Criminal liability for undertaking duties in a foreign army (foreign military organization) or as a part of mercenary military service prohibited by international law (Article 141 §1 and 2 of the Polish Penal Code)

The Constitution of the Republic of Poland imposes on a citizen of the Republic of Poland the obligation to defend the Homeland (Article 85(1) of the Act of March 11, 2022 – Homeland Defense Act; Article 3(1) of the Act also stipulates that Polish citizens capable of performing this duty due to age and health are subject to the obligation to defend the state). Violation of this obligation may lead to the realization of criteria defining criminal acts specified in Chapter XVIII of the Act of June 6, 1997 – Polish Penal Code. The subject of the analysis regards crimes under Article 141 §1 and 2 of the Polish Penal Code. The fundamental problem is the issue of the defense capacity of the Republic of Poland, which may be threatened by the participation of Polish citizens in foreign troops and the destabilization of the international community by the actions of mercenary forces. The issue of service in a foreign army or the activities of mercenaries, in the perspective of numerous armed conflicts and the tense situation in regions with high political instability, becomes a very relevant issue, especially for those who take part in activities in this area due to their professional experience (professional soldiers, officers of special services).

The main theses of the Polish Supreme Court's recent decisions in penal and fiscal cases concerning the error of punishability under Article 10 § 4 of the Polish Penal and Fiscal Code in the context of the organization of gambling games

The article presents an overview of the recent decisions of the Polish Supreme Court on the institution of an error as to punishability under Article 10 § 4 of the Polish Penal and Fiscal Code, which originated in the context of the factual situations in the field of fiscal offenses of organizing illegal gambling under Article 107 § 1 of the Polish Penal and Fiscal Code. Based on the analyzed judgments, using the dogmatic-legal method, it is possible to reach general conclusions in the context of the criteria for recognizing an error of punishability as excusable and inexcusable. The subject of an error of punishability is the criminal legal status of the behavior that fulfills the elements of the criminal act. Mistake as to punishability means that the Polish Penal and Fiscal Code places fewer requirements on the perpetrator than in the Polish Criminal Code, since in the case of mistake as to the punishability of an act it is only a matter of not knowing that the act is punishable. The exemption of guilt in case of an error of punishability occurs only if the perpetrator's mistake is considered excusable, i.e., one that the perpetrator could not avoid, not due to their recklessness or negligence.

It is necessary to accept the general conclusion from the Polish Supreme Court's decisions about stricter requirements in the context of justifying the offender's unawareness of criminality as an entrepreneur, for in the case of a business person, as a rule, a personal model with a higher standard of requirements is expected.

The role of attorney-at-law as defense counsel of choice in pre-trial proceedings

This article aims to present selected issues related to the participation of an attorney-at-law in pre-trial proceedings in criminal cases as a defense counsel of choice (excluding offense cases, fiscal offenses and fiscal crimes), taking into account the relevant rights and obligations of attorneys-at-law in connection with the provision of legal assistance set by the regulations of the Act on Attorneys-at-Law, the Polish Code of Criminal Procedure, as well as rules of professional deontology, particularly the Code of Ethics for Attorneys-at-Law.

Signalling a gross breach of procedural duty by attorney-at-law in criminal proceedings

The purpose of this article is to present the institution of signalling a gross breach of procedural duties by an attorney-at-law who is a defense counsel or an attorney of a party in criminal proceedings. This institution is regulated by the provisions of Article 20 of the Polish Code of Criminal Procedure, while this provision is also applicable in other procedures: proceedings in cases regarding fiscal crimes and fiscal offenses, misdemeanour proceedings and executive criminal proceedings. The analysis of the applicable regulation leads to the conclusion that signalling constitutes an action of the procedural authorities "outside" the pending criminal proceedings. A notification of a breach of a procedural duty addressed by a public prosecutor or a court to the council of the competent district chamber of attorneys-at-law does not in itself hold the alleged offending attorney-at-law liable for professional liability. The decision as to whether any consequences are to be drawn against him or her as a result of the finding of a violation is taken autonomously by the organs of the attorneys-at-law self-government. They are obliged to take action about the prosecutor's or court's signalling, and the dean of the council is obliged to inform the body of the violation of such action.

Representation of a juvenile victim in criminal proceedings

This article concerns the representation of a juvenile victim. It analyzes the differences between the statutory representative, the person under whose constant care the injured party remains and the child's representative. The article aims to draw attention to a situation in which there is a conflict of interests between the representative representing a juvenile victim and the other parent, which entails the need to exclude the representation of the juvenile victim by the statutory representative, giving primacy to the child's representative.

Can the polygraph be a resource to aid defense attorneys in the criminal process?

Article 2(1)(1) of the Polish Code of Criminal Procedure indicates that its provisions intend to shape the criminal process so that the perpetrator of a crime is detected and held criminally responsible, while a person who has not been proven guilty is not. For this to happen, defense counsel must be able to use the tools that make it feasible to realise the constitutional right to defense by effectively rebutting the accusation. Polygraph tests, which have been present in the Polish criminal procedure for several decades, can successfully serve such a purpose. Their results in the majority of cases constitute exculpatory evidence for the persons examined. Unfortunately, they are still wrongly perceived as a method for detecting lies and providing proof of guilt.

Conditional early release from life imprisonment – considerations in the light of the amendment to the Polish Penal Code

This article discusses the issue of conditional early release from life imprisonment. In the beginning, the author presents the characteristics of life imprisonment and the institution of conditional early release. Then, the author focuses on the changes introduced in the provisions of the Polish Penal Code regarding conditional early release from life imprisonment, pointing out the doubts and controversies related to them.

Selected issues of the practice of interruption and postponement of the execution of a sentence

This article focuses on selected issues in the practice of parole, postponed execution of sentences and the challenges arising from their implementation. It attempts to analyse the institution of a conditional early release from the remainder of a prison sentence under Article 155 of the Polish Executive Penal Code, which introduces a probationary element into the process of granting parole. It addresses the aspects that are most difficult to interpret. In the context of postponed executions of sentences, the article draws attention to the problem of competition with the electronic monitoring system. Furthermore, the article discusses the provisions of Article 9 § 4 of the Polish Executive Penal Code in light of amendments effective on January 1, 2023.

The study also looks at a topic rarely discussed in the literature, namely the gap in the scope of parole and postponement during the implementation of security measures. The analysis examines the current regulations in the context of the aims and nature of psychiatric detention, parole and deferred sentences. The article concludes by proposing a direction for interpreting the current legislation and makes de lege lata and de lege ferenda suggestions.

Remarks on the new shape of psychiatric internment. Practical and executive penal law perspective

The publication presents the most important regulations concerning the 2015 amendment of the system of protective measures. The main focus is analyzing the most distressing measure, i.e. the placement of the offender in a psychiatric establishment. Psychiatric internment was examined mainly from the perspective of the Polish Executive Penal Law proceedings and, to a limited extent, also in the criminal law context. The article identifies the advantages and disadvantages of the new psychiatric internment’s construction and points out the impact of that changed institution on the practice of implementing these protective measures. For this reason, the science paper presents a range of de lege lata and de lege ferenda suggestions, which may be helpful for attorneys and legal counsels in the performance of their work in the enforcement stage of criminal proceedings.

Dilemmas within the case law of administrative courts on the abuse of the right to public information

The right to public information is one of the systemic principles of the functioning of the state. However, restrictions in access to this particular right form exceptions to the constitutional principle. Recently, the case law of administrative courts and the views of legal authors and commentators have begun to invoke the framework of the abuse of the right to public information as a circumstance based on which an entity may deny the applicant access to information. In the absence of statutory regulation, the boundaries and guidelines for applying the framework of the abuse of the right to public information are set by the case law of administrative courts. When analysing the most recent rulings of the Supreme Administrative Court of Poland and the provincial administrative courts, one can see a certain dualism in the applicability of the framework in question. The lack of uniformity in this respect stems primarily from the need to balance the values between respecting the constitutional principle of the right to public information and the possibility of limiting it in events of abuse of an individual's right.

As a result of the analysis of the recent case law of administrative courts, a position is outlined indicating that, according to the dominant line of case law, entities obliged to provide public information may invoke the framework mentioned above to protect themselves from actions that are contrary to the assumptions of the Polish Act on Access to Public Information.

Gloss to the judgment of the Court of Appeals in Warsaw of June 14, 2023, case file no. II AKa 272/22 concerning compensation for undoubtedly wrongful detention (approving)

In the glossed decision, the Court of Appeals addressed the issue of compensation for unquestionably wrongful arrest. The Court of Appeals, while awarding the amount of PLN 15,000 on this ground, stated that it is adequate to the duration of deprivation of liberty, the physical suffering and negative psychological experiences suffered by the claimant, while also corresponding to the current socio-economic realities in Poland, without causing undue enrichment. The approving gloss to this ruling refers more extensively to the required standards regarding arrest and the procedural guarantees to which a detained person is entitled. Separate considerations concern the criteria for measuring compensation for unquestionably wrongful arrest.

Overview of the decisions of the Polish Supreme Court

The judgment of the Polish Supreme Court of December 20, 2023 (case file no. III CZP 41/23) is of particular importance for legal practice. The Court indicated that in the case of notifying the party or their representative about the impossibility of preparing a justification for the contested decision, appealing against this decision is not conditioned upon the effective submission of a request for justification and the delivery of the decision along with the justification. In the judgment of December 14, 2023 (case file no. III CZP 32/23), the Polish Supreme Court stated that in divorce cases, both those not concluded by July 3, 2021, and those initiated between July 3, 2021, and April 14, 2023, the first-instance court shall adjudicate with a single judge unless the president of the court orders the case to be heard by a panel of three judges. If such a case is heard by a single judge and two lay judges, the proceedings are null and void (Article 379 point 4 of the Polish Code of Civil Procedure).

Evolution of liability for non-adjusting of the insurance contract to client’s demands and needs

The Act of 15 December 2017 on Insurance Distribution implementing the IDD Directive introduced the distributor’s obligation to adjust the insurance contract to the client’s demands and needs. Although such an obligation was not expressed by any law before, the courts tried to trace it from existing provisions on insurance contracts. Surprisingly the current judicature does not refer to the new provisions of The Act on Insurance Distribution searching for the means of client protection in earlier existing regulations in particular in rules providing for liability of the insurer for activities of his agent. While agreeing with the thesis that the changes made were of an evolutionary rather than revolutionary nature, the author expresses surprise at the law practitioners’ fail to recognize the importance of article 8 of the Law on Insurance Distribution. In his opinion, expressing new duty establishes contract liability and facilitates proving the unlawfulness as the prerequisite of the liability of the distributor for the loss resulting from the conclusion of the insurance contract unfavourable for the client.

Liability for damages in connection with the introduction of the Clean Transport Zone

The subject of the article is to assess the admissibility of compensation for any damage arising from the introduction of a Clean Transport Zone (SCT). This new legal instrument for environmental protection granted to municipalities aims to protect air and human health. The article indicates how to introduce regulations determining the zone area. The introduction of the zone is a lawful activity, so any liability relates to the legal activities of public authorities, analyzing the possible grounds for this responsibility in principle. Based on the observations made, it was indicated whether the commune or State Treasury would be liable for civil law for any damage suffered by entities in connection with the introduction of the clean transport zone.

Animal adoption contracts

The article aims to discuss the purpose, subject matter and content of animal adoption contracts that are present in circulation. The considerations are inspired by the analysis of the practice of circulation and case law on the issue of animal adoption contracts, against which the article raises some criticism. The Author differentiates within the framework of the article between contracts under which ownership of the animal is granted to the adopter, and contracts that grant the guardian rights and obligations of a relative nature that make up the so-called adoption obligation. Both types of adoption contracts should be considered unnamed contracts permissible under the principle of the freedom of contract, but the possibility of applying legal norms to them per analogiam is different. However, it is important to make the general assumption that when considering analogy, priority should be granted to analogy from those norms that relate to legal relations that allow the use of a property for oneself and in one’s interest. Among the principal theses of the article the thesis on the permissibility of the adopter’s acquisition of ownership of an animal abandoned under the procedure outlined in Articles 180-181 of the Polish Civil Code, which is sometimes disputed in the doctrine, should also be included.

Acquisition of the company’s assets and liabilities – selected issues in the context of the case law of common courts and the Polish Supreme Court

Despite the passage of more than 20 years since the entry into force of the Polish Commercial Companies Code , many of the legal constructions indicated in it still raise doubts and give rise to legal disputes. One of them, of significant practical importance, is the possibility, as regulated in Article 66 of the Polish Commercial Companies Code, for the court to grant one of the partners of a general partnership the right to take over the assets and liabili-ties of the company in case it is composed of two partners and there is a reason for its dissolution on the part of one of them. Interpretation problems related to this regulation have been repeatedly raised in doctrine and juris-prudence, nonetheless, many of them remain unresolved, while the resolution of one uncertainty often leads to the development of another. The purpose of this article is to examine the issues related to the interpretation on the basis of Article 66 of the Polish Commercial Companies Code of the reason for the dissolution of the company aris-ing on the part of one of the partners, to identify the subject of the takeover, to specify the legal nature and the moment of transfer of the company’s assets and liabilities to one of the partners, as well as to consider certain procedural aspects that may emerge over the course of the proceedings.

Deprivation of a general partnership partner’s right to represent the partnership and to manage its affairs by way of legal proceedings: selected issues

Issues related to depriving a partner of a general partnership of the right to represent the partnership and conduct its affairs by way of legal proceedings raise many doubts in the literature. The purpose of this article is to attempt to resolve these doubts and to indicate the proper way of interpreting Articles 30 § 2 and 47 of the Polish Com-mercial Companies Code. The possibility to bring an action before a court based on the indicated provisions has been recognized as a corporate right vested in every partner. The exercise of this right aims at shaping the legal relationship between partners. Since a judgment in this type of case affects all partners, all of them should be par-ties to the court proceedings. On the other hand, the partnership itself is not entitled to bring an action under Articles 30 § 2 and 47 of the Polish Commercial Companies Code, as the partnership cannot shape its organiza-tional structure on its own.

A case triggered by bringing an action under Articles 30 § 2 and 47 of the Polish Commercial Companies Code is a property (and not a non-property) case within the meaning of Article 17 of the Code of Civil Procedure. A partner exercising the right under Articles 30 § 2 and 47 § 2 of the Polish Commercial Companies Code may claim not only the deprivation of another partner’s rights to represent the company or to conduct its affairs but also the limitation of these rights.

New regulations for securing claims in intellectual property cases (effective July 1, 2023)

The article presents and discusses the provisions of collateral proceedings effective July 1, 2023, on securing claims in intellectual property cases. The reasons prompting the legislator to introduce special regulations are indicated, in particular the high risk of causing damage to the debtor that can be difficult to rectify, if the secured injunction claim turns out to be unfounded. The new regulations aim to mitigate the indicated risk via a directive ordering that the likelihood of invalidation of the exclusive right in other pending proceedings be taken into ac-count (Article 7301 § 11 of the Polish Code of Civil Procedure), imposing an information obligation on the claim-ant (Article 736 § 5 of the Polish Code of Civil Procedure), introducing an adversarial element into the securing proceedings (hearing of the debtor – Article 755 § 22 of the Polish Code of Civil Procedure), and depriving the protection of the claimant who filed the security application too late.

