scholarly journals Instrumentalne wykorzystywanie władzy sędziowskiej po wyroku TSUE – wieloaspektowa analiza legalnej korupcji

2020 ◽  
pp. 107-160
Author(s):  
Waldemar Walczak
Keyword(s):  
Supreme Court ◽  
Point Of View ◽  
Equal Treatment ◽  
Public Authorities ◽  
State Institutions ◽  
Personnel Decisions ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
Legal Position ◽  
The Right

The article presents considerations and multifaceted analyses of the conditions and motives of judicial decisions taken after the judgment of the TSUE 19 November 2019, in the context of how Poland’s judiciary system functions. It begins by explaining how to perceive and understand the essence of legal corruption in terms of the use of law, power and professional position. The possibilities of the intentional use of judicial power for specific needs and purposes is discussed in this context. The next part of the paper is devoted to a critical analysis of selectively interpreted right to a tribunal enshrined in art. 45 of the Polish Constitution in connection with other values enshrined therein. The right of every citizen to a fair and public hearing of their case, without undue delay by a competent, independent, impartial and independent court, is presented in terms of the constitutional perspective, the principle of equal treatment and non-discrimination. The problem outlined here is considered from the point of view of protection against the arbitrariness of authorities and the possibility of appealing against personnel decisions enabling employment to be taken up in selected positions in state institutions. Attention is paid to the privileged legal position of judges over other citizens. The issues described and the arguments presented in this article are entirely overlooked in the literature, as well as in public debate. What follows is an explanation of how TSUE rulings are interpreted differently by various public authorities. Reference is also made to the dictum of the Supreme Court judgment of 5 December 2019, which was issued in its Labour Law and Social Security Chamber. That process initiated specific actions and activities taken by individual groups of Supreme Court judges. Finally, the resolution of the combined three chambers of the Supreme Court on 23 January 2020, the judgment of the Constitutional Tribunal of 20 April 2020, and divergent decisions regarding the implementation of the TSUE’s position of 8 April 2020 are discussed.

scholarly journals Pravni položaj poštenog i nepoštenog posjednika u odnosu na vlasnika stvari

2017 ◽  
Vol 38 (1) ◽  
pp. 527-543
Author(s):  
Jadranko Jug
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Basic Method ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
Legal Position ◽  
The Republic ◽  
Basic Characteristics ◽  
The Right

This paper deals with the problems related to the legal position of honest and dishonest possessors in relation to the owner of things, that is, it analyses the rights belonging to the possessors of things and the demands that possessors may require from the owners of things to whom the possessors must submit those things. Also, in contrast, the rights and requirements are analysed of the owners of things in relation to honest and dishonest possessors. In practice, a dilemma arises in defi ning the essential and benefi cial expenditure incurred by honest possessors, what the presumptions are for and until when the right of retention may be exercised for the sake of remuneration of that expenditure, when the statute of limitations expires on that claim, and the signifi cance of the provisions of the Civil Obligations Act in relation to unjust enrichment, management without mandate and the right of retention, and which provisions regulate these or similar issues. The answers to some of these dilemmas have been provided in case law, and therefore the basic method used in the paper was analysis and research of case law, especially decisions by the Supreme Court of the Republic of Croatia. The introduction to the paper provides the basic characteristics of the concept of possession and possession of things, and the type and quality of possession, to provide a basis for the subsequent analysis of the legal position of the possessor of a thing in relation to the owner of that thing.

scholarly journals Rozważania na temat represyjnych i prewencyjnych elementów odpowiedzialności odszkodowawczej na przykładzie instytucji odszkodowania karnego (punitive damages) w świetle orzeczenia Sądu Najwyższego oraz Trybunału Konstytucyjnego

2019 ◽  
pp. 83-100
Author(s):  
Maciej Kochanowski
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Point Of View ◽  
Punitive Damages ◽  
Law System ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
German System ◽  
Polish Law

