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EN
The article provides a point of view of the regulation stipulating from the 1th January 2021 that the Constitutional Court of the Slovak Republic does not decide on the conformity of a constitutional law with the constitution. This view is not from the position of the Constitutional Court of the Slovak Republic, as might be expected, but the article presents a view through the exercise of those powers of the National Council of the Slovak Republic that require a constitutional majority. The idea is to point out inflation, relativization and the fallacy of the constitutional majority. This exposes the core of the constitution to a threat against which there must be a protection in place in a democratic and legal state.
EN
The contribution deals with embodying of individual rights and freedoms in the Constitution. It concludes that the legislator bases the individual rights and freedoms on the natural-law doctrine of the interpretation of these rights and freedoms and analyses which of the constitutional provisions refer to it. Further it deals with sources, subjects, content, limitations and protection of these rights. The allegations are supported by legislation, judicature of the Constitutional Court, the European Court of Human Rights and legal literature.
EN
The author aims his attention in the text to the conception of the material core of constitution. He evaluates critically (dis) interpretation of circumstances of beginning of this theory. The first part of the text is dedicated to the misleading belief about the stability role of this theory by its adoption to the constitutional system of Slovak Republic. In the case of the objective theory, there is a critic of the effort of returning iusnaturalism components to the (constitutional) law. The author tries to point at possible danger of its misuse by the antidemocratic movements in the society. The second part of the text concerns with concrete solutions how could be this theory compensated without its main negatives.
EN
The paper deals with the political and social circumstances of the Hungarian constitutional moment in 2011. This time Hungary adopted the new Fundamental Law, which has started the new period in the political life of country. The constitution making did not play the role in the electoral campaign, but the achievement of the constitutional majority by Fidesz-KDNP coalition has guaranteed the possibility for the long time changes. The constitutional majority has interpreted the adoption of Fundamental Law as a beginning of the period after two decades of chaotic transition. The constitution making process was accompanied also with policy of artistic popularization of constitutional text. Director of theatre Imre Kerényi played the crucial role in this process. The idea of the special illustrated book mixing the constitutional text and pictures with historical topics was his idea. The process of popularisation has been criticized by Hungarian opposition and also by former presiden László Sólyom. The paper deals with this topic in the wider context with short comparative perspective.
EN
The article deals with the topic of constitutional conventions. The authors analyse role and function of these specific source of law and ask the question if states with continental law culture should accept their existence. Core of considerations is built up on discussing condition required for their occurrence, i.e. stabilized long term praxis and common conviction of their binding force. The paper particularly reflects possible approaches, which lead to the fulfilment of these conditions.
6
Content available remote Koncepcje ustrojowe niemieckich partii liberalnych w latach 1945—1948
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EN
The beginnings of the liberal movement as a political party in post-war Germany were not easy. The first liberal party organizations were created on the level of each occupation zones as separate political structures. The process of consolidation of these organizations took place gradually. Firstly, it covered the integration of organizations concentrated within each of the zone. The second stage of the very process of consolidation of the German liberal movement was to consist in the unification of the most important party centres from particular occupation zones, and creation of a unified political party. However, the development of the international situation led to the split between liberal activists from the Soviet zone and politicians of liberal parties from western occupation zones in 1948. From that time, the consolidation process of a liberal formation concerned only party organizations from western occupation zones. Its closure was the unity of these organizations and creation of a liberal political party on their basis, which happened in December 1948. The very party was officially called FDP — a Liberal-Democratic Party, under the label of which acted liberal politicians in the British zone. An organizational split of the liberal movement caused a situation in which it did not constitute a whole in terms of the programme either. Before they united particular liberal organizations within the FDP, the very movement encompassed various trends and programme tendencies. It also concerned the systemic issues of post-war Germany. The only document liberal politicians managed to prepare was Wytyczne polityczno-ustro- jowe presented during a constitutional debate in Zone Advisory Council in 1947. The very con- ception, however, was not representative for the whole liberal movement. Apart from general slogans on the need to build a democratic, legal and federal nation, liberal politicians did not manage to work out a coherent and unified system conception of post-war Germany between 1945 and 1948.
