Zeszyty Naukowe Uniwersytetu Rzeszowskiego. Seria Prawnicza. Prawo 27 (2019)

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The impact of general tax law principles contained in the new tax ordinance act on the interpretation of tax law
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Popławski, Mariusz
The study aims to present the meaning of general tax law principles resulting from the draft of the New Tax Ordinance Act on the process of tax law interpretation. A detailed analysis covers three principles: the principle of determining the content of tax law provisions, including the structure of the tax to which these provisions apply, the principle of resolving doubts in favor of the obliged, as well as the principle of balancing the legitimate interest of the obliged and the public interest. As part of the work, the following research hypotheses regarding these principles have been positively verified: the principles will have a significant impact on the interpretation of tax law provisions contained in the laws shaping the construction of individual taxes, they will also apply to other tax law provisions, additionally they will affect non-tax provisions, the application of which affects the operation of tax law provisions.
Two or three pillars of administrative sciences and the concept of inclusive administration
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Ruczkowski, Piotr
Development of inclusive public administration is facilitated by the approach, according to which the science of public administration is viewed not only as a discipline related to the existing reality but, primarily, as a discipline formulating synthetic evaluations and making proposals initiating changes beneficial from the point of view of citizens and public interest. In other words, the departure from the aforementioned conventional concept of three pillars of administrative sciences in favour of a dualistic concept of these sciences, namely administrative law and science of administration, which integrates two functions, i.e. a descriptive one that may be considered equivalent to the classical science of administration and a normative one, characteristic to administrative policy studies with a focus on proposals, strategies and goals. It seems that besides the premises of inclusive democracy, inclusive economy and the concept of inclusive administrative law, such an attitude may be a component of the inclusive public administration interpreted as a kind of a new organizational and functional model of administration. The model should have such features as the widest possible involvement of citizen groups and their organizations into the decision-making and organizational processes of public administration, and a focus to the administration organizational structure and decision-making processes from the perspective of values and goals serving public interest and particular individuals’ interests.
Transnational effects of decisions of the antimonopoly office of the Slovak Republic
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Tekeli, Jozef
In this paper the author deals with transnational effects of decisions of the Antimonopoly Office of the Slovak Republic as an authority for the protection of competition of the national nature, however, in the European law context. The author points out the application of national competition law in close association with legal provisions contained in the essential documents of the EU. The paper also mentions the European tendencies of unifying competition protection legislation. In the context of a threat to competition, the author also points out the importance of complying with obligations in detecting and proving the same. He also refers to situations where, despite the potential presence of competition concerns, competition distortions do not occur.
The right of a pre-trial detained person to legal aid (article 245 § 1 of the Code of Criminal Procedure)
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Sowiński, Piotr Krzysztof
The aim of the paper is to discuss the issue of detainee’s access to legal assistance provided by an attorney or legal adviser, i.e. representatives of two equivalent legal professions. The author analyzed the restrictions related to access to such assistance, as well as the conditions enabling the detaining authority to reserve its presence during a detained person’s conversation with one of the abovementioned legists. The paper also points out the doubts regarding the legal status of the consultant, i.e. whether he or she should be treated as a sui generis defender or a legal representative.
Selected aspects of electronic administration. Comments on means of communication between parties to general administrative proceedings and public authorities
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Skóra, Agnieszka
This article is an attempt to present the essence of electronic communication between clients (other parties to the proceeding) and administrative authorities in general administrative proceedings. It also presents advancements in the modern technologies of the 20th and 21st century (such as telegram, telex, fax) and especially means of electronic communication, which took place in recent years in Poland. In its essence, electronic administration enables communication through strictly electronic means, eliminating the need for physical contact, as a result of which it is not necessary for parties to the proceeding and a body of public administration, to be present at the same time in the same place. Objectives of electronic administration are among the main factors allowing to overcome the problem of time and space in this modern organizational concept of state.
Transterritorial administrative acts in Slovak administrative – law science
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Seman, Tibor
The author deals with the concept and effect of transterritorial acts of public administration authorities, he interprets the term transteritorial administrative act, he examines its effects with an extraterritorial character and subsequently he deals with the conditions of the decision of the administrative court about enforceability of transterritorial administrative acts in administrative judiciary. The findings from the research are reflected in the positive and negative aspects of the transterritorial administrative acts with effects in the Slovak Republic and he offers relevant de lege ferenda matter.
Public administration as the service for the common good
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Chochowska, Anna
In a modern state, public administration plays a very important role. It is difficult to imagine a state without the existence of its executive apparatus. What is more, the quality of the tasks it carries out, as well as the proper functioning of the state and its organs depend largely on the way public administration is organised. The purpose of the article is to show that public administration in a democratic country based on the rule of law should be equated with a public service aiming to achieve the common good and pursuing the interests of all citizens.
