Konstytucja RP

Does the Civil Society Concept Exclude the Possibility of Lockout? Considerations upon the Basis of the Polish Constitution from 1997 and the Standards of the Council of Europe and European Union

Author: Hanna Wiczanowska
Institution: Adam Mickiewicz University in Poznan
Year of publication: 2017
Source: Show
Pages: 171-184
DOI Address: https://doi.org/10.15804/ppk.2017.06.11
PDF: ppk/40/ppk4011.pdf

One of the most crucial principles of democratic regime is the concept of civil society. The implications of such concept are also visible within the area of labour law as the right to strike has been perceived as its core element. The primary purpose of the presented article is to consider whether the application of the doctrine of civil society automatically disables for a recognition of lockout for the employers’ organizations within the Polish legal system as well as international standards. The presented paper will mainly rely upon the legal dogmatic analysis of the provisions of Polish Constitution from 1997 and international regulations. The author will also use the elements of the comparative analysis between Polish standards amd norms enacted by the Council of Europe and the European Union. The innovative approach of the paper is the complex analysis of the Polish solutions from the intenational perspective in terms of equality between labour and the capital.

Konstytucyjne prawo do zabezpieczenia społecznego

Author: Katarzyna Łobos
Institution: Uniwersytet Humanistycznospołeczny SWPS w Warszawie
Year of publication: 2017
Source: Show
Pages: 207-230
DOI Address: https://doi.org/10.15804/ppk.2017.04.11
PDF: ppk/38/ppk3811.pdf

The constitutional right to social security

The subject of this article is the issue of the constitutional right of citizens to social security when reaching the retirement age. The author points out the constitutional principles which guarantee the protection of pension benefits and gives examples of statements of the Supreme Court and the Constitutional Tribunal with respect to the issue of social security schemes in their judgments. This article also discusses the scope of freedom which the Constitution grants to a legislator and the boundaries within which a legislator may act as far as the selection of solutions for the implementation of this right is concerned.

Zasada „lex retro non agit”. Czy prawo nie działa wstecz?

Author: Justyna Kornaszewska
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

Principle of “lex retro non agit”. Is the Law not Retroactive?

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.

Konstytucyjna zasada wolności działalności gospodarczej versus konstytucyjny nakaz ochrony środowiska

Author: Marieta Czekałowska
Institution: Uniwersytet Szczeciński
Year of publication: 2016
Source: Show
Pages: 175-192
DOI Address: https://doi.org/10.15804/ppk.2016.02.09
PDF: ppk/30/ppk3009.pdf

The constitutional principle of free enterprise vs the constitutional regulation of environmental protection

Therein paper adressed the presentation of the constitutional principle of free enterprise vs. environmental protection. The issue of both questions considerate on the constitutional norms of legal system. The proportionality issue, which is based on admission in the limited of above matters, was displayed on the selected examples from judicature and doctrine. On one side, paper illustrates primacy effect of the free of enterprise. On the other, lack of the legislative norms or partial regulations concerning with environmental protection, indicate the inability of realization environmental tasks effectively. It concludes that in certain cases free of enterprise evinces a farreaching value than environmental protection.

 

Konstytucyjność ograniczeń prawa do sądu w sprawach z zakresu ochrony konkurencji i konsumentów

Author: Wojciech Szydło
Institution: Uniwersytet Wrocławski
Year of publication: 2016
Source: Show
Pages: 163-181
DOI Address: https://doi.org/10.15804/ppk.2016.03.07
PDF: ppk/31/ppk3107.pdf

Constitutionality of limitations on right to a fair trial in cases concerning protection of competition and consumers

The article discusses de lege lata limitations regarding the constitutionally protected right to fair trial, with particular attention to matters regarding competition and consumer protection. An assessment is performed of the constitutionality of solutions adopted by the Polish legislator, and the constitutionally defined contours of the right to court in that category of cases is elaborated. The author reflects on the existing system of judicial review, considering whether it is not dysfunctional in some of its aspects, and how it could be replaced by another system for protecting the rights of enterprises; primarily these divagations address protection of procedural rights in a manner compliant with the Constitution of Poland, more specifically the right to court.

