Ruch Prawniczy, Ekonomiczny i Socjologiczny, 1995, nr 2

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    Spis treści RPEiS 57(2), 1995
    (Wydział Prawa i Administracji UAM, 1995)
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    Uwarunkowania historyczne nowej Konstytucji RP
    (Wydział Prawa i Administracji UAM, 1995) Łączkowski, Wojciech
    As a study of a number of different constitutions shows, the contents of any constitution are related, among others, to the question whether the constitution is written after a given state has regained sovereignty, or whether it is written at any point of time of an uninterrupted history of a sovereign state. The new constitution currently being drafted in the Republic of Poland comes after a period of 50 years where the State was not sovereign. And such was the position of Poland for 45 years after the end of World War II, in which period the political orientation, foreign policy, control over the army and police as well as the way in which the main public posts were manned depended on external (Soviet Union) powers. As a consequence, the Polish legislature was not sovereign either. The regulations which were developed and implemented by an illegimate legislator cannot be considered as lawful and legal. In order to avoid legal chaos, it is vital that once the sovereignty has been regained, the legitimate legislator cancelled those regulations which were in breach of the so called principles of civilised nations. Other regulations, should be given the ex post status. A new constitution is an ideal occasion to do so. The new constitution, in its regulations of a number of specific issues, should also account for the historical conditioning in the country in which it will operate.
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    Dyskusja wokół podstawowych zasad ustroju RP w Komisji Konstytucyjnej Zgromadzenia Narodowego
    (Wydział Prawa i Administracji UAM, 1995) Winczorek, Piotr
    The paper gives an account of the discussion concerning the first ten regulations-articles which have been included in the chapter "Principles of the political orientation" of the draft of the Polish new constitution currently worked on by the Constitutional Commission of the General Assembly. Drafts of the new constitution submitted by the members of the Seym, the Senate, the President, experts and specialists, members of the Constitutional Commission and the voices in the discussions held at the National Assembly and the Seym meetings have also been included. A particular attention has been given to the work of the sub-committee appointed to deal with the fundamentals of the political system and the social and economic system, which has drafted the first chapter. Among the principles concerning the political, social and economic system, the following have been discussed in particular: — principle of a republican form of the government, principle of the common good, principle of supreme authority of the nation, principle of legality and constitution, principle of respecting the international law. Additionally, the discussion concerning the tasks and objectives of the state as expressed in article 6 of the draft has been presented. Attention of the readers has been drawn to the discrepancies of opinions which arise as a result of different axiological perspectives and different political and ideological attitudes and beliefs of the participants in the discussion.
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    Problematyka gospodarcza w projektach Konstytucji RP
    (Wydział Prawa i Administracji UAM, 1995) Czerwiński, Zbigniew
    Seven drafts of the constitution submitted to the Polish Sejm by political parties have been analyzed and compared within the scope of regulations concerning the economic organization of the society: property rights, freedom of economic activity and its limitations, social security, state budget and debt, etc. Though advanced by groups of different or even (seemingly) opposite political orientations, the drafts do not differ much, all of them presenting a vision of a rather liberal state with the possibility of state intervention, in case it is necessary to protect "the public good". Most important differences may be noticed in the area of social insurance, education and health service. It is, however, often difficult to state decisively what the differences between the drafts consist in. All the drafts have been written in a very general language. It is only the future legislation which will determine the shape of the economic system of the state, and will interpret the still vague regulations of the constitution, the final version of which will certainly be a compromise between the submitted drafts.
