scholarly journals Służebność gruntowa o treści odpowiadającej służebności przesyłu w świetle najnowszego orzecznictwa Trybunału Konstytucyjnego

2019 ◽  
Vol 28 ◽  
pp. 207-219
Author(s):  
Anna Maria Barańska
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Civil Code ◽  
Lively Discussion ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
The Subject ◽  
First Time

Problem konstytucyjności służebności gruntowej o treści odpowiadającej służebności przesyłu oraz możliwości jej zasiedzenia jest  przedmiotem ożywionej dyskusji już blisko od dekady. Mimo ugruntowanej i jednolitej linii orzeczniczej Sądu Najwyższego w tym  zakresie sądy powszechne cały czas mają wątpliwości, czy ta wykładnia znajduje umocowanie w przepisach kodeksu cywilnego. Nie  odmawiając interpretacji Sądu Najwyższego funkcjonalności, nie sposób jednak nie zauważyć towarzyszących jej mankamentów. Z  tego względu warte uwagi są ostatnie orzeczenia Trybunału Konstytucyjnego, który zdaje się po raz pierwszy zdecydował się  przełamać swoją bierną postawę. Building lease with the content corresponding to transmission easement in the light of the latest case law of the Constitutional TribunalThe problem of the constitutionality of a building lease with the content corresponding to transmission easement and the possibility of acquisitive prescription has been the subject of lively discussion already for almost a decade. Despite the well-established and unified jurisprudence of the Supreme Court in this regard, common courts constantly have doubts whether this interpretation is in line  with the provisions of the Civil Code. The Supreme Court’s interpretation is thought to have some shortcomings. That is why the last  ruling of the Constitutional Tribunal is worth paying attention to, as the Constitutional Tribunal seems to be for the first time active in this topic.

scholarly journals Czy przebaczenie niweczy skutki uprzedniego wydziedziczenia?

2017 ◽  
Vol 21 ◽  
pp. 143-153
Author(s):  
Anna Moskal
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Dominant Position ◽  
Legal Nature ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Subject ◽  
Made In

Does forgiveness nullify the effects of previous disinheritance? The legal nature of forgiveness is the subject of passionate debates among the representatives of civil law doctrine. According to the dominant position in the literature, forgiveness is an act of affection or its manifested expression of forgiveness of the perpetrator of experienced injustice and related to this grudge. This institution has been applied three times in the Civil Code — once with the donation agreement, twice in regulations of inheritance law. Article 1010 § 1 provides that a testator cannot disinherit eligible for legal portion if he forgave him. The wording of the above article indicates that accomplishment of disinheritance in case if testator eligible for legal portion has previously forgiven. The legislator did not, however, determine the effects of forgiveness in relation to previous disinheritance. In the act of 1971, the Supreme Court accepted that such forgiveness would automatically nullify the effects of disinheritance, and could be made in any form. In recent years, lower courts have begun to question the Supreme Court's position, and judges increasingly refer to the critical statements of numerous doctrines. As it was rightly stated, admitting the possibility of invoking the forgiveness made after disinheritance poses a serious threat to the realization of the testator’s will, who, by forgiving, does not necessarily want to revoke the effects of his previous disinheritance. The postulate of de lege ferenda is, according to the author of the article, giving of freedom of judging the effects of forgiveness to the courts and each examination of the forgiving testator’s will on the possible abatement of the consequences of previous disinheritance.]]>

scholarly journals Feu la D.C.D. L'arrêt Miller et la peine de mort

2005 ◽  
Vol 18 (2-3) ◽  
pp. 567-576
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
Right To Life ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The Right ◽  
First Time

The Miller case, decided by the Supreme Court of Canada on October 5, 1976, puts the death penalty under the light of the Canadian Bill of Rights which formulates the right to life and the right to protection against cruel and unusual treatment or punishment. The following comment on the case relates to the interpretation given specific clauses of the Bill of Rights by the Court on that occasion. But it stresses especially the law that flows from the case about the compelling weight of the Bill of Rights over acts of Parliament enacted after the Bill came into force. In Miller, the Supreme Court expressed itself on the subject for the first time.

Teaching Constitutional Law Using Real-life Examples: An Example from the Practice of Assent to Bills Passed by the National Assembly After the Tenure of Office of the President and the Assembly

2020 ◽  
Vol 7 (2) ◽  
pp. 140-151
Author(s):  
Chukwuka Onyeaku ◽  
Tonye Clinton Jaja
Keyword(s):  
Supreme Court ◽  
Federal Republic ◽  
Constitutional Law ◽  
Real Life ◽  
Case Law ◽  
Legislative Process ◽  
National Assembly ◽  
The Supreme Court ◽  
The Subject

