No. 2Prawo i Więź Nr 2 (49) 2024

James Madison, known as “the Father of the Constitution”, was one of the most sophisticated thinkers of his time. He was also a passionate defender of the Philadelphia Constitutional Compromise. One of its core elements was a conception of federalism, which Madison defended throughout his life. This was the reason why he fought against Hamilton, who wanted to expand the power of the federal government, and later against nullifiers and radical supporters of states' rights. In this article, the author analyzes Madison’s concepts of federalism and divided sovereignty, arguing that Madison was not inconsistent, but always subordinated his theory and practice to defending these two core values.

The purpose of this article is to analyse the interconnection between the regulation of the financial market and the principles of freedom of establishment and freedom of capital movement. Namely the author would like to verify, if the above mentioned principles have the potential to limit the EU legislator in the way that he is trying to regulate the financial sector. This question is fairly important, as protectionist phenomena are increasingly visible in the EU especially in times of crises like pandemic or war in Ukraine.

The existence of freedom of establishment and freedom of capital movement have without any doubts positive impact on the development of internal market as it protects cross-border investors from excessive national regulation. But that author would like to underline that on the other hand, it constitutes quite a regulatory challenge for the legislator who wants to introduce certain restrictions or certain higher level of supervision on the financial market.

As a consequence, it can be stated that the freedoms that characterize the EU internal market are an additional reason for the existence of the so-called incomplete law on the financial markets, because this specific sector cannot be fully regulated both at national and supranational level. In this context, this article may be an impulse to initiate a discussion on the reactivity of the national and European legislator in times of financial crises and on the effectiveness of financial market regulation.

Abstract

EU Approach to Display of Religious Symbols in the Workplace by Employees

The author analyzes the judgments of the Court of Justice of the European Union concerning the principle of treatment, the prohibition of displaying any visible religious, ideological and religious symbols in the workplace. It determines that the introduction of internal legal regulations by entrepreneurs prohibiting the wearing of visible religious, ideological and political symbols in the workplace shall not be considered as cases of direct discrimination on the basis of the above-mentioned criteria: religion, belief and politics. A necessary condition for the effectiveness of in-company regulation is that employers apply it to employees in a general manner and without distinction. Different indirect treatment of employees due to religion and religious beliefs, is justified by the intention of the entrepreneur to conduct towards clients and users is the policy of religious, ideological and political neutrality. Indirect discrimination in matters of religion, belief and politics may be justified in the workplace when the prohibitions introduced by the entrepreneur prohibited all visible forms of expressing religious, ideological and political beliefs. Direct discrimination based on religion, world view and politics may be sanctioned by the employer when it is more conspicuous. When establishing the standards for the protection of religious freedom, one should take into account the possibility of using national provisions for the protection of religious freedom, more favorable than the EU protection rules.

Key words: permissibility of wearing religious symbols in the workplace, direct and indirect discrimination, politics, religion, worldview, policy of neutrality, symbols, internal rules of the workplace, prohibitions on wearing Islamic headscarves

At the turn of 2023/2024, several bills were submitted to the Polish Parliament that aim to expand the scope of legally permissible termination of pregnancy. The solutions they propose are diverse. On the one hand, they contain quite moderate proposals for restoring the so-called "abortion compromise" in Poland by introducing a eugenic ground for terminating pregnancy. On the other hand, extremely liberal projects have been submitted based on the assumption that a woman has the "right to abortion" in the early stages of pregnancy. The article aims to assess the solutions contained in these projects regarding the issue of criminal law protection of human life during prenatal development, taking into account constitutional standards, their systemic coherence and the principles of correct legislation.

The emergence of cyberspace warfare as a dominant domain of contemporary conflict has brought forth a multitude of intricate challenges for international humanitarian law (IHL), specifically concerning the foundational principle of distinction. This principle, hailed by the International Court of Justice as a 'cardinal' and 'intransgressible' tenet, serves as a cornerstone of IHL, prohibiting deliberate attacks on civilians and civilian infrastructure. In this cyber age, where warfare transcends geographic borders and occurs within an interconnected, borderless realm, traditional IHL faces a significant adaptation challenge. This article delves into the profound challenges faced by the principle of distinction within the context of cyberspace warfare, contextualizing the nature of this emerging battlefield. Unlike conventional warfare, cyberspace warfare is characterized by its dual-use environment, intricate civilian-military interdependence, and inherent ambiguity in attributing responsibility. Distinguishing between combatants and civilians in cyberspace remains a contentious issue, compounded by the extensive civilian participation in cyber activities and the unclear concept of “direct participation in hostilities”in this context. Furthermore, the principle of distinction faces significant hurdles when applied to objects in cyberspace. The blurred lines between civilian and military networks, coupled with the unpredictability of cyberattack consequences, challenge the traditional IHL framework designed for tangible warfare. The article underscores the importance of establishing consensus on characterizing cyber operations as 'attacks,' irrespective of their physical or non-physical effects, ensuring the principle of distinction's continued relevance. It highlights the necessity for comprehensive legal frameworks tailored to the nuances of cyberspace and the urgent need to bridge the gap between traditional IHL and the distinct challenges posed by digital conflict. As technology continually redefines the boundaries of warfare, upholding these principles is crucial in safeguarding humanity amid the challenges of modern warfare. Moreover, this article addresses the compliance of Russian cyberattacks against Ukraine with the principle of distinction, highlighting the pressing need to examine the application of IHL in real-world cyber conflicts.

