Modyfikacja tekstu prawnego w orzecznictwie Sądu Najwyższego – problem wykładni prawa czy niedozwolona wypowiedź normatywna

Abstract

The subject of the analyses contained in the study is a phenomenon that raises fundamental controversies in the context of the principle of the tripartite division of powers in Poland, the principle of legal certainty and the principle of certainty of legal transactions. It concerns the tendency of judicial modification of the law for the purpose of a specific case being decided. The extreme and most far-reaching manifestation of judicial lawmaking is the modification of a legal text that is directly understood, i.e. one that does not give rise to any, even the slightest, doubts as to its content. In the current state of the law, there is no basis for modifying a legal text in the process of administering justice. Such modification means exceeding the limits of legal interpretation and is an impermissible normative statement. New legal rules may be formed in the activity of jurisprudence, but they must arise on the basis of a resultant relationship, following a process of restorative interpretation and provided that they are generally accepted by the judicature.