No. 4 (38)

The right to freedom of thought, conscience and religion as a fundamental human right has its place and justification in the broader context of human rights and freedoms. During the coronavirus pandemic, restrictions by the legislative and executive powers on worship, prayer and participation in religious rites in places designated for this purpose met with protests from many believers. Also, they resulted in applications to ombudsman and courts. The author indicates the essence of religious freedom and gives examples of its restriction at the beginning of the COVID-19 pandemic in selected European Union countries. He considers whether the actions of public authorities had a legal basis and, in particular, whether they complied with the principle of proportionality.

Constitutional complaint and extraordinary complaint are two institutions functioning in the Polish legal system whose task is to protect freedoms and human rights set out in the Constitution of the Republic of Poland. The constitutional complaint is regulated by the Constitution of the Republic of Poland, while the extraordinary complaint is a statutory instrument. These institutions were introduced
to the Polish legal system for different reasons. Their functions are also other. The author does a comparative
analysis of a constitutional complaint and an extraordinary complaint in such a scope that it will be possible to answer the question about mutual relations between a constitutional complaint and an extraordinary complaint and their significance in protecting human rights. In particular, it is worth considering to what extent the deficits resulting from the narrow model of constitutional complaint adopted in Poland have been filled by the extraordinary complaint. Undoubtedly, these are two
significantly different institutions. The considerations are based on the analysis of the texts of normative acts of the jurisprudence of the Constitutional Tribunal and the Supreme Court and concerning the doctrine’s statements. In the conclusion of the conducted analysis, the author points out that although the extraordinary complaint is not an answer to all the imperfections of the constitutional complaint, it is an institution that has potential. Its effectiveness in protecting human rights depends on how it is be shaped in legal regulations and to what extent the Supreme Court is willing to deviate from the constitutional
value of stability of final court judgements.

Over the past years there has been a significant intensification of efforts designed to eliminate the European Court of The Human Rights caseload. There were
numerous attempts to address this problem at various levels. These attempts were partially successful, although it would still be difficult to consider the issue resolved.
The author tries to present the problem of the ECtHR’s caseload as an issue affecting its overall functioning and effectiveness. Attention should be paid to the origins of the Court’s caseload. It is also necessary to examine the attempts made by the ECtHR to eliminate this issue and the mechanisms developed in this regard. These mechanisms may include joining applications and resolution of multiple
cases by a single judgment, simplified procedure, case management methods or focusing on the implementation of judgements.

The author tries to indicate weak points of the derivational concept of the legal norm (especially when separated from the derivational concept of legal text interpretation). The author tries to formulate the concept of the legal norm that considers the fact that lawyers extract norms from the text and shape them in a certain scope. The author uses intentionalism as a theoretical perspective. Therefore, and considering that this new concept of legal norm appeared in writings (as part of “refined textualism” theoretical
project), subjected elaboration of above issues include a comparison of this new idea with the intentionalism.

The author discusses the problem of abortion from the new natural law theory perspective. The new natural law theory is a contemporary Anglo-Saxon ethical theory and philosophy of law. Since it is considered to be a revival of the Thomistic natural law theory, the author presents the
NNTL approach toward the known from centuries principle of double effect. The new natural law theorists are against any kind of voluntary abortion but they recognize that there is a particular group of cases in which abortion is permissible.

The author justifies the thesis about the influence of the phenomenological method as depicted in The Apriori Foundations of the Civil Law (1913) by Adolf Reinach (Edmund Husserl’s brilliant disciple and phenomenologist of German origin) on the concept of social ontology presented in an article from 1921, entitled On the Social
Object and Fact, by Czesław Znamierowski. Znamierowski was a Polish representative of philosophical and sociological thought. The author indicates analogies as well
as major discrepancies between both philosophers’ assumptions. The attempt of Znamierowski to apply general assumptions of phenomenology to create social
ontology from scratch shows that it is, in the author’s opinion, possible to apply the phenomenological method to the philosophy of law.

