Studia Prawa Publicznego, 2019, Nr 2 (26)
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Item Naznen Rahman, A Comparative Analysis of Air Pollution Control in Delhi and Beijing: Can India’s Model of Judicial Activism Affect Environmental Change in China? (Analiza porównawcza systemu kontroli zanieczyszczeń powietrza w Delhi i Pekinie: czy indyjski model aktywizmu sędziowskiego może wpłynąć na ekologiczne przemiany w Chinach?), „Tulane Journal of International and Comparative Law” 2018(Wydawnictwo Naukowe UAM, 2019) Narożniak, Agnieszka (oprac.)Item Wybrane regulacje Kodeksu spółek handlowych w świetle konstytucyjnego modelu ochrony własności(Wydawnictwo Naukowe UAM, 2019) Ochmann, PawełThe article confronts specific solutions adopted in the Code of Commercial Companies and Partnerships with the patterns of the constitutional control of law resulting from the Constitution of the Republic of Poland in the form of the right of ownership. Its aim is to answer the question whether the constitutionality of commercial law institutions should be assessed autonomously, taking into account the specificity of commercial companies law. The author puts forward a thesis that just as there is a principle of autonomy of commercial law within the principle of unity of civil law, within the framework of constitutional law, the regulations of law and commerce also have autonomy which influences the process of assessing the conformity of particular subjects of control with the models defined in the Constitution of the Republic of Poland. As one of the specific elements of commercial law in relation to the Constitution, the necessity of weighing the opposing interests of the same good, i.e. the right to ownership is pointed out. The paper discusses in detail the institution of forced buyout (squeeze-out) in the context of the judgment of the Constitutional Tribunal (Case No. P 25/02). The issue of legitimacy to appeal against the resolution of the General Shareholders Meeting of a company from the point of view of the right of ownership is also discussed. In the author’s opinion, the right to appeal against the resolution, which prima facie at the constitutional law level could be associated with the constitutional right to a court, takes the form of a corporate right of a shareholder resulting from a constitutional right of ownership, of which a share is one of the forms. Therefore, it has a derivative character. The considerations contained in the text lead to the recognition of the admissibility of an autonomous interpretation of company law regulations when assessing their compliance with the Constitution. When assessing constitutionality, the legal character and specificity of the subject of control should be taken into account.Item Paulina Perlin, When Crises Collide: Reforming Refugee Law to Prevent Environmental Degradation (Gdy kryzysy się zderzają: o reformowaniu prawa uchodźczego w celu zapobieżenia degradacji środowiska), „Texas International Law Journal” 2018, vol. 53, iss. 1, s. 23–47(Wydawnictwo Naukowe UAM, 2019) Narożniak, Agnieszka (oprac.)Item Przyszłość form konsensualnych w postępowaniu administracyjnym(Wydawnictwo Naukowe UAM, 2019) Wegner, JoannaThe article presents the institution of an administrative agreement from the perspective of legal solutions in force in selected European countries. The increase in the number and diversity of tasks performed by the administration and the multitude of conducted proceedings encourage the search for alternative forms of settling a case in relation to an administrative decision. The administrative agreement is one of them. The analysis of foreign regulations confirms that the institution in question belongs to the modern procedural laws. The scope of regulation varies, as do the individual solutions concerning the admissibility and mode of concluding the contract, its subject matter, the mechanisms for removing defects, the grounds for contestability of the contract and its enforceability. It turns out that in individual European orders two patterns of regulation dominate: French and German, although they are subject to significant modifications. The performance of certain public tasks by private parties on the basis of an administrative agreement provides for certain guarantees not only for the parties to the agreement but also for the beneficiaries of those tasks. This particular type of contract allows adequate protection of the public interest. The prevalence of the administrative agreement in Europe prompts the author to formulate a conclusion on the need to include this institution in the home system. The attempt made in the 2017 reform of the Administrative Procedure Code to include in it an administrative agreement was unsuccessful. The provisions on an administrative agreement that were then drafted were intended to give a deeper meaning to mediation, a new institution in administrative proceedings, which is currently not popular. Mediation was to precede the conclusion of an administrative agreement. However, there are no significant obstacles to returning to work on the regulation of this institution, which is so widely used in other European countries, and which is clearly lacking in its home Code.Item Iwona Wrześniewska-Wal, Postępowanie przed sądami lekarskimi w praktyce, Wolters Kluwer Polska, seria Poradniki ABC Zdrowie, Warszawa 2018(Wydawnictwo Naukowe UAM, 2019) Jankowska, Paulina (oprac.)Item Lekarze podstawowej opieki zdrowotnej w prawie III Rzeczypospolitej Polskiej(Wydawnictwo Naukowe UAM, 2019) Wojtczak, KrystynaIn 2019, twenty-five years have passed since the