ANDRZEJ BORODO

Legal Character of Budgetary Expenditure

Summary

Budgetary expenditure listed in the budgetary act or budgetary resolution of the local self-government is regarded as an authorisation to expend financial resources. The authorisation of expenditure allows the expending bodies to actually assume obligations (entering into agreements, performance under concluded agreements). Consequently, budgetary expenditure is an authorisation and not the actual payment for some specific delivery, services or benefits. The payment will not be effected if no agreement has been concluded and verified in terms of the content and formal acceptability. 

The arrangements related to expenditure are coupled with agreements, payments, decision-making and controlling powers, banking mechanisms and cash basis (or memorial basis) approach to budgetary operations. The legal character of budgetary expenditure calls for a question of whether the budget mechanisms should observe the cash or memorial accounting standard. The cash standard covers payments, yet forecast expenditure (authorisations) does not fall within either the cash or memorial standard.  

When executing the budget, in some cases, budgetary operations concern the authorisations to expend (transfer of expenditure within the budget, its expiry, locking), and in other cases, interbudgetary operations (transfer of funds to the bank account of an entity by a higher rank entity). The latter form is an administrative, technical and banking activity and is not the performance of budget-financed public assignments provided for in the budgetary act or resolution. 

 

GRZEGORZ JĘDREJEK

Exclusion of Child Representation by Parents in Civil Procedure (Comments on the construction of Article 98 § 3 of the Family and Guardianship Code)

Summary

 

The appropriate application of Article 98(3) of the Family and Guardianship Code to the proceedings both before court and out of court, entails the exclusion of representation of a child by their parents (or one parent) in case of the clash of interest between the child and the representative, the clash being “hypothetical” and not “actual”. This approach conforms to Article 3(1) of the Convention of the Rights of the Child. There is no basis for differentiating between court and out-of-court proceedings in terms of the clash of interest taken as good grounds for the exclusion of child representation by either of the parents.

 

 

MAŁGORZATA KRUSZEWSKA-GAGOŚ

Local Referendum as a Form of Direct Exercise of Power by Self-Government Communities

Summary

 

One of the prevailing ideas of the transformation initiated in 1990 was to re-instate the status of independent subjects to local communities and the development of civil society. The 1990 reactivation of the local self-government down to the level of commune (Pol. gmina) resulted in the members of local government communities being offered the right to decide on important local affairs. In a local referendum, the community members express by voting their resolve to settle a community-related issue that falls within the competence and responsibilities of the local governmental unit, or to dismiss a decision-making authority of this unit, in the case of a commune – a commune head (Pol. wojt) or mayor (Pol. burmistrz, or prezydent for larger cities).

The article aims to identify the basic areas open to problem-solving through a local referendum and to pinpoint the scope of matters put to referendum in the context of the decisions of the Constitutional Tribunal and administrative courts. In consequence of legal changes after the Polish entry into the European Union, the author reviews the problem of community members eligible for voting. Furthermore, Swiss experiences with local referendums are discussed to illustrate how attendance may be raised by the use of the Internet. Furthermore, the article ponders upon the issue of accountability and commitment of self-government communities to local and regional matters. 

 

BEATA KUCIA-GUŚCIORA

Grants – legal status and taxation. An attempt at systematization

Summary

 

            The article, Grants - legal status and taxation. An attempt at systematization, provides the analyses of legal and financial facets of the issue of grants.  In view of the lack of explicit definition and uniform approach to the notion of grant in legislation and legal literature, the author attempted to propose the exposition of this benefit. The author continues with discussing various categories of grants: for educational study, sport, artistic activity or related to employment advocacy. The classification of grants has been multifaceted. The systematization of grant benefits provides for their character, legal background, methods of awarding, sources of finance and types of beneficiaries.

            To encapsulate, the author ponders upon the taxation measures adopted for domestic and foreign grants. Relying on the analysis, the author induces to draw several de lege lata and de lege ferenda conclusions.

