Wyniki wyszukiwania - Biblioteka Nauki

1

Opinia na temat przedstawionego przez Prezydenta RP projektu ustawy o Trybunale Konstytucyjnym

100%

Chmaj M.

|

nr 1(41)

190-204

EN

The author finds the provisions of the bill to be precisely formulated and consistent with the constitutional principle of proper legislation (Article 2 of the Constitution). According to him, the proposed changes are desirable, they eliminate existing loopholes and introduce a solution contributing to the improvement in proceedings before the Tribunal. By contrast, he believes that the proposed provisions relating to the system and procedures for hearing cases by the Tribunal raise doubts.

2

Opinia prawna na temat projektu ustawy o Trybunale Konstytucyjnym

100%

Czarny P.

|

nr 1(41)

177-189

EN

The author points out that the bill provides a comprehensive framework for the organization of, and proceedings before, the Constitutional Tribunal without missing any essential elements. He is in favour of the provisions aimed at eliminating loopholes and inconsistencies in the existing Constitutional Tribunal Act and the introduction of new regulations designed to prevent undue delay in proceedings before the Tribunal. However, in his view, some provisions of the bill raise doubts relating to their essence and legislative‑technique requirements and, therefore need to be rework in the course of parliamentary work on the bill. The author propose the wording of provisions complementing and clarifying the text of the bill.

3

Projekt stanowiska Sejmu w sprawie o sygn. akt P 44/15

100%

Pawłowski S.

|

nr 1(49)

256-282

EN

The legislature enjoys a wide discretion as to regulation of the conditions for granting of sickness allowance after termination of the entitlement for sickness insurance. Such allowance is of a unique nature, is not covered by the contribution and is paid in respect of events not covered by insurance risk and to an uninsured person. The author of the draft position points out the principle of equality and reciprocity is observed. The one who bears the greater burden, can expect greater support from the fund, for example an allowance is paid for each entitlement. The application of this principle cannot be extended to the period following the termination of the relation of sickness insurance. The allowance paid in such instance is not backed by the collected contribution and has exceptional nature. Therefore, the examined provision should be recognized as compatible with the principle of equality before the law. In the author view, the article in question is compatible with the Constitution.

4

Koszty postępowania przed Trybunałem Konstytucyjnym

100%

Warciński M.

|

nr 4(72)

42-56

EN

The author points out that the issue of costs of proceedings before the Constitutional Tribunal has not been elaborated in the literature so far, whereas it is of practical importance, although not as great as the institution of civil trial costs in particular. However, this issue is an interesting subject of legal interpretation and inference. The paper discusses the functions of costs of proceedings before the Constitutional Tribunal, their scope and the rules for their adjudication. In conclusion, it was found that the regulation of this institution is defective, as it contains significant gaps that need to be filled by way of appropriate or analogous application of several other normative acts. This led the author to postulate de lege ferenda that this state of affairs should be changed.

5

Ocena zgodności z Konstytucją przepisów ustawy o obrocie instrumentami finansowymi

100%

Spyra M.

|

nr 2(66)

217-254

EN

In the assessment of the legitimacy of the constitutional complaint, it was stated that the questioned provision of the Financial Instruments Trading Act to the extent that it allows to consider as a prohibited act placing an order or concluding transactions in accordance with the special regulations established for stock exchange trading by a company operating on a regulated market that affect the volume of trading in company shares and may affect the company’s position in indices published by the company, but do not mislead or may not mislead other investors as to the price of shares, is consistent with the Constitution.

6

Ocena zgodności z Konstytucją przepisów ustawy – Kodeks cywilny (problem retroaktywności uchwał)

100%

Lis-Staranowicz D.

|

nr 1(65)

239-253

EN

The subject of the assessment contained in the position of the Sejm before the Constitutional Tribunal are provisions of the Civil Code in relation to the doubts of a regional court, whether the application for a court enforcement clause for a bank enforcement title does not interrupt the limitation period for a claim covered by that title against a transferee who is not a bank. In the author’s opinion, the interpretation of the questioned provisions in the process of applying the law, and in particular the limitation of a retroactive effect of interpretation, is vested in courts and it is difficult to conclude that the assessment of the constitutionality of the questioned provisions by the Constitutional Tribunal determined the resolution of the case pending before the court that submitted the question of law. In view of the doubts regarding the admissibility of the question of law, the Sejm should request that the proceedings be discontinued.

