Studia Prawa Publicznego, 2018, Nr 2 (22)
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Item Deividas Soloveičik, Karolis Šimanskis, The Evolving Concept of „Conflictof Interests” in the EU Public Procurement Law (Ewoluująca koncepcja „konfliktu interesów” unijnym prawie zamówień publicznych), „European Procurement & Public Private Partnership Law Review” 2017, vol. 12, iss. 2, s. 112–131, DOI: https://doi.org/10.21552/epppl/2017/2/6(Wydawnictwo Naukowe UAM, 2018) Różowicz, KonradItem Glosa do wyroku Trybunału Konstytucyjnego z dnia 13 grudnia 2017 r., sygn. SK 48/151, dotyczącego podatków i opłat lokalnych – zasad ustalania podatku od nieruchomości(Wydawnictwo Naukowe UAM, 2018) Staniszewska, LucynaItem Martin Trybus, Marta Andrecka, Favouring Small and Medium Sized Enterprises with Directive 2014/24/EU? (Czy regulacje dyrektywy 2014/24 UE faworyzują małe i średnie przedsiębiorstwa?), „European Procurement & Public Private Partnership Law Review” 2017, vol. 12, iss. 3, s. 224–238, DOI: https://doi.org/10.21552/epppl/2017/3/6(Wydawnictwo Naukowe UAM, 2018) Różowicz, KonradItem Milczenie organów administracji jako instytucja materialnego i procesowego prawa administracyjnego(Wydawnictwo Naukowe UAM, 2018) Staniszewska, LucynaThe aim of the article is to examine the institution of “Silent settlement of the matter” regulated in the Code of Administrative Procedure, as well as in the provisions of substantive law. In a number of Polish laws, the inaction of the administration is seen as bound to have certain legal consequences. Such rules cause many doubts both at the theoretical and practical level, and raise questions about the antidote to such unwanted inactivity of administration. The general clause of positive or negative fictitious adjudication in administrative matters is present in many legal systems. However, in the Polish legal system it lacks a legal definition and the silent settlement handling of the case entails problems of its classification as part of the legal forms of administration. The article shows that the mere introduction of procedural regulations will not result in a breakthrough in the institution of silent positive settlement of the matter, if the legislator does not balance the types of cases to which silence can be applied. Undoubtedly, both substantive and procedural law rules for the regulation of silent settlement are necessary and indispensable. As for substantive law, it should be a well thought-out concept in which silence of administrative bodies in handling matters could be applied without affecting the public interest or the interests the applicant, or any other party to the proceedings. On the other hand, procedural regulations are to guarantee the protection of the rights administered against the inactivity or lack of action by administrative bodies, or lengthy and protracting proceedings. Therefore, the legislator should ensure a well-considered qualification of cases to be recognised in a simplified manner, as well as adopt specific provisions that give competence to administrative bodies to settle matters tacitly so that the institution accomplishes the intended objectives of administrative improvement, and at the same time does not violate the procedural rights and guarantees of the parties for whom silence has legal effects.Item Odpowiedzialność odszkodowawcza członków organów dyscyplinarnych jako przesłanka objęcia ich obowiązkowym ubezpieczeniem odpowiedzialności cywilnej. Uwagi na tle projektu ustawy Prawo o szkolnictwie wyższym i nauce(Wydawnictwo Naukowe UAM, 2018) Nizioł, KrystynaMembers of disciplinary bodies (disciplinary ombudsmen and members of disci plinary commissions) are at risk of being held liable for compensatory damages arising in connection with their duties (i.e. for procedural failures in disciplinary proceedings). The lack of regulations concerning the liability for compensation by the members of disciplinary bodies is also a factor which is unfavourable for those who suffered damage as a result of disciplinary proceedings. As can be seen from the resolution of the Supreme Court of 27 September 2012 analysed in this study, for procedural violations committed in the course of discipli nary proceedings, members of disciplinary bodies are personally liable, jointly and severally with the higher education institution in which they are employed. The conclusions of the analysis of the case law therefore also point to the need to address this problem in a systematic manner. This objective has been partially achieved in the draft of the new Act on Higher Education and Science, which includes for the first time a provision on the optional coverage of members of disciplinary bodies with a third party liability insurance. Nevertheless, it could be argued that this regulation ought to be improved by introducing a compulsory third party liability insurance of members of disciplinary bodies, specifying, preferably in the