Studia Prawa Publicznego, 2019, Nr 4 (28)
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Item spraw_Sprawozdanie z VI Salonu Mediacji oraz III ADR Study Space, Poznań, 13–14 maja 2019 r.(Wydawnictwo Naukowe UAM, 2019) Mucha, Joanna (oprac.); Tomaszewska, Paulina (oprac.)Item przeg_pism_Albert Sanchez-Graells, ‘Screening for Cartels’ in Public Procurement: Cheating at Solitaire to Sell Fool’s Gold? (Prześwietlanie w poszukiwaniu zmów przetargowych w zamówieniach publicznych), „Journal of European Competition Law & Practice” 2019, vol. 10, iss. 4(Wydawnictwo Naukowe UAM, 2019) Różowicz, Konrad (oprac.)Item przeg_pism_Willem Janssen, Swimming Against the Tide: The Harmonisation of Self-organisation through Article 12 Directive 2014/24/EU (Pływanie pod prąd. Harmonizacja samoorganizacji podmiotów publicznych poprzez artykuł 12 dyrektywy 2014/24/UE), „European Procurement & Public Private Partnership Law Review” 2019, vol. 14, no. 3(Wydawnictwo Naukowe UAM, 2019) Różowicz, Konrad (oprac.)Item przeg_pism_Joanna Wiszniewska, Zakaz reklamy aptek i ich działalności, seria Monografie Prawnicze, Wydawnictwo C.H. Beck, Warszawa 2019(Wydawnictwo Naukowe UAM, 2019) Jankowska, Paulina (oprac.)Item rec_Renata Kusiak-Winter, Odpowiedzialność administracji publicznej. Struktura odpowiedzialności z perspektywy determinantów prawnych, Uniwersytet Wrocławski, Wrocław 2019(Wydawnictwo Naukowe UAM, 2019) Bisztyga, AndrzejItem z_orzecz_Glosa do wyroku Naczelnego Sądu Administracyjnego z dnia 8 czerwca 2018 r., sygn. II OSK 1697/16(Wydawnictwo Naukowe UAM, 2019) Zwolak, SławomirItem komen_opinie_In dubio contra libertatem? O nowelizacji przepisów dotyczących pobytu studentów zagranicznych(Wydawnictwo Naukowe UAM, 2019) Narożniak, AgnieszkaThe subject of the paper is the amendment to the Act on Foreigners made in connection with the implementation of Directive (EU) 2016/80. The considerations focus on the provisions according to which a foreigner is refused a visa or a temporary residence permit for the purpose of studying, when there are ‘justified doubts as to the credibility of their statements on the purpose of their stay in the territory of the Republic of Poland, due to evidence or objective circumstances available to the authority, indicating that the purpose of the foreigner’s stay could be different from the declared one.’ The key question is whether the authorities facing some doubts in cases of entry and stay of foreign students should opt for more restrictive solutions and take the opposite direction to the one determined by the formula in dubio pro libertate. The study presents general factual and legal circumstances of the amendment introduced, followed by an attempt to interpret it under substantive law and an analysis of its procedural aspects. The conclusion is that there are no grounds for introducing the principle in dubio contra libertatem in respect of foreign students’ entry and stay. Such understanding of the regulation in question would raise objections as to its compliance with the provisions of Directive 2016/80, which would require the refusal of the right of residence to be based on the evidence established and facts found, with its primary purpose being to facilitate the undertaking of studies by third-country nationals.Item Prawne implikacje wybranych elementów terminu „wojna hybrydowa”(Wydawnictwo Naukowe UAM, 2019) Ochmann, PawełThe term ‘hybrid war’ is not a legal term. It belongs to the terminology and concepts used in the studies on international relationships. Due to its popularization in mass media it has recently started to be used in new contexts. The purpose of the article is to ascertain the precise meaning of the term, and to determine the legal implications which a particular understanding of it may have in international public law. Certain understandings or interpretations of a given term determine its legal consequences and allow the assessment of their implications from the point of view of international law. Therefore in the first part of the article, a review and an examination of different ways of understanding the term ‘hybrid war’ have been conducted. Although the definitions that had been analyzed are noteworthy and they emphasize some aspects of the ‘hybrid war,’ they lack a definition of the term that would take into consideration all the dimensions of the issue of a hybrid war. Thus the attempt taken by the author to propose his own definition, aggregating all observations and insights made by the international relations experts so far, and enumerating the distinctive characteristics of hybrid wars. After that, some typical elements of a hybrid war are analyzed from the point of view of international public law. The paper investigates the possibility of qualifying hybrid methods as the ‘use of force,’ an ‘aggression’ and an ‘armed attack’ within the meaning of the United Nations Charter. It also examines the admissibility of a counter-attack within the framework of the right to self- defence. The issue raises many doubts particularly with regard to activities from below the threshold of war that are distinctive characteristics of a hybrid war. The legal implications of the use of a non-state actor to conduct an armed activity under international law were also raised, being referred to as proxy war.Item Tryb postępowania przed organem rentowym w sprawach świadczeń z tytułu wypadku przy pracy(Wydawnictwo Naukowe UAM, 2019) Wojciechowicz, JoannaThis article discusses the practical aspects of recognizing an occurrence as a work-related injury. The Act of 30 October 2002 on Social Insurance against Work-related Injuries and Occupational Diseases (consolidated text of 2018, item 1376) contains only a general definition of a ‘work-related injury.’ Moreover, it does not specify the meaning of the terms which are used in it, particularly of terms such as a ‘sudden occurrence’ or an ‘external cause.’ Many problems stem from a lack of criteria which should be used while deciding whether a ‘considerable contribution to the injury’ due to being under the influence of alcohol or drugs as defined in Article 21 of the Act has occurred. Therefore, during a preliminary investigation, a disability pension authority must determine whether the occurrence in question is a work-related injury. To that end it investigates whether the insured person has contributed to this occurrence to a considerable degree because if he has, such a conduct excludes the right to a work injury benefit. Accordingly, employees of the Social Insurance Company examine the accident scene and collect information in the workplace, from the prosecutor’s office, the police, or the healthcare centre, or by interviewing witnesses. Having documented the factual circumstances and explained all the existing doubts they are then able to define the terms and draw correct conclusions which result in a decision to award a benefit or to refuse it. Owing to the fact that the regulations concerning issues of recognizing an occurrence as a work-related injury and rights to a benefit are general clauses, it is necessary to be familiar with the current case-law. Without following the trends in the case-law of the Supreme Court one is not able to interpret facts and occurrences properly and hence the assessment of whether the insured is entitled to a work injury benefit is not possible.Item Przetwarzanie danych osobowych do celów badań naukowych. Aspekty prawne(Wydawnictwo Naukowe UAM, 2019) Pyka, AleksandraThis article refers to the issue of personal data processing conducted in connection with scientific research and in accordance with the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons 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). It is not uncommon for the purposes of scientific research to process personal data, which is connected with the obligation to respect the rights of the data of the subjects involved. Entities conducting scientific research that process personal data for this purpose are required to apply the general regulation governing, among others, the obligations imposed on the controllers. The issue of personal data processing for scientific research purposes has also been regulated in national legislation in connection with the need to apply the General Data Protection Regulation. The article discusses the basics of the admissibility of data processing for the needs of scientific research; providing personal data regarding criminal convictions and offences extracted from public registers at the request of the entity conducting scientific research; exercising the rights of the data of the subjects concerned; as well as the implementation of appropriate technical and organizational measures to ensure the security of data processing. In addition, the article discusses the issue of anonymization of personal data carried out after achieving the purpose of personal data processing, as well as the processing of special categories of personal data. The topics discussed in the article were not discussed in detail, as this would require further elaboration in a publication with a much wider volume range.Item Cywilnoprawne aspekty umów zawieranych pomiędzy organem administracji publicznej a organizacją pozarządową w celu realizacji zadań publicznych(Wydawnictwo Naukowe UAM, 2019) Biniasz-Celka, DanutaThe article focuses on selected aspects of collaboration between public authorities and public benefit organizations (PBOs). PBOs not only enable the development of active citizenship, but also contribute to the effective implementation of public tasks, thus helping the authorities in implementing their statutory duties. An outcome of the collaboration may be, among other things, an agreement to implement certain tasks, taking the form of, for example, the realization of a task or the support provided for its realization following competitive tendering and in justified cases without the tender, or performed within the framework of a local initiative. The main focus of the article is to determine the scope of the autonomy of the parties in the classic approach, keeping in mind