Studia Prawa Publicznego

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https://repozytorium.amu.edu.pl/handle/10593/10559

Studia Prawa Publicznego to czasopismo publikowane od 2013 roku w cyklu kwartalnym, którego celem jest przedstawianie procesów zmian i najnowszych tendencji w ustroju i funkcjonowaniu instytucji prawa publicznego. Kwartalnik stanowi forum naukowe zarówno dla teoretyków, jak i praktyków, dające możliwość prezentowania prac z zakresu teorii prawa publicznego, studiów i materiałów z badań, dokumentów międzynarodowych i UE, orzecznictwa trybunałów i sądów, w tym szczególnie sądów administracyjnych, oraz prac uwzględniających działalność podmiotów administrujących (administracji publicznej) i administrowanych (adresatów rozstrzygnięć organów administracji) w rozwiązywaniu problemów praktycznych. Kwartalnik zawiera także przegląd piśmiennictwa (krajowego i zagranicznego).

Studies in Public Law is a quarterly launched in 2013 with an aim to present the processes of changes as well as the most recent trends in the organisation and functioning of public law. The quarterly is a research forum for both theoreticians and practitioners, providing them with an opportunity to present works in the theory of public law, research studies and research materials, studies in international and EU documents, discussions and analysis of court judgments, particularly judicial decisions of administrative courts, as well as studies on the activity of administering bodies (public administration) and entities being administered (addressees of administrative decisions) with regard to their role in solving practical issues. The quarterly contains also reviews of Polish and foreign literature.

Redaktor naczelny: Prof. nadzw. dr hab. Krystyna Wojtczak
Kontakt: Redakcja czasopisma naukowego „Studia Prawa Publicznego”
Al. Niepodległości 53, 61-714 Poznań
Uniwersytet im. Adama Mickiewicza, Wydział Prawa i Administracji
Collegium Iuridicum Novum, budynek Dziekanatu, p. I, pok. 25
tel. + 48 61 829 3160
e-mail: spp@amu.edu.pl
strona www: http://spp.amu.edu.pl
Nazwa wydawcy: Wydawnictwo Naukowe UAM
ISSN ISSN 2300-3936

