Studia Prawa Publicznego, 2019, Nr 3 (27)

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    Z rodowodu klasycznego prawa naturalnego
    (Wydawnictwo Naukowe UAM, 2019) Szadok-Bratuń, Aleksandra; Bratuń, Marek
    The issue of natural law has been mentioned by almost all philosophers of law, from the classical ones of ancient Greece to contemporary postmodernists, and is presented in various ways. In compliance with Cicero’s observation that “history is the herald of the future” we have attempted to go back to the sources and to start our considerations ab ovo. The historical review does not address systematically the issue discussed here, and only serves to properly explain what natural law in a classical reflection of ius naturale is. Therefore, our approach to the classical natural law has been narrowed down to three selected sophists, Socrates, Plato and Aristotle, and their views of ius naturale in opposition to ius positivum have been briefly outlined. The article consists of two parts: the first one entitled From Heraclitus to Socrates and the second entitled From Plato to Aristotle. The first part presents sophists’ views on the law of nature. It is worth noting that sophists did not analyse the essence of the law of nature; they were primarily interested in the relationship of the law of nature to positive law. Thus Socrates, by deriving the existence of universal and unchanging laws from human nature, gave birth to the doctrine of natural law with unchanging content. The second part contains the views of Plato and Aristotle on the question of the law of nature. Plato is considered to have discovered the ideal trend of natural law, although in his dialogues the term “law of nature” is not found. It was the theory of Plato’s ideas that became the model for the concept of lex aeterna as an arrangement of divine ideas. Whereas, Aristotle distinguished two types of good that law puts before man, and accepts them as the basis for the dichotomous division of laws. He described good that is indifferent to man, which due to specific circumstances becomes the object of his desire, as positive law. Good that is closely related to the nature of man, which is always and everywhere the object of his desire, is good indicating the natural law.
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    Umowa urbanistyczna jako przykład umowy administracyjnej na tle polskiego i europejskiego porządku prawnego
    (Wydawnictwo Naukowe UAM, 2019) Kruś, Maciej
    The subject of the article is an attempt to show that concluding an urban contract is a form of public administration activity of an administrative nature, not a civil one. As a result of the contract, an administrative-legal relationship is established. Its characteristic feature is that in order for this relationship to arise it is necessary for the other party to agree. The other party is an investor who is supposed to carry out the project at his own expense. The basis for the conclusion of the contract is not the freedom of contracting, but administrative law specifying the competence of the administration to conclude a contract as well as determining the acceptable content of the contract. The urban contract is therefore an administrative contract. The article also presents the basic features of an administrative contract. In the study, the achievements of Polish and German doctrine were used. The administra­tive contract is not regulated under Polish law but relevant provisions are contained in the German Act on Administrative Proceedings. In addition, a public law contract has been described as an instrument of action in the implementation of European Union law. In this context, two cases were distinguished, i.e. the conclusion of a contract by national authorities and the conclusion of a contract by the Union institutions. In the latter case, it was necessary to interpret the provisions of the Treaty on the European Union and the Treaty on the Functioning of the European Union. The characteristics of the administrative contract which make it a good means of establishing an administrative-legal relationship are also presented. Of particular importance is the opportunity of creating the content of the relationship by the entities involved. This enables the formation of individual provisions adapted to a specific case. At the same time, because the consent of both parties is needed to conclude a contract, such an administrative contract protects the interests of both parties to the legal relationship. Public administration’s ability to act in spe­cific situations must be ensured and for that reason the administrative contract will probably develop further.
