Nr 1(6)

Themis Polska Nova (6)

Author: Jacek Sobczak – redaktor naczelny
Institution: Uniwersytet SWPS
Year of publication: 2014
Source: Show
Pages: 312
DOI Address: https://doi.org/10.15804/tpn2014.1
PDF: tpn/Themis2014_6.pdf

Spis treści

  • Bogdan Grzeloński Dyplomacja bez jutra. Stosunki Warszawa–Waszyngton w świetle Dariusza Jana Szembeka 1937–1939 (strona 7)
  • Bronisław Sitek Utilitas publica z perspektywy prawa rzymskiego i polskiego (strona 21)
  • Ewa Ferenc-Szydełko Wystawa jako przedmiot prawa autorskiego (strona 36)
  • Ryszard Chruściak Prace parlamentarne nad Ustawą z dnia 6 stycznia 2005 r. o mniejszościach narodowych i etnicznych oraz o języku regionalnym (strona 47)
  • Jacek Sobczak „Przepisy techniczne” w systemie prawa polskiego (strona 71)
  • Dorota Sokołowska Notariusz jako wspólnik spółki z ograniczoną odpowiedzialnością (strona 92)
  • Adas Jakubauskas Prasa litewska o traktacie polsko-litewskim w przededniu jego podpisania (strona 116)
  • Katarzyna Chałubińska-Jentkiewicz Programy wyspecjalizowane jako zadanie w realizacji misji publicznej nadawcy publicznego (strona 124)
  • Lech Jaworski Zakaz cenzury prewencyjnej w świetle zasady wolności słowa (strona 143)
  • Dariusz Jagiełło Wartość dowodowa oraz możliwość przesłuchania osób starszych, chorych i zaburzonych psychicznie (strona 165)
  • Maria Gołda-Sobczak Kultura polityczna a możliwość odmowy publikacji w prasie reklam i prywatnych ogłoszeń (strona 174)
  • Bartłomiej H. Toszek Pełzająca dewolucja. Problem uznania statusu prawnego mniejszości kornwalijskiej w Wielkiej Brytanii na początku XXI w. (strona 186)
  • Ryszarda Stasiak Podstawy prawne działania radia, telewizji i innych technicznych nośników przekazu w Szwecji (strona 201)
  • Anna Stasiak-Apelska System repartycji w Polsce (strona 217)
  • Ewelina Bachera, Bartosz Smółka Instytucja sądu polubownego – konkurent czy też forma pomocy dla sądownictwa powszechnego? (strona 241)
  • Jarosław Szatkowski Wszczęcie postępowania podatkowego – istota i charakter prawny (strona 256)
  • Elżbieta Delert [...] Creative Commons (CC) (strona 280)
  • Tomasz Czapiewski Sprawozdanie z konferencji naukowej „Terminal LNG w Świnoujściu a bezpieczeństwo energetyczne regionu i Polski” Szczecin, 13–14 listopada 2013 r. (strona 306)
  • Wojnicz-Smal Recenzja czasopisma naukowego: „Reality of Politics” (strona 311)

Spis Treści

Author: The Editors
Year of publication: 2014
Source: Show
Pages: 3-5
DOI Address: -
PDF: tpn/6/TPN20141toc.pdf

Dyplomacja bez jutra. Stosunki Warszawa–Waszyngton w świetle Dariusza Jana Szembeka 1937–1939

Author: Bogdan Grzeloński
Institution: Szkoła Wyższa Psychologii Społecznej w Warszawie
Year of publication: 2014
Source: Show
Pages: 7-20
DOI Address: https://doi.org/10.15804/tpn2014.1.01
PDF: tpn/6/TPN2014101.pdf

The author of this article has analyzed the diaries of Jan Szembek, Polands Deputy Foreign Minister and the 1937–1939 reports from Warsaws of the U.S Ambassador to Poland, A.J.Drexel-Biddle. Basing on this material, the author concludes that the Polish–U.S. relations in that period were rather shallow, and were mostly restricted to Warsaws informing Washington about the growing military threat posed by nazi Germany. This state of things stemmed from the fact that, consistent with principle of isolationism, Franklin D.Roosevelt and the State Department were not ready, prior to 1939, to pledge any support for Europe, and for East-Central Europe in particular.

influence of American isolationism on Polish diplomacy Polish–U.S diplomatic relations