The author positively assesses the direction of most of the new regulations, while pointing out some interpreta-tive doubts regarding, amongst other things, their scope of application. At the same time, the legislator’s solution, ordering the dismissal of the application for securing claims if the application is filed more than six months after the date of knowledge of the infringement of the exclusive right, is criticized. This solution seems too rigid and may lead to unfair consequences for the applicant when their inaction is justified.

On the invalidity of resolutions of professional self-government bodies – comments on the example of the professional self-government of attorneys-at-law

This article aims to reflect on the effects of illegal resolutions of professional self-government bodies in light of the concept of conventional activities. Assuming that the mentioned resolutions are examples of such activities, the author proposes that such a contradiction should be treated not so much as a basis for the invalidity of the resolu-tion, but as a premise for repealing them or establishing their non-existence. Such a classification leads to the for-mulation of several more detailed conclusions, particularly the thesis on the permissibility of resolutions contrary to law to produce legal effects.

Facing a conflict of interest. Amendment to the Code of Ethics for Attorneys-at-law

The subject of this publication is the issue of conflict of interest in the profession of an attorney-at-law. The work analyzes the conflict of interests in the face of changes made in the wording of the Code of Ethics for Attorneys-at-law and the Regulations on the Practice of the Profession. It is examined whether changes in the scope of compli-ance with the obligation to avoid conflicts of interest are revolutionary or orderly in nature, and attention is paid to the obligations of attorney-at-law resulting from the obligation to avoid conflicts of interest.

Gloss to the judgment of the Polish Supreme Administrative Court of December 8, 2022, case file no. II GSK 1225/19 (critical)

This gloss concerns the judgment of the Polish Supreme Administrative Court sustaining the verdict of the Voivod-ship Administrative Court [Polish: Wojewódzki Sąd Administracyjny, WSA] in Warsaw on the decision regarding registration on the list of attorneys-at-law. The court dismissed two cassation appeals filed by the Board of the National Bar Council of Attorneys-at-Law and the Minister of Justice against the judgment of the Voivodship Ad-ministrative Court in Warsaw of May 29, 2019, case file no. VI SA/Wa 2395/18 in a case involving a complaint by J. N. against the decision of the Minister of Justice of October 16, 2018. no. DZP-III-6110-485/18/3 on refusal of entry to the list of attorneys-at-law. 

Overview of the decisions of the Polish Supreme Court

The Judgment of the Polish Supreme Court of October 26, 2023 (case file no. III CZP 34/23) is of particular im-portance for legal practice. The Court indicated that if the leasing contract was terminated by agreement of the parties, Article 709(15) of the Civil Code shall not apply unless the parties have agreed otherwise. In the Judgment of October 26, 2023 (case file no. III CZP 18/23), the Polish Supreme Court stated that confirmation of inheritance under Article 681 of the Polish Code of Civil Procedure may also apply to heirs who died after initiating proceed-ings for the division of inheritance. Moreover, in the Judgment of the Polish Supreme Court of October 19, 2023 (case file no. III CZP 9/23), the Polish Supreme Court decided that the receivable due to the housing cooperative in respect of fees for the renovation fund may be written off by offsetting.

Work-life balance the Polish way – key thoughts after the 2023 amendment

The article concerns the method and effects of implementing Directive 2019/1158 in the field of work-life balance. The author refers to the most important thematic areas of amendments, i.e. mainly parental rights, and places them in the context of work-life balance and working time. The author indicates the most important problems regarding the implementation of the so-called work-life balance directive in this context. There are still many unsolved issues and most impor-tantly the question of whether all changes were equally necessary. The author also raises the issue of working time as a key element in the interpretation of changes in the labor law system.

Amendment to the Labor Code implementing Directive (EU) 2019/1152 on transparent and predictable working conditions in the European Union – assessment and analysis of the regulation

The article aims to analyze the changes introduced on April 26, 2023, to the Polish Labor Code, adapting its regulations to the Directive (EU) 2019/1152 of the European Parliament and of the Council of June 20, 2019, on transparent and predictable working conditions in the Euro- pean Union. The objective scope of the article includes the obligation to provide information by the employer, parallel employment, the rules for concluding an employment contract for a probationary period, the request for a form of employment with more predictable and secure working conditions, and the requirements for terminating employment contracts. An attempt is also made to assess new regulations in terms of their compliance, accuracy and purposefulness with the recommendations of the Directive 2019/1152. In addition, attention was paid to the need for the introduction of an additional change in Polish regulations.

New regulations on termination of fixed-term employment contracts

The article is devoted to the issue of recent changes in the Polish Labor law regarding the termination of fixed-term employment contracts. After the 2015 amendment, this is another major change in this area. How this issue has been normalized has raised many doubts in the science of labor law for years. It requires taking into account and balancing several important issues: the essence and purpose of the fixed-term employment contract in labor law, the equal treatment of employees on fixed-term and indefinite contracts, and the potential impact of the regulation on the labor market. The article aims to show the background to the amendment of the provisions on the termination of fixed-term contracts and its potential effects while taking into account the jurisprudence of courts and views presented in this regard by representatives of the labor law doctrine.

Remote work after changes in the Polish Labor Code

One of the effects of the COVID-19 pandemic was the introduction of a remote work system for those employees who could work outside of the workplace. The adoption of such a solution was made possible by the Act of March 2, 2020, on special solutions related to the prevention, counteracting and combating of COVID-19, other infectious diseases and crises caused by them, the Polish Journal Of Laws from 2020, item 374, as amended, commonly referred to as anti-COVID, or anti-crisis, shield. A temporary solution designed to contain the spread of SARS-CoV-2 has become, over time, a regular form of work. Therefore, there was a need to regulate the rules of remote work. The Marshal of the Sejm received the draft of the act amending the Polish Labor Code and certain other acts (print no. 2335) concerning precisely remote work. The purpose of this publication is to present the aforementioned draft of the act concerning remote work, as well as an analysis of the provisions introduced in the Polish Labor Code.

Remuneration at hourly rates – guidelines for attorneys-at-law providing legal assistance to consumers on the basis of the judgment of the Court of Justice of the European Union of January 12, 2023 (case file no. C-395/21)

The article addresses the issue of the legal qualification of various defects in contractual provisions concerning remuneration for the provision of legal assistance to consumers. The impetus for bringing this issue closer is the recent judgment of the Court of Justice of the European Union of January 12, 2023, (case file no. C-395/21) which took interest in the area of rules for the exercise of legal professional activity. This is because, from the perspective of the EU law, it contains an assessment of the legal consequences of the lack of transparency of provisions shaping contractual remuneration based on hourly rates for services provided to consumers by the Lithuanian attorneys. The purpose of this article is not only to present the assumptions of this ruling, but also, taking them into account, to formulate conclusions that, in light of the Polish law, should be addressed at attorneys-at-law and other Polish service providers, both operating in the regulated and unregulated legal services market.

Exemption from professional secrecy under article 180 § 2 of the Polish Code of Criminal Procedure and the professional independence of an attorney-at-law. Polemical remarks

The subject of this publication is the professional independence of an attorney-at-law and its normative sources. The work attempts to answer the question to what extent the aforementioned independence is influenced by the professional secrecy and whether the exemption from this secrecy in the manner provided by separate regulations, including by the article 180 § 2 of the Polish Code of Criminal Procedure, decreases the professional independence of an attorney-at-law. The text is polemical in nature.

Legal aspects of “neighborhood” nuisance – Part Three (criminal liability)

The study concerns the legal aspects of a nuisance to which a person may be exposed at their place of residence. The authors analyze the provisions specifying offences and petty offences described in the Polish Criminal Code, the Polish Code of Petty Offences, and the Act of April 27, 2001 on the environmental protection law, which may be applicable in counteracting nuisance “neighborhood” noise.

Gloss to the resolution of the Polish Supreme Court of October 6, 2022, case file no. III CZP 112/22

The thesis of the voted resolution reads: An in-court decision is a non-existent decision when the signature has been placed only under the entire document comprising the sentence and the principal reasons for the decision (Article 357 § 5 of the Code of Civil Procedure).

The article is an approving gloss to the Supreme Court resolution of October 6, 2022, case file no. III CZP 112/22, which once again analyses the problem of non-existent judgements (sententia non existens). The discussed resolution, although its sentence is a part of the established and grounded line of rulings of the Supreme Court, in its grounds undertakes consideration of a new issue, so far very rarely discussed in the civil procedural law literature and not analyzed in the jurisprudence. In fact, it focuses on the institution of “fundamental reasons for decision” referred to in Article 357 § 5 of the Polish Code of Civil Procedure, and in particular on the impact of the method of its use on the existence of the issued judgment.

In the grounds for the resolution commented upon, it was correctly pointed out that the abovementioned institution constitutes a separate procedural activity from the drafting of the sentence and grounds for the decision. At the same time, it was noticed that it has not been, in fact, precisely regulated, which, on the one hand, may create difficulties in its practical use by courts, and, on the other hand, it does not allow for applying to it per analogiam regulations regarding the drafting of justifications. The above considerations have led the Polish Supreme Court to two important conclusions.

The first point is that if the principal reasons for a judgment are formulated in writing by the court giving the judgment in question as a separate element of the judgment – linguistically and graphically distinct from the sentence – then the signatures of both the sentence and the principal reasons are required. The absence of both of these signatures, as stated in the resolution, results in the judgment not existing (sententia non existens). This conclusion, as rightly pointed out, follows directly from the language of the regulations of the Polish Code of Civil Procedure which regulates both the drafting of judgments and the performance of litigation actions.

The second important conclusion formulated by the Polish Supreme Court in the commented resolution comes from the conclusion that both the provisions regulating the content of the sentence and the provision of Article 357 § 5 of the Polish Code of Civil Procedure, which refers to the ‘principal reasons for the decision’, do not exclude the possibility of both elements forming a compact whole. Therefore, the Court assumed that if the sentence of the judgment is connected, combined with the fundamental reasons for its issuance into a single complete unit, including linguistically and graphically, these actions, as it were, “unite” in such a way that the judge’s signature at the end of such a document does not render it non-existent. The judgment issued in such a way complies with all the requirements set out in the regulations, it is an existing judgment.

The resolution commented upon deserves full approbation. However, a certain dissatisfaction is left by the fact that the essence of the correct considerations of the Polish Supreme Court contained in its justification was not reflected in the operative part of the resolution, as a result of which its influence on the jurisprudence practice may turn out to be insignificant.

Overview of the decisions of the Polish Supreme Court

The resolution of the panel of seven judges of the Polish Supreme Court of June 21, 2023 (case file no. III CZP 94/22) is of utmost importance for legal practice. In the resolution, the Polish Supreme Court assumed that Article 2 of the Act of July 6, 2001 on preserving the national character of the country’s strategic natural resources does not exclude the possibility of usucaption of real estate constituting a state forest. Another important resolution of the Polish Supreme Court is the resolution of the panel of seven judges of June 14, 2023 (case file no. III CZP 84/22). As indicated by the Supreme Court, declaring the debtor’s bankruptcy does not cause the creditor’s loss of legitimacy to bring an action to declare the debtor’s legal act ineffective under Art. 527 of the Civil Code.

Attorney-at-law in the proceedings conducted by the new OLAF and EPPO

The article extensively discusses the issue of combating broadly understood white-collar crime and crimes affecting the interests of the European Union, per the PIF Directive, as well as the new police and investigative powers of the European Anti-Fraud Office (OLAF) and the European Public Prosecutor’s Office (EPPO). The author not only discusses OLAF’s policing and investigating powers but also points to the role of an attorney-at-law as a person who serves both advice and ensures that procedural guarantees are observed. By presenting in detail the catalogue of procedural guarantees and the role of the Controller of Procedural Guarantees, the author indicates the mechanisms of ensuring the protection of the person who is subject to EU investigation as well as presenting the necessity for a support of a professional legal representative. The detailed description of procedural guarantees is followed by postulates of strengthening the independence and expansion of the system of protection of procedural guarantees by providing it with an independent back office and establishing Controllers of Procedural Guarantees in countries where OLAF will be the leading institution of European investigations (Poland, Hungary, Sweden, Ireland and Denmark).

Compensation for recovery costs – selected issues

The subject of consideration is the right of the creditor to demand a flat-rate compensation for recovery costs from the debtor, established in the Act on Prevention of Excessive Delays in Commercial Transactions. Since its introduction into the Polish legal order, this right has given rise to significant interpretative doubts, particularly concerning the prerequisites for rendering the compensation immediately due and payable, the debtor’s ability to defend against this claim, and the issue of including the compensation in the costs of the lawsuit or in the value of the subject matter of the dispute in court proceedings. These doubts, in the author’s opinion, are largely due to the shortcomings of the legal regulation of compensation, which does not include in its scope many important issues, as well as its highly autonomous nature, which in turn prevents the analogous application of solutions concerning other legal institutions.

Legal aspects of “neighborhood” nuisance – Part Two (civil liability)

The authors analyze civil law protection measures, in particular the claim for the protection of personal rights under Article 23 and Article 24 of the Polish Civil Code, as well as the restitution claim under Article 222 § 2 of the Polish Civil Code due to nuisances, which may be applicable in counteracting “neighborhood” nuisance such as noise.

The consequences of a voivodeship administrative court’s upholding the complaint on the Ministry of Justice’s opposition to registration on the list of attorneys-at-law

The main aim of this work is to analyze the consequences voivodeship administrative court’s ruling which revokes the opposition to registration on the legal counsel’s list issued by the Ministry of Justice. The main issue here is the fact, that due to Article 152 § 1 of the Act on Administrative Courts Proceedings, the effect of a ruling which revokes the administrative act is that the legal effects of such an act are suspended until the court’s ruling will not be final and enforceable. In such a case, an important question arises – should the competent authorities of the National Bar of Attorneys-at-Law assume that the registration on the attorneys at law’s list is legal and as a result set the date for the candidate to take the oath? The analysis of the law and the nature of the Ministry’s objection leads to conclusions that the aforementioned effect of Article 152 § 1 does not occur in such a case. This is due to the dual nature of the objection. On the one hand, it is an administrative act (conventional activity), but on the other hand, it is part of the hypothesis of the legal norm preventing the release of the disposition. As a result, it can be assumed that the objection in this regard is a factual act.

Nature and its elements. Objects of legal protection or subjects of law?

The article discusses the legal status of nature and its selected elements. The author confronts the achievements of legal thought with the postulates of strengthening nature protection by empowering some of its resources. The author discusses whether the current legal order, which undoubtedly treats nature and the environment as objects of legal protection, allows for treating nature (environment) and its elements as subjects of law. The foundations of the legal protection of the environment, including nature, are presented in the Environmental Protection Act of 2001 and the Nature Conservation Act of 2004. These acts formulate legal definitions of the environment, natural environment and nature protection, while at the same time indicating elements of nature or natural resources. On the one hand, it is possible to discuss comprehensive nature protection, and on the other hand, the protection of individual natural resources (environment). The legal status of individual natural resources is rather diverse. The legislator does not diversify the legal protection granted to individual natural resources. In this case, one may ask why only some natural elements should be entitled to subjectivity since even natural scientists refuse to differentiate the rank and significance of natural elements. The author puts forward the thesis that the ideas of giving specific natural resources subjectivity and even legal personality, which is supposed to promote their better protection, are not correlated with the applicable legal regulations. In addition, they express skepticism as to more effective protection through further organizational and legal forms.

