Zgoda uprawnionego w zakresie ochrony dóbr osobistych
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Date
1990
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
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Consent of the entitled person in personal interest protection
Abstract
In legal writing various views have been expressed with respect to the consent
of the entitled person. According to the prevailing view, it is one of the
conditions eliminating the unlawfulness of the infringement of personal interests.
However, the proponents of this view admit that consent fulfills many functions.
It may eliminate the very infringement of some personal interests (image, secrecy
of mail). The most important function of consent consists in its capacity to eliminate
the unlawfulness of behaviour.
The article contains the analysis of the above problems on the basis of Polish
civil law. It does not consider penal law issues. The author is of the opinion
that providing for the conditions of validity of consent in the amended Civil
Code is not necessary.
According to a rather generally accepted view, the consent of the entitled
person is a unilateral revokable legal action Legal consequences occur here irrespective
of the intention of the acting behavior. The borderline between the consent
of the entitled person and the activity undertaken at one's own risk is blurred.
The article contains a detailed analysis of the application of consent. The
consent of the entitled person is very important in medical treatment. In principle,
any treatment, especially surgery, requires the consent of the patient. Similar
situation takes place in matters of special interest today (e.g. the admissibility
of ex vivo transplants). Here, very strict criteria of consent should be applied. Next, the author discusses the application of consent in sport. The participation
in brutal or dangerous sport competitions (especially in boxing) is tantamount to
the consent to slight bodily injury and infringement of personal inviolability.
The article contains also the analysis of the consequences of consent in the
sphere of protection of other personal interests (especially privacy).
In the sphere of personal interest protection the Roman Law adage volenti
non jit iniuria is of limited significance. The intencity of personal interests protection
would be weakened if too wide application of the construction of consent
were adopted. Its subjective and objective premises must be precisely determined.
There is no uniform answer to the question of how the freedom of decision
of a person who gives his/her consent is shaped.
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Ruch Prawniczy, Ekonomiczny i Socjologiczny, 52, 1990, z. 1, s. 41-57