Continue reading

Utilitas publica z perspektywy prawa rzymskiego i polskiego

Author: Bronisław Sitek
Institution: SWPS w Warszawie
Year of publication: 2014
Source: Show
Pages: 21-35
DOI Address: https://doi.org/10.15804/tpn2014.1.02
PDF: tpn/6/TPN2014102.pdf

The concept of „public utility”, used in contemporary language of the law and juridical language, was also used in Roman law as utilitas publica. This concept allows to separate the public sphere from the private sector. However, the boundary between sphere of public sphere and private sector have not always been blurred since ancient times. In ancient Rome, the boundary between what was public and what was private was changing and depended on a type of political system, an understanding of the public good or the boundaries of individual’s autonomy. In contemporary times there is also a debate over how far should the powers of the State reach. There is even a discussion about the redefinition of the State, and even about the need for withdrawing the State from the areas of activities traditionally belonging to its empire. It is assumed that the public utility is a service as well as leading production used to meet the needs of all people in a continuous manner. It is not required, that this availability is truly enjoyed by all.

private utility powers of the State public utility Roman law

Continue reading

Wystawa jako przedmiot prawa autorskiego

Author: Ewa Ferenc-Szydełko
Institution: Uniwersytet Opolski
Year of publication: 2014
Source: Show
Pages: 36-46
DOI Address: https://doi.org/10.15804/tpn2014.1.03
PDF: tpn/6/TPN2014103.pdf

The exhibition as a matter of copyright. The exhibition is a complicated subject to copyright. It consists of exhibits – tracks – objects of copyright and other items. The exhibition is a collective work, if adopted in its system works, the choice of topics, descriptions, graphics and other elements of the company are original. The creator is the curator of the exhibition. Curator can be creative or auxiliary. Copyright entitled curator creative. If he is employed under a contract of employment and create an exhibition as an employee – is purely personal copyright. Copyright property is entitled to his employer. For the employer, it must be right to the title of the exhibition.

track Staf collective work the exhibition’s title curator of the exhibition exhibit display copyright

Continue reading

Prace parlamentarne nad ustawą z dnia 6 stycznia 2005 r. o mniejszościach narodowych i etnicznych oraz o języku regionalnym

Author: Ryszard Chruściak
Institution: Uniwersytet Warszawski
Year of publication: 2014
Source: Show
Pages: 47-70
DOI Address: https://doi.org/10.15804/tpn2014.1.04
PDF: tpn/6/TPN2014104.pdf

The work on the draft bill started at the beginning of 2002 by the project of the National and Ethnic Minority Committee of the Sejm. During the first reading the deputies of the Law and Justice and the Polish Families League made a proposal to reject the draft. After the rejection of this proposal, the further work was carried out mainly in the extraordinary subcommittee, which prepared a report in spring 2004.The final work on the Act took place in National and Ethnic Minority Committee. During the third reading in the Sejm, also other motions to reject the draft or to limit its scope were proposed. These proposals came from right-wing and Catholic-national parties. In the Act in comparison to the original project there were extended rules on the use of minority language as an auxiliary, as well as for the use of this language as additional for assigning the names to towns and villages. A new solution was to introduce the notion of a regional language and giving this status to the Kashubian language. Also a solid base for the contacts of the government with national and ethnic minorities was established.

Continue reading

„Przepisy techniczne” w systemie prawa polskiego

Author: Jacek Sobczak
Institution: Szkoła Wyższa Psychologii Społecznej w Warszawie
Year of publication: 2014
Source: Show
Pages: 71-91
DOI Address: https://doi.org/10.15804/tpn2014.1.05
PDF: tpn/6/TPN2014105.pdf

The term “technical regulations” was developed in Directive 98/34/EC of the European Parliament and of the Council, and it comes down to the obligation to provide information concerning products and rules of the information society. The reason behind said solutions was to lead to unification on the Union internal market. Failure to fulfil the obligation of notification triggers serious consequences in legal transactions. From the point of view of the European Court of Justice, national judge, who is primarily a Union judge, may not use non-notified norms. In this respect there appeared discrepancies in judicial decisions of the Supreme Court, where some adjudicating panels held that in cases in which non-notified technical regulations were used it was necessary to ask the Constitutional Tribunal whether these norms were in force. However, the European Court of Justice clearly indicated that the scopes of cognition of the European Court of Justice and national constitutional tribunals do not coincide. The Court pointed out that failure to use a non-notified technical norm is not.