EN
The author points to some open problems of constitutional legislation and focuses on novels which are breaking the Constitution in that way that they have no support in the Constitution, further on novels which are infringing the material core of the Constitution and those which disturb compatibility of constitutional order and dominant position of the Constitution. He concludes by de lege constitutione proposals.
EN
The article discusses the main threads of the public debate surrounding independent Kyrgyzstan's first constitution, which was passed on 5th May 1993. The introduction outlines the framework of the constitutional process; the strategies of the main players in the constitutional game are then reconstructed in the next section. The third section presents the issues which provoked the greatest controversy. Section four sets forth the circumstances under which the constitutional compromise was entered into, together with its main component parts. In section five, the reader finds clarification as to why the Basic Law of 1993 was reassessed before it ever came into force. The author analyses the dispute over the constitution through the prism of the game around the distribution of power and its resources within the specific realities of a Kyrgyzstan emerging from the Soviet system. The article takes as its thesis the notion that the form of the first constitution was the outcome of the divergent aspirations of the main political players and of situational conflicts over grounds other than the constitutional substance itself. It was under these circumstances that a Basic Act emerged which went quite some way toward equalising relations between the organs of state authority. As it transpired, the compromise which had been worked out was short-lived. The reason for the multiple revisions of the Basic Act by means of referenda was not so much the result of defects in the legislation as of the president's fight to maintain and strengthen his authority under conditions wrought by a deep crisis of transformation.
EN
Theory of restrictive sovereign immunity substantiated itself as wishful, but still not a complete replacement of its older sibling, being obsolete absolute immunity from both jurisdiction and enforcement of arbitral award. Actually, it is widely known that a right of the party to the international arbitration to properly enforce an arbitral award, rendered in its favour against the state, stays a controversial issue. It may be submitted that the aforementioned situation is a courtesy of a residual application of the theory of absolute sovereign immunity – a pain in the neck of traders with its quite disappointing effect, when considering the contemporary modern business world, that both respects and enjoys the doctrine of restricted immunity, and its division between transactions jure imperii and transactions jure gestionis. In particular, this concept secured access to justice for private actors when trading with states. It may be submitted that both the international commercial and investment arbitration are vivid examples of all the possible doctrinal tensions, exposed by the international law of immunity. The most recent accounts of relevant cases disclose a general shift toward the doctrine of restrictive sovereign immunity and simply put, the restrictive sovereign immunity ought to have a universal scope of applicability across the globe. Except for introducing the issue of the state immunity in international arbitration, this two part long study presents a brief account of the reasons why the doctrine of restrictive immunity should dominate the ground of international commerce. As the story develops, it will make three intertwined observations in this respect.
EN
The Section 55 paragraph 2 of the Constitution of the Slovak Republic stipulates a positive obligation of the State to protect competition. This obligation is imposed on all public authorities, i.e. both the legislator and the bodies applying legal regulations. The public authorities are obliged to provide free access to the market and equality of the rules of conduct of the competitors on the market. When assessing the fulfilment of the legislator´s obligation to ensure equality of the rules of conduct of competitors on the market, the Constitutional Court of the Slovak Republic has developed an interesting case-law on admissibility of the criteria for distinguishing among competitors. Activities without economic substance are fully excluded from the scope of application of Section 55 paragraph 2 of the Constitution. For some activities with economic substance the obligation to protect competition is limited or excluded by other public interest.
EN
Since the structural transformation (1989-1992) authors still mention the same supreme principles, although a new constitution was resolved in 1997. It seems unlikely that coming into force of the constitution - which differs from the preceding constitutional regulations - has not caused at least minimal changes among constitutional rules of law. The paper focuses on considering if a rule stated in the 38th article of the Polish Constitution is a rule of law. The above regulation providing protection of life, introduced to the Polish legal system by the new constitution, has never been similarly analysed. Article 38 is not only a declaration but also has a practical meaning for proclaiming and applying the law. The regulation directs the Polish legal system at human protection. Ultimately, then, article 38 is a significant constitutional rule. According to the doctrine of constitutional law, such rules are defined as constitutional rules of law. The above rule should be reckoned among substantive rules as it is highly abstract and has a key meaning for the human protection provided by the constitution. This leads to the conclusion that article 38 is essential for determining main objects of the state's activities in terms of a life protection. To sum up, it plays an important role in the Polish legal system.