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    Habilitacja jako warunek awansu naukowego w Polsce w latach 1990–2018
    (Wydawnictwo Naukowe UAM, 2019) Wojtczak, Krystyna
    The right to conduct habilitacja (“habilitation”) proceedings under Polish law is not a new solution. These proceedings were conducted both in the interwar period, in the first years of the People’ s Poland, and during the Polish People’s Republic. The solutions adopted in those periods differed. Until the end of People’s Poland, the proceedings ended with the right to lecture (veniam legendi) but with no possibility of obtaining a scientific degree, in the years 1951–1958, following the example of Soviet solutions, the proceedings allowed to obtain a scientific degree of doctor of sciences, from 1958 to obtain a degree of a docent (assistant professor), and from 1968 – the degree of doktor habilitowany. The differences in legal solutions adopted at that time were also clearly visible in the conditions which higher education institutions had to meet in order to obtain the right to conduct the proceedings and confer titles, and candidates to be promoted to a higher degree of doktor habilitowany. Although the possibility of acquiring the degree of doktor habilitowany was re­tained from 1990 onwards, the legal conditions for the conduct of habilitacja pro­ceedings did not resemble the solutions of previous years. And so, as in the Act of 1965, as well as after 1990 the conferral of academic degrees was excluded from the law on higher education, but this law itself was subject to much more modest regulation. It was not until the Act of 2003 that solutions were introduced to grad­ually tighten the conditions imposed on organisational units applying for the right to confer the academic degree of doktor habilitowany and on persons applying for the initiation of habilitacja proceedings, as well as on the course of such proceedings. The year 2011 brought revolutionary changes in this respect. The amending law introduced a new order in the process leading to the conferral of the academic degree of doktor habilitowany. It covered not only the requirements which organisa­tional units applying for the right to ‘habilitate’ in the fields of science and scientific disciplines had to satisfy, but also a re-definition of these conditions. The course of the ‘habilitation’ proceedings and the participation in it of the Central Commission and the board of the relevant organisational unit, as well as the person applying for the degree of doktor habilitowany were significantly changed.
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    Zagadnienia konstrukcyjne umów publicznoprawnych
    (Wydawnictwo Naukowe UAM, 2019) Staniszewska, Lucyna
    The formulation of legal provisions by the administration does not have to take the form of administrative decisions. One of the legal forms of the administration is public-law contracts. This is one of the forms of administration which still requires a further scientific analysis. Contracts are useful instruments, and therefore it may be worth looking at their different types and construction. They may be classified according to the parties to the legal relationship created. There are two types of contracts, i.e. between admin­istrative bodies and between an administrative body and an entity. The doctrine refers to contracts of the latter type as administrative and legal agreements. Such agreements have developed in the Polish legal order after the systemic changes. Unfortunately, the legislator has not provided their legal definition, they are regu­lated in special laws, most often by indicating contractual provisions constituting essentialia negotii. The doctrine does not explicitly define the character of the con­tracts concluded by the administrative body and its contractor, nor has the final characteristics of the content of contracts in the administration as a whole been made. There is still a lack of consensus as to the construction of public law contracts and the rules governing them. There is an urgent need to regulate the essence of administrative contracts, and in particular to indicate their construction and legal nature, in order to better protect legal entities entering into them. The purpose of public-law contracts is to improve the quality of administration, and increase the efficiency of administrative activities. More administrative contracts also mean higher decentralisation of the state. Moreover, the idea of extending the use of public-law contracts is consistent with the principle of the participatory role of citizens in achieving public effects. The Polish legislator may draw on the regulations of other countries, for instance Germany, where public-law contracts have received legal definitions.
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    Swoboda wyboru prywatnoprawnej formy działania administracji gospodarczej w polskiej i niemieckiej doktrynie prawa publicznego
    (Wydawnictwo Naukowe UAM, 2019) Sancewicz, Paweł
    The purpose of this paper was to present views of both Polish and German public law doctrine on the issue of the possibility to choose a legal form of implementa­tion of public tasks by the public administration. This issue is not only a theoretical matter because currently administration has to cope with increasingly complex and complicated public tasks that must be implemented. The article first explains the concept of the legal forms of action, distinguished from the measures available in administration. Next, the freedom of choice of the legal form of action as well as the instances of its abuse are analysed. The considerations carried out in the article allow to adopt the position that the choice of the legal form of action by public administration cannot be actually prejudged under Polish law. The main limitation of the freedom to choose the le­gal form of action is contained in Article 7 read in connection with Article 2 of the Constitution of the Republic of Poland which stipulate a legal framework that ought to embrace them. There is also a concern that the authorities may abuse certain forms of action in order to, for example, avoid certain administrative procedures or to achieve desired fiscal objectives. As indicated in the course of the analysis, the German doctrine and practice encountered similar problems, and now the experi­ence and undoubted successes of German law and practice could be a significant inspiration for Polish lawmakers in this area. De lege ferenda, it is necessary to propose the introduction of legal regulations that will enable or facilitate a free choice of the legal form of action by administra­tive bodies. However, establishing such regulations will only be possible and and effective when the administrative agreement becomes part of the Polish legal system.