Technical regulations Union law internal market of the European Union gambling games European Court of Justice priority of Union law Constitution of the Republic of Poland

Continue reading

Notariusz jako wspólnik spółki z ograniczoną odpowiedzialnością

Author: Dorota Sokołowska
Institution: Uniwersytet im. Adama Mickiewicza w Poznaniu
Year of publication: 2014
Source: Show
Pages: 92-115
DOI Address: https://doi.org/10.15804/tpn2014.1.06
PDF: tpn/6/TPN2014106.pdf

The article is an attempt to answer the question concerning the legal issue of notaries taking up partnership in a limited liability companies in the light of Art. 19 of the Act of Law on Notarial Services of 14 February 1991? The undertaken analysis considers also regulations of the Commercial Companies Code. Conclusions resulting from the presented analysis are clear and unambiguous, asides of legal side of the problem, they also present it in the light of moral issues.

Notary Law on Notarial Services Commercial Companies Code limited liability company share in a limited liability company abuse of the legal form

Continue reading

Prasa litewska o traktacie polsko-litewskim w przededniu jego podpisania

Author: Adas Jakubauskas
Institution: Uniwersytet Michała Römera w Wilnie
Year of publication: 2014
Source: Show
Pages: 116-123
DOI Address: https://doi.org/10.15804/tpn2014.1.07
PDF: tpn/6/TPN2014107.pdf

On 26 April 1994, the Lithuanian and Polish presidents signed in Vilnius the Treaty between the Republic of Lithuania and the Republic of Poland on friendly relations and good neighbourly cooperation. The Lithuanian press devoted much attention to the progress of negotiations in drafting this document and to its ratification by the Lithuanian Seimas in October 1994. During 1993–1994, the Lithuanian newspapers Lietuvos rytas, Respublika, Lietuvos aidas, Tiesa, Kurier Wileński, also several smaller newspapers, such as Voruta, Gimtasis kraštas, Atgimimas, SSI, Amžius, published the articles devoted to a discussion of the Lithuanian-Polish relations. This publication aims at conducting an analysis of the Lithuanian press and reviewing the articles devoted to the drafting, signature and ratification of the Treaty between the Republic of Lithuania and the Republic of Poland on friendly relations and good neighbourly cooperation, as well as to the political situation in Lithuania at the time of the drafting and signature of the mentioned agreement.

international law Polish – Lithuanian relations press public opinion

Continue reading

Programy wyspecjalizowane jako zadanie w realizacji misji publicznej nadawcy publicznego

Author: Katarzyna Chałubińska-Jentkiewicz
Institution: Akademia Obrony Narodowej
Year of publication: 2014
Source: Show
Pages: 124-142
DOI Address: https://doi.org/10.15804/tpn2014.1.08
PDF: tpn/6/TPN2014108.pdf

The remit of public service broadcasting includes the obligation of universal programming, which covers all kinds of programmes such as culture, news, entertainment and sport. Several European Union documents stress the special role of Public Service Broadcasting (PSB) in society and acknowledge a far-reaching autonomy of Member States to define and finance their national system of public service broadcasting. All European countries have defined remits for their public service broadcasters. The definition of the mission of PSB in Poland is only related to the activity of the public radio and television. Also the way PSB gives account for its programme activities, and the control of the way PSB fulfils its remit. Theme channels are part of the remit of public service broadcasting. These channels are considered as important and almost self-evident activities of PSB. Nevertheless there is a need for such provisions to define the mission of PSB in Poland. This is necessary to further specify the criteria used to determine whether a service of theme channels which are transmitted by the public television is of an economic or a non-economic nature. This is the most important because of the requirements of state financing of public service broadcasters. These transparency requirements are internal accounts corresponding to different activities – public service and non-public service activities must be separated.

public service broadcasting theme channels the mission of PSB The State aid The State financing of public service broadcasters public services non-public service

Continue reading

Zakaz cenzury prewencyjnej w świetle zasady wolności słowa

Author: Lech Jaworski
Institution: Uniwersytet Warszawski
Year of publication: 2014
Source: Show
Pages: 143-164
DOI Address: https://doi.org/10.15804/tpn2014.1.09
PDF: tpn/6/TPN2014109.pdf

