No. 2 (36)

The author analyzes the issue of protection of debtor, within the meaning of the Act of June 17, 1966 on Administrative Enforcement Proceedings, against incorrect estimation of movable property seized in administrative enforcement proceedings. Reliable estimation of movables carried out in the Act on Administrative Enforcement Proceedings serves to protect the debtor and his property. The author presents an assessment of the system of measures to challenge incorrect estimation of movable property that can be taken by the debtor. In particular, the author analyzes legal measures, such as a complaint against the estimation of movable property carried out by an employee of the enforcement authority, and the debtor’s request for an estimate of movables by a court expert.

Some professionals (such as lawyers) and members of the decision-making bodies in companies (such as banks or insurance companies) must be of good repute. If, under any
circumstances, they lose their reputation, integrity and honesty, they are neither allowed to conduct their professional practice nor to be members of the decision-making bodies. The author asks whether the lost reputation may be rebuild. The author analyzes this issue within the Polish law. According to the author, under some legal conditions, basing on the principle of human dignity, rebuilding of lost reputation is possible.

The author presents issues related to the police detention of the perpetrator of domestic violence, referred to in Art. 15a of the Police Act after its amendment in 2020. The author analyzes the structure and nature of the substantive premise justifying the actual Police Act consisting in a short-term deprivation of liberty of the perpetrator of domestic violence in order to isolate the perpetrator from
victims. Subsequently, the author examines the evidence elements of this premise, such as the fact of domestic violence and a direct threat to human life as well as
the assessment of the risk of threat to human life or health in order to determine the legitimacy of detention.

The author presents the problem of implementing the principle of immediacy in appeal proceedings following the legislative changes effected in the Polish criminal trial
in 2013-2019. The author focuses on the conditions underlying reformatory decisions of appeal courts in the light of different assessment of evidence carried out before the court of first instance. The deliberations lead to the finding that the relevant provisions in their current form fail to respect the principle of immediacy, as the appellate court may differently assess the credibility of the testimony of witnesses who were not summoned to be heard
before it. The author also outlines the impact of other changes of appellate proceedings, especially related to a significant limitation of the so-called ne peius rules, as well as the existing case-law of the European Court of Human Rights regarding the reformatory rulings in the appellate instance. The conclusion provides that the discrepancy between the legislator’s assumptions and the ultimate shape of norms of the Code of Criminal Procedure
in the area of appellate proceedings requires ensuring that the principle of immediacy and the Strasburg standard are respected and that the structure of the Polish appellate
proceedings actually reflects the model assumptions of an appeal.

The analysis of EU law and guidelines referring to state aid shows directly which forms of aid and what kind of economic activities may count on Commissions’ acceptance
when used by the Member States, preventing and/or reducing the scale of damages caused by the COVID-19 pandemic. The EC Communication points out how the public financial resources should be effectively disposed of; and how to prepare the application of state aid planned by the Member State in order to shorten the notification procedure. The author describes main assumptions of the EC guidelines towards the COVID-19 state aid and to what extent they have been used by the Polish legislator in the so called „anti-crises shield”.

The author attempts to answer whether the Polish labour law permits to terminate a part of a collective bargaining agreement. The provisions of Chapter XI of the Labour
Code provide for the possibility of amending the collective bargaining agreement only by an additional protocol concluded by both parties. According to the labour law jurisprudence so-called partial termination of the collective bargaining agreement is possible. This view is supported by referring to the provisions of Section XI of the Labour Code regulating the rules of termination of collective bargaining agreements and by the claim that the right of each party to terminate the agreement in its entirety includes the right to unilaterally terminate a part of the agreement, i.e. some of its provisions. A maiori ad minus inference is invoked
to support this position. The author formulates a thesis that none of the parties is entitled to terminate certain provisions of the agreement. This thesis is based on the detailed analysis of the provisions regulating the amendment, termination, and suspension of the collective
bargaining agreement as well as the Supreme Court’s case law. A party to a collective bargaining agreement that receives a partial termination of the collective bargaining agreement is not entitled to appeal to the labour court against the termination. Neither is a party to a collective agreement entitled to lodge a claim for unjustified termination of a part of the collective bargaining agreement.