The legal regulation of business activity of Filiae Familias in the principate period (Actio de Peculio)
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Ejankowska, Elżbieta
The application of actio de peculio due to filiae familias – in the principate period – is not an often discussed topic in literature. This claim was one of additional actions, the aim of which was 35 to include the family superiors and owners of slaves in the responsibility for contractual obligations. Not only in Gaius Institutions (G.4,69–4,77), but also in the formula of the claim of the reconstruction of the praetorian edict written by. O Lenel, no feminine persons are included. However, it arises from other sources that this action could have been applied due to business activity of daughters, which was performed on the basis of peculium. Actio de peculio – in reference to a married daughter being a subordinate of the father – also had another function; it was the equivalent of actio rerum amotarum.
Polish criticism of Hans Kelsen’s normativism
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Łuszczyńska, Małgorzata
The article introduces the reader to the main theses voiced by opponents of Hans Kelsen’s theory. Notably, the review focuses on the most original achievements which can be found in the related Polish literature; these include the critical comments by Jerzy Lande drawing on the premises of juridical psychologism, the Thomistic critique of the Vienna School’s assumptions authored by Czesław Martyniak, as well as Marxism-based criticism by Jerzy Wróblewski. All of the critical reviews address the basic norm and the separation of being and obligation. Each concept uses its own argumentation when critically evaluating specific assumptions of Hans Kelsen’s legal normativism. Notably, the critical comments formulated by Jerzy Lande and Czesław Martyniak, by no means aimed to discredit the doctrine, contrary to the approach adopted by Jerzy Wróblewski.
Decision of president to grant amnesty – theoretical and practical issues in Slovak Republic
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Dobrovičová, Gabriela
The author deals with the regular presidential competence to grant amnesty and its constitutional regulation in the law of Slovak republic. Since revoking amnesty decision is problematic and it is not generally accepted by law, practice or prevailing legal opinion, she focuses on analysis of the “Mečiar’s amnesties” annulment in Slovak republic.
Influence of the principle of partnership on changes in the operation of public administration bodies
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Barczewska-Dziobek, Agata
Changes in the organization and operation of the administrative apparatus may be caused by various factors, law being the most important factor because administration is significantly determined by law. Furthermore, law reflects the legislator’s axiological catalogue which may include values derived from current ideological systems. One example of this is the concept of partnership, seen as a value realizing the postulate of social inclusion, as well as the norm-defining principle of partnership which refers to the processes of programming and implementation of the EU cohesion policy. EU law affects the Polish legal system and determines its changes, as a consequence of which normative constructions, unknown earlier, are introduced. The principle of partnership, one of the guiding principles of cohesion policy, results in shaping the domestic legal order related to public policies in such a way that it contains standards requiring competent public administration authorities to depart from traditionally applied organizational solutions and imposing an obligation to use innovative methods of operation. This impact is particularly evident for instance in local development policy stipulating involvement of the local community, which is a responsibility of the bodies of territorial self-government.
Procuratores – imperial agents or curators’ assistants?
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Kamińska, Renata
For the first time procuratores aquarum were nominated by Emperor Claudius. Their main task was to help curators to perform their duties. Together with them, prosecutors supervised the distribution of public water in Rome. In fact, the real purpose of establishing the office of procuratores aquarum was to exercise control over the activities of curatores aquarum. This was due to Claudius’ attempt to limit the role of the Senate whose representatives held the procuratores offices. However, Frontinus in his treatise De aquaeductu urbis Romae as a rule accused them of fraud and various abuses they committed during the mandate. This shows that Claudius’ aim for this office was not fully realized. Procuratores were more likely to be remembered as public water thieves than curators.
Economic analysis of law as a good quality of the legislative process
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Majkut, Zdzisław
The article attempts to discuss the economic analysis of law as a quality, that affects the legislative process. Regulations and legal standards are institutions, created by the state, to ensure efficient functioning of the entire national economic process. Institutional structures affect the behavior of people and businesses. The introduced changes in the law may negatively affect economic development or, on the contrary, create very favorable conditions for its development through the elimination of unnecessary and hampering economic development regulations and legal procedures. The article presents the most important issues of economic analysis of law on two examples: Germany and Slovakia. This discipline is the study of law with the use of economic tools. Currently, the economic analysis of law is developing at a rapid pace in comparison to other interdisciplinary social sciences. This analysis uses the relation between law and social norms. Furthermore, the objective of this article is to discuss the legal factors, that affect economic processes.
