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  1. 1 Rejent

  2. 1 Studia Prawnicze

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  1. 2 Domański M.

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  1. 1 2024

  2. 1 2013

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1

Odrzucenie i przyjęcie spadku w imieniu małoletniego dziecka po nowelizacji z 28.07.2023 r.

100%
Domański M.
Rejent
|
2024
|
issue 4 (396)
44-77
EN
The act of July 28, 2023, which came into force on November 15, 2023, amended the regulation of re-jection, and to a narrower extent, acceptance of an inheritance made on behalf of a minor child by the parents. The amended Article 101 § 4 of the Polish Family and Guardianship Code introduced a previously unknown mechanism that allows an act beyond the scope of ordinary administration of the child’s property in the form of rejection of the inheritance by the parents without the need for court au-thorization. This possibility was made conditional on several conditions: prior rejection of the inheritan-ce by a parent, resulting in the child’s inhe-ritance, a declaration by both parents who have parental au-thority over the administration of the child’s estate, and rejection of the inheritance by other descen-dants of the child’s parents. The mentioned conditions were subjected to an in-depth analysis in the ar-ticle. Modifications were also presented regarding the manner in which the declaration of acceptance or rejection of the inheritance is made by a parent acting on behalf of the child (Article 640 et seq. of the Polish Civil Procedure Code), including the expansion of the cognition of the inheritance court to inc-lude the issuance of permits for the acceptance and rejection of the inheritance by parents on behalf of the child (Article 101 § 3 of the Polish Family and Guardianship Code and 6401 of the Polish Civil Procedure Code).
2

Contracting Marriage by Persons with Intellectual and Mental Disabilities according to Polish Law and the Convention on the Rights of Persons with Disabilities

100%
Domański M.
Studia Prawnicze
|
2013
|
issue 2 (194)
47-62
EN
According to Polish legal system it is not possible for persons affected by "mental illness" or "mental retardation" to marry (article 12 Family and Guardianship Code). As an exception to this rule, the Court may authorize the conclusion of such marriage, if the person’s condition does not put "marriage" or "the future health of the offspring" in hazard. This adjustment was justified by the traditional understanding of the principle of the protection of marriage and family, concern about the lack of "capability" of the patient to meet one's marriage commitments, the recognition of lack of parental competences in people with mental disabilities and mental illness, and the danger of "transferring" the illness to the children of parents. Acts of international law provide for a different design, accenting the right to marry and to found a family (article 12 European Convention on Human Rights). For people with disabilities, article 23 of the Convention on the Rights of Persons With Disabilities which guarantees the right to marry and to found a family of all persons with disabilities, including mental and intellectual, is of particular importance. The conventional solutions analysis leads to the conclusion that not only the current article 12 Family and Guardianship Code is contrary to the Convention but to establish similar restrictions based on the health status of the betrothed could be regarded as discriminatory and contrary to the Convention. It should be noted that the progressive interpretation of the Convention on the Rights of Persons with Disabilities can lead to conflicts between solutions of the act of international law and the national rules of family law which are based on the traditionally understood principles of the protection of the family and child welfare. It is therefore necessary to find solutions and develop compromise in the process of adaptation of Polish law to the requirements of conventional solutions.
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