Wspólnota mieszkaniowa często boryka się z problemami w dochodzeniu należności od zadłużonych właścicieli lokali. Problem ten wynika z faktu, że osoby te są jednocześnie członkami wspólnoty mieszkaniowej i właścicielami nieruchomości, co oznacza, że są zobowiązane do ponoszenia kosztów związanych z utrzymaniem i zarządzaniem wspólną nieruchomością.

Zgodnie z przepisami prawa, każdy właściciel lokalu w budynku wielorodzinnym jest zobowiązany do płacenia swojej części kosztów związanych z utrzymaniem i zarządzaniem nieruchomością, takimi jak koszty remontów, eksploatacji czy zużycia mediów. W przypadku braku płatności przez właściciela lokalu, wspólnota mieszkaniowa ma prawo dochodzić należności od zadłużonego właściciela.

Jednakże, problemem jest to, że w przypadku gdy dłużnik nie wykonuje swojego zobowiązania, wspólnota mieszkaniowa ma ograniczone możliwości dochodzenia należności. Często zdarza się, że zadłużony właściciel lokalu nie posiada wystarczających środków finansowych, aby spłacić zadłużenie wobec wspólnoty mieszkaniowej. W takiej sytuacji, często jedynym sposobem na odzyskanie należności jest sprzedaż lokalu na drodze egzekucji sądowej.

Dochodzenie należności od zadłużonych właścicieli lokali we wspólnocie mieszkaniowej wymaga wiedzy i doświadczenia w zakresie prawa cywilnego i administracyjnego. Wymaga to także czasu i nakładów finansowych na prowadzenie działań egzekucyjnych, a także może prowadzić do konfliktów między członkami wspólnoty mieszkaniowej.

Aby ułatwić dochodzenie należności, można stosować narzędzia i technologie umożliwiające bardziej efektywne zarządzanie należnościami, w tym elektroniczne rozliczenia i innowacyjne systemy monitorowania płatności. Wspólnoty mieszkaniowe mogą również współpracować z zewnętrznymi firmami, które zajmują się windykacją należności, a także prowadzić szkolenia i kampanie edukacyjne mające na celu zwiększenie świadomości członków wspólnoty na temat ich zobowiązań finansowych i porządku domowego.

Aim of this paper is to explain relationship between court and the tribunal of arbitration. Resolution of disputes in banking sector has always received the attention of not only the parties involved in the process, but also paid special attention to the general opinion. The alternative resolution of banking disputes through arbitration should be considered as an efficient and quick way of resolving disputes. This paper examines the importance of resolving disputes in banking sector through arbitration versus regular courts, advantages and disadvantages, especially in banking sector of Kosovo.

Using Kosovo as a case study, and some cases at the CJEU the article focuses on how the arbitration of cases in the banking sector has impacts the issue of disputes has existed for a long time, a significant number of unresolved cases in the banking sector, in large monetary values ​​are blocked in the judicial system. With the alternative resolution, those tools would be placed in the function of the country's economy, and yet so far this process has not been used as much as it should be in Kosovo. The research uses qualitative methods and focuses on patterns in existing documents and empirical case studies, and also the resarch uses comparative method involving European Union (EU) states.

The article examines the impact of arbitration as a quick and efficient resolution to disputes in banking sector. The rules provide a well-structured procedure and institutional framework to ensure that arbitrations are conducted with integrity, efficiency, and fairness. also the sustainable economicdevelopment of country.

Article focuses particularly on the growing popularity of arbitration in the banking sector in Kosovo, ultimately, arbitration as a dispute resolution procedure, especially disputes that are related to the obligation of a policy, extent of a loss or damage and other related issues with the terms of the insurance contract (policy).