Access to research data in the European Union is granted upon decisions made by entities that finance and conduct research. This matter has been changed by the Directive
(EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information. After implementation of the Directive, opening of research data will become a legal obligation and everyone everywhere will be able to use them. However, the Directive gives member states significant freedom. Considering the above, academic communities should become partners in the dialogue with political decision-makers. The paper describes the provisions of the Directive and the seven recommendations regarding national regulations related to re-use of research data, with particular consideration of their use in medicine.

The author reviews the transformation of Corporate Law on the example of post-Soviet Georgia. The reception which shapes the legal system, in transformative society comprises a considerably lengthy period. Frequent and unsystematic amendments of legislation in the post-communist community cause instability and nihilism, which is the main hindering factor for the corporate economy. The author examines the stages of Transition Law development, the conception of voluntary and compulsory reception,
a transformation of law as a cultural phenomenon, the role of Comparative Law, and the impact of EU supranational Corporate Law on the formation of contemporary Georgian
Law. The author presents the gaps of the current Corporate Law, also the dilemma between the models of regulation and deregulation, and he outlines the inevitable necessity
of modernization of the field.

The author analyzes issues related to the admissibility of witnessing to a will by a body of a legal person. According to the author Art. 957 § 1 of the Civil Code can be applied to a natural person, who is a body of a legal person (and also
a part of a collegiate body), but only in the case of the simultaneous fulfillment of the premises of Art. 38 of the Civil Code as well as the requirements present in the
regulations which constitute the competences of a given body of a legal person. The author also questions the admissibility of applying Art. 957 § 1 of the Civil Code by
analogy in the case at hand.

The established in 1956 Codification Committee was designed to prepare the draft of the Polish penal code. The Committee consisted of 10 professors and practitioners, headed by professor Jerzy Sawicki. In the course of changing the liberal policy of the communist party some members of the group lost the confidence granted earlier by communist authorities. Sawicki was suspected of spying
and of having Zionist views. The secret Security Service (SB) was keeping an eye on some other members of the group. The SB officers in their documents described the final part of works on the draft when Sawicki was trying to save the draft by using his contacts in the communist party apparatus. Finally the draft was rejected and the official reasons were: “novelty”, and the fact that the draft had
not been consulted with the communist party apparatus. However the real reason was different: the members of the Committee had no confidence among officials. The classified document of SB is attached to the article and it describes the las stage of working on the final draft.

Established in 1581, the Tribunal of the Grand Duchy of Lithuania was not free from the shortcomings of the noble judiciary of the Polish-Lithuanian Commonwealth. The smooth course of the deliberations was hampered by drunkenness, lawlessness, self-interesst and conflicts among the deputies, Vilnius students and townspeople. The
sessions of the Tribunal were accompanied by fights, intrigues, bribes, appointing people who were not elected by the council of nobility as judges, as well as issuing judgments in their own cases by judges. The difficulty in reaching a compromise sometimes resulted in delegating a double number of deputies to the Tribunal by the regional councils (sejmiki). Karol Stanisław Radziwiłł committed many violations of the order in the 2nd half of the 18th
century. Even the marshals violated the law. The provisions of the Act of 1581 defining the activities of the Lithuanian Tribunal and the Constitution of the Sejm were not obeyed either.

The author discusses the admissibility of applying the provisions of the Executive Penal Code to enforce lustration rulings. The Lustration Act of 2006 does not regulate the full scope of the enforcement stage therefore the legal basis of the conduction of the enforcement proceedings is not specified. The author concludes with the thesis that the lustration court adjudicating in a single-person bench
should apply the provisions of the Executive Penal Code by analogy. The enforcement proceedings are not the part of the lustration proceedings referred to in Art. 19 of the Lustration Act.

