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2024

Licence: None

Editorial team

Issue editor Karolina Rokicka-Murszewska

Language Editor Piotr Brodowski

Deputy Chairman of the Editorial Board Małgorzata Szwejkowska

Sekretarz redakcji Aleksander Jakubowski

Chairman of the Editorial Board Tomasz Scheffler

Issue content

Articles

Po co radcom prawnym samorząd? Kontrowersje w związku z wnioskiem skierowanym do Trybunału Konstytucyjnego w sprawie K6/22

Dorota Sylwestrzak

Attorney-at-Law, 1 (38), 2024, pp. 11 - 33

https://doi.org/10.4467/23921943RP.24.001.19882

One of the foundations of a democratic state of law is to base power and public administration on the principle of decentralization. Public administration tasks are performed by both central and local government administration bodies. Moreover, these tasks are entrusted to other public law entities, e.g. special self-governments (professional, economic), administrative establishments, foundations, and associations. In Poland, there is currently a noticeable process of centralization of power and limitation of the independence of local governments, in particular territorial and professional ones. The author briefly presents the essence of decentralization, the principle of self-government and the justification for leaving autonomy to the self-government of attorneys-at-law in the context of the arguments raised in the application to the Constitutional Tribunal of Poland in case file no. K 6/22.

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Wyznaczanie radców prawnych o udzielania nieodpłatnej pomocy prawnej w świetle orzecznictwa sądów administracyjnych

Dawid Daniluk

Attorney-at-Law, 1 (38), 2024, pp. 35 - 43

https://doi.org/10.4467/23921943RP.24.002.19883

Attorneys-at-law are one of the entities performing public tasks related to providing free legal assistance. This service is provided at various locations throughout Poland. Every year, districts conclude agreements with various bar associations of attorneys-at-law regulating the provision of free legal assistance in a given district’s area. In the jurisprudence of administrative courts, the only issue analysed so far related to appointing attorneys-at-law to provide free legal assistance is the possibility of participation in this procedure exclusively by attorneys-at-law associated with a particular bar association of attorneys-at-law.

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Od naruszenia bezpieczeństwa przetwarzanych danych osobowych do nałożenia kary przez Prezesa UODO– zagadnienia praktyczne

Aleksandra Klich, Bartosz Skrendo

Attorney-at-Law, 1 (38), 2024, pp. 45 - 67

https://doi.org/10.4467/23921943RP.24.003.19884

In the study, the authors focus on the practical aspects of personal data security management in the context of Polish legal regulations. They analyzed the concept of a personal data security incident and breach along with the necessary steps leading from a data security breach to the possible imposition of a penalty by the President of the Office for Personal Data Protection (UODO). The authors pointed out that to avoid sanctions, a personal data processor must not only comply with the minimum legal requirements but also focus on implementing measures to ensure an adequate level of security. The authors indicate the need for effective data protection through monitoring, rapid response to incidents and employee education. The authors point out that awareness of data security risks and effective preventive measures can help avoid sanctions from the President of the UODO. The conclusions of the publication provide a practical guide for data processors seeking to effectively protect personal data in a dynamic legal environment.

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Prawo do sprzeciwu – szczególne uprawnienie decyzyjne podmiotu danych osobowych

Elżbieta Gudowska-Natanek

Attorney-at-Law, 1 (38), 2024, pp. 69 - 89

https://doi.org/10.4467/23921943RP.24.004.19885

The article deals with the issue of a special decision-making right of the subject of personal data, which is the right to object to the processing of personal data by the data subject. The purpose of the study is not only to show the essence of this right, including the analysis of the conditions entitling the data subject to use the objection, administrator’s conduct, effects of making an effective request, as well as legal measures applicable in the event of rejection of the objection, but also to draw attention to the existing normative inaccuracies reflected in Regulation 2016/679. After reading the study, the readers will notice that the protection of the rights of the subject of personal data, without the help of a professional attorney, may not bring the expected results. The second emphasized aim of the study is of fundamental importance because ambiguous, hard-to-interpret, confusing, and highly formalized law is never helpful to the individual. Perhaps pointing out problems of a legal nature, which constitute specific postulates de lege ferenda, will cause a rational lawmaker to decide to introduce appropriate changes to the regulations.

