No. 3 (37)

The author analyses the possibility of applying the analytical theory of law by Herbert Hart and the law as integrity theory by Ronald Dworkin to describe the law, including the process of its application, in legal systems based on a monocentric array of sources constituting the codified law. Before the main discussion, the author deals with the main concepts of both theories. As far as the analytical theory by Herbert Hart is concerned, he focuses on its chief methodological aspect and criticizing
the theory of law as commands of a sovereign by John Austin. The author also discusses Hart’s deliberations on the semiotic analysis of directive statements based on the theory of performative utterances, which are valuable from the perspective of continental jurisprudence. Thanks to Hart’s using the pragmatic approach to analyze the language of the law, it was possible to describe various manifestations of this phenomenon in the continental legal culture, especially by allowing me to distinguish norms
established via law-making vs. law-applying processes in a more precise way. Next, the author presents the main concepts of R. Dworkin’s theory, focusing not only on the famous division of law as a rule and principle but also on less well-known Dworkin’s approach to criticism, which concentrates on positivists’ view entangled in „notional nominalism”. That law can be interpreted via semiotic analysis only referred to by Dworkin as „semantic sting”.
Both theories were established in legal interpretation within the culture of common law. They also aimed to adequately describe and explain the idea of precedents, when a judge from an English-speaking country could not make use of a codified law rule but had to make the law at their discretion (so-called complex cases). Both the concepts required recognition of this aspect and to adapt their assumptions to the continental legal culture specificity.

The article presents the issues of free legal aid and citizens advice in the light of applicable law, taking into account the results of public discussion and the evolution of legislative solutions. The system of free legal aid financed from the state budget has been operating in Poland since 2015. The enactment of the act was preceded by a broad discussion which was attended by both legal circles and representatives of non-governmental organizations. However, the adopted solutions did not meet the hopes, and their critical assessment resulted in the commencement of further legislative works. In connection with the amendment of legal provisions, the nature and scope of the concept of citizens advice and its role in relation to free legal aid should be clarified.

The author presents the issue of the rebirth of Poland in 1918 from the perspective of international law. It was quite an important subject of legal studies conducted 100 years ago. Today this matter has been forgotten and, therefore, it is worth reminding of it from a new temporal perspective.
The subject-matter, on which this article is based is provided by the most significant analyses performed by the representatives of the Polish scholarship of the interwar period, including in particular the works of the following professors: C. Berezowski, S. Hubert, Z. Cybichowski, W. Komarnicki, S. Bukowiecki, and documents of that period and stances and opinions of some leading foreign international jurists.
While it would be easy to present the views expressed by authors, it is difficult to discuss the subject itself because the stances taken by the representatives of scholarship about it are not uniform. One may even say that they are confrontational. The said contradiction also follows from the incoherent international practice and the internal practice of the authorities of the Second Republic of Poland.
The article not only collects and presents those contradictions but also indicates their significance and practical results. On the other hand, it aims at reconciling them, though perhaps not at the legal level, which is impossible in principle, but rather at the political level, which considers an additional aim that appeared after 100 years. It is – as stressed in summary – the need to promote Polish history (the State’s image) abroad. Hence, the text was written in English.
The article discusses the following matters: the historical and legal background of the reconstructed Polish statehood; the conception of the emergence of Poland as a new State; the conception of the continuity of the statehood that had existed before the partitions (the end of occupation); the approach of the domestic judiciary to the issue of the Polish statehood; the stance taken by the allied forces: recognition and treaty solutions; the issue of Polish borders; the succession of debts incurred by the partitioners; the succession of nationality. Thus, as far as possible – within limits imposed by editorial requirements – the text constitutes a complete analysis of the issue.

European Union sanctions (restrictive measures) against cyber-attacks as a legal instrument of cyber diplomacy constitute a new legal solution created in 2019. The Union
used it for the first time in 2020 against China, Russia, and the DPRK cyber-attacks. These sanctions are adopted basing on the provisions of the EU Treaty (Common Foreign and Security Policy, Art. 29) and Art. 215 of the Treaty on the Functioning of the EU. They are a part of a broader political concept for the Union, established in 2015, known as cyber diplomacy. The author explains, in the context of the general assumptions of the application of restrictive measures by the Union and its attitude to cyberspace, how cyber-attacks are understood as a premise for sanctions, what sanctions are envisaged in the event of cyber-attacks,
and what are the rules and procedure for their adoption and implementation. EU regulations concerning restrictive measures in response to cyber-attacks are not an entirely satisfactory legal solution. The author concludes the article with their evaluation

The article analyses the Agreement between the Republic of Poland and the Kingdom of Denmark concerning the Delimitation of Maritime Zones in the Baltic Sea of 19 November 2018. The maritime dispute in the Baltic Sea was one of the most challenging issues in relations between Denmark and Poland. The States were divided on how to apportion the maritime zone of 3.500 km2, where the economic zones of Denmark and Poland had not been delimited for several dozen years. The agreed single maritime boundary split Poland and Denmark’s continental shelves and exclusive economic zones in part of the Baltic Sea south of Bornholm. The maritime dispute settlement coincided with the PolishDanish plans to build the Baltic Pipe natural gas pipeline at the bottom of the Baltic Sea. It prompted the two States to put an end to their maritime border dispute. The International Law of the Sea provides
that the delimitation of maritime zones between States with opposite or adjacent coasts shall be effected by agreement based on international law to achieve an equitable solution. The purpose of the present article is to analyse the Polish-Danish Agreement in light of the principles governing the maritime delimitation and the statement made by the Polish government on its successful negotiations.

