Ius Novum最新文献

{"title":"Gloss on the Ruling of the Supreme Administrative Court of 25 May 2022, Case Reference Number III OSK 2273/21","authors":"Dariusz Walencik","doi":"10.2478/in-2023-0008","DOIUrl":"https://doi.org/10.2478/in-2023-0008","url":null,"abstract":"Abstract The glossed ruling covers two key issues concerning the application of the autonomous and comprehensive rules of the protection of natural persons with regard to the processing of personal data applied by organisational units of the Catholic Church in the territory of the Republic of Poland. The first issue concerns the possibility of further application of these autonomous, comprehensive rules after the GDPR came into force. The second issue concerns the ability to designate and grant a legal status to an independent separate supervisory authority: the Ecclesiastical Data Protection Officer. Approving the stance presented in the ruling of the Supreme Administrative Court, the gloss presents arguments confirming the fact that when the GDPR came into force, a regulation concerning the processing of personal data existed in the Catholic Church (it was primarily contained in the standards of the Code of Canon Law of 1983), which the Catholic Church, by the time specified in Article 91(1) GDPR, harmonised with the provisions of that legal act. Moreover, the mode of operation, the manner of designating or dismissing the Ecclesiastical Data Protection Officer does not have to be derived from the universally binding law. It may arise from the internal law of the Catholic Church, provided that the requirements laid down in Chapter VI GDPR, i.e. independence, fulfilment of general conditions concerning data protection supervisory authorities, secrecy, performance of tasks and exercise of the powers laid down in the GDPR (relevant competences), are met. This argument originates from the principle of autonomy and independence of churches and other religious organisations, guaranteed by the provisions of the Constitution of the Republic of Poland. The reasoning is also confirmed in recital 165 of the GDPR preamble, which states that “This Regulation respects and does not prejudice the status under the constitutional law of churches and associations or religious communities in the Member States, as recognised in Article 17 TFEU”.","PeriodicalId":33501,"journal":{"name":"Ius Novum","volume":"17 1","pages":"125 - 138"},"PeriodicalIF":0.0,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47381593","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Priority Criteria for the Provision of Medical Assistance Versus Protection of Human Dignity","authors":"Katarzyna Doroszewska-Chyrowicz","doi":"10.2478/in-2023-0006","DOIUrl":"https://doi.org/10.2478/in-2023-0006","url":null,"abstract":"Abstract The article deals with the potential infringement of human dignity through the choice of priority criteria for the provision of medical assistance in an emergency situation, when the treatment can only be provided for one person. The lack of sufficient equipment during the SARS-Cov-2 pandemic is a key example, but examples of acute shortage of medical personnel and various types of equipment are also analysed. The assumption made in the article is that selection guidelines need to be established for medical personnel. The text presents the concept of violation of human dignity and the issue of inability to provide assistance to an adequate number of patients. Then, with the use of the dogmatic-legal method, the proposed patient selection criteria such as age, social position, physical condition, and occurrence of comorbidities are analysed. As a result of the analysis, it is concluded that, due to the protection of human dignity, it is unacceptable to take away the assistance already provided for a patient (disconnection from the apparatus) in order to save the health of another patient. The criterion of assessing the patient’s health condition is unquestionable, whereas the choice of other decisive factors, such as a person’s social standing, may lead to unjustified discrimination and inequality.","PeriodicalId":33501,"journal":{"name":"Ius Novum","volume":"17 1","pages":"89 - 106"},"PeriodicalIF":0.0,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69214138","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rehabilitation of Nazism as a Crime in the Criminal Code of the Russian Federation","authors":"K. Laskowska","doi":"10.2478/in-2023-0001","DOIUrl":"https://doi.org/10.2478/in-2023-0001","url":null,"abstract":"Abstract The paper discusses with the crime of rehabilitation of Nazism contained in the 1996 Criminal Code of the Russian Federation. It presents the rationale for its introduction into the legislation, the scope of the legal regulation, and its evaluation in terms of its content and edition. For the purpose of the publication, research questions were posed, the answers to which demonstrated the political and populist nature of the regulation and its imprecise casuistic approach, which brings few benefits to Russia’s criminal policy.","PeriodicalId":33501,"journal":{"name":"Ius Novum","volume":"17 1","pages":"1 - 23"},"PeriodicalIF":0.0,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49104659","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Breaking a Car Window to Rescue a Child or Animal Locked Inside: A Dogmatic Analysis of the Legal Grounds for Excluding Criminal Liability","authors":"Krzysztof Wala","doi":"10.2478/in-2023-0002","DOIUrl":"https://doi.org/10.2478/in-2023-0002","url":null,"abstract":"Abstract The purpose of the article is to analyse possible grounds, within the criminal sphere, for legalisation of behaviour involving damage to someone else’s property motivated by the desire to save a child or an animal left in a locked warming car. It is quite common to treat this type of event as one matching the features of the state of superior necessity. However, such an approach may raise some doubts of a dogmatic nature. From the point of view of the statutory shape of the existing countertypes, one can look for the possibility of assuming in such cases (when the owner of the damaged property and the perpetrator of leaving a living creature in such