Author: Katarzyna Kos
E-mail: kos.kasia@wp.pl
Institution: Uniwersytet Jagielloński
Year of publication: 2018
Source: Show
Pages: 11-38
DOI Address: https://doi.org/10.15804/ppk.2018.02.01
PDF: ppk/42/ppk4201.pdf

Streszczenie:

The concept of the secondary unconstitutionality of law has been appearing over the years in the adjudication of the Polish courts, adjudication of the Constitutional Tribunal and in legal literature. During this time there have been diversified contexts, in which this notion has been used. Shortly after the Constitution from 1997 entered into force, ‘secondary unconstitutionality’ was used to describe an influence of the new constitution on a so-called pre-constitutional law. Nowadays the tendency of understanding this concept is different. On the one hand, it specifies the law, which is a result of a faulty, repeating unconstitutional regulations, activity of the legislator. On the other hand, this notion is used in the situation, when as the consequence of the entry into force a judgment of the Constitutional Tribunal the new law is also unconstitutional. The aim of this article is to propose a comprehensive definition of the concept of the secondary unconstitutionality. Moreover, it will be presented a draft of the sense of this notion for the practice of establishing and applying the law in Poland.

prawo przedkonstytucyjne stosowanie Konstytucji wtórna niekonstytucyjność Trybunał Konstytucyjny

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Author: Krzysztof Prokop
E-mail: kprokop@pwsip.edu.pl
Institution: Państwowa Wyższa Szkoła Informatyki i Przedsiębiorczości w Łomży
Year of publication: 2018
Source: Show
Pages: 39-56
DOI Address: https://doi.org/10.15804/ppk.2018.02.02
PDF: ppk/42/ppk4202.pdf

Streszczenie:

The article is devoted to the responsibility of members of the Federal Government in Belgium. The main part of the study concerns the mechanisms of political responsibility. They include individual responsibility of ministers and collective responsibility of the cabinet. According to the original version of the Belgian Constitution of 1831 ministers were responsible to the king. Currently, the House of Representatives is authorized to enforce the individual responsibility of the minister by passing a vote of no confidence. In such situation the king is obliged to dismiss the minister. The entire cabinet may be the addressee of the motion of no confidence, too (collective responsibility). Since 1993 there has been the possibility of overthrowing the government through a constructive vote of no confidence. The article also discusses the problem of legal responsibility of ministers.

wotum nieufności rząd Belgia minister parlament,

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Author: Artur Olechno
E-mail: a.olechno@uwb.edu.pl
Institution: Uniwersytet w Białymstoku
Year of publication: 2018
Source: Show
Pages: 57-68
DOI Address: https://doi.org/10.15804/ppk.2018.02.03
PDF: ppk/42/ppk4203.pdf

Streszczenie:

The article presents the formal and legal scope of responsibility of the highest state officials in Ukraine as well as political practice in this regard against the background of selected political events and political experiences of the former Prime Minister of Ukraine – Yulia Tymoshenko (and her political rivals). In addition to the traditional forms of liability: constitutional, criminal or political, the article speaks about the potential criminal liability of politicians for abuse of power or wrong political decisions.

Tymoszenko odpowiedzialność Ukraina

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Author: Andrzej Jackiewicz
E-mail: jackiewicz@uwb.edu.pl
Institution: Uniwersytet w Białymstoku
Year of publication: 2018
Source: Show
Pages: 69-82
DOI Address: https://doi.org/10.15804/ppk.2018.02.04
PDF: ppk/42/ppk4204.pdf

Streszczenie:

The recall mechanism, like other forms of direct democracy, has raised a growing interest. In the last century, a number of states have used it, both on the central level and,especially, on the regional and local level. The group of such countries was joined in 2008 by Latvia which introduced into its legal system a unique, on the world scale, form of recall. In the article, the author defines the recall mechanism, presents countries where the mechanism exists, and classifies the types of recall. Then the author presents the proces of constitutionalization of recall in Latvia and the current constitutional and statutory provisions pertaining to that institution. Also, an attempt has been made to evaluate the potential of this institution in Latvia’s system of government.

odwołanie przedstawicieli Łotwa parlament, konstytucja

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Author: Grzegorz Kryszeń
E-mail: kryszen@uwb.edu.pl
Institution: Uniwersytet w Białymstoku
Year of publication: 2018
Source: Show
Pages: 83-96
DOI Address: https://doi.org/10.15804/ppk.2018.02.05
PDF: ppk/42/ppk4205.pdf

Streszczenie:

The Constitution of the Republic of Belarus of March 15, 1994, defining the status of members of the parliament and deputies of the local councils of deputies, referred to the canons of constitutional regulation of the status of a representative in former socialist countries, and above all: the concept of an imperative mandate and the institution of recalling voters by the voters. The aim of this study is first and foremost a comprehensive presentation of Belarusian legal regulations pertaining to the said institution, the conditions for its application, the principles of the appeal process as well as its legal consequences. Discussion of this issue is preceded by a characteristic of the assumed role of the recall of representatives in the doctrinal and legal model of representation adopted in Belarus.

status członka parlamentu parlament, wybory konstytucja

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Author: Marek Woźnicki
E-mail: marek.kamil.woznicki@gmail.com
Institution: Uniwersytet Marii Curie-Skłodowskiej
Year of publication: 2018
Source: Show
Pages: 97-119
DOI Address: https://doi.org/10.15804/ppk.2018.02.06
PDF: ppk/42/ppk4206.pdf

Streszczenie:

According to the Constitution of Poland from 2nd April 1997, a cabinet minister is political responsible for the political direction of his office to the Sejm and to the Prime Minister. The main goal of this paper is to show, that in practice, the political responsibility of the ministers before the Sejm is illusory. The majority of the vote required to adopt a motion of no confidence is so high that its vote is only possible in exceptional circumstances. Since 1997, no motion of no confidence have been successful, so the Sejm has never succeeded in enforcing the resignation of a minister. That is why, only the political responsibility of the minister before the Prime Minister has a real meaning. The head of government can lead to the dismissal of each minister at any time. When deciding to file an application to dismiss a minister, the Prime Minister must take into account only whether such a decision does not endanger the political support of the majority of the Sejm.

