Studia Prawa Publicznego, 2018, Nr 4 (24)

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    Polubowne załatwianie spraw w świetle Kodeksu postępowania administracyjnego po nowelizacji z dnia 7 kwietnia 2017 r.
    (Wydawnictwo Naukowe UAM, 2018) Ziemski, Krystian
    This paper discusses the amendments to the code of administrative procedure of 7th April 2017, referring inter alia to the amicable settlement of matters in dis­pute. The regulation to date concerning conciliation has ceased to be the only method of amicable settlement. An additional method has emerged consisting in mediatory proceedings, which requires a definition of the reciprocal relation between the existing conciliatory proceedings and the mediatory proceedings being introduced. Moreover, this paper analyses the change of the scope of duties of public admin­istration bodies that are about to seek the implementation of arbitrary proceedings. The scope of duties of administration bodies has been considerably extended within this scope. At present, the relevant authorities are obliged to seek to convince the parties that mediatory proceedings are possible and justifiable, this including also the possibility to carry out conciliatory proceedings. Another issue discussed in the paper is the permissible object of mediatory pro­ceedings. Mediatory proceedings may be applied to nearly any type of proceedings. The legislator has not introduced any restrictions in this respect, both as regards the subject or object of the proceedings. Irrespective of the fact whether the pro­ceedings involve parties with conflicting interests or not, an amicable settlement of the dispute is recommended. The introduction of mediatory proceedings should be considered any time, even if there is only one party involved. This is a novelty, compared to the existing possibility of carrying out conciliatory proceedings. No restrictions have been made as regards the object of the proceedings. Consequently mediatory proceedings may be applied to solve the doubts concerning the facts as well as the contents of the applicable legal regulations. This may concern both the disputes regarding the regulations in cases which cannot be solved by the adopted interpretation rules, and in cases where public administration bodies are left with certain freedom of interpretation by the legis­lator. Also, the nature of the decision to be made in the result of the proceedings may not constitute sufficient grounds for questioning or rejecting the possibility to implement arbitration proceedings. Mediatory proceedings are possible not only in the proceedings ended with acts issued within the discretionary authority or administrative recognition, combined acts, or constitutive or declaratory acts. The only restriction may be the nature of the case contrary to the implementation of amicable proceedings. Also this last question has been thoroughly analysed in this paper.
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    Instytucja mediacji w Chińskiej Republice Ludowej i Republice Chińskiej (Tajwanie)
    (Wydawnictwo Naukowe UAM, 2018) Skóra, Agnieszka
    The objective of this research paper is to explore and analyse mediation in the People’s Republic of China and in the Republic of China (Taiwan). The author also investigates the historical, philosophical and social origin of mediation and its development since the Han Dynasty. Mediation has a long tradition in China, and its importance can be traced back to the philosophy of Confucianism. Nowadays mediation is known as the key to resolving all disputes and linking it to the “har­monious society” political doctrine. There are currently a few types of mediation practices in China: mediation by People’s Mediation Committees outside the court, judicial mediation in civil disputes and minor criminal cases inside the court, me­diation and arbitration of rural land contract disputes or mediation and arbitration in labour disputes. The importance of mediation is demonstrated by Article 111 of the Constitution of the People’s Republic of China, which provides that “People’s Mediation Committees are a working committee under grassroots autonomous organisations – the Residents Committee and the Villagers Committee – whose mission is to mediate civil disputes.” The Committees and the courts should also popularise, through mediation and arbitration, the laws and the policy and educate citizens to abide by the laws and respect universally accepted morals. As can be seen, owing to the government’s guidance on mediation procedures the number of cases settled through mediation has markedly increased. The statistics show that the parties not only resolve their dispute but are also willing to resort to mediation again. The high success rate of mediation is, among other things, due to the fact that it is a safe and neutral process, and the mediators’ role in facilitating resolution does not impose a solution. Another advantage of mediation is speed and effectiveness as well as a reduction of costs. This article also discusses the Taiwanese experience with mediation, as well as its development. To sum up it may be said that mediation in the People’s Republic of China and in the Republic of China (Taiwan) functions well and is increasingly winning trust of citizens.
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    Zastosowanie komunikacji elektronicznej w mediacjach w administracji publicznej
    (Wydawnictwo Naukowe UAM, 2018) Tabernacka, Magdalena
    In the light of the applicable regulations governing administrative proceedings, electronic communication is an acceptable form of communication between the authority and other parties in the area of activities regulated by the provision of Arti­cle 13 of the Act of 14 June 1960, the Code of Administrative Procedure, in its current wording. Since this provision provides for the use of mediation in the resolution of disputes relating to the settlement of matters which are the subject of administrative proceedings in the first and second instance, electronic communication may also be used in mediation at both stages of the administrative proceedings. The mediation process itself may be carried out using Internet means of communication, and the mediator may in the same way contact the body referring the case to mediation. Teleconferencing and other methods of electronic communication, such as e-mails, chat-rooms and teleconferences, are all possible under the current legal framework. However, it is not allowed to conduct automated mediation, i.e. me­diation in which identification of a specific mediator will not be possible. In the light of current legislation in force, a mediator must be involved in the supervision of the mediation process and be responsible for its course. This is the personal responsibility of the mediator. The trend to use electronic communication in the public sphere will continue. This will apply both to the communication within the internal structures of the administration and to its external relations. The development of e-administration may also facilitate the development of ADR (Alternative Dispute Resolution) meth­ods in administrative proceedings. This corresponds to the global trend where the methods and procedures of administration are being adopted to the environment which is increasingly using different forms of electronic communication.
