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Legal Status of the Polish Academy of Arts and Sciences 波兰艺术与科学院的法律地位
Pub Date : 2023-06-30 DOI: 10.2478/in-2023-0025
Marcin Gubała
Abstract The aim of this article is to analyse the legal status of the Polish Academy of Arts and Sciences, an entity operating within the system of higher education and science. The study explores the Academy’s origins, its legal form and role it plays within the system of higher education and science, and its rights and obligations under the law. The findings presented in the paper allow for drawing conclusions on the legal status of the Academy, in particular recognising that it is a legal person functioning in the legal form of a (registered) association, and at the same time an organisation directly included by the legislator in the category of entities of the system of higher education and science. The study indicates the reasons justifying the Academy’s inclusion in the catalogue of entities of this system, primarily its exceptional achievements in the field of scientific activities and popularising their results, as well as the universality of undertaken activities, tradition and reputation within the scientific community.
摘要本文的目的是分析波兰艺术与科学学院的法律地位,该学院是高等教育和科学系统中的一个实体。本研究探讨了学院的起源、其法律形式及其在高等教育和科学体系中所扮演的角色,以及其在法律下的权利和义务。论文中提出的调查结果有助于对学院的法律地位得出结论,特别是承认学院是一个以(注册的)协会的法律形式运作的法人,同时也是立法者直接纳入高等教育和科学系统实体类别的组织。该研究指出了将科学院纳入该系统实体目录的理由,主要是科学院在科学活动领域取得的非凡成就并推广其成果,以及所开展活动的普遍性、传统和在科学界的声誉。
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引用次数: 0
On the Concept of an Appellate Measure in a Criminal Proceeding 论刑事诉讼中上诉措施的概念
Pub Date : 2023-06-30 DOI: 10.2478/in-2023-0023
Bartosz Łukowiak
Abstract The aim of the paper is to analyse how the term ‘appellate measure’ is interpreted in the Polish doctrine of criminal procedure law and, in particular, to assess the accuracy of the assumption that the possibility of recognising a particular means of indictment of a decision as an appellate measure is determined by its normative features. Based on the analysis of the characteristic features of each means of indictment of a decision, an attempt is made to demonstrate that this assumption may be regarded as incorrect. It is suggested that the previous definition of an appellate measure be revised, and recognise that this concept is purely of a conventional (traditional) nature, which means that the possibility of classifying a particular means of indictment of a decision as an appellate measure should not depend on its nature or similarity to other legal measures considered as means of indictment of a decision.
摘要本文的目的是分析“上诉措施”一词在波兰刑事诉讼法学说中是如何解释的,特别是评估承认一项决定的特定起诉手段作为上诉措施的可能性是由其规范性特征决定的这一假设的准确性。根据对一项决定的每一起诉手段的特点的分析,试图证明这种假设可能被认为是不正确的。建议修订上诉措施的先前定义,并承认这一概念纯粹是一种传统(传统)性质,这意味着将一项决定的特定起诉手段归类为上诉措施的可能性不应取决于其性质或与被视为起诉决定手段的其他法律措施的相似性。
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引用次数: 1
The Attack on the Protected Legal Interest: A Criminalisation Principle and an Element of the Criminal Offence? 对受保护的法律利益的攻击:刑事定罪原则与刑事犯罪要件?
Pub Date : 2023-06-30 DOI: 10.2478/in-2023-0019
Javier Gómez Lanz
Abstract This paper analyses the role played by the notion of legal interest as a criterion for decisions on criminalisation and, according to some scholars, as an element of criminal offence. First, the analysis tallies the impact of legal interest on criminal policy, focusing on the correlation between this concept’s definition and underlying political theories. Subsequently, the article explores difficulties of using legal interest as an interpretative canon to determine whether the offender’s deed can be deemed materially unlawful.
摘要本文分析了法律利益概念作为刑事定罪决定的标准以及一些学者认为的刑事犯罪要素所发挥的作用。首先,分析了法律利益对刑事政策的影响,重点分析了这一概念的定义与潜在政治理论之间的相关性。随后,文章探讨了使用法律利益作为解释准则来确定罪犯的行为是否可以被视为实质上非法的困难。
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引用次数: 0
The Paradox of Democratic Strengthening: Criminalisation of Political Terrorism as a Legal Discrediting Mechanism 民主强化的悖论:作为一种法律差异机制的政治恐怖主义的刑事化
Pub Date : 2023-06-30 DOI: 10.2478/in-2023-0020
Alexis Couto De Brito, Jenifer Moraes
Abstract This article explores the Brazilian legal system in light of recent proposals to amend the anti-terrorism law, a move amplified by the country’s political instability, which culminated on 8th January 2023, when supporters of the former president invaded government buildings on the pretext of contesting election results. The essay examines whether these amendment proposals align with the principles of our constitutional democracy and their potential to foster genuine democratic reinforcement.