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    Pozycja samorządu terytorialnego w Konstytucji
    (Wydział Prawa i Administracji UAM, 1995) Rabska, Teresa
    The strengthening of democratic forms and the deepening of decentralisation processes is a challenging task for the present administration. If these new principles are to harden and stay, however, a reconstruction of the existing administration system must be carried out. On a closer examination of the progress which has been made so far in the work on the new Polish constitution, we are left with an impression that these problems are not yet fully and adequately recognised. What is still missing is a general concept of how the public administration should function and how it should be prepared to realise new tasks which now lie before the State and must be dealt with in a totally new economic environment. A self-governing body of territorial administration constitutes an integral part of public administration. Therefore, its position largely depends on the model ofthat administration. There are two main aspects which play a particularly important role in territorial self-government. They are: the nature of legal subjectivity and the level of decentralisation. Those two 'pillars' of the legal construction require a special explanation. The issue is that the self-government organ must be recognised as a legal entity and assume a legal and public status, whereas the formulas of decentralisation must also absorb the principle of subsidiaries and provide for a level which will be 'the closest ever to the citizen'. These principles are sourced in the European Law and the European Chart of Territorial Self-Government and as such should be obeyed and recognised in administrative structures. These contents should also be reflected in the provisions of the new constitution. What follows from there is a need to expand the self-governing territorial organ and move it to higher levels of administrative division of the state, as well as to extend its participation in the public control function. In this way, a complete system of self-governing organs, operating at different levels would be created. As a result, a need to regulate the interrelations between those organs would arise. Another problem which appears immediately here, is the appointment of a nationwide representation of territorial self-governments. The work which is currently in progress and focused on the drafting of the new constitution of the Republic of Poland offers a real and true chance to define the political system of the whole administration in the country including the self-governing organs. If this chance is missed, there may be a serious delay in the process of system transformations.
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    Sądownictwo administracyjne w nowej Konstytucji
    (Wydział Prawa i Administracji UAM, 1995) Hauser, Roman
    Considerations concerning the place and position of administrative courts in the future constitution appear before the remarks concerning the normative model of these courts in Poland during the period 1919-1939. The current position of the Head Administrative Court refers to the solutions ofthat interwar time. Generally, in the discussions about the new constitution, as well as in the drafts of the constitutions already prepared, a tendency advocating the retention of the currently binding solutions is observed. The role of the Head Administrative Court is still seen to be a one-instance, specific and independent organ, guided only by the of bills, and of cassation competence. However, the judiciary supervision of the awards and decisions of the Head Administration Court would be still the responsibility of the Supreme Court. The paper suggests other positions which the Head Administrative Court might assume in the new constitution. The future administrative courts have also been given new considerations. The solutions postulated in the paper might, in the near future, lead to the implementation of a two-instance administrative courts in Poland, which would, together with the Head Administrative Court, become separate and independent of the Supreme Court. The fundamental solutions to the draft of the new bill about the Head Administrative Court, which postulate, among others, an extension of the Court's jurisdiction, have been identified. The new proposals bring administered subjects much closer to the European standards.
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    Prawa społeczno-ekonomiczne w nowej Konstytucji (na tle porównawczym)
    (Wydział Prawa i Administracji UAM, 1995) Smoliński, Tadeusz
    The opinion polls carried out recently reveal that the majority of Poles await a soon arrival of a new constitution. This legal act is believed to be of significant importance to the citizens. The most important of all seems to be a wish for the constitution to secure a wide range of social and economic rights and a right to work in particular. Therefore, the majority of drafts of the new constitution which have been submitted to the Constitutional Commission of the National Assembly, contain long lists of social and economic rights. Apart from the drafts proposed by the President of the Republic of Poland and the Confederation of Independent Poland whose authors have decided that the above mentioned rights should be included within the framework of ordinary bills and in the Senate draft, there are others in which the problem of those rights was deliberately not worked out. The reason for such an action or rather lack of action was to detach and depart from the models contained in the socialist constitution. In drafts proposed by the Democratic Left Alliance, the Polish Peasant Party and the Labour Union as well as the Democratic Union and Solidarity, those rights were clearly and thoroughly defined. At the same time the guarantees of those rights and the manner in which they could be implemented were offered. The writers of the new constitution and the members of the constitutional commission do not differ greatly in their view on the approach to the social and economic constitutional rights. Very few renown politicians or lawyers decide to assume a position contrary to the public opinion beliefs. Disputes concern rather the actual rights included in the list and the nature of the formulated provisions. Therefore, it can be assumed that the new constitution shall contain a range of broadly defined social and economic rights. Such an approach is understandable because usually the shape of a constitution results from a certain political, social and economic situation in which the constitutional legislators who formulate or at least attempt to formulate such a list of rights and liberties take care to secure an effective protection for themselves as well as for the citizens they represent.