An attempt at reflection on the state response to the COVID-19 pandemic – remarks on the legal order during the period of the epidemic and its impact on human rights and freedoms

The article concerns the relevant legal aspects of the state of epidemics, the state of epidemic emergency and the state of natural disaster, as well as the permissible procedures for restricting rights and freedoms during these states in light of the Constitution of the Republic of Poland. In particular, the vagueness of the prerequisites for the introduction of these states and the arbitrariness of the application of solutions, including anti-epidemic restrictions through ordinances are pointed out. The issue of punishing violations of anti-epidemic prohibitions and orders is also raised, with emphasis on the low effectiveness of administrative penalties. Excessive powers of the executive and responding to an emergency without parliamentary control are also pointed out.

Gloss to the judgment of the Court of Appeal in Łódź of April 25, 2018, case file no. I AGa 109/18

The aim of the study is to analyze and evaluate the judgment of the Court of Appeal in Łódź of April 25, 2018, case file no. I AGa 109/18. In that judgement, it is stated that, in the event of an action for the right to take over the assets of a general partnership being brought against a partner on whose part there was no reason for the dissolution of that entity (Article 66 of the Polish Code of Commercial Companies), the court must assess the reasons for which a formal declaration of termination of the general partnership agreement was made, as well as the substantive reasons justifying the making of such declaration. At the same time, the Court stated that it was unnecessary to justify the termination of a general partnership. The position taken by the Court deserves only partial approval. The author proves this thesis by first analysing the arguments used by this Court and then comparing the aforementioned judgment with other decisions of common courts of law and the views of the doctrine.

Overview of the decisions of the Polish Supreme Court

The Judgment of the Polish Supreme Court of April 13, 2023 (case file no. III CZP 125/22) is of particular importance for legal practice. The Court indicated that a claim for a legitime does not pass to the heir of the person entitled to the legitime if they do not belong to the group of persons entitled to a legitime after the first testator (Article 1002 of the Civil Code). In the Judgment of March 15, 2023 (case file no. II CSKP 1835/22), the Polish Supreme Court stated that the joint intention of the parties should be understood as the agreed factual and legal elements shaping the essential provisions of the contract. The contractual objective is the broadest socio-economic objective of the individualized agreement. Moreover, in the Resolution of February 22, 2023 (case file no. III KK 13/22), the Polish Supreme Court decided that an electric scooter equipped with an engine with parameters similar to the power of an electrically assisted bicycle engine, which retains all the normal characteristics of construction, enabling its normal operation as a scooter, i.e. moving by pushing off with the leg, is not a motor vehicle within the meaning of the provisions of the Polish Penal Code.

Professional secrecy of an attorney-at-law (and an attorney) and the use of instant messaging applications in the work of a professional lawyer

Practicing as an attorney-at-law (or an attorney) as a profession of public trust is associated with higher standards regarding professional deontological codes. The ratio legis of such a regulation is related to the fact of providing services of the highest possible quality and fulfilling the constitutional role related to the legal protection of citizens. In order to ensure the possibility of effective practice of the profession, the legislator provided for the institution of professional secrecy. It obliges not only state authorities not to interfere with the knowledge made available by individuals to their lawyers but also obliges attorneys-at-law (and attorneys) themselves to take all measures to protect this secrecy. Instant messaging is one of the most convenient forms of communication between a lawyer and a client. However, there are doubts about the confidentiality of the messages (and other data) sent. This article answers the question regarding the disciplinary liability of a professional attorney for the use of instant messaging to transmit information covered by professional secrecy. The author analyzed data transfer security on the basis of the two most popular messengers in Poland: Messenger and WhatsApp.

Attorney-at-law and the act on the protection of persons who report breaches of the law

The article presents the legal situation of an attorney-at-law against the background of the draft of the act on the protection of persons who report breaches of law with particular emphasis on the rules of professional ethics applicable to attorneys-at-law. The admissibility of an attorney-at-law as a whistleblower was settled. Amongst other issues, it was addressed whether an attorney-at-law can report on behalf of an employee (based on a power of attorney) a violation of the law committed by another attorney-at-law and whether they can also make such a report on their behalf.

Adjudication of the punitive damages in the law on petty offenses

The article presents the issues related to the institution of punitive damages operating under the Polish Code of Petty Offenses. Measures provided by the law on petty offenses, as a part of the broadly understood criminal law, should be interpreted in an analogous way in both of these codifications. However, as a result of changes to the Polish Penal Code introduced in 2015, there are clear differences between the punitive damages provided for in the Polish Code of Petty Offenses and the punitive damages adjudicated under the Polish Penal Code. In this respect, it is necessary to postulate that appropriate changes should be made by the legislator.

Contributory debt as a cause of the statute of limitations on the right to sickness insurance benefits of an entrepreneur

As of January 1, 2022, the act on monetary benefits from social security in case of sickness and maternity was amended, consisting, amongst other things, of the introduction of Article 2a, which modified the mechanism for acquiring the right to sickness insurance benefits for persons who are contributors to their own insurance. The purpose of the new regulation was to connect the acquisition of the right to benefits with the absence of a contributory debt exceeding 1% of the minimum wage, under the pain of the statute of limitations in the event of failure to settle the debt within six months from the date the right to benefits arises. The article presents the subject and object scope of the new legal regulation, discusses the concept of contributory debt, analyzes the legal nature of the statute of limitations and also points out the circumstances that may affect its course. The study makes extensive use of court case decisions regarding Article 6(2) and (3) of the act on social insurance for accidents at work and occupational diseases.

Legal aspects of “neighborhood” nuisance – Part One (administrative liability)

The study concerns the legal aspects of a nuisance to which a person may be exposed at their place of residence. The authors analyze the issue in terms of the provisions of the act of April 27, 2001 on the environmental protection law. They refer to such issues as permissible levels of noise in the environment; the decision on permissible noise levels; suspension of the use of a noise-emitting installation; ordering an individual whose activity adversely affects the environment to perform actions aimed at reducing the negative impact on the environment and its threat or restoring the environment to its proper state; halting activities that cause deterioration of the environment to a significant extent or threaten human life or health; establishing restrictions on the duration of operation of installations or use of equipment from which the emitted noise may adversely affect the environment, as well as prohibiting the use of sound installations or equipment in certain areas.

Special solutions related to the COVID-19 epidemic regarding the working time of employees of medical entities

The COVID-19 epidemic and the measures taken to combat it have revealed many imperfections in the legal system. In order to enable certain groups of key employers to operate continuously in the event of an epidemic threat and epidemic, the legislator granted them special powers in the field of working time. Medical entities play a key role in this period. The aim of the article is to analyze the rights of these employers under the provisions of the special COVID act and their relationship to special provisions regulating the working time of employees of these entities.

Overview of the decisions of the Polish Supreme Court

The Resolution of the Polish Supreme Court of November 16, 2022 (case file no. III CZP 116/22) is of particular importance for legal practice. The Court indicated that Article 13a of the act of July 28, 2005 on court costs in civil matters (consolidated text of the Journal of Laws of the Republic of Poland 2022, item 1125) applies to claims arising by consumers resulting from banking activities (Article 5 § 1 and 2 of the act of August 29, 1997 – Banking Law, consolidated text, Journal of Laws of the Republic of Poland 2022, item 2324). In the Resolution of October 20, 2022 (case file no. III CZP 96/22), the Polish Supreme Court stated that the incurring by the claimant of the costs related to the service by the bailiff after the issuance of the judgment closing the proceedings in the case justifies the award of these costs from the defendant pursuant to Article 1081 of the Polish Code of Civil Procedure.

Attorney-at-law – a profession of the future?

Attorney-at-law plays an essential role in legal professions. Who is it and who can become one? These questions must be answered in light of the challenges of today and the shaping of the professions of tomorrow. These professions will define the boundaries between each of the legal services in the 21st century.

Using a real property and liability for interfering with using neighboring, residential real properties

Exercising ownership of a real property, in particular its use, might result in interfering with the use of neighboring, residential real properties. The article concerns the legal means available in the case of the use of a real property is a source of interference in the use of a neighboring, residential real property. The article analyzes not only the range of legal means available in these cases but also the range of entities that can be addressees of the actions undertaken by the owner seeking legal protection.

Questioning the arrangements regarding the amount of compensation for land plots allocated for public roads under Article 98(1) of the Real Property Management Act at the stage of administrative proceedings to determine compensation

The article presents the view in favor of the possibility (obligation) for investigation and questioning by the public authorities in the process of determining the compensation for land plots allocated for public roads, which have become the property of a local government unit or the Treasury on the basis of Article 98(1) of the Real Property Management Act, the results of arrangements regarding the amount of compensation reached through negotiations (civil law action) between the owner of the land plot allocated for a public road and the competent authority. The purpose is to demonstrate the situations in which such an investigation is necessary, and that it falls within the cognition of public authorities and administrative court rulings on compensation.

The issue of taxation of non-building structures. Selected issues

The study concerns the issue of taxation of non-building structures with real property tax. According to Article 2(1)(3) of the Local Taxes, Fees and Charges Act of January 12, 1991, non-building structures or parts thereof related to the conducting of business activities are subject to real property tax. In general, it must be noted that one can find extensive studies of real property tax in the scientific literature, while the issue of real property taxation of non-building structures has been treated rather partially. It should be emphasized that the titular issue has so far been the subject of mutually exclusive views in the doctrine, and has not been uniformly viewed in the judicature. The primary intention of the research is to characterize what impact the current legal regulations have in this regard to determine its extent on the tax law system. It is necessary to consider, in the context of the current legal regulations, what are the directions of changes of the analyzed institution, in particular through the perspective of real property tax dependent on the value of the non-building structure.

Failure of the commune to fulfil its obligations in proper waste collection

In practice, in the implementation of municipal waste collection obligations by a commune, a situation may arise in which waste is collected from property owners under standard regulations functioning in the commune, but the “production” of waste is greater (non-standard), which means that the waste does not fit into a container or trash enclosure. A question then arises as to the manner of handling such waste and the possibility of applying the mechanism provided for in Article 6s of the Maintaining Tidiness and Order in Communes Act, according to which, if the commune does not fulfill the obligation to collect municipal waste from property owners, the property owner is obliged to transfer municipal waste, at the expense of the commune, to an entity collecting municipal waste from property owners, entered in the register of regulated activities. The subject of the article is the analysis of the legal and factual solutions regarding possible ways of proceeding in the aforementioned situation.

Penal law protection of trees

The article presents criminal law provisions that penalize the destruction or damage of trees. Only some of them protect trees as an essential element of nature. Other provisions primarily protect property, which includes trees as part of real estate. The analysis carried out in the study found that the legal protection of trees largely depends on the location where the tree grows. Some regulations apply to trees growing in forests, others to trees located in protected areas such as national parks, and others to trees located, for example, along the roadside.

The study also presents the problem of the classification of a certain factual state and the conjunction of regulations. In many cases, the classification as a crime or a misdemeanor will be determined by whether a specific behavior resulted in substantial damage, which is an evaluative criterion. Also addressed is the problem of wobbler offenses, including the difficulty of determining the value of stolen timber or the amount of damage when a tree is destroyed or damaged.

Gloss to the decision of the Polish Supreme Court of March 16, 2017, case file no. IV KK 57/17 (critical)

The article is a critical analysis of the problem raised by the Polish Supreme Court in the decision of March 16, 2017, case file no. IV KK 57/17, related to the possibility of the influence on criminal liability of the circumstance in the form of the origin of the perpetrator of a criminal activity coming from a different cultural background. The considerations carried out focus on the goal in the form of answering the question of the possibility of accepting the indicated circumstance as a justification for the foreigner’s error as to the unlawfulness of their behavior. Normative support for the considerations carried out is Article 30 of the Polish Penal Code, which regulates the consequences of the occurrence of the so-called error as to the law.

Gloss to the decision of the Polish Supreme Administrative Court of February 23, 2022, case file no. III OSK 820/21 (partially approving)

The gloss concerns the decision of the Polish Supreme Administrative Court of February 23, 2022, which examined a complaint against a decision imposing an obligation to pay a fee for water services under the New Water Law Act of July 20, 2017.

The content of the aforementioned decision raised issues that cause interpretative difficulties, but at the same time, due to the short duration of the regulation being in force, have not yet been the subject of a wider examination by the administrative judiciary.

In the case which is the subject of the decision, the entity charged with the obligation to pay the fee challenged the decision of the commune head determining the amount of the fee, challenging both how the authority determined what specific land should be considered real property within the meaning of the New Water Law Act, and also objected to the authority’s failure to recognize in the decision the individual sewage system located on the complainant’s land and discharging rainwater from the complainant’s land into a ditch as a stormwater drainage system within the meaning of the provisions of the aforementioned Law, accounting for the area where the complainant used construction facilities, the construction of which was associated with a reduction in natural terrain retention.

In assessing the case, the court of the first instance primarily examined the scope of the concept of real property and the area included in open or closed stormwater drainage systems.

Both the Regional Administrative Court, ruling on the complaint in its October 18, 2018 decision, case file no. II SA/Sz 735/18, and the Polish Supreme Administrative Court did not share the applicant’s position, dismissing the complaint.

The decision of the Polish Supreme Administrative Court concerns a problematic issue, raising many doubts even before the legislation introducing it came into force.

In the opinion of the author of the gloss, the court in question, in its decision, failed to address concerns that have arisen around the regulation of fees for the reduction of natural terrain retention.

Report on the scientific conference “Challenges of the self-government of attorneys-at-law in the modern times” (June 23–24, 2022, Toruń)

The scientific conference, “Challenges of the self-government of attorneys-at-law in the modern times” was organized on June 23–24, 2022 in Toruń on the occasion of the 40th anniversary of the National Bar of Attorneys-at-Law by the Toruń Bar Association of Attorneys-at-Law. It addressed the tasks of the attorneys’-at-law self-government, both in the context of the community and in the context of the role of professional self-government in a democratic state of law, as well as the role of attorneys-at-law in the system of legal protection bodies and civil society, and their participation in social, economic and technological changes at the local and national levels.

Overview of the decisions of the Polish Supreme Court

The Resolution of the Polish Supreme Court of October 6, 2022 (case file no. III CZP 119/22) is of particular importance for legal practice. The Court indicated that the compensation due from the insurance company under the contract of third party liability insurance of motor vehicle owners for damages arising from the use of these vehicles covers only necessary and economically justified repair costs. In the Resolution of October 6, 2022 (case file no. III CZP 112/22), the Polish Supreme Court stated that the ruling issued in closed session is a ruling that does not exist if the signature has been placed only under the entire document including the operative part and the main reasons for the ruling (Art. 357 § 5 Civil Procedure Code). Moreover, in the Resolution of June 2, 2022 (case file no. I CSK 219/22), the Polish Supreme Court decided that the submission by parents on behalf of a minor child of a declaration of inheritance rejection is an activity that exceeds the scope of the ordinary management of the child’s property, and making it without the prior consent of the guardianship court entails the nullity of this type of declaration. In addition, the Polish Supreme Court, in the Resolution of May 31, 2022 (case file no. II CSKP 34/22), stated that bringing an action by a parent on behalf of a child for the protection of personal rights against the other parent of that child is an act of representation of the child.

