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1
Content available The Statute and the Judge
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EN
The paper is an English translation of Prąd nowy w prawoznawstwie. Ustawa a sędzia by Antoni Peretiatkowicz, published originally in Pol-ish in 1916. The text is published as a part of a jubilee edition of the “Adam Mickiewicz University Law Review. 100th Anniversary of the Faculty of Law and Administration” devoted to the achievements of the late Professors of the Faculty of Law and Administration of the Adam Mickiewicz University, Poznań.
EN
The main topic discussed in the article is the question of the dignity of the post of judge of the common courts of law. The authoress, on the basis of the law and the jurisdiction of the disciplinary court, in that regard, sought to determine the scope of the concept of “dignity of the post of judge”. She tried to answer the question, what specific requirements should meet the judge, and how he should behave, or how he should not behave, to make his duties in dignified way? The answer was constructed by identifying the normative responsibilities, basing on the Constitution of Poland, content of the oath of judges, articles 82. and 82., points “a” and “b” of the act of the Law of the Common Court and “The Rules of Professional Ethics of Judges”. Then, under the jurisdiction of the disciplinary court of the Supreme Court was compiled the list of behaviors which affront to the dignity the post of judge.
Studia Ełckie
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2020
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tom 22
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nr 2
153-168
EN
The judicial power of the Church as any authority in the Church always tries to build good of the believers. It expresses a principle derived from the Code of Canon Law: Salus animarum suprema lex, which means that the most important task for the Church is the salvation of man. An expression of this principle are marriage processes which can declare the nullity of the marriage. The judge has a very important place in the Church’s justice system. It is the duty of the judge to look after justice and peace in the community of Godʼs people. Justice is a virtue which the judge ought to demand also from himself. Therefore, he should permanently improve moral precepts in himself. He ought to develop good manners and everything which can influence the realization of the principle of justice. Ecclesiastical courts confirm that for many litigating parties in marriage cases, proceedings concerning cases of nullity of marriage, have a practical purpose, which is to regulate life in a new marriage. But we cannot forget that the primary purpose of marriage process is to know the truth about marriage. Therefore, judicial power, which judges or judicial colleges possess, must be exercised in the manner prescribed by law, and it is important to judge fills all the steps in the canonical process of declaration of nullity of marriage carefully and with due observance of the law.
EN
After 2002, courts in China have increasingly been introducing certain judicial reforms, one of them being the improvement of trial language. In these courts, the judges append their comments to the case at the end of their verdicts in writing. The Chinese judge's attached discourses resemble the obiter dicta of judges in Western courts, but there are differences. Since the new element was introduced in some courts in 1998, some doubts have been voiced in strong opposition to the new practice, giving rise to a heated academic debate on the issue. This paper investigates and analyses Chinese judge's attached discourse in terms of discourse analysis categories, such as their usage of illocutionary and perlocutionary acts.
EN
The Act on the National Council of the Judiciary establishes two collective subjects entitled to submit a candidature for its member, i.e. a group of at least (a) 2,000 Polish citizens, (b) 25 active judges. Those two subjects are equal. An effective withdrawal of support by a judge would result in equally treating the citizens’ support, which would cause considerable implementation difficulties. Admissibility of support withdrawal is inconsistent with the principle of fi nality of citizens’ support, dominating in the Polish legal system; moreover, it lacks substantive justifi cation — the supported candidate could not have changed radically in the period of a few days. The finality of support emphasizes the signifi cance of responsible decision-making in this scope, which ensures no interruption in the further stages of proceedings. Hence, it shall be concluded that the act on the National Council of the Judiciary contains a legal loophole — it may be filled by applying the systemic interpretation, which leads to the opinion on the finality of submitting the candidature of a judge for a member of the National Council of the Judiciary
EN
The judicial power in Albania is considered today as the greatest sinner in the Albanian society. But is it the only sinner? Is it treated with respect and dignity by the Albanian society? In the opinion of the writer of this article, the politicians of this country are also accomplices in this situation of the judiciary. These latter ones, when they need to purify their reputation, declare that they were pronounced not guilty by the courts. When a non-guilty decision is given to their political opponent, they hurry to curse the courts as corrupt, etc. In our opinion, the judiciary is not treated by the state equally when compared to the employees of the other sectors of the state. The Judiciary in Albanian, apart from being attacked en bloc by the politics and the media, is also paid badly and humiliated. This situation is of no service to the Albanian society and it should be changed rapidly.