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    Ustrój społeczny w przyszłej Konstytucji RP w ocenie Rzecznika Praw Obywatelskich
    (Wydział Prawa i Administracji UAM, 1995) Zieliński, Tadeusz
    The author of the paper, currently acting as ombudsman in the Republic of Poland draws the readers' attention to the fact that today the principle of social justice is undoubtedly one of the main principles of the political system in Poland. And yet, in most of the drafts of the new constitution submitted to the National assembly, there is no direct reference to this principle. The ombudsman's position on that matter is that a concept of 'a social market economy' must be introduced into the model of the political system in the Republic of Poland. In his speeches and appearances the ombudsman has many times turned to the Constitutional Tribunal appealing for the principle of social justice to be exercised. The number of times when the principle of social justice has been violated and the number of breaches of social rights is considerable.
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    Ustrój gospodarczy w nowej Konstytucji
    (Wydział Prawa i Administracji UAM, 1995) Suchocka, Hanna
    The reader's attention is drawn to the fact that in view of a negative reaction to the concept of "socialistic law", there is a tendency to limit the provisions of the Constitution in the area of the economic regime. Though the regulation of these matters is necessary it should not be too detailed. The Constitution onght to contain the basic principles of the budget law and regulate the status of the National Bank of Poland. It should be based on the principle of subsidiarity and be guided by economic realism indicating the economic policy of the state, rather than formulating subjective laws incapable of being enforced.
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    Konstytucja a członkostwo Wspólnoty I Unii Europejskiej
    (Wydział Prawa i Administracji UAM, 1995) Lasok, Dominik
    Since Poland aspires to the membership of the European Union it seems desirable to consider the project of the new Constitution from that point of view. The Treaties which have established the Communities imply the capacity of the applicant State to enter into and to comply with the obligations arising from the membership, which is relevant to the définition of national sovereignty. The new Constitution onght to contain provisions concerning the participation in the decission- making process of the Community, the relationship between Polish law and Community law as well as procedural aspects of the exercise of the judicial function and the enforcement of decisions and judgments of Community authorities. Co-ordination of economic policies will require adaptation of the economic system to the market economy as well as of social laws in conformity with the Community system. In conclusion, the new Constitution should be based on well formulated general principles taking also into consideration the achievements of the European integration.
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    Założenia nowej konstytucji RP. Sprawozdanie z dyskusji
    (Wydział Prawa i Administracji UAM, 1995)
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    Gwarancje prawa do nauki w projektach konstytucji
    (Wydział Prawa i Administracji UAM, 1995) Skotnicki, Krzysztof
    Analysing several drafts of the new Constitution of the Republic of Poland the author has noticed a very limited range of legal regulations ensuring the right to learn. The proposed drafts do not - in the author/s opinion guarantee that rigth in the same scope as the Constitution of 1921 did.
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    Sądownictwo konstytucyjne we Francji
    (Wydział Prawa i Administracji UAM, 1995) François, Bastien
    The subject of F. Bastien's lecture given to Polish students within the framwork of Tempus cooperation is the procedure of controlling the conformity the of laws with the constitution. Although the idea of such a control was born in the USA at the beginning of the 19th century, it was introduced in Europe only in the 20th century. The first part of the article concerns the development of constitutional justice in Europe, from the first Constitutional Court in Austria till the latest legal changes after 1989. At the moment all written constitutions in the European states provide the control of conformity to the constitution of laws stated by parliaments or by special courts. The second part of the article focuses on the French system. According to the French Constitution of 1958, the special court, named Conseil Constitutionnel, is authorised to control the contents of laws (but not decrees, which are controlled by Conseil d'Etat). The procedure can take place only after the vote of the Parliament and before the promulgation of law by President: it is on a priori controlling system. The main part contains the analysis of Conseil Constitutionnel's decisions. As the Constitution of 1958 does not include many specific rules concerning civil rights, the court decided to base its decisions on the Declaration of Civil and Human Rights of 1789 and on the "republican laws". They are both referred to as "especially valuable for the French People" in the Preamble of the Constitution. In this way, the court began - in 1972 - to control the laws not only in their form, but also taking into account their contents. Since then the Conseil Constitutionnel has awarded many decisions precising the notion of liberty, of right to property, of social order and so on. The last part of the lecture contains an evaluation of the development of constitutional control of laws: some scepticism is uttered about the fact, that it i.e. the Parliament is not the representation of nation, but it is the lawyers and clerks who - as the highest authority - decide whether the law id admissible and in conformity with constitution. It may be weakening factor of democracy.
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    Przegląd piśmiennictwa RPEiS 57(2), 1995
    (Wydział Prawa i Administracji UAM, 1995)