So, the actors of the banking sector in the EU and especially in Kosovo, including licensed insurance companies or insurance brokers, cannot deny the arbitration of a dispute. It concludes that the quick and effective resolution of disputes that come from the banking sector should see arbitration as the most efficient alternative for resolving disputes with greater professionalism and safety.

In the article entitled “Does the Therapeutic Privilege Reduce Patient Autonomy?” the above-mentioned institution of medical law, which enables the physician to limit the information on the health condition and prognosis provided to the patient in the diagnostic and therapeutic process, was characterized. Due to the fact that the said privilege has its source in Art. 31 Sec. 4 of the Act of December 5, 1996 on the professions of physician and dentist, and its ethical dimension results from Art. 17 of the Code of Physicians’ Ethics, both regulations were subjected to a detailed analysis. The paper also presents selected views of the legal doctrine on the way of understanding "patient autonomy". Using the dogmatic-linguistic method, axiological analysis and teleological analysis, the regulations expressed in Art. 31 Sec. 4 of the Act on Patient Rights and the Patient's Rights Ombudsman and Art. 17 of the Code of Physicians’ Ethics. By focusing not only on de lege lata, but also constructing de lege ferenda postulates, an answer was given to the question in the title of the work. The therapeutic privilege was found to limit the patient's autonomy, but it was legitimate and aimed at protecting the patient's well-being.

Law has the role to react and keep up with technological advancements, to ensure protection of the subjects involved, to stress the enforcement of some important values, in order to prevent abuse. Assisted reproductive techniques and surrogacy are no exceptions, as they touch upon many sometimes opposing interest, which are put on one scale. There is no clear consensus on this topic which often causes endangerment, legal uncertainity of the subjects involved. This lack of stability reached its peak in the ongoing armed conflict in Ukraine, where the surrogacy ,,business” used to be a flourishing. Even before the war, there were occurances of jeopardized values, which only intensified. This article sheds light on the legal and ethical complexity of ART and surrogacy, what is the motivation for couples to enter into surrogacy arrangements in Ukraine, and what additional obstacles the war has brought in this practice.

This article deals with the issue of special entitlements of employees caring for children or other family members with disabilities in terms of requesting remote work or being covered by a flexible working time regime. As of 2018, the Polish legislator is introducing special entitlements for this category of employees aimed at reconciling work and caring for a child or family member. The article will present a catalogue of these special entitlements and the procedure for requesting them.

The article discusses the issue of criminalisation of human cloning established by the Article 87 of the Act of 25 June 2015 on Infertility Treatment, within the international and comparative context. The provision prohibiting cloning describes this intervention as the creation of an embryo whose genetic information in the cell nucleus is identical to the genetic information in the cell nucleus of another embryo, fetus, human corpse or remains. It follows therefrom that human cloning is criminalised regardless of the method used and the purpose of this intervention. From the comparative perspective, Polish law is, thus, aligned with the approach considering the so-called reproductive and therapeutic cloning as the same criminal offence. The interpretation of the Article 87 of the ITA raises however serious difficulties generated by the legal definition of an embryo (Article 1 sec. 1 p. 28 of the ITA), which assumes that an embryo is a "group of cells" created as a result of fertilisation, while cloning does not entail gametes fusion. There are also some loopholes in the legal description of the offence in question resulting from the casuistic enumeration of the sources of genetic material used for cloning.

With the introduction of the institution of inheritance management to the Polish legal order, it became necessary for the legislator to regulate numerous regulations of private and public law, related to the activity of the manager after the death of the entrepreneur. 

The special regulation on the tax subjectivity of an inheritance enterprise, and the way of carrying out the management of this enterprise, after the death of the entrepreneur, means the appearance in tax procedures of new, hitherto unknown entities (i.e.: inheritance enterprise, inheritance manager, owners of an inheritance enterprise, etc.), and as a consequence the need arises to determine their legal situation on the basis of the provisions regulating these procedures. 

The problem of subjectivity of the inheritance manager is also when issuing a tax decision, since according to substantive law, the subject of the decision was, until now, the entrepreneur. The purpose of this article is to present the substantive, legal and procedural status of an inheritance manager, and consequently to answer the question whether a manager will be the subject of a tax decision?

