Ruch Prawniczy, Ekonomiczny i Socjologiczny, 2006, nr 2
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Item Spis treści(Wydział Prawa i Administracji UAM, 2006)Item ZNACZENIE KONSTYTUCYJNEJ ZASADY PODZIAŁU WŁADZY DLA PRAWA KARNEGO MATERIALNEGO(Wydział Prawa i Administracji UAM, 2006) Zoll, AndrzejLegal issues in criminal law from the point o f view of the constitutional principle of the separation of powers could only be given in outline here. Four main issues have been discussed. Firstly, whether the legislator is entitled, and if he can, to what extent, to invest into the executive power with the task of determining the grounds (constituting) criminal responsibility, and more precisely, the interpretation of the nullum crimen sine lege principle in the context of article 31 clause 3 and article 42 clause 1 of the Constitution. Secondly, whether in Poland's constitutional system (order) exist instruments which a legislator could use to check the scope of criminalisation. Here, the dispute concerning the right of criminal courts to disregard, at their own discretion, the norm arising from an Act or ordinance, if such a norm is found to be in conflict with the Constitution. Thirdly, an attempt has been made to determine the level of judicial competence that may be vested in the criminal court to establish the attributes of a prohibited act. And fourthly, the level to which the legislator is authorised to propose absolutely determined punishment has been analysed, followed with a question whether such punishments are in line with the separation of power-based jurisdiction of courts appointed to administer justice.Item PRAWO DO SĄDU W PRAWIE ADMINISTRACYJNYM(Wydział Prawa i Administracji UAM, 2006) Zimmermann, JanThe paper focuses on the analysis of specific features of administrative law and administrative tribunals, which influence the interpretation and application of the constitutional right to turn to a tribunal for a decision in administrative law. The constitutional right of recourse to court should be, in principle, understood equally in all branches of law, i.e. in the whole legal system. However, administrative law has a specific function and application, with the result that the activities of the administrative court are only secondary in relation to the activities of the organs of public administration. Moreover, administrative decisions are not of a substantive, but merely regulatory character. Consequently, the right of recourse to a tribunal within that branch of law may be construed differently. While a right to instigate administrative proceedings seems to be recognised, or legitimised, on the ground of legal interest, the concept of a claim differs, and the structuring o f the 'dispute' before an administrative tribunal is also different. The need for a different interpretation of the right to turn for an administrative decision does not mean that that right is in any particular way, restricted. Certain limitations do, however, occur, when it comes to more detailed regulations, which are analysed more thoroughly in the second part of the paper concluding with a proposition that the currently binding regulations should be gradually improved in order to ascertain a full and effective right of recourse to a court in administrative law.Item DESTRUKCJA DIALOGU POLSKO-NIEMIECKIEGO UWARUNKOWANIA, KONSEKWENCJE(Wydział Prawa i Administracji UAM, 2006) Wolff-Powęska, AnnaThe institutional regulation of disputed issues on the brink of democratic changes in Poland was a starting point for wide-ranging collaboration between almost all professional circles in Poland and Germany. The setting up of new contacts, joint projects and initiatives created a chance for the two states to normalise their mutual relations. At the turn of the 20th and 21st centuries the Polish-German dialogue started showing some weaknesses and gaps. Different priorities in important foreign policy issues, disputes over the interpretation of history and the conditions of Poland’s accession to the EU, had undermined confidence between the states and had adversely affected the climate of mutual understanding. The aim of this paper is to identify the main reasons for the disruption of this dialogue.Item ROZWÓJ REGIONALNY POLSKI W PERSPEKTYWIE CZŁONKOSTWA W UNII GOSPODARCZO-WALUTOWEJ(Wydział Prawa i Administracji UAM, 2006) Gruchman, BohdanPoland’s membership in the European Monetary Union is still a relatively distant event. However if one considers the slow pace of structural change in regional development the exciting differences in this field in Poland could amount to a major obstacle in the smooth transition to the single currency even if this takes more years to come. The transition period to the market economy (1989/90-2004) did not eliminate existing sharp differences in the development level of the Polish regions. They still exist despite the investment outlays considerably augmented owning to EU pre-accession aid and the Integrated Operational Programme of Regional Development for the years 2004-2006. In order to obtain satisfactory results from structural Funds forseen for the period 2007-2013 it is necessary to better coordinate investment projects stemming from different sectoral programmes with the 16 regional ones (in order to get higher spill-over effects or value added). More attention should be paid to investment in human capital. Simultaneously the territorial and social mobility of labour in Poland should be increased and greater wage elasticity introduced