EN
The paper examines the compliance of the regulation of the Minister of Finance of 22 March 2002 on the excise duty, regulation of the Minister of Finance of 23 December 2003 on excise duty and the regulation of the Minister of Finance of 22 April 2004 on the reduction of excise duty with Article 51 (1) and (4) of the Constitution. All of these regulations foresee the possibility to benefit from reduced rates of excise duty on the purchase of heating oils for heating purposes, provided that the seller receives from the buyer, who is a natural person, a statement that the goods are intended for heating purposes. In these statements a number of personal details is required. However, the Article 51 (1) of the Constitution establishes the principle that persons may be required to disclose information about themselves only on the basis of the statute and the Article 51 ( 5) of the Constitution stipulates that the rules and procedures for collection and sharing of information are specified by a statute. Thus, the analysis of the Constitution leads to the conclusion that the provisions of the regulations are inconsistent with the provisions of the Constitution.
EN
The subject matter of the family farm protection can and should be considered on the ground of 1) provisions of the Constitution of the Polish People’s Republic of 1997 and 2) regulations of common legislation. The first part of the article deals with the notions of the legal character of Article 23 of the Constitution, the notion of property in Article 21 whose character is of political directive and Article 64 of the Constitution whose contents are formed by the citizen’s right to property. The provision of the latter article finds its place with no conflict in the network of the Civil Code notions. Constitutional provisions related to property are concise and are formulated on two planes: subject’s right law (Article 64) and object’s law (Articles 23, 20 and 21). They allow to recognise the existence of other types of property, agricultural property among others, which requires marking its limitations and the scope of protection. The relation of the act on the creation of agricultural system to the provision of Article 23 of the Constitution as well as its other regulations is with respect to the question about the shape of property transformations in agriculture in the conditions of market economy in Poland, where the family farm would be under special protection. The answer may be negative since the act does not meet the prerequisites accepted in its preamble. In the second part of the article there was made an attempt to present legal means of the protection of the family farm de lege ferenda postulating 1) the introduction of new contents of Article 23, the correction of Article 21 ( possibly 64) of the Constitution, 2) the change (broadening) the subject of the act on the creation of agricultural system as well as determining explicitly its place in the provisions of agricultural law and joining legislative activities marked in the ‘Green Book’ in the part on agricultural property turnover, 3) considering the introduction of debt recovery provision, and 4) testamentary distribution, with the reservation of the family farm protection.
EN
The author greets a scholar, politician and researcher of major format on the occasion of his eightieth birthday. During his life full of work Kálmán Kulcsár has introduced new disciplines in Hungary, as a science politician he made major efforts for the establishment and consolidation of the institutions of sociology and political science. As a professor he taught the theory of the state and of law, and the sociology of law to generations, as a politician and Minister of Justice he did a great deal for the legal preparation of the change of the political system. As a diplomat he represented our country in Ottawa to the satisfaction of all. Above all he is an extremely prolific researcher who publishes his interesting writings to this day. His interest extends over theoretical questions to the development of individual societies, from Europe to Asia, his profundity is legendary; his clear-cut style makes his writings enjoyable to the reader. We hope that he would surprise his associates, disciples and the Hungarian academic life with several new works to come.
EN
In this article, the author deals with the question of whether, in terms of the Constitution of the Slovak Republic, the Prime Minister should be considered as a member of the Government. The question may seem strange or unnecessary at first glance. However, the need for its thorough and correct analysis has emerged from an opinion presented in the theory, according to which, where the Constitution speaks of members of the Government, it means all its members except for the Prime Minister. This opinion has been repeatedly presented by Radoslav Procházka. This article is a response to the stated opinion, which the author considers legally untenable. Based on the analysis of the constitutional position of the Prime Minister, the author demonstrates in detail why, in Slovakia, the Prime Minister has the status of a member of the Government and is to be considered as such. In the paper, the author also explains some essential connotations of the constitutional position of the Prime Minister.