In 2019 American administration established the U.S. Space Force – a new type of armed force to protect the U.S. interests in outer space. This, along with the civilian Artemis program, is another signal that shows a renewed American interest in space and the benefits that may result from
its exploitation. As a result of the U.S. actions, a debate has risen among the international community regarding the permissibility of such actions under the current International Space Law. This author focuses on the capability of military forces, such as the U.S. Space Force, in outer space, in the light of The Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature at Moscow, London and Washington, on 27 January 1967. The author analyzes the permissibility of military presence in outer space from the perspective of the above-mentioned treaty, considering the available information about the mission and purpose of the U.S. Space Force. The author mentions the regulations resulting from the Outer Space Treaty, which may affect the placement of military systems in outer space, in particular the provisions imposing on the State-Parties the obligation to use the outer space exclusively for peaceful purposes.

The author describes the mechanism of determining criminal jurisdiction in court cases in which the accused would be a member of the US armed forces or their civilian
personnel or a family member of any of the indicated entities. This mechanism was established in Art. 14 and art. 15 of the Agreement between the Government of the Republic of Poland and the Government of the United States of America on enhanced defense cooperation, signed in Warsaw on August 15, 2020. The author also discusses a more detailed issue in the form of the possibility of qualifying the same act of the perpetrator
under Polish and American criminal regulations and the issue of the possibility of double conviction for the same act by a court of the United States of America and a court of the Republic of Poland.

The buyer of property rights to an architectural project, using it to obtain a patent for an invention, has the right to use a drawing from this design without providing information about the author. Such marking of the drawing is prevented by the provisions on filing patent applications. It is also anonymous in practice before the Polish Patent Office. Moreover, it does not comply with the arrangements for the sale of the rights to the project, which also affect the personal sphere of the vendor. The drawing has a descriptive function in the application and illustrates only an exemplary variant of the invention. The lack of an authorship mark does not interfere with the creator’s bond with the drawing, as the description of the invention to which the drawing is attached is excluded from copyright
protection at the time of publication. It becomes an element of an official document showing the state of the art. Therefore, it is impossible to infringe the personal copyrights of the drawing creator, as well as to commit crimes of attributing authorship or misleading as to the authorship of someone else’s work. Even if, in a special case, there were indications of any of these torts, only the person who committed it directly could be considered the perpetrator. Therefore, if the patent application had been filed by the representative, the allegations in this respect could have been brought only against him.

This author focuses on the issue regulated in Article 151 § 1 p. 3 of the Family and Guardianship Code. A marriage may be annulled if the declaration of marriage or the declaration provided for in Article 1 § 2 of the Family
and Guardianship Code was made under an unlawful threat of the other party or a third party (if the circumstances indicate that the claimant may have feared that he himself or another person is in serious personal danger). In part 1,
the author focuses on the notion of a threat on the ground of provisions on defects of the declaration of intent, especially in the context of Article 151 § 1 p. 3 of the
Family and Guardianship Code. The main object of the dispute is the aim of a threat and the distinction between a threat and physical duress.

The author explains the special regulation of civil court proceedings in matters of labour law. He argues that the reasons for the different shaping of the rules of procedure in labour law matters should be seen in the perspective of Article 45 of the Polish Constitution considered together with Art. 24 of the Constitution. He particularly pays attention to proceedings in cases involving discrimination in employment. The author analyzes the impact of Article 32 § 2 of the Constitution on civil procedure.

The author discusses general problems concerning the protection of the employment permanence of trade union activists as a category of specially protected persons and the mechanism of this protection in the context of the
general clauses under Article 8 of the Labour Code, i.e. the rules of social coexistence and socio-economic purpose of the right. In the analysis of the issue being discussed, the author makes extensive use of the Polish Supreme Court case law, in particular in the context of the relationship between the protection of trade union activists defined in Article 32 of the Act of 23 May 1991 on trade unions and
Article 8 of the Labour Code regulating the so-called abuse of right.

The author analyzes the potential consequences of applying an abusive floating interest rate clause in bank loan agreements. He focuses on the legal character of the floating interest rate clause and its correct drafting. He also considers the possibility of upholding a bank loan agreement that consists of an unfair floating interest rate
clause, and the potential method of filling gaps in the agreement in case the floating interest rate clause has to be eliminated.

