Browsing Studia Prawa Publicznego, 2017, Nr 1 (17) by Issue Date
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ItemIn Memoriam - W nauce nie ma pożegnań – pamięci Profesora Jana Bocia(Wydawnictwo Naukowe UAM, 2017) Szadok-Bratuń, Aleksandra ItemSprawozdanie z Ogólnopolskiej Konferencji Naukowej „Nauka i praktyka w służbie człowiekowi pracy: «Inspekcja Pracy – wyzwania przyszłości»”, Wydział Prawa i Administracji Uniwersytetu im. Adama Mickiewicza w Poznaniu, 27 października 2016 r.(Wydawnictwo Naukowe UAM, 2017) Jakubowska, Izabela (opr.) ItemHabilitacje w Polsce Ludowej. Część 1. Warunki i przebieg habilitacji w prawie szkół wyższych(Wydawnictwo Naukowe UAM, 2017) Wojtczak, KrystynaUntil 1965 the requirements and conditions of habilitation proceedings in Poland were governed by the law on schools of higher education. The solutions adopted under that law showed a relatively high degree of stability. In the ﬁ rst years after WWII the habilitation qualiﬁ cation was based on the solutions governing in Poland in the 1930s, with only slight changes introduced in the ﬁ rst month after the end of the war. The ﬁ rst reform of higher education of 1947 left the right to confer habilitation degrees with schools of higher education then in existence and retained the existing order of the habilitation proceedings. However, it implemented a number of rather signiﬁ cant amendments in the area of the requirements needed to be fulﬁ lled at each stage of these proceedings. The right to lecture remained inherent to the habilitation qualiﬁ cation and degree. What changed was the scope of inﬂ uence of the minister of education supervising schools of higher education regarding habilitation proceedings and the appointment of the Main Council of Higher Education with the right of ﬁ nal say and consent to the opening of the habilitation qualiﬁ cation and to run the habilitation proceedings. Habilitation was abandoned by the reform of 1951 and replaced, following the Soviet model, with a higher degree of a doctor of science. Further changes followed in 1958 when it was restored by relevant provisions of the Act on higher education. It was then that more than forty years after Poland regained independence, the habilitation degree was for the ﬁ rst time tied to a successful completion of the habilitation proceedings and earning the degree of a ‘docent’. The Main Council of Higher Education continued to function but its role in habilitation proceedings was reduced to issuing opinions before the minister of higher education decided on habilitation matters. Apart from schools of higher education, the right to confer habilitation degrees was granted to the Polish Academy of Sciences and academic institutions operating outside schools of higher education. ItemPostępowania prekwaliﬁkacyjne jako pierwszy etap udziału w aukcjach OZE(Wydawnictwo Naukowe UAM, 2017) Trupkiewicz, MarcinThe paper describes the legal grounds of prequaliﬁ cation proceedings allowing certain categories of energy producers to participate in the Polish auction system, and thus to create a new system responsible for supporting the development of renewable energy sources (RES). These procedures are of administrative proceedings character but are modiﬁ ed by speciﬁ c legal provisions under the RES regulations. The legislator diff erentiated between two types of these procedures. Although they diff er in speciﬁ c legal provisions, they both pursue to achieve common targets that will subsequently contribute to a speedy development of the RES plants in Poland. Among the main objectives of the prequaliﬁ cation proceeding, the necessity of the regulatory authority to obtain the basic information about the RES installation project must be mentioned. This information not only allows to check the legitimacy of the accession to the RES auctions system but also allows to check the investment documentation of the project, and consequently implement and start the RES installation on time as prescribed by the law. In the initial period, the measures taken by the RES are to be aimed at eliminating form the auction these energy producers who could theoretically win the RES auction but would not, due to legal, technical or ﬁ nancial reasons manage to complete the investment (build and start up the RES installation) within the time prescribed. This would not only impede a competitive conduct of the RES auction but would also prevent realisation of the EU climate and energy policy due to the failure to produce enough electricity to meet the required volume contracted for each new RES installations according the RES auctions. ItemHanna M. Frąckowiak, Postępowanie przed Wojewódzką Komisją do spraw orzekania o zdarzeniach medycznych, seria Monograﬁ e Prawnicze, Wydawnictwo C.H. Beck, Warszawa 2016, ss. 460, ISBN 978-83-255-8375-0.