The verdict of the Supreme Court of 11 October 2013 (fi le I CSK 697/12) and the decision of the Constitutional Tribunal of 25 June 2015 (fi le SK 32/14) are discussed and their signifi cance for the understanding of punitive damages analysed. The main problem discussed in this paper is the question whether there is room under Polish law for punitive damages modelled a common law system and whether the adoption of this solution could possibly infl uence the basic premises constituting the liability for damages already adopted. The main focus has been put on the argumentation of the Supreme Court presented in its verdict regarding the possibility of enforcing by Polish courts a judgment in which a foreign court awarded punitive damages, and the arguments of the Constitutional Tribunal regarding the constitutionality of a legal provision establishing a possibility of fl at-rate damages, being awarded and increased in the event of the determination of guilt by the breaching party. Certain detailed provisions that are contradictory from the point of view of the fundamental assumptions underlying the liability for damages in Polish law and the laws of most European legal systems (and the German system in particular) are also examined. Further, a synthetic analysis of the positive and negative aspects of punitive damages identifi ed by other researchers is presented. This is followed by a mention of other institutions available under Polish law which may constitute an alternative to punitive damages, at least when it comes to the provision of an adequate preventive and punitive measure in the event of gross or culpable damage.

scholarly journals THE ELIMINATION FROM THE RIGHT TO INHERITANCE: THEORY AND PRACTICE

2020 ◽  
pp. 5-9
Author(s):  
M. Bondareva ◽  
S. Rabovska
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Case Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Theory And Practice ◽  
Systematic Analysis ◽  
The Supreme Court ◽  
Legal Position ◽  
The Right

The article deals with the legal regulation for removal from the right to inheritance and law enforcement of the norm of Art. 1224 of the Civil Code of Ukraine. The study aims at developing the theoretical foundations of the application of this legal norm on the basis of analysis of legislation and case law. Such methods and approaches as systematic analysis and competent legal interpretation have been applied. The Civil Code of Ukraine regulates cases and removal of grounds for the right to inheritance. Article 1224 of the Civil Code of Ukraine is applied to heirs at law; it distinguishes cases and grounds for exclusion from the right to inheritance by various criteria. However, what is typical for the countries of the continental group, the law needs to be clarified, first of all at the level of law enforcement practice. The highest jurisdiction of Ukraine – the Supreme Court of Ukraine and the Supreme Court, made appropriate clarifications and interpretations of relevant legal norms at the general theoretical level (decision of the Plenum of the Supreme Court of Ukraine) and at the level of unification of general practice through expressing a legal position in specific cases. Such interpretation should be considered clearly and sufficiently for further processing. However, judicial interpretation is not competent to correct legislative inaccuracies. And the case law itself is characterized by a tautology and inconsistency, when the departure from the previously adopted legal position is disguised under the difference of legal and factual grounds of the claim. The results of such miscalculations include variability of methods of judicial protection for the heirs of the first turn (paragraph 2, part 3 of Article 1224 and part 5 of Article 1224 of the Civil Code of Ukraine) and procedural difficulties in proving claims – proving the testator's helplessness, address need assistance from the defendant, etc. In addition to legal uncertainty, which results in the poor functioning of institutions of exclusion from the right to inherit, this state of affairs creates grounds for abuse of rights. The authors propose measures to solve the problem, which can be divided into several groups. The first concerns amendments to Paragraph 2, Part 3 of Art. 1224 and Part 5 of Art. 1224 of the Civil Code of Ukraine: in terms of the subject composition, in particular, the permission of the heirs of other than the first turn, the order of inheritance, to sue on the basis of Paragraph 2 of part 3 of Article 1224 of the Civil Code of Ukraine. The second is aimed at intensifying the institution provided by Paragraph 2 of Part 3 of Article 1224 of the Civil Code of Ukraine, inter alia, due to the uniformity and consistency of judicial practice. The introduction of the principle of participation in inheritance by bona fide heirs as a reward for their care of the testator, and the relatively easy removal of the right to inherit those who did not show such care, will also contribute to the revival of law enforcement. Finally, the third group of measures is related to the promotion of inheritance through wills, which will limit the number of disputes in inheritance cases (mainly cases of invalidation of the will) and put an end to the issue of exclusion from the right to inherit.

scholarly journals Czy Konstytucja Rzeczypospolitej Polskiej wymusza na ustawodawcy ustawową regulację struktury organizacyjnej i właściwości sądów powszechnych?

