Studia Prawa Publicznego, 2015, Nr 3 (11)

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    Glosa do wyroku Naczelnego Sądu Administracyjnego z 7 maja 2015 r., sygn. I OSK 2188/13
    (Wydawnictwo Naukowe UAM, 2015) Gajewski, Sebastian
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    Problematyka prawna uwarunkowań inwestycyjnych transgranicznych połączeń elektroenergetycznych
    (Wydawnictwo Naukowe UAM, 2015) Trupkiewicz, Marcin
    The article constitutes an analysis of the legal aspects of certain investments in the electricity infrastructure of Poland and the European Union. It identifi es the need for investments in a particular type of cross-border infrastructure that connects individual EU Member States. These interconnectors enable the exchange of energy between connected countries and allow the creation of a common energy market in the European Union. From the legal point of view there are two types of interconnectors – regulated interconnectors, which are built by energy companies that are obliged to build them, like for example transmission system operators, and commercial interconnectors that are built by private entrepreneurs. Both types of interconnectors are characterized by specifi c legal regulations arising from European Union as well as Polish energy law. In addition, cross-border infrastructure investments are associated with particular types of investment conditions and risk. The specifi c conditions and the risk and also the investment motivation are associated with a particular type of interconnector, even though the stages of the decision-making process are similar in both types of interconnectors. The papers ends with a European model for creating a common energy market which assumes the sustainable development of the regulated interconnectors together with the incentives encouraging investment in commercial interconnectors. In this regard the article sets out the legal and practical solutions adopted in Poland which contribute to the unsatisfactory development of interconnectors in the Polish energy sector.
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    Akty indywidualne z zakresu gospodarowania zasobem mieszkaniowym gminy
    (Wydawnictwo Naukowe UAM, 2015) Jakubowski, Aleksander
    The management of the municipal housing stock is a way of implementing state housing policy as stipulated in the Constitution (Art. 75). It is handled by municipalities under administrative law and civil law. Individual legislative acts regulating management of hosing stock result in considerable diff erences in judicial decisions delivered in case law. In the resolution of 21st July 2008 (I OPS 4/08), the Supreme Administrative Court confi rmed the two-tier character of proceedings in matters regarding the municipal housing stock: that of administrative law and that of civil law. However, subsequent case law decisions determined that the civil law element prevails. As a consequence, administrative courts fi nd themselves incompetent to review individual acts governing the municipal housing supply. At the same time, courts-of-law do not seem to guarantee any eff ective protection of individuals in such matters. Research has confi rmed that the lettings procedure with regard to renting a fl at from the municipality housing stock consists of two elements. The administrative element covers the issue of the distribution of public property. It comes down to the resolution “whether” to let a particular fl at and the decision “to whom” it can be let . Administering scarce resources is always a public matter. A legislative act issued in such proceedings falls under the competence of the administrative courts and the procedure to be applied is determined by acts of local law and the principal guarantees of procedural fairness which are refl ected in relevant general principles of the Code of Administrative Procedure. The civil law element pertains to negotiations about the content of a lease/rental agreement and the procedure for entering into it, which as such should be reviewed by the courts-of-law. Nevertheless, the conclusion of a valid lease agreement is contingent upon a relevant decision issued by a municipal authority in favour of a given individual.
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    Filozofia karania – od prawa naturalnego do liberalnej wolności
    (Wydawnictwo Naukowe UAM, 2015) Peno, Michał
    Contrary to what one might expect, the problem of the justifi cation of punishment is relatively new. It was the explanation of the role of punishment that was problematic, not the issue of the state’s legitimization of punishment. The issue of punishment has been greatly infl uenced by the evolution of liberal and positivist philosophies and particularly by the marginalization of concepts of ius natural. This article describes the evolution of penal law philosophy and its infl uence on the state of the modern science of penal law as well as reforms of the penal law in Poland. The penal law of the 18th century was infl uenced by the idea of natural law – it perceived punishment as a necessity following a certain natural order. The philosophy of the penal law of the second half of the 19th and the beginning of the 20th centuries emphasized, that punishment was necessary because of a vision of the society supported by science. The second half of the 20th century brought a challenge to the classical concept of punishment, the development of a liberal view of the social contract and the trends of restorative justice or communication concepts of punishment. These trends are the subject of refl ective analysis in this article. All changes in a spirit of social defence or restorative justice blunt the moral dimension of the penal law as an instrument which serves to protect particular values. In spite of appearances, it is neither liberal freedom nor “ethics without codes” but the establishment of a catalogue of values requiring strong defense that leads to penal minimalism which means actually treating the penal law as the fi nal rightness. Apart from that, the idea of an ahistorical social contract in its classical form does not constitute grounds for punishment. The majority may impose certain rules of behaviour, or defend a particular moral stance. There is no reason in this pluralistic world why we should accept the superiority of Locke’s or Mill’s liberalism over Burke’s or Tocqueville’s conservatism. In this article I propose to move the emphasis to the other side, as it would seem that in the reality of our legal culture it is or may be a more accurate approach.
