ODPOWIEDZIALNOŚĆ ODSZKODOWAWCZA Z TYTUŁU BEZPRAWIA NORMATYWNEGO
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Date
2005
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Wydział Prawa i Administracji UAM
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LIABILITY FOR DAMAGES DUE TO NORMATIVE LAWLESSNESS
Abstract
The non-conformity to the Constitution (determined by a superior act of law) is not equivalent
to the occurrence of illegality as a prerequisite of ex delicto liability. Normative illegality may specifically
concern a precisely defined area for the binding force of a given regulation and not the
whole period of the binding force of the normative act (this is clearly acknowledged by the so-called
secondary non-constitutionality of the regulation resulting from the new Polish Constitution entering
into force). The so-called legislative failure to act (the non-issuing of a normative act) is
a specific form of normative illegality (art. 417 § 4). The interpretation of the prerequisites of such
liability must respect one of the basic principles of a democratic state ruled by law i.e. the principle
of separation and balance between the legislative, executive and judicial powers (Art. 10 Constitution).
The interpretation of the term “legislative failure to act” may under no circumstance lead to
independent stipulation, by the court examining a claim for damages, of the contents of the not
adopted legal regulations.
The broad view of ex delicto liability prerequisites, when referring to activities connected with
the realisation of the public powers empire, should incline towards the far reaching consideration
when interpreting and applying new mechanisms of liability. For it is very easy to cross the boundary
in this respect, which may lead not only to overburdening public finances with unpredictable
damages but even to the infringement of the principle of balance and division of powers within the
state. Therefore, a lot will depend on rational and considerate judicial practice in this area. Additionally.
the strong aspiration to maximize claimant’s protection must not lead to a certain threshold
of rationalism being exceeded, since in a further perspective this would cause negative
consequences to the claimants themselves and the whole society.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 67, 2005, z. 1, s. 13-34.