Adam Mickiewicz University Law Review
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Non-Originalism Differently: the Obligation of the Legislator to Respond to Changing Conditions
Get PDFThe question that the paper seeks to answer is formulated through reflections on the is-sues of non-originalism. Non-originalism refers to an approach to the interpretation of the Constitution where the text of the Constitution adapts to new conditions without any formal change. This approach is applied by courts which, in the light of new circumstances, interpret the Constitution in a different way. The question is whether the same approach should also be applied by the legislator. Should it be the legislator who monitors whether the Constitution has changed in substance as a result of changes in society and that some existing statutes thus have become unconstitutional? The paper concludes that the legisla-tor has an obligation to monitor and respond to such changes by amending or abolishing certain statutes or by adopting new ones. If the legislator fails to respond, then his behav-iour – inaction – is unconstitutional. However, the paper does not claim that the legislator must respond to all the changes in society, but only to those that are significant and obvi-ous. The legislator is understood as an institution, not as a member of the legislative body (based on the theory of the legislative intent). However, the institution of the legislator is a human creation and composed of individuals, and it is their knowledge that makes up the knowledge of the legislator. And it is precisely their possibilities that determine the bound-aries of what the legislator should know. In this text, the creation of law is understood as communication between the legislator, who is the author of statutes, and public bodies, who interpret and apply them. As with any communication, context is what determines it. The legislator’s obligations are derived from the content of the context, its function, and its essential position in communication
"Immigration Problems Facing the European Union from the Perspective of UN Human Rights Council Mechanisms"
Get PDFThe scale of immigration problems in Europe today is well-known and broadly dis-cussed. The article identifies how this issue is reflected in two Human Rights Council mechanisms: Special Procedures and the Universal Periodic Review. The Special Rap-porteur on the human rights of migrants, François Crépeau, undertook a regional study on the management of the external borders of the European Union and its impact on the human rights of migrants. The analysis of the annual and country visits’ reports allows the main immigration problems facing the EU countries and threats for the protection of human rights to be identified. The recommendations made by the Special Rapporteur are confronted with those taken up in the UPR process. Special attention is given to the EU countries’ position on the problem of immigrants. Their reluctance to raise this issue in the UPR weakens the credibility of EU Member States and puts the objectivity of the mechanism into question
The Views of the Court of Arbitration for Sport and the Austrian Football Association on legal liability for the conduct of supporters
Get PDFThe clubs legal responsibility for the behavior of supporters is used by UEFA to in-fluence the content of sports competitions, ideally abstracted from demonstrating by spectators any non-football ideas. Nevertheless, the regulation of the national associa-tions-members of UEFA also assumes the responsibility of the clubs and, sometimes, the supporters themselves for the unacceptable behavior of the latter. The experience of regulation this issue by the Austrian Football Association demonstrates mentioned approach. Therefore, it is interesting to make a comparison: how much the regulated responsibility of supporters affects to the regulation by the association a strict liability of clubs for the behavior of fans. Using the practice of CAS, we may see a presumptive approach on the basis of an assessment of the situation by “a reasonable and objective observer” for the objective resolution of a dispute
When ‘the Use of Force’ is Prohibited? –Article 2 (4) and the ‘Threshold’ of the Use of Force
Get PDFThis article advances the thesis that there is no threshold of the use of force. i.e. no level of the use of force which decides whether and which forcible actions undertaken by States are prohibited. The examples of actions discussed in the doctrine of law which supposedly would be ‘below’ such a threshold in fact either are regulated by other prin-ciples of international law, are not considered as regulated by ius ad bellum, or States deliberately resign from calling them a use of force for both legal and extra-legal reasons. Thus, the existence of such a threshold is not confirmed by States’ practice. This thesis will be explored using three examples: the cases of the evacuation of nationals, the extra-territorial and the Falklands/Malvinas Islands invasion of 2 April 1982. The article starts with a brief discussion of the opinions expressed in the doctrine of international law on the threshold, as well as the applicable case law.This article advances the thesis that there is no threshold of the use of force. i.e. no level of the use of force which decides whether and which forcible actions undertaken by States are prohibited. The examples of actions discussed in the doctrine of law which supposedly would be ‘below’ such a threshold in fact either are regulated by other prin-ciples of international law, are not considered as regulated by ius ad bellum, or States deliberately resign from calling them a use of force for both legal and extra-legal reasons. Thus, the existence of such a threshold is not confirmed by States’ practice. This thesis will be explored using three examples: the cases of the evacuation of nationals, the extra-territorial and the Falklands/Malvinas Islands invasion of 2 April 1982. The article starts with a brief discussion of the opinions expressed in the doctrine of international law on the threshold, as well as the applicable case law
Przesłanki powództwa o uchylenie uchwały spółki kapitałowej
Get PDFThe paper presents the interpretation of grounds for repealing a resolution of a capital company (private and public limited) in the event of a conflict between such resolution and the company’s articles of association (statue), good practice, or when the intent of the resolution is contrary to the company’s interests or to the detriment of a shareholder,based on the views of representative legal doctrine and court rulings. These opinions are then confronted with views presented by legal theorists as well as the developments and changes of their interpretation in selected jurisdictions.The paper presents the interpretation of grounds for repealing a resolution of a capital company (private and public limited) in the event of a conflict between such resolution and the company’s articles of association (statue), good practice, or when the intent of the resolution is contrary to the company’s interests or to the detriment of a shareholder,based on the views of representative legal doctrine and court rulings. These opinions are then confronted with views presented by legal theorists as well as the developments and changes of their interpretation in selected jurisdictions