Celem artykułu jest wyjaśnienie charakteru zawodów prawniczych jako eksperckich. W szczególności podjęta została próba odpowiedzi na pytanie, na czym w przypadku tych zawodów polega rola społeczna wymagająca zastosowania abstrakcyjnej wiedzy do konkretnych przypadków. Punktem wyjścia do rozważań są teorie społeczne ujmujące tę rolę jako pośredniczenie oraz integrowanie struktury społecznej. Następnie, przy pomocy metodologii metafory kognitywnej, charakterystyka ta została doprecyzowana poprzez zestawienie z innego rodzaju działalnością ekspercką, tj. translacją. Dzięki temu wskazane zostały praktyczne problemy w pracy prawnika związane z pośredniczeniem w strukturze społecznej między abstrakcyjną wiedzą o prawie a rozwiązywaniem jednostkowych problemów prawnych. Problemy te scharakteryzowane zostały przede wszystkim jako trudności w posługiwaniu się różnymi językami przez instytucje oraz obywateli.

Lawyer as a Translator. On the Metaphorical Understanding of the Expert Nature of Legal Professions

The purpose of this article is to clarify the nature of legal professions as experts. In particular, an attempt has been made to answer the question of what, in the case of these professions, is the social role that requires the application of abstract knowledge to specific cases. The starting point for consideration is social theories that see this role as a mediation and integration of the social structure. Next, using the methodology of cognitive metaphor, this characterization is further clarified by juxtaposing it with another type of expert activity, i.e., translation. Thus, practical problems were identified in the work of a lawyer, related to mediating in the social structure between abstract knowledge of law and solving individual legal problems. These problems were characterized primarily as difficulties in the use of different languages by institutions and citizens.

Badacze populizmu zwracają uwagę na istotną rolę języka w realizacji jego agendy. Rola ta jest widoczna w praktykach propagandowych, w próbach redefiniowania pojęć zastanych i w zmianie konwencji społecznych, w tym konwencji językowych.

Niedawna fala populizmu (2010–2021) w szczególny sposób dotyczy prawa i praworządności, a tym samym zjawiska takie jak propaganda, redefinicja pojęć i zmiana konwencji realizują się często w obszarze języka prawa. Niniejsze opracowanie ma na celu analizę, jaki jest mechanizm powodowanych przez populizm zmian w konwencjach językowych rządzących językiem prawnym i prawniczym, a narzędziem tej analizy jest filozofia prawa wykorzystująca dorobek filozofii języka.

Wykorzystując pojęcia i teorie zaproponowane przez E. Laclaua, N. Lacey, R.G. Millikan i F. Recanatiego, w niniejszym opracowaniu wyjaśniam, na czym polega przeprowadzana przez populistów zmiana kultury prawnej, definiowanej jako zbiór konwencji językowych i behawioralnych istotnych dla prawa.

Główna teza opracowania w tym zakresie to twierdzenie, że populistyczna zmiana kultury prawnej polega na uczynieniu ważnych dla prawa pojęć znakami pustymi bądź nieustannie zmiennymi oraz na niszczeniu konwencji prawnych poprzez 1) zaprzestanie reprodukcji zachowań, które konstytuowały dotąd konwencje językowe i behawioralne w obszarze prawa; lub 2) rozpoczęcie reprodukcji zachowań nowych. W obu przypadkach zmiana konwencji wiąże się z utratą przez nie zdolności do realizacji funkcji właściwej w rozumieniu R.G. Millikan, a więc powoduje zmniejszenie bądź utratę przydatności społecznej. Z przeprowadzonej analizy płyną wnioski co do tego, jak można przeciwdziałać populistycznej zmianie kultury prawnej.

The language of legal populism – a philosophical and legal perspective

Populism researchers draw attention to the vital role of language in the implementation of Popularist agenda. This role is discernible in propaganda practices, in attempts to redefine pre-existing notions, and in changing social – but also – linguistic conventions.

The recent wave of populism (2010–2021) touches upon law and the rule of law in a special way, and thus phenomena such as propaganda, redefinition of notions and change of convention are often implemented in the field of the language of law. This elaboration is an attempt to analyse the mechanism of changes in the linguistic conventions governing the language of the law and legal language caused by populism, while the tool for this analysis is the philosophy of law applying the achievements of the philosophy of language.

Using the concepts and theories proposed by E. Laclau, N. Lacey, R.G. Millikan and F. Recanati, in this study, I explain what the change of legal culture – being conducted by populists – is, defined as a set of linguistic and behavioural conventions relevant to the law.

The predominant thesis of the research paper in this area is the claim that the populist change of legal culture consists in turning concepts that are vital for law into empty or constantly floating signifiers, and in destroying legal conventions by 1) ceasing to reproduce behaviours that have so far constituted linguistic and behavioural conventions in the field of law, or 2) initiating the reproduction of new behaviours. In both cases, the modification of the convention entails the loss of their ability to perform functions that are appropriate within the meaning of R.G. Millikan, and thus causes a decline or loss of social usefulness. The analysis carried out enables to draw conclusions as to how the populist change of legal culture can be counteracted. 

Artykuł podejmuje problematykę konstytucyjnych podstaw funkcjonowania samorządu zawodowego radców prawnych, określonych w art. 17 ustawy zasadniczej. Autor podkreśla szczególną wagę funkcjonowania niezależnych od władzy politycznej samorządów prawniczych, łącząc ich konstytucyjne atrybuty z aksjologią ustroju demokratycznego. Potrzebę zachowania niezależnego samorządu radców prawnych wywodzi z ich ustrojowej funkcji protektorów wolności i praw jednostki oraz współpracowników wymiaru sprawiedliwości. Kluczowym determinantem miejsca i roli samorządów prawniczych w systemie organów ochrony prawa jest przypisany im konstytucyjnie status zawodów zaufania publicznego i powiązana z nim funkcja ochrony interesu publicznego w działalności samorządu radców prawnych. W dalszej części opracowania autor skupia się na kwestii realizowania przez samorząd radcowski pieczy nad należytym wykonywaniem zawodu, m.in. za pomocą mechanizmów odpowiedzialności dyscyplinarnej, która w istocie służyć ma gwarantowaniu niezależnej politycznie, rzetelnej, a przez to efektywnej pomocy prawnej, świadczonej przez radców prawnych wobec ich klientów. W ostatniej części publikacji autor wskazuje na aktualne zagrożenia dla konstytucyjnie gwarantowanej niezależności samorządu radców prawnych, ich źródeł upatrując w konsekwentnym kwestionowaniu przez władzę polityczną standardów praworządności. Do jej przejawów zalicza m.in. nadmierną ingerencję Ministra Sprawiedliwości w sferę funkcjonowania samorządu radcowskiego oraz próby kwestionowania przez polityków rządzącej większości zgodności z Konstytucją RP fundamentalnej dla niezależnego i efektywnego funkcjonowania samorządu radców prawnych zasady obowiązkowej przynależności do tego samorządu.

Tasks of the National Bar of Attorneys-at-Law in the light of art. 17.1 of the Constitution of the Republic of Poland

The article deals with the issue of the constitutional basis for the functioning of the National Bar of Attorneys-at-Law as set forth in Article 17 of the Basic Law. The author stresses the particular importance of bar associations functioning independently from political power, linking their constitutional attributes to the axiology of the democratic system. He infers the need to preserve the independence of the National Bar of Attorneys-at-Law from their systemic function as protectors of the freedoms and rights of individuals and as collaborators in the administration of justice. The key determinant of the place and role of bar associations in the system of law protection authorities is their constitutional status of public trust professions and the related function of protecting the public interest in the activities of the National Bar of Attorneys-at-Law. Further in the paper, the author focuses on the issue of ensuring the proper practice of the profession by the National Bar of Attorneys-at-Law, e.g., through disciplinary liability mechanisms, which in essence are supposed to guarantee politically independent, reliable, and effective legal assistance is provided by attorneys-at-law to their clients. In the last part of the publication, the author points out the current threats to the constitutionally guaranteed independence of the National Bar of Attorneys-at-Law, seeing their sources in the consistent questioning of the rule of law standards by political authorities. According to the author, its manifestations include, inter alia, excessive interference by the Minister of Justice in the field of professional self-government of the attorneys-at-law and attempts by politicians of the ruling majority to question the constitutionality of the principle of mandatory membership in the National Bar of Attorneys-at-Law, which is fundamental for the independent and effective functioning of this professional association.

Niniejszy artykuł przedstawia problematykę misji samorządu zawodowego radców prawnych oraz misji radców prawnych zrzeszonych w samorządzie. Elementy definiujące w istocie rzeczy misję samorządu zawodowego, a także misję radców prawnych są wyznaczane przez cele postawione przed zawodem radcy prawnego, jakimi są udział w systemie wymiaru sprawiedliwości i wspieranie demokratycznego państwa prawnego. Artykuł 17 ust. 1 Konstytucji RP zawiera unormowanie wyrażające się w nałożeniu na samorządy zawodów zaufania publicznego obowiązku harmonijnego łączenia wielu funkcji. Co istotne, samorząd zawodowy ma nie tylko kształtować środowiskowe interesy osób wykonujących zawody zaufania publicznego, lecz także zmierzać do ich uzgodnienia z interesem publicznym. Samorządy zawodowe stoją w pierwszej kolejności na gruncie priorytetu realizacji interesu publicznego.

The mission of the self-government of attorneys-at-law and its members

This article presents the issues of the mission of the professional self-government of legal advisers as well as the mission of legal advisers associated with the self-government. The elements defining, in fact, the mission of professional self-government, together with the mission of legal advisers, are determined by the goals set for the profession of legal adviser, being participation in the justice system and supporting a democratic state ruled by law. Art. 17 sec. 1 of the Constitution contains a regulation expressed in the obligation to harmoniously combine the many functions of the self-governments of professions of public trust. Importantly, the function of professional self-government is not only to shape the environmental interests of people performing public trust professions but also to seek to agree them with the public interest. Professional self-governments are primarily committed to the priority of implementing the public interest.

Radcowie prawni, zarówno w wymiarze jednostkowym, jak i grupowym, to jest jako samorząd zawodowy, wykonując swoje obowiązki i powinności wynikające z przepisów prawa i norm deontologicznych określających ich status zawodowy, mają do odegrania rolę o charakterze ustrojowym. Rola ta polega na przyczynianiu się do umacniania oraz rozwijania demokratycznego charakteru Rzeczypospolitej Polskiej. Szczególnie doniosłym narzędziem służącym realizacji tego zadania samorządu radców prawnych jest przedstawianie opinii o projektach aktów prawnych. Jest to narzędzie ustrojowe, które ze względu na istotę zawodu radcy prawnego pozwala ich samorządowi na przedstawianie na etapie prac legislacyjnych ewentualnych zagrożeń wynikających z projektowanych aktów normatywnych dla gwarantowanych konstytucyjnie praw i wolności obywatelskich.

O ustrojowej roli radców prawnych w demokratycznym państwie prawnym można mówić również w wymiarze indywidualnym, który uwidacznia się przede wszystkim w toku świadczenia pomocy prawnej (przy wykonywaniu zawodu). Klauzula państwa prawnego nie może być wszak pozbawiona swojego fundamentalnego komponentu, za jaki uznaje się prawa i wolności jednostki. W tak rozumianym pojęciu państwa prawnego można i należy sytuować radców prawnych, którzy, świadcząc pomoc prawną, współuczestniczą w realizacji zasady państwa prawnego.

Ustrojowa rola, jaką mają do odegrania radcowie prawni w wymiarze indywidualnym i in gremio, czyli jako samorząd, nabiera szczególnego znaczenia w czasie kryzysu państwa prawnego. Samorząd radców prawnych, podobnie jak samorządy innych zawodów prawniczych, jest szczególnie predestynowany do tego, aby zabierać głos w debacie publicznej na temat zmian w wymiarze sprawiedliwości, które mogą godzić w porządek konstytucyjny.

The role of attorneys-at-law in a democratic state ruled by law

Attorneys-at-law, both at the individual and group level, i.e., as a professional self-government, when performing their duties and obligations arising from the provisions of law and deontological norms defining their professional status, have a role of a systemic nature to play. This role is intended to contribute to the strengthening and development of the democratic character of the Republic of Poland. A particularly important tool for carrying out this task of the National Bar of Attorneys-at-Law is the possibility to present opinions on draft legal acts, a constitutional tool which, due to the very essence of the attorney-at-law’s profession, allows the National Bar of Attorneys-at-Law to present at the stage of legislative work possible threats arising from the proposed normative acts to constitutionally guaranteed civil rights and freedoms.

The systemic role of attorneys-at-law in a democratic state ruled by law can also be seen in an individual dimension, which is manifested primarily in the course of providing legal assistance (as part of the professional practice). After all, the rule of law clause cannot be deprived of its fundamental component, which is considered to be the rights and freedoms of the individual. In this concept of the rule of law, attorneys-at-law, who participate in the implementation of the rule of law by providing legal assistance, can and should be treated as its constituent.

The systemic role to be played by attorneys-at-law individually and in gremio, i.e., as a professional self-government, becomes particularly important in times of crisis of the state ruled by law. The National Bar of Attorneys-at-Law, like the bar associations of other legal professions, is particularly predestined to take the floor in public debate on changes in the administration of justice that may violate the constitutional order.

Celem niniejszego artykułu jest analiza i ocena zjawiska tajemnicy zawodowej radców prawnych oraz ich niezależności. Artykuł ten wynika ze szczególnego zainteresowania autora zagadnieniami dotyczącymi niezależności radców prawnych oraz jej granic. Istotą tej publikacji jest zobrazowanie złożoności tego zjawiska.

Autor starał się zwrócić szczególną uwagę na sytuacje, w których obowiązek zachowania tajemnicy zawodowej ulega ograniczeniom wynikającym ze specyfiki konkretnego rodzaju postępowania – przede wszystkim postępowania karnego, ale także postępowania z zakresu ochrony konkurencji. Autor wskazuje również konsekwencje, które grożą radcy prawnemu za naruszenie tajemnicy zawodowej. 

Professional secrecy of attorneys-at-law and their independence

The goal of this article is to analyze and evaluate the phenomenon of professional secrecy of attorneys-at-law and their independence. This article is a result of the author’s particular interest in the issues concerning the independence of attorneys-at-law and its limits. The essence of this publication is to illustrate the complexity of this phenomenon.

The author tried to pay special attention to situations in which the obligation to maintain professional secrecy is subject to restrictions resulting from the specific nature of particular types of proceedings – primarily criminal proceedings, but also proceedings in the field of competition protection. The author also points out the consequences that an attorney-at-law faces for violating the obligation to maintain professional secrecy. 

Przedmiotem artykułu jest status samorządu radców prawnych, analizowany w świetle Kodeksu postępowania administracyjnego z perspektywy rozpatrywania skarg, wniosków i petycji. Analiza prowadzi do wniosku, że na gruncie Kodeksu postępowania administracyjnego samorząd radców prawnych jest organizacją społeczną. Tym samym jego organy są organami organizacji społecznej, chyba że załatwiają sprawy administracyjne. W opracowaniu wyróżniono 4 kategorie sytuacji związanych ze stosowaniem przepisów o skargach i wnioskach w ramach działalności samorządu radców prawnych.

The status of the self-government of attorneys-at-law in light of the Code of Administrative Procedure – from the perspective of considering complaints, requests and petitions

The subject of this article is the status of the self-government of attorneys-at-law analysed in the light of the Code of Administrative Procedure from the perspective of addressing complaints, requests, and petitions. The analysis leads to the conclusion that based on the Code of Administrative Procedure, the self-government of attorneys-at-law is a social organization. Thus, its bodies are the bodies of a social organization, unless they handle administrative cases. The paper distinguishes four categories of situations connected with the application of the provisions on complaints and petitions as part of the activities of the self-government of attorneys-at-law.