Złożoność pojęcia „bezpieczeństwo energetyczne” i jego podstawy w Konstytucji RP

Author: Jakub Robel
Institution: Uniwersytet Jana Kochanowskiego w Kielcach
Year of publication: 2015
Source: Show
Pages: 135-157
DOI Address: https://doi.org/10.15804/ppk.2015.04.07
PDF: ppk/26/ppk2607.pdf

The complexity of the concept of energy security  and its basic principles in the Constitution

One of the important dimensions of the evaluation of society existence is energy security. Providing the right framework for the electricity sector is the basis for the operation of this type of security in its economic dimension, and so this issue can be seen as one of the top priorities of energy policies. This raises the need for an appropriate legal framework to enable proper interaction of administration bodies responsible for the overall relations, both inside and outside the state. Associated with this is also the issue of the appropriate rank of the fundamental – constitutional – norms. The Polish example of a system of constitutional law shows that, despite the lack of a reference to this issue in the Constitution, by means of interpretation of “sustainable development” (art. 5 of the Constitution of the Republic of Poland) one can find the relevant legislation, allowing the chief state authorities to carry out the activity in relation to the issue of “energy security”.

Parlamentaryzacja marokańskiego systemu rządów na gruncie konstytucji z dnia 29 lipca 2011 r.

Author: Łukasz Jakubiak
Institution: Uniwersytet Jagielloński
Year of publication: 2014
Source: Show
Pages: 95-115
DOI Address: https://doi.org/10.15804/ppk.2014.04.05
PDF: ppk/20/ppk2005.pdf

The parliamentarisation of the Moroccan system of government  on the basis of the constitution of July 29, 2011

The paper concerns the phenomenon of parliamentarisation of the Moroccan system of government in the light of the constitution of 2011. The act was adopted as a result of civil unrest known as the so-called Arab Spring. The new constitution replaced the basic law of 1996. According to the new constitutional provisions, the role of the monarch has been limited. At the same time, the constitution has improved the position of the government headed by the prime minister. Moreover, the status of the parliament has been changed. By the way of example, the king appoints the prime minister from within the political party, which wins the parliamentary elections, and with a view to their results. In comparison with the previous constitution, the government seems to be more strongly connected with the parliament – especially with the first chamber. The latter has better tools for parliamentary oversight. Currently, the Moroccan system of government is closer to the European model of parliamentarianism.

Ogłoszenie jako warunek wejścia w życie aktu normatywnego

Author: Kamil Spryszak
Institution: Uniwersytet Jana Kochanowskiego w Kilecach
ORCID: https://orcid.org/0000-0002-3318-3742
Year of publication: 2019
Source: Show
Pages: 181-194
DOI Address: https://doi.org/10.15804/ppk.2019.03.09
PDF: ppk/49/ppk4909.pdf

Promulgation as a condition precedent  for the coming into force of normative acts

The art. 88.1 of the Constitution of the Republic of Poland states: “The condition precedent for the coming into force of statutes, regulations and enactments of local law shall be the promulgation thereof”. This rule have an important meaning to protection of citizens’ rights and is one of the fundamental idea of a democratic state of law. Promulgation is not only a technical duty, but has important element of the binding of normative acts. The author analyses different procedures dealing with promulgation of statutes, regulations and enactments of local law. He especially concentrates on promulgations of ratified international agreements and promulgation of the European Union’s normative acts.

Przesłanki wywłaszczenia w świetle norm konstytucyjnych

Author: Paweł Śmiałek
Institution: Uniwersytet Warmińsko-Mazurski w Olsztynie
ORCID: https://orcid.org/0000-0001-6185-3451
Year of publication: 2018
Source: Show
Pages: 261-280
DOI Address: https://doi.org/10.15804/ppk.2018.05.15
PDF: ppk/45/ppk4515.pdf

Premises of expropriation in the light of the provisions of the Constitution

The institution of emitent domain is a relatively new element of the legal system, but it is currently used in most democratic countries. Due to its importance and uniqueness, the rules of emitent domain are determined in the constitutional acts of each country. Emitent domain causes complete or partial reduction of deprivation of property, it is therefore necessary to introduce appropriate safeguards in national law and international law. Legislator in art. 21 and 64 of the Constitution protects property. On the other hand, polish constitution allows emitent domain, but limits usage of this institution through the obligation to indicate a specific public purpose, as well as the payment of fair compensation. The proper interpretation of the terms “fair compensation” and “public purpose” is very important for the institution of emitent domain. According to the art. 21 paragraph. 2 of the Constitution these are two main premises to conduct a process of lawful emitent domain. Case law of administrative courts, the Constitutional Court and the European Court of Human Rights allows you to define them. Especially the issue of just compensation has already been, in my opinion properly defined. In contrast, because of the constantly changing economic and political situation public purposes must be constantly redefined. This duty belongs to the legislator, who should know best the needs of the country and citizens at the time.

