Forum Prawnicze is a law journal that has been published since 2010. It was created to enrich and diversify public debate on fundamental matters concerning our country and the rule of law. The bimonthly journal is to be an open forum for all representatives of legal doctrine and legal practice who want to take up issues important for Poland. It serves to address challenges which faces Polish society and our legal order, as well as it takes on Poland’s place in the European and internationa community. We hope to stimulate the debate of lawyers from Central Europe, in particular from the countries of Visegrad Group. We want to reflect together on how to carve legal solutions following the fundamental values of the Western legal culture, rooted in Roman law, Greek philosophical realism and the Christian tradition. We are concerned about the respect for each person and her or his dignity, the principles of solidarity, subsidiarity and the common good. Our contribution to the legal doctrine will be to publish papers based on the innovative methods of legal reflections.
Gloss to the Judgment of the Court of Appeal in Szczecin of May 25, 2023 (II AKa 6/23)
The thesis of the commented judgment of the Court of Appeal in Szczecin of May 25, 2023 (II AKa 6/23) refers to criminal liability for a crime committed by the perpetrator while intoxicated. The gloss comments on the fiction on which the construction provided for in Article 31 § 3 of the Penal Code was based and to which the Court of Appeal in Szczecin refers in the voted judgment. The study expresses approval of the position relating to the general assumptions on which liability for a crime committed in a state of intoxication is based. The key issue was also the awareness of the person getting into a state of intoxication, as well as his or her condition at the time of the act, compared by the Court of Appeal in Szczecin with that of a fully conscious person.
culpability on the thresholds of a prohibited act
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The Phenomenon of Sharenting as a Source of Reflection on the Scope of Parental Authority and the Need to Protect the Image of the Child
The article analyses legal aspects of the phenomenon of sharenting - any publication of photographs of minors by their parents on social media. In the age of technological development, sharenting becomes a serious problem that threaten children and their privacy. In addition to pointing out the origins of the concept itself and its scale, the study assesses the current legislation, as against the backdrop of the phenomenon indicated, the autonomy of parents in raising their child clashes with the need to protect the child's privacy. Although the provisions regulating sharenting are scattered across many pieces of legislation, they provide a fairly solid basis for the protection of a child's image. France is proposed as an example of a country that has introduced specific regulations concerning the publication of children's images in social media.
Could French Law Provide a Model for Regulation of the Enforcement of Security Rights in Digital Assets?
The article characterises forms of security interest that may have digital assets as their object under French law, i.e. pledge, financial pledge and security fiduciary. It then categorises the methods of realisation of security interests into those based on the sale of goods and those based on the seizure of goods by the creditor, and analyses their advantages and disadvantages in relation to digital assets. It also addresses the question of how the specificity of digital assets require consideration of the will and cooperation of the parties vis-a-vis traditional security rights. The systematisation of French law on securities is complemented by the right of retention, the discussion of which was intended to answer the question of what relevance the actual authority and control over the digital asset has for the effective realisation of the security right.
The Subject of Administrative Supervision over the Judiciary - the Proposal of Reinterpretation of the Institution
The article focuses on the subject scope of the institution of administrative supervision in the judiciary. This is an institution that aims to increase the efficiency of the administration of justice. Its assessment must take into account not only statutory regulations, but also constitutional regulations, in particular the right to a court. The aim of the article is to evaluate existing regulations, taking into account the statements presented in case law and legal doctrine. In this context, proposals are presented for reinterpreting the institution of administrative supervision. It must take into account the principles of separation of powers and the principle of judicial independence.
The Phenomenon of So-Called Killer Acquisitions under Competition Law - in Search of the Essence of the Phenomenon
The phenomenon of so-called killer acquisitions, as a subject of interest in competition law, is mired in considerable terminological and conceptual confusion. The purpose of this article is to clarify the concept of a killer acquisition, as well as examine to what extent it corresponds to reality. The method is a case study, conceived as a kind of contribution to further research on competition law implications of the phenomenon of killer acquisitions, which are presented in a separate study. As the case of the failed Visa/Plaid acquisition seems to convince, the concept of a killer acquisition is not just an abstract construct belonging to the theory of competition law and economics. As it turns out, it can be - at least in some circumstances - a useful tool in antitrust proceedings, especially in cases where traditional antitrust tools prove insufficient.
