-Byzantine law. However, in the middle of the 15th century the Ottoman conquest of the Balkans brought the Byzantine millennium to an end. This conquest could not force the Muslim law upon the Balkan population, which in great prevalence retained its Christian faith, but on the other hand it did isolate the region for centuries from any western influence. The gradual retreat of the Ottomans occurred only during the 19th century. From this moment on, the original legal systems of the Balkans, which were mummified under the Ottoman occupation, revealed themselves unsuitable for the needs of capitalist economy. It is the reason why in the Balkan countries during the 19th century, alongside with the expansion of capitalism, the massive reception of western codifications and constitutions took place.
16

Administracyjnoprawna kontrola w rolnictwie w prawie krajowym i unijnym

100%
Niewiadomski A., Czechowski P.
Studia Iuridica
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2014
|
vol. 58
45-64
EN
The article discusses selected issues of administrative control in agricultural law. It points out the basic characteristics which define the distinctive administrative control. It discusses administrative control regulations on selected examples, which exist in the European agricultural law, and its impact on national law regulations. The article points out the new type of administrative control comprising the step of reporting, monitoring and evaluation. Possible solutions de lege lata and de lege ferenda have been indicated. In the article an analysis of selected issues of administrative control in the national agricultural law has been done. Additionally, the problems of external control over the administration, with particular attention to monitoring standards, was discussed. Existing regulations concerning the inneradministrative controlon under the example of the Nature Conservation Act, agencies and agricultural inspection have been discussed. In the conclusions an assessment of the current state of administrative control in agricultural law has been done.
17

Kształcenie prawników dla Europy. Droga niemieckiego nauczania prawa od narodowego prawnika sądowego do europejskiego menadżera prawnego

100%
Martinek M.
Studia Iuridica
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2014
|
vol. 58
181-202
EN
The author describes and comments on the already visible change of the legal education in Europe, particularly in Germany. The new role model aims at an „European Jurist” in terms of a cosmopolitan manager of legal services who masters three languages (English, German, French), studied at least one year abroad and prefers to become a practicing lawyer rather than a judge. The „European Jurist” has been trained in the essentials of law per se and in the legal solution of problems, not in the positivistic details and doctrinal intricacies of a national legal order. He or she represents a new mode of jurisprudential intellectuality and, at the same time, of skillful capability to solving problems in the modern European society, economy and political-administrative system. Rather than the law of the European Union, the „European jurist” is familiar with „European law” in terms of the different legal systems in the European member states. He or she truly understands the similarities, differences and the specialties of the legal systems in the member states, is aware of their historic roots and combines an excellent comprehension of comparative jurisprudence with the practical application of law and with the omnipotent ability of problem solving. Therefore, he or she is superior to the „classical” German jurists of previous generations who have been trained in the traditional German extra way. This traditional extra way is based on a state-organized and state-controlled juridical education. Its role model is a law student who wants to become a Judge or at least plans to work for the government. The old way, which is still lingering on in some respects, wants to create „Generalists” in terms of „unitary jurists” (Einheitsjuristen) instead of specialists in different fields of law. This special path was developed in Prussia in the 19th century. It consists of a dualistic method of training future jurists: At first they study the theoretical and doctrinal issues of academic jurisprudence at law departments of universities before they enter a legal apprenticeship (Referendariat) to familiarize themselves with the practical challenges of the living law and of everyday lawyering. Notwithstanding some hesitant modernizations in the legal education (like a more lawyer-oriented „Referendariat”, courses in foreign legal terminology, communicative soft skills, choice of specialization in the universities), the German legal education still adhered, until recently, to the traditional goals and methods. The author recapitulates the history of the German legal education up to the recent Bologna-debate. He points out that an enhanced internationalization and amplified Europeanization is already on its most promising way. The traditional German legal education is a phenomenon of the past; the future belongs to the „European-Jurist” in terms of a cosmopolitan manager of legal services.
18

Koncepcje ustrojowo-polityczne izby drugiej obozu piłsudczykowskiego po przewrocie majowym

100%
Kowalski W.
Studia Iuridica
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2014
|
vol. 59
177-194
EN
The aim of this article is to briefly outline the process of crystallization of the system concept within the scope of Sanation concerning the range of the second chamber of parliament. As to a broad overview connected with coming into being and shaping of the April Constitution, the subject matter of many monographs, relatively less known, are the works and constitutional achievements of the Pilsudskite camp at the end of the 1920s and the beginning of the 1930s. In this article the system views of the Pilsudskites are a subject of an analysis; it is clearly stated that the lack of programme principles as well as clear and cogent constitutional aims concerned also the sphere of shape and competence of the Senate. It is also indicated that the constitutional survey conducted in the summer of 1928 was the first attempt of working out one’s own concept among Józef Pilsudski’s associates concerning the shape of future of the second legislative house. In the study the views of the participants of the constitutional survey were analysed, from which it appears that most of the proposed regulations assumed increasing the political position of the second house of parliament. It was pointed out that valuable and interesting survey achievements, allowed in 1928, thus seven years before coming into force of the April Constitution, to discern the first outlines of concepts supposed to guarantee essential reinforcement of the constitutional position of President, particularly in connection with the role of the second chamber of the legislature.
19

Preasumptiones iuris tantum w ujęciu logicznym

100%
Malinowski A.
Studia Iuridica
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2014
|
vol. 58
167-180
EN
This article studies the formal models of rebuttable presumption built using a conceptual apparatus of a monotone logic. The paper presents its own project model using a strict implication in conjunction with the notation of a first-order predicate logic and a sentence logic. The presumption is modeled as a normative criterion for the Court to determine the validity of an unacknowledged descriptive sentence. Moreover other selected formal models of rebuttable presumption are discussed.
20

Ramy prawne satyry.

100%
Gołda-Sobczak M.
Studia Iuridica
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2014
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vol. 59
71-94
XX
Although satirical works by their nature are one of the literary genres and artistic creations, the satire framework is introduced by law. The first regulations on this subject can be found in Poland in the period of the Republic of Nobles. During the Partitions of Poland the responsibility for the publication of a satirical work was associated with the liability for defamation or possibly for an insult. The Criminal Code of 1932 and later the Criminal Code of 1969 were heading towards this conviction. The censorship was an effective barrier to political satire. For a long time there were no specific differences between a defaming satirical piece of work and a scientific, artistic or derived from political beliefs criticism that is defamatory in its content. The freedom of criticism is part of the freedom of speech and is considered to be a circumstance repealing liability (Article 41 of the Press Law). The negative reviews of scientific and academic works or other creative, professional or public activity are used as implementation of tasks of the press defined in the Article 1 of the Press Law and, therefore, these reviews are protected by law. This principle, by the Article 54b of the Press Law, was extended to all messages of the critical character. Although a satire authorizes the use of stricter measures of literary expression, it does not allow the breach of other people’s personal rights. A satire – as noted by the Supreme Court – cannot exceed the barrier beyond which a sphere of personal rights protected by law is located.
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