that the autonomy is one of the main principles governing civil law. Parties in a civil law contract must be able to create autonomous relationships. Consequently, in order to fulfil its functions, civil law must be an open system which regulates typical situations in a non-authoritative manner. The essential question seems to be to what extent this attitude may be transposed to public law. Undoubtedly, an agreement as a form of an administrative activity will never have the same legal nature as an agreement concluded between private parties. An administrative body that applies private law forms of action does not become subject to the same rights as a private entity and, consequently, is not exempt from the obligation to comply with the fundamental constitutional principles and values that have been established with a view of protecting civil rights and freedoms.Item Kompetencja sądu administracyjnego do uznania w wyroku uprawnienia lub obowiązku wynikających z przepisów prawa(Wydawnictwo Naukowe UAM, 2019) Ciesielska, AgnieszkaThe purpose of the article is to present the competence of the administrative court indicated in Article 146 § 2 of the Act of 30 August 2002 – the Law on proceedings before administrative courts (LPAC). In accordance with this provision, in matters concerning complaints against an Act or an action related to public administration referred to in Article 3 § 2 point 4 of the LPAC, the court may recognize in its judgment a right or an obligation arising from the provisions of law and may issue a relevant decision in the matter if it first annuls the act or declares that the action is with no legal effect pursuant to Article 146 § 1 of the LPAC. It must be emphasized however, that Article 146 § 2 of the LPAC is not an independent basis for issuing a judgment and the doctrine often presents differing views. It should be assumed that the court may recognize the right or the obligation of an individual that arises from the provisions of law if the nature of the case permits doing so and when the facts and the legal framework of the case do not raise reasonable doubts. Unfortunately, judicial case studies show that this possibility is rarely used. Furthermore, courts encounter numerous problems in applying Article 146 § 2 of the LPAC, most probably because of the huge controversy regarding this procedural institution. Firstly, there is no consensus as to the function of the judicial decision based on the provision in question, and the interpretation of its facultative nature is also problematic. In the author’s opinion administrative courts should use the competence referred to in Article 146 § 2 of the LPAC more frequently. Such a change of practice would increase the effectiveness of judicial review of public administration as well as will enhance the level of protection of individual rights. The article also contains some interesting examples of the application of Article 146 § 2 of the LPAC.Item Granice władztwa planistycznego przy uchwalaniu miejscowego planu zagospodarowania przestrzennego(Wydawnictwo Naukowe UAM, 2019) Zwolak, SławomirThe considerations of the article focus on the planning power exercised by a municipality as a unilateral and authoritative determination of the purpose of the land and its development. The municipality in the capacity of a planning authority cannot assume an absolute and unlimited power and must act within the limits determined by applicable and binding laws. Hence, in the implementation of its land development tasks, the municipality (or local authorities) are bound by the provisions of the Constitution of the Republic of Poland and other relevant laws that govern the planning authority granted to municipalities. Exceeding the limits of this planning power will occur when planning solutions prove to be arbitrary and lack substantive justification. Defective legal solutions include not only solutions that violate the law, but also those that result from a potential abuse of the competence of the municipality. Determining the land purpose and the manner of its management must reflect a reasonable and real need for the solution adopted. When the latter is detached from the legal and factual status of the land in question, a violation of planning power arises. When a municipality adopts a local plan which introduces certain restrictions in the use of the property right that is protected in the Constitution, it is obliged to apply legal measures that will be the least onerous for individual entities and which will remain in a rational proportion to the intended purposes. However, certain situations that will lead to the conflict of interests are unavoidable. Settling these conflicts in the process of law-making requires, each time, the weighing off the interests of individual property owners and the public interest of the whole local community. Individual owners may sue the municipal planning authority on the grounds of the abuse of its planning power when adopting a local land management plan and such legal actions may be effective.