EN
The Act on the National Council of the Judiciary establishes two collective subjects entitled to submit a candidature for its member, i.e. a group of at least (a) 2,000 Polish citizens, (b) 25 active judges. Those two subjects are equal. An effective withdrawal of support by a judge would result in equally treating the citizens’ support, which would cause considerable implementation diffi culties. Admissibility of support withdrawal is inconsistent with the principle of fi nality of citizens’ support, dominating in the Polish legal system; moreover, it lacks substantive justifi cation — the supported candidate could not have changed radically in the period of a few days. The finality of support emphasizes the signifi cance of responsible decision-making in this scope, which ensures no interruption in the further stages of proceedings. Hence, it shall be concluded that the act on the National Council of the Judiciary contains a legal loophole — it may be filled by applying the systemic interpretation, which leads to the opinion on the finality of submitting the candidature of a judge for a member of the National Council of the Judiciary.
8
Content available Trust and Trustworthiness as Judicial Virtues
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EN
This article considers the meaning of trust for judicial communication. The central tenet of this analysis is that trust is best conceptualized as a judicial virtue and that it can be most fully explained with aretaic language. This claim is elaborated through, first, making distinctions between trust and reliance, as well as between trust and trustworthiness. Second, exploring the determinants of trustworthiness leads the author to argue for a virtue account of judicial trustworthiness. Third, the article discusses whether and how trust as a particular attitude or propensity may be perceived as a judicial virtue. The argument concludes by considering the relation between trust in judges and trust in justice institutions, such as courts of law.
EN
The aim of the article is to present the role of lay judges in the judicial system, taking into account the advantages and disadvantages of this institution as well as specific principles resulting from the principle of a democratic state of law. The article also assesses the introduction of the lay judge institution to the Supreme Court and presents de lege ferenda postulates regarding the improvement of the functioning of this institution as a form of social factor participation in court proceedings. It was also considered to what extent judges – including lay judges – have an influence on making the law. The conducted research is mainly based on Michał Kaczmarczyk’s monograph on this issue, which makes the text partly of a polemic nature.
10
Content available remote Přísedící a zásada zákonného soudce v českém právním řádu
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EN
The main goal of this paper is to find out, whether there is a demand for a principle of a statutory lay-judge next to the statutory judge principle, and whether is this principle fulfilled enough or not in the Czech legal order. Firstly, the principle of a statutory judge is briefly described. Then, the issue of lay-judges selection is examined, and the insufficient mechanisms in work-schedules of some courts are shown. By these schedules it is possible to choose the lay-judges randomly and even to change them. Then, some of court decisions dealing with the issue of statutory lay-judge principles are analysed. Particularly, these are decision of the Supreme Court from May 21, 2009, file No. 21 Cdo 1542/2008, focusing on discharging of a lay-judge because of bias. Further, the decisions of the Constitutional Court from Aug 3, 2016 file No. II. ÚS 2430/15 and from Sep 6, 2016, file No. II. ÚS 3383/14, where the selection of lay-judges and creation of work-schedules were discussed. These decisions are criticised. It is also offered a summarizing comparative analysis of the statutory lay-judge principle in Austria and Germany. In conclusion, there is stated, that the principle of a statutory lay-judge is not sufficiently fulfilled in the Czech legal order, where change of court’s decision making is recommended, as well as compliance with principles for work-schedules creation.
