Studia Prawa Publicznego, 2020, Nr 1 (29)

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    Stosunek administracyjnoprawny w niemieckiej doktrynie prawa publicznego
    (Uniwersytet im. Adama Mickiewicza w Poznaniu, 2020) Sancewicz, Paweł
    The notion of the administrative-legal relationship is the basis of the dogmatics of Polish administrative law. Over the years, the doctrinal framework of this concept has been established by the doctrine of public law. At the same time, an extremely fruitful dogmatics discussion about this concept both in German law and practice has taken place. Therefore, the article attempts to present discoveries of the German doctrine of public law in this area. The review of the German literature conducted in the article shows that, despite some disputes, the German authors currently believe that the administrative-legal relationship is a useful tool for the analysis of rights and obligations in comprehensive legal relations, as well as cooperative frameworks. Contemporary German scholars, who do not distinguish the concept of a legal situation, unlike in Poland, believe that as part of the modernization processes in administration, the concept of the administrative-legal relationship can be used to solve complex legal issues.The above-mentioned discoveries made by German scholars could act as significant inspiration for the Polish doctrine of public law, especially in the context of the draft to introduce an administrative agreement into Polish law. Of particular importance here is the fact that in Germany there is a different system of the legal forms of administration activity, of which an administrative agreement is a vital component. It is indicated in the paper that Polish scholars see the possibility of describing complex legal constructions by the notion of the administrative-legal relationship in the simultaneous or complementary use of the concept of the administrative-legal situation. One should consider whether the same or better effects cannot be achieved much more easily, namely by modifying the understanding in the doctrine of the notion of administrative-legal relationship, more appropriate to the analysis of cooperative frameworks in administration.
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    Odpowiedzialność za naruszenie międzynarodowego prawa humanitarnego przez siły pokojowe Organizacji Narodów Zjednoczonych
    (Uniwersytet im. Adama Mickiewicza w Poznaniu, 2020) Stochel, Jacek
    Operations under the auspices of the Security Council mandate span over 70 years. Repeatedly involved in resolving armed conflicts, they have made a significant contribution to ensuring security and stability around the world. In practice, they have taken the form of operations by individual states, coalitions, other international organizations or simply as United Nations missions composed of contingents provided by Troop Contribution Countries (TCC). While operations under the auspices of the United Nations have been involved on several occasions in offensive activities under Chapter VII of the Charter of the United Nations, and the question of responsibility for these actions has been the subject of many legal analyses and judgments, missions organized by the United Nations are always recognized as neutral, and their activities as conciliatory and focused on monitoring the cessation of hostilities, or supervising the disengagement between the parties of the conflict, with the use of force limited to self-defence. Thus, such operations benefited from legal protection, and any action against them was considered a violation of international law. The current engagement of United Nations goes far beyond the traditional understanding of peacekeeping operations. UN missions are frequently authorized to employ all necessary means, up to and including the use of lethal force or even neutralization of the armed group. This creates a situation where in the light of International Humanitarian Law, such actions can be recognized as involvement in armed conflict. This article is intended to show the problems that the international community will soon face to in using United Nations’ missions as an instrument for resolving armed conflicts and as a tool for restoring peace and providing stability and securityin the area of operations. It presents the processes of decision-making and subordination, which in some circumstances might result in the United Nations missions being deprived of legal protection and, in addition, made liable for non-compliance with the provisions of International Humanitarian Law.