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Now showing 1 - 6 of 6

Funkcja stabilizacyjna Konkordatu polskiego z 1993 r. wobec Kościoła katolickiego i innych związków wyznaniowych
(WydawnictwoNaukowe UAM, 2019) Borecki, Paweł
The stabilising function is one of the main intended functions of the concordats. It consists in striving to ensure the immutability (stability) of legal norms resulting from the provisions of this type of treaties, and consequently to ensure the relative immutability of legal (and factual) states created or shaped under the concordat government. The Concordat petrifies a model of relations between the state and the Catholic Church. In fact, it protects a certain system of social, political and, to some extent, economic relations. This function in the Polish legal system is guaranteed in particular by the provisions of the Constitution of the Republic of Poland of 1997 (Article 25(3) and (5)) and the provisions of the 1969 Vienna Convention on the Law of Treaties. The Concordat of 1993 is therefore legally difficult to denounce. The Treaty provides a differentiated implementation of the stabilising function. Individual norms of this act, to varying degrees, implement its stabilising function. It seems that it is most fully implemented through detailed standards of an absolutely binding nature. The second category of concordat norms from the point of view of the implementation of the stabilising function should include norms whose implementation depends on a later agreement between the Church and the relevant state authorities. As a third category, one should mention regulations which, when formulating legal norms, refer to canon law or state law. The last group consists of norms, the implementation of which depends, in fact, on a unilateral decision of the state authorities. The degree to which a stabilising function is carried out by the provisions of the Concordat also depends on the level of detail. The Concordat of 1993 is not a full concordat and therefore provides limited stability in the financial and property affairs of the Catholic Church and clergy. In practice, however, the 1993 Treaty, combined with the political strength of the Church, has ensured relatively good legal stability for the Church, although it has not yet been fully implemented and has seen some obvious violations. In many aspects, however, there has been an improvement in the legal position of the Church.
Obsada godności Muftiego Muzułmańskiego Związku Religijnego a zasady Konstytucji Rzeczypospolitej Polskiej
(Wydawnictwo Naukowe UAM, 2018) Borecki, Paweł
There is a dispute in the Muslim Religious Union in Poland over the appointment of Mufti. A schism in this religious community has been going on since 2016. This situation is a source of challenges for state authorities – religious administration and courts – as regards the application of numerous principles of the Constitution of the Republic of Poland of 1997. These principles include: the autonomy and independence of religious associations in their scope, legalism, legal certainty and the trust of citizens in the state and the law created by it. The legal status of the Union is based on anachronistic legal acts: the Act of 21 April 1936 on the relationship between the State and the Muslim Religious Union in the Republic of Poland and the statute approved by the Council of Ministers by way of a decree of 26 August 1936. In practice, the Muslim Religious Union applies an internal statute of 2009. The authorities of the religious administration and courts try to maintain neutrality and not to interfere in the internal dispute in the Muslim Religious Union. This is in line with the standards resulting from the rulings of the European Court of Human Rights and the constitutional principle of autonomy and independence of religious associations. However, there is legal uncertainty. Hence it is urgent to repeal the 1936 law and statute. This may be done either by a decision of the Constitutional Tribunal or by the adoption of a new law based on the Muslim Religious Union’s agreement with the Council of Ministers. However, the revision of the legislation concerning the Muslim Religious Union requires compliance with Article 25 (5) of the Constitution of the Republic of Poland, i.e. the agreement of the Council of Ministers with the Muslim Religious Union. The latter may sabotage any project that foresees the limitation of its competence. The government has limited scope for influence on the Mufti. In conclusion, one may be under the impression that the ruling functions of the state in the Muslim Religious Union have already been paralysed.
Odpowiedzialność kościelnych osób prawnych za czyny pedofilskie duchownego – wyrok na miarę precedensu. Uwagi w sprawie wyroku Sądu Najwyższego z dnia 31 marca 2020 r., sygn. II CSK 124/19
(Wydawnictwo Naukowe UAM, 2020) Borecki, Paweł
The judgment of March 31, 2020, file ref. II CSK 124/19, has great social and legal significance. It is the first Supreme Court ruling concerning the civil liability of church legal entities for pedophilic acts committed by a clergyman. The Supreme Court shared the view of the Court of Appeal accepting the liability of church legal persons in the light of all the facts of the case of Art. 430 of the Civil Code (culpability in supervision). However, it convincingly distanced itself from the position of the District Court (court of first instance) that liability under Art. 429 of the Civil Code (culpability in choice) should be taken into consideration. In the justification of the judgment, the Supreme Court conducted a thorough analysis of the premises for the civil liability of church legal persons for the activities of a religious person subordinate to them. In particular, it stated that if the perpetrator acts for personal gain and the performance of the official activity enables him to cause damage, the superior cannot effectively raise the objection that the subordinate caused said damage only in the performance of the entrusted tasks. Thus, the Supreme Court upheld the interpretation of Art. 430 of the Civil Code, assuming the liability of legal persons for damage caused by a subordinate. It distinctly applied this liability to church legal entities. When appointing the adjudication panel of the Supreme Court, impartiality was preserved. On the other hand, doubts are raised regarding the Court’s neutrality in terms of world-view in some parts of its judgment justification. The judgment of March 31, 2020 must be assessed as brave and just. It has the chance to set the course of judicial decisions in matters of the liability of religious legal persons for pedophilic acts committed by clergy acting under their supervision. The justification of the judgment is understandably critical towards the perpetrator and church legal persons superior to him, and also sometimes towards the provisions of the Code of Canon Law. It should be emphasized, however, that the judgment is not an “indictment” against the Catholic Church as such, and even less so against religion.
