Ruch Prawniczy, Ekonomiczny i Socjologiczny, 2006, nr 1
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Item AMERYKAŃSKA OPERACJA MILITARNA W AFGANISTANIE A PRAWO PAŃSTWA DO SAMOOBRONY(Wydział Prawa i Administracji UAM, 2006) Malinowski, Marek M.The US military operation “Enduring Freedom” in Afghanistan being as a reaction to the terrorist attacks of 11 September 2001 had not, contrary to the later invasion of Iraq in March 2003, triggered off such a heated political and legal debate as the one latter one. Because of its close proximity to the terrorist attacks, the political world and international societies showed more understanding of the reasons for using a military force in the operation in Afghanistan which was, inter alia, directed against certain alleged perpetrators, or named terrorists, allegedly funding rescue in Afghanistan. It was also directed against the Talib regime which had allowed the Afghan territory to be used as a terrorist base, and which had refused the submit to the UN Security Council’s request to deport Osama bin Laden and other terrorist suspects. The US government justified its military intervention referring to the inalienable right of each state to defend its sovereignty, and indeed, the US sovereignty was violated in the September 2001 attack on the World Trade Centre. This justification, however, is not free from a number of serious doubts as to the lawfulness or legality of that act and its compatibility with the common practice of international law regarding the conditions for its application. In particular, the US government had failed to prove in a sufficient manner that the military act was really a necessary measure to be taken by the state to defend its sovereignty, or whether it was taken in a state of emergency, in the absence of other available measures, remedies or time given for lengthy deliberations. Besides, it is also doubtful whether the military operation had indeed been kept to the absolute minimum level and stayed within that limit. Its target were, after all, not only the remote and technically modest Al-kaida training bases, but also the military installations of the de facto Afghan government and some other strategic goals not at all in the terrorists’ hands. What was more, the US had not even attempted to procure from the UN a resolution available under article 42 of the UN Chart calling for the restoration of international peace and security. Instead, it decided upon a unilateral military operation. It may be therefore assumed that the main reason for the launching of the “Enduring Freedom" operation was, on the one hand, taking a revenge for the barbaric attack on the US and, on the other, a political will to overthrow the government which, apart from being hostile to the US. supported the anti-US terrorist movement (the next step of this political philosophy being the attack on Iraq).Item CORAZ MNIEJ GRZESZNI - O KATEGORII GRZECHU W ŚWIADOMOŚCI MŁODYCH LUDZI(Wydział Prawa i Administracji UAM, 2006) Królikowska, AnnaAmong European nations Poles are recognised as highly religious. Current declarations of religious faith do not mean, however, that people’s religiousness meets the expectations and teaching of Catholic Church. Sin is a notion relatively strongly fixed within the Christian and Catholic doctrine. Contemporary culture is conducive to the decrease of the influence of this notion on consciousness and religious and moral life. Sin as a notion is almost absent in a social sphere outside the Church. Can it be found within an individual consciousness? This question, like those on the condition of other religious notions, is interesting particularly in reference to young people, whose consciousness is, on the one hand, under the influence of postmodern cultural values, and on the other, has been equipped with some traditional, religious transmission. If a category of sin still remains, then what are its versions and interpretations? What are its equivalents in a secularised consciousness? Theoretical and methodological questions referring to the changes in interpretations of the notions that played important roles in our culture are still a separate issue. The argument that an exploration o f such a private sphere goes beyond the limits of sociology is not strong enough to induce withdrawal of our interest from that part of human consciousness.Item CZY ZASADA CZYNU JAKO PODSTAWOWA ZASADA PRAWA KARNEGO JEST WYSTARCZAJĄCO PRZESTRZEGANA?