Konstytucyjne podstawy wspierania rodziny przez władze publiczne w Polsce

Author: Paweł Bucoń
Institution: Katolicki Uniwersytet Lubelski Jana Pawła II
ORCID: https://orcid.org/0000-0002-4413-2588
Year of publication: 2019
Source: Show
Pages: 113-130
DOI Address: https://doi.org/10.15804/ppk.2019.04.06
PDF: ppk/50/ppk5006.pdf

Constitutional Basis for the Support of the Family by the Public Authorities in Poland

The article is devoted to the problem of the support for the family by public authorities in the light of the provisions of the Constitution of the Republic of Poland. The article discusses the essence of the family, the good of the family as a constitutional value, the right of a family in a difficult material and social situation to special help from public authorities and the issue of help given to the mother before and after childbirth (Article 71 of the Constitution). According to the author, the Constitution creates sufficient grounds for providing support by public authorities to families which require such support. In this respect, the key issue is the requirement to take into account the good of the family in the state’s social and economic policy. However, the final shape and scope of assistance is determined by law.

The President of the Republic of Poland as the Guardian of Sovereignty and Security of the State

Author: Katarzyna Dunaj
Institution: Uniwersytet Pedagogiczny w Krakowie
ORCID: https://orcid.org/0000-0002-4788-6019
Year of publication: 2019
Source: Show
Pages: 51-58
DOI Address: https://doi.org/10.15804/ppk.2019.05.03
PDF: ppk/51/ppk5103.pdf

This article analyzes tasks and competences of the President of the Republic of Poland as the guardian of sovereignty and security of the state. The author recognizes major importance of the head of state in that field. The President is the supreme commander of the Armed Forces and exercises powers connected with this function. The President also exercises a number of other powers, including those of an extraordinary nature (introduction of martial law and the state of emergency, declaring a time of war, declaring a general or partial mobilization). The author of the article underlines the necessity of cooperation of the President and the Council of Ministers in the field of the state security. It results from the fact that some powers are subject of countersignature of the Prime Minister or are exercised at the request of the Council of Ministers or its members (the Prime Minister, the Minister of National Defense).

Law in “Times of Crisis” and Social Justice - General Remarks in the Era of COVID-19

Author: Krzysztof Wygoda
Institution: University of Wrocław
ORCID: https://orcid.org/0000-0002-0997-5512
Author: Dariusz Wasiak
Institution: WSB University in Wrocław
ORCID: https://orcid.org/0000-0001-6057-7475
Year of publication: 2020
Source: Show
Pages: 235-244
DOI Address: https://doi.org/10.15804/ppk.2020.06.19
PDF: ppk/58/ppk5819.pdf

The purpose of the article is to signal that actions aimed at implementing the principle of social justice (in the context of Article 2 of the Polish Constitution) require the legislator to consider a number of variables. It is particularly about the principle of equality and guaranteeing an appropriate level of security (including social security), as well as respect for acquired rights and trust in the state and law. Legislative actions that result in legitimate securitization of the law may of course lead to the limitation of the principle of social justice, as long as they take into account the objective needs of safety and health protection. The use of inadequate measures by the legislator or the creation of apparent threats and the related fear by the power apparatus will evoke a deep sense of injustice and lead to violent opposition from society.

