Studia Prawa Publicznego, 2019, Nr 1 (25)

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    Aktywizacja i oddolna inicjatywa mieszkańców jako metody działania na rzecz rozwoju lokalnego jednostek pomocniczych gminy na przykładzie sołectw
    (Wydawnictwo Naukowe UAM, 2019) Biniasz-Celka, Danuta
    Activation and grassroots initiative of inhabitants are components of social change affecting local development. It is here that ideas materialise through the actions of individuals. It is assumed that development always exists in an active relation to social and cultural change, involving human, financial, environmental and infra­structural resources. It includes primarily community interactions of individuals in the process of activation for the local environment. The study assumed the hy­pothesis that activation and grass-roots initiative have a significant impact on local development of auxiliary units. The management of local affairs is based on the assumption that inhabitants of a certain area constitute a community aware of their needs and objectives, able to manage their own affairs independently. Activation and development of the community is defined as a collective undertaking, which requires, among other things, emotional commitment and effort of residents. It is a process that follows the steps of planned operation which involves preparing the action programme, establishing the aim, and setting ways to its implementation. At the same time there must be determined a method which will allow to achieve the intended effectiveness of the undertaking. Comprehensive understanding of activation and grassroots initiative indicates the role of development planning, strategy, and the importance of citizen participation in building a better future for their own socio-cultural environment. Activation within the meaning of citizen activation is associated with the search for independence and identification with the community and place as a “little homeland.”
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    Hospitalizacja pacjenta „hotelowego” – wybrane problemy
    (Wydawnictwo Naukowe UAM, 2019) Rybarczyk, Katarzyna
    The subject of the article are the issues related to problems arising in the practice of entities conducting therapeutic activity concerning the stay of a patient who is a minor or incapable of independent living and who no longer requires treatment in an entity providing health services, but is in need of permanent care, when the family does not want to provide this care and does not take the patient from this entity. The legal regulation relating to the subject matter in question contained in the current regulations provides entities providing health care services with instruments aimed at disciplining the patient’s family so that the family can fulfil their duty of care and collect the patient from this entity after the end of treatment. The persons obliged to do so are the legal representatives and persons who have a statutory duty to maintain the patient. If they refuse to collect the patient, health care providers are entitled to arrange for sanitary transport to bring the patient to the place of his or her previous stay. The costs of such transport are borne by a spe­cific municipality, which has the right of recourse against the persons responsible. It is also possible to charge these persons or the patient himself with the costs of further, unjustified stay in this entity. However, the solutions adopted are not without drawbacks that make it diffi­cult to enforce the care of the patient and to cover the costs of further unnecessary hospitalisation. The aim of the study is to identify the weaknesses of the current regulation, which is to bring about a solution to the problem of patients not collected by the family, so important for the practice of medical entities, and to propose the way of solving them.
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    Analiza i praktyczne ujęcie metodologii i mechanizmu dokonywania waloryzacji na przykładzie ustalonego i niewypłaconego odszkodowania za wywłaszczoną nieruchomość
    (Wydawnictwo Naukowe UAM, 2019) Antkowiak, Barbara
    The aim of this article was to create a compilation that would allow for the inclu­sion in one place of universal principles necessary for the proper implementation of valorisation of the established and unpaid compensation for the expropriated property. In recent years, there has been a worrying phenomenon of arbitrariness and inconsistency in addressing the issue of the compensation valorisation mech­anism in question, which is associated with the inadequate practical and mathe­matical implementation of the valorisation in question by public administration bodies. This may be due not so much to a lack of understanding of the subject as to insufficient practical knowledge of how to make mathematical calculations correctly. It should be remembered that an incorrect adjustment affects the final result, which is the amount of compensation. Thus, this error may imply undue payment of compensation, both on the part of the state bodies and on the part of persons entitled to the return of expropriated real estate, who are obliged to return the valorised compensation as part of their settlements. The subject of this study was exclusively the methodology and mechanism for adjusting the amounts of com­pensation for expropriated property, without taking into account the assessment of its objectivity when using consumer price indices instead of target indicators, but in the vast majority of unannounced indices of changes in property prices, that would most accurately reflect changes in property prices on the market. An implication of de lege ferenda demands unification and clarification of the formula of the correct mechanism for making indexing amounts of established and unpaid compensation for expropriated real estate so that an unambiguous verification of the correctness of the final result can be made.
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    Audit of public procurements concerning marine hydrotechnical structures carried out within the framework of the “Coastal Protection Programme”
    (Wydawnictwo naukowe UAM, 2019) Trela, Anna
    The article presents an analysis of the thesis on the existence of a system of con­trolling public procurements concerning services of the construction of sea shore protection structures. It reviews the audit of such public procurement carried out by the various inspection bodies and different methods of control. The first part of the study contains the characteristics of inspection bodies which carried out audits of public procurement contracts and whose subject matter was sea shore protection structures. It is also indicated that although indirectly, tax revenue agencies, admin­istrative courts and the Ombudsman play an important role in the system. For the purposes of moving on to the discussion of particular types of inspections carried out by various public bodies and courts. In the article, certain works consisting in strengthening the sea shore have been assigned to the category of hydrotechnical structures, which allowed to move on to the discussion of particular types of in­spections carried out by various public bodies and courts and to cite conclusions formulated on their basis. The concept of “coastal protection of the marine envi­ronment,” which underpinned the adoption of the resolution of the Supreme Ad­ministrative Court of 11 December 2017, ref. I FPS 2/17 was also analysed in detail. In this resolution the position of the authoress of this article, expressed earlier in the commentary to the judgment of the Supreme Administrative Court of 14 April 2015, ref. I FSK 1493/14 and published in “Studia Prawa Publicznego” 2016, no. 1 was shared. The conclusion of the deliberations is that the system for controlling public procurements of services related to maritime coast protection is not coherent and mutually supportive. The results of the study show that many activities under this system relating to coastal protection were subject to control by many different authorities, leading in consequence to different conclusions.
