Zeszyty Naukowe Uniwersytetu Rzeszowskiego. Seria Prawnicza. Prawo 7 (2009)

URI dla tej Kolekcjihttp://repozytorium.ur.edu.pl/handle/item/1204

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Christian W. Lohse (red.): Die deutsche Sprache in der Europäischen Union. Rolle und Chancen aus rechts- und sprachwissenschaftlicher Sicht, Wydawnictwo Nomos, Baden-Baden 2004, ss. 188, 39 euro
(2015-09-14) Prengel, Marek
Działania terenowego kontrwywiadu w zakresie wykrywania, zwalczania oraz zapobiegania działalności wywiadowczej państw zachodnich prowadzonej przeciwko PRL w latach 1956–1964 na przykładzie Wydziału II Komendy Wojewódzkiej MO w Rzeszowie
(2015-09-14) Pawlikowicz, Leszek
The paper has presented basic issues and directions of operational work carried out by the Second Department (in charge of counterintelligence) of the Provincial Headquarters of the Civic Militia from 1956 to 1964 in relation to discovering, fighting and preventing the crime of espionage. Counteracting espionage carried out by foreign states has always been a key task of each counterintelligence service. In Poland, however, until the mid-1950s, the charge of espionage was used mainly to eliminate political opponents. The situation changed in the period between December 1954 (liquidation of the Ministry of Public Safety) and November 1956 (inclusion of special services into the structures of the Ministry of Internal Affairs). The basic reason for it – following transformation of the Polish October of 1956 – was radical rationalization of the judicial decisions by the Supreme Military Court in relation to Art. 83 (previously bearing number 90) of the Criminal Court of the Polish Army from 23 Sep. 1944, as well as Art. 7 of the decree on crimes especially dangerous in the period of reconstruction of the State from 13 June 1946 (the so-called petty criminal code). The process was, of course, inspired top-down by the communist party authorities, however – luckily – it tuned out to be not a tactical change, but a permanent trend. The essential source bases were files collected in the Branch Office for Preservation and Dissemination of Archival Records at the Institute of National Remembrance in Rzeszów. The Author has also used similar documents kept in the Warsaw headquarters of the OP&DAR at the INR, as well as intradepartmental publications.
Formuła ważenia zasad prawa jako mechanizm usuwania ich kolizji na przykładzie koncepcji Roberta Alexego
(2015-09-14) Maroń, Grzegorz
This paper raises one of the issues correlated with the problems of legal principles, i.e. construction of the so-called weighing formula. The basic purpose of the paper was to verify usability of the formula as a tool enabling deciding in case of collisions of legal principles according to requirements of rationality and objectivism. The Author decided to get an answer to this question by analyzing the theory of legal principles by Robert Alexy. Confronting, on the one hand, the concept of the law principles, as optimizing orders and the extended pattern of weighing, with the practice of judicial decisions by the Federal Constitutional Court of Germany, on the other one, he concluded that the mathematical form of the weighing formula is of limited use. He found justified the opinion of J. Habermas that implementation of the weighing pattern is able to generate a solution (to specify the priority relation between colliding principles), but it fails to justify correctness of such a solution.
Geneza i działalność Światowej Organizacji Handlu (WTO) na arenie międzynarodowej
(2015-09-14) Stępień-Załucka, Beata
The World Trade Organization was created as one of the final effects of GATT on 15 Apr. 1994. At present, it has 151 members. The membership is primarily conditioned by economic conditions, which results from the fact that WTO can be undoubtedly recognized as one of leadingorganizations affecting the world economy and trade. Its peculiarity and exceptional character are expressed not only by diversity of members, as it groups both developed and developing countries, but also through a range of outstanding economic achievements. The main goal of WTO activity is undertaking actions that would fruit on the international forum with enhancement of life standards, provision of full employment, increase in real incomes, effective demand, and development of manufacturing and trade of goods and services with optimal use of world resources, with maintenance of environment, and considering its protection.
Geneza, powstanie i działalność Banku Polskiego w latach 1828–1885
(2015-09-14) Sosnowska-Łozińska, Magdalena
The establishment and activity of the Polish Bank (Bank Polski) in the years 1828–1885 were a very important chapter in the history of the Polish banking. That bank – called the historic predecessor of the Polish National Bank – had extensive competences that it used according to political and economic possibilities of the time. The bank carried out issuing activities that feature contemporary central banks, and additionally, it implemented effectively its tasks concerning crediting activity. Art. 1 of the decision on establishment of the PB from 29 January 1828 providedthat the goal of the Bank was to meet the public debt, as well as extension of trade, credit, and national industry. It should be noted that especially in the last field of its activity, the PB showed great concern in relation to organization and finances. The Polish Bank became – alongside the Land Credit Association (Towarzystwo Kredytowe Ziemskie) – the leading financial institution of the Kingdom of Poland.