Artykuł przeprowadza kwalifikację prawną czynności zawodowych radcy prawnego dokonywanych na rzecz spółek kapitałowych prowadzących działalność prawniczą i ich klientów. Rozważa też argumenty za i przeciw wprowadzeniu możliwości legalnego wykonywania zawodu radcy prawnego w formie uczestnictwa w spółkach kapitałowych uprawnionych do świadczenia pomocy prawnej. W konkluzji autor wyraźnie opowiada się za zmianą obecnie obowiązujących zakazów reglamentacyjnych wykonywania zawodu radcy prawnego.

Membership in capital companies as a form of exercising the profession of attorney-at-law

The article conducts a legal qualification of attorney’s-at-law professional activities performed for the benefit of capital companies conducting legal activities and their clients. It also considers the arguments for and against introducing the possibility of attorney’s-at-law legal practice in the form of participation in capital companies authorized to provide legal assistance. In conclusion, the author clearly advocates for the change of the currently binding prohibitions on attorney’s-at-law profession.

Artykuł porusza zagadnienia związane z mobilnością zawodową radcy prawnego w świetle Kodeksu Etyki Radcy Prawnego. Autor omawia zmianę zawodu lub formy jego wykonywania w aspekcie przejścia z sektora publicznego do prywatnego, z sektora prywatnego do publicznego i w ramach sektora prywatnego. Porusza również zmianę formy wykonywania zawodu lub zmiany podmiotu, w którym zawód jest wykonywany. Zjawiska te, choć w części unormowane prawnie, umykają regulacji etycznej. Kodeks obejmuje je tylko w wąskim zakresie (tajemnica zawodowa i konflikt interesów). Czy można to oraz pośrednie zastosowanie kilku innych zasad etyki zawodowej (niezależność, godność zawodu, lojalność i zaufanie) uznać za odpowiednie? Autor analizuje, czy zastosowanie powyższych zasad etyki jest wystarczające z punktu widzenia zabezpieczenia przed nieetycznym korzystaniem z relacji lub sieci kontaktów z zawodowej przeszłości, a także unikania z tym związanego ograniczenia niezależności, konfliktów interesów, naruszenia tajemnicy zawodowej lub lojalności.

Change of the profession or form of its practice from the perspective of the professional ethics of attorneys-at-law

The article discusses issues related to the professional mobility of attorneys-at-law in light of the Code of Ethics of Attorneys-at-Law. The author discusses changes in the profession or form of its practicing in terms of movement between the public and private sectors as well as within the private sector itself. The article also addresses the issue of changing the form of practicing the profession or the entity where the profession is practiced. These phenomena, though partially regulated by law, escape ethical regulation; the Code covers them only to a narrow extent (professional secrecy and conflict of interest). The question is, therefore, whether this and the indirect application of several other principles of professional ethics (independence, dignity of the profession, loyalty, and trust) can be considered appropriate. The author analyzes if the application of the above ethical principles is sufficient in terms of safeguarding against the unethical use of relationships or networks from the professional past as well as avoiding the related reduction in independence, conflicts of interest, breach of professional secrecy, or loyalty. 

Przedmiotem artykułu jest analiza regulacji normatywnych odnoszących się do możliwości ustalenia prawa do świadczenia dla opiekuna osoby z niepełnosprawnością w przypadku zawieszenia działalności gospodarczej prowadzonej przez radcę prawnego. Przedstawiono w nim zarówno sposoby wykonywania zawodu radcy prawnego, zawieszenie działalności wykonywanej w formie kancelarii radcy prawnego, jak i rodzaje świadczeń dla opiekuna osoby z niepełnosprawnością, a także przesłanki determinujące możliwość ustalenia tych świadczeń.

Suspension of activities conducted in the form of a law firm of attorney-at-law in connection with taking care of a person with disabilities

The article analyzes normative regulations relating to the possibility of establishing the right to a benefit for a caregiver of a person with disabilities in the case of suspension of business activity conducted by an attorney-at-law. It outlines how to practice law as an attorney-at-law, suspend activities conducted in the form of a law firm of attorney-at-law, as well as types of benefits for a caregiver of a person with disabilities, and the premises determining those benefits

Artykuł wyjaśnia powody, dla których zasady wynagradzania radców prawnych świadczących pomoc prawną z urzędu nie spełniają standardów konstytucyjnych, a także wskazuje wynikające z tego skutki prawne. Autorka dochodzi do wniosku, że zróżnicowanie wynagrodzeń radców prawnych z urzędu i z wyboru za te same czynności podejmowane w ramach udzielanej pomocy prawnej jest niekonstytucyjne, zwłaszcza w świetle wniosków wynikających z analizy wyroku TK z 23 kwietnia 2020 r., SK 66/19. Artykuł analizuje również możliwe sposoby usuwania wspomnianej niekonstytucyjności w procesie sądowego stosowania prawa, które mogą mieć znaczenie, zanim zgodność z Konstytucją zasad wynagradzania radców prawnych świadczących pomoc prawną z urzędu zostanie wprowadzona przez ustawodawcę.

On the unconstitutionality of the remuneration policy for attorneys-at-law who provide ex-officio legal aid

The paper discloses the reasons why the principles of remunerating attorneys-at-law who provide legal aid ex officio do not meet constitutional standards as well as indicates the resulting legal consequences. The author concludes that differentiating the remuneration of attorneys-at-law appointed by a party to the proceedings and attorneys-at-law appointed by the court for the same activities undertaken as part of the legal aid provided is unconstitutional, especially in the light of the conclusions resulting from the analysis of the judgement of the Constitutional Tribunal of 23 April 2020, file ref. SK 66/19. The paper also interprets the possible ways of removing the aforementioned unconstitutionality in the process of judicial application of the law, which may be significant before the compliance with the Constitution of the principles for remuneration of attorneys-at-law providing ex officio legal aid will be ensured by the legislator. 

Prawo do udziału w postępowaniu sądowym pełnomocnika wyznaczonego dla strony z urzędu stanowi istotną gwarancję zapewnienia prawa do sądu dla osób niezamożnych. Ważnym elementem instytucji zastępstwa z urzędu jest kwestia finansowania tej części działalności adwokatów i radców prawnych. Od strony procesowej zagadnienie to dotyczy przede wszystkim sposobu orzekania o wynagrodzeniu i kosztach pełnomocnika z urzędu. W tym zakresie pomimo powolnych zmian polegających na odejściu od całkowitej nieodpłatności czynności pełnomocnika dokonywanych w ramach pomocy prawnej nadal brak spójnej i kompleksowej regulacji. Jak wskazano w niniejszym artykule, istnieją wciąż sytuacje, gdy pełnomocnik świadczący pomoc prawną z urzędu w postępowaniu cywilnym może nie uzyskać żadnego wynagrodzenia, gdyż Skarb Państwa tylko subsydiarnie odpowiada za te koszty. Ponadto uzyskanie zwrotu kosztów zastępstwa prawnego z tytułu nieopłaconej pomocy prawnej trwa latami. W tym artykule podjęto jedno z zagadnień związanych z zastępstwem prawnym z urzędu w sprawach cywilnych, a mianowicie kwestię orzekania przez sąd o tym wynagrodzeniu. Impuls do podjęcia tego tematu dały m.in. liczne postulaty zmian w tym zakresie. W ostatnim czasie pojawiły się także konkretne propozycje zmian na polu legislacyjnym. W związku z tym przedmiotem artykułu jest nie tylko zdiagnozowanie obecnego stanu prawa i orzecznictwa w odniesieniu do orzekania o wynagrodzeniu pełnomocnika z urzędu, ale przede wszystkim odniesienie się do zgłaszanych propozycji i postawienie konkretnych postulatów na przyszłość.

Adjudicating on the remuneration of a court-appointed attorney in civil proceedings – comments de lege ferenda

The right to participate in court proceedings of a court-appointed attorney is an essential guarantee of ensuring the right to a fair trial for the less well-off. A vital element of the institution of ex officio representation is the issue of financing this part of the activity conducted by advocates and attorneys-at-law. From the procedural perspective, this issue primarily relates to the method of adjudicating on the remuneration and costs of a court-assigned attorney. In this area – despite slow changes consisting in abandoning the completely free-of-charge activities of the attorney performed as part of legal aid – there is still no consistent and comprehensive regulation. As has been described in this article, there are still situations where an attorney providing legal aid in civil proceedings may not receive any remuneration because the State Treasury is only subsidiarily liable for these costs. In addition, it takes years to obtain reimbursement of legal representation costs for unpaid legal aid. In this article, one of the issues related to legal representation in civil cases has been addressed; namely, the issue of adjudication by the court on this remuneration. The stimulus to take up this topic has been provided, inter alia, by a number of postulates for changes in this field. Recently, there have also been specific proposals put forward for changes in the legislative. Therefore, the subject of this paper is not only to diagnose the current state of law and jurisprudence with regard to adjudicating on the remuneration of an attorney assigned by the court but, above all, to refer to the proposed proposals and to put forward specific postulates for the future.

Przedmiotem artykułu jest analiza standardu prawa oskarżonego do korzystania z profesjonalnej pomocy prawnej, wypracowanego w orzecznictwie Europejskiego Trybunału Praw Człowieka. Jej celem jest zobrazowanie szerokiego rozumienia tego prawa przez Trybunał, które znajduje oparcie nie tylko w jego esencjonalnych składnikach treściowych, ale również w jego powiązaniu z zasadą rzetelnego procesu. Przybliżeniu w ten sposób podlega zakres podmiotowy i przedmiotowy prawa oskarżonego do korzystania z pomocy obrońcy, kwestia zrzeczenia się tego prawa, przesłanki wyznaczenia obrońcy z urzędu oraz kryteria realizacji standardu gwarancyjnego, który z tego prawa wynika. Puentę stanowi kilka refleksji wynikających z zestawienia „konwencyjnego” standardu prawa do korzystania z pomocy obrońcy z jego uregulowaniem w polskim porządku prawnym.

The right to the assistance of the defense counsel in the light of the European Court of Human Rights case law

The article analyzes the standard of the accused’s right to enjoy professional legal assistance as developed in the case law of the European Court of Human Rights. Its purpose is to illustrate the Court’s broad understanding of this right, which is supported not only by its essential substantive components but also in its connection to the principle of a fair trial. It highlights the subjective and objective scopes of the accused’s right to the assistance of the defense counsel as well as the question of the waiver of this right, the prerequisites for appointment of the public defender, and the criteria for the implementation of the guarantee standard arising from this right. In the conclusion, the author presents several reflections resulting from the juxtaposition of the “conventional” standard of the right to the assistance of the defense counsel with its implementation in the Polish legal order.

Przedmiotem niniejszego opracowania jest identyfikacja wyzwań, jakie stoją przed udziałem radcy prawnego w postępowaniu sądowoadministracyjnym. Zaliczono do nich zakres przedmiotowy przymusu adwokacko-radcowskiego, określenie konsekwencji uchybień popełnionych przez fachowego pełnomocnika dla sfery praw i obowiązków podmiotu reprezentowanego, a nadto zagadnienia dotyczące elektronizacji postępowania, udziału radcy prawnego w rozprawie i kosztów zastępstwa procesowego. W konkluzji wskazano na potrzebę podjęcia dialogu środowiska sędziowskiego z radcowskim oraz adwokackim w celu wypracowania bardziej efektywnego, argumentacyjnego sposobu przebiegu rozprawy oraz poddania analizie aktualnych kwestii, które mogłyby usprawnić przebieg postępowania sądowoadministracyjnego. Zwrócono nadto uwagę na potrzebę podjęcia nowych form doskonalenia warsztatu zawodowego radców prawnych oraz korzystania ze zdobyczy nowych technologii.

Representation of a party by a professional counsel in administrative court proceedings

The purpose of this article is to identify challenges that attorneys-at-law face in administrative court proceedings. These include the subjective scope of the obligatory representation provided by advocates or attorneys-at-law and the consequences of the professional counsel’s shortcomings for the rights and obligations of the represented party as well as issues relating to the electronization of proceedings, participation of an attorney-at-law in a hearing, and the costs of legal representation. In conclusion, it has been pointed out that there is a need for a dialogue between judges and attorneys-at-law and advocates, in order to develop a more effective and argumentative way of conducting the trial and to discuss current issues that could improve the course of administrative court proceedings. Attention was also drawn to the need to introduce new forms of professional development for attorneys-at-law and the use of new technologies.

FINANSOWANIE

Artykuł jest częścią projektu badawczego nr: UMO-2018/30/E/HS5/00421, finansowanego przez Narodowe Centrum Nauki, poświęconego zaskarżalności orzeczeń sądów administracyjnych.

Glosa do wyroku NSA z 6 maja 2021 r., II GSK 1057/20, jest kolejnym głosem w debacie nad jakością edukacji młodych prawników. Autorzy potraktowali orzeczenie jako asumpt do sformułowania bardziej ogólnych tez związanych z przewidzianą ustawami konstrukcją kształcenia aplikacyjnego i przygotowania zawodowego aplikantów do wykonywania zawodów prawniczych oraz ich wpływem na jakość świadczonych przez nich w przyszłości usług. Samorząd zawodowy ma za zadanie sprawować pieczę nad prawidłowym wykonywaniem tych zawodów w granicach interesu publicznego i dla jego ochrony. Edukacja młodych prawników oddziałuje więc na nie tylko na sferę świadczenia usług prawniczych na rzecz różnych podmiotów, ale również wiąże się z koniecznością ochrony interesu publicznego. W glosowanym wyroku NSA słusznie wskazał, że wynik egzaminu winien odpowiadać poziomowi przygotowania prawniczego do wykonywania zawodu. Wykroczył jednak poza ramy kontroli uchwały o wyniku egzaminu, wyznaczone przez regulację jednoznacznie określającą, że sądy administracyjne poddają weryfikacji nie oceny wystawione przez egzaminatorów, lecz ustalony na ich podstawie wynik egzaminu. Odmienne, niesłuszne zapatrywanie NSA prowadzić mogłoby do postępowania składającego się z pięciu instancji. Do wnikania w treść ocen NSA nie jest bowiem w żaden sposób uprawniony – wymagałoby to adekwatnego określenia ustawowego kryteriów warunkujących wystawienie poszczególnych ocen, co w kontekście ocen eksperckich wydaje się niemożliwe.

Gloss to the judgement of the Supreme Administrative Court of 6 May 2021, II GSK 1057/20 (partially critical)

Gloss to the judgement of the Supreme Administrative Court (SAC) of 6 May 2021, II GSK 1057/20, is another voice in the debate on the quality of training for young lawyers. The authors considered the judgment to be an obstacle to the formulation of general theses relating to the legal training and vocational training of trainees attorney-at-law and their impact on the quality of the services they provide in the future. The role of the National Bar of Attorneys-at-Law is to ensure the proper exercise of those professions in the public interest and for the protection of the public interest. The training of young lawyers therefore affects not only the provision of legal services to different actors, but also the need to safeguard the public interest. In the glossed judgement the Court rightly pointed out that the result of the examination must correspond to the level of legal training. However, it went beyond the scope of the decisions on the results of the examinations, which are laid down in a regulation according to which the administrative courts do not review the marks awarded by the examiners, but the result of the examinations based on them. A divergent, inappropriate judgement by the SAC could lead to a five-instance trial. The SAC has no power to comment on the content of the appraisals, which would require an appropriate legal definition of the criteria for the submission of the individual appraisals, which would appear to be impossible in the context of expert appraisals.