in order to better prepare the economy for a unified monetary policy and possible external shocks. Hence, the current concept of regional development policy should be revised substantially.Item PROJEKTY NOWYCH ROZWIĄZAŃ KONSTYTUCYJNYCH(Wydział Prawa i Administracji UAM, 2006) Winczorek, PiotrThe paper is in the form of an essay devoted to an analysis o f two recent drafts containing an amended version of the constitution of the Republic of Poland, one authored by PiS (Law and Justice) party and the other by Samoobrona (Self-defence), as well as an analysis of certain amendments proposed by PO (Civil Platform). The analysis has focused on the general vision of the Polish State which emerges from the two drafts, and on the structure and the principles upon which Poland's main constitutional organs would function. PiS stance is that the Republic of Poland should take the form of a national state cultivating traditions and patriotic attitudes, and protecting and propagating Christian values. This, however, does not mean that Poland should transform itself into the “Catholic State of the Polish nation” . Both proposals, that of PiS and that of Samoobrona, contain solutions which advocate a fundamental change in the power vested in the President, proposing a substantial increase in the presidential competences. While PiS draft proposes maintaining the existing parliament-cabinet system, Samoobrona advocates a semi-presidential system. The paper discusses proposals regarding electoral law, the structure and functioning of parliament, and the legal status of the members of parliament. Much time is devoted to the relations between parliament (consisting of only one-chamber as proposed by Samoobrona) and the President and the Council of Ministers. The proposals advocating liquidation of certain constitutional organs, such as the National Council of Radio and Television Broadcasting and the Institution of the Ombudsman, and creation of new ones (eg. The Office of Assistance to the Victims of Injustice) have also been presented. The paper ends with a discussion of the possibilities of Constitutional amendments in the current political situation (2005/2006).Item POLSKA POLITYKA GOSPODARCZA A INTERNACJONALIZACJA I GLOBALIZACJA(Wydział Prawa i Administracji UAM, 2006) Gorynia, MarianCertain recommendations, or propositions for the directions of Polish economic policy are presented. Three key conditions upon which the place of Poland’s economy in the international environment depends have been analysed as those which will ultimately determine the advantages of the international division of labour resulting in a possible enrichment and prosperity. Those conditions are: a) completion of the transformation process, whose significance will be diminishing in time; b) Poland’s EU membership - and especially Poland’s economic relations with other member states; and c) globalisation, which will ultimately be decisive for Poland’s role in the world’s economy, but which, alongside many opportunities, brings many threats for the Polish economy as well. The first group of recommendations (propositions) presented in the paper point to the importance of building a long term strategy for Polish economy in the competitive market, and the other proposes forms and directions of supporting the competitiveness of Polish businesses and products in the Single European Market.Item PRACA NA TLE INNYCH WARTOŚCI(Wydział Prawa i Administracji UAM, 2006) Domański, HenrykBasing my remarks on the empirical results gathered by the Polish General Social Survey the European Social Survey and other nationwide studies I attempt to establish Poles’ attitudes to work today. On the one hand I compare those attitudes with attitudes of workers in other countries, and on the other, I analyse how the attitude to work has changed in Poland over the years. A rather surprising finding is that Poland is among those European states, in which work is considered to be among the highest values. At the same time, again surprisingly, Poles see themselves among those who have little influence when it comes to deciding about their working hours, the organisation of the working day. Other bad news is that Poles see themselves as “very unlikely to find employment in the same trade with another employer”. Analysing these findings from the perspective of the recent changes in market economies (decline of the welfare state) which have brought about an increase in uncertainty and fear - one might draw the conclusion that Poland belongs to the communities at “increased risk”.Item POLSKA I STOLICA APOSTOLSKA PRZED ROKOWANIAMI NAD KONKORDATEM(Wydział Prawa i Administracji UAM, 2006) Skubiszewski, KrzysztofBetween October 1989 and March 1993, contacts between Poland and the Holy See prepared the ground for the negotiations which culminated in the signing of the Concordat agreement on 28 July 1993. After the breakthrough of 1989, both Prime Minister T. Mazowiecki and President L. Wałęsa chose the Holy See as the first port of call of their official visits. In so doing they emphasised the role of Pope John Paul II and the Catholic Church in Poland's emancipation. A draft convention on the relations between Poland and the Holy See already existed as a result of talks between the Communist Government and the Polish Episcopate in 1987-1988. When the breakthrough occurred, negotiations had not yet reached the level of the Holy See. The draft convention, however, became irrelevant when the political situation in Poland changed