Kryteria wyboru ośrodków miejskich na siedziby władz wojewódzkich na przykładzie Rzeszowa jako stolicy województwa podkarpackiego
(2015-09-14) Mazurkiewicz, Artur
The territorial division constitutes one of the basic elements of the State organization; it is an indicator of its administrative efficiency and an instrument serving for efficient realization of public tasks. That is why acceptance of a specific concept for such a division has been one of the most important tasks for the Polish legislator. It was an intrinsic element of the territorial reform to indicate cities that were to become seats of new provinces, in other words the provincial capitals. Selection of a provincial city has an essential meaning not only from the viewpoint of administration efficiency, but it also decides on development abilities of the concerned municipal centres. In this paper, the Author indicates historic conditions for shaping of the State’s territorial division, including the present Podkarpackie Province, and presents circumstances connected with selection of Rzeszów as the capital of this province.
Matrimonium gaudet favore iuris. Komentarz do kan. 1060 KPK
(2015-09-14) Steczkowski, Piotr
The purpose of the article is to explain the essence of the binding principle of the canon matrimonial law that says that canon matrimony enjoys favour of law. The paper presents essential stages in shaping the canon doctrine on this subject, starting from the rule of Pope Innocent III. Then, in a more detailed way, the norm of the canon law code of 1917 was shown, as well as the discussion that was on this principle, with participation of canonists and theologians, during the reform after the Second Vatican Council. In this context, the Author has highlighted the present stand of the ecclesiastical legislator who directs favour of law to the institution of marriage and not to protection of a church member’s freedom. This solution is grounded not only on fundamental moral and legal rules, but responds to the very nature of marriage, which is one of “social sacraments” instituted and aimed at salvation of other people, as this is reminded by the Catechism of the Catholic Church. Thanks to that, the principle of law favour for marriage does not cause any conflicts between good of an individual and the common good. Quite on the contrary, it serves as a tool to form certainty of a faithful person’s conscience, and eliminates possible conflicts between the general legal norm and the conscience assessment.
Ochrona sektora bankowego przed praniem pieniędzy w świetle polskich regulacji prawnych
(2015-09-14) Golonka, Anna
As early as in the early 1990s, it was noticed that the banking sector is exposed the most to be used for money laundering. Because of that reason, the banks were the first institutions to introduce internal regulations aiming at minimizing the risk of unintended participation in the above practices. Some decisions of non-generally binding character could not, however, be the sufficient base for taking all possible actions allowing stopping money laundering. The situation in this respect was changed following coming into force the statute of 16 November 2000 (the statute on fighting against introduction into financial turnover of proprietary values coming from illegal or undisclosed sources and on fighting against financing terrorism), which also covered financial institutions, led by banks. At the same time the crime of money laundering is a punishable act under criminal law and as such meets the statutory description of features included in Art. 299 thereof. Moreover, the general assumptions of fighting against it are also included in the banking law, and a separate clause is even devoted to it, namely Art. 106. At the meeting of the three regulations may – and unfortunately do – arise conflicts, additionally aggravated by the fact that the regulations of the banking law are also referred to by other regulations, such as, for example, the statute of 12 September 2002 on electronic payment instruments. Some of the existing discrepancies have been successfully eliminated. Yet, there are still some areas where there are discrepancies between provisions of the above legal acts. Moreover, some issues of theoretical nature arise in connection with inclusion of the Polish National Bank to the so-called obliged institutions by the statute of 16 November 2000. Institutional changes resulting from taking over by the Financial Supervision Authority of the rights and obligations previously vested with the Commission for Banking Supervision, as an organ of the PNB, may also raise some doubts. This paper is to show the above dilemmas and to try to find scientific solutions to them.
Odpowiedzialność agresora za nielegalne użycie siły
(2015-09-14) Pączek, Marcin
Contemporary international relations are governed by the rule of peaceful coexistence of states. Accordingly, armed aggression is prohibited by international law. This is soundly confirmed by Art. 2 par 4 of the Charter of the United Nations stating that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. Violation of this obligation is followed by arising of the aggressor’s responsibility, not only towards the state directly affected, but also towards the whole international community. It happens like that because prohibition of aggressive war is of ius cogens character, as it was established in the interest and on behalf of all international law subjects. Consequences of an aggression act are incomparably greater than those waiting for an ordinary tortfeasor. In addition to traditional forms of responsibility, such as restitution, monetary compensation, or satisfaction, international law developed a wide range of other remedies applied against an aggressor.