Legal Aspects of the Use of Artificial Intelligence in Sustainable Maritime Shipping
Artificial intelligence (AI) begins to have a significant impact on the maritime industry - from ship design and construction to the automation of ship guidance and autonomous units. On the one hand, the integration of AI into the shipping industry brings many benefits, such as increased operational efficiency, reduced human error, improved safety or reduced CO2 emissions into the atmosphere. On the other hand, the development of autonomous shipping raises concerns such as cyber security and liability for accidents and damage caused by autonomous vessels. A comprehensive legal framework is neededfor ensuring the sustainable development of the application of artificial intelligence in shipping. Creating the framework requires extensive international cooperation. Legal solutions should take into account the unique challenges of vessels using AI as well as provide clear guidelines for their safe and responsible operation in international waters.
artificial intelligence in maritime shipping
Horse-Drawn Carriages Going to Morskie Oko and the Legal Protection of Animals - Some Thoughts on the Crime of Animal Abuse
The impetus for the study was the recording of the accident of a horse pulling a sled on the route to Morskie Oko, which in early May 2024 stirred public opinion and prompted a debate on the welfare of animals working in tourism. The article affirms that the use of horse-drawn carriages to transport tourists complies with animal protection laws, provided that all regulatory and statutory requirements for the welfare of horses are strictly observed. Violations of these regulations, such as overloading horses, beating them, forcing sick or old animals to work, and exposing them to adverse weather conditions, may constitute the crime of animal abuse. These findings provide a comprehensive understanding of the legal and criminal law aspects of using horses in mountain tourism, ensuring that the audience is well-informed and knowledgeable about the topic.
Professor Fryderyk Zoll Senior (1824-1917)
Teaching Roman law in the first half of the 19th century was fraught with numerous difficulties: the lecturers lacked sufficient preparation, there were frequent changes in the academic staff, and the university was undergoing Germanization. In these conditions, Professor Fryderyk Zoll senior took over the leadership of the Chair of Roman Law, a position he held for the next 44 years. During this period of teaching, publishing, and involvement in matters concerning the Jagiellonian University, he restored the high academic standard of the Roman law lectures. In his scholarly work, he specialized in Roman private law, particularly in the areas of property law, inheritance law, and the law of obligations. He also conducted source-based research. His textbook Pandekta continues to be a source of inspiration today.
Pasquale Stanislao Mancini: Legal and Political Views in the Context of Late 19th Century Events
Pasquale Stanislao Mancini, an esteemed Italian jurist, significantly impacted both the legal and political landscapes of the 19th century. The article examines Mancini's life, highlighting his early interest in law and democracy, fueled by his formative years coinciding with a tumultuous period of Italian history. It follows his journey as he navigates political upheaval in Naples, ultimately leading to his exile in Turin, where he becomes a prominent legal scholar. The paper further explores Mancini's key role in shaping international law, particularly his concept of nationality. Furthermore, the article sheds light on Mancini's later political career, including his time as Minister of Foreign Affairs and his controversial stance on colonial policy, which, despite criticism, he believed that it could be implemented responsibly and ethically. Finally, the text emphasizes the enduring legacy of Mancini's contributions to legal thought and practice, exemplified by his role in founding the Institut de Droit International, an organization later awarded the Nobel Peace Prize.
Legal Basis of Banks' Investment Activity
In addition to conducting their activity in the traditional deposit and credit markets, banks play a significant role in the capital market. Investment banking, in its broadest sense, boils down to banks performing functions that are critical to the infrastructure of trading in financial instruments; from providing new products to the market, through advising and brokering the placement of securities, to safekeeping financial instruments. The most basic investment activity, however, is the allocation activity, which consists in allocating financial surpluses into assets, or in other words, executing transactions. Banks generally performs such activities in four models: (i) for their own account, (ii) in limited form through their treasury departments (iii) in full form through brokerage branch, and (iv) through subsidiaries. The article analyzes what extent of regulation characterizes each of the models presented, and the relationship between the legal basis for performing these activities and the catalogue of banking activities. For this reason, the article interprets the provisions of the Banking Law and the Act on Trading in Financial Instruments, as well as other related regulations, with a particular focus on the changes introduced by the Act on Ensuring the Development of the Financial Market.
Between Judicial Proceedings and Dialogue - Alternative Approaches to Resolving Administrative Disputes under Council of Europe Standards
The article discusses alternative methods of resolving administrative disputes in the context of Recommendation No. R (2001)9 of the Committee of Ministers of the Council of Europe. It explores various approaches such as mediation, conciliation, arbitration, negotiated settlements, and internal review of administrative acts, emphasizing their role in preventing and resolving conflicts between public administration and private entities. The article outlines potential benefits, such as reducing the burden on courts, enhancing public participation, and increasing administrative efficiency. Using Poland as a case study, the author examines the implementation of ADR methods in light of existing legal regulations, such as the Administrative Procedure Code. The article highlights the limited use of administrative mediation and the need to promote it.