and the Communist Party lost power, which meant that a new text had to be drafted. The Holy See suggested that discussions on that text be postponed. Nonetheless, in the talks between the new Government and the Holy See, both sides continued to systematically emphasise the need for a concordat. Those talks resulted in a common vision on the relations between the State and the Church. Both parties agreed that the State and the Church, though independent and autonomous, would work together towards the development of the human being and for the common good. This common stand paved the way for a concordat. The Holy See submitted a draft of a concordat in October 1991. In the same year general elections were held in Poland but political instability in 1992 delayed discussions on it. Poland submitted its draft in March 1993 and suggested that draft as the basis for negotiations. The Holy See accepted that suggestion and negotiations started on 3 April 1993Item ODPOWIEDZIALNOŚĆ PAŃSTWA CZŁONKOWSKIEGO ZA AKTY ORGANIZACJI MIĘDZYNARODOWEJ(Wydział Prawa i Administracji UAM, 2006) Czapliński, WładysławThe international liability of international organisations is a relatively recent issue, which has arisen mainly out of the growing activity of organisations, especially in situations which involve violent acts that result in a breach of law. The issue of international liability is currently being codified by the UN International Law Commission and it can be predicted that the traditional position which excluded State liability for acts of international organisations will be difficult to uphold. The principles of international liability of government organisations are similar to those of State liability (with two premises still valid, i.e. the infringement of an international obligation and a possibility of assigning liability for such an infringement to an international organisation). Statutes of organisations relatively seldom refer to delictual responsibility of organisations, and when it comes to State liability, there is no uniform doctrine on that. It seems though, that an operational test administered to check, or control those who violate the law will be decisive here. Judicial decisions of international courts, and in particular the decisions of the ECHR in complaints regarding the responsibility of the EU and NATO member states, have tended to exclude State liability. Therefore, the pending decision of the International Court of Justice in the dispute currently before the Court brought in by Yugoslavia against NATO member states for using force against the Federal Republic of Yugoslavia, may turn out of key significance.Item SPRAWNE PAŃSTWO A CZŁONKOSTWO W PROCESIE INTEGRACJI EUROPEJSKIEJ Problem zmiany Konstytucji RP z 1997 r. w związku z członkostwem Polski w UE(Wydział Prawa i Administracji UAM, 2006) Barcz, JanAccession to the European Union is for each state a substantial challenge of its political system. In order to satisfy its obligations arising from EU membership, and in particular in order to participate actively in the Community’s decision making process, the State must harmonise its system of government and its state system. This requirement is also true for Poland, even though the Polish Constitution of 1997 is a modern solution that establishes a solid and sound foundation for Poland’s participation in an international forum, and in the processes of European integration. And yet, already prior to Poland’s accession, it had been recognised that certain approximations of the Constitutional provisions would be needed. Today, two years after the accession, the postulated amendments of the Constitution are classified as those which are necessary (arising out of the State’s undertaking to transpose, or incorporate into the State’s legal system of the European Arrest Warrant), amendments that are very desirable (such as abolition of the requirement of a 50% participation of entitled voters in a referendum on the ratification of revision agreements amending the TEU, creation of grounds for the issue of executive orders, or of constitutional grounds for the electoral law compatible with the EU requirements) and the desirable (recommended) amendments (that would strengthen Parliament - government collaboration in matters related to the EU membership). However, the internal political situation in Poland has rendered implementation of those amendments impossible. If this situation continues, its consequences shall be not only infringement of the Community laws but also a much lower role that Poland will play in the Community’s decision making process in the future.Item ROLA PAŃSTWA WE WSPÓŁCZESNEJ GOSPODARCE POLSKIEJ(Wydział Prawa i Administracji UAM, 2006) Sadowski, ZdzisławThe experience of today's world shows that the economy has to be based on the market but needs a co-regulator, which can only be the State. The market, highly efficient in ensuring the effective operation o f companies and in stimulating development, fails both with regard to allocation and distribution by setting in motion self-destructive tendencies. From this follows the necessity to reject the neoliberal doctrine. The government, however, can not replace the market. Its role should be limited to influencing the economy and the conditions of social life by applying indirect measures. These propositions are based on an overview o f the evolution of ideas with regard to the economic role of the state in the capitalist system (Part I); a review of the actual conditions of the