No. 2 (45)

The controversy between the adherents of ius-naturalism and the adherents of legal positivism, pursued intensely for more than 200 years, did not lead to any definitive conclusions. Its main result is only making these two legal-philosophical views more precise and refined. One of the main reasons for this state of affairs seems to be that endorsing one of these views depends mainly on how one resolves other meta-philosophical or philosophical problems. The author develops this general thesis in the context of the controversy about the nature of conscience. The author distinguishes two positions in this controversy (the reductionist and the non-reductionist) and argues that the former leads to the acceptance of legal positivism and the latter to the acceptance of ius-naturalism.

Isaiah Berlin is widely recognized as a champion of freedom. To a lesser extent, he is known as a pluralist who drew attention to the diversity of values surrounding us, pointing out that they cannot be reconciled. We must be aware that perhaps one day, we will have to choose between the values that are important to us and that we will have to opt for only one. This choice will be important for creating the legal order; however, according to Berlin, every law inevitably violates some freedom, and we should be ready for such a limitation. The author draws attention to the value of freedom and responsibility and answer whether they cannot be reconciled.

In scientific works devoted to legal phenomena, the research method of modeling is used more often in addition to traditional techniques. This method is used for research, heuristic purposes, and teaching. It is a way of transferring
knowledge about the modeled object, which allows one to understand a certain phenomenon. Like other research methods, this one was not created by legal scholars. This method was obtained from different scientific disciplines, and
the models constructed are defined differently in various fields of science. The author tries to formulate a general definition of a „model” that could be applied in various disciplines, including legal science. Such a definition would
be based on a common range of characteristics, functions, and types of models developed by scientists from different fields of study.

Remote and hybrid hearings differ from traditional ones held in the halls of court buildings. They shape new patterns of formal court conduct and professional and non-professional trial participants. The author presents comparative analysis of some changes in the rules of behavior of judges and, above
all, participants in proceedings related mainly to the entry of participants to the court and the courtroom in the e-court. A legal student research group conducted a participant observation and examined remote hearings during the summer of 2022 (June-October) in Polish civil courts. Many behaviors currently observed during remote and hybrid court proceedings violate procedural rules, etiquette norms, and organizational and technical norms that perpetuated for tens or even hundreds of years.

The concept of homo sacer (coined by Giorgio Agamben in his most acclaimed work Homo sacer. Sovereign Power and Bare Life) denotes a person who lives in the shadow of death, perceived as a persistent abuse of power by the state. The author uses this concept in the analysis of the right-to-life construct in the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. The author also tries to demonstrate the effectiveness of juxtaposing the exercise of the right to life with the sovereign’s competence to decide on an individual’s death.

The author presents arguments for the admissibility of recognizing the right to strike under the current legislation. The author’s main goal is to show the right to strike in relation to the Constitution, the law on collective disputes, and, above all, certain types of strikes and limitations on the right to strike. The general strike can be considered a practical necessity under current economic ties and a form of interest protection in the public sector, subject to constitutional protection. The new legal regulations should consider this fact or atleast not restrict the existing legal forms of implementing the general strike.

The author analyzes how the axiology underlying animal protection looks from the perspective of over 20 years from the Animal Protection Law enactment. One of the most famous judgments related to animal issues, i.e., the opinion
of the Constitutional Tribunal of 10th December 2014 on the prohibition of ritual slaughter, does not lead to optimistic conclusions. In the reasons for the judgement, the Tribunal attempted to analyze the axiological foundations of the legal protection of animals. Still, the diagnosis seems quite superficial and, above all, highly outdated. The author presents the axiological foundations of the legal protection of animals. According to many authors, virtue ethics, experiencing a renaissance in moral philosophy and not the most popular utilitarianism and deontology, can best provide such foundations.