implementation of the first legislative act introducing for the first time family doctors (primary health care physicians) into the Polish model of basic health care. The beginning of changes in this area, falling in the nineties of the last century, was not easy and has not yet been complete but will continue until the end of 2024. Over the years, not only the conditions for the education and professional development of primary health care physicians, including family doctors, have undergone changes. Also the organisational and legal forms of providing basic health services by this group of doctors were changing, as well as the conditions allowing patients, the recipients of medical services, to choose their doctor from among those with whom health insurance institutions (health insurance funds, or the National Health Fund) concluded agreements on the provision of basic health care services, or those employed by a medical entity with whom the National Health Fund signed relevant agreements. 116 Zob. Rozporządzenia Ministra Zdrowia o jednobrzmiącym tytule – w sprawie określenia priorytetowych dziedzin medycyny: z dnia 22 XII 2003 r. (Dz.U. 2004 Nr 1, poz. 7); z dnia 21 V 2009 r. (Dz.U. Nr 84, poz. 709); z dnia 20 XII 2012 r. (Dz.U. poz. 1489) oraz z dnia 6 IX 2018 r. (Dz.U. poz. 1738). The scope of changes introduced at that time was wide, and when it started at the beginning of the 1990s it was almost impossible to achieve the goals without the support of the World Bank and the PHARE programme, alongside the efforts of the Ministry of Health and Social Welfare and three regional health care consortia (unions). Their work and contribution of each of them and their activities were significant and together constituted a solid basis for further work on the improvement of the model of a universal primary health care after 1998. The Act on primary health care of 2017 has completed the process of changes in this respect. For the first time, the objectives of the basic, or primary health care have been clearly defined. Although the implementation of each of these objectives is to serve the patient who is the recipient of the services, the value of the services provided by primary care physicians varies. Family doctors (general practitioners) are to provide the patient and the patient’s family with health care services, coordinating at the same time all the stages of the process of their provision. However, the social mission of their profession is to ensure the implementation of broader tasks, such as health promotion adapted to the needs of various groups of society, education of the medical services recipients in the field of responsibility for their own health, as well as shaping pro-health awareness, setting health priorities of the population covered by care and implementation of preventive actions.Item Opłata i dotacja uzdrowiskowa – ewolucja unormowań prawnych(Wydawnictwo Naukowe UAM, 2019) Michalak-Trybus, BogusławaThe legislator’s fee and spa subsidy established a source of income for a local government unit that has the status of a spa (health resort) municipality. The health resort municipality may collect the health resort fee from natural persons staying more than one day for health, tourist, leisure and training purposes in the area of the health resort, applying the allowances and preferences indicated in the relevant act implementing the own tasks in the scope of preserving the spa functions of health resort for the award of a spa subsidy from the state budget. Both sources of financing of the health resort municipality are the compensation for the lost income of the health resort municipalities due to statutory restrictions on the economic and investment development of this type of local government unit. Often there are conflicts of interpretation concerning the adoption and implementation of the collection of the health resort fee, as well as in matters concerning the rules, manner and purpose of the use of the fee and the health resort subsidy by the health resort municipalities. The aim of the article is to present the most important aspects of the essence and legal nature of the fee and spa subsidy. The legal basis defining the functioning of the fee and spa subsidy has been discussed in historical perspective, from the late nineteenth century to the present, in the context of the income component of the spa commune under the provisions of administrative and tax law. The research considerations were based on the review of legislative acts regulating this matter in the aspect of the repealed and applicable law and positions presented in the literature on the subject. Proposals for legislative changes in this area have been presented, simultaneously indicating the purpose and effects of the amendment.Item Item Sprawozdanie z konferencji naukowej „Myśl prof. dr. Mariana Zimmermanna a współczesne prawo administracyjne”, Poznań, 5 kwietnia 2019 r.