Studia Prawa Publicznego, 2018, Nr 1 (21)

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    Wspomnienie o Profesorze zwyczajnym doktorze habilitowanym Bogusławie Banaszaku
    (Wydawnictwo Naukowe UAM, 2018) Kapusta, Piotr; Wojtczak, Krystyna
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    Istotny pogląd Rzecznika Finansowego jako instrument ochrony klientów podmiotów rynku finansowego
    (Wydawnictwo Naukowe UAM, 2018) Wyżykowski, Bartosz
    The article describes the competence of the Financial Ombudsman to submit to the court of law a view (observation) relevant to a case before the court. For long this instrument has been reserved for nongovernmental organisations only. In De- cember 2007, the Insurance Ombudsman was vested with such a competence as well. However, the scope of cases in which the Insurance Ombudsman can submit observations is limited to disputes arising from insurance contracts and disputes concerning members of pension funds or participants of occupational pension schemes. With the establishment in October 2015 of the Financial Ombudsman (who is the legal successor of the Insurance Ombudsman), this competence has been extended to cases and disputes regarding all clients of financial market entities. Submitting an observation is intended to enable the transfer of knowledge and experience of the Financial Ombudsman as a specialist in matters concerning financial market services, to the courts of law. In practice however, certain doubts arise in regard to how this instrument should be used properly. In particular, it is not always clear in which cases the Financial Ombudsman may be allowed to submit an observation and in what circumstances such a possibility should be considered as unacceptable or undesirable. Also, the legal character of an observation and its legal nature in regard to the civil procedure is being assessed differently. Thus the question arises on what the content and scope of an observation should be based. In regard to the main task imposed on the Financial Ombudsman, namely the protection of the rights and interests of clients of financial market entities, it seems only reasonable that the content and scope of an observation as well as the decision on whether it will be submitted to the court at all remains in the exclusive judgment of the Financial Ombudsman. The main aim of the article is to analyse these issues based on the experience of the Financial Ombudsman resulting from the use of the instrument in practice.
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    Istotny pogląd Prezesa UOKiK jako element postępowania sądowego
    (Wydawnictwo Naukowe UAM, 2018) Gutkowski, Paweł
    This article concerns the legal institution of observations submitted in civil proceedings by the President of the Office of Competition and Consumer Protection (here- inafter: President of the UOKiK). This institution is analysed within the framework of the hitherto practice of the Polish courts and the President of the UOKiK. Significant legal issues linked with the submission of the said observations and the way they are processed by the courts are presented, and premises for submitting these observations by the President of the UOKiK described. It is pointed out that sub mitting an observation is contingent upon the existence of public interest as well as occurrence of a significant question which is relevant to the case. Such a question needs to deal with the widely understood protection of competition and consumers. It is also noted that observations may only be submitted with regard to an actual case heard by the court. It may be addressed to either general, administrative or arbitration courts as well as to the Supreme Court. The article contains a description of the procedure of submitting observations, taking into account the settled practice of the President of the UOKiK. Within that scope issues concerning an application for submitting observations and formal requirements that such observations need to satisfy are also discussed. Furthermore, an attempt is made to determine the legal character of the said institution, taking into account the views presented in case- law and literature. In that context a possibility of qualifying these observations as evidence has been excluded. Finally, the principles that need to be adopted by the courts when they examine the observations are discussed and the fact that courts have no competence to verify the observations submitted by the President of the UOKiK in respect of formal requirements and conditions for submission is stressed.
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    Efektywność publicznej i sądowej kontroli uczciwości umów kredytów hipotecznych powiązanych z kursem waluty obcej
    (Wydawnictwo Naukowe UAM, 2018) Czabański, Jacek
    The article discusses problems created by the introduction of foreign currencies mortgage loans (especially indexed to the Swiss Franc) into the mass consumer market in Poland (mainly in years 2005–2008). Approximately 900 thousands of Polish consumers have their mortgage loans indexed to foreign currencies. This kind of loan became very popular due to lower interest rates. However, indexation of mortgage loan to foreign currency has also exposed borrowers to foreign exchange risk of which consumers were insufficiently informed. This risk has materialised to some extent with sharp increases in CHF exchange rate in 2009 and 2015. The article reports the unsuccessful attempts of self-regulation of the banking sector as well as delayed actions undertaken by regulatory bodies, namely the Banking Supervision Authority, and subsequently, the Polish Financial Supervision Authority, which tried to limit the scope of such risky loans on the consumer market. As political attempts to solve the problem have also been unfruitful, the individual litigations in civil courts have become of particular significance. The courts have not reached a common approach to individual claims yet. In some judgments such loans are declared null and void, in others orders are issued to perform the loans but disregarding the unfair terms of indexation. There are also judgments that declare such contracts perfectly legal. The author discusses the present case-law and presents a preferred direction of action which in his opinion may provide full protection of consumers against unfair contract terms which would be at the same time in line with the requirements of the Court of Justice of the European Union.