本文根据最近修改反恐法的建议探讨了巴西的法律制度,这一举措被该国的政治不稳定放大了,这一不稳定在2023年1月8日达到顶峰,当时前总统的支持者以质疑选举结果为借口入侵了政府大楼。本文探讨了这些修订建议是否符合我们的宪政民主原则,以及它们是否有可能促进真正的民主强化。
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引用次数: 0
Amendment to the Rights and Obligations of a Journalist in Act: Press Law from the Perspective of Conscience Clause 记者权利义务法修正案——基于良心条款的新闻法
Pub Date : 2023-06-30 DOI: 10.2478/in-2023-0024
Jacek Sobczak, Maria Gołda-Sobczak
Abstract The conscience clause, sometimes also referred to as the right to conscientious objection, is based on the possibility of refusing to comply with a binding legal norm due to its non-conformity with the indications of conscience of the person who invokes its content. Commonly derived, especially in Poland, from Article 53 of the Constitution of the Republic of Poland, this clause initially applied to physicians’ actions. It was also suggested that this clause could form the basis for conscientious objection to an abortion procedure. Drawing on Article 10(2) of the Charter of Fundamental Rights of the European Union, and emphasising the differences in the wording of this provision in different language versions, the article argues that such interpretation of the conscience clause is too narrow and poor. Attention is drawn to the amendments made to the wording of Article 10(2) of the Press Law, where the legislator replaced the journalist’s obligation to follow the editorial policy with the right to refuse to carry out an official order if the journalist believed that they were expected to publish a material that would violate the principles of reliability, objectivity and professional diligence. This solution undoubtedly constitutes the approval of the broadly understood conscience clause explicitly formulated in the Charter of Fundamental Rights of the European Union. The content of Article 10(2) of the EU Charter of Fundamental Rights allows for conscientious objection to apply to actions of the representatives across all professions.
良心条款,有时也被称为依良心拒服兵役权,是基于一种可能性,即由于不符合援引其内容的人的良心指示而拒绝遵守具有约束力的法律规范。该条款通常源自《波兰共和国宪法》第53条,尤其是在波兰,最初适用于医生的行为。还有人建议,这一条款可以成为出于良心反对堕胎程序的依据。根据《欧洲联盟基本权利宪章》第10条第2款,并强调该条款在不同语言版本中的措辞差异,文章认为,对良心条款的这种解释过于狭隘和糟糕。提请注意对《新闻法》第10条第(2)款的措辞所作的修正,其中立法者将记者遵守编辑政策的义务改为如果记者认为他们要发表违反可靠性原则的材料,则有权拒绝执行官方命令,客观性和专业勤奋。这一解决方案无疑是对《欧洲联盟基本权利宪章》中明确提出的广泛理解的良心条款的认可。《欧盟基本权利宪章》第10条第2款的内容允许出于良心拒服兵役适用于所有职业的代表的行为。
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引用次数: 0
Admissibility of Reopening Cassation and Reopening Proceedings Concluded with a Decision Dismissing the Extraordinary Appeal Measure 以驳回特别上诉措施的决定结束的重新上诉和重新诉讼的可受理性
Pub Date : 2023-06-30 DOI: 10.2478/in-2023-0022
Michał Hudzik
Abstract The article is aimed at examining the admissibility of reopening cassation and reopening proceedings concluded with a decision to dismiss the extraordinary appeal measure. To this end, the article explores provisions on proceedings reopening (Articles 540 and 542 § 3 CCP), with particular focus on the term ‘court proceedings concluded with a final decision’ used by the legislator, and juxtaposes this with provisions on cassation appeal (concerning terms used in Article 521 of the Code of Criminal Procedure – ‘a final decision concluding court proceedings’ and ‘a final court decision concluding the proceedings’, and on prohibition of the so-called super-cassation, which has not been transferred to the institution of reopening of the proceedings). The author also analyses Supreme Court practice over the last twenty-odd years and reflects on historical changes to criminal procedure at the turn of the 21th century with regard to the institutions of annulment of court decisions and reopening of the proceedings.