imple- menting regulation, the minimum amount guaranteed, and elements such as the scope of the third party insurance and the date of commencement of the insurance cover (e.g. the day preceding the commencement of the function of disciplinary ombudsman or member of a disciplinary committee). Such a solution is supported by the analysis of regulations concerning obligatory third party insurance applica- ble to selected professions which has been carried out in the present study. In the case of these professions, the solution that was applied is the one that clarifies the regulations related to the obligatory third party insurance covering the performance of these professions.Item Paweł Lenio, Publicznoprawne źródła finansowania ochrony zdrowia, Wolters Kluwer Polska, seria Monografie, Warszawa 2018, ss 508, ISBN 978-83-8124-377-3(Wydawnictwo Naukowe UAM, 2018) Jankowska, PaulinaItem Powołanie na stanowisko dyrektora szkoły osoby niebędącej nauczycielem w tej szkole(Wydawnictwo Naukowe UAM, 2018) Kapusta, PiotrItem Praca zarobkowa jako przesłanka utraty prawa do zasiłku chorobowego w orzecznictwie sądów powszechnych, Sądu Najwyższego oraz Trybunału Konstytucyjnego(Wydawnictwo Naukowe UAM, 2018) Wojciechowicz, JoannaItem Przestępstwo naruszenia autorskich praw osobistych z art. 115 ust. 3 Ustawy z dnia 4 lutego 1994 r. o prawie autorskim i prawach pokrewnych w świetle zasady określoności(Wydawnictwo Naukowe UAM, 2018) Piesiewicz, Piotr F.The Act of February 4, 1994 on Copyright and Related Rights, which regulates issues related to the protection of copyrights, belongs to the private law system (its provi- sions protect the private interest). However, the Act includes both administrative and criminal law provisions aimed at protecting the public interest. The literature rightly points out that the systemic division into public and private law is becoming increasingly less pronounced, due to the permeation of legal domains belonging to both systems. An example of such interpenetration are the provisions of copyright law. This statement is significant for the considerations made in this article due to the statutory method of penalising certain behaviour contained in the provisions of the Copyright and Related Rights Act. Criminal law provisions, systemically related to public law and protecting the public interest, contain references to the provisions of the Copyright and Related Rights Act regulating the scope of copyright protection, i.e. private law norms. In the context of the requirements that should be met by criminal law, such a reference raises doubts, which are particularly highlighted in Art. 115 para. 3 of the Copyright and Related Rights Act. This issue is impor- tant because the Constitutional Tribunal in its judgment of 17 February 2015, Ref. K 15/13 recognised this provision as constitutional. Therefore, he concluded that the principle of the specificity of a criminal act does not preclude the legislator from using terms that are imprecise or vague if their designations can be determined. At the same time, the Constitutional Tribunal has not presented any arguments indicating that in this case the determination of the designates of Art. 115 para. 3 of the Copyright and Related Rights Act does not cause any difficulties. The author of this article attempts to determine the extent of criminal liability in the event of a violation of author’s moral rights (Article 115 section 3 of the Copyright and Related Rights Act), at the same time indicating the difficulties that are associated with the unambiguous determination of behaviour which Art. 115 para. 3 of the Copyright and Related Rights Act penalises.Item Sprawozdanie z Międzynarodowej Konferencji Naukowej „Bezpieczeństwo i porządek publiczny w jednostkach samorządu terytorialnego”, Łańcut, 15–17 kwietnia 2018 r.(Wydawnictwo Naukowe UAM, 2018) Ura, Paulina; Kubas, EwaItem Status prawny konsumenta jako strony umowy o kredyt indeksowany/denominowany do franka szwajcarskiego(Wydawnictwo Naukowe UAM, 2018) Zandecki, JacekIn this study the legal status of a consumer as a party to the loan agreement indexed to the CHF is presented. During legal disputes, the subject of many controversies is the existence or the lack of the consumer status. This issue is of high procedural importance as it decides about the formal possibility of applying Article 3851 § 1 of the civil code (k.c.) and relying at the same time on the abusive nature of contractual clauses. In the article, the period that could be examined regarding the consumer status has been discussed in detail, indicating first of all that only the circumstances preceding the conclusion of the agreement and accompanying it influence the status of the consumer as provided under Article 221 k.c. The status of the consumer exists in when the objective prerequisites defined in art. 221 k.c. are fulfilled. The performance of the loan agreement has no direct influence on the issue and