Vol. 11 Issue 4 Year 2018

Volume 11 (2018)

Publication date: 19.12.2018

Description

Licence: CC BY-NC-ND

Editorial team

Issue editor dr Krzysztof Fokt, prof. dr hab. Dorota Malec, dr hab. Maciej Mikuła, prof. dr hab. Wacław Uruszczak

Issue content

Liber primus. Anmerkungen zum Roten Buch als dem ersten Stadtbuch von Görlitz (1305–1343)

Krzysztof Fokt

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 4, Volume 11 (2018), pp. 425 - 466

https://doi.org/10.4467/20844131KS.18.037.9479

The article discusses problems of the rise of the town chancery in Görlitz and the early practices of registration of legal acts, based on the oldest part of the first book of records of the town, the so-called Red Book. The legal acts registered in the book were discussed according to their classification used in medieval Görlitz: all of them were classified as Resignationes, Entscheide, Obligationes, or Recognitiones. Some attention was also devoted to the fragments of the Red Book that could be treated as elements of the governance system of the town, where not only private transactions were noted, but also cases important for the community of townspeople. Several suppositions were also proposed, concerning the earliest period of the development of the town chancery. It was specifically hypothesized, that before 1342, when a new, second town book was created, there should have already existed: 1) some protocols for the Red Book, some book or at least file, where matters later written down in the second town book (1342 ff.) were noted, at least in the 1330’s, 2) some book or at least a file (not preserved until today), similar to the second town book (1342 ff.) and preceeding it, in which records from the 1330s were written down, 3) some documentation of the town council, unknown to us despite the very high grade of preservation of the municipal archives of Görlitz.

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Familiäre Vermögensrechte kontra Veräußerungsfreiheit vor dem Hintergrund der ältesten Stadtbücher von Krakau und Görlitz (Aufzeichnungen aus den Jahren 1300–1343)

Maciej Mikuła

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 4, Volume 11 (2018), pp. 449 - 468

https://doi.org/10.4467/20844131KS.18.038.9480

The article presents the results of the comparison of urban legal practice in Kraków and Görlitz in the years 1300–1343 against the background of the oldest city books. The subject of the analysis was a record illustrating guarantees for the safety of legal transactions. Freedom of disposal of family goods was limited in the Middle Ages with regard to the property interests of the family. The article provides closer analysis of cases of family members’ consent to divest assets to persons not belonging to the immediate family, guarantees of the seller regarding the buyer’s undisturbed possession of the acquired goods until expiry of the limitation period for possible claims of family members (one year and one day), and cases of waiver to claims of this kind by family members for the future. With regard to the latter aspect, it was established that, in light of Görlitz’s practice, relinquishing by family members of their rights to certain elements of their assets could also have legal consequences in the form of the right of conciliation, even in the case of claims under the right to sue. In Kraków, on the other hand, there was a recognitiones of rights to certain goods, especially hereditary goods, beyond the scope of the authority of the city administration. Legal practice in both cities points to a harmonious coexistence of the protection of the family’s property interests and the freedom of alienation, which was essential for the professional activity of citizens.

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The Opus Tripartitum as an Original Source of Law as well as a Source of Knowledge about Custom in Light of Late Modern Age Hungarian Jurisprudence

Adriana Švecová, Miriam Laclavíková

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 4, Volume 11 (2018), pp. 467 - 479

https://doi.org/10.4467/20844131KS.18.039.9481

The objective of the study is to introduce late modern age legal opinions on custom and its place among sources of law in the Hungarian legal system. It focuses especially on the characteristics and functions of custom and clarifies the relationship between custom and the law as such (lex, act) as another source of law. The Hungarian modern age is characterised by a symbiosis between custom and the law and by a related dispute about how they relate to eachother. The authors of the study focused their attention on a dispute over the derogatory function of custom in relation to the law and highlighted the trend of a major effort towards codification and the related growing importance of lex as a source of law. At the same time custom was losing its “folk character” and gradually gained a forensic form (custom formally included as a basis for court decisions). In Hungarian legal history, custom held an irreplaceable position among sources of law in the legal system, and modern age jurisprudence scholars attempted to develop or reformulate the theoretical principles enshrined in the Opus Tripartitum (1514) (J. Szegedi, S. Huszty, E. Kelemen, A. Kövy, P. Szlemenics, I. Frank, etc.).

