No. 33

On the 7th November 2019 the Code of Civil Procedure added the clause of abuse of procedural law was to the legal regulation of the clause of good manners, the clause of compliance with the principles of social coexistence, the clause of abuse of procedural law also applies. This may raise the question about the significance of these clauses,
the purposefulness of their introduction to the Code of Civil Procedure and the relationships among them, the scope of application and the legal consequences of their non-compliance by the addressees. A lot of doubts may be raised due to the issue of the ratio of acts contrary to good manners to acts constituting an abuse of procedural law. For these reasons,
the author primarily attempts to present the legal consequences of conflicting procedural acts with good manners in the context of assessing such an act from the point of view of abuse of procedural law.

The author discusses legal character of norms regulating marital rights and duties. These issues have not been the subject of a separate study so far. The author begins with the division of civil law regulations into mandatory and non-mandatory ones, and then she analyses the issues concerning the marital rights and duties. It is generally presumed that norms which regulate these issues are of the imperative character. However, this does
not preclude different regulation of these norms in everyday life of a married couple. The author emphasizes that the study is not only theoretical but it is also significant for the practice. This is confirmed by the judicial decisions of the Supreme Court, issued on the basis of factual circumstances in which the spouses actually entered into agreements excluding fulfilment of some marital duties, e.g. faithfulness. Such an agreement is invalid because it infringes
a rule of the mandatory character.

The issue of liability for damage caused by an enterprise set in motion by natural forces has received broad considerations in Polish literature. However, the progressing socioeconomic development, and above all the widespread use of the forces of nature in business operations, impose a new look on art. 435 that origin dates back to the 1933 Code of Obligations. The purpose of the article is therefore an attempt to critically analyse the indicated provision of the Civil Code. The said analysis will take place on the one hand, on the rich
achievements of domestic jurisprudence, and on the other, on the views of one of the greatest representatives of the doctrine of Polish insurance and civil law, Professor Jan Łopuski. The first part of the study contains de lege lata remarks. In the following, both polemical comments regarding jurisprudence and de lege ferenda postulates are presented.

The article is an introduction to the issue of third-party funding (or
litigation finance), which has not been analyzed in Polish legal literature yet.
The author presents the mechanism of third-party funding and indicates the main problems that may arise under Polish law with regard to third-party funding. In particular, the possibility of concluding third-party funding agreements and the possibility of qualifying a funder as an intervening party in the meaning of Polish Code of Civil Procedure.

The author presents criminal liability for abuse of power in terms of Art. 231 of the Penal Code of 1997 in the context of standards of good administration. According to the author, the penal code, by protecting the proper functioning of state institutions and local government against abuse by public officials, also protects the individual’s right to good administration. Adopting a different interpretation would mean that standards of good administration would lack proper protection. Thus, the violation of procedural rights of a party to administrative
proceedings should be assessed through the prism of Art. 231 of the Penal Code. The author does
not believe that violation of the indicated rights may not lead to prosecution of a public official
under Art. 231 of the Penal Code. This provision does not eliminate the possibility of attributing
this prohibited act when the rights of a party are violated during the administrative procedure,
because it is not limited to a violation of a substantive law. Since the Penal Code does not specify the source of this “interest” by narrowing it only to substantive law, acting “to the detriment of the public or private interest” referred to in Art. 231 § 1 of the Penal Code includes acting to the detriment of a participant in administrative proceedings. It is possible to prosecute a public official who led to excessive length of a given proceedings since such behavior conflicts with the “public interest” understood as proper administrative proceeding as well as with “private
interest” understood as the right of the individual to obtain a decision without undue delay. Failure to comply with this obligation may result in lengthy proceedings, and is certainly a manifestation of malfunctioning of administration.

The construction process combines interests of various parties, especially interests of the investor and third parties in the area affected by the facility implemented by the investor. The realization of interests of these parties requires balancing their rights, especially ownership ones, enabling the development of their own real estate within the legal limits. By protecting the investor, legislator decided to limit the parties to the proceedings regarding the building permit and reduced the scope of protection by guaranteeing only „respect”, and not – as it was before 2003 – „protection” of legitimate interests of third parties. In addition, these interests are only protected during the designing and constructing
of the building. They no longer apply to using the facility. Respect of these interests depends on their occurrence in the area of the object’s impact.