Business judgment rule secures board members against civil liability for the business decisions taken by them. The essence of the business judgment rule is to ensure the sovereignty of decisions taken by board members. The law should not discourage managers from taking risks. However, the law should set certain standards indicating how to take this risk. The above principle is derived from the US law. The Delaware case-law has had a huge impact on the development of the concept of liability of board members towards the company, which subsequently
set the pattern for many European countries. In Poland, the business judgment rule has been widely commented on by the doctrine for many years, but its codification took place in 2019 under the provisions of a simple joint-stock company (PSA). In 2020, the new legislation project has been introduced, which implies the business judgment rule to all limited companies.

The author aims to familiarize the process of formation of the timeshare institution with a form of factual law. He presents a historical outline of the concept of ownership on the principles of timeshare in some countries of Western
Europe and North America. He also analysis the usage of timeshare principles within the Polish legal system, and comes to the conclusion that the usufruct has the characteristics of a new limited property right separate from the classic user.

The issue of criminal punishment has long aroused disputes. Recently, punishment, as well as criminal law in genere, has been subject to massive criticism. Particularly questioned on the part of abolitionists is the common justification of the punishment and its declared goals. Paradoxically, despite growing research, political populists have resorted to criminal penalties very often, beginning
to become harsher and harsher and more intrusive in the field of civil rights of punitive measures. There is often talk of the need to change the criminal law into the law of criminal risk. The author undertook a broad analysis of the justification of punishment, taking up the threads of the constitutionality of criminalization and penalization, a critical analysis of historical evolution, a revision of the foundations of the philosophy of punishment, and victimology.

The attempt is the absence of the essence of the act. In the case of full wrongfulness (illegality) on the subjective side, the objective side shows a gap in the form of the absence
of commission and, in the case of the inapt attempt, in the form of the absence of threat to the legal good. Given the assumed absence of criminal wrongfulness in the absolutely inept act and the deficit in it in the case of a relatively inept attempt, arises questions about criminal liability for an inept attempt as the crime which does not pose a threat to a legal good, and the justification of its criminalisation in the Polish Penal Code of 1997 in the
light of the principles and rules expressed in the Polish Constitution. The authors address the above problem and, more precisely, examine the existing constitutional and legal basis of criminal liability for the inept attempt.

The phenomenon of doping in sport meets not only with a strong reaction in the area of disciplinary responsibility but increasingly also through a criminal response. The number of countries that decided to use the instruments of criminal
law has been steadily growing, especially in Europe. Admittedly, the solutions adopted in this respect are not uniform, which also results from the nature of the legal good which is the main object of protection. However, most of them provide for the punishment of such behaviours as production, marketing or trafficking of prohibited substances in sport, which is a direct consequence of the
recognition that the problem of doping in the sport involves organized crime.

The author focuses on issues related to the crime defined in Article 151 of the Criminal Code. Considerations about the sociological perspective on suicide, which allowed to set social determinants of suicide and to define suicide are the author’s starting points. The author also analyses the word “cause” which is the condition of bringing the perpetrator
to criminal liability. According to Article 151 of the Criminal Code is to cause lay violent hands on oneself by the person who is able to recognize the meaning of his act and direct
his behaviour. In the following part the criteria affecting the free will of a person committing suicide such as insanity and age of the aggrieved. It allowed demonstrating some
inconsistencies, which appeared during analysing these criteria and, consequently, also to introduce some relevant regulations, that could dispel any doubts that currently appear in interpretation. These issues are answers to the question posed in the title. Taking this as the basis for concluding whether a person persuading another person to commit suicide or providing help to a suicide incur a penalty based on Article 151 of the Criminal Code, or perhaps it should be considered as the crime of murder (Article 148 of the Criminal Code).

Anxiety among soldiers is a phenomenon that has been occurring more than once in many armies. Sometimes such anxiety turns into something worse, such as a mutiny
or even a coup. There are many examples of such events. These phenomena are most often implied by the unstable political, economic or social situation, such as the Spanish Civil War of 1936-1939, the junta of black colonels in Greece, or the revolts of unpaid soldiers in the Polish-Lithuanian Commonwealth. There are certain structures aimed at maintaining discipline in the army within Polish criminal law. These structures include, among others the ultimate military need, the purpose of which is to enforce obedience to an order who resists an order of a commander by the letter of the applicable law. This is a good solution because the commanding officer can have a real influence on the soldier and, consequently, can maintain military discipline. If, however, there was a mutiny in the army it would not
be possible to convict the guilty soldiers for this act, as this crime is not specified by the provisions of the Penal Code. In connection with the above, the author tries to show that it is necessary to adhere to the crime of rebellion in the criminal code to influence the consciousness of Polish soldiers. They should be aware that they would be punished with an appropriate sanction in the event of committing this act.

