Studia Prawa Publicznego, 2020, Nr 3 (31)
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Item Sprawozdanie z Ogólnopolskiej Konferencji Naukowej „Władza w przestrzeni administracji publicznej”, Łódź, 20 listopada 2019 r.(Wydawnictwo Naukowe UAM, 2020) Lewicki, Marek (oprac); Lewicka, Renata (oprac)Item Gabriela Göttelová, Koncese v českém správním právu (Koncesja w czeskim prawie administracyjnym), „Acta Universitatis Carolinae Iuridica” 2020, vol. 66, no. 2(Wydawnictwo Naukowe UAM, 2020) Dąbrowski, Karol (oprac)Item Michal Říha, Dočasnost zákona jako hodnota chtěná a nechtěná (Temporalność prawa jako pożądana i niepożądana wartość), „Acta Universitatis Carolinae Iuridica” 2020, vol. 66, no. 1(Wydawnictwo Naukowe UAM, 2020) Dąbrowski, Karol (oprac)Item Piotr Szudejko, Rozwój biologii i medycyny w świetle demokratycznego państwa prawnego, Seria Monografie Prawnicze, Wydawnictwo C.H. Beck, Warszawa 2019(Wydawnictwo Naukowe UAM, 2020) Jachimowicz-Jankowska, Paulina (oprac)Item Reformatoryjny wyrok Naczelnego Sądu Administracyjnego pięć lat po reformie(Wydawnictwo Naukowe UAM, 2020) Petrus, RadosławThe study refers to the amendment of the Law on Proceedings before Administrative Courts, implemented on 15 August 2015. Within the framework of the above amendment, significant changes were made to the administrative court procedure. According to the assumptions of the legislator, these changes were to contribute to the simplification and acceleration of administrative court proceedings. Among a number of modifications introduced to the administrative court procedure, it is worth noting in particular the extension of the competences of the Supreme Administrative Court (NSA) in the area of reformatory judgment. As a result of the amendment, the prerequisites for issuing a reformatory ruling have changed. Moreover, the nature of the provision has been changed from an optional to an obligatory one and such a ruling has been made a rule. The amended administrative court procedure has been in force for five years, which makes it possible to evaluate the regulation introduced by the legislator. The author compares the principles of reformatory judgment in force before and after the amendment and attempts to evaluate the regulation from the perspective of the five years it Has been In force. The study also contains statistics showing the impact of the amendment on case law. The extension of the competence of the Supreme Administrative Court in the area of reformatory adjudication was one of the most significant changes introduced to the Law on Proceedings before Administrative Courts since the beginning of the Act.Item Czy Konstytucja Rzeczypospolitej Polskiej wymusza na ustawodawcy ustawową regulację struktury organizacyjnej i właściwości sądów powszechnych? .(Wydawnictwo Naukowe UAM, 2020) Banaszak, BogusławThe Constitution of the Republic of Poland does not define in a comprehensive manner the matter to be standardized in laws and grants the legislator considerable freedom in determining their content. In view of the subject matter of this opinion, based on views founded on the doctrine of Polish constitutional law and on the jurisprudence of the Constitutional Tribunal and the Supreme Court, it can be concluded that the legislator should regulate by law, among other matters, the following matters reserved for statutory regulation (the principle of exclusivity of the act): regulations concerning citizenship and the rights, freedoms and duties of the individual, as well as the basic competences, principles of how public authorities are organised and function. On the basis of this assumption, it was examined whether there is any indication to the legislator from the constitutional norms relevant to the judicial authority. The following were taken into account: the right to a fair trial (Article 45), the principle of the separateness and independence of the judiciary (Article 173), the principle of bi-instantiality of court proceedings and the principle of statutory determination of the system and jurisdiction of courts (Article 176), the principle of the presumption of competence being assigned to common courts (Article 177), and the principle of the non-removability and non-transferability of judges (Article 180). On the basis of an analysis of these constitutional norms, it was concluded that the Constitution of the Republic of Poland enforces statutory regulation of the organisational structure and the material, local and appeal jurisdiction of common courts, and only allows for entrusting specific matters to be regulated by executive bodies by means of a regulation. In the event of any doubts as to whether a given case should be classified into the category of specific matters, the principle of exclusivity of the Act applies.Item Raport o stanie gminy i debata nad nim w świetle niemieckiej koncepcji demokracji kooperacyjnej(Wydawnictwo Naukowe UAM, 2020) Biniasz-Celka, DanutaUnder the Act of 11th January 2018 amending certain acts in order to increase the participation of citizens in the process of selecting, functioning and controlling certain public authorities, the legislator has amended the provisions of all three constitutional acts, i.e. on local community self-government, district self-government and voivodeship self-government. The amendments concern, inter alia, the introduction of a mandatory