Censorship is a special case of media control. In the authoritarian system it is preventive censorship as well as press licensing that constitute a characteristic symptom of this control. In law, the notion of censorship has not been defined: therefore one has to refer to doctrines and jurisdiction. In the Polish law, a clear ban on preventive censorship, understood as making publishing or broadcasting a certain message dependent on the prior consent of a public authority, was included in Article 54 Section 2 of the Constitution. This regulation constitutes, in the area that it regulates, a development and confirmation of the freedom of the press and other media rule expressed in Article 14 of the Constitution. Additional provisions of the press’s freedom of speech in the context discussed here are formulated in Article 3 of the Press Law. Although it does not refer directly to preventive censorship, the ban it expresses is supposed to prevent the actual infringement on the freedom of the press by preventing its print and distribution. As for the issues discussed here, what may be controversial is the approach limiting the introduction of preventive censorship only to public administration institutions. The Constitutional Tribunal in its verdict from 20 July 2011, referring to the use of publication ban within proceedings to secure claims in claims against mass media concerning the protection of personal rights (Article 755 Paragraph 2 of the Code of Civil Procedure) stated that the judicial power is not the administrative power. Therefore, the courts’ activity cannot be considered as using censorship, but rather as monitoring the law being obeyed in the preventive meaning. And as for the regulations included in the European Convention on Human Rights, its Article 10 (as well as its other regulations) does not directly refer to the issue of controlling or obstructing publications, especially press releases. This question, however, has been the subject of many rulings of the European Court of Human Rights.

freedom of speech censorship press Constitution press law Broadcasting Act human rights

Continue reading

Wartość dowodowa oraz możliwość przesłuchania osób starszych, chorych i zaburzonych psychicznie

Author: Dariusz Jagiełło
Institution: Szkoła Wyższa Psychologii Społecznej w Warszawie
Year of publication: 2014
Source: Show
Pages: 165-174
DOI Address: https://doi.org/10.15804/tpn2014.1.10
PDF: tpn/6/TPN2014110.pdf

Examining persons with psychic disturbances is characteristic of particular rules. Different also an attitude should be examining which one should adapt to these specific conditions. Examining should be marked among others cares in the choice of words, with the deliberation, or the lack of the irony. Also showing interest is essential, understandings, and in addition serious treating the interviewed person. Applying no conventional scheme for his accomplishment isn’t possible, whereas this way made statements constitute rightful evidence in a criminal trial.

Interrogation sick person mentally evidence value evidence rules of interrogation

Continue reading

Kultura polityczna a możliwość odmowy publikacji w prasie reklam i prywatnych ogłoszeń

Author: Maria Gołda-Sobczak
Institution: Uniwersytet im. Adma Mickiewicza w Poznaniu
Year of publication: 2014
Source: Show
Pages: 175-185
DOI Address: https://doi.org/10.15804/tpn2014.1.11
PDF: tpn/6/TPN2014111.pdf

The problem of the opportunity to place advertisement in mass media has been analysed both by Polish courts and the European Court of Human Rights only with regard to the content of said advertisement and its reference to current legal advertising bans. However, there occurred a significant problem not only from the point of view of the freedom of press, but also civil liberties, namely that of presenting advertisement undesired by newspaper editors. Cases tried by Polish courts, one being subject to analysis of the European Court of Human Rights, prove that within the scope of placing advertisement the voice of publishers and editors is decisive. Any citizen referring to the freedom of speech stands no chance that the content of advertisement presented by them will be published. Free press is to be free to choose advertisement, and what’s crucial here is the economic freedom of contract. tantamount to conceding that this norm ceases to exist, but only affirms that it cannot be applied.

advertisement European Union political culture announcements

Continue reading

Pełzająca dewolucja. Problem uznania statusu prawnego mniejszości kornwalijskiej w Wielkiej Brytanii na początku XXI w.