7

Zgodność z Konstytucją przepisu ustawy o Straży Granicznej w zakresie określenia czasu wolnego lub wynagrodzenia w zamian za czas służby przekraczający normy służby

100%

Przywora B.

|

nr 4(68)

279-291

EN

In the position of the Sejm a statement was proposed that the appealed provision of the Act on the Border Guard, in the area in which it stipulates that an officer entitled to a functional allowance is not entitled to time off from service in exchange for service overtime exceeding service standards, is compliant with the indicated provision of the European Social Charter drawn up in Turin on 18th October 18 1961. The Applicant emphasized that the legislator did not comply with the provisions of the ESC, for he deprived Border Guard officers serving in independent or managerial positions of the right to free time or remuneration for the time of service performed in overtime. In the justification of the position, it was stated that Article 4 of the ESC does not determine the extent of additional remuneration that employees are entitled to for overtime work. Therefore the national legislator has been left with far-reaching freedom to define the rules of remuneration of employees.

8

Cofnięcie wniosku i jego skutki prawne w postępowaniu przed Trybunałem Konstytucyjnym

100%

Królikowski J.

|

2012

|

nr 4(111)

101-118

EN

Granting the applicant the possibility to apply for a withdrawal of the application must be assessed positively. Some doubts are, however, raised by the lack of grounds upon which the Constitutional Tribunal could assess whether it is legitimate to discontinue proceedings due to the withdrawal of the application in a particular case. Tribunal’s case law unaniously holds that withdrawal of the application before the hearing is binding on the Tribunal. There is, however, a discrepancy regarding the effects of withdrawal of the application made after the start of the hearing. Adoption by the Tribunal of the principle of the binding nature of the application after the start of the hearing could be justified if supported by the aim of the proceedings before the Tribunal. One cannot assume that the aim of the procedings is to implement the principle of disposition (allowing the Tribunal to discontinue the proceedings). This principle governing the proceedings before the Court, must be interpreted considering the main aim of the proceedings before the Tribunal, i.e. to ensure hierarchical compliance of the legal system. There is no doubt that the proceedings before the Court is directed first to the attainment of this public-interest objective. Given the current judicial practice based on the background of existing legislation, it is appropriate to amend legislation concerning the withdrawal of the application before the Tribunal following the example of the provisions regulating other proceedings under Polish law, consisting primarily in providing the Tribunal with a mechanism for an assessment of legitimacy of the withdrawal of the application. The introduction of such provisions would help better realize the basic function of the Tribunal, which is the review of constitutionality, and thus would contribute to achieve, to a greater extent, hierarchical compatibility within the legal system. It would also effectively prevent any attempts at instrumental treatment of the Constitutional Tribunal by certain entities having the right to make applications.

9

Zgodność z Konstytucją RP niektórych przepisów ustawy o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu – wniosek Prezydenta RP do TK (sygn. akt K 1/18)

100%

Bucińska J.

Zeszyty Prawnicze BAS

|

2018

|

nr 2(58)

262-301

EN

The author of the draft position claims that the rules in question – regarding the phrases “Ukrainian nationalists” and “Eastern Małopolska” conform to the Constitution. Article 55a para. 1, which set outs sanctions of fine or imprisonment for up to 3 years, imposed to anyone who attributing, publicly and contrary to facts, the responsibility or coresponsibility to the Polish Nation or to the Polish State for Nazi crimes committed by the Third German Reich or for other offenses constituting crimes against peace, humanity or war crimes, or in a different way grossly reduces the responsibility of the actual perpetrators of these crimes, conforms to the the Constitution. Moreover, the above-mentioned sanctions do not violate the principle of proportionality.

10

Ocena zgodności z Konstytucją art. 173 § 1 ustawy – Prawo o postępowaniu przed sądami administracyjnymi w zakresie braku możliwości zaskarżenia skargą kasacyjną postanowienia Naczelnego Sądu Administracyjnego odrzucającego skargę o wznowienie postępowania przed Naczelnym Sądem Administracyjnym

100%

Herbet A.

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nr 3(59)

241-266

EN

The constitutional complaint concerns regulations of the Law on Proceedings Before Administrative Courts. The complainant moves for a statement that Article 173 para 1 of that act does not provide a possibility to lodge a cassation appeal against the Supreme Administrative Court’s order on rejection of the claim on for reopening of the proceedings before the SAC. After analysis, it has been assessed that the contested provision conforms to the Constitution of the Republic of Poland. Moreover, there is no real and direct interest of the complaining company which would be protected by the constitutional complaint directed at stating the unconstitutionality of the indicated provision.