Prawodawstwo wyznaniowe z okresu II Rzeczypospolitej we współczesnym polskim systemie prawnym
(Wydawnictwo Naukowe UAM, 2014) Borecki, Paweł
The following religious laws are still formally binding in the contemporary Polish legal system: ordinance of the President of the Republic of Poland of 22 March 1928 on the relationships between the State and the Eastern Old Rites Church without hierarchy chart, the Act of 17 March 1932 on the contributions payable to the Catholic Church, the Act of 21 April 1936 on the relationships between the State and the Muslim Religious Union in the Republic of Poland, the Act of 21 April 1936 on the relationship between the State and the Karaim Religious Union in the Republic of Poland, and the Act of 25 March 1938 on the production and trading in religious and cultic objects. Their compatibility with the current Constitution of 1997 raises certain doubts, while the regulations themselves contain some anachronisms and constitute an isolated phenomenon in the national legal system. What is more, these acts exist in separation from their primary historical context, including the axiological context and the context of the constitutional rights, which is particularly noticeable with regards the relationships between the State and religious unions. As it happens, the standards deriving from those laws have either entirely, or at least partially disappeared due to the desuetudo. From the perspective of a behaviourist approach, acts adopted in 1932 and 1938 are no longer binding whereas those of 1928 and 1936 have largely lost their applicability today. Further, the importance of pre-war religious legislation in the contemporary legal system in Poland is signifi cantly reduced. Most regulations, save for those of organisational nature or pertaining to the legal nature of religious unions and their organisational bodies, are impractical, inapplicable and out of use. What is more, these acts in their current form are not compatible with the principle of citizens’ confi dence in the state and obstruct development of confessional communities, and even undermine the State’s authority. As such they should be urgently repealed or modified.
W sprawie pojęcia wyznaniowej żydowskiej osoby prawnej. Uwagi na tle wyroku Sądu Najwyższego z 9 lutego 2007 r., sygn. III CSK 411/06
(Wydawnictwo Naukowe UAM, 2020) Borecki, Paweł
In its judgment of February 9, 2007 (Ref. No. III CSK 411/06), the Supreme Court formulated a narrow interpretation of the concept of a Jewish religious legal entity based on a formal criterion. In practice, the position of the Court has limited on a permanent basis the reprivatization of real estate to the benefit of Jewish communities and the Association of Communes. This reprivatization has been conducted in a narrow scope for over twenty years by the Regulatory Commission for Jewish Religious Communities. The restrictive interpretation that was adopted for the concept of a Jewish religious legal entity is inconsistent with the principle of correct legislation, with the principle of public trust in the state and its law, and in fact with the principle of social justice. Jewish religious communities in a number of areas are treated worse than the largest or oldest Christian churches. This applies in particular to the issue of membership of Jewish religious communities, tax matters or religious foundations. In addition, the interpretation of the Supreme Court does not take into account the historical forms of the organization of Judaism in Poland. On the other hand, the interpretation adopted on a consensus basis by the Regulatory Commission for Jewish Religious Communities in June 1999 is correct. It is functional. The Supreme Court should weigh constitutional principles and opt for this functional interpretation, instead of adopting a formal interpretation.
Znamiona państwa wyznaniowego. Uwagi na kanwie dorobku współczesnego konstytucjonalizmu
(Wydawnictwo Naukowe UAM, 2017) Borecki, Paweł
An analysis of contemporary constitutions indicates that the number of denominational states is slowly decreasing. However, we also encounter opposite tendencies. The model of a denominational, or a religious state is primarily characteristic for Muslim countries of the Near and Middle East and for a number of Southeast Asian countries. In the last decades, the number of Christian states and secular ideological states has declined signiﬁ cantly. There is a stable group of states with Buddhism as a privileged religion. The religious constitutional norms of states of confession are generally characterised by a high degree of generality. Detailed provisions are seldom and denominational clauses are primarily included among the principles of the supreme constitution. Underlying the religious character of the state lies the rejection of the neutrality of the worldview. It is not possible, on the basis of the constitution alone, to reconstruct a detailed, universal model of a religious state. In the light of fundamental laws, the most common characteristics of religious states are: the negation of the neutrality of the state in worldviews, the acceptance of a particular religion as the offi cial religion, the rejection of the equality of religious associations, the requirement of a head of state to follow the state religion or belief, and the state support for a given confession. The constitutions of most religious states formally provide for religious freedom. In the fundamental laws of some Muslim states, the guarantees for this freedom are, however, silent. The Western political culture fails the characteristics of an organisational unity of the state or the religious apparatus. The socio-political reality of contemporary religious states indicates that this model of statehood cannot be a priori regarded as contrary to the principles of democracy and human rights.

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