Author: Bartłomiej H. Toszek
Institution: Uniwersytet Szczeciński
Year of publication: 2014
Source: Show
Pages: 186-200
DOI Address: https://doi.org/10.15804/tpn2014.1.12
PDF: tpn/6/TPN2014112.pdf

The article refers to Cornish idea of ‘crawling devolution’ based on recognizing Cornish minority under Framework Convention of national minorities protection and gradual achieving political autonomy level corresponding with modern position of Scotland, Wales or Northern Ireland in the UK political system. Author reveals façade character of formal arguments contain in the first and second DCLG reports for the Council of Europe General Secretary against implementing protodevolutionary ideas in Cornwall and presents real objections of present UK Government of realizing devolution reform (as a post-Labour heritage) in any part of England. The article presents Cornish people hopes and misgivings précised in local government, political parties (individual and common) and NGO’s selected documents and papers with authors comment in conclusion.

dewolucja mniejszość narodowa Wielka Brytania Kornwalia

Continue reading

Podstawy prawne działania radia, telewizji i innych technicznych nośników przekazu w Szwecji

Author: Ryszarda Stasiak
Institution: Szkoła Wyższa Psychologii Społecznej
Year of publication: 2014
Source: Show
Pages: 201-216
DOI Address: https://doi.org/10.15804/tpn2014.1.13
PDF: tpn/6/TPN2014113.pdf

The subject of this article is the legal basis of the activity of radio, television and other technical media devices in Sweden. The basis of this activity is freedom of expression guaranteed in the act on the instrument of government (Regeringsformen – RF). There are specific constitutional regulations for some forms of expression. Freedom of the press is regulated in the ordinance on freedom of the press (Tryckfrihetsförordningen – TF) and it includes freedom of expression in writing. The fundamental law on freedom of expression (Yttrandefrihetsgrundlagen – YGL) is applicable to other forms of expression like radio, television and other technical devices: film, video, sound records, CD and DVD. The fundamental law on freedom of expression (YGL) is the youngest of the Swedish constitutions and it is modelled on the ordinance on freedom of the press. The basic principles and their construction are the same in both acts. It applies among others to economic freedom in terms of broadcasting programs, prohibition on censorship, the right to provide information and protection of the source of information, catalogue of crimes, one-person liability, separate procedural provisions with the court with a jury. The author points out the leading principles of the fundamental law on freedom of expression: to ensure free exchange of views, free and comprehensive obtaining of information and free artistic output. Every Swedish citizen is entitled to publicly express their thoughts, views, feelings and other information in any field by means of the radio, television or other similar media devices. As a rule the law is applicable if broadcasting of a program takes place from Sweden. The fundamental law on freedom of expression guarantees for every Swedish citizen the right to provide information in any field with a view to it being made public on the radio or in other recordings as well as the right to obtain information with a view to it being passed or made public. A radio program author is entitled to remain anonymous and is not obliged to disclose their identity. In order to ensure the possibility of establishing the person responsible for violation of the fundamental law on freedom of expression it imposes the obligation to indicate the responsible editor (ansvarig utgivare) and made their identity available to the public. This liability comes on a one person basis; in the first place it applies to the editor, next to the person obliged to indicate the editor and finally to the person disseminating the program. The fundamental law on freedom of expression makes numerous references to other acts of law. For example, in terms of principles on placing advertisements and commercial announcements the applicable law is the act on radio and television, in particular regarding product placement and program sponsoring as well as the act on alcohol and the act on tobacco products. The article also describes regulations of the principles concerning granting licenses by the government (granting frequency) or the Office for radio and television. Independent control over the broadcast programs is exercised by the Office for control (and in terms of advertisements also by the Consumer Advocate). Foreign stations are not embraced by the act on radio and television and for this reason they are not subject to the supervision exercised by the Office for control.

Sweden the fundamental law on freedom of expression radio television technical media devices the ordinance on freedom of the press

Continue reading

System repartycji w Polsce

Author: Anna Stasiak-Apelska
Year of publication: 2014
Source: Show
Pages: 217-240
DOI Address: https://doi.org/10.15804/tpn2014.1.14
PDF: tpn/6/TPN2014114.pdf