2020 ◽  
pp. 119-135
Author(s):  
Bogusław Banaszak
Keyword(s):  
Public Authorities ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
Court Proceedings ◽  
The Republic ◽  
The Individual ◽  
The Right ◽  
And Function ◽  
Statutory Regulation

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.

scholarly journals To the question of the peculiarities of the protection of the rights of spouses in cases of establishing the regime of separate residence of spouses

2021 ◽  
pp. 154-158
Author(s):  
O.А. Oksanyuk
Keyword(s):  
Supreme Court ◽  
Physical Violence ◽  
Scientific Article ◽  
Criminal Cases ◽  
Common Life ◽  
Joint Management ◽  
The Supreme Court ◽  
The Family ◽  
Legal Position ◽  
The Right

In the scientific article the author conducted a scientific study of the peculiarities of protection of property and personal non-property rights of spouses in cases of establishing a regime of separate residence. Based on the above research, the author notes that the importance of the legal position in cases of establishing a regime of separate residence of spouses is the decision of the Plenum of the Supreme Court of Ukraine №11 of December 21, 2007 “On the practice of law enforcement, divorce, annulment and division of joint property of the spouses “, namely paragraph 12 of this resolution. Unfortunately, this document is the only legal position of the Supreme Court on the establishment of the legal regime of separate residence of spouses, so to determine the approaches of courts of general jurisdiction in considering this category of cases, you should refer to the analysis of individual court deci-sions. The analysis of the conducted case law allows to indicate that the main reasons that indicate the impossibility and / or unwillingness of the spouses to live together may indicate: lack of common life goals and family interests, which makes it impossible to live together and marital relations, long separate residence, lack of joint household , the presence of different views on life, lack of mutual understanding in the family, lack of joint management, lack of desire to continue living together, family disputes and conflicts that led to tense relationships, lack of intention to resume cohabitation, alcohol abuse, lack interest in raising one’s own child, quarrels and physical violence against the other spouse. The decision of the High Specialized Court of the Court of Ukraine on Civil and Criminal Cases in Case №6-27361, according to which the existence of property disputes concerning joint joint ownership of spouses does not deprive the right to establish a separate residence regime, also has a certain legal position.

scholarly journals ON THE POSSIBILITY OF RECALLING AN APPEAL OR CASSATION COMPLAINT OF THE DEFENDER TO THE ACCUSED, CONVICTED

2021 ◽  
pp. 323-338
Author(s):  
I. Basysta ◽  
D. Yosyfovych
Keyword(s):  
Supreme Court ◽  
Defense Attorney ◽  
Advisory Council ◽  
Criminal Proceedings ◽  
Defense Lawyer ◽  
The Supreme Court ◽  
Scientific Advisory ◽  
Legal Position ◽  
The Right ◽  
Procedural Rights

The problems of litigation stages become ever more pressing for their participants, as amendments to the criminal procedural legislation in effect are very frequent. The developing a legal position on one or the other law-related situation, to say nothing about exclusive legal issues, is not something that can be done in a day, and the situation where the judges do not have the same position on an issue is especially upsetting. The legal issue of ability (inability) by the accused, by the convicted to withdraw the appeal or cassation appeal of the defense lawyer is one of those. The fact is obvious and undeniable that in the court practice, this issue was already being resolved multiple time, yet no clear single legal position was developed for the problem. Thus, the panel of judges of the Second Judicial Chamber of the Court in its decision as of 10.05.2018 in case No. 462/4125/16к (proceedings No. 51-357км17) concluded that, by virtue of the requirements of Part 1 of Art. 403, Art. 432 of the Criminal Procedure Code of Ukraine, the petition of the convicted person to refuse the cassation appeal of the defense lawyer cannot be considered in the court of cassation, since another person applied, and not the person who filed the complaint. At the same time, the decision of 03.07.2018 of the panel of judges of the First Court Chamber of the Cassation Criminal Court of the Supreme Court (case No. 448/208/15к, proceedings No. 51-3132км18) contains the opposite conclusion. In particular, that the suspect, the accused or the convicted person has the right to carry out procedural actions and refuse a complaint filed in his interests, unless the participation of a defense lawyer is mandatory or the person is in such a vulnerable position that calls into question the voluntariness of such actions. Similar legal positions have been expressed in other judgments of the Court. Due to the disagreement of the panel of judges of the Second Judicial Chamber with such conclusions, on September 17, 2020, the decisions of this situation were submitted to the Joint Chamber for consideration, and a corresponding appeal was sent to the members of the Scientific Advisory Council. My own considerations, as a member of the Scientific Advisory Council at the Supreme Court, were set out in the scientific opinion of 25.12.2020, so I will try to share them also with the scientific community and a wide range of practicing lawyers. Based on the results of the scientific and practical search, it was proved that the current statement of Part 1 of Art. 403 of the Code of Criminal Procedure of Ukraine requires immediate alignment with the procedural rights of a suspect, accused, convicted person, acquitted person. As well as a defense attorney and with the requirements of such principles of criminal proceedings as discretion, ensuring the suspect, the accused have the right to defense, the adversarial nature of the parties and the freedom to present their evidence and in proving their credibility before the court. The criminal procedural law cannot and should not provide for the obligatory refusal of a cassation appeal by a defense attorney, presented in the interests of an accused, a convicted person, exclusively by the same person - a defense attorney. The participation of a defense attorney in criminal proceedings does not limit the procedural rights of both the suspect, the accused, and the convicted, acquitted. The accused, the convicted person has the right to withdraw the appeal or cassation complaint of the defense lawyer. Restriction of the right to withdraw an appeal or cassation complaint of a defense attorney by an accused or a convicted person may take place in two cases. In particular, if there are grounds for the mandatory participation of a defense attorney in criminal proceedings. And/or if the defense attorney proves that he/she has a justified conviction about the fact of self-incrimination by the accused or convicted , which gives him grounds to take a position that will be different from the will of the accused, convicted, including when appealing court decisions in the appeal and cassation procedure.

