O postępach dekodyfikacji prawa cywilnego w Polsce w 2023 r. - trzy przykłady legislacyjne

Abstrakt

This paper presents three legislative examples illustrating different ways in which the contemporary Polish legislator contributes - in most cases involutarily - to the phenomenon of decodification of civil law. The new Law on Family Foundations confirms a long-established strategy of Polish legislators to regulate different types of legal persons outside the Civil Code. The even younger Law on Pawnshop Loans is an example of a very narrow and particular piece of legislation that creates unproportionally large chaos, introducing exceptions, making the terminology inconsistent, and civil law incoherent. Finally, the Law Amending the Civil Code and the Consumer Rights Law extracts from the Civil Code the entire regulation of consumer sale which, undoubtedly, contains one of the most important and probably the most frequently used set of remedies in the entire civil law. Therefore, this last act decodifies not some particular and marginal legal solutions but the very core of civil law. These examples also prove that contemporary legislators are caught in a tragic conflict. With their way of thinking still based on positivistic dogmas, they try to treat the Civil Code in a traditional way and therefore they are forced to sacrifice some of its desired qualities (completeness and coherence) in a futile attempt to save another one (stability of the regulations). The final conclusion of the paper is that the provided examples confirm the already well-established thesis that decodification is a fact and its progress is inevitable. Nevertheless, since the positivist paradigm of thinking about the codes still dominates, it seems necessary to provide recent and convincing proof that the paradigm is increasingly obsolete.