conditions is the same person) the occurrence of an assault justifying, after meeting all the required conditions in the form of directness, lawlessness and reality, taking steps within the right to necessary defence. The adoption of such a concept has its own tangible practical significance, as it makes it unnecessary to refer to the principle of subsidiarity and proportionality, which guarantees broader protection from criminal liability for those who damage other people’s property in order to take out a living creature left in a locked car in a situation of danger to its life or health.","PeriodicalId":33501,"journal":{"name":"Ius Novum","volume":"17 1","pages":"24 - 38"},"PeriodicalIF":0.0,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49456527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reasons for Failing to Handle Administrative Cases on Time","authors":"Wojciech M. Hrynicki","doi":"10.2478/in-2023-0005","DOIUrl":"https://doi.org/10.2478/in-2023-0005","url":null,"abstract":"Abstract The article deals with the issue of administrative authorities’ justification of a failure to meet deadlines for handling cases in general administrative proceedings, tax proceedings and simplified complaint proceedings. To that end, the author uses the dogmatic-legal method, performs a critical analysis of the literature on the subject matter and interprets the relevant judgments of administrative courts. The aim of the article is to draw attention to the importance of correct, exhaustive and true justification of the reasons why administrative bodies procrastinate and set new deadlines for handling administrative cases. The research area has been divided into two main parts, i.e. the analysis of the correct indication of the reasons for a delay and the diagnosis of incorrect justifications for failures to handle cases on time. The author emphasises that the reasons for a failure to deal with an administrative case on time should reflect the facts concerning the case as accurately as possible, especially when a given reason is an element of an evidence-based proceeding. Criticism was levelled at reasons not related to the course of proceedings, such as staffing problems of the authority and the multitude of cases, as well as reasons stated in too general terms, such as the complicated nature of a matter. In conclusion, the author proves that precise indication of reasons for failures to handle a case within the time limits sticks to the principle of striving for objective truth and influences the general assessment of administrative bodies.","PeriodicalId":33501,"journal":{"name":"Ius Novum","volume":"17 1","pages":"73 - 88"},"PeriodicalIF":0.0,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46949067","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Medicinal Precautionary Measures in the Fiscal Penal Code","authors":"M. Tużnik","doi":"10.26399/iusnovum.v16.4.2022.35-m.r.tuznik","DOIUrl":"https://doi.org/10.26399/iusnovum.v16.4.2022.35-m.r.tuznik","url":null,"abstract":"Summary The article is a review and is devoted to the issue of therapeutic security measures in the Fiscal Penal Code, i.e. therapy, addiction therapy and stay in a psychiatric institution. The measures in question are fully regulated in the provisions of the Penal Code, in Articles 93b–93g recited under Article 20 § 2 of the Fiscal Penal Code on the basis of fiscal penal law. The above provisions concern the general premises and rules of adjudication, subjective adjudication criteria, the time of adjudication and the use of therapeutic precautionary measures, and the obligations of the perpetrator against whom therapy, addiction therapy or stay in a psychiatric institution was ordered, which corresponds to the structure of the publication. Due to the lack of an autonomous regulation in the provisions of the Fiscal Penal Code with regard to the discussed safeguards, the problem of the appropriate application of the above-mentioned provisions of the Criminal Code in fiscal penal law and the actual suitability of therapeutic safeguards in this branch of law arises. The aim of the article is therefore to analyze articles 93b–93g of the Criminal Code and attempt to assess whether the adoption of these provisions on the ground of fiscal penal law has been successful, and to verify the research hypothesis that therapy, addiction therapy and stay in a psychiatric institution play a significant role in fiscal penal law. The subject of the analysis are legal regulations and statements of the doctrine. The article contains considerations concerning the normative and dogmatic sphere, and not the sphere of judicial application of the law. However, the study is not devoid of references to practice, but is limited only to the statements of the judicature. The research is national in nature. When presenting the topic, the authors used the analysis of legal texts, dogmatic analysis and the analysis of the Supreme Court and appellate courts. Therefore, the title issue was presented in a normative, dogmatic and partly practical aspect.","PeriodicalId":33501,"journal":{"name":"Ius Novum","volume":"16 1","pages":"23 - 34"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44017649","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Gloss on the Supreme Court Judgement of 9 February 2021, III KK 175/20","authors":"Zbigniew Kwiatkowski","doi":"10.26399/iusnovum.v16.4.2022.43-z.kwiatkowski","DOIUrl":"https://doi.org/10.26399/iusnovum.v16.4.2022.43-z.kwiatkowski","url":null,"abstract":"Summary The author of the gloss approves of the Supreme Court’s stance that, provided that in the course of cassation supervision the Supreme Court recognises that the appeal of the party that lodged the cassation had not been upheld and the justification of the appellate court’s judgement flagrantly violates the provision of Article 457 § 3 CPC, and in the cassation, based on the ‘quality’ of this justification, there is a charge of flagrant violation of Article 433 § 2 CPC directly (in the content of the charge) nor in the justification of the cassation (Article 526 § 1 CPC in conjunction with Article 118 § 1 CPC), such a breach requires that the sentence of an appellate court should be