scholarly journals Glosa do wyroku Trybunału Konstytucyjnego z dnia 11 czerwca 2019 r. (P 20/17, OTK-A 2019, poz. 29)

2020 ◽  
Vol 29 (3) ◽  
pp. 277
Author(s):  
Aleksandra Nowosad
Keyword(s):  
Case Law ◽  
Penal Code ◽  
Total Penalty ◽  
The Republic

<p>The author agrees with the Constitutional Tribunal’s opinion that Article 87 § 1 of the Penal Code to the extent that it imposes an obligation on the court to combine imprisonment and restriction of liberty and to impose a total penalty of deprivation of liberty after converting the penalty of restriction of liberty into imprisonment is inconsistent with the Constitution of the Republic of Poland. In addition, the author raised the problem of <em>ratio legis</em> of Article 87 of the Penal Code and indicated why the deficiencies in regulation were noticed so late in the case law.</p>

The Legal Status of Local Government in South Africa under the New Constitutional Dispensation

2018 ◽  
Vol 33 (2) ◽  
Author(s):  
Mbuzeni Mathenjwa
Keyword(s):  
South Africa ◽  
Local Government ◽  
Legal Status ◽  
Case Law ◽  
The Status ◽  
History Of ◽  
The Republic ◽  
First Time

The history of local government in South Africa dates back to a time during the formation of the Union of South Africa in 1910. With regard to the status of local government, the Union of South Africa Act placed local government under the jurisdiction of the provinces. The status of local government was not changed by the formation of the Republic of South Africa in 1961 because local government was placed under the further jurisdiction of the provinces. Local government was enshrined in the Constitution of the Republic of South Africa arguably for the first time in 1993. Under the interim Constitution local government was rendered autonomous and empowered to regulate its affairs. Local government was further enshrined in the final Constitution of 1996, which commenced on 4 February 1997. The Constitution refers to local government together with the national and provincial governments as spheres of government which are distinctive, interdependent and interrelated. This article discusses the autonomy of local government under the 1996 Constitution. This it does by analysing case law on the evolution of the status of local government. The discussion on the powers and functions of local government explains the scheme by which government powers are allocated, where the 1996 Constitution distributes powers to the different spheres of government. Finally, a conclusion is drawn on the legal status of local government within the new constitutional dispensation.

Legal Maxims: Summaries and Extracts from Selected Case Law

2018 ◽  
Author(s):  
Tarik Atmane ◽  
Simona Fanni ◽  
Adriana Fillol Mazo ◽  
Ana Cristina Gallego Hernández ◽  
Yolanda Gamarra ◽  
...  
Keyword(s):  
Case Law ◽  
Republic Of Moldova ◽  
The Republic ◽  
Grand Chamber

Case of Meier v. Switzerland, Application No. 10109/14, Third Section, Judgment, 9 February 2016Case of Mozer v. the Republic of Moldova and Russia, Application No. 11138/10, Grand Chamber, Judgment, 23 February 2016Case of Pajić v. Croatia, Application No. 68453/13, Second Section, Judgment, 23 February 2016...

scholarly journals Reasonable time frame in bankruptcy proceedings: Analysis of cases from the judicial practice of the Commercial Court in Niš

2021 ◽  
Vol 60 (90) ◽  
pp. 97-118
Author(s):  
Aleksandar Mojašević ◽  
Aleksandar Jovanović
Keyword(s):  
Case Law ◽  
Time Frame ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Reasonable Time ◽  
Judicial Practice ◽  
Reasonable Time Frame ◽  
The Subject ◽  
The Republic ◽  
The Right

The Act on the Protection of the Right to a Trial within a Reasonable Time, which took effect in 2016, has created the conditions in our legal system for the protection of the right to a trial within a reasonable time, as one of the fundamental rights guaranteed by the Constitution of the Republic of Serbia and related international documents. Although the legislator does not explicitly provide for the application of this Act in the context of bankruptcy proceedings, it has been used in judicial practice as a mean for the bankruptcy creditors to obtain just satisfaction in cases involving lengthy bankruptcy proceedings and a violation of the right to a fair trial within a reasonable time. The subject matter of analysis in this paper is the right to a trial within a reasonable time in bankruptcy cases. For that purpose, the authors examine the case law of the Commercial Court in Niš in the period from the beginning of 2016 to the end of 2019, particularly focusing on the bankruptcy cases in which complaints (objections) were filed for the protection of the right to a fair trial within a reasonable time. The aim of the research is to examine whether the objection, as an initial act, is a suitable instrument for increasing the efficiency of the bankruptcy proceeding, or whether it only serves to satisfy the interests of creditors. The authors have also examined whether this remedy affects the overall costs and duration of the bankruptcy proceeding. The main finding is that there is an increasing number of objections in the Commercial Court in Niš, which still does not affect the length and costs of bankruptcy. This trend is not only the result of inactivity of the court and the complexity of certain cases but also of numerous external factors, the most prominent of which is the work of some state bodies.

