Fullerowski paradygmat (nie)dobrego prawa i jego aktualność „hic et nunc”

The subject of the article is Fuller’s concept of the (not) good law paradigm defined by three notions: “internal morality of law,” “natural law of a formal nature,” and “formal rule of law” — in the perspective of its application in the current legal order of the Republic of Poland. The discourse was conducted in two stages: on a general, theoretical, and axiological levels as well as on a detailed, practical, and praxeological ones. The epistemological level with its retrospective view bears resemblance of two models: bad law and good law. The first, encapsulated in literary legal fiction, describes eight cases (anti-values) of King Rex’s legislative failures. King Rex is monarch with authoritarian and conservative traits who excludes the system of government based on the proportional cohabitation of three powers — legislative, executive, and judicative — in favour of anocracy, which is a hybrid regime “suspended” between democracy and authoritarianism. The second is a remedy in the form of axiological contours, postulates (values) of good law: generality, promulgation, prospectivity, clarity, non-contradiction, reality, stability, and compliance. These principles of the formal rule of law, contained in the concept of “soft” jusnaturalism, are a specific professional and ethical code for the public authority which constitutes, executes, and applies the law. The practical-cognitive level refers to subjectively selected examples of abusing the good lawstandard in the Polish legal and administrative order. It shows the omnipotent and simultaneously dysfunctional executive power in the area of governance and administration, aimed at a radical reconstruction of the social and legal system.

Some remarks on change and innovation in ancient Near Eastern customary law

The article presents the ways customary law could be gradually changed in the ancient Near East. They included working with existing institutions while modifying their consequences as well as their scope of application with tools such as legal fiction. However, the conservative nature of the ancient oriental culture, as well as that of the scribal education made any sudden, radical modification impossible, and even if a new contract type was created, it would keep the pretense of following a long-established practice.

The German-Polish Tax Problems of Cross-Border Workers in the COVID-19 Pandemic – When the Remedy is Worse than the Problem

The article pertains to the tax issues arising from the COVID-19 pandemic in respect of cross-border workers. The main issue is the impact of the restriction in cross-border movements during the pandemic on the determination of the place of work. The authors refer to two situations. The first is when a Polish worker employed by a Polish employer and working abroad cannot return to Poland. The second is when he or she performs work at home in Poland instead of at the normal place of work abroad. The authors consider the legal fiction of carrying out work in the place where it would have been done before the pandemic as a rational solution. However, they are strongly critical of the introduction of such solution via the Mutual Agreement.

Establishing the Circumstances of Civil Cases: Some Doctrinal and Practical Approaches

The paper analyzes certain provisions of civil procedural legislation in terms of their effectiveness as a means of establishing actual circumstances of civil cases by the court from the standpoint of doctrine and judicial practice. The authors examine the relationship between the presentation and disclosure of evidence, draw a conclusion about their close relationship, and their identification, sometimes admitted by judicial practice, is critically assessed. The question of the period for disclosure of evidence was investigated, in respect of which it was concluded that provisions of the Code of Civil Procedure of the Russian Federation, although not quite specific, but sometimes quite definitely allow this period to be established. Taking into account the stance of the Supreme Court of the Russian Federation, then authors propose a solution to the problem of the consequences of non-disclosure of evidence in a civil case. The paper analyzes individual norms and institutions that allow the court to establish the circumstances of civil cases without evidence or on the basis of explanations of the other party. It is concluded that the norm of the second sentence of Part 1 of Art. 68 of the Code of Civil Procedure of the Russian Federation is neither a legal fiction nor an evidentiary presumption. This is one of the manifestations of the action of the general rule for the distribution of the duty of proof. The authors support and justify the position that the norm of Part 31 of Art. 70 of the Arbitration Procedure Code of the Russian Federation is an evidentiary presumption, and the presumption not of fact, but of evidence. In relation to Part 3 of Art. 79 of the Code of Civil Procedure of the Russian Federation, it is concluded that establishment of the facts by the court by applying this norm does not mean obtaining true knowledge about them. Therefore, this provision of the civil procedure law is applied in judicial practice with extreme care.

Qualification of the repeated single offence: the case of hooliganism

In this scientific article is addressed the issue of qualifying the crime of hooliganism when it occurs in the position of repeated crime. It is argued that in order to be incident the aggravating circumstantial sign enshrined in letter a) paragraph (2) art. 287 of the Criminal Code of the Republic of Moldova it is not imperative that the perpetrator has previously committed an act of hooliganism in the standard version. The repeated single offense is a legal fiction. The offenses committed (forming the repeated offense) de facto represent a multiple offences, while de jure, artificially, form the content of a single offense. In any case, the repeated crime bears enormous similarities to the multiple offences (a form of the plurality of offences), deriving from the latter legal category. Repeated crime does not constitute a deviation from criminal recidivism (the other form of plurality of offenses). Repeated crime is not a form of plurality of crimes.

LEGAL UNCERTAINTY IN PROCEDURAL LEGAL RELATIONS REGULATION MECHANISM AND LEGAL INSTRUMENTS OF ITS ELIMINATION

Legal certainty is one of the crucial law characteristics. However, legal uncertainty has both downsides and upsides thus they must be considered to be its common quality, its particular feature. Despite quite an advanced procedural legal relations regulation level due to form of action requirements, the presence of uncertain generally evaluative notions and categories in provisions of branches of procedure law is determined by the multiplicity of such legal relations. The subject of the study carried out by the author deals with specific ways of legal uncertainty manifestation in procedural legal relations regulation while justice in civil(commercial, administrative) cases is administered; the author also pays attention to identifying characteristics of specific legal instruments application in order to overcome(eliminate) such uncertainties within legal relations regulation mechanism. An application of provisions and principles, unconventional(non-traditional, innovative) sources of procedural law(law doctrine, judicial precedent), interpretations and concrete definitions, structures of presumption and legal fiction, statutory analogy and legal analogy has been suggested to be attributed to legal instruments aiming at elimination of uncertainties within legal relations regulation mechanism. The author argues that turning legal uncertainty into certainty in the area of procedural law should be carried out at the discretion of a law-enforcer when it comes to application of specific provisions, categories and structures within actual reality, social development dynamics and improvements in rights and responsibilities of participants in legal relations.