circumstances connected therewith and may be applied exclusively for the evidence purposes in the scope of facts and intentions of the natural person upon concluding the agree- ment. It was also raised that assessing or ‘valuing’ consumers due to the personal features (education, employment, practice) is not allowed and has no legal effect in the context of Article 221 k.c. The pattern “of the enlightened consumer” having its justification in the scope of interpretation of Article 385 § 2 k.c. has no application to the interpretation of Article 221 k.c. nor does the application of Article 3851 k.c. No features of a natural person prejudge either in plus, or in minus the status of the consumer. The fact that the property for which a loan has been taken out will be leased has no influence on the status of the consumer if the consumer being a natural person had a consumer status when concluding the agreement. Pursuant to the lex retro non agit principle the status of a consumer cannot be lost with retrospective force.Item Wojna hybrydowa jako przykład umiędzynarodowionego konfliktu wewnętrznego(Wydawnictwo Naukowe UAM, 2018) Ochmann, Paweł; Wojas, JakubThe paper deals with internal conflicts, their internationalisation and a hybrid war. In the 1990s many military conflicts could have been regarded as domestic conflicts or internationalised internal conflicts. According to the authors internationalised internal conflicts and a hybrid war have much in common. The purpose of the paper is to compare and confront distinctive characteristics of internationalised internal conflicts with the model of hybrid war. The authors scrutinize definitions of an internal, domestic conflict and a hybrid war, and the possibilities and likelihood of their occurrence. Finally the issue is analysed in terms of international public law. ‘Hybrid war’ is a term not defined in public international law. However it is commonly used not only by media and politicians, but also by academics in a sci- entific discourse. A question arises to what extent it is justified to use a term in the context of different military conflicts, like for instance the one in the East Ukraine that has been going on since 2015. Therefore it is necessary to explain what the term ‘hybrid war’ means. In order to do so, it is necessary to try to define the term. Its distinctive characteristics must be indicated. Then, many military conflicts will be analysed to determine whether they satisfy the requirements for qualifying them as a ‘hybrid war’ or an internationalised internal conflict. The research leads to a conclusion that an internationalised internal conflict gives many opportunities for applying to it methods characteristic of a hybrid war. In the course of an internationalised internal conflict there are many ways in which the aggressor can evade international liability and the authors attempt to answer how to prevent this.Item Zakres podmiotowy prawa do petycji w Niemczech(Wydawnictwo Naukowe UAM, 2018) Wichrowski, Filip ZygmuntThe subject of this article is the right to petitions specified in Article 17 of the Basic Law of the Federal Republic of Germany. This provision regulates the individual’s right to address requests and complaints to public authorities. This publication contains an analysis of this institution with regard to entities that are entitled to exercise this right, as well as entities obliged to consider submitted petitions. The author begins the analysis of the indicated institution be reviewing the evolution of the historical right to petition, which has evolved from the institution of supplication known in ancient Rome. He indicates changes in the subjective scope of the right to petitions, focusing on the achievements of German constitu- tionalism in the 19th century. Next, the current regulation that guarantees the right to petition in Germany in its normative environment is presented. The public authorities that are the addressees of the petition have been analysed, and the scope of duties associated with receiving a complaint or request indicated. Furthermore the author describes particular types of entities that are guaranteed the right to submit petitions under the Basic Law of the Federal Republic of Germany. In this respect, various kinds of restrictions of this right, depending on the type of the petitioner, are identified. The last part of the work contains the characteristics of various forms of petitions due to the type of author and the addressee. Various functions which currently are fulfilled by the institution of petitions were subjected to analysis. In this context, a distinction was made between individual petitions and collective petitions, tak- ing into account their subject matter and the aims intended by the petitioner. The author also shows the future possibility of a development of the discussed institution, describing the public petition to the Bundestag, which has an electronic form.