The paper presents the results of the analysis of issues concerning the distribution in Poland. Distribution, in the context of the copyright law, is the compensation for the reproduction of works used with permit by private individuals for the personal purpose. Depending on the form of the exploitation of work or the subject of right (authors, performers, publishers or producers of phonograms and video recording), the fee should be paid. Fees for the use of protected works are collected from users based on the license agreements. Collective societies involved in the collect and division of the fees for the use of works within the permitted personal use. Article 23 of copyright law established the principle for unpaid permitted private use. There is no claim for payment of remuneration to the collective society or to users, if the works are copied within its own personal use. Exploitation of the works on the statutory license for private use is permitted, therefore, in connection with eg. common interests. Moreover, the relationships established through the internet are not excluded. Specificity is the fact that nowadays the reprographic fee of media is borne by entities that are themselves do not use of the works and do not encroach on the symptoms of copyright as an exclusive right. Holders of reprographic equipment, who are already established in the field of reproduction of works for personal use by third parties are obliged to pay, through the organization of collective management of copyright and related rights, duties amounting to 3% of the proceeds of this account on behalf of authors and publishers, unless the reproduction is carried out under an agreement with an eligible (eg. the author or publisher). Reprographic fees, so-called copyright levies or fees, which are counted towards to the blank media and copying machines are paid by all customers. Fees are paid by producers and importers of copying devices and blank media. In the field of reprographic fees, copyright is obsolete and should be complemented with modern audiovisual equipment, including tablets, smartphones etc.

author compensation copyright law copyright levies distribution reprographic fee works

Continue reading

Instytucja sądu polubownego – konkurent czy też forma pomocy dla sądownictwa powszechnego?

Author: Ewelina Bachera
Institution: Uniwersytet Śląski
Author: Bartosz Smółka
Institution: Uniwersytet Śląski
Year of publication: 2014
Source: Show
Pages: 241-255
DOI Address: https://doi.org/10.15804/tpn2014.1.15
PDF: tpn/6/TPN2014115.pdf

An increasing number of children born from in vitro fertilization raises some questions: do children born from in vitro fertilization have the right to know their origins ? The answer may be run from the viewpoint of the child or from the parents. This problem is a really controversial issue: some people think that the right to know genetic origins is a fundamental human right, what’s more it is in the best interest of the child. On the other hand, others think that parents have the right to be anonymous. In the light of above worthy of particular attention is the position of judicial interpretation.

biological origins in vitro human dignity

Continue reading

Wszczęcie postępowania podatkowego – istota i charakter prawny

Author: Jarosław Szatkowski
Institution: Uniwersytet Łódzki
Year of publication: 2014
Source: Show
Pages: 256-279
DOI Address: https://doi.org/10.15804/tpn2014.1.16
PDF: tpn/6/TPN2014116.pdf

The provisions of the Code of Administrative Procedure of 1960, regulating the initiation of the administrative procedure, continue to function under the Tax Code of 1997 in an almost unchanged form. Excluding the tax matters from the administrative procedure legislator omitted the specificity of the tax assessement, especially self-assessement. As a consequence, norms of initiating of the tax procedure fully relates only to the general tax procedure, that serves only to the undertaking of the administrative acts by the tax authority. Furthemore, from the ontological point of view, object which is initiation of the procedure is not the first procedural action in the case, but an event, accompanying that kind of action both the authority’s and the tax-payer’s, carried out at this stage of the application of tax substantive law in the self-assessement procedure. Tax procedural law does not distinguish those situations properly, what causes serious problems with legal interpretation of the tax rules of proceeding. The aim of this article is to give some basic legal and philosophical remarks on this problem.

tax procedure self-assessement ontology of law

Continue reading

Creative Commons (CC)

Author: Elżbieta Delert
Institution: Szkoła Wyższa Psychologii Społecznej w Warszawie
Year of publication: 2014
Source: Show
Pages: 280-307
DOI Address: https://doi.org/10.15804/tpn2014.1.17
PDF: tpn/6/TPN2014117.pdf

Creative Commons is a non-profit organisation, which was established in 2001 in the United States of America. It was founded of the initiative of the people involved in work for the protection and promotion of common cultural goods. Polish branch of the organisation has been operating since 2005 and its partners are Centre for Digital Design: Poland and the Interdisciplinary Centre for Mathematical and Computational Modelling at the University of Warsaw. The article presents the development of Creative Commons licence their history specifics and use both in USA and international environment. Last part of the text is focused on presentation and analysis of the situation of Creative Commons licences in Polish Law.

Creative Commons Creative Commons licence common cultural goods Authorship public domain open content Polish law

Continue reading

Message to:

 

 

© 2017 Adam Marszałek Publishing House. All rights reserved.

Projekt i wykonanie Pollyart