Czasopismo Prawno-Historyczne, 2011, z. 1
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Item Instytucja dyktatury w Republice Rzymskiej(Wydawnictwo Poznańskie sp. z o.o., 2011-07) Rudnicki, JanThe dictatorship (magister populi) was an extraordinary magistrate in the Roman Republic, widely used in the period of the classical Republic (4th-3rd century BC). Its origins are subject of serious doubts. One dominant theory sees it as purely republican and roman invention. According to the second – and more convincing to me – magister populi was at first an ordinary magistrate with the supreme power and later, when the consulate was established, it became an extraordinary office equipped with imperium maius. Dictatorship was an exception from every single major principle of roman republican constitution. He was not elected by the comitia centuriata, but nominated by the consul earlier authorized by the Senate. In contradiction to other collegial magistrates dictator was a sole performer of his duties. The supreme power of the dictator was limited to the maximum of six months. He was able to control and direct all ordinary magistrates and he was not bound by the rule of incompatibilitas. Finally, his decisions were immune to ius provocationis and ius auxili. During the two centuries of classical Roman Republic the Senate developed many ways to make use of this institution. First and most important was to grant a supreme power to one trusted man in face of a military crisis (rei gerundae causa) or dangerous disturbance in internal affairs (seditionis sedandae causa). Later dictatorship started to be nominated to substitute the consuls not able to conduct their duties both in state or sacral matters (comitiorum habendorum causa, feriarum latiniarum causa). Only once dictatorship was used to perform the duties of a censor (senatus legendi causa). The religious powers of magister populi were performed in case of prodigium by the dictator clavi figendi causa. Contrary to the common, but superficial opinion even the powers of dictator rei gerundae or seditionis sedandae causa were not unlimited. To perform such acts as declaration of war or triumph and even to use the treasury of the Republic, magister populi always needed the approval of the Senate or the Populus. Almost all dictators had nominated the magister equitum as their deputy and “second-in-command”. The master of the horse was assisting the dictator in performing his powers. After the Second Punic War dictatorship in this traditional shape ceased to fit the new reality and became obsolete. It came back to roman constitutional practice in the times of crisis of the Republic. Sulla and later Caesar used it as a form for their absolute power. Caesarian invention of “perpetual dictatorship” proved directly that the idea of old republican dictatorship was rejected. Soon afterwards the dictatorship was abolished and the word “dictator” started to be associated with an autocratic power. In later times many authors stated, that the dictatorship was one of the reasons of the fall of the Republic. This opinion was proved to be superficial and therefore wrong by N. Machiavelli, who analyzed that institution and showed its deeply republican character. From our point of view the roman dictatorship appears to be a prototype of all modern institutions of state of emergency.Item Ustrój administracji państwowej w Polsce w latach 1944-1950(Wydawnictwo Poznańskie sp. z o.o., 2011-07) Kozyra, WaldemarThe Communist rule in Poland in the years 1944-1950 was only possible owing to the presence of the Red Army that stationed in the Polish territory at that time. Neither the political programme, nor the vision of the political regime of post-war Poland was ever fully disclosed. Instead, the government camouflaged its activities by revoking the principles of parliamentary democracy provided for in the Constitution of March 1921 and other selected institutions of pre-war Poland. Those ‘borrowed’ solutions, however, were subject to a strict control and carried ‘the old form but a new content’. Most of the solutions and state institutions of pre-war Poland that were then referred to concerned the areas of administration and local self-government. And so, although the central administration of the People’s Republic was in the hands of the State National Council (a symbol of the Soviet political regime), it functioned alongside the Polish Committee of National Liberation which was a ‘classic’ governmental-executive’ organ, typical of the central government of the 2nd Republic of Poland (1918-1939) based on the Constitution of 1921. The organisation of territorial administration on the other hand, functioned as a three-pillar system, composed of (i) the newly built structures that followed the Soviet example (national councils), (ii) the centralised government administration following the pre-war model with units headed by voivods or starosts, and (iii) local self-governments represented by national councils of all levels (as legislative organs) and respective units of administration headed by voivods, starosts, city mayors, county heads and wójts (executive organs).Item Między nominalizmem a waloryzacją- judykatura in statu nascendi II Rzeczypospolitej(Wydawnictwo Poznańskie sp. z o.o., 2011-07) Jastrzębski, RobertThe paper deals with legal issues connected with nominalism and valuation of liabilities. The social, economic and political transformations that were happening in Poland after the First World War had undoubtedly influenced the administration of justice. Despite the abrupt decline in the purchasing power of the Polish zloty, the courts had continued to uphold the principle of nominalism until 1922 when the ruling of the Supreme Court in the case Fliederbaum and Kuhnke supported the valuation principle, although within limits delineated between the nominal value of the monetary payment and its equivalent value in gold, i.e. an amount equal to the value in gold of the liability at the time when it was taken on. Thus, the Supreme Court left the adjudication