The purpose of this article is to clarify the nature of legal professions as experts. In particular, an attempt has been made to answer the question of what, in the case of these professions, is the social role that requires the application of abstract knowledge to specific cases. The starting point for consideration is social theories that see this role as a mediation and integration of the social structure. Next, using the methodology of cognitive metaphor, this characterization is further clarified by juxtaposing it with another type of expert activity, i.e., translation. Thus, practical problems were identified in the work of a lawyer, related to mediating in the social structure between abstract knowledge of law and solving individual legal problems. These problems were characterized primarily as difficulties in the use of different languages by institutions and citizens.

Populism researchers draw attention to the vital role of language in the implementation of Popularist agenda. This role is discernible in propaganda practices, in attempts to redefine pre-existing notions, and in changing social – but also – linguistic conventions.

The recent wave of populism (2010–2021) touches upon law and the rule of law in a special way, and thus phenomena such as propaganda, redefinition of notions and change of convention are often implemented in the field of the language of law. This elaboration is an attempt to analyse the mechanism of changes in the linguistic conventions governing the language of the law and legal language caused by populism, while the tool for this analysis is the philosophy of law applying the achievements of the philosophy of language.

Using the concepts and theories proposed by E. Laclau, N. Lacey, R.G. Millikan and F. Recanati, in this study, I explain what the change of legal culture – being conducted by populists – is, defined as a set of linguistic and behavioural conventions relevant to the law.

The predominant thesis of the research paper in this area is the claim that the populist change of legal culture consists in turning concepts that are vital for law into empty or constantly floating signifiers, and in destroying legal conventions by 1) ceasing to reproduce behaviours that have so far constituted linguistic and behavioural conventions in the field of law, or 2) initiating the reproduction of new behaviours. In both cases, the modification of the convention entails the loss of their ability to perform functions that are appropriate within the meaning of R.G. Millikan, and thus causes a decline or loss of social usefulness. The analysis carried out enables to draw conclusions as to how the populist change of legal culture can be counteracted. 

The article deals with the issue of the constitutional basis for the functioning of the National Bar of Attorneys-at-Law as set forth in Article 17 of the Basic Law. The author stresses the particular importance of bar associations functioning independently from political power, linking their constitutional attributes to the axiology of the democratic system. He infers the need to preserve the independence of the National Bar of Attorneys-at-Law from their systemic function as protectors of the freedoms and rights of individuals and as collaborators in the administration of justice. The key determinant of the place and role of bar associations in the system of law protection authorities is their constitutional status of public trust professions and the related function of protecting the public interest in the activities of the National Bar of Attorneys-at-Law. Further in the paper, the author focuses on the issue of ensuring the proper practice of the profession by the National Bar of Attorneys-at-Law, e.g., through disciplinary liability mechanisms, which in essence are supposed to guarantee politically independent, reliable, and effective legal assistance is provided by attorneys-at-law to their clients. In the last part of the publication, the author points out the current threats to the constitutionally guaranteed independence of the National Bar of Attorneys-at-Law, seeing their sources in the consistent questioning of the rule of law standards by political authorities. According to the author, its manifestations include, inter alia, excessive interference by the Minister of Justice in the field of professional self-government of the attorneys-at-law and attempts by politicians of the ruling majority to question the constitutionality of the principle of mandatory membership in the National Bar of Attorneys-at-Law, which is fundamental for the independent and effective functioning of this professional association.

This article presents the issues of the mission of the professional self-government of legal advisers as well as the mission of legal advisers associated with the self-government. The elements defining, in fact, the mission of professional self-government, together with the mission of legal advisers, are determined by the goals set for the profession of legal adviser, being participation in the justice system and supporting a democratic state ruled by law. Art. 17 sec. 1 of the Constitution contains a regulation expressed in the obligation to harmoniously combine the many functions of the self-governments of professions of public trust. Importantly, the function of professional self-government is not only to shape the environmental interests of people performing public trust professions but also to seek to agree them with the public interest. Professional self-governments are primarily committed to the priority of implementing the public interest.

Attorneys-at-law, both at the individual and group level, i.e., as a professional self-government, when performing their duties and obligations arising from the provisions of law and deontological norms defining their professional status, have a role of a systemic nature to play. This role is intended to contribute to the strengthening and development of the democratic character of the Republic of Poland. A particularly important tool for carrying out this task of the National Bar of Attorneys-at-Law is the possibility to present opinions on draft legal acts, a constitutional tool which, due to the very essence of the attorney-at-law’s profession, allows the National Bar of Attorneys-at-Law to present at the stage of legislative work possible threats arising from the proposed normative acts to constitutionally guaranteed civil rights and freedoms.

The systemic role of attorneys-at-law in a democratic state ruled by law can also be seen in an individual dimension, which is manifested primarily in the course of providing legal assistance (as part of the professional practice). After all, the rule of law clause cannot be deprived of its fundamental component, which is considered to be the rights and freedoms of the individual. In this concept of the rule of law, attorneys-at-law, who participate in the implementation of the rule of law by providing legal assistance, can and should be treated as its constituent.

The systemic role to be played by attorneys-at-law individually and in gremio, i.e., as a professional self-government, becomes particularly important in times of crisis of the state ruled by law. The National Bar of Attorneys-at-Law, like the bar associations of other legal professions, is particularly predestined to take the floor in public debate on changes in the administration of justice that may violate the constitutional order.

The goal of this article is to analyze and evaluate the phenomenon of professional secrecy of attorneys-at-law and their independence. This article is a result of the author’s particular interest in the issues concerning the independence of attorneys-at-law and its limits. The essence of this publication is to illustrate the complexity of this phenomenon.

The author tried to pay special attention to situations in which the obligation to maintain professional secrecy is subject to restrictions resulting from the specific nature of particular types of proceedings – primarily criminal proceedings, but also proceedings in the field of competition protection. The author also points out the consequences that an attorney-at-law faces for violating the obligation to maintain professional secrecy. 

The subject of this article is the status of the self-government of attorneys-at-law analysed in the light of the Code of Administrative Procedure from the perspective of addressing complaints, requests, and petitions. The analysis leads to the conclusion that based on the Code of Administrative Procedure, the self-government of attorneys-at-law is a social organization. Thus, its bodies are the bodies of a social organization, unless they handle administrative cases. The paper distinguishes four categories of situations connected with the application of the provisions on complaints and petitions as part of the activities of the self-government of attorneys-at-law.

The article conducts a legal qualification of attorney’s-at-law professional activities performed for the benefit of capital companies conducting legal activities and their clients. It also considers the arguments for and against introducing the possibility of attorney’s-at-law legal practice in the form of participation in capital companies authorized to provide legal assistance. In conclusion, the author clearly advocates for the change of the currently binding prohibitions on attorney’s-at-law profession.

The article discusses issues related to the professional mobility of attorneys-at-law in light of the Code of Ethics of Attorneys-at-Law. The author discusses changes in the profession or form of its practicing in terms of movement between the public and private sectors as well as within the private sector itself. The article also addresses the issue of changing the form of practicing the profession or the entity where the profession is practiced. These phenomena, though partially regulated by law, escape ethical regulation; the Code covers them only to a narrow extent (professional secrecy and conflict of interest). The question is, therefore, whether this and the indirect application of several other principles of professional ethics (independence, dignity of the profession, loyalty, and trust) can be considered appropriate. The author analyzes if the application of the above ethical principles is sufficient in terms of safeguarding against the unethical use of relationships or networks from the professional past as well as avoiding the related reduction in independence, conflicts of interest, breach of professional secrecy, or loyalty. 

The article analyzes normative regulations relating to the possibility of establishing the right to a benefit for a caregiver of a person with disabilities in the case of suspension of business activity conducted by an attorney-at-law. It outlines how to practice law as an attorney-at-law, suspend activities conducted in the form of a law firm of attorney-at-law, as well as types of benefits for a caregiver of a person with disabilities, and the premises determining those benefits

The paper discloses the reasons why the principles of remunerating attorneys-at-law who provide legal aid ex officio do not meet constitutional standards as well as indicates the resulting legal consequences. The author concludes that differentiating the remuneration of attorneys-at-law appointed by a party to the proceedings and attorneys-at-law appointed by the court for the same activities undertaken as part of the legal aid provided is unconstitutional, especially in the light of the conclusions resulting from the analysis of the judgement of the Constitutional Tribunal of 23 April 2020, file ref. SK 66/19. The paper also interprets the possible ways of removing the aforementioned unconstitutionality in the process of judicial application of the law, which may be significant before the compliance with the Constitution of the principles for remuneration of attorneys-at-law providing ex officio legal aid will be ensured by the legislator. 

The right to participate in court proceedings of a court-appointed attorney is an essential guarantee of ensuring the right to a fair trial for the less well-off. A vital element of the institution of ex officio representation is the issue of financing this part of the activity conducted by advocates and attorneys-at-law. From the procedural perspective, this issue primarily relates to the method of adjudicating on the remuneration and costs of a court-assigned attorney. In this area – despite slow changes consisting in abandoning the completely free-of-charge activities of the attorney performed as part of legal aid – there is still no consistent and comprehensive regulation. As has been described in this article, there are still situations where an attorney providing legal aid in civil proceedings may not receive any remuneration because the State Treasury is only subsidiarily liable for these costs. In addition, it takes years to obtain reimbursement of legal representation costs for unpaid legal aid. In this article, one of the issues related to legal representation in civil cases has been addressed; namely, the issue of adjudication by the court on this remuneration. The stimulus to take up this topic has been provided, inter alia, by a number of postulates for changes in this field. Recently, there have also been specific proposals put forward for changes in the legislative. Therefore, the subject of this paper is not only to diagnose the current state of law and jurisprudence with regard to adjudicating on the remuneration of an attorney assigned by the court but, above all, to refer to the proposed proposals and to put forward specific postulates for the future.

The article analyzes the standard of the accused’s right to enjoy professional legal assistance as developed in the case law of the European Court of Human Rights. Its purpose is to illustrate the Court’s broad understanding of this right, which is supported not only by its essential substantive components but also in its connection to the principle of a fair trial. It highlights the subjective and objective scopes of the accused’s right to the assistance of the defense counsel as well as the question of the waiver of this right, the prerequisites for appointment of the public defender, and the criteria for the implementation of the guarantee standard arising from this right. In the conclusion, the author presents several reflections resulting from the juxtaposition of the “conventional” standard of the right to the assistance of the defense counsel with its implementation in the Polish legal order.

The purpose of this article is to identify challenges that attorneys-at-law face in administrative court proceedings. These include the subjective scope of the obligatory representation provided by advocates or attorneys-at-law and the consequences of the professional counsel’s shortcomings for the rights and obligations of the represented party as well as issues relating to the electronization of proceedings, participation of an attorney-at-law in a hearing, and the costs of legal representation. In conclusion, it has been pointed out that there is a need for a dialogue between judges and attorneys-at-law and advocates, in order to develop a more effective and argumentative way of conducting the trial and to discuss current issues that could improve the course of administrative court proceedings. Attention was also drawn to the need to introduce new forms of professional development for attorneys-at-law and the use of new technologies.

FUNDING

This paper is a part of research project no: UMO-2018/30/E/HS5/00421, financed by the National Science Centre (Poland), devoted to the appealability of administrative courts judgments.

Gloss to the judgement of the Supreme Administrative Court (SAC) of 6 May 2021, II GSK 1057/20, is another voice in the debate on the quality of training for young lawyers. The authors considered the judgment to be an obstacle to the formulation of general theses relating to the legal training and vocational training of trainees attorney-at-law and their impact on the quality of the services they provide in the future. The role of the National Bar of Attorneys-at-Law is to ensure the proper exercise of those professions in the public interest and for the protection of the public interest. The training of young lawyers therefore affects not only the provision of legal services to different actors, but also the need to safeguard the public interest. In the glossed judgement the Court rightly pointed out that the result of the examination must correspond to the level of legal training. However, it went beyond the scope of the decisions on the results of the examinations, which are laid down in a regulation according to which the administrative courts do not review the marks awarded by the examiners, but the result of the examinations based on them. A divergent, inappropriate judgement by the SAC could lead to a five-instance trial. The SAC has no power to comment on the content of the appraisals, which would require an appropriate legal definition of the criteria for the submission of the individual appraisals, which would appear to be impossible in the context of expert appraisals.

The role of attorneys-at-law in whistleblowing

The article discusses the role of attorneys-at-law in the whistleblowing system in connection with the implementation of EU Directive 2019/1937 on the protection of persons who report breaches of Union law into the Polish legal order. The article provides an assessment of the proposed provisions regarding attorneys-at-law and points out the need for their necessary amendments. It also conducts a determination of whether and to what extent there is a need to specify the rules of professional deontology of attorneys-at-law in connection with their various activities related to the issue of whistleblowing.

Providing free civic counseling by attorney-at-law or advocate vs. lawyer-client privilege and avoiding conflict of interest

The Act on Free Legal Aid, Free Civic Counselling and Legal Education, amended in 2018, provides for a new form of assis-tance for citizens – free civic counseling. The article is an attempt to answer three research questions. Firstly, what is the con-nection between legal advice and civic counseling, and whether legal advice is a part of civic counseling? Secondly, is the person providing free civic counseling (adviser) obliged to keep in secret all information that he or she has learned over the course of his or her duties? Thirdly, is that possible that an adviser who is at the same time an attorney-at-law violates lawyer-client privilege or puts himself or herself into a conflict of interest, because of performing duties resulting from the Act on Free Legal Aid, Free Civic Counselling and Legal Education and the Ordinance of the Minister of Justice?

The importance of the judgment of June 5, 2018 in Coman and Others v Romania, C-673/16 for the jurisprudence of the Court of Justice of the European Union on the rights of persons in same-sex relationships

The Court of Justice of the European Union is gradually expanding its jurisdiction at the expense of the competences of the Member States of EU. However, some of them oppose this, since they perceive it as the CJEU interfering with their authority. Nonetheless, even in matters of their exclusive competence, member states are obliged to adhere to a pro-EU interpretation of their domestic law. The judgment of the CJEU in the Coman case is an example of that – although the case indirectly con-cerns the regulation of civil status, which is the competence of national authorities, Member States must also apply EU juris-prudence when creating and implementing the law in that regard. The article also points to several possible risks discussed in the doctrine which are connected with the Coman judgment, such as reverse discrimination or the risk of a slippery slope. The author identified the role of the judgment and its importance for the jurisprudence on the rights of persons in same-sex relationships.

Uncertainties arising from the proposed act on the Financial Information System. An attempt to assess proposed legal regulations in the context of accounts held by banks for other banks

The article is an analysis of the most significant issues related to the proposed act on the Financial Information System, which is currently undergoing legislative work to implement EU law into the Polish legal system, covering regulations aimed at ensuring the prevention of the use of the financial system for money laundering and terrorist financing, as set out in Directive 2018/843. Their objective is to establish centralized, automatic mechanisms (in all European Union Member States), such as registers or a search system, which are meant to enable the collection of relevant information on the identity of the holders of bank and payment accounts as well as safe deposit boxes, their representative holders and ultimate beneficial owners, taking into consideration the need to maintain the full confidentiality of the information obtained. As Member States are to determine the information that is useful and proportionate to collect in order to achieve the objective of minimizing the risks of money laundering and terrorist financing by enabling meaningful identification of ultimate beneficial owners of money transfers, whilst taking into account existing legal systems and practices, the article also attempts to assess the proposed legal regulations in the context of accounts held by banks for other banks.

