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EN
The paper presents the person of Aleksander Moldenhawer, lawyer, reformer of the prison system and a promotor of the concept of caregiving. It discusses his ideas about the prison system at the turn of the 20th century. Aleksander Moldenhawer was an opponent of the harsh treatment of prisoners and of severe penalties, and was decidedly against the death penalty. He advocated giving assistance to released prisoners and reforming the justice system for minors. The paper presents also ideas expressed at that time in other countries (mainly in Germany, Switzerland and France) and the practical solutions applied there.
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Content available remote PARLIAMENTARY ELECTION OF JUNE 1989 (Wybory parlamentarne - czerwiec 1989)
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EN
In 1988, many important events took place in Poland. The waves of strikes rocked the country in the spring and the summer. As a consequence of economic difficulties, without any prospect for recovery, public feeling deteriorated. In the opinion of the then government, negotiations with the still banned 'Solidarity' movement could have improved the situation. In February 1989, the negotiations concerning political and economic reforms of the country, called the “Round-Table Talks”, were initiated between the ruling (i.e. the coalition and government) and the opposition (i.e. the opposition and Solidarity) camps. In result of these talks, the government agreed to relegalize Solidarity trade union and allow the opposition to be represented in parliament. All seats in the newly-created Senate were to be elected democratically, as were 35 percent of the total in the Sejm. The remaining 65% of the seats were reserved for the representatives of the ruling bloc. The election, held in two rounds on 4 and 18 June 1989, brought victory to Solidarity which gained all (161) seats available to non-party candidates and dominated the Senate (winning 99 out of all 100 seats). The government's defeat was the more painful as it failed to win seats for its leading politicians entered in the national list of candidates. The June election, even if only partly free and democratic, marks a turning point in modern Polish history. As a consequence, the existing system of the exercise of power collapsed and was replaced by a new system in which opposition took part. In September, a new government headed by Tadeusz Mazowiecki, the first non-Communist prime minister in the Central and Eastern European countries, was formed. This fact started an inexorable transformation of Polish political, social and economic systems.
3
Content available remote Prawo – nieodłączny towarzysz człowieka
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EN
The article constitutes an original and interesting reflection of an outstanding theoretician of law on law-man relations. The author shows an ambivalent attitude to law as a result of its appreciation, emphasizing at the same time an important role of law in the European civilization. Asking whether law is a good companion for man, Sobański admits that the very question is not purely abstractive as it derives from the observation of the reality. This ambivalence in relation to law is explained as the result of appreciating the very law. The history of law is at the same time the history of controversies around the notion of law and its nature. Though, the fact that law exists is not controversial itself. Law is understood differently and the way of conveying law (in an oral or written manner) is also different. The author underlines that law is a tool of justice, namely a means of executing justice. He refers to the representatives of the Roman law, and stops at the understanding of the statement “I have a right”, analyses Ulianov’s definition of justice (law can be a tool of justice if the will of justice exists). Next, he points to the pressure touching the whole law practice: law takes into account readiness for perceiving posteriori whereas it makes sense only when it is possible to execute this perception. He pays attention to the causes of discrepancies between law and life (lack of agree- ment when it comes to the notion of justice). His conclusion is that law is a good companion of man when he/she wants to live a peaceful life.
EN
The contribution is aimed to the genesis of the legislation on the property right and tenure in former Czechoslovakia after the year 1950 and contains their analysis from the view of three consecutive laws: Civil Code from the year 1950, Civil Code from the year 1964, and amendment of the Civil Code from the year 1982. The work on both civil codes were under strong ideological pressure, therefore the said classic institutes of civil law were subjected to restrictive changes. First in 1950 and then in 1964 the imposition of restrictions on the private ownership continued, and on the contrary so-called socialist ownership in its two forms - state and cooperative ownership - was strongly preferred. The personal ownership and the right of use close to the property right were introduced. The Civil Code from the year 1950 maintained the institute of tenure in the disputable form, while the Civil Code from the year 1964 did not regulate the tenure at all and excluded from the legislation the positive prescription as a way of acquisition of the property right. Only the amendment from the year 1982 returned the tenure and the positive prescription in the legislation. The author criticized the state, in which the institutes of property right and tenure found themselves in the years 1950-1983.