scholarly journals “The Merchandise Has Appeared on the Market”: The Typology of Plunderers, Schemes of Illegal Realization, and Legal Practice in Soviet Lithuania (1945–1947)

2021 ◽  
Vol 48 ◽  
pp. 70-88
Author(s):  
Darius Indrišionis
Keyword(s):  
Supreme Court ◽  
Primary Source ◽  
Soviet Economy ◽  
Point Of View ◽  
Legal Practice ◽  
Criminal Cases ◽  
Soviet Government ◽  
State Institutions ◽  
The Supreme Court ◽  
Post War

This research focuses on plunder from variuos co-operative or state institutions (mostly those which had belonged to the Ministry of Internal Trading or the Unity of Co-operatives of Lithuanian SSR) in the first post-war years (1945–1947) in the Lithuanian SSR. The primary source for this article is comprised by 54 criminal cases from the archive of the Supreme Court of the Lithuanian SSR. Cases used in this study were chosen based on one important criteria: that there were not only acts of plunder but also the realization of stolen goods. This would most likely be achieved by selling the goods through various marketplaces (looking from the Soviet point of view, the plundered items belonged to the black market anyway – even if the market activities were not forbidden). Also, the practices of punishment applied in the cases of plunderers and speculators are analyzed. The research shows that even in the very first years of the post-war period, illegal economic processes were widespread in Soviet Lithuania. Plunderers were hitting the Soviet economy hard – despite the harsh practice of punishment, the Soviet government would lose tens of millions of rubles in the Lithuanian SSR each year.

scholarly journals THE ADVOCATE'S DISCIPLINARY RESPONSIBILITY FOR WRONGFUL COOPERATION WITH LAW-ENFORCEMENT BODIES

2020 ◽  
pp. 44-47
Author(s):  
M. Panchenko
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Professional Status ◽  
National Legislation ◽  
The Supreme Court ◽  
Legal Position ◽  
The Law ◽  
The Right

This article is devoted to the research on the concept and features of the advocate's wrongful cooperation with law-enforcement bodies and the circumstances that influence the severity of a disciplinary penalty in the result of such cooperation. A list of certain features is given to distinguish the lawful cooperation of an advocate with law-enforcement bodies from the wrongful one, which leads to bringing the advocate to the disciplinary responsibility. The author ascertains the forms in which the wrongful cooperation of an advocate and law-enforcement bodies may occur. The article determines that law-enforcement bodies often use the information that an advocate possesses due to his/her special professional status in order to perform their functions. Besides, the article examines the possibility for an advocate to be a whistleblower under the Law of Ukraine on Prevention of Corruption. The article also analyzes the decision of the Supreme Court in the administrative case where the decision of the Higher Qualification and Disciplinary Bar Commission (HQDB) on bringing the advocate to the disciplinary responsibility and imposing a disciplinary penalty of depriving him the right to advocacy for a wrongful cooperation with law-enforcement bodies is appealed. In this research the attention is paid to the wrongdoer's arguments and the corresponding legal position of the Supreme Court which, having used the acts of the national legislation, determined advocate's actions to be illegal and denied the claimant's demands. The author defines the category of a "wrongful cooperation of an advocate with law-enforcement bodies", determines its features, and suggests the ways for improving the effectiveness of bringing wrongdoers to the disciplinary responsibility in case of such cooperation. Keywords: a disciplinary offence, a disciplinary penalty, a confidant, a whistleblower, secret investigatory (inquiry) operations, tracking measures.