An obligation to act in accordance with a contract, in a spirit of mutual trust and business cooperation. Clause 10.1 of NEC in the light of Polish law

This article presents the characteristics of the NEC contracts and an examination of clause 10.1 contained in such contracts. As these publications, as well as the competing FIDIC Conditions of Contract, originate from the Anglo-Saxon legal culture, the article provides a detailed analysis of clause 10.1 of the NECs, which introduces general rules of conduct for the participants with reference to Polish law. The aforementioned clause imposes an obligation on the parties to act in accordance with the contract, in the spirit of mutual trust and business cooperation. The analysis of the concepts present in the clause in question and of the Polish legal doctrine has produced the conclusion that expressing such a standard of conduct explicitly in the NEC template is not needed in Polish jurisdiction due to the correspondence of these rules of conduct with the values and princi-ples governing the national legal system.

Fact-checking and freedom of speech

The article discusses the impact of the fact-checking process on freedom of speech. On the one hand, it was pointed out that the verification of the facts by specialized organizations, for various reasons, cannot be regarded as a fully reliable way of distinguishing between truth and falsehood in socially important matters. The findings made within the framework of fact-checking often fit into the public debate by taking a partisan position on a specific issue, and not so much objectively determining the truthfulness of certain statements formulated in public discourse. On the other hand, it was noted that fact-checking, although it does not undermine the freedom of speech – on the contrary, being an expression of it – is at the basis of the decisions of online social networking services, which may be viewed as an interference with the freedom of expression. While labeling content as untrue or misleading is not a violation of the freedom of speech of people formulating or disseminating it, removing such content from social networking services as well as blocking and obstructing access to legal content considered to be disinformation does constitute the infringement of freedom of expression.

The Polish Deal – constitutional uncertainties

The aim of this article was to assess the constitutionality of the Act of October 29, 2021 amending the Personal Income Tax Act, the Corporate Income Tax Act and certain other acts. This regulation – proclaimed by politicians as the most significant reform of the tax system in history – was created extremely quickly, with no extensive consultations, and the manner of the proceedings was reflected in the quality of the act itself. In the opinion of the author of this article, the flawed regulations also concern their constitutionality. Due to the hasty proceedings, it is questionable whether the appropriate vacatio legis period was maintained and whether the regulations on accounting for sale of cars used for business activity and the prohibition of amortization of residential property as part of business activity infringe the previously acquired rights of taxpayers.

Subjective and functional conditions for awarding the Saint Florian Badge and the Cross of Saint Florian

The paper contains the analysis of public policies on prizes and honors of voluntary fire brigades. The authors show the issue of the conditions for awarding the Saint Florian Decoration and the Saint Florian Cross. These two forms of honoring merits, along with several other forms of rewarding firefighters, were provided for by the legislator in 2022. The authors present the most important rules of the special awarding policy and interpret the Polish constitutional and statutory provisions. These regulations are compared with the established legal practice, traditional customs and with Polish legislation.

Legal obligation of the court to hear the suspect before adjudicating a security measure against him – gloss to item no. 1 of the judgment of the Constitutional Tribunal of the Republic of Poland of August 19, 2020 (case file no. K 46/15)

The gloss is an attempt to present the approving stance of the author on the judgment of the Constitutional Tribunal of the Republic of Poland. It concerns the issue of appropriate procedural protection of rights of a suspect in case of his insanity. The author emphasizes the most important elements of the Polish Ombudsman’s motion in this case, analyzes the legal aspects of the regulations in question and summarizes the most important theses of the judgment in relation to their validity.

Overview of the decisions of the Polish Supreme Court

The Resolution of the Polish Supreme Court of March 24, 2022 (case file no. III CZP 48/22) is of particular importance for legal practice. The Court indicated that the sanction of nullity provided for in Article 6 (1) of the Act of March 24, 1920 on the Acquisition of Real Estate by Foreigners does not apply to the acquisition of real estate on the basis of a legally binding decision on the division of joint property after the termination of joint property between spouses. In the Resolution of April 13, 2022 (III CZP 90/22), the Polish Supreme Court stated that minors who are step-siblings are not participants in the proceedings for establishing contact between them (Article 1136 of the Code of Commercial Companies). Moreover, in the Resolution of April 13, 2022 (III CZP 85/22), the Polish Supreme Court decided that the submission of an application for the preparation of a justification and the delivery of a decision with the justification does not constitute a condition for the admissibility of a complaint against the decision referred to in Article 7661 § 1 of the Polish Code of Civil Procedure. In addition, the Polish Supreme Court, in the Resolution of April 6, 2022 (III CZP 12/22), stated that the court of the second instance, in a closed session, may issue a decision to quash the judgment and discontinue the proceedings in a panel of three judges (Article 386 § 3 in connection with Article 367 § 3 in connection with Article 374 of the Polish Code of Civil Procedure).

The report on the National Scientific Conference of Legal Professions of Public Trust, “Membership in professional self-governments”, Toruń, January 20, 2022.

The third edition of the National Scientific Conference of Legal Professions of Public Trust was held on January 20, 2022. The event was organized remotely, due to the current epidemic situation, and was dedicated to the topic of membership in professional self-governments. The conference was organized by the Department of Administrative Law at the Faculty of Law and Administration of Nicolaus Copernicus University in Toruń. The main topics discussed during the conference were primarily inspired by the legislative changes concerning specific legal professions of public trust and also by de lege ferenda proposals regarding memberships in professional self-governments. A total of eleven presenters delivered lectures during the conference, both representatives of academic circles of six universities, as well as practitioners – representatives of professional self-governments of attorneys-at-law, advocates and notaries.

In between a state of epidemic and a state of natural disaster – COVID-19 and certain human rights

The article examines the means of restricting selected human rights and freedoms during a state of epidemic against the requirements of the Constitution of the Republic of Poland. The analysis particularly concerns the practice of restricting these rights and freedoms through ordinances as well as the imposition of fines and penalties for violations of epidemic orders and bans.

Key words: state of exception, state of natural disaster, state of epidemic, administrative fine, human rights and freedoms, specific solutions associated with counteracting COVID-19, statutory authorization

The appearance of infidelity in the Polish family law

The subject matter of this article is the issue of breach of the obligation of matrimonial fidelity. Practitioners face this problem in the context of the divorce proceedings’ analysis of the breakdown of a marriage and deciding on the guilty party in this regard. The aforementioned sphere is particularly interesting in the context of the development of communication technology, which has contributed both to the creation of new forms of and documenting marital infidelity. This, in turn, has brought new tasks to the field of collecting evidence before the trial. It has become necessary to decide in which situations the right to a court outweighs the protection of privacy and in which cases the secrecy of communication is violated – or even whether a possible illegal obtaining of information occurs. In the event of marital infidelity, it is also necessary to consider the importance of the forgiveness of acts committed by one of the spouses in the context of the breakdown of the marriage.

Keywords: appearance of infidelity, right to privacy, the secrecy of communication, the illegal obtaining of information, forgiveness

Proper application of legal provisions regarding costs of proceedings or trial based on examples of medical jurisprudence in selected disciplinary cases

The primary hypothesis assumes that there is an institution of an appropriate application of the law in disciplinary proceedings, and that its correct use strengthens the procedural guarantees of the aggrieved party in terms of costs of proceedings or a trial. The argument in favor of such a position arises from adopting a specific approach to understanding regulations referring to other legal provisions. The study uses the analysis of judicial practice. The research was conducted in order to systematize the formula of institution of an appropriate application of the law in disciplinary proceedings. The focus was on finding common goals and standards in disciplinary cases related to costs of proceedings. The article demonstrates that, within reason, the legislator provides for a two-stage use of reference to other legal provisions, if applied appropriately.

Keywords: justice, costs, disciplinary liability, disciplinary offense, analogy in law, appropriate application of provisions

Content marketing in the context of selected legal acts

The aim of this article is to locate content marketing in the context of legal regulations. Thus far, in the literature on the matter there have been statements analyzing this form of marketing activity only within the context of the press, and what is more, these considerations have been limited to the analysis of issues related to Internet blogs. However, due to the fast-growing audio and video messaging on the Internet, it is appropriate to consider the phenomenon of content marketing in comparison with its forms, which, particularly as of late, have been significantly gaining in popularity. The need for a broader analysis of issues related to content marketing is not restricted to the emergence of this form of promotional activities. It also seems warranted to analyze this phenomenon more comprehensively on the basis of law, due to the fact that it is not limited to the subject matter covered by the Press Law in Poland. Therefore, the purpose of this article is the legal analysis of the content marketing phenomenon with the consideration of its less discussed forms, i.e. audio and video. Such considerations seem necessary, as this type of content is becoming increasingly popular and yet its authors still lack the necessary legal awareness to assess whether they are obliged to comply with specific legal obligations in connection with their creations and publications. The purpose of this article is to determine whether, and if so – in what cases, the authors of such content must comply with certain legal conditions in order to legally distribute it, which in turn will help to identify the specific liability of its authors in a given case.

Keywords: services provided by electronic means, radio, television, audiovisual services on demand, podcast, vlog, blog

Crimes regarding the abuse of free-living (wild) animals

The article addresses the issue of criminal responsibility for the crime of abuse of free-living (wild) animals. It touches upon the issues related to the assessment of a legal interest – humanitarian protection of animals, which this crime targets. The aim of this protection is to counteract actions which involve the illegal infliction of gratuitous and excessive pain or suffering to animals. Moreover, the two-way nature of the aforementioned protection and the way in which wild animals are subjected to it are also highlighted. The article also includes the analysis of the elements of animal abuse crime, with particular attention put on its forms towards wild animals and game.

Keywords: protection of animals, humanitarian protection of animals, animal abuse, wild animals, game

Emotional bond with an animal and personal interests

The paper looks at the legal consequences of a domesticated animal’s death in the sphere of private law. A prevailing view of the Polish doctrine excludes any claims aimed at monetary or non-monetary compensation of the harm suffered by an owner as a result of an animal’s death. Several recent cases concerning such claims, resolved by the Polish courts differently, have been criticized. In particular, most authors think that the emotional bond between a person and their animal cannot qualify as a personal interest protected by Article 24 of the Polish Civil Code. The article discusses critically the majority view and presents arguments in favor of a different approach to the civil law compensation for harm caused by a domesticated animal’s death.

Keywords: personal interest, emotional bond, loss of a domesticated animal, immaterial harm, compensation for non-pecuniary loss

Gloss (critical) to the judgment of the Court of Appeal in Białystok of January 13, 2021. (Case file no. I ACa 289/20)

Thesis of the judgment:The relationship that may arise between a human and an animal does not constitute a personal interest as defined in Article 23 of the [Polish] Civil Code and, consequently, the violation of human welfare due to death of an animal is not subject to protection under Article 23 et seq. of the Civil Code, even if death of an animal is the result of an unlawful act of another entity.

The decision of the Court of Appeal deserves criticism. The bond with an animal deserves protection as a personal interest, because the catalog of legally protected personal interests remains open, while the bond with an animal is an intangible, natural emanation of human personality and it has been recognized as a value by the society as a whole. Therefore it deserves protection under Articles 23–24 of the Civil Code.

Keywords: personal interest, animals, bond with animals

On the dominant character of development – the polemic towards the gloss by K. Rokicka-Murszewska to the judgement of the Polish Supreme Administrative Court of February 14, 2019 (case file no. II OSK 626/17)

The author engages in a polemic with the views expressed in the judgement of the Polish Supreme Administrative Court (NSA) of February 14, 2019 (case file no. II OSK 626/17) and the approving gloss by K. Rokicka-Murszewska to this judgement. The subject of the polemics is both the validity of the NSA’s view as to the need to establish the dominant function of the construction on the given territory and the practical capabilities of establishing such a function as part of the analysis of the function and characteristics of the construction and land development carried out over the course of the proceedings for the issuance of land development conditions. In the opinion of the author, the NSA’s view may be effectively used by the municipal authorities to implement their urban planning policy in a manner not compliant with the binding provisions of law.

Keywords: land development and management conditions, decision on land development and management conditions, urban design and planning analysis, good neighborhood principle

Overview of the decisions of the Polish Supreme Court

The resolution of the panel of seven judges of the Polish Supreme Court of July 2, 2021 (case file no. III CZP 38/20) is of utmost importance for legal practice. In it, the Court assumed that the landowner’s claim, under Article 231 § 2 of the Polish Civil Code, does not expire. The resolution of the Polish Supreme Court of September 30, 2021, case file no. III CZP 37/20, is of particular importance for legal practice. As indicated by the Supreme Court, the limitation period for a claim for compensation for recovery costs, based on Article 10(1) of the Act of March 8, 2013 on Counteracting Excessive Delays in Commercial Transactions (formerly known as the Act on Payment Terms in Commercial Transactions), is set out in Article 118 of the Polish Civil Code. However, according to the resolution of the Polish Supreme Court of July 6, 2021, case file no. III CZP 34/20 – in the event of bodily injury or health disorder, the court may award the aggrieved party with an appropriate sum as a pecuniary compensation for the harm suffered (Article 445 § 1 in conjunction with Article 4491 § 1 of the Polish Civil Code). Moreover, the Polish Supreme Court stated that the aggrieved party does not bear the burden of proving what caused the dangerous nature of the product.

Keywords: the Polish Supreme Court, judicature, civil proceedings, compensation for damages, statute of limitations

Openness of court proceedings in compliance with the European Convention on Human Rights

The subject of this article is the right to open court proceedings as guaranteed in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. The most important elements of this right are: the right to participate in a court hearing, the right to access to the case files and the right to acquaint with the ruling. This right applies not only to the parties to the proceedings, but also – albeit to a lesser extent – to every citizen. The text discusses the findings of the doctrine and the European Court of Human Rights, at times criticizing them especially with regard to the too narrow definition of the obligation to publicly announce the judgment. In addition, the article analyzes the extent to which the Polish law encourages openness in civil, criminal and judicial-administrative procedures.

Closed capitals of the empire of law. The importance of openness of judicial proceedings for social legitimacy of judicial authority

The article focuses on the openness of judicial proceedings, in particular the openness of the trial, considered as an important element of the constitutional right to a trial, the requirement of procedural fairness and the condition for maintaining the social legitimacy of the judiciary. The immediate context for the considerations is determined by the changes introduced by the Act of May 28, 2021 amending the Act – the Polish Code of Civil Procedure and certain other acts, making it possible to limit the openness of court proceedings in relation to the occurrence of an epidemiological emergency. The author draws the attention to transformations in the constitutional position and ways of perceiving the legitimacy of courts in modern constitutional democracies. The increasing role of courts in settling major political disputes, resolving social conflicts, controlling governmental authorities and enabling citizens to hold representatives of the authorities accountable for their decisions renders participation in judicial proceedings one of the fundamental democratic activities nowadays. The author also indicates that the trial (as a fundamental form of communication between judges and citizens and a special phase of proceedings allowing the court to deeply examine the facts of the case and to learn the prevailing understanding among citizens of the values and principles on which the legal order is based) is a key measure to achieve the principles of procedural justice during the course of specific proceedings and to establish trust in the third power before the public. Openness of judicial proceedings, especially the trial, is a condition for the courts to maintain a reflexive attitude in the process of ruling and thus to deepen the social legitimacy of the judiciary based on trust. 