The author presents the issue of cohabitants appearing in civil proceedings in various procedural roles and related rights. The author analyzes several selected institutions, such as the exclusion of a judge, the right to refuse to testify, and exclusion from participation in an auction, the application of
which should take into account the fact that the persons concerned (respectively: judge, witness, a participant in the auction) remain whit the party to the proceedings in cohabitation. Meanwhile, the Code of Civil Procedure lacks relevant regulation. For these reasons, the author attempts to propose solutions that will make it possible to take into account the fact that persons participating in civil proceedings in various procedural roles may remain in cohabitation with a party, which in turn may affect the respect for the rights of these persons and the parties to the proceedings.

The author presents how human rights are understood, their relationship with labor law, and the axiological foundation of legal and labor legislative solutions in the ideology of human rights. Then, by analyzing the applicable legal provisions, he identifies specific examples of norms aimed at protecting the
fundamental rights of individuals, such as the right to rest, protection of family life, or safe and hygienic working conditions. The author shows the significant role of labor law in this field, one of the main goals of which is to guarantee the
effective implementation of the rights of working people and their families. He also presents critical remarks addressed to the legislators that are not consistently guided by the logic of protecting human rights against contractors other than employees, even though these human rights are universal and common.

The paper’s subject is safeguarding the child’s interests even before birth, especially in the context of its relationship with the father. The author starts by showing the discrepancy between the civil status and the biological truth and the need to establish the legal origin of a child even before birth. The author analyses the topicality of the legal prerequisites for establishing the child’ descent from the father in a situation of divergence of biological reality and legal origin. In particular, the author focuses on the situation of admissibility of the denial of paternity and the judicial determination of paternity before the birth of the child as well as the appropriateness of the solutions adopted for the acknowledgment of paternity and the determination of paternity through the use of medically assisted procreation techniques.

The author aims to find the optimal method of regulating the contract of carriage in domestic law. The author considers the method of independent (single) regulation of this contract, including the implementation into national law of solutions arising from international conventions regulating the contract of carriage in particular branches of transport, the method of regulation by reference to convention law, and the method of incorporation into internal law of provisions taken from international conventions. Having considered the problems resulting from the assumed degree of integration of national
regulations with the solutions stemming from international law, as well as the unifying or branch character of the regulation, the author argues in favor of adopting a unified regulation, included in the Civil Code, which appropriately
formulated references to international conventions should accompany.

The author analyses a situation in which a married person loses the ability to run their affairs in personal property management due to dementia disorders. She proposes a reform of the provisions of the Family and Guardianship Code
intended to support people suffering from mental disorders when the patient has not previously appointed a proxy and, due to his current mental state, cannot appoint one anymore, and incapacitation appears as too far-reaching, and thus disproportionate and unnecessary interference in the legal sphere of the person. Therefore, this paper is a voice in the ongoing discussion on raising the standards and making the protection of older adults more flexible in the sphere of private law.

The Civil Registry Records Act of 28 November 2014 introduced new solutions to the invalidation and determination of a content of a civil record. Article 39 sec. 2 of the Act grants the court hearing a case for invalidation of a civil status record the power to decide on its initiative to replace the invalidated record with the new one. If the court exercises this power, it is obliged to determine the content of the new record by Article 40 in principio of the Civil Registry Records Act. The decision to invalidate the previous record does not have to become final and binding in advance. Proceedings for invalidation of a flawed civil status record that records an actual event (i.e., birth, marriage, or death) should not end without  determination of a new record.

The author analyzes the applicability of certain provisions on in solidum solidarity. The doctrinal dispute that has emerged in this sphere, arising from thelegitimacy of the application of in solidum solidarity provisions, measures up against the now well-established pragmatism of the judicature. The author
presents a two-fold view of the applicability of the regulations in question. She offers the doctrinal critical view and compares it with her point of view, supported by the achievements of other authors and jurisprudence on the possibility and necessity of applying in solidum solidarity. Author's assumption is based on the fact that, despite the lack of regulation of such solidarity within the Polish legal order, its actual occurrence in civil law relations is undeniable.