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    Gminny Program Profilaktyki i Rozwiązywania Problemów Alkoholowych jako podstawowa forma realizacji zadań własnych gminy z zakresu profilaktyki i rozwiązywania problemów alkoholowych
    (Uniwersytet im. Adama Mickiewicza w Poznaniu, 2020) Biniasz-Celka, Danuta
    The system of preventing and resolving alcohol-related problems used in Poland gives municipalities (gminas), as territorial units, the fundamental role in it. The municipality council is obliged to establish a number of programmes on the basis of the act on municipality self-government, as well as the regulations of other acts, including the Act of 26th October 1982 on Upbringing in Sobriety and Counteracting Alcoholism (A.U.S.C.A.) of the Municipality Programme for Preventing and Resolving Alcohol-related Problems (LCPP&RAP). The programme takes into account the areas of action listed in Article 41 section 1 of the A.U.S.C.A. and the indications included in the recommendations developed by the National Agency for Resolving Alcohol-related Problems. It should be emphasized that the implementation of tasks in the field of preventing and resolving alcohol-related problems under the programme is part of the strategy for resolving social problems, and takes into account the operational objectives set out in the National Health Programme. The regulations of the A.U.S.C.A. also provide the municipality witha significant role in implementing actions to tackle alcohol addiction. The actions are taken on three levels by: (1) appointing a local community committee for resolving problems (Article 41 section 3), (2) determining within resolutions the maximum number of permits for the sale of alcoholic beverages and the rules of locating places of sale and serving alcoholic beverages (Article 12 sections 1–3), (3) issuing permits for the sale of alcohol (Article 18 section 1) and monitoring the legitimacy of using these permits (Article 18 section 8). In addition, the LCPP&RAP provides solutions regarding forms, methods and projects undertaken by the municipality. It is important to note that the municipality self-government, as a result of decentralization of the state, has received extensive competence to conduct its own policy on alcohol-related problems, which is why its role is crucial.
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    Prawo pacjenta do świadczeń zdrowotnych z zakresu lecznictwa uzdrowiskowego
    (Wydawnictwo Naukowe UAM, 2020) Jachimowicz-Jankowska, Paulina
    The right to use health services, including spa treatment, is one of the basic patient rights. The specificity of the issues undertaken stems from at least two sources. First of all, patients are a special category of people, because human health, as the highest value possessed by every human being, is subject to legal protection and requires their rights and freedoms are guaranteed. Secondly, spa treatment, which is an integral part of the health care system, corresponds to art. 68 of the Polish Constitution, assuming the fundamental principle according to which every citizen has the right to health care. On the other hand, this treatment means providing health services, which are conducted only in a separate area of the spa commune – a spa and in specially adapted medical entities – spa treatment centers. The study covers the concise genesis of patient rights and the notion of the patient in terms of doctrine and legislation. Moreover, it contains the basic concepts related to spas. Recognition of the health needs of society is associated with a presentation of the individual types of spa treatment centers and spa treatment facilities, as well as the necessary conditions that they should meet. Due to the existing different status of patients in spa treatment institutions, the analysis covers the basis for admission, for referring and qualifying patients to these centers, and also the rules for using services guaranteed in the field of spa treatment. The patient’s right to health services is also examined in the context of using these services. Despite the fact that patients’ interest in this form of treatment increases every year, as is shown by the available data, there are a number of legal and organizational problems related to access to treatment as part of spa services.
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    Best Practices in Real Estate Cross-border Transactions
    (Wydawnictwo Naukowe UAM, 2020) Szulc, Piotr
    The article presents reflections on the best practices in real estate cross border transactions.Transactions on real estate markets have several aspects that make them highly complex, mostly due to their individual nature – each property is unique in terms of its location, structure and history. Cross-border transactions on the real estate market are becoming increasingly popular as the world becomes more globalized. The growing volume of this type of transaction presents a challenge for the modern real estate lawyer. It is impossible to create an exhaustive guide setting out all the hazards occurring in such transactions. This article addresses this difficult challenge by indicating the most important of them.It is essential and extremely helpful to enter into cooperation with a local counsel who will help us to explain the local specificity and who will take the legal differences into account. In addition, other helpful tools, such as a legal due diligence report or a title insurance Policy, should be carefully considered. One cannot forget about the importance of the local culture and customs, which may prove decisive at the crucial moment of the transaction. Finally, to be effective in working with cross-border clients, lawyers must have a good understanding of how people think and make decisions, and must possess good people skills. Respect for local customs and traditions, as well as understanding the local legal system while securing clients’ interests, is the key to a successful transaction.