The authors present the institution of revocation of firearms license in the light of the judgment of the ECtHR in the Kotilainen and others v. Finland case. Revocation of firearms license and preventive seizure of firearms are the powers of the authority issuing the license. The authors present the Strasbourg standard and the revocation of firearms license and preventive seizure of firearms in the
Polish legislation in the light of the standard. Both the jurisprudence of the ECtHR and the jurisprudence of the Polish courts in this respect were analysed. A critical
analysis was also made of Polish regulations on the revocation of firearms licenses and preventive seizures. The authors propose changes to the rules currently in force
in this area.

Accessibility is one of the pillars on which the Convention on the Rights of Persons with Disabilities (CRPD) is based. It is also one of the most complex and not yet fully recognized human rights institutions. The Convention defines accessibility as one of its general principles. It does not
explicitly constitute a right to accessibility per se. However, interpretations of the norm of accessibility indicate divergent views on whether we are dealing with a new human right. Defining what accessibility is in terms of human rights is of utmost importance for implementing the Convention.
The Committee on the Rights of Persons with Disabilities in its General Comment No 2 (2014) „Article 9 Accessibility” does not provide a clear answer to the legal status of accessibility. The controversy that the right to access causes is part of the general concerns that “new” human rights have always raised. The reason for the lack of clear acknowledgment of accessibility as an inherent human right is the very nature of these rights. Human rights are dynamic and continue to evolve. The Convention blurs the distinction between civil and political rights as well as
economic and social rights more clearly than previous treaties and, consequently, takes a holistic view of the idea of human rights.
Having analyzed the accessibility norm laid down in Article 9 of the CRPD, the Author shares the opinion that the CRPD reformulates the existing human rights and enriches their content to such an extent that it is possible to distinguish also new human rights on its basis, including the right to access per se. However, the scope and content of the right are still not entirely agreed upon. Nevertheless, it certainly contributes to greater social inclusion and the gradual
phasing out of measures aimed at “special” treatment of people with disabilities in favour of removing barriers and implementing universal solutions for all.

The author considers the legal nature of post-penal protective measures applied to perpetrators posing a threat to other people’s life, health, or sexual freedom. The author analyses the essence and purpose of applying the protective measures introduced into the Polish legal system in 2014. Previous regulations concerning this scope are also indicated in the article. The author assesses the current solution from the point of view of the legitimacy of the existence of protective measures to protect the public against the dangers posed by a specific category of perpetrators.

The author analyses the normative definition of the term „soldier” from the provision of Art. 115 § 17 of the Polish Penal Code. The changing military reality and the creation
(next to land, sea, air, and special forces) of the fifth type of the Polish Armed Forces - i.e., the Territorial Defense Forces resulted in the introduction of Art. 115 § 17 of the PC hitherto „A soldier is a person performing active military service” with the reservation: „with the exception of territorial military service performed at the disposal”. Both the original wording of the legal definition of the term „soldier” (which until 01.01.2017 referred only to: „persons on active military service”) and the addition of the said limitation to it resulted in deepening (occurring from the very beginning of the introduction to the standard criminal law definition of the term „soldier”) of the impasse regarding the possibility of enforcing criminal, military liability against a soldier in active military service, which according to the legislator (expressed, among other things, in the justification to the Act of November 16, 2016, amending the Act on the universal obligation to defend the Republic of Poland and some other acts) is also a OT soldier at his disposal. This view, according to all regulations
concerning soldiers on active military service, should be considered incorrect.
The above thesis was formulated based on a dogmatic and legal analysis of the entirety of provisions regulating the issue of the formal status of an entity performing or performing active military service.

The author shows that the deadlines for pursuing civil law claims by the accused under the provisions of Chapter 58 of the Code of Criminal Procedure. should be extended since the time limits currently in force under the provisions
of the Code of Criminal Procedure may have negative consequences for the claimant and the criminal proceedings themselves. The author presents arguments
supporting the above thesis. The author also addresses issues related to the very institution of compensation for wrongful conviction, temporary arrest or detention,
and the specification of deadlines for pursuing civil law claims by the accused under Chapter 58 of the Code of Criminal Procedure.

The progressing process of computerization encompasses newer fields of functioning of public entities leading to the improvement of the realization of administrative activities, among other things in offices handling public administration organs. Its range also covers activities connected with the electronic registration of vehicles, resulting in (recent times) a wave of criticism caused by
starting a new version of the telecommunication and data system designed to handle the objective process. The author describes the legal grounds of the electronic
registration of vehicles and establishes the tools intended for its „implementation”.