CS
Hlavním cílem dané práce je objasnit, zda vedle zásady zákonného soudce existuje také požadavek na zákonného přísedícího, a dále jestli je tento princip v českém právním řádu případně dostatečně naplňován. Nejprve je stručně rozebírána zásada zákonného soudce. Následně se řeší otázka přiřazování přísedících k projednávání jednotlivých věcí, kdy je poukazováno na nedostatečné mechanismy v rozvrzích práce některých soudů. Na jejich základě je totiž možné nejen přísedící nahodile vybírat, ale někdy také měnit. Dále se práce věnuje analýze judikaturních rozhodnutí k otázkám zákonného přísedícího. Konkrétně se jedná o rozsudek Nejvyššího soudu ze dne 21. 5. 2009, sp. zn. 21 Cdo 1542/2008, jenž se týká otázky vyřazení přísedících pro podjatost. Dále jde o nálezy Ústavního soudu ze dne 3. 8. 2016, sp. zn. II. ÚS 2430/15 a ze dne 6. 9. 2016, sp. zn. II. ÚS 3383/14, jež se zabývají způsobem tvorby rozvrhů práce a výběru přísedících. Všechna tato rozhodnutí jsou podrobena kritice. Je nabídnuto taktéž přehledové komparativní srovnání zajištění zásady zákonného přísedícího v Rakousku a Německu. V závěru je konstatováno, že zásada zákonného přísedícího v českém právním řádu dostatečně naplňována není, přičemž je doporučena změna rozhodovací praxe soudů a dodržování zásad pro sestavování rozvrhů práce.
11
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EN
It is the duty of the judge to care for justice and peace in the community of God’s people. Justice is a virtue which the judge ought to demand also from himself. Therefore, he should permanently improve moral precepts in himself. He ought to develop good manners and everything which can influence the realization of the principle of justice. The article “The principle of justice in the service of the judge of ecclesiastical court” consists of three parts. The first part deals in general with the notion of justice itself. In the second part, some statements of the Popes, John Paul II and Benedict XVI, on justice in ecclesiastical courts are presented. The notion of justice as an essential attribute of the judge of ecclesiastical court is discussed in the third part of the article.
12
Content available remote Rada do spraw Administracji Sądów w Estonii
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EN
The Council for Administration of Courts in Estonia is not a typical national judicial authority that actively participates in the appointment of judges and which safeguards their independence and independence of the courts. It is the body that has been appointed to co administer the courts and control (limit) the competences of the Minister of Justice. This status of the Council results from the omission of this body in the provisions of the Constitution of the Republic of Estonia. The position of the Council was shaped at the level of laws 10 years after the Estonian Constitution was adopted. Protection of courts is implemented as an additional function. The main task of the Council is to improve the management of courts.
EN
Freedom of speech and, stemming from it, freedom of the press, are un-challenged grounds of every democratic society. The author relying on the limits of the allowed journalist criticism, normatively outlined and earned by the judicature and doctrine, considers the issue of applying the limits to judges. It is also indicated that protecting judges from unjustified criticism is necessary and the range of this protection should be wider than the range specified by the legislator in relation to politics and people holding social functions.
EN
The article is an attempt to analytically portray the scene of the trial of three Christians, taking place on the Capitol Hill, in front of the temple of Jupiter in Norwid’s poem Quidam. This monumental fresco, divided into many smaller sequences, clearly distinguishes itself from intimate shots prevalent in the text, narrowed to small spaces, small groups of people. The analysis focuses here primarily on the reconstruction of the trial from the perspective of Roman law. Ultimately, this leads to the recognition of historical legal awareness of Norwid, who, upon constructing one of the fundamental visions of his work, drew on the knowledge and literature of the mid-19th-century concerning the role and significance of Roman law.
EN
The article presents the status of an assessor in the court of law in accordance with applicable legal provisions. For the needs of the study, the most important competences of the assessor were chosen in relation to the principle of judicial independence and independence of the courts. Additionally, the most important stages of shaping the institution of the assessor from 1928 were also approximated.