Sprawiedliwość prawnomaterialna a proceduralna – kilka uwag na temat napięć między różnymi postaciami sprawiedliwości w prawie cywilnym

2017 ◽  
Vol 70 (0) ◽  
pp. 111-0
Author(s):  
Krzysztof Kurosz
Keyword(s):  
Supreme Court ◽  
John Rawls ◽  
Point Of View ◽  
The European Union ◽  
Court Of Justice ◽  
The Supreme Court ◽  
Substantive Justice ◽  
Principles Of Justice ◽  
The Right ◽  
Substantive Law

The article analyzes the concept of justice in both procedural and substantive aspects of civil law, with regards to John Rawls’ notion of “procedural justice”. The basic problem of the article is the question if each outcome of a fair procedure is just by the token of the fairness of the procedure. The author argues that such a standpoint, claiming that the procedure itself creates a just decision, will be incompatible with Article 45 paragraph 1 of the Polish Constitution. This paragraph grants the right to just adjudicature, which takes into account the whole substantive law. There are areas in law where conflicts between the procedural and the substantive justice are possible. Such an area is the adversary trial proceedings and evidentiary proceedings. The Court of Justice of the European Union emphasizes that there are such groups of legal entities (eg. consumers), for which it is necessary to regard ex officio all of facts pointing to the unjust treatment of consumer. The similar point of view was expressed by the Supreme Court of Poland. The Supreme Court of Poland allowed an evaluation of a claim which includes principles of justice, even if the defendant doesn’t take any position. This belief agrees with the standpoint of E. Waśkowski, who emphasized that the sentence should be “rightful”.

RECOURSE PERIOD TO THE ADMINISTRATIVE COURT THROUGH THE PRISM OF THE INFLUENCE OF THE SUPREME COURT

2018 ◽  
Author(s):  
Iryna Balakarieva ◽  
◽  
Krystyna Rutvian ◽  
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Scientific Work ◽  
Point Of View ◽  
Access To Justice ◽  
The Supreme Court ◽  
Judicial Errors ◽  
The One ◽  
Administrative Proceedings ◽  
The Right

The article is devoted to the study of the peculiarities of regulating the recourse period to the administrative court from the point of view of due process. Clear up the issue to what extent the consolidation and regulation of the recourse period qualifies the requirements of the legal procedure, namely: clear legislative regulation; inadmissibility of violation of the rights, freedoms and interests of the parties; clear structuredness and regulation. The scientific work investigates the essence of the term circulation term and considers the feasibility of introducing it. An attempt was also made to compare the recourse period with the limitation, arguments are given why the introduction of the terms of appeal in administrative proceedings is not identical to the limitation in civil proceedings. Different positions are considered, referring to the practice of the Supreme Court and the opinions of scientists, why, on the one hand, the limitation cannot be introduced in the administrative process from the point of view of the principle of legal certainty, and on the other hand, how the recourse period violates the right to access to justice. The main attention is paid to the role of the Supreme Court in the formation of approaches to the application of limitations. The concept of contra legem, which is inherent in the countries of the Anglo-Saxon legal family, is considered and is used in cases where there is a need to deviate from the enshrined norm at the legislative level in order to avoid literal application of the law and not make an absurd or unfair decision. The thesis is emphasized, despite the fact that the Supreme Court sometimes deviates from the formally prescribed norms, however, this is the essence of the cassation proceedings: it is an additional guarantee of the protection of subjective rights by correcting judicial errors, as well as a kind of judicial control. The specific decisions of the Supreme Court are considered, in which the approaches to the practice of applying the recourse period have been changed. On the basis of the decisions of the Supreme Court, it was investigated how the Supreme Court by its decisions affects and changes the recourse period fixed at the legislative level, the key positions of the Supreme Court are highlighted, which today are guiding for the subjects of appeal to the administrative court.

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