Criminal liability of an administrative official for damages caused by a tree or a bush as a result of professional negligence

The article focuses on the analysis of the dogmatic grounds of criminal liability of administrative officials that manage urban green areas for damages caused by the fall of a tree or a bush. The main focus of the discussion revolves around criminal liability for the failure to remove a plant as a result of the unintentional professional negligence by public officials (Article 231 § 3 of the Polish Penal Code). Particular attention is directed toward the issue of compliance of the crime of professional negligence with the constitutional standard of definiteness (nullum crimen sine lege certa). The text also discusses the possibility of incurring criminal liability for the aforementioned actions on the basis of certain types of common crimes and considers cases of potential concurrence of regulations and crimes.

Liability for damages caused by trees and bushes

The following article outlines the administrative-legal aspects of the proceedings for the logging of trees or cutting down bushes. This presentation is a starting point for further civil law considerations on the liability for damages caused by trees and bushes. The analysis examines instances of omissions or abuses by the entity authorized to log trees, examples of such activities and their potential consequences. The issue of the liability of administrative officials for erroneous administrative decisions regarding logging is also addressed. The concluding part of the article focuses on civil law claims (non-tort ones or not necessarily tort ones) related to the presence of trees and bushes – and involves the analysis of examples of factual status which were the subjects of common courts’ decisions.

Public administration tasks in the scope of green areas protection and the forms of their implementation – selected remarks

The article presents forms of administration activities which may influence the condition of green areas. It is pointed out that the analysis of public administration tasks in the scope of green areas protection cannot be limited only to the solutions presented in the Act of April 16, 2004 on the protection of the environment. It is stressed that actions taken on the basis of other legal acts, not necessarily directly related to the protection of the environment, may also have an influence on the condition of green areas. Both planning acts and decisions issued in specific cases may have this kind of character. The legal effects resulting from them may indirectly affect the green areas. Therefore, the necessity of taking complementary actions by all authorities is indicated, the application of which may ensure effective protection of green areas. Solutions that may enable it are already existing and operational, but they should be properly used.
 

Formal and substantive requirements for the participation of a court-appointed expert in criminal and civil proceedings

The purpose of this article is to present the institution of a court-appointed expert in criminal and in civil proceedings in terms of their similarities and differences. Often the same people, institutes or institutions are involved in both types of proceedings. However, criminal and civil proceedings impose various formal and substantive requirements in relation to these entities. Obtaining the status of a court-appointed expert and performing this role in the proceedings may differ significantly depending on the type of proceedings. This fact produces two conclusions. First: the parties to the proceedings (and especially their professional legal representatives) should be aware of when and in what circumstances they can use an opinion of a court-appointed expert. Second: court-appointed experts themselves (or persons and entities who aspire to such a role) should have a clear understanding of their role in the proceedings.

Commercial information and direct marketing without prior and explicit consent – selected issues

The aim of the article is to examine legal regulations in the context of answering the question whether – and if so, then under which circumstances – marketing activities performed via means of electronic communication are legal when the party conducting these activities does not have the prior and explicit consent to perform them. In particular, the article will analyze the provisions of Article 10 of the Act on provision of services by electronic means and Article 172 of the Act – telecommunication law, which are the key legislative provisions to resolve this issue. To answer the question posed in the article, the subject and object scopes of both legal norms in particular will be compared. Such a comparison is necessary to determine whether – and if so, then what kind of – marketing communication can be made without prior and explicit consent. On the other hand, the author will not discuss more broadly the issues concerning the processing of personal data, although he will draw attention to the conditions that must occur in order for the personal data held by the controller to be used for the purposes identified above.
 

Problems related to selected issues of unitary patent protection

Unitary patent protection is one of the key challenges for the European Union. The current initiatives, which – despite being just a short step away from full implementation due to legal and formal issues, such as the complex legal structure or non-legal claims concerning their negative impact on the economy and competitiveness of enterprises – still raise doubts and uncertainties. The aim of this article is to illustrate the problem of unitary patent protection on selected issues concerning the European patent with unitary effect and the Unified Patent Court. The obstacles that prevent the implementation of the Unified Patent Court are presented. Critical voices assessing the proposed model of unitary patent protection are also presented and discussed.

Gloss to the Supreme Administrative Court of Poland judgment of February 14, 2019 – case file no. II OSK 626/17

The author analyzes crucial problems identified by the Supreme Administrative Court of Poland in the judgment of February 14, 2019 – case file no. II OSK 626/17 concerning the application in practice of the principle of good neighborhood, referred to in Article 61(1)(1) of the Act on Spatial Planning and Development. It should be noted that although the existing buildings determine the manner in which the conditions of a new investment are specified (due to the necessity of existence of “at least one neighboring plot”), various functions may co-exist within the framework of the existing and future developments, provided that they can be mutually reconciled. The purpose of the gloss is to demonstrate the appropriateness of the decision of the Court, which concluded that the existing housing development will have a negative impact on the residents of the new single-family housing estate due to the conflicting functions of the sites. In this respect, the reviewed judgment constitutes a certain attempt to prevent the so-called single-unit urbanism.

Overview of the decisions of the Polish Supreme Court

Pursuant to the resolution of the panel of seven judges of the Polish Supreme Court of May 7, 2021, case file no. III CZP 6/21, which became a legal principle, an illegal contract term (Article 385¹ § 1 of the Polish Civil Code) is from the beginning, by virtue of the law itself, ineffective for the benefit of the consumer who may give free and informed consent to this provision and thus restore its retroactive effect. If the loan agreement cannot be binding without an ineffective provision, the consumer and the lender are entitled to separate claims for the reimbursement of cash benefits provided in the performance of the agreement (Article 410 § 1 in conjunction with Article 405 of the Polish Civil Code). The lender may request the return of the benefit from the moment the loan agreement becomes permanently ineffective. The resolution of the Polish Supreme Court of May 28, 2021, case file no. III CZP 27/20, is of exceptional importance, as according to it the right to live in a clean environment is not a personal good. Protection of personal rights (Article 23 of the Polish Civil Code in conjunction with Article 24 of the Polish Civil Code and Article 448 of the Polish Civil Code) covers health, freedom, privacy, which may be breached (threatened) by an inadequate air quality, which does not meet the standards specified in legal provisions. However, according to the resolution of the Polish Supreme Court of March 31, 2021, case file no. I KZP 7/20 – a violent crime within the meaning of Art. 41a § 1 of the Polish Criminal Code is any crime that was actually committed with the use of violence, and the word “violence” used in this legal provision includes both physical and mental violence.

Legal profession self-governments in the rulings of the Polish Supreme Court in disciplinary cases

The issue of the status of legal professional self-governments is not only of theoretical nature, but also is of significance for the practice of lawmaking in the area of regulations of the professions of public trust and disciplinary cases. This article examines three aspects. Firstly, it examines the possibility of deriving an obligation to establish self-governing bodies for certain legal professions directly from the Constitution. Secondly, it identifies the immanent competences of the professional self-government that the legislature cannot deprive it of. Thirdly, the article discusses the connections between the principle of autonomy of professional corporations and the restraint of the Polish Supreme Court in disciplinary proceedings.

Depriving a party of the opportunity to defend its rights as a reason for the nullity of proceedings as presented in the decisions of the Polish Supreme Court

Depriving a party of the right of defense may also provide grounds for reopening of legally finished proceedings. The court of second instance can take the invalidity of proceedings within the scope of the appeal even ex officio, and thus regardless of the pleas of the parties. It is not possible to create a register of factual situations in which a party was deprived of the right of defense because a completely new situation leading to the nullity may always arise. A broad register of possibilities causing the deprivation of the right of defense causes the fact that the charge of nullity on this ground is often raised in appeals, which is also reflected in the rich jurisprudence of the Polish Supreme Court on this issue. This article is an attempt to review, analyze and summarize important decisions of that Court referring to nullity of proceedings due to depriving a party of the right of defense.

The principle of openness in administrative court proceedings

On the basis of Article 15zzs4 of the Act of March 2, 2020 on special measures to prevent, counteract and combat COVID-19, other infectious diseases and emergencies caused by them, and in connection with the recurrence of successive “pandemic waves” in the fall of 2020, administrative courts began to cancel open hearings and ordered the proceedings to be held during closed door hearings. The aim of this article is to evaluate the aforementioned “COVID regulations” introduced into the Polish legal order which restrict the right of the parties to an open hearing of a case that is pending before administrative courts as well as an attempt to answer the question whether the way judges of administrative courts apply the aforementioned regulations in the era of the widespread epidemic conforms to the principles of a democratic state of law.

Institution of an expert in criminal and civil proceedings – similarities and differences

An expert in both criminal and civil proceedings is a qualified assistant of the court (or other procedural bodies) providing special evidentiary information. The opinion issued by him is an independent source of evidence of specific importance. Contrary to a witness, they are not providers of information about facts, but interpreters of these facts from a scientific and technical point of view. They must possess specialized knowledge and experience otherwise unavailable to other participants in the proceedings. The role and function of experts in criminal and civil proceedings are seemingly similar. However, each of these proceedings has many special regulations that cause significant differences in this respect. These differences are the focus of this study.

The issue of obtaining access to official notes of police officers in order to use them as evidence in a civil trial

The problem of obtaining access to official notes of police officers is an important practical issue, particularly in a situation where there is a need to use these documents in a civil trial. Such a document may constitute essential means of evidence in a civil trial, confirming the facts presented by a party to the proceedings. In practice, however, police officers do not always automatically provide access to the documents in question at the request of a party; therefore, the purpose of this article is to analyze the provisions under which a party may request access to such documents. The article examines the standpoint of the judicature, which indicates whether police officers are obliged to provide access to such documents to a party or third parties and whether such an action is consistent with the provisions of the GDPR as regards the protection of personal data.

Transfer of personal data to the United States after the invalidation of the decision regarding the EU-US Privacy Shield

The aim of this article is to provide a summary of the legal ground rules for the transfer of personal data to the United States following the ECJ declared the decision of the European Commission on the EU-US Privacy Shield program invalid. The author outlines the general principles of transfer of personal data to third countries in view of the regulations of Chapter 5 of the GDPR, analyzes the presumptions of the Privacy Shield program, and assesses the post-invalidation landscape. The author analyzes the Schrems II judgment, the complaint of M. Schrems, the questions submitted to the CJEU for a preliminary ruling, and describes the key points of the judgment in case file no. C-311/18. The article also provides a brief historical overview of the developments that resulted in the CJEU issuing the aforementioned judgment.

Possibility of applying Actio pauliana to the division of a capital company – selected issues

The topic of this article is the possibility of applying Actio pauliana to the division of a company with particular emphasis on the division by separation in the context of the findings of the judgment of the European Court of Justice of January 30, 2020, case file no. C-394/18. Per that judgement, the remedies provided in the sixth directive constitute only the required minimal level of protection that should be provided to the creditors of a divided company. However, that protection does not preclude the existence of a more extensive protection under national law, such as the rules concerning Actio pauliana. The article provides an answer to the question whether the Polish law regulations allow for granting this form of legal protection to the creditors of a divided company, and if it does, then in what way the claim should be formulated and which particular legal actions should be contested.

Practical aspects of supporting investments preventing the destruction of agricultural production potential under the Rural Development Programme for 2014–2020

The article focuses on the analysis of normative solutions contained in the Rural Development Programme for 2014–2020 regarding the aid instrument titled, “Support for investment in preventive measures, which aims to reduce the effects of probable natural disasters, adverse climatic events and disasters”. The purpose of the article is to try to answer the question of whether and to what extent the form of support mentioned above ensures the durability of farming for an agricultural producer. The analyzed RDP 2014–2020 action is implemented as a part of two operations, i.e. limiting the possibilities of the spread of African swine fever virus (ASFV) and protecting agricultural production against the effects of adverse weather phenomena. Creating favorable financial conditions in these cases and introducing clear legal regulations contributes to the increase of farmers’ interest in adopting specific attitudes towards active risk management of agricultural activity and thus further contributes to increasing their resilience to emerging crisis situations. This tool significantly affects the protection of the workshop of agricultural producers. Based on the analysis of the research material, final conclusions are presented, indicating possible recommendations that should be implemented when designing the framework for the future financial perspective of the European Union for 2021–2027.

Gloss to the Supreme Administrative Court of Poland judgment of April 21, 2016 – case file no. II GSK 2566/14

The gloss is an analysis and evaluation of the judgement of the Supreme Administrative Court of 21 April 2016, case file no. II GSK 2566/14. In this judgement, the Supreme Administrative Court of Poland adopted a view that distance sales of alcoholic beverages, including those made via the Internet, are illegal under the current provisions of the Act on Upbringing in Sobriety and Counteracting Alcoholism. In its interpretation of the law, the Supreme Administrative Court of Poland also referred extensively to the regulations of the Polish Civil Code on the sale agreement and the transfer of ownership of the sold item. The author critically evaluates the standpoint adopted by the Supreme Administrative Court of Poland. In author’s opinion, the interpretation of the law presented in the reasons for the judgement is law-generating in nature, leading to the creation of a legal norm which is not supported by the provisions of the Act. In author’s opinion, the Supreme Administrative Court of Poland wrongly equated the notions of a sale and the occurrence of the dispositive effect of a sale agreement, wrongly assuming that they occur at the same time and in the same place, which results in the assumption that the sale of an alcoholic beverage is effective upon the delivery of its object to the buyer at the place where the beverage is to be delivered. The position taken by the Supreme Administrative Court of Poland limits the constitutionally guaranteed freedom of business activity in a manner not supported by the Act.

Overview of the decisions of the Polish Supreme Court

The resolution of the Supreme Court of February 16, 2021 (case no. III CZP 11/20)is of utmost importance for legal practice, in which it was stipulates that a party who repaid a loan in performance of an invalid loan agreement is entitled to a claim for the repayment of the repaid funds as undue benefit (Article 410 § 1 in connection with Article 405 of the Polish Civil Code) regardless of whether and to what extent it is a debtor of a bank for repayment of the wrongfully received loan amount. The resolution of seven judges of the Polish Supreme Court passed on September 2, 2019 (court case file no. III CZP 99/18) has a certain significance to performing legal practice and activities. The resolution of seven judges of the Polish Supreme Court passed on December 9, 2020 (court case file no. III PZP 2/20) has a certain significance to performing legal practice and activities. According to the resolution of the Polish Supreme Court, a case related to the professional liability of sworn translators is to be examined by the criminal division of a court of appeal having jurisdiction over the place of residence of the sworn translator, pursuant to the provisions of the Act of June 6, 1997 – Polish Code of Criminal Procedure. It is also worth noting that the resolution of the Polish Supreme Court passed on March 9, 2021 (court case file no. III CZP 89/19) provides that in proceedings conducted under the Act of November 22, 2013 on proceedings against persons with mental disorders who present a threat to life, health or sexual freedom of other persons, the provisions of Article 2(3) of that Act (in connection with Article 730 § 1 and Article 755 § 1 of the Polish Code of Civil Procedure) do not provide a legal basis for granting an interim order to place the person concerned in the National Centre for the Prevention of Dissocial Behaviour.