As a matter of tradition and necessity, teachers of constitutional law within Nigeria (and elsewhere) are often compelled to refer to case law to provide illustrations of principles of constitutional law as enshrined in the constitution of the Federal Republic of Nigeria, 1999 (as amended). However, in some instances, where the said constitution does not provide explicit provisions, teachers of constitutional law are compelled to cite foreign case law as persuasive precedents. Still there are instances wherein there are neither foreign case law nor indigenous case law as precedents. In such situations, teachers of constitutional law are compelled to examine existing case law and relevant legislation until there is a pronouncement from either the Supreme Court or an alteration of the constitution by the National Assembly. One such situation is the subject of the analysis in this article: the situation whereby a president provides assent to bills after the expiration of the tenure of the National Assembly. As legislative tradition, the last session of each Chambers of the Nigeria’s National Assembly culminating each legislative term is usually a valedictory Session. Accordingly, Thursday, 6 June 2019 witnessed the last Session of the eighth National Assembly. As the president transmitted a Proclamation letter terminating the term of the eighth National Assembly inaugurated on 9 June 2015, it becomes paramount to examine the legal and constitutional implications of bills passed by the eighth National Assembly between 2016 and 2018 and up to 5 June 2019, which were assented to by the president after the tenure of the Assembly and office of the president. Thus, this article examines the constitutionality or otherwise of assenting to bills passed by the National Assembly and assented to by the president after the expiration of tenure of their offices. The article argues that the provisions of the 1999 Constitution had been violated when the president signed into law bills passed by the eighth National Assembly after the tenure of office of the president and the eighth National Assembly. It concludes that bills rejected by the president will require another legislative process of being passed into law again by the same Assembly or subsequent one before it can be assented to by the president. Failure to follow this constitutional process will render the assent unconstitutional.

scholarly journals TESTAMENTARY FREEDOM REAFFIRMED IN THE SUPREME COURT

2017 ◽  
Vol 76 (3) ◽  
pp. 499-502 ◽  
Author(s):  
Brian Sloan
Keyword(s):  
Supreme Court ◽  
Royal Society ◽  
Case Law ◽  
Moral Claim ◽  
Her Family ◽  
The Supreme Court ◽  
The Will ◽  
Cruelty To Animals ◽  
First Time ◽  
Court Of Appeal

The case now known as Ilott v The Blue Cross [2017] UKSC 17 was the first time that the Inheritance (Provision for Family and Dependants) Act 1975 was considered at the highest judicial level. The Court of Appeal ([2015] EWCA Civ 797, noted in [2016] C.L.J. 31) had significantly enhanced the award given to an estranged and “disinherited” but needy daughter (Heather Ilott) at the expense of the charities (the Blue Cross, Royal Society for the Protection of Birds and Royal Society for the Prevention of Cruelty to Animals) who were the principal beneficiaries under the will of her mother, Melita Jackson, leaving her with £143,000 out of the £486,000 estate primarily to purchase the council house in which she and her family were living. The Supreme Court unanimously allowed the charities’ appeal, restoring Judge Million's original £50,000 order. Giving the lead judgment, Lord Hughes reasserted the centrality of testamentary freedom in English law, emphasised the importance of the Act's limitation to “reasonable financial provision” for maintenance for non-spouse/civil partner applicants (s. 1(2)(b)), and held that a need for maintenance was a necessary but not sufficient condition for a successful claim. He approved previous case law in holding that maintenance could not “extend to any or everything which it would be desirable for the claimant to have” (at [14]), but was not limited to “subsistence” either (at [15]). He also confirmed that the focus of the correct test under the 1975 Act is not on the behaviour of the testatrix, but opined the reasonableness of her decision may still be a significant consideration, as may the extent of any “moral claim” even if that is not a “sine qua non” (at [20]).

Some New Emphases in Extradition Case Law

1981 ◽  
Vol 16 (2) ◽  
pp. 204-224 ◽  
Author(s):  
S.Z. Feller
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Point Of View ◽  
District Court ◽  
The Supreme Court ◽  
The Subject ◽  
State Of Israel

In Azen v. State of Israel, the Supreme Court heard the appeal of a person who had been declared extraditable to France for offences of stealing by an agent and fraud, committed, according to the request for extradition, in France. One of the pleas raised against the decision of the District Court, in which Azen was declared extraditable, was that the specialty limitation was not guaranteed in the Extradition Treaty between Israel and France, as required by sec. 17 (a) of the Israeli Extradition Law, 1954. This section states unequivocally that —A wanted person shall not be extradited unless it has been ensured, by an agreement with the requesting State, that he will not be detained, tried or punished in that State for another offence committed prior to his extradition;whereas in art. 17 of the said Treaty, specialty is guaranteed in the following words: L'individu qui aura été délivré ne pourra ni être poursuivi ou jugé en sa présence ni être, détenu …i.e. under the Treaty, the specialty limitation is restricted, from the procedural point of view, to those processes involving physical, personal enforcement against the subject of extradition—he will not be “summoned” for interrogation, nor judged “in his presence”, nor “detained”; the Extradition Law, however, contains no such restriction, with the exception of detention which, by its very nature, requires physical enforcement.