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Organizacja i działalność systemu wymiaru sprawiedliwości w rosyjskiej marynarce wojennej od początków XVIII do połowy XIX w.

Leszek Madej

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 4, Volume 11 (2018), pp. 481 - 527

https://doi.org/10.4467/20844131KS.18.048.9987

It was Peter the Great who laid the foundations for the organization of the system of justice in the Russian navy. Thanks to his efforts, Naval Regulations was published complete with the decrees edited subsequently. According to these documents the Board of War (Council of War) originally became the highest judicial authority, followed by the Board of Admiralty (Council of Admiralty) [my assumption of the intended meaning for the author or editor to verify]. Even a commander-in-chief, that being a general-admiral, held a lesser level in the hierarchy. The next level was occupied by the Flagmen, and on the lowest rung of the subordination ladder were the so-called Captain Courts. Moreover, the main commanders of the war harbours were vested to pass judgement. The aforementioned organization survived until 1804, when the General Kriegsrecht was created. In the following year it was replaced by the General Audytoriat. Between 1805–1812 and 1836–1867 this institution fulfilled the function of the higher court of review in the navy as well as in the army. In general, in the middle of the 19th century, officers of the higher commander ranks were of central importance in the structures of administration of justice, who, similarly to the members of judicial committees, didn’t necessarily have the required legal knowledge. For this reason the judical assessors usually played a key role during any legal process, because the chairman and members of the court were often forced to rely on their, mostly, practical abilities. Actually the judical assessors like judges, usually were not prepared appropriately in terms of professional qualifications. All in all, until the second half of the 19th century Russian navy didn’t have well prepared and educated judicial staff and the fate of defendants totally depended on the line officers’ opinions.

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Przyczyny zwiększonej palności nieruchomości ubezpieczonych w Powszechnym Zakładzie Ubezpieczeń Wzajemnych przed II wojną światową

Waldemar Bednaruk

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 4, Volume 11 (2018), pp. 529 - 539

https://doi.org/10.4467/20844131KS.18.040.9482

Relatively early, it was noticed in the internal analyzes of the Universal Mutual Insurance Institution that insured properties in this plant are burning more often than buildings whose owners bought insurance policies in private insurance companies. The finding of this alarming fact led the management of the public insurer to undertake extensive measures to discover the reasons for this phenomenon, and consequently also to marginalize or even eliminate it as a result of the remedial measures taken. While the determination of the causes turned out to be relatively simple, the fight with them did not bring such quick results.

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Przepisy karne ustawy o prawie autorskim z 1926 roku. Historia powstania – charakterystyka ogólna. Art. 61 i jego znaczenie dla późniejszych regulacji

Damian Szczepaniak

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 4, Volume 11 (2018), pp. 541 - 565

https://doi.org/10.4467/20844131KS.18.041.9483

This article presents the issue of the penal law provisions concerning copyright protection in the act of 1926. Apart from outlining the history of the creation of the penal law provisions of this act and their general characteristics, particular attention has been placed on Article 61 and the interpretative problems resulting from this regulation as well as on the demonstration of its influence on Article 59, Section 2 of the Copyright Law of 1952, and on Article 115, Section 3 of the Copyright and Related Rights Law of 1994. The analysis of the penal provisions of the act of 1926 has shown that they were not based on any consistent theoretical concept analogous to the one that Fryderyk Zoll created in the context of civil law. Due to the broad and vague phrasing of Article 61 – the basic regulation which allows pressing penal charges in cases of copyright infringement – doubts have arisen concerning the object of penal protection, in particular, whether it refers only to the author’s economic rights or to moral rights as well. The problem is also related to the fact that despite the directives of the Penal Law Section of the Codification Commission, no catalogue of the types of copyright infringement requiring penal sanctions was formulated in the act. Willing to present the penal law regulation synthetically, and encompassing various kinds of copyright infringement similarly to the way civil law regulations were presented, the Codification Commission did not take the specific nature of penal law into sufficient consideration, which actually left it to the courts to decide whether a given type of interference in another person’s copyright was liable to penal sanction; that, in turn, was against the principle of nullum crimen sine lege certa. Moreover, questions concerning compliance with the principle of the determinacy of punishable acts arise while analysing the abovementioned penal provisions of further copyright laws. The problem was also considered by the Constitutional Tribunal, which examined the compatibility of Article 115, Section 3 of the Copyright Law of 1994 and Article 42, Section 1 of the Polish Constitution. This demonstrates that the problem of the scope of the penal liability object – raised by the Penal Law Section of the Codification Commission, seemingly marginalised during further works on the project, which resulted in the adoption of regulations not fulfilling the requirements of the guarantee function of penal law - has not been satisfactorily resolved to this day, despite the substantial efforts of the legislature undoubtedly visible in the act of 1994.