(Wydawnictwo Naukowe UAM, 2017) Jankowska, Paulina ItemRozważania na temat represyjnych i prewencyjnych elementów odpowiedzialności odszkodowawczej na przykładzie instytucji odszkodowania karnego (punitive damages) w świetle orzeczenia Sądu Najwyższego oraz Trybunału Konstytucyjnego(Wydawnictwo Naukowe UAM, 2017) Kochanowski, MaciejThe verdict of the Supreme Court of 11 October 2013 (ﬁ le I CSK 697/12) and the decision of the Constitutional Tribunal of 25 June 2015 (ﬁ le SK 32/14) are discussed and their signiﬁ cance for the understanding of punitive damages analysed. The main problem discussed in this paper is the question whether there is room under Polish law for punitive damages modelled a common law system and whether the adoption of this solution could possibly inﬂ uence the basic premises constituting the liability for damages already adopted. The main focus has been put on the argumentation of the Supreme Court presented in its verdict regarding the possibility of enforcing by Polish courts a judgment in which a foreign court awarded punitive damages, and the arguments of the Constitutional Tribunal regarding the constitutionality of a legal provision establishing a possibility of ﬂ at-rate damages, being awarded and increased in the event of the determination of guilt by the breaching party. Certain detailed provisions that are contradictory from the point of view of the fundamental assumptions underlying the liability for damages in Polish law and the laws of most European legal systems (and the German system in particular) are also examined. Further, a synthetic analysis of the positive and negative aspects of punitive damages identiﬁ ed by other researchers is presented. This is followed by a mention of other institutions available under Polish law which may constitute an alternative to punitive damages, at least when it comes to the provision of an adequate preventive and punitive measure in the event of gross or culpable damage. ItemStan kadr administracji publicznej z perspektywy ogólnokrajowej i regionalnej(Wydawnictwo Naukowe UAM, 2017) Korczak, JerzyThis paper tackles staff problems of contemporary public administration. It starts with an analysis of the dependence between the effi ciency of administration and the effi ciency of public servants in administration, whose effi ciency depends on the level and quality of their qualiﬁ cations. The analysis was carried out in three perspectives (i) with regard to the whole public administration of the State, (ii) with regard to the State and government central administration and (iii) with regard to regional public administration, on the example of the Lower Silesia region. It was assumed that the quality of the staff in administration is related to and depends on the legislation regulating the recruitment for public administration offi ces. The relevant provisions determine the choices made in the recruitment process and the subsequent creation of career paths. However, unstable and poor legal provisions have a negative impact on the quality of public administration personnel, which is manifested in poor performance, high employment ﬂuctuations and a diminishing interest among the younger generation in a career in public administration. This, in turn, may distort the natural generation exchange of administration staff in the future. As can be seen from the statistical analysis conducted in respect of the numbers of public administration employees and the ﬂuctuation among them, as well as the demographic structure examined with regard the gender, age and length of employment, the initially assumed hypothesis of the negative consequences of the inconsistent legislative policy governing the regulations of the public administration staff . The sociological picture illustrating the attitudes among the members of the society to public administration conﬁ rms the hypothesis of the poor condition of public administration and a loss in conﬁ dence in its activities or actions. The main reason for the current situation is that the constitutional principle of the neutrality of civil servants is realised only by orders that prohibit combining civil service with political activity, but do not limit or reduce the strong and direct inﬂ uence exercised by political parties on the legal regulations within public civil service or the policies of appointing candidates to key administrative positions in (not only government) offi ces. ItemUnia polsko-rosyjska z 1815 r. na tle unii lubelskiej i projektów unii Rzeczypospolitej i Rosji z XVI i XVII w.