Adam Mickiewicz University Law Review, vol. 2, 2013
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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 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 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 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 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 La souveraineté ou les souverainetés ? Réflexions sur les relations entre souveraineté de l’État et souveraineté de la nation(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Chęciński, Remigiusz, Alexandre, Tymoteusz Departout, MądryThe study attempts an analysis of the relationship between the concepts of state and nation sovereignty. The thesis has been proposed that state sovereignty could be regarded as a derivation of nation sovereignty. While attempting to approve of the proposed thesis, the authors describe the relationship between both institutions by referring to their origins. In the light of concepts of sovereignty, the relationship between state and international law is presented from a philosophical perspective. Approving the proposed thesis, the authors conclude that regardless of whether state sovereignty derives from nation sovereignty or not, the two concepts refer to different backgrounds which can be seen both in their origins and contemporary realities.Item Legal regulation of the principle of transparency in the budgetary process of the Republic of Poland(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Yankevich, SemenThe article describes the organizational and legal foundation of the principle of budget transparency in Poland. The study considers the legal basis for access to information about the activities of public authorities and the legal foundation of the principle of transparency of the budgetary process in the Republic of Poland. The main instruments for achievement of transparency of all operations with public funds such as budget classification, the cash servicing of budget implementation, budget accounting and reporting are analysed. While attempting to describe the aforementioned matters, the author proposes a definition of the term “budget transparency”.Item Les recettes de cuisine françaises peuvent-elles être protégées juridiquement?(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Fringans, ThimothéeThe study aims at an analysis of legal protection of French culinary recipes. While the French-style gastronomic meal has been listed in the Cultural Immaterial World Heritage of UNESCO, the situation of the recipes in French law can be regarded as a matter of great importance. The presented study aims at examining the problem of whether the French legal rules for intellectual property protect recipes and culinary creations and are focused on the author’s copyright to the recipes. Patents, industrial designs or trademarks are not suited to providing culinary recipe protection. The secrets and know-how seem to be protected but only after the fact. As for the author’s rights, the recipe is merely treated as a work of literature.Item Nadawanie klauzuli wykonalności obowiązkowi probacyjnemu orzekanemu na podstawie art. 72 § 2 kodeksu karnego(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Pilarczyk, ŁukaszThe study aims on selected problems associated with appending the enforcement clause on the redress of damage in Polish Criminal law. The difference between the redress of damage as a penal measure and as a probationary measure outlined by The Polish Supreme Court is significant for the analysed perspective. The author indicates that the Supreme Court claims, that a probationary measure enforcement clause could be put on the redress of damage only after the expiration of a period of time appointed by the court to the perpetrator to compensate for the harm caused by a crime. Due to the outlined interpretation by the Polish Supreme Court the author finds the presented statement as not rightful due to the wrong interpretation of the law and flagrant infringement of rights of the victims of the crimes.Item Poglądy doktryny prawa cywilnego i orzecznictwa na pojęcie błędu medycznego(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Białkowski, MichałThe objective of this paper is to present medical malpractice in cases related to civil liability. The article outlines the evolution of the perception of a physician’s civil liability, and against this background presents the concept and various divisions of medical malpractice represented in polish jurisprudence. The doctrine of civil law is nowadays consensus on the fact that the concept of medical malpractice includes behaviour associated with an offense against the principles of medical knowledge. But it is not commonplace knowledge even among lawyers and medical malpractice often becomes a collective term to describe the fault of members of medical staff or negligence. Not only is this issue important to law and medical communities but also to public opinion that expresses a growing interest in this subject. It may not come as a surprise, after all, that physicians are treated as professionals of public trust, thus entrusted with a patient’s fate as well as with trust of the family,they are obligated to perform their duties with accordance to current medical knowledge.Item Powództwo z art. 189 k.p.c. w przypadku wadliwych uchwał rady nadzorczej spółki kapitałowej(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Jaros, PawełThe aim of this paper is to present the issue of using a complaint from article 189 of The Code of Civil Procedure to challenge resolutions of a supervisory board of a company. This matter is not regulated precisely in The Code of Commercial Companies. According to the majority of representatives of Polish doctrine the complaint from article 189 of The Code of Civil Procedure is the most proper resource to repeal defective resolutions of a supervisory board in the current legal system. Nevertheless, the above fact does not mean that the declaratory action is deprived of any defects. On the contrary, it has certain weaknesses, which might play an important role in corporate relationships. Therefore, according to The Author, it becomes necessary to provide adequate legal regulations in the issue of challenging resolutions of a