PL
W artykule przedstawiono status asesora sądowego w sądownictwie powszechnym na mocy obowiązujących przepisów prawnych. Na potrzeby opracowania wybrane zostały najważniejsze uprawnienia asesora w odniesieniu do zasady niezawisłości sędziowskiej i niezależności sądów. Przybliżone zostały także najważniejsze etapy kształtowania się instytucji asesora sądowego od 1928 roku.
16
Content available Sumienie sędziego
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EN
 The subject of this paper is a philosophical-legal analysis of the concept of ‘judicial conscience’, recently a popular topic in public discourse. The author proposes a broad understanding of the term, and distinguishes four different sources of this conscience: i) a judge’s worldview, which most often has a religious basis; ii) professionalism; iii) axiological conflicts internal to the legal system; and, iv) awareness of belonging to the judiciary as an independent power (the third estate). The author illustrates his analysis of judicial conscience through the example of US case-law from the turn of the eighteenth and nineteenth centuries, when courts adjudicated on cases involving fugitive slaves. According to the author, it is possible, on this basis, to determine some paradigmatic attitudes available to judges facing axiological conflict. In the conclusion, the author applies his reflections to the present Polish constitutional crisis.
PL
Przedmiotem artykułu jest filozoficzno-prawna analiza pojęcia „sumienie sędziego”, które pojawia się ostatnio dosyć często w dyskursie publicznym. Autor proponuje jego szerokie rozumienie i wyróżnia cztery różne źródła sędziowskiego sumienia: 1) światopogląd, najczęściej o podłożu religijnym; 2) profesjonalizm; 3) konflikty aksjologiczne wewnątrz systemu prawa; 4) świadomość przynależności do odrębnej, trzeciej władzy. Autor pokazuje to na przykładzie orzecznictwa sądów amerykańskich w sprawach niewolniczych z przełomu 18. i 19. wieku. Jego zdaniem można na tej podstawie dokonać pewnych paradygmatycznych ustaleń w zakresie możliwych postaw sędziów stojących w obliczu konfliktu aksjologicznego. W zakończeniu autor przenosi swoje rozważania na grunt obecnego polskiego kryzysu konstytucyjnego.
17
Content available Legal education in the Czech Republic
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EN
The article deals with the system of legal education in the Czech Republic. It briefly describes four public law schools and their history. It also analyzes basic study programmes which are provided by these law schools. The third part of the article describes the main legal professions and their prerequisites.
18
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EN
Szefliński Waldemar, Sądy, sędziowie i sykofanci w „Acharnejczykach” Arystofanesa (Courts, judges, and sycophants in Aristophanes’ Acharnians).The article is a voice in the discussion on the reception of Aristophanic comedies. Through a detailed analysis of all the court-related aspects of the Acharnians (lexicon pertaining to legal issues, court accessories, individuals involved in court proceedings as well as court-related onymy), it is argued that the comedy, traditionally viewed as an anti-war text, can also be included into the body of Aristophanes’ comedies that satirize various aspect of the Athenian juridical reality of the 5th century BCE.