Law and Benevolence. Can Character Be Mandated?
Benevolence is considered a moral virtue, with its meaning rooted in the desire for the well-being of others. While benevolence may seem disconnected from the realm of law at first glance, it is nonetheless regarded as a noble ideal. It would be a misconception to perceive the law as devoid of virtues, although there is a notable distinction between concepts such as justice and benevolence. The article demonstrates that legal systems incorporate benevolence either directly or indirectly. This is evidenced by the Polish provisions concerning the professional duties of officials, as well as codes of ethical practice governing the activities of physicians and nurses. The central question posed in the article is whether the character of a person can be mandated by legal provisions. Implicit in this question is the assumption that benevolence is a character trait.
Legal Status of a Person Performing Invisible Work
The term invisible work is a symbolic one as it describes work that does not generate income (unpaid work) and remains strongly related to the life situation of a given person, but at the same time the effects of this work remain as visible as possible. This concept is sociologically defined but has no legal definition. Invisible work is a social phenomenon, and since it is not an individual phenomenon, but one that concerns the whole (collective), the State should be obliged to act. Meanwhile, this work is not included in GDP calculations, despite generating three times more profit for the global economy than the technology industry. The state and legal systems do not recognize this type of work, as it is considered a voluntary part of consumption and thus falls completely outside legal structures. It is assumed that household chores are a woman's natural responsibilities, and while they remain extremely valuable, women tend to be encouraged to do unpaid work. Therefore, we should first try to legally define this phenomenon and then answer the question why such work is not adequately protected under the law. Can a person who performs invisible work therefore be called an employee, even though the person performs unpaid work and lacks the characteristic of subordination? And if the person performs caregiving duties maybe they should at least have insured status?
The Temporary Nature of Reinstating of an Employee to Work - Transformations
The temporary reinstatement of an employee has multiple functions, including, above all the protection of the permanence of the employment relationship, the protection of the employee, who is considered to be the weaker party to a contract. The issues of the optional or obligatory character of the jurisdiction of the labour court are also covered by the conducted analyses. The numerous amendments to legal provisions in this area in a short period of time warrant a question about the direction of evaluation of law in this area or the rationality of the enacted laws.
Rebuttal of the Presumption that the Assets of a Third Party Constituting the Benefit Derived from a Crime Belong to the Perpetrator of the Crime
The analysis focuses on the institution of rebuttal of the presumption according to which the assets which constitute the benefit derived from committing a crime, transferred to a third party, in fact or under any legal title, belongs to the perpetrator of the crime. The above presumption is rebutted if it is proven that, considering the circumstances in which the property or rights were acquired, it could not be presumed that the assets even indirectly, were derived from a criminal act. The author of the article argues that the presumption may be rebutted both in a criminal trial and a civil trial brought pursuant to Article 293(7) of the Code of Criminal Procedure. In the first case, the forfeiture of assets in the possession of a third party will not be ordered. However, the effects of upholding a civil action depend on the moment when the final judgment is issued. If the civil court's judgment precedes the criminal court's one, a forfeiture order is excluded. In other cases, a civil court judgment will prevent the enforcement of a forfeiture order.
presumption under Article 45(3) of the Criminal Code
The Application of Artificial Intelligence-Based Decision-Assisting Tools to the Mediation Process - an Analysis of Risk and Opportunities
The article analyzes risks and opportunities that relate to applying decisionassisting tools that are based on artificial intelligence (AI) technology to the mediation process. While discussing this topic, the author suggests how to mitigate the analysed risks or optimise benefits. A brief elaboration on workable definitions of AI and the decision-assisting tool is also provided, as well as some predictions as to the future of the applicability of new technologies in mediation. Remarks are also made about whether mediation is fit to change and able to embrace new technologies.
The Influence of Valtazar Bogišić on the Process of Japanese Civil Law Codification
The article provides a chronological account of Valtazar Bogisic's impact on the development of civil law codification in Japan. It identifies the key sources for the study in order to delve into the influence of Bogidic's 1888 General Property Code for the Principality of Montenegro on the Japanese civil codification process, divided into distinct chronological periods. The author examines the concept of legal transplants and discusses the role of aristocratic circles and cultural diplomacy in disseminating legal ideas and influences.