scholarly journals Odpowiedzialność zakładu ubezpieczeń za szkody wyrządzone przez agenta ubezpieczeniowego

2017 ◽  
Vol 21 ◽  
pp. 13-30
Author(s):  
Amanda Adamska ◽  
Anna Maria Barańska
Keyword(s):  
Supreme Court ◽  
Civil Code ◽  
Insurance Company ◽  
The Supreme Court ◽  
Insurance Agent ◽  
Insurance Intermediation ◽  
The Subject ◽  
Injured Party ◽  
The Difference ◽  
Definition Of

The responsibility of an insurance company for damages caused by an insurance agent The subject of this article is the responsibility of an insurance company for damages caused by an insurance agent in connection with the performance of agency activities. The Act on Insurance Intermediation of 22 May 2003 lays down a liability regime based on the principle of risk. It also contains the definition of an insurance agent and performed agency activities. In the next part of the article there is analysed the jurisprudence of the Supreme Court concerning the interpretation of article 11 1 of the abovementioned Act. It discusses an attempt at defining the difference between activities performed “in connection with” and “at the occasion of” other activities. Finally there is analysed an issue of the contribution of the injured party to the occurrence of the damage in this type of cases article 362 of the Civil Code.

scholarly journals (Il)Legal evidence in criminal procedures in the case law of the Supreme Court of Cassation in 2019 and 2020

2021 ◽  
Vol 93 (2) ◽  
pp. 435-456
Author(s):  
Milana Pisarić
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Case Law ◽  
International Treaties ◽  
Criminal Proceedings ◽  
Case File ◽  
Legal Evidence ◽  
The Supreme Court ◽  
The Subject ◽  
Illegal Evidence

The Criminal Procedure Code stipulates that court decisions may not be based on evidence which is, directly or indirectly, by itself or in the manner of obtaining it, contrary to the Constitution, this Code, other laws or the generally accepted rules of international law and ratified international treaties, except in proceedings conducted for the purpose of obtaining such evidence. Illegal evidence cannot be used in criminal proceedings and is therefore separated from the case file. If the judgment is based on illegal evidence, it can be challenged by the appeal against the judgment, but also by the request for the protection of legality. The subject of the paper is the analysis of the recent case law of the Supreme Court of Cassation (in the period from January 1, 2019 to December 31, 2020) regarding the requests for the protection of legality stated in connection with illegal evidence.

The Practice and Case Law of Israel in Matters Related to International Law

1997 ◽  
Vol 31 (4) ◽  
pp. 803-853 ◽  
Author(s):  
Rotem M. Giladi
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Case Law ◽  
The United States ◽  
District Court ◽  
Sovereign Immunity ◽  
The Supreme Court ◽  
Civil Suit ◽  
The Subject ◽  
The Government

The case of the Canadian ambassador's residence has been the subject of several court decisions at various instances in Israel. These decisions (as well as others relating to the doctrine of sovereign immunity) have been reviewed in former issues of this section. On June 3, 1997, the Supreme Court, in its appellate jurisdiction, gave its judgment in this case and delineated the application of the international law doctrine of sovereign immunity in Israeli law. In a different case decided on the last day of 1996, the Tel-Aviv District Court was required to rule on the applicability of this doctrine to a civil suit brought against the government of the United States of America. This District Court decision now needs to be examined in light of the recent ruling of the Supreme Court in theEdelsoncase.

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 Un aspect crucial mais délicat des libertés de conscience et de religion des articles 2 et 3 des Chartes canadienne et québécoise: l'objection de conscience

2005 ◽  
Vol 28 (1) ◽  
pp. 185-205
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Armed Forces ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Freedom Of Conscience ◽  
Current Case ◽  
The Supreme Court ◽  
The Subject ◽  
The Difference ◽  
The Right

The Supreme Court of Canada, obiter, in the Big M Drug Mart Case, has spoken of the "Constitutional Exemption". It is the possibility not to be bound to obey the neutral laws that conflict with one's conscience or religion. It is what we call in French l'objection de conscience. The institution exists in Canadian and Québec Law as a part of the right to freedom of conscience or religion expressed in 2a) and 3 of the Canadian and Québec Charters of Rights. And it goes well beyond the right not to fight within the armed forces. The Supreme Court of Canada has actually delivered six judgments touching on the subject in 1985 and 1986. The conditions under which l'objection de conscience come into play are not so well known however. Does it cover matters of worship or only rules of morals ? Secular or only religious principles ? Personal or only group beliefs ? Do the existence of the rule, the sincerity of the objector and the reasonableness of the exemption have to be proved? Above all, what is the difference between a creed and an opinion ? The following article tries to formulate answers to these questions, with the help of current case-law.

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