 

KATARZYNA MAĆKOWSKA

The Role of the Receiver in American Bankruptcy Law

Summary

            

The article sheds light on the legal status and the role of the receiver in the US bankruptcy law. The author analyzes the procedure of appointing and recalling receivers under the Bankruptcy Code, Title 11 of the United States Code. The role of this body may vary contingent upon whether bankruptcy proceedings involve liquidation or reorganisation. If the former is administered, the receiver’s role consists in the liquidation of debtor’s assets and satisfaction of creditors’ claims. On the other hand, the receiver’s role may be to reorganize debtor’s activity if they fail to implement a repair schedule. Consequently, the responsibility of the federal receiver will differ, being more of supervisory nature. Further, the author discusses the assistance of other entities and the issues of accountability and control.  

            No doubt, the role of the receiver in the American system is by far significant not only due to its prescriptive catalogue of competence. It is even more important considering the practical character of American household management largely relying upon readily accessible credit and general state’s endorsement of entrepreneurial initiative. The current crisis will verify the 2005 amendment tightening the requirements for bankruptcy proceedings and tarnish its well-deserved reputation of a means of effortless disposing of debts.

 

LECH MAŻEWSKI

12th Congress of the Democratic Party, 9th Convention of the Polish United Workers’ Party and 1st National Convention of Delegates of the Independent Self-Governing Trade Union Solidarity on the Political System of the People’s Republic of Poland

Summary

 

            Unquestionably, in 1981, the Independent Self-Governing Trade Union Solidarity opted for the idea of the reform of the political system of the People's Republic of Poland (PPR) rather than for the establishment of a new institutional order; the only disparate opinion was voiced by Antoni Macierewicz and Stefan Kurowski. Still, the idea of reforming the system of the PPR was not airtight. Jacek Kuroń subscribed to the view that state socialism be supplanted by a socialism based on local self-government, which to some extent was convergent with the programme of the 9th Convention of the Polish United Workers’ Party (PUWP), yet it certainly involved a considerable erosion of the leading position of the Communist party in the political system. The local self-government socialism was not an attractive vision of the Polish political system for the Democratic Party. For them, Macierewicz’s and Kurowski’s stance on economic issues would have been agreeable, if not for their political radicalism.

            Although the analyzed political programmes proposed diverse modifications to the shape of the state machinery, they were unanimous on one item, namely the establishment of an institution monitoring the constitutionality of law. PUWP and Solidarity acceded to the Supreme Court (or some other special office) as fit for this function in preference to a separately established body such as the Constitutional Tribunal. 

 

JERZY MIGDAŁ

Creation of Polish Penology and its organization in years: 1918-1928

Summary

 

The article is concerned with the Polish prison system in the first decade of the 2nd Republic of Poland. That decade was a period of concentrated reconstruction of the state and unification of the legal systems deriving from three former occupying states. It also concerns the resurgence of the institutions of the judiciary sensu largo. The aspiration of the time was to unify law by re-developing it, beginning with the rudiments, in lieu of extending one of the three existing systems over the entire country.

 When it comes to the prison system, the interwar period may be divided into two stages. The years 1918-1928 (so called pre-Code period) and the years 1928-1939 (the then legislation is the Penal Code of 1932, Code of Penal Law of 1928, the 1928 regulation of the president of the Republic having the force of statute on the prison system). The article treats of the pre-Code period.

The analysis is done at three levels. These are: doctrinal foundations (Polish concept of the prison system), the practice of serving a prison sentence and legal articles. The discussion is set against a historic backdrop.

 The focal point of the article is a field which has been barely examined in the contemporary Polish research; the author cast much light on the practical situation of the prison system of the time inherited by the re-born Polish state from the occupying powers in a mediocre condition. 

The author discusses the development of new regulations governing the prison system (beginning with the 1919 decrees). The drafters, outstanding experts in penitentiary issues, had a very innovative approach to the matter.  The 1928 regulation of the president of the Republic concerning the prison system and, additionally, the Code of Penal Law of 1928 were modern and compelling acts that regulated the branch of law today known as executive penal law.

The author advanced a thesis that the Polish concept of the prison system of the early independence period built on the remarkable legacy of the Warsaw Duchy and the Congress Kingdom of Poland. Another vital thesis put forward by the author says that the concept in question also constructed on the Western idea of the prison system of the time.