upon the level of valuation to the discretion of relevant courts. That ruling had also a substantial impact on the judicature and law-making of other states, such as Germany, Austria or Hungary, which were faced with similar problems. Fryderyk Zoll’s gloss to the ruling was of much significance as well, as it became the basis for the subsequent regulation of the valuation principle finally enacted on 14 May 1924 by a decree on the conversion of private-public liabilities, later referred to as lex Zoll. What is noteworthy is also the fact that the codification of the Polish law of obligations made in the ‘30s of the 20th century, took into account the solution of the judicature adopted during the inflation period. As a result, Article 269 of the Polish Code of Obligations of 27 October 1933 contained the rebus sic stantibus clause.Item Nadawanie, pozbawianie i przywracanie obywatelstwa polskiego(Wydawnictwo Poznańskie sp. z o.o., 2011-07) Kulka, GrzegorzAfter the end of the First World War it was necessary to pass new laws that would govern in the 2nd Republic of Poland. One of the relatively important issues that needed to be addressed was Polish citizenship. The first part of the paper focuses on the main legal acts that regulated Polish citizenship between 1918 and 1939, with special focus on the Act of 1920 on the Citizenship of the Polish State The outbreak of the Second World War in 1939 changed the geopolitical situation of Poland. However, despite the personal changes in the head state authorities, and the fact that they functioned in very specific conditions, in exile, Polish legislation continued to remain in force. This situation continued throughout the whole period of the Second World War and the Polish authorities in exile regularly referred to the existing regulations, amending them from time to time. One kind of the amended laws were those governing Polish citizenship. The author analyses the circumstances in which the Act on the Revocation of Polish Citizenship of 1938 was repealed by the Polish President in exile in 1941. Further, the main arguments raised in debates on the executive regulation to that Act held by the Second National Council of the Republic of Poland in 1942 and at intra-ministerial sittings in 1944 are presented. The paper also describes the legal position of Poles serving in allied forces, which could in consequence lead to their losing Polish citizenship. Based on the available source material, the methods used by state organs when granting, revoking and restoring Polish citizenship during the Second World War are also analysed.Item Zawód sędziego w Polsce w latach 1918-1939(Wydawnictwo Poznańskie sp. z o.o., 2011-07) Materniak-Pawłowska, MałgorzataIn the interwar period 1918-1939 the profession of a judge was subject to constant transformations being a result of numerous amendments to the legal regulations governing that profession. First, until 1928, the foreign laws that earlier governed in the partitioned territories of Poland had continued to apply, with only some minor modifications implemented by the Polish legislature. Later on, from 1 January 1929 and until the outbreak of the Second World War in 1939 all issues pertaining to the judicial profession were subject to common judicature uniformly applied throughout the whole country. The independence of judges was one of the main principles inherent to the profession, guaranteed by the principles providing that judges were to be appointed and when in office not subject to removal, suspension or transfer, and the office of the judge was separate and distinct from all others. During the interwar period those principles underwent certain albeit moderate modifications, especially with regard to the conduct of the traineeship, while the unification of the structure of the courts opened up the position of a judge to women, earlier unavailable to them. All those legal regulations provided for rights and duties of a judge, of which the most important rights were: the right to remuneration for the work performed, the right to retirement and pension, and the right to an annual leave. The duties, on the other hand, included: impartiality of opinion, protection of the authority of the court and avoidance of situations and any other circumstances that could be detrimental to court’s authority, the confidentiality duty and many others. Judges who additionally performed managerial functions had a special scope of duties. There were also disciplinary measures and each judge bore disciplinary liability as well. The 2nd Republic of Poland suffered from a major deficit of lawyers adequately qualified to take up a position of a judge. Consequently, those who were already appointed judges, were overloaded with work, being at the same time underpaid. Another difficulty and big problem was insufficient office space to secure proper working conditions of the judges.Item Darowizny na rzecz małżonków w świetle regulacji prawnej(Wydawnictwo Poznańskie sp. z o.o., 2011) WIśniewska-Jóźwiak, DorotaDonations in the Kingdom of Poland were regulated by the Napoleonic Code. However, apart from a couple of general rules, the Napoleonic Code did not provide for any special regulation that would be exclusively applicable to the specific kind of donations such as donations made by one spouse to the other. Acts- in- law pertaining to donations could be executed either in the same deed (notarial act) together with the pre-nuptial agreement, or as a separate deed. What was particularly interesting as well as extremely complicated were marriage contracts which required a distinction to be drawn among three types of acts-in-law, namely: donations of current property, donations of future property, and donations of current and future property combined, where the future property was understood as inheritance arising at the death of the testator. Performing of this unique act-in-law was still less complicated than making a contract to donate property, while the testators could be not only the spouses themselves but third parties as well.