Waldemar Bednaruk 

 Succession to the Throne in the Views of the Nobility during the Reign of King Stanisław August Poniatowski

 Summary

            The attachment of the nobility to the former political system, including free election, was profound and widespread in the early years of the reign of Stanisław August Poniatowski. The resolutions and instructions of the regional diets of Lubelskie Voivodeship reveal the views of the local people, which did not differ that much from the views of the noble community. They took pride in the privilege of electing kings and did not intend to abandon it. The dramatic events of the period of Bar Confederation, and above all, the first partition of the country, forced the nobles to re-consider the possibility of altering the system of government of the Republic for fear of its future. This process was relatively slow and its progress was much affected by reformed school that fostered patriotic education, and the activity of the Enlightenment authors who strove to convince the public of the inevitability of reform. The effects of this fundamental shift in the nobility's thinking the state was best seen in the time of the Great Sejm, when after several years of dispute, robust projects of political changes were ready to be implemented that won the support of most regional diets. The Lublin nobles belonged to that part of the knighthood, which long opposed the departure from free election; they believed that the state could be strengthened and safeguarded from neighbours' designs without having to abandon well-established privileges. The acceptance of the inevitable reforms came only after the adoption of the Constitution of May 3rd.

 

Aneta Biały

Influence of the Arbitration Theory on the Aspect of Applicable Law for the Arbitration Agreement in the International Business Arbitration

Summary

The article focuses on the aspect of influence of arbitration on the law applicable to the arbitration agreement in international business arbitration.

The first of the presented issues shows the theories of arbitration in international business arbitration. The content is the reason for classification of the legal aspect of arbitration. In practice there has been distinguished four basic types: contractual, jurisdictional, mixed and autonomous.

The next issue relates to the discussion which law is applicable to the arbitration agreement. In this part the autonomy of the arbitration clause in regards to the basic contract, the law applicable to the arbitration agreement and to the parties of the arbitration agreement have been considered.

The subject of the applicable law in the international arbitration is very complex, considering there are no unified rules based on which the applicable law for the specific stages of arbitration could be established. On the other hand, the possibility of dispute resolution within the arbitration procedure can be advantageous. The first is that the arbitration judge is able to deliver a binding decision based on the principle of fair trial and equity on the one hand, and based on the best interests of the parties, theirs expectations on the other hand. Such an approach is not without influence on the use of this kind of dispute resolution in practice.

 

Ewa Katarzyna Czech 

 A few Remarks on the Casual Connection as a Condition for Liability for Damages in Environment (article 2 section 1 point 1 of the Law on Preventing Environmental Damages and their Repairs)

Summary

 

Polish Legislator has indicated conditions for liability for environmental damages and their repairs based on environmental damage or a direct threat of occurrence of an environmental damage. The liability of a entity using the environment for occurrence of those adverse situations has also been included. The author makes an attempt to analyze the casual connection as a condition for liability for environmental damage.

 

Grzegorz Jędrejek

Suspension of the Land Register Proceedings in the case of a Participant’s Death

Summary

 

The aim of the article is to answer the question whether section 174 § 2 of Rules of Civil Procedure indicating the suspension of the land register proceedings in case of participant’s death in addition to section 13 § 2 of the Rules of Civil Procedure is applicable. According to section 626¹ § 3 of the Rules of Civil Procedure states: „the consideration that after filing a motion, petitioner or other participant of the proceedings has died or has been deprived or limited in the capacity of performing the right or in capacity of transacting legal businesses shall not be an obstruction to entry into the land and mortgage register”

Prima facie, it should be concluded that section 626¹ § 3 of the Rules of Civil Procedure as lex specialis overrules section 174 § 2 of the Rules of Civil Procedure.

The article presents the notion that section 174 § 1 point 1 of the Rules of Civil Procedure is applicable in the land and mortgage register proceedings after the entry in the register. Consequently, in the situation of inability to deliver the entry notification, in order to appeal, or in the case of the second instance court’s order for the purpose of filing the appeal,  the court should suspend the proceedings in order to establish the legal successors.

 

 

Marek Krawczak

State monopoly on gambling

 Summary

 

The article addresses the problem of state monopoly on gambling and highlights the need for amendments to this law.

 

The origin of the state monopoly on specific gambling games is discussed. It has also been indicated that the current provisions of the gambling law imposing a state monopoly on certain games of chance result from certain historical conditions. In the past, the cause of introducing and maintaining a monopoly in lotteries were fiscal considerations; hence, the lottery monopoly was classified among fiscal monopolies. Currently, the restrictive state's policy on gambling in Poland does not seem to have an explicit objective besides a fiscal one, which is to raise budget revenues on fees and taxes levied on gambling games. The entrepreneurs, including wholly state-owned companies executing the monopoly in gambling games, are not encumbered with any obligations in terms of policy and procedures for the promotion of socially responsible gambling or information on ways to safeguard against gambling addiction.

 

In many European countries, the state holds the monopoly on gambling and the revenue from this activity is earmarked for social purposes such as culture, sports and social welfare. One of the primary goals of retaining such a monopoly in these countries is to combat addiction to gambling, protect consumers and control illegal activities related to gambling games, including the neutralisation of the criminogenic nature of gambling.  This argument supports the idea of maintaining state monopoly over certain games. In order to do so effectively, Poland should undertake legislative work aimed at isolating lottery games from the gambling law. To regulate this problem in a separate legislation is mandatory because the currently binding gambling law fails to protect the social interest through providing little or no control over the allocation of funds raised on gambling for charitable purposes, social organizations and protection of gamblers against the adverse effects of gambling. Consequently, the purpose of the state regulating economic activity in gambling should not be to stimulate demand for gambling in order to reap substantial profits that would otherwise be made by private entrepreneurs.