(Wydawnictwo Naukowe UAM, 2019) Jędrzejczak, Maria (oprac.)Item Zasada ogólna czynnego udziału strony w postępowaniu administracyjnym a prawa strony w postępowaniu w sprawach załatwianych milcząco(Wydawnictwo Naukowe UAM, 2019) Gajda-Durlik, MałgorzataPursuant to the amendment to the Code of Administrative Procedure, the Act of 7 April 2017 amending the Act – The Code of Administrative Procedure and certain other acts, the settling of a matter quietly has been incorporated into the framework of this Code. The legislator reserved a peculiar procedural regime for cases settled quietly, based on the formula of simplified, de-formalised proceedings, with simutaneous setting of limits for the rights of the party in the trial. Pursuant to Article 122d § 1 of the Code of Administrative Procedure, the provisions of Articles 10 and 79a of the Code of Administrative Procedure shall not apply to matters settled quietly. There is no doubt that the addition to Section II of the Code of Administrative Procedure of Chapter 8a on quiet settlement of matters results in the application of the Code of Administrative Procedure to matters within this scope, including, inter alia, Article 28 of the Code – on the side of proceedings. This means that in matters settled quietly, similarly as in the case of matters settled by an administrative decision, the subjective scope of proceedings is determined by Article 28 of the Code of Administrative Procedure, stating that each party is a party whose legal interest or duty the proceedings relate to, or who demands the authority to act due to its legal interest or duty. At the same time, the reservation made in Art. 122a § 2 of the Code of Administrative Procedure that a case is deemed to have been settled quietly when the party’s claim has been fully accepted does not mean in practice that only homogeneous interests of the party or parties expressed in the claim are involved in the case, and that the legal interests of subjects not filing a claim will not be involved in the case. As a consequence of the above, the fundamental question arises as to what extent the provision of Article 122d(1) of the Code of Administrative Procedure interferes with the conventional system of guaranteeing the rights of a party or parties adopted for cases settled in the jurisdiction process. The starting point of the analysis is the identification of the basic standard for determining the procedural position of a party in administrative proceedings, and then confronting with the solutions of the institution of quiet settlement of the matter in the scope different from the standard.Item Współdziałanie organów administracji publicznej a decyzje zależne na przykładzie unormowań dotyczących planu ruchu zakładu górniczego(Wydawnictwo Naukowe UAM, 2019) Szewczyk, EwaThe aim of the article is to draw attention to the changes that have occurred in the regulations governing the mining plant operation plan, as a consequence of which such a document is no longer issued in the wording of 2018 on the mode of cooperation between the authorities regulated in Article 106 of the Act of 14 June 1960. – the Code of Administrative Procedure. Mineral deposits are a non-renewable, natural national resource. They should be extracted in accordance with the provisions of the relevant generally applicable law. Their extraction cannot be regarded only in relation to the territory of Silesia and the mines located there. Exploitation of minerals is an activity with a very wide range of occurrence and concerns not only the extraction of coal, but also sands, gravels and aggregates. When it comes to the provisions of the Act: Geological and Mining Law, there is much controversy as to whether this operation plan is being approved in the mode of the authorities co-operating with one another, or – in the light of current solutions – outside it. This paper explains the above controversies and shows that the decision on the approval of a mining plant operation plan is a dependent decision, proceeded however by a decision of a city mayor, or head of a village, issued in a completely separate proceeding, dealing with a different subject, not regulated in Article 106 of the Code of Administrative Procedure.Item Obowiązek zwrotu nienależnie pobranego zasiłku chorobowego w związku z podjęciem pracy zarobkowej w orzecznictwie sądów powszechnych i Sądu Najwyższego(Wydawnictwo Naukowe UAM, 2019) Wojciechowicz, JoannaThis paper deals with the problems relating to the obligation to return the sickness benefit in the event when an insured person takes up paid employment during confirmed incapacity for work due to illness. The reason for this analysis is the non-uniform or inconsistent practice of the Supreme Court. In the majority of its issued verdicts, the opinion of the Supreme Court is that the the claim for returning the undue benefit paid ought to be withdrawn and cancelled if there was no information provided in the instruction about the circumstances that may lead to the forfeiture of the entitlement to statutory sickness benefit under Article 17(1) of the Act of 25 June 1999 on cash benefits from social insurance in case of sickness and maternity. However, there is also a different standpoint according to which the lack of instruction is not a sufficient basis for adjudicating that the insured party is not obliged to return this benefit. In its judgments, the Supreme Court emphasises the importance of the way in which the insured person acts. Submitting a sick leave and performing paid work is tantamount to misleading the disability pension body as to the circumstances that determine the right to a sickness benefit. Divergences in the judicial decisions of the Supreme Court have an impact on the judgments issued by common courts, which results in different decisions in cases of identical factual status. The non-uniform case law of common courts has a direct impact on the situation of individual beneficiaries. Despite the same factual circumstances some insured individuals have to return the benefit whereas others are exempted from this obligation. This creates secondary inequality of the insured persons who constitute a group of similar subjects and is inconsistent with the principle of equality expressed in Article 32 of the Constitution of the Republic of Poland.