present-day market economies (Part II); and an analysis of the formation of the Polish economic system in a period of change (Part III).Item PRAWO A EKONOMIA(Wydział Prawa i Administracji UAM, 2006) Balcerowicz, LeszekLaw today constitutes an area of intense interdisciplinary research. An example of such research may be the economic analysis of law. The author understands the concept of law as law in action defined as the process of law formation and execution. Such a construction of law arises from democracy and the rule of law which, when considered independently, allow to analyse the relations between them. Next, the rule of law is analysed as a gradable concept, and the study on the influence of law on the rate of investments, the development of the financial sector, the increase in productivity and the ownership structure of firms and the availability of capital are presented. The influence of administrative legal regulations on people's behaviour and economic development (including, among others, moral hazard, social cost of extensive social protection and reasons for unemployment) is also shown. Concluding, the author draws our attention to the results of some empirical studies carried out recently worldwide and encourages similar studies to be carried out in Poland.Item MACIEJ ZIELIŃSKI Redaktor naczelny 1997-2003(Wydział Prawa i Administracji UAM, 2006) Smolak, MarekItem STATUS WŁADZ REGIONALNYCH I LOKALNYCH PAŃSTW CZŁONKOWSKICH UNII EUROPEJSKIEJ W ŚWIETLE PRAWA WSPÓLNOTOWEGO(Wydział Prawa i Administracji UAM, 2006) Mik, CezaryOne of the results of the dynamics of the European integration process, and (embedded in it) gradual decentralisation of power in member states is the increasing role of regional and municipal authorities. The special role of regional representation is provided in the Treaty on European Union and in a number of internal acts issued by the European Council. The Committee of Regions has thus become an important forum for the articulation of regional and local interests, which also enjoy legal protection at the European level. Those regions and local communities that have a legal status, have also a right of direct appeal against Community acts. The draft of the EU Constitution went even further, granting those organs a right to appeal against those normative acts, that are not subject to implementation. The author analyses the level of participation of regional and local authorities in the process of implementation and application of Community law. In particular, the concept of “contracting” the implementation of law as formulated within the so called European Governance, is discussed. The third area of the author’s interest is the application and execution of Community law by organs of regional and local authorities. The direct effect and the principle of supremacy of Community laws which, in case of conflicting provisions, must prevail over domestic laws must be ensured in order to ascertain the efficiency of application and execution of European law at the local and regional level. The supervision of the proper application of Community law by organs of local and regional authorities has been analysed from the point of view of member state liability for failure to apply Community law or liability for damages in cases where Community law has been violated or its provisions infringed at the local or regional level of a given member state.Item ZYGMUNT ZIEMBIŃSKI Redaktor naczelny 1991-1996(Wydział Prawa i Administracji UAM, 2006) Smolak, MarekItem ZBIGNIEW RADWAŃSKI Redaktor naczelny 1982-1990(Wydział Prawa i Administracji UAM, 2006) Kępiński, MarianItem „BEZSTRONNOŚĆ” WŁADZ PUBLICZNYCH(Wydział Prawa i Administracji UAM, 2006) Łączkowski, WojciechThe author concludes that like other legal acts, including Community laws, also Poland’s Constitution should be free from provisions that are either untrue or unenforceable. This concerns, inter alia, article 25 clause 2 of the Constitution, which provides for impartiality of public authorities in matters regarding religious or philosophical beliefs, or the world view, and suggests that rather the outlook represented by public authorities should be explicitly determined. Such a solution would help to avoid the hypocrisy where the authorities declare, on the one hand, impartiality, but at the same time are guided in practice by certain (atheist, religious or philosophical) views and beliefs. This, however, would require the courage of rejecting certain untrue, although attractive stereotypes, but it would be, at the same time, an honest solution, both for the legislature, as well as the judiciary and the executive, whose organs would be finally given certain clear guidelines how to interpret law. Moreover, the Constitutional Court (in Poland: the Constitutional Tribunal) would also need to be equipped with competences to assess laws not only from the point of view of the Constitutional provisions, but also from the point of view of the law that, although not imposed by national or supranational laws, is nevertheless binding upon all the subjects who have recognised it (as binding). This is particularly true in cases when the meaning of human rights is to be construed from the actual content o f those rights, undistorted by politicians in statutory provisions.Item ALFRED OHANOWICZ Redaktor naczelny 1958-1981(Wydział Prawa i Administracji UAM, 2006) Radwański, ZbigniewItem ANTONI PERETIATKOWICZ Redaktor naczelny 1921-1939(Wydział Prawa i Administracji UAM, 2006) Gulczyński, Andrzej