Adam Mickiewicz University Law Review
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Przegląd Prawniczy Uniwersytetu im. Adama Mickiewicza jest recenzowanym czasopismem naukowym, publikowanym pod kierunkiem Wydziału Prawa i Administracji. Ten międzynarodowy projekt wydawniczy kierowany jest do studentów, doktorantów i młodych pracowników nauki z całego świata. Komitet redakcyjny czasopisma przyjmuje zgłoszenia artykułów przygotowanych w następujących językach: polskim, angielskim, niemieckim oraz francuskim.
Adam Mickiewicz University Law Review is a scientific journal published under a supervision of The Faculty of Law and Administration Professors. This international editorial project is directed to Bachelor, Master and Doctoral degree programmes' Candidates. The Editorial Board publish papers in the following languages: Polish, English, German, French and is opened to authors of any affiliation.
Redaktor naczelny: mgr Paweł Kwiatkowski
Kontakt: ul. św. Marcin 90, 61 –809 Poznań
e-mail: ppuam@amu.edu.pl
strona www: http://www.ppuam.amu.edu.pl/
Nazwa wydawcy: Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań
ISSN 2083-9782
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Item À propos de la liberté de navigation sur les fleuves internationaux: L’Affaire de l’Oder devant la Cour permanente de Justice internationale(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Gadkowski, AndrzejThe aim of the article is to present the issue of the freedom of navigation on international rivers in the context of the Oder case brought before the Permanent Court of International Justice in 1929 – a case of utmost importance for the development of the law of international watercourses and contemporary international law applicable to water resources. The author analyses the provisions of the Treaty of Versailles which declared the Oder to be an international river and put it under the jurisdiction of an international commission. The territorial jurisdiction of the International Commission of the River Oder was disputed between Poland and Germany, leading to the aforementioned proceedings before the PCIJ. The author presents the arguments put forward by both parties, the legal context of the case – in particular the provisions of the Treaty of Versailles and of the Barcelona Convention – and analyses the Court’s judgment. An analysis of the judgment is carried out, having recourse to the main concepts of the law of international watercourses.Item Amerykańska koncepcja w unijnym prawie – essential facilities doctrine(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Zalewska, MartaFormed at the end of the nineteenth century in the United States, the essential facilities doctrine was created to prevent the refusal of access to certain key equipment, which is used as an instrument to secure the dominant position of the undertaking in those markets where the emergence of competition is strictly related to obtaining access to key device. The author describes the initiation in the 1970’s of the acquisition of the American doctrine by European Union law by focusing on the role of the European Commission and the Court of Justice of the European Union in this process. Both American and European prsemises for an application of the essential facilities doctrine are presented, as well as its advantages and disadvantages.Item Analiza prawnej i faktycznej sytuacji poręczyciela – wybrane zagadnienia(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2012-05-18) Jurek, Łukasz, Rafał MaciągThis paper highlights the issues arising from an obligation such as surety. Under the provisions of the Polish Civil Code, the legal position of a guarantor is closely related to non-legal factors. The ambiguity and uncertainty of the status of a guarantor are even greater due to the variability in time of the normative construction of a surety. Therefore, in addition to the measures available in law, a certain counterweight, such as the general public values, is necessary to address this state of affairs. The most widely understood trust, being the necessary condition for the proper development of a modern democratic state of law, may undoubtedly play that role.Item Art. 162 kodeksu postępowania cywilnego – zastosowanie, funkcje i znaczenie w procesie cywilnym(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Marciniak, SławomirThe paper aims to analyse article 162 of the Polish Civil Procedure Code. Pursuant to the article mentioned, parties are not only allowed but also obliged to notify the court of all procedural errors it has made. The purpose of this legal institution is to hasten and organize civil procedure. This paper illustrates the history of subject regulation. Subsequently,it focuses on the application and role of article 162 of the Polish Civil Procedure Code in current civil procedure. After analysing those matters, the conclusion is presented that the regulation provided by article 162 is inappropriate to the correct shaping of current civil procedure. The instant removal of all procedural errors that the court makes is essential to appropriate procedure in many ways.Item Aspekty procesowe ugody sądowej zawartej w toku postępowania rozpoznawczego(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Ilków, DianaThe study aims on the procedural aspect of a settlement reached before the court in the course of proceedings. Procedural rules indicate when and in what circumstances the court has to persuade the parties to reconcile and what should be the nature of that action. In addition, the procedural law complements the range of possible reciprocal concessions made by the parties. It also sets out further requirements that have to be followed by the body of a settlement reached before the court, especially by indicating the extent of judicial control. The rules of the civil procedure also determine the effect that a settlement reached before the court has on the course of further proceedings. Thus,the aim of the above is that the rules are focused on the implementation of the postulate expressed in Article 10 of the Civil Procedure Code.Item Budget reforms in Russia: results and perspectives(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2014-06) Komyagin, DmitryThe article covers budget reforms