11

Ekspertyza prawna w sprawie wniesionego przez Prezydenta RP projektu ustawy o Trybunale Konstytucyjnym

100%

Dudek D.

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nr 1(41)

82-106

EN

The author is in favour the presidential bill on the Constitutional Tribunal. In his view, in the course of legislative work it is worth addressing the question of raising the status of the Constitutional Tribunal within the system of government to the constitutional rank. He examines in detail those provisions of the bill which – in his opinion – raise serious doubts and require improvement. The author also points out to minor faults in the field of legislation techniques.

12

Opinia prawna w sprawie ustawy z 22 grudnia 2015 r. o zmianie ustawy o Trybunale Konstytucyjnym

100%

Karczmarek A.

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nr 1(49)

83-99

EN

Provisions of the Act does not infringe the principle of independence of judges of the Constitutional Tribunal and the individual’s right to have his/her case heard without undue delay. Adoption of the solution according to which the Tribunal decides, as a rule, by a full bench is also consistent with the Constitution of the Republic of Poland. However, the finding that there have indeed been grounds for immediate entry into force of the amendment of the Constitutional Tribunal Act of 22 December 2015., is not obvious. Therefore, the arguments justifying the departure from the introduction of the period of vacatio legis should be clarified in the explanatory memorandum of the Act. In the author’s view, a provision requiring a qualified (2/3) majority for the Tribunal to adjudicate can be considered not to comply with Article 190 para. 5 of the Constitution. The legislature should consider, with a view to the future law, clarifying the content of the concept of particularly glaring cases used in Article 31a para. 1 of the Act. Worth considering is also the change in the order in which motions are heard, as referred to in Article 80 of the Act.

13

Ocena zgodności z Konstytucją przepisów ustawy – Kodeks postępowania cywilnego w zakresie terminu do wniesienia skargi o wznowienie postępowania

100%

Spyra M.

|

nr 3(63)

263-278

EN

In his position, the Sejm requested the Constitutional Tribunal to state that to the extent, in which provisions of the Code of Civil Procedure provide for a three-month period for filing complaint concerning the resumption of proceedings in case the judgment was based on a counterfeit or falsified document, and to the extent that the failure to meet this deadline results in the rejection of the complaint, conform to the Constitution. In the opinion of the Sejm, an allegation of a disproportionately short deadline is unjustified, as the deadline of three months to perform a specific procedural activity is one of the longest ones provided for in the Polish civil procedure and does not differ from the ones provided for in the civil procedural laws of other European countries. The practice of application by common courts of the provision in question also justifies the position indicating conformity to the Constitution.

14

Projekt stanowiska Sejmu w sprawie o sygn. akt P 2/16

80%

Pawłowski S.

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nr 4(52)

212-244

EN

In the presented project of a position, the author indicates that listed provisions of the act on pensions and allowances from the Fund of Social Insurances are compliant with Article 32 para. 1 of Polish Constitution concerning situation of persons born before the 1st January 1949. The author notes that the differentiating criterion is a presence in one of two separated by a date of birth legal systems of social insurance. The legislator could differentiate legal situation of persons receiving benefits in the system of defined benefit and persons insured, whose pensions shall be paid in a system of defined contribution. In accordance with argumentation “ad maiori ad minus”, if the Constitution allows for a creation of a less favorable legal situation of some insured persons distinguished by their age, a change in favor of insured persons concerning rules of qualifying the time when they did not work, but cared for their children should also be acceptable.

15

Postępowanie uchwałodawcze w Sejmie RP

80%

Jaroszyński T. , Miller W.

|

2012

|

nr 6(113)

9-27

EN

The article deals with the mode by which resolutions are adopted by the Sejm. The authors focus on the procedure for adopting resolutions whose drafts are published in Sejm Papers and, in particular, on the aspects distinguishing it from the procedure for adopting bills. They describe the issues related to introducing draft resolutions, including the formal requirements for draft resolutions, as well as the subsequent stages of the proceedings, indicating the procedural differences and exceptions that occur in relation to the different categories of resolutions. They point out the issues of examining the procedure for making resolutions, and the acceptable scope of modification of a draft resolution in the course of work in the Sejm. These issues are illustrated with numerous examples of parliamentary practice. Reference is also made to other acts adopted by the Sejm in accordance with the procedure provided for resolutions (such as declarations, appeals and statements). In addition, the article describes the rules for publication of the resolutions in the official journal. The issue of discontinuation of work in the Sejm in relation to draft resolutions is also raised and attention drawn to making resolutions aimed at removing inconsistencies in a statute declared to be partly unconstitutional by the Constitutional Tribunal (acting under preventive review). Finally, the authors formulate conclusions on the need for amendments to the rules of procedure taking into account the specific nature of the process of passing resolutions.