Oficjałowie Konsystorza Okręgowego w Piotrkowie [Trybunalskim]
(2015-09-14) Wlaźlak, Władysław Piotr
The District Consistory in Piotrków [Trybunalski], functioning from 1819 to 1918 on the territory of the Diocese of Kalisz, i.e. of Włocławek was featured by substantial fluctuation concerning its territory and personnel. Moreover, the powers of the two first Officials in relation to appointing the personnel of the Consistory were greater than in the following years. After reorganization of ecclesiastical courts in 1885 on the territory of the Diocese of Kujawy and Kalisz, Presidents headed the Piotrków Consistory. In that time, many matrimonial causes were decided directly by the Official in Włocławek who had powers for the whole diocese. Earlier the Piotrków Consistory was subordinated to the General Official in Kalisz. Analogous changes were to the seat of the Consistory Office. The first Official resided in the centre of the district subordinated to him, yet it was not the seat of the official’s office. The situation became more complicated during the office of his follower who resided outside the territory of the Official’s Office of Piotrków. The next heads of the Consistory ran their office in Piotrków [Trybunalski] where they were parish priests. The last President was an exception who administered matters of the Piotrków Consistory from Sulejów nearby where he was the parish priest of the local parish. Maybe it was connected with the fact that at that time his consistory rights became reduced.
Pytanie prawne do Trybunału Sprawiedliwości Wspólnot Europejskich w sprawie karnej
(2015-09-14) Klejnowska, Monika
The paper has presented the procedure of addressing by a Polish court the Court of Justice of the European Communities with a question on a point of law in a criminal case and the course of proceedings before the Court, as well as the importance and consequences for criminal proceedings in an individual case of the Court’s decision, including interpretation of the community law in an answer to the put question on a point of law. At the same time the Author has raised the question of the Court’s cognition limits in connection with the cognition limits of a Polish criminal court sending such a question on a point of law, especially the limits set by the regulations of the domestic law, lying outside the scope of the European Community legislation. The considerations have shown an influence of the cognition range of a Polish criminal court on the Court’s cognition range in a specific criminal case, and whether and to what extent the Court must (answering a question on a point of law by a domestic court) consider trial standards restricted exclusively for the domestic legislator, and particularly those that grant trial guarantees to participants of a trial. This issue is important in the context of importance assessment of decisions by the Court of Justice of the European Communities for decisions made in the Polish criminal proceedings, especially in the context of endeavours for unification of court decisions in the member countries based on the EU law standards
Usiłowanie zmiany ustroju państwa oraz usiłowanie usunięcia organów władzy jako zbrodnie stanu. Zarys problemu
(2015-09-14) Leniart, Ewa
This paper is a trial to analyze the shaping process of crimes of attempt to change the political system of the State and of attempt to change State authority agencies throughout centuries. These crimes, included among high treasons, have undergone evolution, both in respect of legal interpretation (subsumption of specific facts under the binding legal regulations) and judicial decisions, but also in respect to their meaning for power consolidation in the State. A specific expression of such an evolution was recognition of crimes of attempt to change the political system of the State and of attempt to change State authority agencies, regulated by Art. 86 of the criminal code of the Polish Army from 1944, following the Soviet law, as counterrevolutionary crimes. It was a new concept, alien to the Polish legal system, which in the period of communism enabled using regulations of criminal law to introduce and then to consolidate their power in Poland. Recognition as counterrevolutionary crime of an action whose origin were specific, political reasons that were unwelcome by the authorities, had a decisive influence upon qualification of human acts as unlawful acts that were high treasons. Quite independent of the political system, there are some legal regulations sanctioning responsibility for acts aimed at state authority agencies and the political system of the state. The science of law has elaborated in this respect some legal regulations that are uniform in all democratic countries. As it is shown by the history of criminal law, abuses in applications of regulations sanctioning criminal responsibility in connection with committing crimes of high treason may originate from misinterpretation of legal regulations and latitude in giving sentences in criminal proceedings, which took place on a large scale in Poland from 1944 to 1956.