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    Wybrane problemy konstytucyjnej zasady niezawisłości sędziowskiej
    (Wydawnictwo Naukowe UAM, 2015) Kania, Agnieszka
    The purpose of this study is to present a selection of issues relating to the principle of judicial independence. Not aspiring to be a comprehensive discussion of the topic, this article focuses on selected aspects of the principle. On the basis of these aspects, it was sought to prove that the proper application of this principle requires much more than its mere declaration in the normative rules of even the highest rank. Furthermore, the result of the analysis carried out is the conclusion that the legal nature of the principle of judicial independence should not be assessed on the basis of selective provisions of the basic law. In this regard, the regulations of ordinary laws, as well as the developed code of judicial conduct, play an important role. The analysis carried out shows that its character should not be assessed on the basis of selective and random provisions of the basic law. A thorough analysis of the entirety of constitutional and extra-constitutional regulations entitles us, in turn, to argue for the compromise (mixed) presentation of the principle, which would allow us to see in it a conjunction of rights granted and duties imposed on a judge. At the same time it should be noted that what proves signifi cant for the proper working of the principle of judicial independence are not only real guarantees of its existence, but also that they be respected consistently in the government system of the democratic rule of law. It is also pointed out that sometimes the ethical and moral requirements on judges impose on them exaggerated personality traits that would de facto be diffi cult to state and assess, as so far no objective quantifi ers have been worked out which would then be a basis that would enable, setting out clearly or with a high degree of probability that the judge is: (i) impartial, (ii) has a sensitive conscience, (iii) stands out for his or her honesty, (iv) can separate justice from injustice, (v) is responsible for his or her spoken and written words and, is, at the same time, (vi) aware of his or her own independence.
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    Status prawny komisji rewizyjnej jako element ładu korporacyjnego gminy
    (Wydawnictwo Naukowe UAM, 2015) Szczepaniak, Rafał
    The author examines one of the aspects of the so-called corporate governance of the municipality, which is the legal status of its audit committee. According to the author the importance of this issue stems from the fact that the audit committee is an instance of internal institutional audit in the municipality, but also of the local community’s supervision over the activities of the municipal executive authority. As is known, since 2002 the municipal executive powers are exercised individually by the wójt (elected municipal governor) in rural communities, and by the mayor or president in towns and cities. The author argues that, despite 25 years of the Local Government Act being in force, the legal status of the audit committee as provided by the Act is not fully accurate and consistent. He proves the veracity of his claims by presenting examples of court judgments and decisions of state regulators over the local government units. What can be concluded from the said judgments and decisions is that the in current legal environment it depends on the will of the wójt, mayor, or president whether the audit committee will be able to carry out its auditing activities in a fully eff ective way. Such a condition in which the eff ectiveness of the audit depends to a large extent on the will of the audited entity, must be evaluated negatively. According to the author, in practice, one of the legal obstacles in conducting effective supervision by the audit committee is also the not entirely precise regulation of the access by members of audit committees to the information on the functioning of the local government units. Therefore, the author puts forward a proposal de lege ferenda of introducing to Polish law a special provision guaranteeing the members of the audit committee full access to the information about the functioning of the local government entities, with the exception of the information covered by the state and offi cial secrecy clause.
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    Postępowania w sprawach dotyczących aktów stanu cywilnego – kompetencja organu administracji publicznej czy sądu powszechnego?
    (Wydawnictwo Naukowe UAM, 2015) Mucha, Joanna
    The Act on vital records currently binding and applicable in Poland, also known as the Law on Births, Marriage and Death Certifi cates, similarly to the solutions of former regulations in this area, provides for two diff erent bodies responsible for matters relating to birth, marriage and death certifi cates. Public administration bodies are responsible for making records of the civil status of a person, and for entering necessary amendments to the content of certifi cates if they are possible to be made by comparing the certifi cate in question with other certifi cates. Common courts of civil law are vested with power to conduct detailed evidentiary proceedings (in order to determine the content of a certifi cate) and proceedings requiring legal intervention (invalidation of a certifi cate if it confi rms an untrue event or otherwise making the necessary amendments/corrections to it). This status quo leads to a conclusion that since civil law courts are competent to perform acts in law that are more complicated than merely recording or amending the content of civil status certifi cates, there are no reasons why they should not as well perform these less complicated acts which are currently vested in administrative bodies. This solution seems be even more recommendable in the light of the fact that courts today keep other registers of a function similar to that of the register of vital statistics. Leaving all matters relating to birth, marriage and death certifi cates within the competence of civil courts would be also advisable because it would add to such legal transactions a status of even greater certainty and uniformity. It would also take off the burden of having sometimes to approach two diff erent bodies.