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Przestępstwo „szeptanej propagandy” w świetle wybranego orzecznictwa Sądu Okręgowego w Krakowie z lat 1946–1950

Mateusz Woźniak

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 4, Volume 11 (2018), pp. 567 - 580

https://doi.org/10.4467/20844131KS.18.042.9484

Polish criminal law of the post-war period was often used by the new Communist authorities as a tool for dismantling and replacing the prior legal and social structure”. One of the legal acts which functioned as the state authority’s instrument, and simplified the construction of a social and economic system based on Soviet examples, was the decree of 13 June 1946, commonly referred to as the “small” penal code, on crimes which were particularly dangerous during the period of reconstruction in the country. Article 22 of the decree penalised the crime of so-called ‘whispering campaigns’. The case law of the District Court in Cracow in the period of 1946-1950 covers a number of proceedings conducted on the basis of article 22 of the small penal code. Herein, over twenty cases are presented among which fourteen defendants were convicted, six were acquitted, and three proceedings were annulled, including two amnesties. The most serious penalty was a sentence of imprisonment for three years and six months, and the mildest was a two-month detention. The analysis of the cases leads to a conclusion that, on the basis of article 22 of the decree, people were convicted for different statements which, though quite often neutral, were perceived by the law enforcement authorities as an attack against the new political, social, and economic reality. The imprecise attributes of what constituted criminal acts as described in article 22 of the small penal code enabled the authorities to pursue criminal prosecution for almost any statement concerning the above mentioned spheres. The social origin of those convicted for whispering campaigns varied. Defendants varied from those who were illiterate to those who were well-educated.

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Sprawozdanie z Międzynarodowej Konferencji Naukowej „Kodeks Pio-Benedyktyński między tradycją a rozwojem. W 100. Rocznicę promulgacji Kodeksu prawa kanonicznego z 1917 roku”, Uniwersytet Kardynała Stefana Wyszyńskiego w Warszawie, Warszawa, dnia 9 listopada 2017 r.

Michał Ożóg

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 4, Volume 11 (2018), pp. 581 - 585

https://doi.org/10.4467/20844131KS.18.043.9485

The conference was held in Warsaw on November 9th, and it touched upon the subject of the 1917 Pio-Benedictine Code. It was organised by the Cardinal Stefan Wyszyński University in Warsaw. The participants were greeted by the Rev. Prof. Stanisław Dziekoński (Rector) and the Rev. Prof. Henryk Stawniak (Dean of the Faculty of Canon Law at the Cardinal Stefan Wyszyński University). The symposium was divided into two sessions. The conference gathered 9 lecturers who work at universities in Poland, Italy, and the Czech Republic. The papers focused on the origins of the Pio-Benedictine Code and some selected legal institutions.

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Sympozjum naukowe „Granice prawa do sakramentów. Między Kodeksem Prawa Kanonicznego z 1917 roku a Kodeksem z 1983 roku”, Kraków, 16 listopada 2017 roku

Marek Strzała

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 4, Volume 11 (2018), pp. 587 - 589

https://doi.org/10.4467/20844131KS.18.044.9486

In 2017 to mark the 100th anniversary of the Pio-Benedictine Code of Canon Law of 1917 the Faculty of Canon Law at the Pontifical University of John Paul II in Krakow organized a conference entitled “Limits of the right to the sacraments”. It was held in Krakow on the 16th of November 2017. The speeches, delivered in two sessions, concerned criteria for allowing children to first Holy Communion, and psychological conditions for receiving the sacraments of Confirmation, Holy Orders, and Holy Matrimony, as well as requirements for receiving the sacrament of the Anointing of the Sick.

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Sesja naukowa „Sejm I Rzeczypospolitej – Parlament Wielu Narodów a europejskie reprezentacje stanowe”, Warszawa 27 kwietnia 2018 r.