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    O potrzebie alternatyw dla sądowego rozstrzygania sporów pomiędzy władzami administracyjnymi a podmiotami prywatnymi w świetle Zalecenia Komitetu Rady Ministrów R (2001)9
    (Wydawnictwo Naukowe UAM, 2018) Chludziński, Bartłomiej
    The aim of the article is to explain the reasons for the introduction of mediation in administrative law. Mediation is presented in the light of the Recommendation of the Committee of the Council of Ministers R (2001)9 of 5 September 2001 on Alternatives to Litigation Between Administrative Authorities and Private Parties. The adoption of this act was justified by the situation of administrative courts in the member states of the Council of Europe. The common problems in the area of justice were the excessive number of court cases, excessive formalisation of court proceedings and a dispute resolution model that would disregard solutions that could satisfy both parties to the administrative dispute. It was also stated that these problems might have a negative impact on citizens’ access to justice and lead to the violation of the rights of the parties to court proceedings, referred to in Article 6 par. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The measures that may constitute an alternative to the judicial resolu­tion of administrative disputes in the Recommendation include: internal control of administrative acts, amicable proceedings/conciliation, mediation, settlement and arbitration. This Recommendation has shaped the Polish solutions in the field of introducing alternative dispute resolution methods to administrative law. However, in the real­ities of the Polish legal conditions included in the Recommendation, the proposals have become an incentive to introduce only the institution of mediation. First, it became part of the court-administrative proceedings, and then it was introduced to the administrative proceedings. Currently, when after the introduction of mediation to the Code of Administrative Procedure, the use of ADR methods under admin­istrative law has again become the subject of a broader interest in the doctrine, it is worth recalling the reasons why in 2001 the Council of Europe recommended introducing alternatives to national legal orders.
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    Skarga nadzwyczajna w postępowaniu cywilnym – wybrane zagadnienia
    (Wydawnictwo Naukowe UAM, 2018) Wyżykowski, Bartosz
    On the 3rd April 2018, a new Act of the 8th December 2017 regarding the Supreme Court (Journal of Laws 2018 item 5 as amended), hereinafter the “Law regarding the Supreme Court”, entered into force, which introduced to the polish legal system a new institution, namely the extraordinary complaint. It is a new remedy, the pur­pose of which is the extraordinary review of final court decisions (judgements) in order to ensure their compliance with the principle of a democratic state of law that implements the principles of social justice. It may be brought before the Supreme Court only by certain public authorities strictly specified in the Law regarding the Supreme Court, namely by the Attorney General and the Ombudsman but also, within the scope of their jurisdiction, inter alia by the Financial Ombudsman, the Small and Medium-sized Enterprises Ombudsman and the President of the Office for Competition and Consumer Protection. Thus, these entities were given the right to challenge final judgments of common courts, which otherwise could not be revoked or changed by any other means or remedies. Currently, all legitimized authorities may file extraordinary complaints – with the reservation that authori­ties other than the Attorney General and the Ombudsman may do so only within their jurisdiction – regarding judgments that became final after the 3rd April 2018 (inclusive). However, the Attorney General and the Ombudsman may also, until the 3rd April 2021, file extraordinary complaints regarding judgments that became final after the 17th October 1997 and before the 3rd April 2018 (the date the Law regarding the Supreme Court entered into force). Aim of the article is to analyze the main legal issues regarding the extraordinary complaint, especially the grounds for its admissibility, the practical aspects in the subject matter, as well as possible disputable issues and interpretation doubts. The study is limited to the analysis of selected legal issues regarding the extraordinary complaint in the civil procedure.
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    Mediacja w postępowaniu administracyjnym ogólnym i podatkowym
    (Wydawnictwo Naukowe UAM, 2018) Wegner, Joanna; Wróblewski, Bartłomiej
    On 1 June 2017, a major amendment to the Code of Administrative Procedure came into force. The article deals with mediation incorporated into the Code as a new institution of administrative proceedings. The authors presented the advantages and disadvantages of mediation in public matters and discussed the theoretical foundations of this construction. They analysed the effectiveness of the mediation conducted in the proceedings before the administrative courts, pointing that en­trusting mediation to professional mediators (by amending the Act of 7 April 2017) was justified. The new regulation provides for mediation that is voluntary, secret, and conducted by an impartial mediator. The amending act does not specify the preferred mediation strategies, leaving this issue to the mediators, but the analysis of the content of the new provisions leads to the conclusion that the evaluative type of mediation is the leading one. The amended provision of Article 13 § 1 of the Code allows mediation in any matter, provided its the nature is sufficiently suitable. In the Authors’ opinion, mediation should be allowed especially in matters that need to be resolved basing on the administrative discretion and in matters whose settlement requires the interpretation of terms that are not specified. In the authors opinion, mediation may be an effective instrument for eliminating administrative disputes but requires proper preparation of the clerks involved.
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