The author presents the relationship between the freedom of speech of the First Amendment and the Art. 15 U.S.C. § 1052(a) Lanham Act. The analysis is mainly based on the views of the doctrine and landmark decisions of the Supreme Court of the United States regarding this matter. All these allow us to assess and determine the consequences of the optics imposed by the Supreme Court.

The authors discuss one of the particular prerequisites of an extraordinary appeal – a gross violation of the law (see Article 89 § 1 p. 2 of Law on the Supreme Court). They analyse the indicated concept in the doctrine and jurisprudence to date. They include jurisprudence of the Supreme Administrative
Court and the Supreme Court, both in cases other than based on an extraordinary appeal and proceedings based on an extraordinary appeal that has been carried out. The authors extensively present the understanding of this prerequisite in individual cases concerning inheritance, payment order, real
estate, reopening of proceedings, and protection of personal rights. They compare the jurisprudence of the Supreme Court to its earlier jurisprudence in discussed matters.

Art. 296 of the Penal Code regulates crimes of mismanagement. It criminalizes behavior causing significant or large property damage to a natural or legal person or organizational unit without legal personality. The main subject
of this research is to define the property damage resulting from this crime. This concept is crucial considering that it impacts both civil and criminal law, which has far-reaching consequences, as well as the interpretation of legal provisions. The problem still appears to be up-to-date, particularly due to
subsequent amendments to the Penal Code and new concepts relating to the discussed type of damage in jurisprudence.

The author aims to demonstrate the need to amend Article 198 of the Penal Code. The objections raised in the paper lead to the conclusion that the current wording of this provision is not the result of a well-thought-out decision of a rational legislator. The author refers to other fields of knowledge and
puts forward appropriate de lege ferenda postulates regarding the desired changes in Article 198 of the Penal Code. Postulates are based on a dogmatic analysis of the penal provision (formal-dogmatic method).

The author presents issues related to implementing the right to defense in disciplinary proceedings of soldiers from the perspective of the Act on Defense of the Homeland. The author focuses on the scope of the defense action, and
the content of the substantive right to defense, including, among others, the right to remain silent and the right to defense. The dogmatic method was used for the research.

The author focuses on the Polish Financial Supervisory Authority as a Pension Supervisory Authority. The pension reform in 1998-1999 led to the creation of new types of activities related to the provision of pension security and new financial institutions operating in this area, which resulted in the need to ensure appropriate state supervision. Initially, in 1998, specialized pension supervision authority was established; in 2002, this supervision was entrusted to a multisectoral authority; and since 2006, pension supervision
has been carried out by an integrated financial market supervision authority (Polish Financial Supervision Authority). Pension supervision is specific and shows significant differences from supervision over other financial market
segments.

The author characterizes the legal aspects of financing the local government roads in Poland. The author analyses the correspondence between current legislation and the practice of Polish self-government, shows details from individual local government units, and highlights the problems local govern-
ments face in road management. In the final part, the author points out the discrepancies in the current jurisprudence and proposed changes that would improve the financing of local government roads in Poland.

The premise of impoverishment in the overpayment of tax has been disputed in doctrine and jurisprudence for many years. The Supreme Administrative Court (resolution I GPs 1/11) took a position on the legal relevancy of the overpayment that is paradoxical, instead of trying to unify the jurisprudence on
this issue. The resolution led to even greater jurisprudential disputes. It has not been established for more than ten years whether the resolution has a binding effect on all indirect taxes or only on the excise tax on electricity. The author focuses on how the resolution binds other administrative courts and their jurisprudence.

The author analyses the resolution of the Supreme Court of May 28th, 2021 (III CzP 29/20). The author generally positively evaluates the position of the Supreme Court expressed in the commented resolution, citing additional arguments in favor of the accuracy of the decision. The author also undertakes a polemic with one of the views of the Supreme Court expressed in the reasons for the commented resolution. In addition, based on the analyzed issues, the author notices one more important thread that raises numerous controversies, which is also the subject of this study.