This author deals with the issues of the use of private expertise (the so-called private opinion) by advocates and legal advisers during criminal proceedings. Such possibility results from the wording of Article 393§3 of the Code of Criminal Procedure, which states that any private documents create outside criminal proceedings, in particular statements, publications, letters, and notes may be read out during the trial. This provision does not directly indicate the possibility of using private expertise, but such possibility is a consequence of the fact that private opinions are private documents. The said provision was introduced by the Act of 27 September 2013 amending the Act - Code of Criminal Procedure and certain other acts, which entered into force on July 1, 2015, and therefore the possibility of using private expertise in criminal proceedings has been functioning for over four years. This period allows doing empirical research on the use of expertise by advocates and legal advisers. The author presents the general attitude of advocates and legal advisers to the introduced possibility of using private expertise during criminal proceedings, as well as its conditions and obstacles.

The aim of the article is to expose the legal relationship between the participation of the accused person who is deprived of liberty in the appeal hearing and the evidence solutions provided by the legislator for the appeal court. The subject matter, which has theoretical and practical dimensions, and is related to the model of appeal proceedings. That model is based on provisions regulating the issue of evidence before the court of the second instance. The author presents changes with regard to evidence at the appeal instance and he relates them to the right of the accused person who is deprived of liberty to apply for bringing him to an appeal hearing.

In January 2021, a questionnaire was carried out among employees of local selfgovernment units in order to identify training needs and the most significant problems concerning the application of the provisions of the Access to Public Information Act. The questionnaire shows that the most frequent problem in the application of the provisions of the said Act is the abuse of the right to public information. Abuse of the right to information is such an activity of the entitled entity, which is exercising the right to information in accordance with the established legal order, but is not included in the objectives of this right adopted by the legislator. Despite repeated postulates of the doctrine, the Act on Access to Public Information has not been amended to take into account the existence of the institution of abuse of the right. At present, the Supreme Administrative Court does not question its existence, however, for the sake of clarity of the law it would be worthwhile to include appropriate provisions safeguarding the work of bodies obliged to provide public information against requests that are clearly intended only to persecute or obstruct their normal activities.

The author describes and analyzes current Polish regulations on e-delivery and submitting e-applications and those regulations will become effective due to the amendment of the General Administrative Procedure of 5 October 2021. In the scope of the article, the author undertakes the difficult task of assessing current Polish CAP regulations on e-delivery and the process of the submission of the electronic application. The author also assesses new legal regulations related to the above-mentioned issues, and he attempts to answer the question of whether the introduction of new solutions, in the field of e-delivery
and submission of e-applications, to the Polish legal system is a step in the right direction.

The model of the energy market is gradually changing, which involves a necessity to amend the law in force. Legal regulations must, on the one hand, take into account the ongoing technical, economic and social changes. On the other hand, they may have a significant impact on the direction and pace of these changes. The subject of this article is an analysis of legal provisions that introduce a new type of entity onto the energy market, which is a citizen energy community. Various legal and organisational forms of such an entity are acceptable, including the form of a cooperative.

The term „citizens energy community” appeared in EU regulations at the final stage of legislative work on Directive (EU) 2019/944 of the European Parliament and of the Council on common rules for the internal market for electricity and amending Directive 2012/27/EU. The institution in question was originally referred to as a „local energy community” when the draft the Directive on power engineering and other draft legal acts were being developed in late 2016 and early 2017, together forming the so-called „Winter Package”.

Both „citizen” and „local” are terms that require further explanation. Is participation in an energy community allowed only for citizens of the European Union? Has the term „local” been defined in legal regulations? What is the territorial range of an energy community? What purposes are served by creating such communities and what role are they expected to play in the energy system?

To answer the above questions, it is necessary to analyse not only the provisions of Directive 2019/944, but also other provisions of EU energy law. Matters are not made easier by the complexity of EU regulations. It should be noted that the provisions of Directive (EU) 2018/2001 of the European Parliament and of the Council on the promotion of the use of energy from renewable sources introduce a different type of an energy community (albeit similar to a citizen energy community), namely a renewable energy community.