 

WIESŁAW MOSSAKOWSKI

The Anniversary of the 1993 Concordat

Summary

 

The 28th day of July 2008 saw the fifteenth anniversary of the Concordat concluded between the Holy See and the Republic of Poland (published in the Journal of Laws of 1998, No. 51, item 318). Its ratification in 1998 was preceded by a few years’ debate concerning political and ideological issues, historical facets and more detailed problems. The issues discussed revolved particularly around one Concordat’s novum, namely the contracting of marriage in accordance with the norms of canon law having – at the request of the candidates to marriage – the effect of contracting marriage under Polish matrimonial law (i.e. under the Family and Guardianship Code, a secular law developed by the state).

           

            The article discusses the correspondence of the theoretical problem and legal practice: 1) the comprehension of the relation between statute and executive regulation 2) similar relation between statute and the Concordat. In Poland, the acts stipulating the obligations of issuing executive regulations applicable to a specific act by specific addressees (most often by the Council of Ministers or ministers) are executed only if these executive regulations have been issued following the required procedure. Such a practice perverts the essence and rank of acts that, although underlie the legislation, are practically dependent – in terms of their legal force – upon their follow-on regulations. A parallel problem is observable when analyzing the content of the Concordat that proposed an institution alien to the code-based law. During the debate on the Concordat, a question was raised that without suitable modifications in the existing Polish (secular) legislation, some of the Concordat’s norms will remain unenforceable. Hence, the ratification of the Concordat was not hampered by the dilemma concerning the hierarchy of prescriptive acts but rather by the contradictory character of some content-related matters, at least when considering the doctrine and practice. Ultimately, a number of prescriptive acts were issued aimed to standardize Polish regulations in relation to the Concordat (in particular, the Act of 24th July 1998 amending the Family and Guardianship Code, Code of Civil Procedure, the Act on law of civil certificates, the Act on the relations between the State and the Catholic Church in the Republic of Poland and other acts and announcements of the Ministry of Internal Affairs and Administration of 4th November 1998 on the publication of a list of positions which are accredited to make out an authorisation underlying marriage certificate issued under Article 1(2) and (3) of the Family and Guardianship Code. Yet, it should be noted that these state regulations broadened the legal formula covering the mentioned matrimonial law to include ten other churches and religious associations. The ratification of the Concordat was effected through the 8 January 1998 Act on the ratification of the Concordat between the Holy See and the Republic of Poland.

 

BARTOSZ RAKOCZY

About the necessity for amending the Polish Constitution

in scope of the environmental protection

Summary

 

The article presents a proposition for future consideration of amending the Polish Constitution in regards to the constitutional provisions of the environmental protection. The analysis of binding Constitution leads to a conclusion that the provisions are neither comprehensive nor covering all aspects of the environmental protection. One of the most important issues is the lack of the right of an individual to life in favorable environment or the right to explore the environment. Another stipulation that needs to be raised is the necessity of protection of natural resources and excluding them from the marketing rules of the commercial trade on the basis of their strategic character.

It is important to encourage the legislator to make an attempt for amending the constitutional provisions of the environmental protection in the matter suggested in this article.

 

GRZEGORZ WOJCIECHOWSKI

Legal Status of Patriarchal Church. An Outline

Summary

 

The group exercising the highest power in the Church includes those positions that are ranked between the ecclesiastical top offices and that of the diocesan bishop. Such institutions, for example the patriarchate, do not stand in opposition to the principle of collegiality, for the supreme power in the Church is invariably fixed. Although their sees date back to different period, the patriarchates are all equal in their dignity, yet some hold honorary privileges. The patriarchs with their synods constitute the highest instance in their patriarchal churches, including the power to appoint bishops and found eparchies within their territory. All these corroborate not only the legal status of the institution of patriarchal church, but also their sui iuris status within the Eastern legislation.

 

 

 

Autor: Marzena Rzeszót
Ostatnia aktualizacja: 23.02.2010, godz. 13:40 - Marzena Rzeszót