EN
In Poland, the level of social confidence in a profession results mainly from: qualifications necessary for the pursuit of that procession; respect for the values to which the profession is particularly related, which it is to serve and to protect; the social usefulness of that profession; the degree of responsibility involved in the tasks performed; the arduousness of work; the level of material profits derived; the extent of  power involved in the profession; tradition; social respect for the institutions in which persons pursuing that profession are employed; those persons’ professional, social and moral attitudes. From a comparative analysis of many research findings it follows that the legal professions rank relatively low in the hierarchy of prestige. Certain changes have been taking place in this respect during the  las 50 years; yet the legal profession still enjoys a rather low level of social acceptance which is rather astonishing: a lawyer  has all the traits valued by Polish society. In the period of Polish People’s Republic, the relatively low prestige of the legal profession resulted from the then valid doctrine, state policy, the system of  administration of justice, and the attitudes and conduct of judges, public prosecutors, and barristers, In Polish People’s Republic, the law was not an independent value. It was to support the “historical process” and serve not justice itself but rather “historical justice”. It became the tool of social engineering which was to create a new society. Statutory law was transformed into a comprehensively_ oriented instrument of political action ‒ a utilitarian means of government. The legislation was to implement a political, social and economic program imposed from above. There was a dramatic drop in the importance of law as the exponent of values. This was due to a loosening of its natural relation to the sense of morality and justice. A number of decrees and statutes were passed, usually according to the valid procedure but lacking inner justness; they were called law but were essentially utterly lawless in many cases. For this reason, the social sense of justness seldom followed from statutory law; instead, it existed outside of the  law so to say. The law-citizen relation included pathological elements. Most of the social experiences of contacts with law and its representatives were negative. The law seldom defended the citizen, especially against arbitrary  decisions of the authorities; it usually punished him. The regulatory functions of law yielded precedence to its repressive functions. The conception of unity of state pover ruled out all independence of the judiciary in Polish  People’s Republic. The courts were subordinated to the executive authority not only in terms of administration but also to a large extent in their jurisdiction. This resulted from the very procedure of appointing and removing judges; the wide discretion to remove judges; the organization of supervision over judicial decisions; the terms of office of the Supreme Court; the practice of guiding principles for the judiciary, issued by the Supreme Court and binding for all courts. Appointment of desired benches and selection of cases, changes of the benches during proceedings, requests for court files during proceedings, summons of judges to one Ministry or another, individual and organized pressure – all of these were by no means exceptional situations in the courts of Polish People’s Republic. Judicial independence ultimately depends on the judge himself. A part of judges compromised on the norms of professional ethics and on common morality. The actual numer of “obedient” judges is difficult to estimate today. Even if they were few, that was certainly enough for the people’s confidence in courts to be shaken. It would be wrong to believe that the above processes, phenomena and facts remained unnoticed by the people. Society were fully aware of the functions assigned to the law and tasks of the institutions of administration of justice. The opinion knew many examples of public prosecutors, judges and barristers departing from the basic norms of the code of professional ethics. The authorities themselves saw to it, publishing resolutions of the Supreme Court and providing extensive coverage of many trials. Thus social attitudes towards the law, institutions of administration of justice and their representatives eroded continuously. Society had no confidence in the effectiveness of recourse to the law in vindication of one’s claims; they fully realized whose interests the public prosecutor’s oflices and courts actually guarded. The prosecutors and judges were perceived chiefly as functionaries of state. Paradoxically, in a totalitarian system where violations of individual rights were a common everyday practice, the lawyer hardly helped the citizens. The social usefulness of the lawyers’ professional roles grew smaller, and so did their prestige. In coming years the prestige of the legal professions will no doubt go up. This will be a result of: a general consolidation of the role of law in the life of state and society; development of a new law-citizen relation; an increased regulatory function of the law; financial promotion of the legal professions; and improved social image of institutions of administration of justice. There is much to indicate that social regard for the legal professions will eventually reach the Western level. The proces of the Polish hierarchy of prestige of individual professions becoming “European” will inevitably result in its losing its former “proletarian” nature; this will be expressed in a drop in social regard for workers. Already going down today is the pristige of miners, and also of teachers. From 1987 till 1993, the proportion of respondents who declared