The latest draft amendment to Polish energy law is an example of the implementation of EU regulations into the national legal order. It provides for the introduction of regulations modelled on the provisions of Directive 2019/944. Do the proposed provisions fully correspond to EU regulations?

The traditional model of the disputed (confrontational) application of antimonopoly law in cases of competition-restricting practices currently coexists with the negotiation-conciliation (nonconfrontational) model. To be more precise, the antimonopoly authority can transform the first one into the latter.

Since competition protection authorities, both in Poland and the EU, have been granted a wide scope of freedom as to the choice of priorities and methods of applying protection instruments, it should be argued that the negotiation and conciliation model will become more and more important. The preferred, at the EU and national level, expansion of the number of detected violations, quick
termination of proceedings, and the achievement of the main goal of ceasing violations and removing their effects, encourage antitrust authorities to resort to public-private dialogue, which is an element of cooperation via a body-entrepreneur. All this is done to restore competitive imbalances and ensure consumer welfare.

Within the Polish legal order, in the field of competition-restricting practices (anti-competitive agreements and abuse of a dominant position), the negotiating model for the application of antitrust law includes binding decisions, the procedure of voluntary submission to punishment and, which is disputed, the leniency procedure. In addition, the so-called „soft speeches” of the President of UOKiK to entrepreneurs have gained significance in recent years.

A quantitative analysis of the jurisprudence of the Polish antitrust authority, with the necessary references to the practice of the EC, will allow for the verification of the thesis and to indicate the „costs and benefits” of the negotiated and conciliatory application of the antitrust law in cases of competition restricting practices with possible suggestions for the future.

The loss of the student status within the Polish higher education system is associated with the occurrence of certain legally significant facts, which include, inter alia, issuing by an authorized university body a decision to remove from the list of students. The Act of 20 July 2018 - Law on Higher Education and Science names enumerative grounds for relegating a student from a university. Thus, during administrative proceedings, the university authorities are obliged to interpret independently
the not always obvious material and legal premises affecting the future of the student. Therefore, the author aims to present the issues related to the interpretation
and application of the statutory grounds for removing from the list of students, detailing the division into obligatory and optional grounds for dismissal from the university.

The author aim is to understand the legal act performed under the guise of another act in the light of Article 199a § 2 of the Tax Ordinance. He emphasises the relationship between the said concept and ostensibility in the sense of private law. He expresses doubts as to the applicability of Article 199a § 2 of the Tax Ordinance to the resolutions of company bodies. Interpretation problems have been illustrated by two judgments of administrative courts – the judgment of the Supreme Administrative Court of 3 February 2021, which deserves approval in principle, and
the highly doubtful judgment of the Regional Administrative Court in Warsaw of 22 April 2021, along with the preceding judgments of the Supreme Administrative
Court of 25 July 2019 (II FSKK 232/19) and 15 December 2020 (II FSK 1694/20), which contradict the findings presented in literature and earlier case-law.

The author’s purpose is to analyze the relationship between the public value of integrity and the constitutional obligation to pay taxes. The research problem boils down to the answer to the question of whether the constitutional obligation to pay taxes strengthens the integrity value.

Considering the nature of the research and its purpose, two main research methods were used. First, the author used dogmatic and legal methods to determine the content of Article 84 of the Polish Constitution, its analysis and interpretation. Second, taking into consideration the fact that verification of the research hypothesis required methods different from strict legal analysis, the author used sociological qualitative research in the form of interviews.

The author has enabled to positively partially verify the article hypothesis and state that the expressed in Article 84 of the Polish Constitution obligation strengthens such values as honesty, conscience, and morality, which are within the integrity value. However, compliance of integrity involves the need to take care of the quality of tax law.

The Court of Justice of the European Union, in its judgment of 25th February 2021 in case C-604/19, acknowledged that the conversion of the right of property’s perpetual usufruct into a right of property’s full ownership provided for in national law in return for payment of a fee constitutes a supply of goods, and a local self-government unit being
a collector of that fee acts as a taxpayer and not as a public authority. The author tries to answer the question of whether, in the light of the above decision, it is permissible for the conversion fee to be subject to value-added tax in a situation where the perpetual usufruct of the property was established before the 1st May 2004.