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    Modern Development Tendencies in Georgian Construction Law
    (Wydawnictwo Naukowe UAM, 2018) Zakashvili, Ucha; Kalichava, Koba
    The problems and prospects of development of the modern Georgian Construction Law are reviewed in the article. Negative tendencies of the construction coefficient trading and negative influence of the above practice in the urban construction are discussed as a problem. In connection with the above, the non-uniform court practice makes the vague legal grounds of coefficient trading even more obscure. The article reviews the legislative changes aimed at bureaucracy reduction imple- mented in the Georgian Construction Law which brought negative results in addition to positive aspects. In particular, the authorities issuing permits do not approve the structural designs, do not evaluate the competence of the geological survey and more importantly, the quality of construction materials is not checked. Within the framework of the same reform, the regulation obligating to observe the standards of sun exposure and natural lighting for adjacent buildings during construction was revoked since 2008. It is mentioned in the article that the above deregulation, as well as vague legislative regulations cause devaluation of the cost of adjacent buildings of the construction. The authors of the article equalize this fact to indirect expropriation with the difference that no compensation is paid for restoration of their rights and the affected citizens have to engage in procrastinated litigations. Precedents from the court practice are reviewed in the article on this issue which make it clear that the documents issued by administrative authorities are often unsubstantiated. The prospects of the reform of the Georgian construction legislation and Code of Spatial Planning and Construction of Georgia are reviewed in the article.
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    Tytuł profesora w Polsce w latach 1920–1990. Część 2. Warunki nadawania tytułu profesora w prawie o stopniach i tytułach naukowych
    (Wydawnictwo Naukowe UAM, 2018) Wojtczak, Krystyna
    The issues concerning the conferment of the title of Professor regulated by the law on academic degrees and academic titles covered a period of twenty-five years. This is much shorter than subjecting proceedings in this area to the law on higher education for the past forty-five years. It is not without reason that during the seventy years (1920–1990) covered by both parts of the study issues related to the confer- ring the title of professor were subject to significant changes, in accordance with the changing legal and factual reality of the People’s Republic, the Polish People’s Republic, and the Republic of Poland. The 1965 Act on Academic Degrees and Scientific Titles undoubtedly differed from the legislation in force in the People’s Republic and in the first years of the Polish People’s Republic. Its unquestioned advantage was: (1) a limited number of academic titles of professor, restricted to extraordinary and ordinary professor, (2) identified fields of science in which these titles could be awarded, and (3) a gradual simplification of the procedure for applying for the award of the academic title to a candidate in universities, scientific institutions of the Polish Academy of Sciences and research institutes. Although in this respect, the provisions of the Act of 1965 together with the secondary legislation issued on its basis were subject to amendments, as a rule they were limited to clarifying the legal solutions adopted earlier, or to increasing the requirements imposed on candidates for the title of professor, except for candidates not possessing a degree or a scientific title, subject to a separate legal regime dictated by exceptional cases. The wider scope of changes concerned the procedure for presenting to the Prime Minister by competent ministers and the Scientific Secretariat of the Polish Academy of Sciences (PAN) candidates for the academic title and the requirements related to the obligation put on these bodies to seek the opinion of the General Council for Higher Education, the Central Qualification Commission, or competent Higher Education Councils in the scope of a relevant science.
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    Obsada godności Muftiego Muzułmańskiego Związku Religijnego a zasady Konstytucji Rzeczypospolitej Polskiej
    (Wydawnictwo Naukowe UAM, 2018) Borecki, Paweł
    There is a dispute in the Muslim Religious Union in Poland over the appointment of Mufti. A schism in this religious community has been going on since 2016. This situation is a source of challenges for state authorities – religious administration and courts – as regards the application of numerous principles of the Constitution of the Republic of Poland of 1997. These principles include: the autonomy and independence of religious associations in their scope, legalism, legal certainty and the trust of citizens in the state and the law created by it. The legal status of the Union is based on anachronistic legal acts: the Act of 21 April 1936 on the relationship between the State and the Muslim Religious Union in the Republic of Poland and the statute approved by the Council of Ministers by way of a decree of 26 August 1936. In practice, the Muslim Religious Union applies an internal statute of 2009. The authorities of the religious administration and courts try to maintain neutrality and not to interfere in the internal dispute in the Muslim Religious Union. This is in line with the standards resulting from the rulings of the European Court of Human Rights and the constitutional principle of autonomy and independence of religious associations. However, there is legal uncertainty. Hence it is urgent to repeal the 1936 law and statute. This may be done either by a decision of the Constitutional Tribunal or by the adoption of a new law based on the Muslim Religious Union’s agreement with the Council of Ministers. However, the revision of the legislation concerning the Muslim Religious Union requires compliance with Article 25 (5) of the Constitution of the Republic of Poland, i.e. the agreement of the Council of Ministers with the Muslim Religious Union. The latter may sabotage any project that foresees the limitation of its competence. The government has limited scope for influence on the Mufti. In conclusion, one may be under the impression that the ruling functions of the state in the Muslim Religious Union have already been paralysed.