institution, which is the report on the condition of the local community. Although the institution of the report refers to all levels of local self-government, this study concerns the local community, i.e. the self-government which is closest to its inhabitants, and which deals with the greatest number of issues affecting the quality of their life. The report on the condition of the local community is a form of presenting the issues listed in Article 28 aa section 2 of the Act on the Local Community Self-government, i.e. “the report shall include the summary of the activities implemented by the local community administrator in the previous year, in particular the implementation of policies, programmes and strategies, resolutions of the local community council and the citizens’ budget”. In addition to the obligation of presenting the annual report on the condition of the local community, there is a need for a debate with the participation of both councillors and local residents. This debate certainly provides an opportunity for direct communication between executive authorities and society. Moreover, a constructive and meaningful debate boosts the effectiveness of the actions undertaken by the local community administrator, which as a result may contribute to positive changes in how the local community functions, i.e. an increase in the effectiveness of the economy and in citizens’ quality of life. Following the ideas of German solutions in responding to local issues, the study attempts to present the institution of the report as a concept of cooperative democracy. The current proliferation of local democracy and the accompanying mechanisms of the new institutions may lead to broadly understood improvements in the conditions of local self-government residents.Item Obniżenie policjantowi nagrody rocznej w przypadku popełnienia przewinienia dyscyplinarnego stwierdzonego w prawomocnie zakończonym postępowaniu dyscyplinarnym(Wydawnictwo Naukowe UAM, 2020) Gacek, PawełPublic service is characterized by a number of restrictions. A police officer must submit to a special type of regime resulting from the character of the service he performs. He is obliged to perform binding orders and service commands issued by his superior. Non-performance or improper performance of orders and service commands may cause consequences of a service nature, i.e. disciplinary liability. Establishing during disciplinary proceedings that a police officer has violated service discipline or has not followed the rules of professional ethics may result in them being subjected to disciplinary punishment. However, there are also other consequences that may cause a violation of service discipline or non-compliance with the rules of professional ethics confirmed in the final ruling of disciplinary proceedings. One of these is the necessity of reducing the annual award given to a police officer. This paper is entirely devoted to the issues related to the legal structure of reducing the annual award based on Art. 110 (5) (2) Act on the Police. This issue is of significant importance for Police authorities obliged to apply the legal provisions of service pragmatics as well as for police officers themselves because causes consequences in the financial sphere of a police officer. Violation of service discipline established in the final ruling of disciplinary proceedings is the most common reason for the need to reduce a police officer’s annual award. The application of this legal institution requires establishing that the final ruling of disciplinary proceedings confirming the violation of service discipline or non-compliance with the rules of professional ethics by a police officer exists in legal circulation. Attention is focused on the prerequisite of reducing the annual award. It is also indicated which entity is obliged to issue a decision on reducing the annual award, and procedural issues related to this institution are discussed. Discussion of this matter is preceded by a discussion of the issues related to the institution of the annual award, because such a reduction may only take place if a police officer previously obtained a right to this award.Item Przetwarzanie i ochrona danych dotyczących zdrowia przez organizatora systemu opieki zdrowotnej(Wydawnictwo Naukowe UAM, 2020) Lach, Daniel ErykThe protection of individuals regarding to the processing of personal data is one of the fundamental rights. The General Data Protection Regulation (GDPR) lays down rules relating to the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data. Data concerning health is one of the areas the GDPR defines as special personal data, the so-called sensitive data. With regard to these data, the GDPR allows their processing only on an exceptional basis, in certain situations. According to Art. 6 sec. 1 let. e GDPR and art. 9 sec. 2 let. b GDPR, data processing is allowed, inter alia, when such processing is necessary for the purposes of meeting the obligations and exercising specific rights of the controller or of the data subject in the field of mployment and social security and social protection law. In turn, Art. 9 sec. 2 let. h GDPR permits the processing of health data that is necessary for the purposes of providing health or social care or treatment, or for managing health or social care systems and services on the basis of European Union or Member