(Wydział Prawa i Administracji UAM, 2006) Joachim Hirsch, HansOne of the key principles of contemporary criminal law is the principle that criminal law is the “law of actus reus” (“deed of crime”). The main thesis of the paper is a statement that there is no reason to change that. As various forms of special crime prevention and their significance have been recently expanding, both in theory and practice, “the perpetrator’s criminal law” becomes of essential importance too. The fact that criminal law has always been the law dealing with actus reus (a deed of crime) is connected with the historical concept of repayment for damages. The penal suffering, or punishment inflicted, may be a re-payment for the deed of crime, but not for the identification of the perpetrator or placing the perpetrator in a certain category of perpetrators. Accordingly, the concept of mens rea (guilty mind) relates to actus reus (the deed of crime). The law of actus reus constitutes a certain bastion safeguarding against abuses on the part of the state, and therefore it is indirectly included in many constitutions through a requirement that a deed of crime must be defined, and through the principle of guilty mind as it arises from the principle of the state of law. The author asks whether the principle of a deed of crime (actus reus) is always adhered to by the German legislator. Consequently, the following are analysed: 1) the institution of an ineffective attempt, 2) a crime as an abstract exposure to danger of a legal good, 3) statutory attributes determining motivation to commit a forbidden act, 4) the so called principle of concurrence, or time coincidence in relation to the intention and guilt, 5) sentencing, particularly in case of persistent offenders, 6) discontinuance of criminal proceedings arising from the opportunistic principle. The criticised solutions of the German law are being compared with selected provisions of the Polish criminal code.Item DERYWACYJNA KONCEPCJA WYKŁADNI Z PERSPEKTYWY LOGICZNEJ(Wydział Prawa i Administracji UAM, 2006) Brożek, BartoszThe paper is an attempt to approach the so-called derivational conception of legal interpretation from a logical perspective. Some important doubts around the conception are presented. The most important one concerns the normative character of this model of interpretation and its field of applicability. The strongest argument supporting the conception formulated in the paper is that the use of classical logic for constructing a model of legal interpretation entails acceptance of the distinction that exists between a legal rule and a legal norm and therefore it leads to acceptance of the derivational conception itself. This argument is then criticised from the perspective of the so-called defeasible logics. The application of those logics enables one to undermine the basis on which the derivational conception is constructed.Item INSTYTUCJA PRAWNA ZATRUDNIENIA ZARZĄDCY ZAKŁADU PRACY W PERSPEKTYWIE KODYFIKACJI PRAWA PRACY(Wydział Prawa i Administracji UAM, 2006) Kijowski, Andrzej; Jankowiak, JarosławThe paper addresses a fundamental issue which is the determination of the working or employment status of a managing director. It attempts to answer the question whether such a person de lege ferenda should be given the status of an employee (on a contract of service) or a non-employee (a worker on a contract for services). In order to answer this question the authors first analyse the course and results of a discussion that went on in Poland’s interwar period (1919-1939), then look at the existing regulations and solutions in other states, and finally analyse the tendencies currently present in Polish labour law, to conclude that despite numerous convincing arguments to the contrary, pragmatic reasons speak for securing for a managing director a status or an employee, which conclusion is also a recommendation for consideration when drafting an amended version of labour law in Poland. The same arguments, in the authors’ opinion, speak against the same status for a managing director to be provided for in the potentially drafted EU labour law model.Item NIEFORMALNE SYSTEMY TRANSFERU WARTOŚCI MAJĄTKOWYCH(Wydział Prawa i Administracji UAM, 2006) Filipkowski, WojciechThis is a criminological study of the phenomenon of so called informal value (or money) transfer systems (IVTS) throughout the world. At the beginning of this paper, the author presents short characteristics of cash as a payment instrument, also widely used by criminals. Almost all the anti-money laundering regimes which have been enforced so far watch closely the flow of cash between accounts, persons or countries since it gives a great amount of versatility and anonymity for its users. Secondly, the criminals usually obtain their illicit gains in the form of cash (banknotes and coins). In order to legitimize “dirty money” they introduce it into licit financial system. This is the reason why all persons who use cash are under close investigation by institutions obliged to carry out some anti-money laundering requirements. At the same time there are several main types o f