Maciej Mikuła

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 4, Volume 11 (2018), pp. 591 - 593

https://doi.org/10.4467/20844131KS.18.045.9487

In 2018, there are significant anniversaries for the history of statehood and the Polish nation. Apart from celebrating the centenary of independence (11 November 1918), the 550th anniversary of the bicameral Polish parliament is also celebrated. The impetus for this second anniversary is the result of a study by professor Wacław Uruszczak, who proved that as early as 1468 the principle of deputies’ representation functioned: each ‘land’ (ziemia) sent two deputies to the Sejm. These studies were published in the memorial book of Janusz Kurtyka (The oldest bicameral parliament in Piotrków in 1468 [in:] The Birth of the Polish Republic. Studies on the History of the Middle Ages and Early Modern Times, ed. W. Bukowski, T. Jurek, vol. II, “Societas Vistulana”, Kraków 2012, pp. 1033–1056) During the session, 12 papers were presented by researchers from Poland, Lithuania, Belarus, Ukraine, and Hungary.

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II Seminarium projektu badawczego Narodowego Programu Rozwoju Humanistyki „Fontes Iuris Lusatiae Superioris Vetustissimi” w Zgorzelcu, 5–6 września 2018 roku

Krzysztof Fokt, Maciej Mikuła

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 4, Volume 11 (2018), pp. 595 - 597

https://doi.org/10.4467/20844131KS.18.046.9488

The report contains a brief summary of the 2nd project workshop of the “Fontes Iuris Lusatiae Superioris Vetustissimi” research project, which was held in Zgorzelec on 5th–6th September, 2018. The proceedings on September 5th were held in Polish in the Jacob Böhme House and on September 6th in German in the Municipal Culture House (MDK). Partnering institutions of the workshop were the Lusatian Museum in Zgorzelec and the Martin-Luther University in Halle/Wittenberg.

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Konferencja „Internationale Tagung zur mittelalterlichen Schriftlichkeit. Stadtbücher – Die Erforschung kommunalen Handelns im Spiegel administrativer Schriftlichkeit”, Zgorzelec/Görlitz 6–8 września 2018 roku

Maciej Mikuła, Krzysztof Fokt

Cracow Studies of Constitutional and Legal History, Volume 11, Issue 4, Volume 11 (2018), pp. 599 - 603

https://doi.org/10.4467/20844131KS.18.047.9489

“Internationale Tagung zur mittelalterlichen Schriftlichkeit. Stadtbücher – Die Erforschung kommunalen Handelns im Spiegel administrativer Schriftlichkeit” is the title of a three-day conference that took place in Zgorzelec and Görlitz on 6th–8th September 2018. Its organizers were the University of Martin Luther Halle-Wittenberg and the Jagiellonian University in Krakow, with the support of the Cultural-Historical Museum in Görlitz. The time and place of the conference were strictly coordinated with the workshop of the “Fontes Iuris Lusatiae Superioris Vetustissimi” project (financed by the National Program for the Development of Humanities), preceding it, and the framework for it was the research project “Index Librorum Civitatum”, funded by Deutsche Forschungsgemeinschaft. During the three-day meeting, three main groups of issues were discussed: (1) pragmatic writing in towns; (2) current studies on urban records; (3) digital instruments of research on urban records.

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spis treści UNKOWN wykaz skrótów UNKOWN

Słowa kluczowe: Görlitz, town book of records, legal acts, town chancery, Beispruchrecht, ius propinquitatis, property law, inheritance law, Kraków, Zgorzelec, municipal records, Magdeburg law, Sources of Law, Opus Tripartitum, custom (consuetudo); the Law (lex), legal practice (usus fori), Hungarian jurisprudence of the Modern Age Period, Russian fleet, naval courts, General Auditoriat, naval penal and disciplinary legislation, Poland during the interwar period, the great economic crisis, insurance fraud, penal provisions of copyright law, Codification Commission, copyright, penal law, Second Polish Republic, criminal law, a small penal code, a false declaration, whispering campaign, amnesty, imprisonment, pre-trial detention, cassation, canon law, legal history, Pio-Benedictine Code, Warsaw, canon law, sacrament, right to receive a sacrament, parliamentarism, Polish Sejm, Polish-Lithuanian Commonwealth, anniversary, conference, research project, source edition, municipal law, Middle Ages, scholarly conference, Zgorzelec, towns, Middle Ages, municipal records, data base, Zgorzelec, Görlitz

Volume 11, Issue 4

Volume 11 (2018) Next

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Volume 11 (2018)