Ruch Prawniczy, Ekonomiczny i Socjologiczny, 1988, nr 2


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    Spis treści RPEiS 50(2), 1988
    (Wydział Prawa i Administracji UAM, 1988)
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    Koncepcja praw podmiotowych osobistych
    (Wydział Prawa i Administracji UAM, 1988) Radwański, Zbigniew
    The article is devoted to the question whether civil-law protection of personar interests (Art. 23 and 24 of the Civil Code) is based on the subjective right conception. The author presents his standpoint with respect to the following controversies concerning various aspects of personal interests protection. First, he rejects the view that the immanent link between the person and his/her personal interests, i.e. the inseparability of a subject and an object of a right makes it impossible to adopt the construction of a subjective right. The author proves first that the notion of an object of a right is not a necessary element of a subjective right and that the essence of a subjective right lies in its regulative functions with respect to behaviours of others and not in delimiting the sphere of exclusiveness for a subject with respect to a separate object. Besides, the author proves also that in the case of personal interests the inseparatedness of a subject and an object does not actually take place because there are numerous individual attributes of human personality which do not come within the notion of legal capacity and thus require separate civil-law protection. Next, the author declares for an objective (intersubjective) conception of personal interests and for the conception of plurality of personal rights. The author then states that although there must always be a statutory basis for creating „erga omnes" rights, the degree of precision of the statutory formulation of those rights may vary and thus it is possible to construe „erga omnes" rights protecting interests which — though not mentioned in Art. 23 of the Civil Code — are nonetheless accepted in some way by the legal system. As to the presumption of unlawfulness of the infringement of a personal interest, the author states that each such infringement should be qualified as the infringement of a personal right, and that the criteria of evaluating the unlawfulness are to be of objective character, i.e. are to be based on normative grounds and subsidiarily on the grounds of principles of social coexistence. Similar criteria should be applied to the evaluation of conflicting interests. A generally accepted view that a prevailing social or individual interest may eliminate the unlawfulness does not in any way weaken the construction of a subjective right as a means of protecting personal interests. In turn, a view that a consent of an entitled person is a circumstance eliminating the unlawfulness of an infringement is fully in agreement with the conception of a subjective right. Namely, a consent is an expression of the freedom of decision with respect to one's own interests, and as such is the way of executing one's own subjective rights. Finally, the author analyses other constructions which might be used for the protection of human interests. In particular, he comments on „legal reflexes", tort liability, and the so-called „institutional protection". Neither of them meets the standards offered by the subjective right conception. The first does not stress adequately the fact that general duties originate in the individual interest of the entitled person, the second is based on guilt as one of the premisses of protection, and the third — being centered on the protection of supra-individual interests indicated in „the institution" — would be drastically in conflict with the very sense of introducing the protection regulated in Art. 24 of the Civil Code, aimed at safeguarding individual and not supra-individual interests.
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    Integralność człowieka w świetle jego statusu rodzinnego
    (Wydział Prawa i Administracji UAM, 1988) Smyczyński, Tadeusz
    The problem of human integrity appears in the context of international documents concerning the protection of human rights. In the author's opinion, there are no grounds to formulate a separate right to integrity. Human integrity should be conceived as a directive of interpretation necessary to assess and implement all human rights. However, integrity should be perceived as referring not only to a human being as a separate individual, but as a member of a family group he himself established or belongs to. Life of an individual is connected with a family, which constitutes natural environment of human existence. Belonging to a family apparently limits integrity of an individual in the sense of his/her autonomy correlated with the lot and well-being of other members of the family. At the same time, however, one may notice that the participation in a family „enlarges" one's personality and thus his/her integrity is also enlarged by those elements which are common for all family members, e.g. dignity, good fame, privacy of family life, etc. Family thus appears as a specific point of reference in an integral approach to the protection of an individual.
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    Zmiana płci w świetle prawa polskiego
    (Wydział Prawa i Administracji UAM, 1988) Zielonacki, Andrzej
    The article discusses the problems of the change of sex in Polish law in the contex of comparative aspects. A main topic is the regulation of the way of changing sex in the law on civil status acts. Only a few countries (Sweden, West Germany, Italy, The Netherlands, Austria) adopted appropriate legislative acts in that respect. Polish law, like most other European legal systems, does not address that issue in the statutory form. Hence, numerous problems arise with respect to the judicial change of sex of transsexuals. Contrary to the Supreme Court's view allowing to apply by analogy the provisions on correction cf a birth certificate, the author proposes to use for that purpose a declaratory action regulated in Art. 189 of the Civil Procedure Code. Accepting a prevailing opinion that sexual integrity is one of personal interests protected by the civil law and that a natural person has personal rights to those interests, the author draws the conclusion that Art. 189 of the Civil Procedure Code may be used by a person showing the traits of transsexualism. At the same time the author points to the possibilities of regulating the issues of the change of sex in the future law on medical care and medical profession.
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    „Nowe prawa człowieka". Perspektywy i zagrożenia
    (Wydział Prawa i Administracji UAM, 1988) Kowalski, Piotr
    The purpose of the article is a comprehensive critique of the actual process of enlarging the catalogue of international human rights by including the category of so-called "new human rights". In consideration of the size of the article and abundant literature concerned with descriptions of the "new human rights" the author, in introductory remarks, confines himself to the presentation of an outline of the theory of the "new human rights" in the version elaborated by one of the architects of that trend, K. Vasak. The description of that theory is a starting point for, the main part of the article focused on threats the conception of the "new human rights" poses for the existing catalogue of human rights. The author starts his analysis by showing substantial and methodological mistakes which are present in a vision of the history of human rights used by the propagators of the conception of the "new human rights" as a basis for shaping normative postulates. Next, legal character of the "new human rights" is analysed from the point of view of the theory of sources of international public law and accepted rules of interpretation. The author concludes that one may only talk about some postulates "de lege ferenda" with respect to defining legal character of the "new rights", and that placing those rights on a par with the existing catalogue of human rights is wrong and may lead to normative inflation. Proposals of the "new human rights" are of collective character — a people is defined as their subject. The author criticizes the conception of a people being the subject of human rights and shows the danger of using that construct by States for the purposes of limiting the existing human rights. Analysing normative documents concerning the "new rights" he points out to the fact that they have a character of political manifestos, abstract and devoid of any mechanisms of control, rather than a character of legal acts. In the author's opinion, it drastically undermines their practical usefulness for realizing social purposes they are supposed to achieve. The author also analyses the fact that discussions on the "new rights" are limited exclusively to axiological or normative planes, with no account of more thorough analyses of social mechanisms and without the participation of social scientists representing disciplines other than law and philosophy. The analysis of the "new rights" is completed by considerations concerning the relation between those rights and the existing catalogue of human rights. The author criticizes three types of argumentation: "new rights" as the instrument of realization of the existing rights; "new rights" as a synthesis of the hitherto existing catalogue of human rights; "new rights" as a precondition of the full realization of other human rights. In concluding remarks the author states that the conception of the "new human rights" points out to the need of including new social problems in the theory and praxis of protection of international human rights. However, the proposals of "new rights" not only do not solve those problems, but they also present a threat for the existing international catalogue of human rights.