in Russia which have been taking place since 1991. It presents both a mutli-perspective and retrospective glance at the modern reforms, and their continuity with regard to other Russian reforms from the historical past is discovered.Changes in the Russian legislation regulating budgetary relations and changes to inter-budgetary relations and the budgetary process are analyzed in details. The article contains a review of program documents describing the course of reform and a prediction of future changes.Item Can mouse clicking be seen as involvement in armed conflict? Some notes on the direct participation in hostilities in cyberspace(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Lewandowski, TomaszContemporary armed conflicts are increasingly based on new technologies. These technologies enable to conduct hostilities from a distance, often eliminate the human factor from the battlefield. Nowadays, cyberspace created by the Internet allows to frame the idea of armed conflict outside the traditional recognition of the fight between belligerent armed forces. This article addresses issues of the direct participation of hostilities in cyberspace. In the first part it discusses technological development and its impact on the activation of the civil factor during armed conflicts. In the second part by analysing the current practice of cyber conflicts it refers to the concept of direct participation in hostilities and its constituent elements as a threshold of harm, direct causation, belligerent nexus at the cybernetic level. The third and final part examines the possibility of the loss of protection, in particular, it addresses the issues related to its temporal nature and the question of means and methods of attacking civilians involved in cyber warfare.Item Charakter prawny i materialnoprawne konsekwencje wpisu w dziale I-O księgi wieczystej(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Kucharczuk, IvoThe article deals with the controversies concerning the legal nature of the records in section ‘I- Identification of real estate’ in the mortgage register, which implicitly determine the reach of the rights disclosed in other sections, and may be of importance for both the legal presumptions pertaining to these rights and the principle of public credibility of the register. Having discussed the administrative regulation of the land and building register as well as procedural mechanisms for making records in section I of the mortgage register, the author continues to analyze the view of the doctrine on the legal importance of factual data in this section, divided according to their effect on the principle of public credibility and legal presumptions of the mortgage registerItem Church Fathers on Ownership(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2014-06) Chmielarz,Małgorzata, Ilski KazimierzThe study aims at an analysis on the concept of ownership in the selected Church Father's works. The authors focus on the work of Saint Jerome Saint Basil of Caesarea, Ambrose and Augustine, presenting the concept of ownership in the middle ages.Item Common good and the problem of co-ownership(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2014-06) Siebers, AdriannaThe aim of the study is to evaluate the selected issues concerned with the functioning of the notion of common good in relation to the co-ownership. The author presents the construction of this two forms with a special emphasis on the social aspect of the common good in the public space.Item Constitutionnalisme français. Expérience de la troisième république(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Bochkarev, SergeyThe aim of the article is to discuss the prominent features of French constitutionalism that were formed in the last quarter of the 19th century. The author underlines the particular importance of the constitutional experience of France and notes that the form of government and the several political institutions established with the proclamation of the Third Republic also exist in general terms at the present time. Further in the text, the author observes that the practice of the state and legal construction of the French Third Republic was in many ways rather distant from constitutional establishments. It is emphasized that in the practical implementation of the Constitution, the Parliament (mainly the Chamber of Deputies) came to play a major role in the system of government and that in turn has been largely responsible for the durability of the basic constitutional and legal institutions of the Third Republic.Item Dyskusja nad modelem wykładni prounijnej w polskiej nauce prawa(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2012-05-01) Rowiński, WojciechThe aim of this paper is to present the discussion on normative models of the pro-EU interpretation of national law in Polish jurisprudence. The European Court of Justice drew only general assumptions concerning the pro-EU interpretation, and left the Member States free to choose the methods of its implementation. The author analyses the proposals of the models described in the science of European law as well as in the theory of law, and on that basis comes to the conclusion that a universal and consistent model that would ensure full realisation of the EU law objectives regarding the pro-EU interpretation has not yet been developed.Item Elektrownie wiatrowe a inwestycje celu publicznego(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2012-05-18) Koszowski, MichałOn 22 December 2011, the Ministry of Economy presented a draft law on Renewable Energy Resources (RES), which fits into the discussion on the recognition of wind power plant as an investment of a public purpose (IPP). The author is of an opinion on that a wind power plant cannot be considered as an IPP for legal, rather than technical reasons. The investor’s objective is to obtain an outline planning decision, not a decision on the location of an IPP, which might otherwise prolong the investment process.Item Europejski Komitet Praw Społecznych w systemie organów traktatowych międzynarodowej ochrony praw człowieka(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2014-06) Gadkowski, AleksanderThe aim of this article is to present the European Committee of Social Rights