the greatest regard for miners and teachers dropped by 14 and 4 points respectively. Thus the distance between a judge and a miner dropped by 26, and that between a judge and a teacher – by 16 points. The social image of judges and institutions of administration of justice is shaped by the Poles’ twofold experience: the still fresh memory of “the past” and the not yet really known “present day”. The past meant obedient judges; courts as an extension of the arm of power; sentences clashing with the sense of justice etc. The present day means rampant corruption; frustration: inner dysfunction of the system; lack of skill in resolving matters which the people see as self-evident. The public opinion have not yet fully developed a view on judges and the institutions of administration of justice. A half of respondents believe that courts do good service to society, one-fifth think the opposite, and another one-fifth have no standpoint on the matter. Thus actually two parallel images of courts operate in the social consciousness. Groups which perceive the reality through glasses of the past, so to say, seek yesterday in today’s courts. The future-oriented groups, instead, tend to define those institutions in the categories of the still distant tomorrow. For this reason, even a relatively not too controversial decision taken by the judicial authority brings about an avalanche of the gravest accusations, that of attempting to restore the past included. The psychological conflict is hardly to the court’s advantage: an image still lingers in the social subconscious which prevents society from honestly appraising their work. Also political circumstances are not too favorable for institutions of administration of justice. The active involvement of representatives of the law in resolution of disputes which the opinion define as political makes them party to the conflict in the eyes of society. Past experiences have shown how convenient a tool the court can be in political struggle. Also the Government’s activity bears on the social image of administration of justice. For one year now, the most vehemently criticized area of the Government’s work is its policy of “crime control”. It has been called ineffective by a half of society. An average citizen is convinced that the police, prosecutors, and courts are equally responsible for this situation. The condition of courts with which a large portion of society have contacts is hardly helpful in the building of those institutions’ prestige: dilapidated buildings in desperate need of repair; old worn out furniture; small, underqualified and underpaid and thus frustrated office staff. Added to this should be excessive bureaucracy, obscure procedures, distant time limits, high court fees, excessive fees charged by barristers. The courts have already started regaining social trust but the process is bound to be a slow one. Practically each and every slip of the judicial authority, eagerly pointed out by the media, may well reverse the emerging favorable trend in the attitude of public opinion. Social attitudes towards the courts are incomplete and based largely on emotions which is what makes them unstable. The emerging trend can be consolidated by e.g. closer contacts of the judicial community with society, established chiefly through the media. Yet the new image of Polish courts depends first and foremost on the success of the process of building of state ruled by law.
EN
In the Republic of Poland, military courts exercise judicial power and their judges are independent and subject only to the Constitution of Poland and legal acts. The judge of a military court is obliged to serve their country faithfully, uphold the law, perform entrusted duties conscientiously, decide impartially on the basis of legal regulations and be guided by the principles of dignity and integrity. Apart from technical competences, the judge should possess the appropriate traits of the character allowing for the dignified representation in the office. One of the responsibilities (being independent from the others) that is imposed on any judge of a military court is disciplinary liability. The prerequisite for such liability is committing an offense or a disciplinary misdemeanour. That is why, the disciplinary tort includes, among other things, the breach of judicial duties, the breach of dignity of the office, the violation of military discipline, and the breach of the principles of military honour and dignity. This may even result in discharging from the office along depriving the judge of their office rank.
PL
Sądy wojskowe sprawują w Rzeczypospolitej Polskiej wymiar sprawiedliwości, a sędziowie w sprawowaniu swojego urzędu są niezawiśli i podlegają tylko Konstytucji RP oraz ustawom. Sędzia sądu wojskowego został zobowiązany, aby służyć wiernie państwu, stać na straży prawa, a powierzone obowiązki wypełniać sumiennie, orzekać zgodnie z przepisami prawa, bezstronnie, zaś w postępowaniu kierować się zasadami godności i uczciwości. Obok stosownej wiedzy, niezbędnej z punktu widzenia zajmowanego urzędu, sędzia powinien posiadać również odpowiednie cechy charakteru, pozwalające na sprawowanie tego urzędu godnie. Jedną z odpowiedzialności, niezależną od innych, jaką ponosi sędzia sądu wojskowego, jest odpowiedzialność dyscyplinarna. Przesłanką takiej odpowiedzialności jest popełnienie wykroczenia bądź przewinienia dyscyplinarnego. W związku z tym za delikt dyscyplinarny należy uznać m.in.  naruszenie obowiązków sędziego, uchybienie powadze zajmowanego urzędu, naruszenie dyscypliny wojskowej, naruszenie zasad honoru i godności żołnierskiej. Jego popełnienie może skutkować nawet złożeniem sędziego sądu wojskowego z urzędu wraz z pozbawieniem ukaranego stopnia oficerskiego.
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