The service of the decision is commonly considered in the doctrine and jurisprudence as a condition for the decision to acquire legal existence, to “enter into legal circulation”. A decision which has not been served is treated as an apparent act (“non-act”), which remains outside the realm of law and has no legal effects. It cannot be the subject of an appeal or a request for rectification (supplement or correction). However, the service of the decision is not always a condition for its validity. The Code of Administrative Procedure allows, in certain situations, the possibility of publicly announcing decisions, and specific provisions – the possibility of notifying the addressees of certain decisions by means of communication. In a situation where there are many parties to the proceedings, the question arises whether, in order for the decision to become valid, it is necessary to serve it on all parties or whether it is enough to serve it on at least one of them. Separate problems are the issue of the need to serve on the parties attachments to the decision and the legal assessment of the situation in which even the original of the decision is not provided with the required attachment.

Students and Ph.D. students are members of the academic community who are subject to disciplinary liability for behavior contrary to the law in force at the university, violating students' dignity or doctoral students, respectively. A disciplinary penalty may be imposed in disciplinary proceedings based on the Law on Higher Education and Science and

appropriate application of the Code of Criminal Procedure is consistent with the principle of two-instance proceedings. Legally judgments issued by the appellate disciplinary commission were submitted to the jurisdiction of  administrative courts. At the same time, doubts arise in relation to the use of the phrase "Legally judgments" which are the subject of a complaint to the court. The legislator also resigned from a separate regulation of the procedure of administrative court proceedings in the event of a complaint against the rulings in question, which may be a source of difficulties for entities subject to the verdict, and raises questions about the model of judgments of administrative courts.

The research subject of this article is Dmowski’s concept of the nation, which constitutes the core of his vision of socio-political reality. The research objective of the article is to seek answers to the following questions: how Dmowski defined the nation and whether his views in this respect evolved? Which nation-building factors can be distinguished when analysing his understanding of the nation and which of them accounted for the essence of the nation? Also, whether political conditions influenced his definition of the nation? The analysis of the concept of nation was presented by referring to the nation-forming factors. Dmowski oscillated between various determinants, mainly pointing to morality, instincts and the spirit of the nation. The lack of precision in defining the nation was the result of his political pragmatism, as it provided an opportunity to adapt this overarching concept to political needs. The answers to the research questions posed here complement the rich scholarly discourse on Dmowski, as well as research on nationalisms.

The present article is meant to carry out a concise analysis of origins of modern legal rights which were created during one of the most momentous upheavals in religious and social life - The French Revolution. It presents processes and conditions of creating some of the greatest legal regulations of the early modern period.

The article draws attention to a certain paradox - a well-ordered legal system which emerged from a turbulent and bloody revolution. Not to mention another paradox, the revolution took place in the Age of Enlightenment and was led by the people representing this very humanistic trend.

The experts in the field state that The French Revolution is an ongoing process, not a sequence of events in a particular period starting from 1789. The expression of this process is shaping new legal rights such as abortion law, same-sex marriages law and many others.

The content of this article shows in a synthetic way the usefulness of the theory of the organized action cycle, the concept of which was developed by a French chemist and physicist,and at the same time the organizer of work processes in various units, Henry Louis Le Chatelier.The theory was presented as a useful philosophy of efficient operationin various areas of managerial work and social life.It was pointed out that it consists of three phases: the preparation phase (defining the objectives of the action, planning, acquiring resources) as well as the implementation andcontrol phases.The article characterizes the particular phases, showing a number of their important details, such as: types of goals, features of a good plan, the process of resource management, features of an ideal efficient organization, and types of control and its validity in management.The whole work ends with a summary, which shows that the proper use of the assumptions of the organized action cycle theory can be a source of various successes in managerial work and social activity.

In Vietnam, in case a quit or retired civil servant discovers a violation during the working period, civil servants will be removed from their previous posts. This sanction raises many concerns about whether it is effective when removing their previous posts is simply the removal of the name but does not actually affect any interest in the person being punished. This article provides an overview of anticorruption work in Vietnam throughout history and comments on sanctions for the removal of previous posts in comparison with the laws of other countries to come to the conclusion that this is an inferiorly feasible and effective measure. This research helps readers access accurate and objective documents about the current situation and results of anticorruption prevention and control in Vietnam worldwide. More specifically, from the contradictions and irrationalities that the research has pointed out regarding sanctions for removing previous posts of corrupt civil servants, the authors hope to pave the way for in-depth research on the regime. This article aims to eliminate the construction of sanctions that are only formal in nature and have no practical value.

The commentary deals with in a case related to exposure to danger during the COVID-19 pandemic due to the unauthorized departure of an infected person from the hospital. The court's ruling was criticized therein. According to the author, the court adopted an incorrect legal classification of the perpetrator's behavior, applying art. 161 § 2 of the Polish CC and the structure of a continuous act (art. 12 q 1 of the Polish CC). However, he did not consider accepting an attempted crime, or qualifying it under Art. 165 § 2 of the Polish CC.