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    Special considerations of demolition of the buildings and structures constructed without a permit on the state-owned land parcel restricted for construction
    (Wydawnictwo Naukowe UAM, 2019) Zakashvili, Ucha
    The article addresses special conditions sanctioning demolition of buildings and structures erected without a permit on the state-owned land parcel restricted for construction according to the Georgian legislation and the practice of suspension of enforcement proceedings of similar resolutions by the court. It reviews the regulation envisaged by part 4 of Article 25 of Product Safety and Free Movement Code, according to which buildings constructed on state and/or self-governing unit-owned land parcels are subject to demolition and an appeal of the resolution on demolition does not suspend its enforcement. Despite the above, within the procedural legislation, the court suspends the enforcement process in the part of demolition. The article assesses the prospective of placing such buildings and structures within the legal framework in the future (compliance with the general plan, functional zoning, rules of development and use of the territory), i.e. their eligibility for obtaining a permit in deciding on the suspension/non-suspension of the demolition enforcement process. In Georgian practice, this factor is not accen­tuated by the construction control body when making a resolution on demolition, nor does the court evaluate it, which is the most significant circumstance in the process of making and enforcing such type of resolutions. Examples from the Polish and German practice where a permit allowing illegal buildings and structures to be admitted (as complying with the substantive con­struction law) is one of the most significant preconditions for making a resolution regarding demolition are presented and discussed. The circumstances to be considered in the course of suspension by the court of demolition of buildings and structures illegally constructed on state and/or self-governing unit-owned land parcels are also described, and legislative changes/ amended regulations for the sake of avoidance of procrastination of such type of demolitions have been recommended.
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    Potential invalidity of the decision of a public administrative body as a result of the conviction of a person performing a function (Ewentualna nieważność decyzji organu administracji publicznej w wyniku skazania osoby pełniącej określoną funkcję)
    (Wydawnictwo Naukowe UAM, 2019) Szulc, Piotr
    The article presents the reflections on the potential invalidity of an administrative decision of a public administrative body as a result of the conviction of a person performing a function for an offence under Polish law. Firstly, the author analyses the legal situation of a person convicted for an offence under the Election Code (Kodeks wyborczy), the Act on Self-Government Employees (Ustawa o pracownikach samorządowych) and the Labour Code (Kodeks pracy). He examines in detail the discrepancies between the three legislative acts which may influence the legal position of a convicted person. The conclusion is that a person with the final and valid judgment for intentional offence prosecuted by public indictment to a fine or to penalty of imprisonment retains a passive electoral right in the elections for the mayor, however it seems that under the Act on Self-Government Employees it will not be possible to establish an employment relationship with such a person to work in the capacity of a self-government employee based on election. Secondly, the author analyses the potential invalidity of administrative decisions issued by a person convicted for an offence. The two conditions that could be taken into account as grounds for declaring the invalidity of an administrative decision in the context of the conviction are: a lack of jurisdiction of the authority as a condition of declaring the invalidity of a decision and a gross breach of law as a condition of declaring invalidity of a decision. The analysis of the selected conditions leads to a conclusion that there are no grounds for declaring the invalidity of a decision, as the regulations on jurisdiction will not be breached and the decision will not be issued in gross breach of law. Therefore, even if one were to consider that under the Act on Self-Government Employees a given person cannot be a self-government em­ployee, it seems that this does not prevent the issuance of administrative decisions.