The subject of the study is the analysis of the issue of administrative enforcement of non-monetary obligations imposed by the decision of the President of the Personal Data Protection Office in cases of breach of personal data protection provisions. The analyzed issues include competences of the President of the Personal Data Protection Office to impose non-monetary obligations in cases of breach of personal data protection provisions, legal basis for conducting administrative enforcement of non-monetary obligations regarding personal data protection, the creditor, and the enforcement authority of these obligations and enforcement measures applicable to the enforcement of these obligations.

The author attempts to present coupling of policy and law in the energy sector using the example of nuclear power introduction in Poland. In particular, he highlights the most important aspect of this combination i.e. how legal instruments, including legislative ones, are used to achieve the strategic goals of state policy.

The author analyzes the concept of „special services”. Although the legislator uses it repeatedly, there is no legal definition of this term. From the subjective side, it is known which institutions are „special services”, but there are neither criteria for being included in
this group, nor characteristics distinguishing these services from other bodies responsible for ensuring security for the state and its citizens. Drawing such demarcation line is important due to the expansion of competences of entities responsible for ensuring security in the recent years. Now it seems that distinguishing characteristic of „special services” is the possibility of conducting operational and reconnaissance activities. Such activities may be carried out, for example, by the Police or Border Guard, and these institutions are not included
in the scope of „special services”. The author tries to find the definitions of „special services” in order to answer the question about the scope of tasks and competences that determine particular services as „special services”. The author also refers to the problem of crossing the properties of particular „special services” in order to answer the question whether it should be regulated on an exclusive basis. The adoption of such a solution would certainly eliminate competition of the services, as well as would allow them to specialize, which seems to be
a rational solution in the age of diversity of security threats.

The paper tackles contemporary problems of law application which can be identified in the area of legal positivism, e.g. moral evaluation of the law in
the course of judicial interpretation or degree of free evaluation of positive law by a judge in the context of law enforcement criteria. In the culture of statutory law, it is stressed that processes of law making and law applying must be separated. At the same time, a judge should be characterized by moderation in terms of interpretation and decision-making. The author attempts to combine the extreme approaches resulting from these different paradigms: the one perceiving a judge as a „mouth of an act” and the other involving a non-positivist postulate of quasi-creation of law meaning through a free  econstruction of norms from laws.

The author analyzes the practice of referring to the life and teaching of Jesus Christ in Polish legal science. In most cases, Polish legal scholars refer to the Gospels within the framework of broadly understood legal argumentation. In the considerations of legal academics the New Testament reports of Christ perform several functions: they are part of the historical background of the studied subjects; they are an illustration and/or exemplification of particular aspects of the researched issues; they serve to strengthen the social legitimization of the law by showing its substantive convergence with the message of Jesus’ teaching; they give reasons for critical assessment of law and law practice. On the other hand, these references rarely come down to linguistic ornamentation in the Polish legal literature. A qualitative study of over 110 monographs and scientific papers of Polish jurists shows the usefulness of references to Jesus Christ for scientific examination of law. In a culturally Christian state, the Gospel is an extralegal source with clarification (explanatory) and persuasive potential for jurisprudence.

Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms covers the scope of clearly defined rights, i.e. the right to private life, the right to family life, the right to home and the right to correspondence. In the case-law of the European Court of Human Rights a variety of facts and law are covered under the Article 8 of the Convention. The main purpose of the paper is to present the most common facts and law in which a complaint to the Court in Strasbourg was brought under Article 8 of the Convention. The specific objectives are: first, to show that the terms used
in the content of Article 8 of the Convention are autonomous concepts that are defined in the course
of the application of Article 8 of the Convention by the ECHR and are subjected to constant change;
Second, to show that Article 8 of the Convention is applied not only to vertical relations (individual-state), but also to the horizontal relations (individual-individual); third, to show that many of the rulings are examples of the practical application of the long-standing principle of international law of subsidiarity; fourth, to show that the standard of protection arising from the Article 8 of the ECHR consists of the proper shaping of the domestic public law and the Convention in both the material procedural aspects.

In his monograph Paweł Czubik analyses the issue of the consular legalislation of documents regulated by Polish law and consular practice. It is a study in international public and private law, and civil procedure. The author looks at this issue from a historical perspective, starting from 1918, i.e. the rebirth of Poland statehood and Polish consular service. In hisinteresting and valuable work one finds an interesting description of activity of consuls of the Second Polish Republic, consular activities in the period from the end of World War II up to 1989,
and subsequently until the coming into force of the currently applicable Polish consular law, and finally the solutions applied at present, i.e. since 2015.