Access to Public Sector Information in the Perspective of the Constitutional Principle of the Common Good

Author: Katarzyna Dunaj
Institution: Pedagogical University of Krakow
ORCID: https://orcid.org/0000-0002-4788-6019
Author: Bogdan Fischer
Institution: Pedagogical University of Krakow
ORCID: https://orcid.org/0000-0002-1893-5870
Year of publication: 2020
Source: Show
Pages: 343-354
DOI Address: https://doi.org/10.15804/ppk.2020.06.28
PDF: ppk/58/ppk5828.pdf

The adoption of the UE Directive on Open Data and Re-use of Public Sector Information gives rise to necessity of its implementation by the Member States of the European Union. The process of implementing the Directive in Poland has also a significant constitutional value, because - according to the authors of this article - its content is realization of the principle of the common good (Article 1 of the Constitution of the Republic of Poland: “The Republic of Poland shall be the common good of all its citizens”). This is because data sharing has not only economic value, allowing the entity using access to public information to achieve a financial benefit, but also in other areas, where, in principle, both parties (a person and public authority) benefit from such action. Therefore, the role of public authorities should be to ensure the widest possible access to public sector information in order to implement the constitutional principle of the common good.

Prawo do zdrowego środowiska jako konstytucyjnie gwarantowane prawo podmiotowe

Author: Dagmara Kuźniar
Institution: Uniwersytet Rzeszowski
ORCID: https://orcid.org/0000-0003-2846-9575
Year of publication: 2021
Source: Show
Pages: 201-216
DOI Address: https://doi.org/10.15804/ppk.2021.03.13
PDF: ppk/61/ppk6113.pdf

The Right to a Healthy Environment as a Constitutionally Guaranteed Subjective Right

Environmental protection and the protection of the individual are closely related. This relationship has many aspects, which are subject to more and more analysis in the literature. The author is of the opinion that the right to a healthy environment should be treated as one of the individual human rights. The purpose of this article is to draw attention to the necessity to sanction the right to a healthy environment in the Polish Constitution. For this purpose, the provisions of the constitution were analyzed, and the constitutional practice of european countries and international practice were presented.

Zakaz zgromadzeń w Polsce w okresie stanu epidemii a odpowiedzialność karna

Author: Natalia Daśko
Institution: Uniwersytet Mikołaja Kopernia w Toruniu
ORCID: https://orcid.org/0000-0001-9122-4883
Year of publication: 2021
Source: Show
Pages: 163-173
DOI Address: https://doi.org/10.15804/ppk.2021.05.12
PDF: ppk/63/ppk6312.pdf

The ban on assemblies in Poland during the epidemic and criminal liability

During the 16 months of the epidemic threat, and then the state of the epidemic, the executive authority introduced restrictive restrictions in the area of freedom of assembly, periodically forbidding them completely. Regardless of the bans introduced, during the indicated period, there were numerous protests and demonstrations triggered by the lockdown, government policy or the judgment of the Constitutional Tribunal of October 22, 2020. The author tries to answer the question whether the bans and restrictions introduced by the executive met the constitutional standard, and if not, whether the behavior of organizers or participants of assemblies constituting the implementation of their constitutional freedoms could fulfill the criteria of specific offenses or crimes. For this purpose, the author analyzes, inter alia, judgments of common courts, as well as the judgment of the Supreme Court of July 1, 2021.

Członkostwo Polski w Unii Europejskiej jako przesłanka możliwych zmian w Konstytucji RP

Author: Jerzy Jaskiernia
Institution: Uniwersytet Jana Kochanowskiego w Kielcach
ORCID: https://orcid.org/0000-0001-9401-5999
Year of publication: 2021
Source: Show
Pages: 203-215
DOI Address: https://doi.org/10.15804/ppk.2021.05.15
PDF: ppk/63/ppk6315.pdf

Poland’s membership in the European Union as a premise for possible changes to the Constitution of the Republic of Poland

The analysis addresses the problem of the extent to which the consequences of Poland’s membership in the European Union should be reflected in the Constitution of the Republic of Poland. The Polish Basic Law, in Art. 90, anticipated Poland’s membership in the EU. However, despite the attempts made, it was not possible – apart from the constitutionalization of the European Arrest Warrant – to introduce changes to the constitution resulting from EU membership. There are a number of regulatory gaps that deserve to be filled even if it is not possible to reach an agreement at the level of 2/3 of the support in the Sejm on the issue of a comprehensive „European clause”. The jurisprudence of the Constitutional Tribunal should not replace the constitution-maker. It is necessary for the constitution to fulfill its legal, political and educational function.