Prezes Rady Ministrów wotum nieufności minister odpowiedzialność polityczna Sejm

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Author: Marcin Dąbrowski
E-mail: m_dabrowski@wp.eu
Institution: Uniwersytet Warmińsko-Mazurski
Year of publication: 2018
Source: Show
Pages: 121-144
DOI Address: https://doi.org/10.15804/ppk.2018.02.07
PDF: ppk/42/ppk4207

Streszczenie:

The article concerns on a problem of social security and analyzes issue of the change of provisions which regulate pensions of officers of communistic security services, who served their duties after the communistic system collapsed in the Republic of Poland (after the year 1990). The amendment of statutory law has seriously reduced the amount of pensions of indicated above officers. Firstly the author of the essay criticizes the statutory definition (temporal limits) of the totalitarianism, which took place in Poland after the Second World War. It is found that provisions wrongly indicates that communistic totalitarianism ended in 1990, while historians officially claim that it had taken place in 1956. In the second part of the article the author argues that statutory changes seriously violate the provisions of the Constitution of the Republic of Poland of 1997. New, actually binding provisions are unfair, demoralizing and discriminate persons who legally preformed duties in security formations after the year 1990.

totalitaryzm państwo demokratyczne organy bezpieczeństwa funkcjonariusz renta emerytura zasada zaufania państwa do obywatela konstytucja

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Author: Joanna Zaguła
E-mail: izagula@onet.pl
Institution: Uniwersytet Wrocławski
Year of publication: 2018
Source: Show
Pages: 145-169
DOI Address: https://doi.org/10.15804/ppk.2018.02.08
PDF: ppk/42/ppk4208.pdf

Streszczenie:

The author deals with the matter of publication of law in the Polish legal system. She analyses its’ effectiveness by using J.L. Austin’s speech acts theory. The author proposes a thesis that there are situations in Polish legal system when a publication of law – although assumed to be a performative act – does not fulfill all the standards of performativity and – as a result – can be recognized as ineffective. Citing Austin and Fuller the author excerpts some examples of laws that are wrongly formulated and published in a faulty way. She also states that if a speech act (which is a performative act) is to be called effective, it must be communicated to its’ recipients. As a result, the author analyses both polish legal regulations concerning publication of law, as well as the research showing how people actually acquire the knowledge of law. As it occurs – the official sources as some of the most rarely used, so she proposes a new approach, derived from theatre studies, as theater performances are also being described using the term of performative effectiveness. The suggested solution would be a theoretical switch between the law makers and recepients and an attempt to establish a connection between them. While publishing the law, the law makers should consider who the recipients are, who is supposed to read the regulations, understand the norms and how he or she is going to do it.

promulgacja obowiązek publikacji prawa skuteczność ogłaszania prawa ogłaszanie prawa performatywność akt performatywny akt mowy

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Author: Justyna Kornaszewska
E-mail: justyna.kornaszewska@gmail.com
Institution: Uniwersytet Warszawski
Year of publication: 2018
Source: Show
Pages: 171-183
DOI Address: https://doi.org/10.15804/ppk.2018.02.09
PDF: ppk/42/ppk4209.pdf

Streszczenie:

The principle of non-retroactivity is recognized as one of the foundations of the civilized system of the modern state. The essence of the principle of non-retroactivity can be reduced to the assertion that the law should, in principle, act “for the future”, therefore it should not be legal norms that would apply to events that occurred and ended before their entry into force. In other words, the legal consequences of events taking place under the old norms should be assessed according to these norms, even if new regulations are already in force at the moment of making such an assessment. The retroactive act of the regulations is when the lawmaker orders certain relevant legal facts, existing before the day of entry into force of the new provisions, assessed in the light of these new provisions, introducing a fiction that these provisions were already in force on the date of the assessed facts. If the regulation contained in the regulation obviously acts “for the future” and at the same time has legal effects only 3 months after the entry into force of the act, it does not violate the principle of non-retroactivity. This doesn’t mean that without violating the principle of non-retroactivity, the legislator may freely interfere in existing legal relations and modify them freely. The boundary here is, above all, observance of the principle of protection of acquired rights and principles of protection of trust in the state and the law. It is unacceptable to create norms retrospectively, if the entities to whom these standards relate could not rationally anticipate such decisions, and extraordinary circumstances or goods subject to constitutional protection, such decisions do not justify. You can withdraw from it, but only exceptionally and for justified reasons, giving the norms the ability to influence the existing situations, if there were valid reasons, and the interested entities had grounds to expect the adoption of such standards.

zasady lex severior retro non agit lex retro non agit intertemporalność retroaktywność normy prawne orzeczenie Sąd Najwyższy Trybunał Konstytucyjny Konstytucja RP

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Author: Krzysztof Eckhardt
Institution: WSPiA Rzeszowska Szkoła Wyższa
Year of publication: 2018
Source: Show
Pages: 187-192
DOI Address: https://doi.org/10.15804/ppk.2018.02.10
PDF: ppk/42/ppk4210.pdf

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