16

Projekt stanowiska Sejmu w sprawie o sygn. akt P 12/14

80%

Tomaszewska A.

|

nr 1(45)

246-266

EN

The position of the Sejm of the Republic of Poland concerns Article 207 § 3 second sentence in conjunction with § 7 of the Code of Civil Procedure (CCP), establishing a procedure for consent by order of the president for bringing further writings preparatory to pleading in the course of the case, and Article 207 § 4 CCP which provides the possibility of an oral hearing of the parties in closed session before the first hearing, if the president call upon the parties to submit additional clarification on the issue, in terms of their compliance with Article 45 para. 1 of the Constitution, which establishes the right to a court hearing. In the author’s view, there should be declared compliance of the above provisions of the Act with the Constitution because in the challenged Article 207 § 4 CCP the lawmaker uses the plural to describe the addressee of the norm, so from this provision it follows an obligation to inform about the meeting and the possibility of participation of both parties, as well as entities acting as a party. Moreover, in support of the declaration of compliance of Article 207 § 3 the author presents the fundamental principles of civil process, such as the concentration of the evidence, judicial consideration of the case without undue delay, and the duty of the court and the parties to smoothly and timely completion of the proceedings. Motion has been made for cancellation of the case due to inadmissibility of the judgment on the basis of Art. 39 para. 1 subpara. 1 of the Constitutional Tribunal Act.

17

Projekt stanowiska Sejmu w sprawie o sygn. akt SK 39/14

80%

Miaskowska-Daszkiewicz K.

Zeszyty Prawnicze BAS

|

2015

|

nr 2(46)

234-256

EN

In the proposed draft position the author points to the incompatibility with the Constitution of Article 2 of the Act amending the Act on the State Fire Service in the section containing the phrase “in the accounting period immediately preceding the entry into force of this Act”. In the explanatory memorandum, the author points out that internal differentiation of the officers of the so called uniformed services is acceptable from the perspective of the constitutional principle of equality and is supported inter alia by the specific nature of the service these officers and specificity of the risks they undertake. In the opinion of the author, the legislature should uniformly regulate the legal status of all officers. Moreover, the proceedings in relation to the remaining scope should be discontinued due to the inadmissibility of rendering the judgment.

18

Formulating provisions of an act on its entry into force in connection with the Act on COVID-19

80%

Tkaczyk E.

|

2020

|

tom 3

|

nr 1

53-59

EN

The principle of non-retroactivity is not recognised by doctrine or the Constitutional Tribunal as a mandatory directive. Such a situation occurred in the case of adopting amendments to the Act of 2 March 2020, referred to as “COVID-19”. In these circumstances, a schedule of deviations from the principle of non-retroactivity was identified, and it therefore became necessary to assess the relevance of the retroactive implementation of the norms for each specific case governed by the Act under consideration. In these cases, the legislator was guided by the need to safeguard social and economic freedoms and interests.

19

Opinia prawna na temat przedstawionego przez Prezydenta RP projektu ustawy o Trybunale Konstytucyjnym

80%

Banaszak B.

|

nr 1(41)

65-81

EN

The author claims that the adoption of a new Constitutional Tribunal Bill, which better defines its position in the system of government, does not solve all the problems. He believes that the challenges resulting from Poland’s membership in the EU and the experience of the functioning of the Tribunal require the adoption of the Constitutional Tribunal Bill be dependent on the amendment of the Constitution. Changing the Constitution should be the starting point for the comprehensive regulation of the functioning of the Tribunal by statute. In addition, the author points out those articles of the bill that require clarification, reformulation or raise substantive or legislative doubts.

20

Termin do wytoczenia powództwa o zaprzeczenie ojcostwa

80%

Bucińska J.

Zeszyty Prawnicze BAS

|

2017

|

nr 4(56)

250-270

EN

The author of the draft position of the Sejm notes that the challenged provision, understood in such a way, that deadline for bringing an action for denial of paternity may expire before a child acquires knowledge about his/her biological origin, is inconsistent with the Constitution.