The authors focus on the most critical legal issues related to the financial and constitutional basis of the State Forests National Forest Holding. Their purpose is to establish and analyze the general and particular principles of the financial economy of this state organizational entity, which has no legal personality and manages forests owned by the State Treasury. The authors also analyze financial connections between the State Forests and a state budget, especially purposeful grants. Due to the scope and aim of the text, the most important of the applied research method is a legal
dogmatic one complemented by financial, legal analysis. According to the authors, whether the State Forests acts as
a public entity or an entrepreneur depends on the undertaken activity. The authors conclude that due to the nature and scope of tasks carried out by the State Forests and their high significance in the environmental and social dimension, it is necessary to amend the Forest Act. It is also
essential to conduct further, broader, and more thorough research in the legal and financial sphere of the State
Forests because there are no valuable studies on this crucial topic.

The author tries to identify and assess unjustified regulatory and administrative barriers for concluding long-term renewable power purchase agreements in Poland,
which corresponds to the requirement of Article 15 section 8 of Directive 2018/2001 of the European Parliament and the Council (EU) on the promotion of the use of energy from renewable sources. The author questions the sufficiency of current legal solutions, promoting the production of renewable energy, to achieve the energy and climate target set by the European Union, proposing as an alternative the popularization of long-term renewable
energy purchase agreements. By analyzing the legal conditions of concluding these contracts, the author points to legal regulations hampering such economical relations
in Poland.

The problem of creating an adequate legal framework governing the essential aspects of the functioning of the intelligence services is, from the perspective of a democratic state and the rule of law, a problem of growing
scientific interest. The research in this field concentrates on finding a proper balance between two constitutional principles – ensuring an adequate level of state security and respecting human rights and fundamental freedoms. This problem is more relevant in Poland because of the role the intelligence services played in the communist system during the PRL (The Polish People’s Republic) period and their negative social perception. Legislative activities, aimed at shaping the relevant legal provisions of systemic nature in line with the general orientations set out in the Constitution of the Republic of Poland of 1997, are possible instruments for modifying this image. These institutions have been created to serve society with full respect for democratic principles and fundamental rights following the essential constitutional principles. The author examines these issues.

A tax collection waiver is a unique privilege functioning pursuant to Article 22 of the Tax Ordinance Act. Apart from this, the said provision regulates equally specific tax reliefs deriving from the preference in question. The author presents the most critical issues related to applying Article 22 of the Tax Ordinance Act. She shows the evolution of legal regulations in the outlined scope, and she analyses the principles and premises for their application. These analyses resulted in the formulation of de lege lata and de lege ferenda conclusions included in the last part of the paper.

It has been a hundred years since the adoption of the first regulations of the right to vacation in Poland. The right to vacation, an element of the right to rest and leisure, is one of the contemporary standards of employee rights in Poland and all Western countries. Unlike other social human rights, the degree of its implementation depends on social and political thought and the role of trade unions.
The research objective of this article is to indicate the evolution of tasks and the role of the state in the implementation of the right to vacation in Poland. The
author analyses the state’s attitude towards exercising the right to vacation during the Second Republic of Poland, the Polish People’s Republic, and the present day.
The author used the comparative method and the analysis of the evolution of the right to vacation.

The author presents the ways of losing an ecclesiastical position considering the 1983 Code of Canon Law norms. In the 1983 Code of Canon Law in canon 145§1, one finds
„stabiliter constitutum”. This term means that every position, whether by Divine or ecclesiastical nomination, is characterized by constancy. This feature gives the ecclesiastical position its subjectivity, regardless of changes in the person holding the post or a situation where the
post is in a state of interest. The ecclesiastical position exists independently of the persons holding it, which means that once called into existence, it lasts. Therefore, the objective and subjective dimensions of the ecclesiastical position are distinguished. Ecclesiastical positions are generally single ones, but in some cases, they can be
performed by collegiate bodies, e.g., Episcopal Conferences in specific countries. The loss of ecclesiastical position in the canonical legal order may occur for the following reasons: expiration of the prescribed period, reaching the age prescribed by law, resignation, transfer, removal from office, and removal of the position. The author explains the reasons for the loss of the ecclesiastical position in the light of the applicable canon law, which is valid throughout the Latin – universal Church.

Gloss to the ruling of the Provincial Administrative Court in Lublin regarding the imposition of an administrative fine on an entrepreneur who did not submit a report on emptying non-drainage tanks on time. The imposed penalty was maintained by the appeal body and the administrative court. The adjudicating bodies in the case did not carry out an extensive investigation into the grounds for withdrawal from the penalty provided for in the amended Code of Administrative Procedure (Section IVa, Administrative Financial Penalties), adopted just to remove the excessive rigor of the national system of administrative fines imposed for formal irregularities, without the possibility of examining the circumstances justifying withdrawal from
their imposition.