so called informal value (or money) transfer systems. They are strictly connected with certain ethnic groups or minorities, e.g. Indian, Chinese, Vietnamese, etc. Some developed centuries ago and had existed long before the banking system was created in Europe (such as Hawala, Hundi, Chop shop, Chit, Fei ch’ein). These systems have been used for one reason: to move funds from one country to another. It has been done by settling financial obligations between brokers residing in different countries (sometimes even without moving money itself). Sadly, they are being used by the criminals in order to launder their ill-gotten gains, too. In fact IVTS involve very fast, inexpensive and effective techniques to circumvent regulations. What’s more important, the terrorist have been also exploiting them in order to finance their activities. The second part of the paper contains a thorough analysis of a few examples o f IVTS. The author presents the phenomenological aspects of IVTS basing on reports of international institutions and researches done abroad. The third part of the paper contains some measures that may prevent the abuse of IVTS by organized crime or terrorist organizations. The Financial Action Task Force on Money Laundering prepared the 9 Special Recommendations on terrorist financing. One of them is recommendation number 6th which refers directly to so called “alternative remittance systems”. Another institution which deals with this phenomenon is the United States’ financial intelligence unit called Financial Crimes Enforcement Network. In 2003 it issued a list of recommendations and advice for financial institutions how to spot so called “suspicious transactions” connected to IVTS. The summary contains some general remarks on the effectiveness o f the existing anti-money laundering regimes and the situation in Poland in the light of the presented characteristics of informal value transfer systems.Item NORMA SANKCJONOWANA W PRAWIE KARNYM JAKO PRZYKŁAD NORMY PRAWNEJ NIE BĘDĄCEJ NORMĄ POSTĘPOWANIA(Wydział Prawa i Administracji UAM, 2006) Pohl, ŁukaszThe aim of the paper is a theoretical analysis of a legal concept proposed by Zygmunt Ziembiński that each legal norm is a norm of conduct. However, an analysis of norms the breach of which is sanctionable in penal law suggests that this concept needs a certain correction. Norms may be also breached by an unfree act or behaviour. Consequently, the criterion of free/unfree will, or free/unfree act should be considered in the sphere where blame, or guilt is determined rather than in the sphere formulating the criteria for norm-based, or norm-abiding conduct. The proposed correction is in line with the view in criminal law that a forbidden act is not conditioned by the occurrence of free will.Item „NORMA SANKCJONOWANA W PRAWIE KARNYM...” - KILKA UWAG DO ARTYKUŁU ŁUKASZA POHLA(Wydział Prawa i Administracji UAM, 2006) Patryas, WojciechItem O STANDARYZACJI PRACY W OBSŁUDZE KLIENTA 1 PROCESACH ORGANIZACYJNEGO UCZENIA SIĘ(Wydział Prawa i Administracji UAM, 2006) Woźniak, JacekPaul Lillrank, in his work The Quality o f Standard, Routine and Nonroutine Processes, considers the cause o f the gap between approaches to quality control in industry and the services to lie in the difference between standard and non-routine processes. The primary cause of this discrepancy lies in the category of “interpretation” , which is used in non-routine processes to signify the use of new criteria (created basing on concrete cases) for classification. Dividing the various kinds of service environments into three categories allows us to see the drawbacks of Lillrank’s differentiation. Lillrank’s paradigmatic example (qualifying for surgery) is a specific example of a professional service combining management o f emotions and management of procedural innovation. The model o f three spheres in which services are performed seems to give a better insight into the issue of “interpretation” in the service area, as it enables differentiating interpretation of facts and interpretation of emotions. It enables us to formulate the conditions under which organizational learning takes place, and to show the areas in which the organization refuses to analyse non-routine processes.Item ODPOWIEDŹ NA „UWAGI”(Wydział Prawa i Administracji UAM, 2006) Krukowski, JózefItem OPTYMALNA PROGRESJA PODATKOWA(Wydział Prawa i Administracji UAM, 2006) Panek, Emil; Kliber, PawełIn this paper we try to find the optimal income tax system. The government must collect a certain amount of tax. The society consists of people with different wealth. The problem is to find an appropriate tax rate for every level of wealth so that the total social utility (measured as the sum of the personal utilities) is maximised. We consider two different tax models - a static one and a dynamic one. It turns out that the best tax system is progressive. However, if we consider its dynamics, we find that such a system should offer large tax reliefs for investments.Item PRAWO WYZNANIOWE W PRAKTYCE III RP (zagadnienia wybrane)(Wydział Prawa i Administracji UAM, 2006) Szymanek, JarosławThe paper focuses on the analysis of the legal regulations governing the relations between the state and the church in Poland. Today, the constitutional regulations regarding the widely understood denominational issues are regarded to be a constitutional matter. This means that each constitution must contain at least those fundamental laws that regulate the individual sphere (freedom of conscience and freedom of religion) and the institutional (collective) sphere, the subject of which are the provisions regulating the state-church relations. It is recognised that only when those two are combined the constitutional matter regarding the religious denominational sphere is exhausted. The denominational matter, apart from the fact of being an obligatory element of each modern, comprehensive constitution, is also that fragment of its provisions which is always a controversial issue, both during the legislative process, and subsequently, when the law is to be implemented or executed. The most controversial issues in Poland (either when it comes to their legal articulation or practical application) include the general rule of equal rights granted to every denomination; the principle of independence and autonomy of the state and church; and the consensular form of relations between the state and churches other than the Roman Catholic Church. The controversies which occur are the best indication how sensitive the issue of religious denominations still is in Poland. The example of the law on religious denominations in Poland shows best, at least at the constitutional law level, that the so called constitution in book is often very far from the constitution in action.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2006) Cholewa, KatarzynaBarbara Kunicka-Michalska, Przestępstwa przeciwko wolności seksualnej i obyczajności popełniane za pośrednictwem systemu informatycznego, Zakład Narodowy im. Ossolińskich, Wrocław 2004, ss. 203.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2006) Buttler, DominikBrian Dolłery, Joe Wallis, The Political Economy of the Voluntary Sector. The Reappraisal of the Comparative Institutional Advantage of Voluntary Organizations, Edward Elgar, Cheltenham, UK, Northampton 2003, ss. 190. KorzenieItem PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2006) Przybylska-Kapuścińska, WiesławaEuro a Jednolity Europejski Rynek Finansowy, część I, ss. 109; Jednolity Europejski Rynek Finansowy, część II, ss. 127, red. Joanna Żabińska, Wydawnictwo Akademii Ekonomicznej w Katowicach, Katowice 2004.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2006) Szafrański, WojciechAgnieszka Grzywacz, Obrót dziełami sztuki, Wydawnictwo Prawnicze LexisNexis, Warszawa 2004, ss. 185.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2006) Grabowski, PawełAgnieszka Grzywacz, Obrót dziełami sztuki, Wydawnictwo Prawnicze LexisNexis, Warszawa 2004, ss. 185.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2006) Kaźmierczyk, StanisławAndrzej Redelbach, Prolegomena do nauk o człowieku, władzy i prawie, Toruń 2005, ss. 538.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2006) Dopierała, RenataJoanna Braciak, Prawo do prywatności, Wydawnictwo Sejmowe, Warszawa, 2004, ss. 317; Marek Puwalski, Prawo do prywatności osób publicznych, Wydawnictwo „Dom Organizatora”, Toruń, 2003, ss. 216.Item ROLA EFEKTU PIERWSZEŃSTWA W PUBLIKACJACH PRASOWYCH(Wydział Prawa i Administracji UAM, 2006) Wanat, TomaszPress articles are sometimes divided in two parts: the introductory one (the lead) and the main one. The paper is an attempt to determine the impact of the lead on the perception of information contained in the main part of a press article. The analysis of the order effect i.e. primacy, recency and the anchoring and adjustment heuristic constituted a theoretical basis. Hypotheses made on that basis were subsequently verified in the course of an experiment. It has been found that the division of a text into the lead and the main body does indeed influence the way in which the text is perceived. Despite identical content, the same text was perceived and evaluated differently, depending on the form of its presentation (divided or undivided). The sequencing of argumentation in the text has also proved to influence the way in which it is perceived. However, a positive (or negative) attitude formed initially, does not always lead, contrary to what was assumed, to a positive (or negative) assessment of the whole text and its message.