overruled because it is required by Article 45 par. 1 Constitution in conjunction with Article 176 § 1 Constitution of the Republic of Poland and the conventional (Article 6 ECHR) standard of a fair appeal trial, which cannot be limited or excluded under Article 537a CPC. This point of view is justified by the fact that the concept of a fair trial as a model of a criminal proceeding means ensuring the minimum level of guarantees for the implementation of the legal state (parties’ rights) and the standard of a fair proceeding is an element of the model of a fair trial. If an appeal proceeding is to be in extenso fair, a court ad quem is obliged to solidly fulfil duties laid down in Article 457 § 3 CPC, i.e. reliably develop a sentence justification, which cannot just include indefinite, general and matching each case statements concerning appropriate establishment of facts and right assessment of evidence, because the above-mentioned phrases that are not connected with the answer to arguments included in an appeal do not provide the appealing party with an actual answer to the issues constituting the basis for formulating charges. Thus, the norm laid down in Article 537a CPC cannot limit or exclude the standard of a fair appeal trial.","PeriodicalId":33501,"journal":{"name":"Ius Novum","volume":"16 1","pages":"168 - 176"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46883967","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Proposal to Commit an Indecent Act in Order to Derive a Financial Benefit","authors":"Julia Kosonoga-Zygmunt","doi":"10.26399/iusnovum.v16.4.2022.36-j.kosonoga-zygmunt","DOIUrl":"https://doi.org/10.26399/iusnovum.v16.4.2022.36-j.kosonoga-zygmunt","url":null,"abstract":"Summary The article presents the issue of a misdemeanour of proposing to commit an unlawful act in order to obtain a material benefit classified in Article 142 MC. In order to provide full characteristics of the discussed type of misdemeanour, a classical pattern based on the traditional division of statutory features of the type of prohibited act has been adopted. The author discusses such issues as statutory penalties for this misdemeanour and concurrence of provisions. The article also draws special attention to issues raising doctrinal controversies, including inter alia: approach to the object of protection, the interpretation of the features of “prostitution”, “material benefit” or “other behavior violating public order”. A number of specific issues were also analysed, including liability under Art. 142 MC persons providing roadside sexual services.","PeriodicalId":33501,"journal":{"name":"Ius Novum","volume":"16 1","pages":"35 - 56"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47289319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Scope of Creative Commons Licenses for Sharing and Using Research Data Within an Institutional Repository","authors":"Marek Salamonowicz","doi":"10.26399/iusnovum.v16.4.2022.41-m.salamonowicz","DOIUrl":"https://doi.org/10.26399/iusnovum.v16.4.2022.41-m.salamonowicz","url":null,"abstract":"Summary The purpose of this article is a civil analysis of the scopes of authorizations contained in creative commons licenses in the context of their potential use in the activities of an institutional repository. The reference point for the considerations are also the conditions for sharing and transferring public sector information for re-use set out in the Open Data Act of 2021. The material, temporal and territorial scope of the Creative Commons licenses has been specified. The task requires, in particular, the examination of the standards of open licenses in the light of the provisions of the Copyright Act of February 4, 1994 and the Act of July 27, 2001 on the protection of databases. It seems significant in the context of the problems regarding to the functioning of the Creative Commons licenses under Polish law. This type of analysis seems all the more justified because in the case of research data, the subject of the authorization may not only be a work, but a database or the subject of related rights. In the course of the research, the dogmatic-legal and legal-comparative methods were mainly used. It should be concluded that the reference to standard open Creative Commons licenses enables the obliged entity to properly fulfill its obligations to define the content of the conditions for re-use specified in particular in Art. 15 of the Act on Open Data of 2021. The presented principles of recognition of authorship satisfy the obligation to inform about the source and time of generating and obtaining public sector information from the obliged entity. In turn, the obligations relating to the exploitation of derivative works specify the conditions for the obligation to inform re-used public sector information about the processing. It should be recognized that referring to the Creative Commons licenses within institutional repositories may be appropriate, taking into account the indicated shortcomings, discrepancies and the lack of full synchronization of the developed international standards with the Polish legal order.","PeriodicalId":33501,"journal":{"name":"Ius Novum","volume":"16 1","pages":"134 - 150"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41411889","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Gloss on the Supreme Court Decision of May 26, 2021, I KK 23/21","authors":"Zuzanna B. Gądzik","doi":"10.26399/iusnovum.v16.4.2022.44-z.b.gadzik","DOIUrl":"https://doi.org/10.26399/iusnovum.v16.4.2022.44-z.b.gadzik","url":null,"abstract":"Summary In the gloss to the decision of the Supreme Court of 26 May 2021 (I KK 23/21), the issue of the correctness of establishing the scope of the term “health service” with regard to treatments in the field of aesthetic medicine was addressed. In this context, it has been analyzed which entities can legally carry out such treatments and in which cases taking specific actions by an unauthorized person will result in criminal or disciplinary liability.","PeriodicalId":33501,"journal":{"name":"Ius Novum","volume":"16 1","pages":"177 - 188"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42178754","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}