(Wydawnictwo Naukowe UAM, 2017) Wojas, JakubThe lifetime of the Kingdom of Poland – a state connected with the Russian Empire by a union – has not been unequivocally assessed in Polish historiography. On the one hand, the Kingdom had its own army, administration and a very liberal constitution, and had quickly achieved economic prosperity. On the other hand, within a few years of its creation, there occurred the ﬁ rst violations of the Constitution and the persecutions of those who opposed these infringements. A significant event was the revolt of the Cadets of 29 November 1830, which turned into a uprising, today referred to as the November Uprising. This article is the analysis of the legal aspects of the Polish-Russian union created in 1815. It is then compared with the Union of Lublin and the drafts of planned unions between the Polish-Lithuanian Commonwealth and the Tsardom of Russia in the 16th and 17th centuries. The circumstances which led to the creation of the Kingdom of Poland and its union with the Russian Empire, as well as the earlier attempts to create one state of the Polish-Lithuanian Commonwealth and the Russian Empire, as well as the principles of a union of the Crown of the Kingdom of Poland and the Grand Duchy of Lithuania are presented. The principles upon which these unions were to be based are subsequently compared and analysed. A particular emphasis has been placed on the issues related to the international legal status of the Kingdom of Poland. In this context questions such as: the treaty-making power and jus legationis have also been asked. Another important issue discussed in the paper is also the role of the king in matters concerning foreign policy and a possible role of Russia in these matters. The results of this analysis allow to formulate a more objective assessment of the period of the Kingdom of Poland, focusing on its legal status and position, and in particular on the relation with the Russian Empire. ItemKateřina Frumarová, Nullity and Other Defects of Administrative Decisions in the Czech Republic (Nieważność i inne wady decyzji administracyjnych w Republice Czeskiej), „Baltic Journal of European Studies” 2015, vol. 5, iss. 2, s. 70–89, DOI: 10.1515/bjes-2015-0014.(Wydawnictwo Naukowe UAM, 2017) Staniszewska, Lucyna ItemRezarta Mataj, The Compensation of Non-contractual Damages Caused by Administrative Bodies in Albania (Odszkodowanie za szkody pozaumowne wyrządzone przez organy administracyjne w Albanii), „Acta Universitatis Danubius. Juridica” 2016, vol. 12, no. 2, s. 106–117, ISSN 1844–8062.(Wydawnictwo Naukowe UAM, 2017) Staniszewska, Lucyna (opr.) ItemChristiaan Timmermans, Developing Administrative Law in Europe: Natural Convergence or Imposed Uniformity – Some Concluding Observations (Rozwój prawa administracyjnego w Europie: naturalna konwergencja czy narzucona jednolitość – kilka konkluzji), „Review of European Administrative Law” 2014, vol. 7, iss. 2, s. 35–44, DOI: 10.7590/187479814X14186465137942.(Wydawnictwo Naukowe UAM, 2017) Narożniak, Agnieszka ItemZwolnienie od podatku od czynności cywilnoprawnych sprzedaży gospodarstwa rolnego jako forma pomocy de minimis w rolnictwie(Wydawnictwo Naukowe UAM, 2017) Trela, AnnaThis paper analyses the regulation of Article 9 point 2 of the Act of 9 September 2000 on the tax civil law transactions (CLT). The said provision applies to the exemption from the sales tax if the object of sale is a farm holding or a property included in a farm holding. The amendments of 2015 to the above mentioned Act added a sentence which provides that “such exemption constitutes a de minimis help in agriculture referred to in Regulation EC No 1408/2013 of 18 December 2013 concerning the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union regarding the de minimis help in the agricultural sector”. This new wording of Article 9 point 2 of the Act on CLT has entailed many doubts regarding the allowable level of exemption, the principles of its calculation and recovery. Hence the need to analyse the relevant legal provisions of the EC Regulation. In the author’s opinion the Regulation contains no provision stating that if the combined sum of help exceeds the predetermined ceiling it will be exempted from the provision, even if only up to the level not exceeding the ceiling. Under the current provisions the de minimis help in agriculture may not exceed EUR 15 000, also in the event referred to in Article 9 point 2 of the Act on CLT. Due to the lack of consistent legal provisions regarding tax exemptions, the authoress decided to present in the article other instruments available under Polish law, which provide for the de minimis help in agriculture.