EN
The Act of 29 December 1989 on the Amendment of the Constitution of the Polish People's Republic put an end to the constitutional system based on the Marxist-Leninist doctrine and has laid the legal foundations for the formation of a democratic system of government in Poland. According to the original intention of its initiators, the amendment to the basic law was very narrowly drawn and would limit itself to establishing constitutional guarantees for the functioning of political pluralism, which became a political fact as a result of the Round-table discussions, a result of the election of 4 June and the appointment of the Cabinet of Tadeusz Mazowiecki. Fundamental changes in the system would have to be made by a new constitution (to be drafted and adopted in a near future). However, in the course of work on the draft amendment, it turned out that the basic principles of the system of government formulated in the then existing constitution are incompatible with the requirements of the ongoing process of political and economic transformation. Therefore, the need was recognised to repeal the introduction and two initial chapters. The provision stating that 'the Republic of Poland is a democratic state ruled by law and implementing the principles of social justice' was of a key importance for the systemic changes. The application of this provision in the constitutional system (as Article 1), has meant not only imposing the duty on public authorities to observe the law, but also provided the basis for determining material and formal requirements to be met by the existing law. The notion of a democratic state ruled by law, as a constitutional category, set the direction for change in legislation and created an area for judicial practice of the Constitutional Tribunal which, especially prior to the adoption of the Constitution of 1997, played important role in defining the principles of the Polish legal system. The second area of change concerning the amendment of the Constitution was national economy. A new economic system was based, above all, on the elimination of the privileged status of state ownership and the constitutional guarantee of ownership, on the basis of equality of treatment, and the guarantee of freedom of economic activity. As concerns public awareness building, the changes in the Polish national symbols, effected by the constitutional amendment, were of great significance. The official name of the state was restored to be the Republic of Poland and the Polish white eagle, as the state emblem, regained its crown to symbolise the state sovereignty. These changes reflected the collapse of the Soviet-dominated system of rule imposed on Poland in 1944.
EN
The article deals with Poland's constitutional practice in the period of the Second Republic and, particularly, the constitutionality of legislative acts, including statutes, decrees and regulations of the President of the Republic having the force of statute. Firstly, the then existing three systems of examination of conformity of statutes with the constitution are discussed, including: 1) the US system (judicial review); 2) the system based on establishing a special court, in accordance with Kelsen's concepts of authority; 3) the system of Parliament's dominance which excludes the judicial review. The latter, which prevailed at the time in Europe, was based on the model of government of the Third French Republic. The Polish constitutional practice also applied it, particularly in the Constitution of 17 March 1921 and the Constitutional Act of 23 April 1935. Therefore, Polish constitutional law prohibited judicial examination of conformity of legislative acts with the basic law. The jurisprudence of courts, including that of the Supreme Court and the Supreme Administrative Court, was not consistent, mostly in respect of the examination of constitutionality of the regulations issued by the President of the Republic. In this context, it should be pointed out the regulations concerning the currency reform and those which followed the 1926 Amendment of the Constitution of 1921. As concerns the latter, the courts conclusively supported the prohibition of judicial review of constitutionality of those regulations..
EN
The article provides an analysis of the systemic transformations in Poland in the summer and autumn of 1989 r. The main impulse behind these transformations were the Round-table agreements between the representatives of the former Communist regime and independent social movement organizations comprised mostly of the members of the 'Solidarity' trade union.. They have resulted in an amendment of the Constitution of 7 April 1989 as well as the adoption of many other statutes. The arrangements of the Round-table discussions and the amendments of the Constitution were both a product of political compromise. These changes included, in particular, the establishment of the office of President of the Republic and the second chamber of parliament. The article contains a detailed analysis of powers of the two new bodies, as well as new powers of already existing bodies. However, the above-mentioned compromise was rejected by the People in the parliamentary election of 4 and 18 June 1989. In the opinion of the author, the result of that election, meant in fact the restoration of the principle of sovereignty of the Nation (although absent from the text of the Constitution), and the said principle had to lead, in practice, to an interpretation incompatible with the intentions behind the above-mentioned political compromise.
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EN
The basis of the consensus buy-sell agreement was the bona fides of both parties. When making an agreement, both a buyer and seller were required to be careful because any manifes- tations of inadequacy and dishonesty grew a property liability of both parties. Client’s careless behavior could consist in a conscious action to the detriment of the partner (dolus), as well as negligence (neglegentia). Judges have referred to the term bona fides since the second century BC when evaluating the situation in which making an agreement was connected with dishonesty of one of the parties, and a conscious harm done to the second client, in order to justify the overruling of the client’s obli- gation, to signify such carefulness that reflects the scope of agreement liability typical in a given case. Each of such behaviours could be defined as incongruent with bona fides. Such adjudications were to serve the protection against damage resulting from agreement making, providing honesty of the turnover via increasing the scope of liability and excluding the advantage of the one making an agreement conscious of doing harm to the client. The process of charging the seller with liability irrespective of his/her good or bad intentions if provided the buyer with defective goods the existence of which the buyer was not aware of has been traced since Justinian’s times. Taking into account the role of bona fides when evaluating a buying-selling agreement and principles concerning seller liability one can make a statement that bona fides played a Basic role in a Roman emptio — venditio agrement.
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