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    Umowa jako prawna forma działania administracji publicznej w polskiej i niemieckiej doktrynie prawa publicznego
    (Wydawnictwo naukowe UAM, 2019) Sancewicz, Paweł
    Within the administrative construction of legal forms of public administration activity developed by the doctrine of administrative law, one may distinguish both a civil-law contract (private-law), as well as an agreement having certain features of a public-law contract. The German doctrine of public law, has long been struggling with problems of legal qualification of contracts used as legal forms of action by public administration entities. As part of the work undertaken by the German doctrine of public law, a two step theory, a concept of contract law in administration and a model administrative contract have been developed. Approximation of these theories allowed the Polish doctrine of public law to identify the most important features, which should characterise the theoretical construction of a public-law contract concluded with a citizen or an administrative contract. First of all, it should be concluded by a public administration entity on the basis of its competence. The administrative agreement should concern the relationship between the administration and the citizens. Secondly, the subject matter of the contract should be governed by public law and relate exclusively to the performance of public administration tasks. Thirdly, disputes arising from an administrative agreement should be submitted to the jurisdiction of administrative courts. The article shows that from the point of view of legal protection of the in­dividual this is a crucial matter. Although the legislator has not decided to introduce an administrative agree­ment into the Polish legal system, many of the contracts already in operation under Polish law have certain features which at least in part resemble the administrative agreement described above. Such an administrative agreement often concerns the relationship between public administration and the citizen and is concluded in connection with the performance of public tasks. De lege ferenda the conclusion of an administrative contract should be subject to review by the administrative courts.
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    Stosowanie przepisów Kodeksu postępowania administracyjnego o milczącym załatwieniu sprawy
    (Wydawnictwo naukowe UAM, 2019) Gajda-Durlik, Małgorzata
    The subject of the considerations is the issue of the scope of the Code of Adminis­trative Procedure in matters for which an institution of silent settlement is provided in separate provisions. The matter outlined above is the source of controversy which arises from the mechanism of anchoring to the framework of the Code of Administrative Procedure the institution of silent settlement under the act by the Act of 7 April 2017 amending the Act – Code of Administrative Procedure and cer­tain other acts. It should be emphasised that the idea underlying the inclusion of the Code of this legal institution in the subject of regulation was to ensure proper effectiveness of the application of law by administrative means, to significantly reduce the social costs of launching the procedure and to deformalise as much as possible the activities undertaken in the official mode. The source of the concept was also the need to organise and comprehensively regulate the matter of individual administrative matters settled in a silent manner, which until now, functioned in substantive administrative law in a dispersed manner, with a diversified specificity of legal solutions. The measure of such a codification process was to be the formation of a uniform and clear procedural regime in the field of administrative law relations, expressed in the forms of silent settlement of a matter, on the one hand based on the formula of limiting formal requirements to the minimum necessary, and on the other hand corresponding to the features of the jurisdictional process with guaran­tees of protection of individual rights and the rule of law. However, the question arises whether such boundary conditions are fulfilled by the model of fusion with the Code of Administrative Procedure of the institution of silent settlement of the matter. For the practice of applying the law with the use of the institution, rooted already in the acts of the substantive law of the institution, there is a special signif­icance in terms of reference to the procedural constructions of Chapter 8a of the Administrative Procedure Code. The issue of fundamental importance for defining the role of the act in the field of connecting the institution of silent settlement of a matter with the Code is not only the objective separation of the sphere of influ­ence of unified formal and legal solutions of this act, but also defining the manner of merging procedural issues of the institution with the Code.
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    Funkcja stabilizacyjna Konkordatu polskiego z 1993 r. wobec Kościoła katolickiego i innych związków wyznaniowych
    (WydawnictwoNaukowe UAM, 2019) Borecki, Paweł
    The stabilising function is one of the main intended functions of the concordats. It consists in striving to ensure the immutability (stability) of legal norms resulting from the provisions of this type of treaties, and consequently to ensure the relative immutability of legal (and factual) states created or shaped under the concordat government. The Concordat petrifies a model of relations between the state and the Catholic Church. In fact, it protects a certain system of social, political and, to some extent, economic relations. This function in the Polish legal system is guaranteed in particular by the provisions of the Constitution of the Republic of Poland of 1997 (Article 25(3) and (5)) and the provisions of the 1969 Vienna Convention on the Law of Treaties. The Concordat of 1993 is therefore legally difficult to denounce. The Treaty provides a differentiated implementation of the stabilising function. Individual norms of this act, to varying degrees, implement its stabilising function. It seems that it is most fully implemented through detailed standards of an absolutely binding nature. The second category of concordat norms from the point of view of the implementation of the stabilising function should include norms whose im­plementation depends on a later agreement between the Church and the relevant state authorities. As a third category, one should mention regulations which, when formulating legal norms, refer to canon law or state law. The last group consists of norms, the implementation of which depends, in fact, on a unilateral decision of the state authorities. The degree to which a stabilising function is carried out by the provisions of the Concordat also depends on the level of detail. The Concordat of 1993 is not a full concordat and therefore provides limited stability in the financial and property affairs of the Catholic Church and clergy. In practice, however, the 1993 Treaty, combined with the political strength of the Church, has ensured relatively good legal stability for the Church, although it has not yet been fully implemented and has seen some obvious violations. In many aspects, however, there has been an improvement in the legal position of the Church.