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    W sprawie pojęcia wyznaniowej żydowskiej osoby prawnej. Uwagi na tle wyroku Sądu Najwyższego z 9 lutego 2007 r., sygn. III CSK 411/06
    (Wydawnictwo Naukowe UAM, 2020) Borecki, Paweł
    In its judgment of February 9, 2007 (Ref. No. III CSK 411/06), the Supreme Court formulated a narrow interpretation of the concept of a Jewish religious legal entity based on a formal criterion. In practice, the position of the Court has limited on a permanent basis the reprivatization of real estate to the benefit of Jewish communities and the Association of Communes. This reprivatization has been conducted in a narrow scope for over twenty years by the Regulatory Commission for Jewish Religious Communities. The restrictive interpretation that was adopted for the concept of a Jewish religious legal entity is inconsistent with the principle of correct legislation, with the principle of public trust in the state and its law, and in fact with the principle of social justice. Jewish religious communities in a number of areas are treated worse than the largest or oldest Christian churches. This applies in particular to the issue of membership of Jewish religious communities, tax matters or religious foundations. In addition, the interpretation of the Supreme Court does not take into account the historical forms of the organization of Judaism in Poland. On the other hand, the interpretation adopted on a consensus basis by the Regulatory Commission for Jewish Religious Communities in June 1999 is correct. It is functional. The Supreme Court should weigh constitutional principles and opt for this functional interpretation, instead of adopting a formal interpretation.
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    Zakres przedmiotowy tzw. uchwały krajobrazowej. Uwagi na tle wyroku Wojewódzkiego Sądu Administracyjnego w Gdańsku z 18 września 2018 r., sygn. II SA/Gd 328/18
    (Wydawnictwo Naukowe UAM, 2020) Lizak, Agata
    The text concerns an analysis of theses and justification for the judgment of Province Administrative Court in Gdańsk dated 18 September 2018 (case no. II SA/Gd 328/18). Although the judgment is based on particular factual state of affairs, its conclusions seem to be connected with common problems in the area of so-called ‘landscape acts’ adopted at the municipal level. Firstly, the judgment states that landscape acts may refer to campaign materials presented in connection with elections or referendum. In the commentary, this approach is approved, although the reasoning is developed via a detailed interpretationof the spatial management and planning act and electoral code. Later in the judgment it is claimed that landscape acts may cover rules of locating advertisements nearby elements of the road infrastructure. Moreover, this standpoint is shared in the gloss, detailed relations between landscape act and act on public roads as well as judgments in similar cases have been additionally presented. The last issue raised in the judgment was the problem of the legal grounds of imposing an obligation to maintain small architecture objects, advertisement boards /units and fences in the proper condition. As the court claimed, this is possible, because maintenance of the object is the element of its location, and this is also connected with the obligation to use high-quality materials. Moreover, it is stated that the problem of maintaining these objects has not been fully regulated in building law. This approach is accepted in the gloss, although attention is drawn to some inconsistencies in the justification, as well as to the possibility of raising other, moreaccurate arguments by the court.
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    Lex coronavirus. Włoskie prawo w walce z pandemią
    (Wydawnictwo Naukowe UAM, 2020) Urbaniak, Monika
    An epidemic caused by the coronavirus SARS-CoV-2 has been existed in Europe and worldwide for several weeks now. On 11 March 2020, the WHO declared it a global pandemic. At the time of writing, Europe, in particular Italy, is the largest outbreak of coronavirus. Italy is attempting to tackle the virus with increasingly drastic legal measures. On 31 January 2020, its Council of Ministers declared a state of emergency related to the sanitary risk of coronavirus infection. Italy has started the fight against the virus using two legal instruments: the first is the Council of Ministers’ declaration of a six-month state of emergency on 31 January 2020, and the second is a decree-law (decreto legge) issued by the Prime Minister temporarily restricting the freedom of movement throughout the state. In exceptional cases, the Italian Government has the right to issue normative legal acts. Recent legislative acts issued in Italy have undoubtedly limited the fundamental rights granted by the Constitution of 1947. These limited rights include the right of movement, but also freedom of assembly, the right to work, freedom of economic activity and freedom of conscience and religion. As a result of the legal solutions introduced, fundamental human rights are subject to justifiable restrictions in order to protect the constitutionally guaranteed right of the community to health care. In situations of epidemiological threats, protecting the lives and health of citizens is essential. Any restrictions on rights and freedoms are intended to protect these goods. However extensive these restrictions may be, in a democratic state this must be introduced under strict control and for a specified period of time linked to the duration of an epidemic.