摘要本文旨在审查重新启动最高上诉和重新启动以驳回特别上诉措施的决定结束的程序的可受理性。为此,该条探讨了重新启动诉讼程序的规定(《民事诉讼法》第540条和第542条第3款),特别关注立法者使用的术语“以最终裁决结束的法院诉讼”,并将其与关于最高上诉的规定并列(关于《刑事诉讼法》第521条中使用的术语——“结束法庭诉讼的最后裁决”和“结束诉讼的最后法庭裁决”,以及关于禁止所谓的超级最高上诉的条款,该条款尚未移交给重新启动诉讼的机构)。作者还分析了最高法院二十多年来的实践,并反思了21世纪之交刑事诉讼程序在撤销法院裁决和重新启动诉讼程序方面的历史变化。
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引用次数: 0
Compliance and its Contributions to Safety at Work 合规及其对工作安全的贡献
Pub Date : 2023-06-30 DOI: 10.2478/in-2023-0021
Paula Andrea Ramirez Barbosa
Abstract Labour compliance is essential to protect workers’ rights and promote sustainable, responsible and effective business development. It necessitates continuous preparation of preventive compliance reports on occupational risks, usually requiring studies and their timely updates, risk analysis, training-oriented resource management, and training of workers and managers. Greater self-regulation, such as compliance, can help mitigate risk of penal sanctions for individuals who fail to comply with risk prevention regulations, seriously endangering health and safety at work. A robust and effective compliance programme in this area aims to ensure legal and contractual obligations are met, particularly with respect to protecting the life and health of workers. Compliance can also bolster company success, minimise reputational damage for corporations, avoid payment of hefty fines and suspension of permits and licenses that would halt operations, among others.
摘要劳动合规对于保护工人权利和促进可持续、负责任和有效的企业发展至关重要。这就需要不断编写关于职业风险的预防性合规报告,通常需要进行研究并及时更新、风险分析、以培训为导向的资源管理以及对工人和管理人员的培训。加强自律,如合规,有助于降低不遵守风险预防条例、严重危害工作健康和安全的个人受到刑事制裁的风险。这一领域强有力和有效的合规方案旨在确保履行法律和合同义务,特别是在保护工人生命和健康方面。合规还可以促进公司的成功,最大限度地减少对公司声誉的损害,避免支付巨额罚款和暂停可能导致运营中断的许可证和执照等。
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引用次数: 0
Key Elements of the Criminal Law Conflict System, with Special Reference to Spanish Criminal Law 刑法冲突制度的关键要素——以西班牙刑法为例
Pub Date : 2023-06-30 DOI: 10.2478/in-2023-0018
Antonio Obregón García
Abstract Criminally relevant conduct often falls under several criminal precepts, regulating as many criminal notions as possible, and it is necessary to decide whether all, some or only one of them could be applicable. This phenomenon, termed ‘conflict’, occurs when a subject’s actions with criminal relevance are, wholly or partially, subsumed under different criminal precepts. To definitively classify the punishable act, it is then necessary to take a further step, which can be considered conclusive, and determine the precept or precepts applicable to the act. Hence, this paper analyses the meaning, content, and application of the conflict of laws and conflict of rules.
摘要刑事相关行为往往分属若干刑事规则,规范了尽可能多的犯罪概念,需要决定是否全部适用、部分适用或仅适用其中一种。这种现象被称为“冲突”,当一个主体与犯罪相关的行为全部或部分地归入不同的刑事规则时,就会发生这种现象。为了明确地对应受惩罚的行为进行分类,就必须采取可被认为是决定性的进一步步骤,并确定适用于该行为的一项或多项规定。因此,本文分析了法律冲突和规则冲突的含义、内容及其适用。
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引用次数: 0
Disability Pension Granted Due to the Reduction of Prospects for Success in the Future 因未来成功前景减少而发放的残疾养恤金
Pub Date : 2023-06-01 DOI: 10.2478/in-2023-0014
Krzysztof Mularski, Krzysztof Grzesiowski
Abstract The aim of this article is to interpret the conditions for, and the content of, a claim for an appropriate disability pension granted due to the reduction of prospects for success in the future (referred to as the third disability pension condition under Article 444 § 2 of the Civil Code). The chosen subject of analysis is primarily justified by the relative lack of attention this disability pension has received in legal literature compared to pensions granted due to other conditions specified in Article 444 § 2 CC. The authors focus on resolving some of the interpretative doubts in the civil law related to the phrase “reduction of the prospects for success in the future”. The derivative conception of legal interpretation serves as the foundation for their analyses. The article posits that a claim for a pension due to the reduction of prospects for success in the future is available to every natural person (including a conceived child) who has suffered a bodily injury or health disorder resulting in a loss of the ability to work (in the broad sense of the term), including the ability to perform household chores and, consequently, the material or financial benefits such work would provide. According to the authors, the provision’s apparent role is to resolve interpretative doubts regarding the pecuniary benefits that the aggrieved party would likely obtain in the future. This likelihood is higher than low or small, but lower than the probability bordering on certainty (or at least very high), which is the usual requirement for lost benefits in order to be granted a disability pension. This result of the interpretation is fully justified in both functional and systemic interpretative directives, as the legislator, to a certain extent, favours the interests of the person who suffered personal injury over those of the entity responsible for the damage.