as a supervisory body in the system of international protection of human rights. To this end, the author elaborates upon the system of treaty bodies in the field of international protection of human rights, both at the universal level within the framework of the United Nations,as well as on the regional plain in respect of the treaty bodies within the Council of Europe’s system. The author pays particular attention to the treaty acquis of the Council of Europe on the protection of social rights and, as such, discusses the European Social Charter system. The author emphasizes the particular role of a specific organ, namely the European Committee of Social Rights, within this field. One of its most notable features is the mechanism of collective complaints (fr. réclamations collectives), which was introduced to the Charter’s supervisory system on the basis of the 1995 Additional Protocol. In the author’s opinion, on the basis of the competence of the European Committee of Social Rights to hear collective complaints, it is arguable that this body performs the function of a quasi-judicial organ in the monitoring process, which distinguishes it from other treaty bodies in the field of international protection of human rights.Item Gmina (Skarb Państwa) w kręgu podmiotów uprawnionych do zwrotu wywłaszczonej nieruchomości(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2014-06) Terlega, JakubThe paper aims to describe a legal problem in the application of rules governing the restitution of expropriated real estate - namely a situation in which one of the entities entitled to restitution of expropriated property, turns out to be a municipality or the State Treasury, as a statutory heir of the previous owner. Usually, the State Treasury, as one of the heirs, does not have an interest in supporting the request for the restitution of expropriated property.The author is of the opinion that the proper interpretation of rules governing the restitution of expropriated real estate requires the assumption that whenever one of the statutory heirs turns out to be the State Treasury, consent to request a restitution of expropriated real estate by the State Treasury is not required. In the absence of such an agreement, the competent authority is obliged to grant the restitution of the expropriated real estate to all heirs.Item Human rights and the law of human rights: a positive legal regulation of an ontic reality(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2014-06) Nagel, KalikstThe author introduces a fundamental distinction between human rights and the law of human rights which is subsequent to these rights. While examining these issues, the author follows M. Piechowiak and his way of understanding human rights. According to Piechowiak, human rights are objectively existing relationships between a human being and a global good, welfare that is due to him/her. Particular aspects of this global good are what we used to call an object of a particular human right. Therefore, human rights have an ontic nature. These relationships have their normative consequences. It may be stated that these relationships ontologically justify that the norms protecting these rights (actually these relationships) stay in force. These relationships and the norms protecting them can be recognized. Notwithstanding what was stated above, human rights shall be proclaimed and the ontic norms protecting them, adequately recognized, shall be positivised, that is, acts of positive law shall introduce these norms into legal systems.Item Human Rights and the role of courts in Thailand(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Tamisanont, ChoocheewanThe purpose of the article is to analyse the subject of the problems involved in protecting human rights in Thailand and the role of the courts according to the Thai Constitution. The author discusses four selected issues of human rights protection in Thailand: the citizens’ insufficient awareness of human rights, the ineffectiveness of law enforcement,the possible conflicts linked to traditional beliefs and the problems of applying double standards. The article also presents the structure and the function of the Constitutional Court, the Court of Justice and the Administrative Court of Thailand. Throughout the paper the author seeks to prove that the Constitution of the Kingdom of Thailand honours and protects human rights.Item Instytucja mediacji jako „żywy przepis”, a nie „martwy zapis” – jak wypracować dogodną płaszczyznę pomiędzy teorią i praktyką?(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2012-05-18) Knapczyk, EwelinaThe subject of this paper is the institution of mediation, with a special emphasis on the formulation of postulates addressed to the Polish legislative, governmental institutions, local authorities, corporation of advocates, non-governmental organisations, and establishments of higher education. The Author outlines the general construction of mediation and the mechanisms of its functioning, the impact of the European Union on its Member States in the context of that institution, and touches upon the practical application of mediation in Poland, concluding that once the postulates enumerated in the paper have been addressed and realized, this will grossly reduce the piling number of unresolved disputes, and consequently will minimize the cost arising from the ever- -growing numbers of litigation and legal dispute.Item Intelectual property right as a form of limitation the property right(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2014-06) Eliseev, VitaliyThe study aims at an analysis of the relation between intellectual property right system and right in rem law system. The author makes an attempt to present how the intellectial property rights limit the property rights.Item Is My Body My Property?(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2014-06) Nawrocka, MartaThe aim of the study is to evaluate human body law protection system. The author analyse selected issues related to the human body in order to evaluate it in its legal and ethical perspective. Presenting the topic the author refers to the Convention on Human Rights and Biomedicine and the Convention for the Protection of Human Rights and Dignity of the Human Being.