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 Can the Application of the Human Rights of the Child in a Criminal Case Result in a Therapeutic Outcome

2017 ◽  
Vol 13 (3) ◽  
pp. 125
Author(s):  
Enid Coetzee
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Primary Caregiver ◽  
Therapeutic Outcome ◽  
Specific Reference ◽  
Rights Of The Child ◽  
Therapeutic Outcomes ◽  
The Republic ◽  
Mitigating Factor ◽  
The Impact

Prior to the change brought about by S v M,[1] the interests of children were only considered as a circumstance or mitigating factor of the offender during the sentencing process. The article will discuss case law in order to determine the impact that the inclusion of the human rights of the child had on the sentencing process if the offender was the primary caregiver of the child. Specific reference is made to Sections 28(2) and 28(1)(b) of the Constitution of the Republic of South Africa, 1996. The article will then consider whether this inclusion might improve therapeutic outcomes without the apprehension that the interests of justice would be forfeited. A therapeutic outcome is brought about when the attention is placed on the human, emotional and psychological side of the law. It is concluded that the Zinn triad remains the basic measure to be used by sentencing courts to determine an appropriate sentence. Should the sentence be direct imprisonment, the court has to ensure that the children receive appropriate care as prescribed by Section 28(1)(b). Should a range of sentences be considered, even though the court has a wide discretion to decide which factors should be allowed to influence the measure of punishment, when the offender is a primary caregiver, Section 28(2) must be included as an independent factor. It is also concluded from the case law discussion that the inclusion of the human rights of the child in the sentencing process did not automatically give rise to a therapeutic outcome, although in some judgments it did result in a therapeutic outcome. Thus, the consideration of the human rights of the children during the sentencing process creates the opportunity for a therapeutic outcome.[1]        2007 2 SACR 539 (CC).

scholarly journals Interpretation of the Principle of Municipality Self-Reliance in the Context of Constitutional Principles of Law

2020 ◽  
Vol 65 (1) ◽  
pp. 103-119
Author(s):  
Agnieszka Daniluk
Keyword(s):  
Separation Of Powers ◽  
Case Law ◽  
Public Law ◽  
The Self ◽  
Self Reliance ◽  
Democratic State ◽  
Inherent Feature ◽  
Subsidiarity Principle ◽  
The Republic ◽  
Judicial Protection

Abstract In the science of administrative and constitutional law, administration science and many other sciences, including political science, it is widely accepted that the basic, inherent feature of a municipality, deciding the essence of the territorial self-government unit as an entity of public administration, is the self-reliance it is entitled to. The self-reliance of territorial self-government units is even defined as a constitutional norm. In principle, self-reliance is perceived as a fundamental attribute of a decentralised public authority and constitutes one of the fundamental systemic principles of the Republic of Poland. It was formulated expressis verbis in art. 165 par. 2 of the Constitution of the Republic of Poland, which states that the self-reliance of territorial self-government units is subject to judicial protection, meaning that TSGUs can defend themselves against illegal attempts, not grounded in the law to interfere in their self-reliance. This protection seems to encompass both the private-law and public-law spheres of territorial self-government activity. The essence and guarantees of territorial self-government units’ self-reliance also arise from other constitutional principles, including the aforementioned decentralisation principle, subsidiarity principle, separation of powers, supremacy of the nation and democratic state under rule of law. The goal of this article is to interpret the principle of municipal self-reliance in the context of constitutional principles of law, in the light of the Polish Constitution. The studies were conducted based on analysis of normative acts, doctrinal views and case law.

Urážka prezidenta republiky v meziválečném období

2021 ◽  
Author(s):  
Daniel Kadlec
Keyword(s):  
Interwar Period ◽  
Case Law ◽  
Criminal Offence ◽  
Head Of State ◽  
The Republic

The article deals with the § 11 of the Act of the Protection of the Republic, which in the interwar period regulated the criminal offence of the Defamation of President of the Republic. The article discusses the origin and historical sequence of the crime of the Defamation of the Head of State. In the article, the author explains, with the help of case law, some terms from the text of § 11 of the Act of the Protection of the Republic, as well as the meaning of individual paragraphs or facts as a whole. In the article author presents a few very specific cases he found in the collections of the Moravian Provincial Archive.

Public debt limit of the EU Member States and its impact on polish legal system – considerations in the context of public finance stability

2020 ◽  
Vol 18 (1) ◽  
pp. 239-255
Author(s):  
Wojciech Bożek
Keyword(s):  
Public Debt ◽  
Comparative Method ◽  
Reference Value ◽  
Case Law ◽  
Point Of View ◽  
Fiscal Rules ◽  
Eu Member States ◽  
Constitutional Tribunal ◽  
The Republic ◽  
The Eu

The author’s goal is to determine the consequences of implementing treaty solutions concerning public debt to the Polish Constitution and to define the differences between the methodology of counting public debt in the European Community and Polish legal order. The raised issues concern important problems from the substantive and practical point of view, therefore the study’s content is important for science and practice. The research methodology was based on the analysis of the EU and Poland’s normative solutions, opinions expressed in the international and national literature on the subject, and the case law of the Polish Constitutional Tribunal. The paper applies mostly the dogmatic-analytic and legal-comparative method with reference to available statistical data on Poland’s public debt. The study allowed the author to gain an understanding of the significance of fiscal rules implemented at the EU level to ensure stability. Article 216(5) of the Constitution of the Republic of Poland indicates that the treaty solutions regarding the reference value (public debt-to-GDP ratio) were reenacted. However, until this day, the EU and Poland’s debt measurement methods do not fully correspond. In order to counteract excessive debt incursion, a state is required to take not only efficient actions but also ones that are adequate and, to some extent, flexible. This is an expression of acceptance of the EU’s preventive assumptions. However, there is still no full correlation in the methodology of calculating public debt in the EU and the Republic of Poland.

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