Wiesław Bar

 

TEMPORARY MARRIAGE IN THE LAW OF SHARIAT AND IN THE LEGISLATION OF ISLAMIC STATES

 

Summary

 

Due to the growing number of the Islam followers, mainly immigrants, including Shiites, in Europe and Poland, the issue that has become widely discussed is temporary marriage in the law of Shariat and in the laws of Muslim states. Having defined marriage in the codes of civil status (of Syria, Iraq, Jordan, Oman, Kuwait, Algeria), the author points to the doctrinal sources of temporary marriage – mut’a (the Koran, Sunna), and presents the legal requirements regarding the parties to this sort of matrimonial contract and its structural elements – the gift (mahr) and the contract's life. The reader may get acquainted with the form of contracting the marriage, the ways to evade the determined life and the consequences of the contract. The article closes with the analysis of temporary marriages in the theological and legal doctrine of the Sunnites.

 

Jan Białocerkiewicz

 

STATE JURISDICTION TOWARDS FOREIGNERS

 

Summary

 

The article discusses the concern of state jurisdiction and foreigners. The jurisdictional subordination has evolved from the principle of extreme personalism to the territorial approach. Presently, it is beyond doubt that foreigners who reside in the territory of a state come under its jurisdiction. Not so long ago, this principle was far from binding, for there was a considerable number of capitulation treaties which, to a varied extent, excluded the jurisdiction of the sovereign over entire groups of aliens (e.g. merchants) in favour of the other states' consular offices. In the 20th century, the instances of consular jurisdiction survived in some dependent territories and in strictly regulated cases of the international marine law (resolving the disputes between the captain and the crew). In spite of the fact that the territorial approach is not called into question in the contemporary international law, it has not the ultimate character, because in many cases the jurisdictions come into collision, thus the territorial approach is conflicted with the principle of personalism (e.g. diplomatic assistance, extradition, legal assistance). This dichotomy does not exhaust the overall of the jurisdiction issue; jurisdiction can be of a universal character also in the territory independent of any sovereign power (offences prosecuted universally – e.g. slave trade). The article reviews a broad spectrum of jurisdictional exclusions resulting from the treaties and concerning the diplomatic and consular personnel, international officials, members of armed forces and their families. The scope of jurisdictional exclusions is varied depending on the group (total exclusion, partial exclusion, shared jurisdiction due to interstate agreements). To exemplify the jurisdictional disputes, one should refer to both international and domestic tribunals. The article, moreover, provides the examples of jurisdictions conflicted with the international law (e.g. abduction in a foreign territory in order to bring a person before court). The author is critical about the doctrine that aims to legalize that sort of practice for the sake of justice. The part devoted to this question casts light upon some instances of such jurisdiction and demonstrates a non-uniform practice of certain states. Finally, the article ponders upon the problem of jurisdiction in a territory which is not nationalized but de facto governed by the state administrative or military authority (e.g. Turkish Republic of Northern Cyprus, West Bank and Gaza Strip). The analysis of jurisdictional grounds leads to a conclusion that the territorial approach in its 'pure form' does not occur in practice due to a number of exclusions. Furthermore, a common recognition of the personal status cases the foreigner, in certain particularities, to remain subject to the law of their own state (lex patriae) as it is decided by the conflicting standards of either the domestic law or the law uniformed internationally.

 

Michalina Duda


THE OBLIGATION OF PAYING THE SUM UNDULY DEFINED AS VAT ON AN INVOICE

 

Summary

 

The regulations imposing the obligation of paying the sum unduly defined as value added tax on an invoice constitute one of the most interesting normative constructions in the Goods and Services Tax Act. Through the whole period of their existence, they were considered by the tax payers a trouble, for their observance indicated the necessity of bearing an extra financial burden on top of the tax load. What is worth noting is the fact that despite the many doubts that surface from the application of these regulations, their content has remained relatively unaltered. It is only the normative context that varies and, consequently, the manner of interpretation.

The article aims to answer the question of to what extent the norms providing for the obligation of paying the sum unduly defined on an invoice as value addend tax may be regarded as creating independent tax sanctions and what is the range of intricacy they are bound to cause.

 

Elżbieta Dynia

 

REGIONAL POLICY OF THE EUROPEAN UNION AND THE INSTRUMENTS GUIDING THE REGIONAL DEVELOPMENT OF MEMBER STATES

 

Summary

 

Among the priorities of the European Union, there is a concentrated effort to level the progress of economic and social development of the Community by supporting, from the common EU budget, the regions which suffer from the conditions and level of life considerably departing from the average of the EU member states.

All the activities undertaken by the EU and aimed to smooth away the differences in the economic and social development of the regions comprise the so called regional policy, which is at times named the economic and social coherence policy.

The starting point of the regional policy dates back to the middle of 1970's, while the milestone of the policy was the establishment in 1975 of the European Regional Development Fund that became the main instrument of distributing the community funds among the underdeveloped regions. That moment marked the beginning of an intensive activity of the Community in the domain of the regional policy.

The major step in increasing the role of regions in the European Community was the Treaty Establishing the European Union of 7 February 1992 which underlay the foundation of the Committee of the Regions.

The finances for the regional policy are obtained from the Structural Funds, Coherence Fund and European Investment Bank. The Structural Funds play the most prominent role as they are the essential instruments of the EU regional policy.

Presently, the Structural Funds include: the European Regional Development Fund, European Social Fund, European Agricultural Guidance and Guarantee Fund (Guidance Section) and the Financial Instrument for Fishery Guidance. The special instrument of the structural policy is also the Coherence Fund.

The instruments of the EU regional policy exert an increased influence over the regional policy of particular member states. They offer the window of opportunity to slow advancing countries to diminish the differences in the level of development, to weather economic and social recession and to reduce the gap to the remaining EU members.

 

Małgorzata Łuszczyńska


NATURAL LAW AS THE FOUNDATION OF THE LEGAL AND PHILOSOPHICAL SYSTEM OF CZESŁAW MARTYNIAK

 

Summary

 

The article attempts to recall the views of Czesław Martyniak regarding the idea of natural law. It has been assumed that the scholarly achievements of this author constitute a uniform legal and philosophical system created on the basis of Thomas Aquinas's doctrine. The leitmotif that determines the spectrum of Martyniak's research was the effective force of the binding law. His study of the origin of natural law, its modification and interrelation with the positive law revolves around this issue.

Thomism as seen by Martyniak underlines the equality of the juridical approach to natural law and its moral facet; it stresses the normative and forceful character of this law, as well as its rational and personalistic aspect.

 

Henryk Misztal

 

THE VALUE OF THE PAPAL ACT OF CANONISATION AND BEATIFICATION

 

Summary

 

The institutions of canonisation and beatification belong to the spirit of the Church. Canonization has been present since the very beginning and beatification arose throughout the following centuries. Later, both canonization and beatification were reserved to the domain of pope's decisions. Both these notions are often wrongly interpreted and need further explanation. From the theological viewpoint and according to the canon law, the value of the papal act of canonisation and beatification has been at issue. To clarify this problem, the canonisation and beatification formulas used by popes have been put to analysis. Their analysis led to a conclusion that canonisation is a dogmatic fact and a conclusive act of the teaching office of the Church; besides, it is a legislative act introducing a preceptive public worship of a saint in the whole Church. It is not, however, a truth of faith essential for salvation. Beatification, on the other hand, is only an act that allows a limited public worship of a beatified person and thus different from canonisation.

 

 

 

 

 

Autor: Marzena Rzeszót
Ostatnia aktualizacja: 05.05.2009, godz. 14:48 - Marzena Rzeszót