The author analyzes the provision of Art. 14 § 2 of the CCP regulating the withdrawal of the indictment by the public prosecutor and its impact on the right to a fair trial guaranteed both to the accused and the victim. The author’s main research problem is how the withdrawal of the indictment affects the right to a fair trial. According to the hypothesis stated by the author the institution of withdrawal largely restricts this right. This hypothesis
is confirmed by the research methods such as the dogmatic-legal one, the literature analysis and the historical-legal method. The author concludes that a fuller guarantee of the right to a fair trial is possible only by legislative changes concerning the withdrawal of the indictment. First of all, the conditions of the withdrawal should be strictly defined as well as the prosecutor’s right to use the provision of Art. 14 § 2 of the CCP, and moreover, the attorney of the auxiliary prosecutor should be granted more procedural powers. The most important result
of the research, however, is the formulation of the de lege ferenda postulate, that in the event of withdrawal of the indictment, the court should issue an acquittal verdict.

The article is devoted to the justification of the synthetic concept of legal understanding on the example of the conservative legal ideology of Russia. The study proves the peculiarity of the Russian traditionalist concept of law based on the works of domestic conservatives, analyzes approaches to legal understanding through the prism of traditional settings, assuming the unity of religion, morality, and law in the form of the concept of „truth”. The hypothesis that the legal understanding in Russian conservatism is a unique synthetic theory of law differs from combining natural law, positivist, and sociological concepts of legal understanding, which are alien to one another. Thus, the main postulates of the synthetic concept of law are put forward. First, the basic idea of the synthetic concept of law is to balance the formal law and the inner moral, religious, moral, and ethical attitudes of man. In other words, the action of law and other social regulators must be in inseparable unity. Secondly, the synthetic concept of law emphasizes the importance of considering people’s identity and traditional legal attitudes. The method of absorption of cultures prefers the synthesis of the best achievements of political and legal thought of different cultures. Third, the synthetic concept of law is of an applied nature. Our analysis revealed a correlation between the secularization of society and the decreasing role of traditional regulators, between the predominance of law and the growth of crime, and between the expansion of state coercion and the decline in the social order. Consequently, to increase the role of other social regulators, to increase the degree of social order and to reduce crime, law must incorporate spiritual principles to be an element of living, the organic connection of religion, morality (tradition), and formal law in a single regulator „Truth”.

The purpose of the article is to present the activities of the District Court in the first years after the end of war. The author discusses not only issues related to the shaping of the judiciary in Vilnius and the Vilnius Region, but also describes the then difficult political situation regarding those lands.  The text presents in detail the structure of the Vilnius District Court and the profiles of the lawyers and politicians who significantly contributed to its creation, as well as the legal status which underpinned the  establishment of this institution.

The article concerns the possibility of applying the institution of a special recidivism (Article 64 § 1 and 2 of the Penal Code) in the event of crimes extended over time. The problem concerns cases where the five-year limitation period for recidivism expires before the end of such crime. The author assumes that the time of committing this crime includes the time interval from the commencement of
the first behaviour fulfilling out the elements of criminal act to the end of the last behaviour. Consequently, commencing an offense before the expiry of the limitation
period allows applying the statutory solutions provided for in Article 64 § 1 and 2 of the Penal Code. The end of the crime is not decisive.

The author discusses the consequences of the resolution of Supreme Court of October 19, 2018. The main question concerns the scope and prerequisites of the effective declaration of successor, made on future, accepting the succession estate, the declaration disclaiming the estate, or the consequences of remaining silent, i.e. inactivity (“silence”). The issue is related to the nature and structure of the acceptance of a succession estate as a unilateral legal act.

The commentary concerns the Supreme Court’s decision on the admissibility of dismissing the prosecutor’s action in a case to establish the ineffectiveness of paternity recognition
owing to inconsistency with the principles of social coexistence, if the recognition takes place after the birth of a child. The author points out that the ratio decidendi of the resolution is too restrictive and may consequently be misleading. The clarification: “done after the child was born” should be removed from the ratio decidendi. Each prosecutor’s legal action is subject to assessment on the basis of its compliance with the principles of social coexistence, so is also a legal action to determine the ineffectiveness of paternity recognition no matter if it takes
place before or after the child is born or even before the conception.