摘要本文的目的是解释因未来成功前景减少而获得适当伤残抚恤金的索赔条件和内容(根据民法典第444条第2款,称为第三伤残抚恤金条件)。之所以选择这一分析主题,主要是因为与《刑法》第444条第2款规定的其他条件相比,这种残疾抚恤金在法律文献中受到的关注相对较少。作者重点解决了民法中与“减少未来成功前景”一词相关的一些解释疑问。法律解释的衍生概念是他们分析的基础。该条假定,由于未来成功的前景减少,每个遭受身体伤害或健康失调导致丧失工作能力(广义上的工作能力)的自然人(包括怀孕的儿童)都可以要求领取养恤金,包括从事家务的能力,从而丧失这种工作将提供的物质或经济利益。发件人认为,该条款的明显作用是解决有关受害方将来可能获得的金钱利益的解释性疑问。这种可能性高于低或小,但低于接近确定的可能性(或至少非常高),这是为了获得残疾养恤金而失去福利的通常要求。这种解释的结果在功能性和系统性解释性指令中都是完全合理的,因为立法者在某种程度上倾向于使人身受到伤害的人的利益高于对损害负有责任的实体的利益。
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引用次数: 0
A Legal Good Under Art. 62(1) of the Act on Counteracting Drug Addiction of 2005 2005年《反吸毒成瘾法》第62(1)条规定的一种法律利益
Pub Date : 2023-06-01 DOI: 10.2478/in-2023-0011
Katarzyna Tkaczyk-Rymanowska
Abstract The focus of this article is the regulation of Article 62(1) of the Act on Counteracting Drug Addiction of 29 July 2005, often referred to in literature as ‘possession for personal use’. The fundamental issue related to the subject matter pertains to the definition of the legal good in Art. 62(1) of the Act. Contrary to initial impressions, identifying this interest is neither simple nor unequivocal, as there may be doubts over whether such a good protected by law exists and, if so, whether it should be protected under criminal law. The article also explores the correlation of this legal good and the need to protect it with other legal goods protected by the Constitution (e.g. individual freedom). Additionally, the article also examines the significance of the consent of a holder of a given good for the exclusion of unlawfulness or the absence of any attack on the legal good. Behaviour undertaken with the consent of the holder, allegedly “violating” the legal good, is after all, an act that conforms to the norm from the outset, and therefore does not involve any element of unlawfulness. As such, it does not constitute a criminal act. There are doubts whether in the case of possession and use of drugs, there is a threat to the legal good or whether such conduct is lawful from the very beginning, given the consumer’s consent. The article critiques the existing criminal law regulations, and its key argument is the thesis that drug addiction is an issue of exclusively medical and social concern, rather than one of criminal law.
本文的重点是2005年7月29日颁布的《反吸毒成瘾法》第62(1)条的规定,在文献中通常被称为“个人持有”。与主题事项有关的根本问题涉及该法第62(1)条中对法律利益的定义。与最初的印象相反,确定这种利益既不简单也不明确,因为人们可能怀疑这种受法律保护的利益是否存在,如果存在,是否应受刑法保护。本文还探讨了这一法律利益的相关性,以及保护它与受宪法保护的其他法律利益(如个人自由)的必要性。此外,该条还审查了某一货物的持有人的同意对于排除非法行为或不对合法货物进行任何攻击的重要性。经持有人同意而采取的行为,据称“违反”了法律利益,毕竟是一种从一开始就符合规范的行为,因此不涉及任何非法因素。因此,它不构成犯罪行为。在持有和使用毒品的情况下,是否存在对合法利益的威胁,或者在消费者同意的情况下,这种行为是否从一开始就是合法的,都存在疑问。这篇文章批判了现有的刑法规定,其核心论点是吸毒成瘾是一个专门的医学和社会问题,而不是一个刑法问题。
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引用次数: 0
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