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Hulajnogi elektryczne w perspektywie prawa karnego i prawa wykroczeń

Jan Kluza

Attorney-at-Law, 1 (38), 2024, pp. 91 - 103

https://doi.org/10.4467/23921943RP.24.005.19886

The article raises the issue of the status of electric scooters under criminal law and misdemeanor law. The Act of 2021 regulates the legal status of these vehicles and other personal transport devices under the provisions of the road traffic law. However, the status of the driver of such vehicles under the broadly understood criminal law remains an open question. The concept of a motor vehicle functioning in the provisions of the Penal Code and the Code of Petty Offenses is not defined, which raises doubts about whether the new regulations on electric scooters and personal transport devices fall within the scope of the definition of a motor vehicle, and consequently, whether such persons can be held liable under certain types of prohibited acts specified in the Polish Penal Code and Polish Code of Petty Offenses.

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Podstawy apelacji w postępowaniu uproszczonym

Michał Czubala

Attorney-at-Law, 1 (38), 2024, pp. 105 - 119

https://doi.org/10.4467/23921943RP.24.006.19887

The article discusses the issue of the grounds for appeal in simplified proceedings, as provided for in Article 505(9) §1(1) of the Polish Code of Civil Procedure. Particularly significant is whether, within these grounds, it is permissible – in light of the judgment of the Constitutional Tribunal of Poland of January 13, 2004, case file no. SK 10/03 – to challenge the factual findings of the first-instance court. Furthermore, it has been considered whether the appellate court is bound by the grounds raised in the appeal. For this purpose, the characteristic features of the full appeal model and the limited appeal model are analysed. Since the entry into force of the amendment to the Polish Code of Civil Procedure on November 7, 2019, the model of appeal in simplified proceedings is similar to the full appeal model, although the regulations in this regard are not consistent and coherent. Therefore, the appellate court in small claims proceedings is not bound by the grounds for appeal. Furthermore, taking into account the indications of the Constitutional Tribunal of Poland in the judgement mentioned above, it must be acknowledged that within the grounds for appeal in small claims proceedings, it is permissible to question the factual findings of the first-instance court. Due to the ambiguity of the legal regulations, the legislator must decide if the model of the appeal in small claims proceedings is supposed to be a full appeal model – in this case, the regulations concerning the appeal in small claims proceedings are superfluous – or is it supposed to be a limited appeal model – in this case, it is necessary to regulate the appeal anew.

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Termin wymagalności roszczeń odszkodowawczych związanych z ograniczeniem sposobu korzystania z nieruchomości na terenie obszaru ograniczonego użytkowania

Tomasz Jankowiak

Attorney-at-Law, 1 (38), 2024, pp. 121 - 133

https://doi.org/10.4467/23921943RP.24.007.19888

The author considers doubts relating to the date from which an indefinite claim arising from a restriction of the use of real estate in the area of limited usufruct is becoming due, which is regulated by Articles 129(2) and (3) and 136(3) of the Environmental Protection Law.

Firstly, the author presents primary conditions for establishing the area of limited usufruct. According to the author, the debtor, in the case of this type of claim, is well aware of its validity and can also easily verify it as to the amount. The author concluded that in the case of perpetual compensation claims related to the restriction of the use of real estate in a limited-use area, they become due when the debtor fails to provide without reasonable delay after the creditor calls on him to do so and from that moment statutory interest for delay should be awarded.

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Możliwości prawne i perspektywy osądzenia rosyjskiej agresji na Ukrainę

Jan Uniejewski

Attorney-at-Law, 1 (38), 2024, pp. 135 - 150

https://doi.org/10.4467/23921943RP.24.008.19889

The unjustified aggression of the Russian Federation against Ukraine in 2022 is a clear example of a violation of the fundamental prohibition of the international legal order to use the threat or use of force against the territorial integrity or political independence of any state or in any other way inconsistent with the principles of the United Nations. The unimaginable scale of evil done does not allow for this act to be ignored without holding all those involved in planning or carrying out this crime accountable for it and without compensating for the losses incurred as a result of it. Liability for aggression is a multifaceted issue, which renders it difficult to understand the discussions in the public sphere. The presented considerations organize the necessary knowledge by presenting the legal possibilities and perspectives of judging Russian aggression against Ukraine. Four potential possibilities of holding the perpetrators of this aggression to account and the issue of international liability of the aggressor state are analyzed. The comments made do not exhaust the entire wealth of the issues in question, but they explain the normative bases and possibility of their application.