W sprawie opieszałości państwa w udzielaniu rekompensaty materialnej sportowcom wycofanym z udziału w XXIII Letnich Igrzyskach Olimpijskich – medalistom zawodów „Przyjaźń 84”
(2015-09-14) Kijowski, Maciej
By the resolution of the Board of the Polish Olympic Committee of 17 May 1984, representation of Poland was withdrawn from participation in the XXIII Summer Olympic Games organized in that year in Los Angeles. The resolution was taken already in two days’ time after the Politburo of the Central Committee of the Polish United Worker’s Party had taken a decision inspiring the step of the Board of the POC, which at the same time announced providing the injured sportsmen with “moral and material satisfaction”. The paper concerns the multiyear battle to have that obligation fulfilled by the former vicechampion of the world and Europe in free-style wrestling, Jan Falandys, representing a group of sportsmen who won medals during the competition “Friendship 84”, hastily organized for communist countries, instead during the Olympic Games. Finally, by the statute of 12 January 2007 those people were granted benefits equal to benefits paid to Olympic medal winners. The Author of the paper brands the negligence of the State agencies, coming from his conviction of continuity of the Polish statehood and the unchanging relevance of decisions taken in the interest of Polish citizens, irrespective of the systemic transformation in their state.
Współczesna koncepcja praw człowieka na przykładzie wybranych dokumentów ONZ, Rady Europy, OBWE oraz Unii Europejskiej
(2015-09-14) Semków-Chajko, Dorota
The idea of human rights and their protection has been shaped for many centuries. During that time the rights have undergone a meaningful evolution, yet the full internationalization of the question took place after the Second World War. First of all it was expressed in the international, universal system of human rights created by the United Nations Organization. Its most important document referring to human rights and their protection was the Universal Declaration of Human Rights. It was signed on 10 December 1948 and was recognized as a kind of the constitution for the international system of human rights. Moreover, an important role in shaping the international system of human rights has been played by regional systems whose example is the European system of human rights protection. It is grounded on three normative systems, such as the system of the Council of Europe, the European Communities / the European Union, and the Conference on Security and Co-operation in Europe / Organization for Security and Co-operation in Europe. Each of the above-named structures has issued documents that regulated protection and development of human rights. In relation to the above the idea of human rights, their protection, and promotion has become an important element of both domestic law in individual states, but also a meaningful part of contemporary international relations.
Z badań nad realizacją obowiązku społecznego oszczędzania przez uczestników funduszu B – rolnictwa Społecznego Funduszu Oszczędnościowego w latach 1948–1950
(2015-09-14) Witkowski, Andrzej
In 1948, an obligation of social saving was established, and it also covered some land taxpayers. Financial means from execution of this obligation were saved by them on the B (agriculture) fund of the Social Saving Fund (Społeczny Fundusz Oszczędnościowy). An analysis of the construction and the burden size for the participants in the SSF B fund, as well as its subsequent fates allow to qualify it among tools of tax character, created for implementation of policy concerning transformation of the proprietary structure of farms towards limiting the number of medium and larger individual farms and increasing the number of collective forms of agriculture. The purpose of this paper is to turn attention, first of all, to various problems and difficulties connected with execution of this obligation from participants in the SSF B fund by the tax authorities (managements of communes) that acted in this respect under supervision of (appointed in 1947) plenipotentiaries of the Government in charge of land tax (they finished their activity in mid-1950).
Zniesienie karalności łapownictwa czynnego jako element walki ze zjawiskami korupcyjnymi (art. 229 §6 k.k.)
(2015-09-14) Sowiński, Piotr Krzysztof
The Author analyzes the phenomenon of corruption and presents his views upon effective methods of fighting against this phenomenon. The subject literature lists three methods of counteracting. The first one includes creation of such legal norms that would limit discretion of public authority decisions and incohesion of law, as well as creation of internal and external control institutions to discover corruption, and the subsequent and accompanying punishing ofpersons who have been proved corruption (the punitive and administrative group). The second method consists in carrying out substantial economic reforms, liquidating conditions that welcome corruption. The third one aims at creation of a system that would be common for a specific community, rest on several complementary programmes and be implemented by independent subjects, on the one hand focusing on fight against corruption, and on the other on enhancing the quality of management, and directed towards “an increase in integrity” of the society. This text concerns the first of the described methods. In this context, the author has presented the solutions accepted in the penal code of 1997, basing on mitigation of criminal responsibility of a perpetrator of the act (Art. 229 §6) in exchange of the specified behaviour of the individual, consisting in informing the prosecution agencies of the fact that the said crime has been committed and disclosing all substantial circumstances of it.

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Przeglądanie Zeszyty Naukowe Uniwersytetu Rzeszowskiego. Seria Prawnicza. Prawo 7 (2009) według Tytuł