Studia Prawa Publicznego, 2018, Nr 3 (23)

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    Sprawozdanie z Ogólnopolskiej Konferencji Naukowej „Milczenie administracji”, Rzeszów, 12–14 września 2018 r.
    (Wydawnictwo Naukowe UAM, 2018) Gajda-Durlik, Małgorzata; Pawłowski, Sławomir
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    Identyczne oferty w postępowaniu o udzielenie zamówienia publicznego
    (Wydawnictwo Naukowe UAM, 2018) Rybarczyk, Katarzyna
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    Zmiany w prawie dotyczące samowoli budowlanej
    (Wydawnictwo Naukowe UAM, 2018) Jachimowicz, Zofia
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    Regulacje prawne w zakresie opieki okołoporodowej w Polsce w kontekście projektu nowego standardu organizacyjnego
    (Wydawnictwo Naukowe UAM, 2018) Witek, Zuzanna
    Pursuant to Article 68(3) of the Constitution of the Republic of Poland, a pregnant woman is entitled to special care from the State. Therefore, it seems extremely important to indicate uniform, universally binding standards in order to improve the quality of services provided and to respect the fundamental rights due to women and their children in maternity care. Unfortunately, as the analysis and reports concerning the observance of patients’ rights during the perinatal period show, the current standards are not always properly implemented by medical institutions, and the legal guarantees of observance of perinatal care standards are not sufficient. The aim of the article is to discuss the legal regulations in force in the field of perinatal care, to indicate their subject and subject scope and to conduct a legal analysis of the proposal of new organisational standards of perinatal care, which are to enter into force as of 1 January 2019. The basis for the discussion is the presentation of the legal form of the existing standards of perinatal care. It is extremely important to answer the question whether the principles of medical knowledge should be enacted in the form of standards of medical procedure in the form of universally binding normative act, or whether they should constitute guidelines and recommendations that are legally non-binding. Perinatal care standards in the context of the duty of doctors and medical staff to apply current medical knowledge and to act with due diligence deserves additional attention. The article contains a detailed analysis of the proposal of new standards and presents de lege ferenda postulates, especially in the field of legal guarantees of observance of perinatal care standards in Poland.
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    Emerytura policyjna – jedno świadczenie o wielu elementach warunkujących jego kształt
    (Wydawnictwo Naukowe UAM, 2018) Krysiński, Łukasz
    The article discusses the pension of police officers upon their retirement and is an analysis of the rules related to the granting police pensions and the determinants conditioning their amount and form. Police officers, as well as other representatives of uniformed services, are covered by the pension system which differs significantly from the general pension system provided by the Social Insurance Fund. This difference results mainly from the nature of the police officers’ work and the duties imposed on them. The differences are manifested by the rights granted to officers, which include, among other things, the possibility of a faster retirement benefit in comparison with other workers. The current legal provisions regulating the matter of granting and shaping benefits of police officers’ pensions have been reviewed several times. As a result, retired officers have been now covered by a police pension in three options. These options differ in terms of the length of service for which a policeman in question is entitled to a pension and the manner in which the pension can be increased. Classification into any of the possible pension variants depends on the date of commencement of service in the uniformed formation. In addition, regulations were also introduced involving the possibility of reducing the size of pension in the case of officers employed at the time when Poland was a totalitarian state. The variety of benefits granted within a single formation and the complexities associated with the regulation of police pensions cause many problems arising from their interpretation and the determination of pension benefits for present and former officers.
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    Przetwarzanie danych biometrycznych. Aspekty prawne
    (Wydawnictwo Naukowe UAM, 2018) Pyka, Aleksandra
    Biometric data processing and related data protection issues have gained importance as a result of a wide use of technologies using such data for the identification and verification of data subjects. Problems may arise due to the lack of awareness of the need to comply with the provisions on the protection of personal data. Such a problem could also have arisen in Poland. The Act on personal data protection, no longer in force, did not refer literally to any of the provisions on biometric data. This potentially could raise doubts, inter alia, with regard to the application of this Act, especially since only the General Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation) introduced a definition of such data and classified them in special categories of personal data, the processing of which will require one of the conditions set out in Article 9(2) of the General Regulation. Such singularity of biometric data results from the source of their acquisition (physiological, physical and behavioural traits). This, however, should not be seen as an argument for the limiting of the processing of biometric data. It is nevertheless important that the processing of these personal data is in line with the principles set out in the General Regulation. The use of bi- ometrics is likely to become more widespread in the long term. This trend is already taking place, but there is a noticeable concern on the part of the data subjects about the collection of these data. The legal provisions repealed in the context of the data protection reform in 2018 have also been taken into account in the deliberations.