New Agreement on the Law of the Sea: Implementation of the Principle of Common Heritage of Humankind?
The notion of common heritage of humankind is still an important issue in the theory of international law. A few international agreements establish areas which are not part of the territory of any state and which should be used for the benefit of all nations. But conflicting interests of main powers lead to lack of general provisions on the common heritage of humankind and lack of universal recognition of this notion. The article concerns an international agreement: the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction, which presents a new, interesting approach to the problem of the common heritage of humankind, as it does not cover any particular area, but biological material and information about it.
United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction
The Spurious Precedent of High Trees (1947): Excessive Judicial Law-Making in English Law
The article, after presenting the underpinnings of the doctrine of precedent (section 1), and acknowledging the law-making role of courts in England and Wales (section 2), focuses on the High Trees case decided in 1947. Section 3 presents its facts, section 4 outlines the reasoning that led to the judgment, while section 5 discusses the outcome of this ruling, which invited recognition of the so-called High Trees principle, which is the doctrine of promissory estoppel. While this case is the starting point for cases of promissory estoppel in modern law, it is also an illustration of how excessive judicial law-making can go beyond reasonable limits.
Inability to Bear Arbitration Costs as a Basis for Court's Refusal to Enforce Arbitration Agreement. Commentary on the Supreme Court Decision of 19 January 2024, case II CSKP 897/22
The paper analyses the groundbreaking decision issued by the Polish Supreme Court on 19 January 2024, case II CSKP 897/22, addressing the interplay between the enforceability of arbitration agreements and a party's financial inability to bear arbitration costs. The decision underscores the paramount importance of the right of access to justice, prioritizing it over contractual autonomy and the sanctity of agreements when arbitration becomes financially inaccessible. By invoking the principle of proportionality, the Court balanced the defendant's legitimate expectations of arbitration as the exclusive dispute resolution forum with the plaintiff's fundamental right to legal remedies, ultimately affirming that arbitration agreements must remain practically viable to be enforceable. While the judgment aligns with European judicial trends, such as those reflected in the ECHR and the EU Charter, the author argues it could have demanded more rigorous proof of plaintiffs' efforts to secure alternative funding, such as third-party financing.
incapability of performance of the arbitration clause
New Prospects for Wealth Management in Poland? General Characteristics of the Family Foundation under the Act of 26 January 2023
Family foundation is a new legal institution, introduced into Polish law by the Act of 26 January 2023, intended to be a substitute for private or enterprise (industrial) foundations known in a vast majority of developed countries. The purpose of the article is to outline the concept and general characteristics of the Polish Family foundation as a new instrument fo the succession planning, wealth management and asset protection, introduce basic rules on its establishing and organisation and identify certain legislative deficiencies and failures, both in terms of the method of regulation and detailed solutions.
Adoption and the European Convention on Human Rights Law - Mapping Problems an Challenges
This article explores the interplay between adoption and the European Convention on Human Rights, analyzing the evolving standards established by the European Court of Human Rights. While the right to adopt is not explicitly guaranteed under the Convention, the Court has developed a growing body of case law addressing adoption-related issues through the lens of Article 8 (right to private and family life). The study critically examines the ECtHR's approach to the margin of appreciation doctrine and the subsidiarity principle. The authors argue that while the ECHR provides an effective framework for adoption-related rights, the ECtHR must ensure consistency in its jurisprudence to maintain its legitimacy and influence in shaping contemporary European societies.
A New Life for Actio Popularis in International Law? The Prevention and Punishment of Genocide as an Interest of "the International Community as a Whole" before the International Court of Justice
In the Barcelona Traction case, the International Court of Justice (ICJ) made an 'essential distinction' between the obligations of States towards 'the international community as a whole' and their other obligations. The ICJ then included the protection of peoples against genocide among the former. The disputes currently pending before the Court under 1948 Convention on the Prevention and Punishment of the Crime of Genocide seem to confirm that preventing, supressing and punishing genocide is the real community interest of all States. In particular cases brought by States not directly affected by the alleged violation of the prohibition of genocide, in particular, The Gambia v. Myanmar case, raise the question of the place and role of actio popularis in the judicial protection community interests in the international legal order.