State law. The article discusses the national legal regulations regarding the collection and processing of personal data concerning health in the light of the organization of the health care system and the tasks of the National Health Fund (NFZ) as a placeholder, whose task is only to manage financial resources and conclude health care contracts on its own behalf with independent healthcare providers and their accounting. Against the background of the GDPR, the author discusses the provisions of the acts on health care services financed from public funds and on the information system in health care. Finally, specific regulation regarding the COVID-19 pandemic are presented.Item Odpowiedzialność kościelnych osób prawnych za czyny pedofilskie duchownego – wyrok na miarę precedensu. Uwagi w sprawie wyroku Sądu Najwyższego z dnia 31 marca 2020 r., sygn. II CSK 124/19(Wydawnictwo Naukowe UAM, 2020) Borecki, PawełThe judgment of March 31, 2020, file ref. II CSK 124/19, has great social and legal significance. It is the first Supreme Court ruling concerning the civil liability of church legal entities for pedophilic acts committed by a clergyman. The Supreme Court shared the view of the Court of Appeal accepting the liability of church legal persons in the light of all the facts of the case of Art. 430 of the Civil Code (culpability in supervision). However, it convincingly distanced itself from the position of the District Court (court of first instance) that liability under Art. 429 of the Civil Code (culpability in choice) should be taken into consideration. In the justification of the judgment, the Supreme Court conducted a thorough analysis of the premises for the civil liability of church legal persons for the activities of a religious person subordinate to them. In particular, it stated that if the perpetrator acts for personal gain and the performance of the official activity enables him to cause damage, the superior cannot effectively raise the objection that the subordinate caused said damage only in the performance of the entrusted tasks. Thus, the Supreme Court upheld the interpretation of Art. 430 of the Civil Code, assuming the liability of legal persons for damage caused by a subordinate. It distinctly applied this liability to church legal entities. When appointing the adjudication panel of the Supreme Court, impartiality was preserved. On the other hand, doubts are raised regarding the Court’s neutrality in terms of world-view in some parts of its judgment justification. The judgment of March 31, 2020 must be assessed as brave and just. It has the chance to set the course of judicial decisions in matters of the liability of religious legal persons for pedophilic acts committed by clergy acting under their supervision. The justification of the judgment is understandably critical towards the perpetrator and church legal persons superior to him, and also sometimes towards the provisions of the Code of Canon Law. It should be emphasized, however, that the judgment is not an “indictment” against the Catholic Church as such, and even less so against religion.Item Podstawowe trendy orzecznictwa Europejskiego Trybunału Prawa Człowieka w sprawach podatkowych(Wydawnictwo Naukowe UAM, 2020) Jadusowicz, TadeuszThe case-law of the European Court of Human Rights in tax matters has developed in three dimensions. Firstly, it involved Article 1 of the Protocol No. 1 to the Convention with reference to “the payment of taxes”, viewed, notwithstanding the State’s wide margin of appreciation, in the light of the principle of the peaceful enjoyment of one’s possessions. Secondly, from the perspective of Article 6 paragraph 1 of the Convention, tax disputes can be covered by the guarantees of a fair trial where the proceedings and sanctions, for example, concerning tax surcharges, are qualified in their autonomous Convention meaning as a “criminal charge” against the taxpayer. Moreover, despite its traditional case-law, in the last years the Court 32 tadeusz jasudowicz has seemed to allow the possibility of qualifying tax disputes as concerning “civil rights and obligations” Thirdly, on the basis of Article 4 of Protocol No. 7 to the Convention, the Court has found violations of the prohibition “to be tried or punished again in criminal proceedings” in the context of dual, i.e. tax (administrative) and penal, proceedings. The author critically assesses the Court judgment in the case of A. and B. v. Norway, in which the Court did not find a violation of Article 4 of Protocol No. 7. In the Norwegian case, the distinct administrative and penal proceedings were in fact merged, since the state introduced a system of integrated legal answers to taxpayers’ behavior. According to Judge Pinto de Albuquerque, expressing a dissenting opinion, the Court in this judgment wrongly changed its stance from pro persona to pro auctoritate, possibly forgetting that it is a court of human rights, and not a pleader of raison d’Etat. Although the Court declared that it considers the Convention “as a whole”, and seeks to ensure the consistency of the Convention system and harmony of its provisions, it might have lost sight of ties existing between them. Taxpayers are also individual humansand have a title to human rights, thus tax disputes are those of a human rights nature. Understandably, the ECHR must persist as a Court of Human Rights.