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    Pozbawienie uprawnień wynikających z decyzji administracyjnej a realizacja zasady efektywności działania administracji
    (Wydawnictwo Naukowe UAM, 2018) Trybka, Wiktor
    Deprivation of an entity of acquired rights deriving from an administrative act is possible through the combined application of administrative provisions of substantive and procedural law. The limits of durability acquired under an administrative decision rights are the constitutional principle of the protection of acquired rights and the general principles of administrative procedure. The permanence of the right acquired by the administrative decision is not absolute. Repeal or change of the administrative decision is possible only in the mode provided in the law, since the administrative decision makes use of the presumption of regularity. The deprivation of administrative and legal powers in the area of public law takes place in the context of an assessment of the implementation of an administrative decision carried out by a state body. This assessment is possible with the use of two procedural institutions for the expiry of an administrative decision and a substantive institution for the withdrawal of rights. The body assesses whether the addressee of an administrative act has implemented the administrative decision not only in accordance with its content but also the provisions of the generally applicable law. The deprivation of a party of an acquired right is often accompanied by the need to award damages (grant compensation). The procedure and premises for claiming compensation liability have been regulated in the provisions of substantive administrative law. The principle of the effectiveness of public administration bodies is one of the basic principles of administrative law. Its application is not limited only to the creation of law, but also includes the application of law by public administration bodies. The problem of the efficiency of operations of state bodies is of particular importance not only in the area of enforceability of an administrative decision, but also its authorising function. The efficiency of operations of entities in the State structure is assessed through the prism of the implementation of a given administrative decision.
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    Kompetencja Rzecznika Finansowego do nakładania kar pieniężnych na podmioty rynku finansowego
    (Wydawnictwo Naukowe UAM, 2018) Wyżykowski, Bartosz
    The subject of this article is the competence of the Financial Ombudsman to impose financial penalties on financial market entities for violations of the provisions of the Act of 5 August 2015 on complaints handling procedures by financial market entities and on the financial Ombudsman. One of the main tasks of the Financial Ombudsman is to enforce the proper performance by financial market entities of their obligations under the Act. For this purpose, Article 32(1) thereof provides that in the event of a breach of the provisions set out in the Act the Financial Ombudsman may, by way of a decision, impose a fine of up to PLN 100 000. The short duration of the new provisions and, consequently, the lack of case law outlining the directions of their interpretation may, particularly in the initial period, give rise to doubts as to their application. The aim of the article is to analyse possible disputable issues and provide proposals for their resolution. In particular, it is necessary to discuss the conditions for imposing a fine on a financial market entity. In this regard it is important to analyse both – the specific torts indicated in Article 32(1) of the said Act, as well as the general rules upon which the imposition of administrative fines by the Financial Ombudsman is possible. Also important is the consideration of the rules for determining the amount of the fine and in this matter the mutual relationship between Article 32 and the provisions of section IVa of the Act of 14 June 1960. Finally, amendments to certain provisions of the exiting laws are being proposed in order to increase the effectiveness of actions undertaken by the Financial Ombudsman and consequently to increase the level of protection of clients of financial market entities.
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    System kontroli wewnętrznej w bankach a instytucja kontroli zarządczej w jednostkach sektora finansów publicznych
    (Wydawnictwo Naukowe UAM, 2018) Fedorowicz, Magdalena
    The aim of the study is to analyse two selected supervision institutions: the management control in the public finance sector and the internal control system in banks as examples of regulatory and supervision institutions, having regard to their functional similarities in the two areas of financial law: public finance law and financial market law, and banking law. The study was inspired by the desire to answer the question about the essence of internal control in public finance (management control), which shows, at least in terms of the control objectives, many elements characteristic for internal control systems operating in banks. The aim of the article is also to answer the question about the way of understanding the notion of “internal control” under the banking law and public finance law, its essence, objectives, functions, as well as the coherence of the understanding of the objectives and criteria of internal control in the widely understood financial law areas. However, the research objective is also to show the differences between management control and internal control as supervision institutions, which due to the specificity of the controlled financial matters are separate and thereby allow to present the functions of control institutions related to the needs specific to particular areas of the broadly understood financial law and a multi-faceted approach to the most effective use of control institutions.
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    Kompetencje i zadania jednostek samorządu terytorialnego w zakresie bezpieczeństwa zdrowia ludności
    (Wydawnictwo Naukowe UAM, 2018) Wojtczak, Krystyna
    The creation of conditions aimed at ensuring the health of the population is a supreme value. Polish legal solutions make it a constitutional obligation of the State and local self-government. The current Constitution of the Republic of Poland of 2 April 1997 does not define the limits of this obligation; it only states that the conditions for ensuring everyone’s right to health protection and the scope of health services that are financed from public funds are to be specified by statute. In fact, the system leaves almost complete freedom in this area to the legislator. In the article the solutions adopted by local self-government units in 1991–2018 are evaluated. In order to fulfil certain competences and tasks imposed by law on the commune, poviat and self-governing regional bodies, the legislator has determined two spheres of their activity: (i) implementation of their own tasks in the field of health protection and health promotion, and (ii) establishment and running of entities which before 2011 were termed public health care facilities and after 2011 changed their name into medical entities which are not entrepreneurs. In neither of these spheres of activity is the participation of local government units identical. In the first sphere, the differences result from both the constitutional acts shaping their own tasks in the field of health protection, as well as health programmes which they adopt for their implementation. In the second sphere, however, the differences are a result of statutory solutions that base the model of health care on values that are not uniformly understood. Before 2011, they were conducted and maintained fully, or to a limited extent, from public funds, whereas after 2011 they were maintained from public funds only, when a budgetary unit was selected as an organisational formula of a self-government medical entity. The solutions of the Act of 2011 in its original wording pointed tended to favour commercialisation of the public health sector. The negative side of the solutions adopted is the extraordinary lack of diligence in exercising legislative diligence, especially in the scope of defining the competences and tasks of local self-government units in relation to the medical entities created/ run by these units.