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1
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Protest wyborczy w wyborach parlamentarnych

100%
Banaszak B.
Przegląd Sejmowy
|
2014
|
issue 1(120)
49-62
EN
Election protest is one of the institutions enabling the review of validity of elections. It is associated with judicial verifi cation. The Constitution does not regulate electoral protests, delegating that task to the legislature. Provisions governing election protests in parliamentary elections are dispersed across the Electoral Code. The Code does not contain specifi c rules regarding the conduct of election protests in elections to the Senate, but is limited to a general referring clause in Article 258, which required application of the provisions governing the validity of elections to the Sejm. The ground of the protest are acts constituting election offense or tort. According to the jurisprudence of the Supreme Court examining the election protests concerning parliamentary elections, any violation of the provisions of the Electoral Code will not necessarily lead to the declaration of invalidity of the election, although any such violation may give rise to election protest. There must be a causal link between the breach of the Electoral Code and the defectiveness of the process of voting and establishing the election results. In judicial practice of the Supreme Court only in a few cases, the allegations raised in election protests are considered to affect the outcomes of elections.
2
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Opinia prawna na temat przedstawionego przez Prezydenta RP projektu ustawy o Trybunale Konstytucyjnym

100%
Banaszak B.
Zeszyty Prawnicze BAS
|
2014
|
issue 1(41)
65-81
EN
The author claims that the adoption of a new Constitutional Tribunal Bill, which better defines its position in the system of government, does not solve all the problems. He believes that the challenges resulting from Poland’s membership in the EU and the experience of the functioning of the Tribunal require the adoption of the Constitutional Tribunal Bill be dependent on the amendment of the Constitution. Changing the Constitution should be the starting point for the comprehensive regulation of the functioning of the Tribunal by statute. In addition, the author points out those articles of the bill that require clarification, reformulation or raise substantive or legislative doubts.
3
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Unia Europejska jako wspólnota wartości

100%
Banaszak B.
Przegląd Sejmowy
|
2014
|
issue 4(123)
9-22
EN
Any society organized in the from of a state is formed at the basis of certain values common to all its members, or at least to the vast majority of them. This involves exerting infl uence on the sense of identity and continuity of society. EU law emphasizes the role of values as the foundation of the existence of the Union. After the ratifi cation of the Lisbon Treaty there is a growing interest amongst individual countries in common European values. This phenomenon can also be found in Poland and, recently, there have been attempts to describe it. In the practice of the functioning of the EU the question of values plays an increasingly important role, but no mechanisms aimed at ensuring observance of them have been yet developed. The absence of a single system of values underlying the EU identity, both in relation to their detailed list and interpretation, is associated with the ambiguity of the relationship between the system of values protected by EU law and the internal systems of the Member States. This may have two kinds of consequences: either may lead to taking action by the institutions and bodies of the EU in all cases where there is doubt as to entrust the settlement of a case to the national authorities, or — in the event of such doubt — the decision on the case will be, in general, left to the Member State. The fi rst option, which seems more likely, will mean a de facto extension of the EU competences.
4
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Czy Konstytucja Rzeczypospolitej Polskiej wymusza na ustawodawcy ustawową regulację struktury organizacyjnej i właściwości sądów powszechnych?

100%
Banaszak B.
Studia Prawa Publicznego
|
2020
|
issue 3 (31)
119-135
EN
The Constitution of the Republic of Poland does not define in a comprehensive manner the matter to be standardized in laws and grants the legislator considerable freedom in determining their content. In view of the subject matter of this opinion, based on views founded on the doctrine of Polish constitutional law and on the jurisprudence of the Constitutional Tribunal and the Supreme Court, it can be concluded that the legislator should regulate by law, among other matters, the following matters reserved for statutory regulation (the principle of exclusivity of the act): regulations concerning citizenship and the rights, freedoms and duties of the individual, as well as the basic competences, principles of how public authorities are organised and function. On the basis of this assumption, it was examined whether there is any indication to the legislator from the constitutional norms relevant to the judicial authority. The following were taken into account: the right to a fair trial (Article 45), the principle of the separateness and independence of the judiciary (Article 173), the principle of bi-instantiality of court proceedings and the principle of statutory determination of the system and jurisdiction of courts (Article 176), the principle of the presumption of competence being assigned to common courts (Article 177), and the principle of the non-removability and non-transferability of judges (Article 180). On the basis of an analysis of these constitutional norms, it was concluded that the Constitution of the Republic of Poland enforces statutory regulation of the organisational structure and the material, local and appeal jurisdiction of common courts, and only allows for entrusting specific matters to be regulated by executive bodies by means of a regulation. In the event of any doubts as to whether a given case should be classified into the category of specific matters, the principle of exclusivity of the Act applies.
5
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Opinia prawna w sprawie zgodności z Konstytucją RP projektu rozporządzenia Parlamentu Europejskiego i Rady w sprawie badań klinicznych produktów leczniczych stosowanych u ludzi