 

Lech Mażewski

 On Regulating State of Emergency in the Constitution of the Republic of Poland of 2 April 1997, de lege ferenda

Summary

 

De lege ferenda significant modifications should be made to the legal regime of martial law and state of emergency as far as the procedure of proclamation is concerned. At least, the existing optionality as to their proclamation should be lifted, and the relevant proclamation proposal should be submitted to the president by the prime minister and not by the Council of Ministers in corpore.  

            In the case of state of emergency, a further change should be considered consisting in granting the powers to proclaim state of emergency to the Council of Ministers - without the mediation of the head of state.    

Significant changes would also affect the institution of natural disaster. The constitutional regulation of this state leaves much to be desired and calls for reconsideration of several issues: a new definition of the conditions to be met for proclamation, solutions concerning the mode of proclamation, the establishment of control by the Sejm, and the duration. Moreover, if the Speaker of the Sejm temporarily serves as president, the Sejm should decide whether the presidential election should be postponed. This is the minimum of proposed changes in the legal regime of the third of the states of emergency.

 

The existence of the very institution of natural disaster is also debatable. An alternative solution would involve the proclamation of a state of emergency due to a natural disaster, but in this case, the regulation of state of emergency could be the same as the proposed modifications of the condition of a natural disaster.

 

 

Anna Pacian, Jolanta Pacian

Eliminating the Dysfunctional Regulations in the Legal System as a Method of Fight against Corruption

Summary

 

            The purpose of this article is to present the arguments that support the thesis that eliminating the dysfunctional regulations in the legal system can be a successful method of fighting against corruption. Corruption is not only a moral, social and commercial problem but most of all – the legal one. The vague, ambiguous and blunt language of the law encourages discretion in its using and in interpretation. Establishing the law that allows joint competence of several institutions or excludes them at all, leads to avoidance of law and to corruption. The complexity of the legal procedures in regards to a specific case prevents from obtaining the overall legal picture and its interpretation which results in difficulty in legal analysis and encourages its avoiding. Establishing unclear and ambiguous law that does not allow the citizens to anticipate the legal consequences of their actions constitute a breach of the Constitution. Too many legal regulation is also the reason for corruption and negative influence on the system of the public institutions. The dysfunction of the system causes the paralysis of the government’s actions and in consequence corruption which results in the public institutions being unable to work reliably and efficiently and leads to situations where controlling body does not have sufficient legal means for the normative grounds to implement the legal consequences.

 

Agnieszka Szpak

Sexual Crimes in the Jurisprudence of the ad hoc International Criminal Tribunals for former Yugoslavia and Rwanda

Summary

 

            The purpose of this article is to present the evolution of the definition of rape in the jurisprudence of the ad hoc International Criminal Tribunals for former Yugoslavia and Rwanda. The author notices the mutual infusing of decisions of the Tribunals and mutual profiting from their work. Before the establishing the International Criminal Tribunal for Former Yugoslavia and International Criminal Tribunal for Rwanda there were no jurisprudence that included interpretation of the international humanitarian law including sexual based crimes. There were no precedent cases in this matter. In the jurisprudence of the criminal tribunals it was stated clearly that rape can be defined as war crime and genocide. The Nuremberg Tribunal had not reached a decision finding guilty of the crime of rape. The Tokio Tribunal had sentenced only those Japanese commanders responsible for rapes done by subordinate armed forces, not done by themselves. In this way, the ad hoc tribunals are the first courts that have tried and sentenced the rape perpetrators directly.

            The definition of rape has been established for the first time in the case of Akayesu before the International Criminal Tribunal for Rwanda in which it was described as a form of aggression and that the center element of rape cannot be captured in mechanical description of objects and body parts. The Chamber has defined rape as physical attack of sexual nature on a person conducted under forced conditions. It was also stated that rape is a form of torture. This definition has been evolving in further decisions to a current form reconciling existing variances. The International Criminal Tribunal for Rwanda in the case of Muhimany has accepted the conceptual definition from Akayesu case, which in court’s opinion included elements of the definitions in cases of Furundziji and Kunaracia (more detailed).

            Those opinions have become a valuable indication in adopting the International Criminal Court’s Statute. The crime of rape has been defined in Elements of Crimes definitions of ICC where the element of violence has been clearly indicated. Such a resolution shows its significance and is the result of a long evolution. Rape is no longer considered as a crime that affects the honor and reputation of a victim (mostly of a woman) what led to stigmatization of the victim and to a conclusion that her dignity, honor are diminished and she has been disgraced because of sexual violence against her and her will. The aspect of breaching the psychological integrity is very important, nonetheless the fact that rape has been established as a crime of violence.

 

 

Agnieszka Ziółkowska

Examination in General and Special Administrative Proceedings

Summary

                                 

            This article focuses on the subject of inspection as one of the type of evidence that the administrative body is presenting while finding the significant facts of a case. The subject of the article has been chosen for a reason: inspection is not the most common exhibit that gives a chance to reveal the objective truth. However, it gives the administrative organ an opportunity to implement the principle of directness in administrative proceedings.

            The starting point in the discussion was, based on the works of the administrative law scholars and jurisprudence, whether an inspection constitutes an exhibit or a method of examination. The article presents the characteristics, nature, subject of the inspection and a method of proving this type of evidence. The specific history of legal regulation in this issue has been shown dated back to the Presidential Regulation of 22 March 1928 of administrative procedure. The author draws attention to the probative experiment as a special type of inspection and states the negative conditions in regards to its proving.

            The second part of the article includes the remarks on using the inspection evidence in special administrative proceedings. In the conclusive part of the article the meaning of the inspection evidence in establishing the facts of the administrative case and the relation to the proper judgment of the case have been stressed. The author points out also the suitability of the inspection evidence in the controlling proceedings.