supervisory board of a company.Item Problem tzw. legalnej bigamii w II RP w świetle spraw małżeńskich toczonych przed Sądem Okręgowym w Poznaniu(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013) Paciorkowski, SzymonThe purpose of the paper is to present the problem of so-called “legal bigamy” in the light of the rulings of the District Court in Poznan. The marriage law regulations in The Second Polish Republic were completely different in various parts of the country and attempts to unify them failed. This situation caused significant problems: for example, many civil courts refused to recognize some of the divorce judgments issued by church courts in the former Russian partition because of their improper jurisdiction. The paper focuses on two matrimonial cases that were ruled upon by the District Court in Poznan. In both cases the District Court in Poznan was to decide whether divorce judgments issued by the church court of the Polish Orthodox Church in Warsaw were also binding in the former Prussian district.Item Regulacja prawna transplantacji w ustawodawstwie europejskim(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Urban-Dechnik, HannaIn recent years, a tormenting phenomenon can be observed related to the decreasing number of transplants performed due to the limited amount of patron organs. This fact has become an opportunity to analyse the European Union’s regulations of transplantations. The achievements of the Council of Europe and the European Union in terms of organ donation and transplantation has been presented in detail with a conclusion heading towards the dangerous commercialization process of transplantations. This article presents also the standards developed by the European Union in regard to transplantology which clearly supports the fact that organ donation should be on non-profit and altruistic basis excluding commercial aspects.Item State Immunity or State Impunity? Human Rights and State Immunity Revisited in the ICJ’s Judgment on the Case of the Jurisdictional Immunities of a State(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Gerlich, OlgaThe paper aims to comment on the judgment of the International Court of Justice of 2nd February 2012 in the case of Jurisdictional Immunities of the State between Germany and Italy from the perspective of the problem of jurisdictional immunity. In its decision concerning compensation for atrocities suffered by Italian citizens during World War II granted by Italian courts against the German State as well as the execution of the analogical decisions of Greek courts, the International Court of Justice upheld the immunity of the German State. The compensation sought by the plaintiffs in the national proceedings was to redress massacres on the civil population, deportations and forced labour. In its decision the Court analyzed the exception proposed by Italy in three strands which, according to the Respondent, cumulatively would result in an exception to the rule of state immunity. Firstly, the acts giving rise to the Italian claims constituted grave violations of humanitarian law; secondly, the rules of law violated constitute peremptory norms of international law; thirdly, no other form of redress was available rendering the exercise of jurisdiction by the Italian court to be a measure of a last resort for the victims.Item Umowa o korzystanie z gruntu celem budowy i eksploatacji instalacji OZE – wybrane aspekty prawne(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Jóźwiak, JakubThe paper presents an analysis of the legal nature of an agreement on the use of land for the construction and operation of renewable energy installations, especially wind farms. In particular, it focuses on the legal significance of the Supreme Court judgment of 5 October 2012 (IV CSK 244/12), which ruled that such an agreement cannot be regarded as a lease. The author seeks to identify the possible practical consequences of this judgment and propose legislative measures to ensure the sustainability of such agreements, and thus the investments which go with them as well as to analyze the legal term fructus in the civil law in the context of this judgment.Item Zapłodnienie post mortem nasieniem zmarłego męża jako przykład medycznie wspomaganej prokreacji(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2012-06) Marszelewski, MichałThe paper covers issues concerned with the postmortem conception of a dead husband’s semen as a particular example of medically assisted procreation. For this purpose it examines the possible varieties of postmortem conception with legal and factual circumstances of entities who are participating in such a procedure. Ethical aspects and questions which arise from allowing or prohibiting postmortem conception are also described. The paper presents important issues which postmortem conception causes in many areas of law, including an understanding of the principle of the best interests of the child. The paper then explains the legal situation of a child born as a result of postmortem conception under Polish law. It contains important foreign and Polish case law and cites the most important opinions of experts in the discussed topic.Item Zasada kontradyktoryjności a ewolucja i współczesny kształt postępowania cywilnego – zarys problematyki(Europejskie Stowarzyszenie Studentów Prawa ELSA Poznań, 2013-06) Marciniak, SławomirThe adversarial principle has a long tradition in Polish civil procedure. It was one of the main principles under the Polish Civil Procedure Code of 1930. Later on, the change of the state system to socialism brought significant modifications to the shape of the subject principle. Due to the different bases of socialist civil procedure, the adversarial principle was almost completely forgotten. It was later resurrected, with another change of state system. The contemporary lawmaker is much interested in shaping the adversarial principle in the right way. The latest amendments to the Polish Civil Procedure Code of 1964 were focused on creating the proper bases for the functioning of the courts and for proper regulations regarding parties remaining active throughout the process. The presented analysis leads to the conclusion that the adversarial principle is, and always has been, of very high importance to civil procedure.