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Glosses

Orzeczenie o obowiązku naprawienia szkody przez członka zarządu spółki w procesie karnym. Glosa do wyroku Sądu Najwyższego z dnia 26 stycznia 2016 r., V KK 323/15 (krytyczna)

Witold Matejko

Attorney-at-Law, 1 (38), 2024, pp. 151 - 160

https://doi.org/10.4467/23921943RP.24.009.19890

The commented judgment is part of the line of jurisprudence advocating the thesis that, on the grounds of the so-called anti-accumulation clause of Article 415 § 1 of the Polish Code of Criminal Procedure, it is inadmissible to impose on a convicted member of the management board of a limited liability company an obligation to repair damage in favour of a wronged creditor of that company if the creditor has previously obtained an enforcement title against the company. In the author’s opinion, such an interpretation is not correct. The assumption that there is a subjective identity between a limited liability company and a member of its management board is, in the author’s opinion, contrary to the fundamental norms of civil law and commercial companies law. Contrary to the theses of the Polish Supreme Court outlined in the justification of the ruling, a creditor has no legal grounds to pursue, based on an enforceable title issued against the company, a claim against a member of the management board at the enforcement stage.

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Other

Przebieg postępowania i wyrok Sądu Najwyższego z dnia 25 maja 2023 r. (II KK 453/22) w sprawie tzw. procesu brzeskiego. Refleksje wokół uniewinnienia po 90 latach Wincentego Witosa

Józef Zych

Attorney-at-Law, 1 (38), 2024, pp. 161 - 175

https://doi.org/10.4467/23921943RP.24.010.19891

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Sprawozdanie z V edycji Sprawozdanie Z V Edycji Ogólnopolskiej Konferencji Naukowej Prawniczych Zawodów Zaufania Publicznego „Dostęp do prawniczych zawodów zaufania publicznego”, Toruń, 14 grudnia 2023 r.

Aleksandra Główczewska

Attorney-at-Law, 1 (38), 2024, pp. 177 - 182

https://doi.org/10.4467/23921943RP.24.011.19892

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Jurisprudence

Przegląd orzecznictwa Sądu Najwyższego (za okres styczeń–marzec 2024)

Kacper Milkowski

Attorney-at-Law, 1 (38), 2024, pp. 183 - 199

https://doi.org/10.4467/23921943RP.24.012.19893

The Judgment of the Polish Supreme Court of January 25, 2024 (case file no. I CSK 151/23) is of particular importance for legal practice. The Court indicated that in the case of division of marital property (including real estate encumbered with a mortgage), the court generally establishes its value, disregarding the value of the mortgage encumbrance. In the Judgment of March 27, 2024 (case file no. IV KK 478/23), the Polish Supreme Court stated that intoxication requires an amount of substance that allows for at least one-time use of the substance in a dose characteristic for it, capable of producing an effect in humans other than medical. In addition, the Polish Supreme Court, in the Judgment of January 11, 2024 (case file no. III PSK 24/23), stated that a one-day break in obtained sick leaves does not interrupt the temporary incapacity for work and does not require counting the period of this incapacity from the beginning.

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Files to download

Table of contents PDF Editorial page PDF Title pages PDF Editorial Board PDF From Editors [PL] PDF List of Reviewers PDF Mission and objectives of the journal [pl] PDF Ethical principles of the quarterly journal "Attorney-at-Law. Law Review" [pl] PDF Conditions and procedure for accepting the text [pl] PDF

Słowa kluczowe: professional associations, The National Bar of Attorneys-at-Law, decentralization, free legal assistance, attorney-at-law, administrative court, judicature, personal data security, data security breaches, administrative fines, GDPR, right to object, rights of data subjects, personal data protection, processing of personal data, regulation 2016/679, GDPR, electric scooter, personal transport device, motor vehicle, vehicle, traffic participant, grounds for appeal, small claims proceedings, full appeal, limited appeal, area of limited usufruct, real estate, deed restrictions, environmental protection, late payment interest, enforceability of a claim, international liability of an individual, aggression of the Russian Federation against Ukraine, anti-accumulation clause, reparation of damage, compensatory measure, liability of a member of the management board of a limited liability company, Polish Supreme Court, judicature, criminal proceedings, civil proceedings, resolution, judgment