Kompetencja instytucji Unii Europejskiej do ustanawiania i kształtowania norm prawa karnego materialnego
Get PDFThe paper focuses on the competence of the European Parliament and the EU Council to adopt directives in the area of substantive criminal law provided in Articles 83 and 84 of the TFEU, which confirm the earlier ECJ rulings on the subject. The competence granted to those institutions also ensure greater effectives of the adopted directives in combating serious crimes within the European Union. The creation of certain ‘emergency brakes’ and application of the principle of proportionality taking into account the fundamental principles of criminal law systems of individual Member States, has enabled the EU institutions to establish common definitions of most serious crimes.The paper focuses on the competence of the European Parliament and the EU Council to adopt directives in the area of substantive criminal law provided in Articles 83 and 84 of the TFEU, which confirm the earlier ECJ rulings on the subject. The competence granted to those institutions also ensure greater effectives of the adopted directives in combating serious crimes within the European Union. The creation of certain ‘emergency brakes’ and application of the principle of proportionality taking into account the fundamental principles of criminal law systems of individual Member States, has enabled the EU institutions to establish common definitions of most serious crimes
Nabycie służebności przesyłu w drodze zasiedzenia
Get PDFThe paper is an attempt to determine the admissibility of acquisition of a transmission easement by virtue of usucaption. It also contains the review and assessment of the main issues, doubts and discrepancies which are present in the doctrine and jurisprudence. The survey also deals with deliberations concerning the possibilities of usucaption of particular ways of using the facilities as referred in the article 49 of The Civil Code prior to the amendments of The Civil Code of 20 May 2008 that introduced a new legal institution of a utility of transmission easement
Instytucja mediacji jako „żywy przepis”, a nie „martwy zapis” – jak wypracować dogodną płaszczyznę pomiędzy teorią i praktyką?
Get PDFThe subject of this paper is the institution of mediation, with a special emphasis on the formulation of postulates addressed to the Polish legislative, governmental institutions, local authorities, corporation of advocates, non-governmental organisations, and establishments of higher education. The Author outlines the general construction of mediation and the mechanisms of its functioning, the impact of the European Union on its Member States in the context of that institution, and touches upon the practical application of mediation in Poland, concluding that once the postulates enumerated in the paper have been addressed and realized, this will grossly reduce the piling number of unresolved disputes, and consequently will minimize the cost arising from the ever- -growing numbers of litigation and legal dispute.The subject of this paper is the institution of mediation, with a special emphasis on the formulation of postulates addressed to the Polish legislative, governmental institutions, local authorities, corporation of advocates, non-governmental organisations, and establishments of higher education. The Author outlines the general construction of mediation and the mechanisms of its functioning, the impact of the European Union on its Member States in the context of that institution, and touches upon the practical application of mediation in Poland, concluding that once the postulates enumerated in the paper have been addressed and realized, this will grossly reduce the piling number of unresolved disputes, and consequently will minimize the cost arising from the ever- -growing numbers of litigation and legal dispute
Art. 647(1) CC – Important Protection of Subcontractors in the Construction Works Contract or the Legislator’s Error?
Get PDFThe purpose of this article is to present and assess the impact of the regulation Art. 6471CC on subcontractors in the construction market and outline doubts in respect of the contents of the regulations. The first part of the article shows reasons why the regulation concerned was enforced – unfair practices in the construction services market which had a detrimental impact on subcontractors. Furthermore, selected doubts are presented, those associated with the contents of the regulation in question and raised by the doctrine and jurisdiction, for example, the legal nature of the investor’s consent or the investor’s joint and several responsibility. It is important to indicate the contrast between the unprob-lematic legislative process and doubts disclosed during its application. The author of this article also depicts two proposed modifications, which appeared in doctrine. The impor-tant issue for this article is also a description of the amended text of this regulation and comparison to the previous one. In conclusion, it should be emphasized that art. 6471 CC is really important for the polish legal system but both the previous content of this regula-tion and the present one aren’t sufficient to guarantee the lack of doubts in interpretatio
"Internet Access as a New Human Right? State of the Art on the Threshold of 2020"
Get PDFThe aim of this study is to analyze the role that the Internet plays in the enjoyment of human rights and answer the question of whether we may be in the process of recog-nizing a new right, namely the right to Internet access. The conclusions are built upon a quantitative and qualitative analysis of the Internet-related recommendations adopted by the UN treaty-based bodies in the period between 2007 and 2017. Moreover, the paper is supplemented by a brief overview of the relevant recommendations formulated under the mechanism of the Universal Periodic Review. Analysis of the content of rec-ommendations allowed them to be classified into two groups – the first one integrates recommendations that refer to the duty of non-interference, and the second concerns the duty to expand Internet infrastructure across the country. The article ends with a call for further investigation of the normative potential of Article 15(1)b of the International Covenant on Economic, Social and Cultural Rights, as this hitherto forgotten provision might shed a new light on the proposed right to Internet access