Scientific Conference "Codification of the Law of Obligations in Poland Between the Wars. Model and Continuation in Contemporary Polish, Lithuanian and Ukrainian Law"
Scientific Conference "Codification of the Law of Obligations in Poland between the Wars. Model and Continuation in Contemporary Polish, Lithuanian and Ukrainian Law"
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General Principles of Administrative Proceedings in the Context of a Case Resulting from Opposition to a Reverse and Remand Decision. Commentary on Judgment of the Supreme Administrative Court of 15 July 2021, III OSK 5112/21
The commented judgment was issued in the case of an opposition to a reverse and remand decision issued by the appeal body. The appellant contested the reversal of the first-instance authority's decision, which reversal was justified by the said authority's failure to conduct the entire evidence proceedings. The judgment should be assessed as correct. Firstly, the scope of examination of the case arising from a opposition to a reverse and remand decision is narrow and covers only the examination of the grounds for the reversal of the decision by the appellate authority. Secondly, the principle of two-instance administrative proceedings takes precedence over the principle of speed of administrative proceedings. Therefore, the taking of evidence before the appellate authority may only be supplementary (which is why this authority was not able to conduct proceedings instead of the first-instance authority).
Analysis of the Legitimacy of the View of the Tort Liability of the Subsidizing Entity for Granting the Education Subsidy at an Underestimated Amount
Doubts have been raised in case law as to the proper basis for beneficiaries' claims resulting from subsidizing entities failing to grant and pay educational subsidies, or providing and paying them in an amount lower than legally due. For many years, subsidized entities were granted a claim for performance in kind, but in recent years it was determined that this claim has a compensatory nature. In principle, this has led to establishment of a line of case law on the application of the provisions on contractual liability by analogy. Recently, however, in the Supreme Court's case law, a view has been expressed on the application of Article 417(1) of the Civil Code. This view is correct. First, the prerequisites for tort liability of the subsidizing entity are fulfilled. Second, the prerequisites of liability for damage caused in the exercise of public authority are fulfilled. Third, the prerequisites for liability for legislative or judicial unlawfulness are not fulfilled.
The Legal Transplant Theory as a Paradigm of Comparative Law
While Watson was not the first to delve into the transfers of law across legal systems' boundaries, his seminal contribution marked the beginning of a sophisticated research stream, reaching the status of a comparative law paradigm. The paper advocates for the wider adoption of the concept of legal transplants by scholars, lawmakers and practitioners as a valuable intellectual framework. To substantiate the claim that the transplant theory is indeed a paradigm of comparative law, the author undertakes its reconstruction based on six key components, providing a concise overview of the central tenets of the legal transplant scholarship. The sheer volume of this scholarship shows that what Watson projected back in 1974 in the subtitle of his book has indeed come true. This paper also argues for building connections between legal transplants and related research streams, including cultural diffusion, diffusion of innovations and policy transfer.
Principles of Law-Making and the Adoption of Amendments to Criminal Codifications in 2020-2022
The purpose of the article is to present selected issues concerning the principles that should be observed when creating universally binding acts, with particular emphasis on distinct procedural elements related to the enactment of amend- ments to codifications. In what follows, the author describes the cases of viola- tions that occurred during the procedure of work on bills to amend the codes, evaluates these violations, and indicates proposals for legislative changes in the procedure of working on bills amending the codifications that should be adopted by the legislator.
Extraordinary Committee for amendments in codifications
Some Remarks on the Purpose of the 2019/1937 Whistleblowing Directive and Its Balanced Character
The author focusses on the purpose of the EU directive on whistleblowers, which purpose is related to the creation of internal channels for reporting violations of law. He concludes that the obligation to create internal whistle- blowing channels is associated with the organization of compliance systems in various types of organizations, which corresponds to the current concepts of economic development of the European Union. Based on the assumption that the promotion of whistleblowing behaviours is dangerous for economic relations which are based on the specialization and extensive cooperation of people, the author also addresses the problem of balancing values and inter- ests in the character of a legal regulation. He suggests that the directive does not give grounds for a fair balance of various interests and values.
internal channels for reporting violations of law
Reform of the Causality Principle in French Law
The 2016 reform eliminated the term cause from the French Civil Code. According to authors of the reform, it was intended to make the law simpler and more at- tractive, yet the functions of cause were to be retained. Concepts such as motive, aim, contrepartie convenue or contenu are even more ambiguous and obscure than the removed term. The aim of the article is to analyse the newly introduced regulations, including previous attempts to reform the French Civil Code and former regulation of the French Civil Code. As a result, the conducted research indicates that the reform did not eliminate the term cause from French civil law, because the content of new terms makes reference to the concept of cause still necessary. The manner in which the reform was carried out raises concerns that the reform contains loopholes. Additionally, the article discusses the differences and similarities between the Polish and French legal systems in the context of cause and its functions. Should the concept of cause in Polish law be abandoned?