Bezpieczeństwo jako dobro publiczne w świetle prawa konstytucyjnego

Author: Barbara Szykuła-Piec
Institution: Szkoła Główna Służby Pożarniczej
ORCID: https://orcid.org/0000-0002-4533-232X
Year of publication: 2021
Source: Show
Pages: 323-334
DOI Address: https://doi.org/10.15804/ppk.2021.05.25
PDF: ppk/63/ppk6325.pdf

Security as a public good in the light of constitutional law

The study is a voice in the discussion: security as a good. In the light of the constitutional principle of the common good, a redefinition of security was proposed as the sum of the conditions of social life enabling and facilitating the integral development of all members of the community. The common and public good are products produced by state structures and their members. In order to minimize the attitudes of „common – nobody’s” and free-riders, in order to create dependence, responsibility to care for good, the topic of the theory of group solidarity was raised.

Constitutional Right of the Individual to Informational Autonomy in the Light of the Powers of the Police to Collect and Process Personal Data

Author: Izabela Stańczuk
Institution: War Studies University in Warsaw
ORCID: https://orcid.org/0000-0003-2446-8428
Year of publication: 2021
Source: Show
Pages: 439-450
DOI Address: https://doi.org/10.15804/ppk.2021.06.35
PDF: ppk/64/ppk6435.pdf

The article attempts to confront the individual’s constitutional right to informational autonomy and the powers of the Police in the framework of which the service may collect and process personal data. Bearing in mind the paramount role of the Constitution of the Republic of Poland and its special importance for the sphere of rights and freedoms, the key regulations devoted to the right to privacy and the possibility of limiting informational autonomy were referred to. Treating the constitutional content as fundamental in the relationship between the individual and the state authorities, they were referred to the powers of the Police based on which the service may legally interfere in the information sphere of the individual. It was also stressed that the multiplicity of powers and the expansion of their catalog make it necessary to pay more attention to applying the proportionality mechanism.

The Polish Tax Ordinance Bill as an Instrument Supplementing the Constitutional Tax Law Making Principles

Author: Leonard Etel
Institution: University of Białystok
ORCID: https://orcid.org/0000-0001-8065-2276
Author: Mariusz Popławski
Institution: University of Białystok
ORCID: https://orcid.org/0000-0003-1403-3033
Year of publication: 2021
Source: Show
Pages: 491-503
DOI Address: https://doi.org/10.15804/ppk.2021.06.39
PDF: ppk/64/ppk6439.pdf

The article presents the process of preparing the Polish Tax Ordinance Bill and its fundamental assumptions as the codification of the general part of taxation law in the light of constitutional rules provided for the tax law-making process. First, it focuses on the importance and the tasks of the General Taxation Law Codification Committee. Then it presents the drawbacks of the Ordinance currently in force, which justify its replacement with a new act. The next part of the article discusses the assumptions and objectives of the bill adopted by the Committee. The last part presents the substantive layout of the new act. The concluding part argues for the urgent need to introduce the new Tax Ordinance into the domestic legal system as this act would supplement the principles of tax law resulting from the Constitution of the Republic of Poland.

Do Armed Forces Personnel Need a Trade Union? The Perspectives of European Standards and the Constitution of the Republic of Poland on Freedom of Association

Author: Michał Balcerzak
Institution: Nicolaus Copernicus University in Toruń
ORCID: https://orcid.org/0000-0002-6421-1742
Author: Agnieszka Bień-Kacała
Institution: Nicolaus Copernicus University in Toruń
ORCID: https://orcid.org/0000-0002-9559-3130
Year of publication: 2021
Source: Show
Pages: 519-528
DOI Address: https://doi.org/10.15804/ppk.2021.06.41
PDF: ppk/64/ppk6441.pdf

The article aims to discuss the European standards concerning the freedom of association of armed forces personnel. Relevant norms in this regard result from human rights treaty law but also from soft-law elaborated within the Council of Europe. The authors juxtapose the existing standards with the scope of the freedom of association provided in Polish Constitution of 1997 and relevant domestic law. They ask whether the armed forces personnel need to form and join trade unions to secure their rights or perhaps the existing forms of exercising the freedom of association are satisfactory? The authors conclude that the current legal solutions in Poland meet the European and constitutional standards, and allow the Polish Armed Forces to observe neutrality regarding political matters. Nevertheless, the prohibition to form and join trade unions in Polish armed forces is of statutory rather than constitutional origin.

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