EN
The first organized political grouping in a postwar Germany was a Communist Party of Ger- many. Its formation was proclaimed in June 1945 in Berlin. It joined a Socio-Democratic Party of Germany from the Soviet occupational zone and formed a Socialist Unity Party of Germany (SED) in April 1946. As early as in its first manifesto document the leaders of the Communist Party of Germany considered the formation of the national system based on a democratic-anti- fascist basis and progressive social reforms as one of the conditions of the restoration of the German country and nation. Such a system should take on the form of a parliamentary republic in which all democratic laws and freedom of a nation would be respected. The very assumptions later became a basis for the project of constitution for a postwar republic of Germany. It was an- nounced by the SED in November 1946 and entitled the Constitution Project of the Democratic Republic of Germany. Skipping a few elements of a clearly ideological provenience, the SED constitution project was deeply “saturated” with the idea of democracy which was to become a foundation of the order of the system of a postwar Germany. The SED project made the idea of democracy a secular religion which the German society was to accept after years of believing in a dogma of a strong country because of an authoritative power. The role of the country was to be measured by means of the strength of a democratic society. It is proved not only by a consist- ently outlined project of the system of the government meeting as a form of the system protecting the rights of the society most efficiently. A far-reaching subjectivisation of the society and its inclusion in a political life through the mechanisms of a direct democracy is in favour of such a hypothesis. The system conception presented in the above project was popular among those po- litical and social forces which were subject to an almost frontal criticism by the SED. Meanwhile its constitutional project was treated as an important reference point in a discussion on a shape and nature of the system of the restoration of the German nation despite being usually inappro- priate for such a nation. Not to mention a formal name, the SED project did not have anything in common with a later constitution of a Democratic Republic of Germany from October 1949. Both documents based on totally different assumptions and expressed different system models.
EN
In this article, the author dedicates his attention to the topic of creative powers of the President of the Slovak Republic. He tries to identify three main factors that have negatively influenced execution of these powers recently. An attention is payed primarily to the rule of maintaining of the proper functioning of constitutional bodies, implementation of direct election of President in the Slovak law system and in the last place, the historical perception of status of head of state. At the end of each section, the author tries to provide possible solutions how to improve prevailing negative state.
Filozofia (Philosophy)
|
2022
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tom 77
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nr 4
233 – 250
EN
The author analyses the difference between a concept and its different conceptions by using the example of the difference between the concept and conceptions of justice in analytic philosophy in the context of constitutional interpretation. The difference between the concept and distinct conceptions of the concept appears within a section of constitutional interpretation theory illustrating the change in the meaning of moral terms that denote constitutional rights and liberties, principles and values. The author argues that the distinction between a concept and its distinct conceptions may generate more controversy than it resolves in constitutional interpretation theory and should therefore be rejected. This distinction, however, points to one significant linguistic phenomenon that clearly deserves attention, and that is polysemy.
EN
The article is a contribution to the heated debate concerning legal restraints of freedom of speech in Polish law. The article describes a major criminal constraint of freedom of speech: defamation crime. The studies of that matter have been made from legal (constitutional) point of view. Firstly, the article contains a description of the Constitutional Tribunal's thesis concerning the accordance of defamation crime (article 212 of the Polish penal code) with freedom of speech and freedom of media (article 14 and 54 of Polish constitution), which was pronounced in the sentence of the Tribunal in October 2006. Secondly, the article contains a polemic with the thesis. The article has been written with the object to describe all aspects of this legal problem. The author tries to find arguments for and against defamation crime in the context of freedom of speech. In the end, the author comes to the conclusion that defamation crime is discordant with freedom of speech and postulates to remove that crime from the Polish penal code.
EN
Despite Prime Minister cAbdalkarīm Qāsim’s refusal to join the United Arab Republic during his reign (1958 – 1963), the pan-Arab dynamic continued to be a persistent feature of Iraqi politics. This could be illustrated by the policies of his successor cAbdassalām cĀrif, who participated in a series of summit talks with the Egyptian president, and in 1964 the two countries prepared plans for the integration of their military and economic policies with the intention of achieving full union in 1966. In order to bring Iraq’s economic structure into alignment with Egypt, cAbdassalām cĀrif nationalized all banks and insurance companies as well as several large manufacturing firms. However, even as he cooperated with Egypt, he had to placate other factions of officers opposed to unification. He was forced to proceed with such caution that by the time of his death in 1966, little real progress had been made toward the full integration of Iraq and Egypt. Arab unity, so ardently desired by powerful leaders in Syria, Egypt and Iraq, remained an elusive dream battered by the crosscurrents of political instability, ethnic discord and personal ambition.
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