Methodology of administrative sciences from the standpoint of the theory of hierarchies’ rivalry
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Szreniawski, Piotr
Social life is a rivalry of hierarchies. There are many different ideas about how to organize administrative sciences, and those ideas are contradictory to one another. On one side we have the view that one administrative science exists, and on the other hand we can show many administrative sciences. The administrative science triad can be seen as a compromise between those options. There are many factors affecting how administrative sciences are organised. One of the factors is how academic teaching at universities is divided. Another factor is how countries promote their scientists and their theories concerning administration and similar subjects.
Strengths and weaknesses in the operation of administrative law
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Kasprzak, Sylwester
The specific quality of the law applied in administration is its power of authority. No specialist in administrative law has a problem with it, however lawyers representing other branches of law have some ungrounded doubts regarding the structure of administrative law. It should be emphasized that the quality of the administration’s operation is not determined by possible inspections or by compliance with the law. Above all, it depends on the officers themselves, their awareness and responsibility for carrying out public tasks. Before they start their work, officers should know the catalogue of ethical rules related to the performance of tasks and duties of an institution or the office. Law-making by its nature is a long-lasting process and should proceed slowly, as it is impossible to create effective legal norms in a short time only because a given sphere is not sufficiently regulated. The legislative process in our Polish parliament is extremely fast-paced as a result of which the law is imperfect. On the one hand, administrative law is weak because there is no code of material and systemic law, on the other hand, the strength of the legal system lies in its character, i.e. its power of authority.
The problem of effectiveness of a procedural act performed “prematurely” – a few comments in relation to the decision by the European Court of Human Rights on 13 december 2018, 21497/14 (Witkowski)
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Woźniewski, Krzysztof
Provisions of procedural criminal law, awarding participants of criminal proceedings with the right to perform specific procedural acts in order to elicit related procedural effects, often simultaneously specify a deadline for performing such acts. A failure to meet such a deadline as a rule leads to a negative consequence, i.e. ineffectiveness of the procedural act carried out in violation of the said deadline. The problem also occurs when making a procedural action prematurely. The article will be devoted to these issues.
Hereditas damnosa – hereditas suspecta the risk of inheritance acquisition in Roman law
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Świrgoń-Skok, Renata
The article presents risks associated with inheritance acquisition in Roman law. Indeed, in Roman law, acquisition of inheritance could not only entail improvement of the heir’s financial status but also his impoverishment. Negative consequences associated with inheritance acquisition could affect the heir, as well as the testator’s creditors and the heir’s creditors. A risk of damage to the heir’s material status resulting from their liability for inherited debts occurred particularly in the case of hereditas damnosa, or cursed inheritance, excessively burdened with debt. However, those affected by impoverishment, in addition to heirs also included testator’s creditors. This situation could happen in the case of the so-called hereditas suspecta, i.e. indebted inheritance where the heir was suspected to deliberately encumber his property with debts so that they could not satisfy the inherited creditors.
The guarantees of the suspect and the aggrieved party relating to the access to the case files of preparatory proceedings in the light of legislative changes
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Olszewski, Radosław
The system of guarantees constitutes an extremely important sphere of criminal procedure. Its form constitutes one of the significant characteristics of the criminal procedure model, both by defining the rights and duties of its participants and by outlining the acceptable extent of the state’s interference in the legal situation of the participants of criminal procedure. Yet, the guarantee function is not a function specific for preparatory proceedings, but a general function of criminal trial. The article will be devoted to these issues.
Evolution of the right of coalition. International standards versus Polish law
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Kowalczyk, Aneta
The right of coalition, understood as a second-generation human right, is related to equality, and is one of the manifestations of the freedom of association. The latter is recognised among the first-generation human rights, or those which do not originate from positive law but from the fact of belonging to the species of homo sapiens. The role of the state with respect to freedoms is to guarantee and secure them, while implementation of equality rights requires a legal framework and financial outlays. The current publication presents the evolution of the right to establish trade unions, as stipulated by Polish law, starting from the post-war period and ending with the latest changes which came in force on 1 January 2019; these are shown in the context of international regulations.
Some reflections on In Dubio Pro Tributario principle
(Wydawnictwo Uniwersytetu Rzeszowskiego, 2019) Dowgier, Rafał
As of the beginning of 2016 the principle of resolving possible interpretation doubts for the benefit of a taxpayer (in dubio pro tributario) was introduced to the Polish legal order. This rule was upgraded to the tax law principle expressed directly in Art. 2a of the Act of 27 August 1997 – Tax Ordinance. Such a decision of the legislator resulted from a prior referendum, wherein nearly 95% of voters supported the introduction of this principle, perceiving it, apparently, as an instrument that would enhance the practice of tax law application by tax authorities. After several years, it can be assumed that these hopes have not been fulfilled since this principle has not been applied more widely in the practice so far. The purpose of this study is to present both the very essence of in dubio pro tributario principle and experiences concerning its application in recent years, with a particular focus on the rulings issued thereon by administrative courts and Constitutional Tribunal.

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