100%
Banaszak B.
Zeszyty Prawnicze BAS
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2012
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issue 4(36)
107-117
EN
The purpose of the opinion is not to examine thoroughly the proposal for a regulation but only to assess the legal basis for its issue, and to provide an analysis of those provisions of the proposal that may raise doubts about their conformity with the Constitution of the Republic of Poland. The main conclusions of the opinion relate to the lack of grounds for delegation by the Republic of Poland to the bodies of the European Union of the competence to regulate the issue of clinical trials on medicinal products for human use under primary law of the EU. Such delegation would infringe Article 90(1) of the Constitution. The author claims that the time limits specified in the proposal for regulation for action of the State make it impossible for Polish public authorities to implement obligations resulting from the preamble to the Constitution and their duties relating to protection of individual’s rights referred to in its Article 30.
6
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Uwagi o zgodności z konstytucją znowelizowanego prawa o ustroju sądów powszechnych

100%
Banaszak B.
Przegląd Sejmowy
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2012
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issue 5(112)
67-87
EN
The Act of 2001 – Law on the System of Common Courts was amended in 2011, introducing a number of significant changes in the rules of the system. It introduces changes in the model of administrative supervision over the administrative work of courts, introduces new regulations for the organisation of courts, court authorities, corporations of judges, the status of a judge and appointment for the office of a judge. New regulations also relate to regular evaluation of the performance of judges and their disciplinary responsibility and change the provisions concerning law clerks and judge’s assistants. As a result of amendments, only about 1/3 of the original text from 2001 has remained in its current text. In this situation, a new law should have been enacted, as its lack infringes the principle of proper legislation derived from the principle of the democratic state ruled by law established in Article 2 of the Constitution. In the author’s view, supervision of the courts by the Minister of Justice, which steps into the realm of judicial independence and interferes in the process of judicial adjudication, is unconstitutional, so is the monitoring carried out on the basis of vague legal provisions. The same applies to the new system of job evaluation and career planning of judges. Moreover, new provisions granting judges’ corporations only consultative powers are also unconstitutional.
7
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Functioning of the administrative judiciary in Poland facing the problems of the contemporary society – selected problems

63%
Banaszak B., Wygoda K.
Studia Iuridica Lublinensia
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2014
|
vol. 22
EN
The notion of the judicial control of administration exercised by specially designated authorities has been present in Poland for a long time. The first proposals in this area appeared as early as 1807, and were implemented on the basis of the French practice. In the years 1922–1939 there existed the Supreme Administrative Court, which determined the lawfulness of decisions and orders by public administration bodies in cases of breaches of particular rights or the imposion of duties without any legal grounds. It functioned as a court of appeal. After 1944 the administrative judicial system was dissolved. The solutions based on the three principal characteristics of administrative judicial system, i.e. the separation from common courts, the existence of a system of administrative courts, and the independence of their judges, were re-established in 1980. Also, a separate judicial authority was restored, referred to as the Chief Administrative Court, operating as a court of appeal with general material jurisdiction covering administrative decisions and cases of the inaction of administrative authorities despite their duty to issue such decisions. The scope of cognition of the Chief Administrative Court was gradually extending, and in 2004 a two-level model of the administrative judicial system was established, operating on an appeal basis. This model sparks off many controversies as to its practical application. The lengthiness of its proceedings is another problem of the Polish administrative judicial system.
PL
Artykuł nie zawiera abstraktu w języku polskim
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