Retroactive Jurisprudence. An Overview of the Problems (in the Light of Selected Examples)

The concept of the retroactive application of case-law is ambiguous. This may relate to a change in the interpretation of a given provision and classifying previous facts based on the new interpretation or the application of provisions that the legislator itself has made retroactive. It happens that courts apply a certain provision retroactively, despite the fact that the legislature did not give it a retroactive nature, or apply, as a basis for a resolution, a provision different from the one that is actually retroactively applied. In the paper, the lawful and unlawful retroactive application of law was distinguished. The retroactive application of law is lawful when it is based on a provision which has been made retroactive by the legislature. The conceptual analyses presented selected adjudicatory practices of a retroactive nature. It was considered that the retroactive application of law was unlawful. It pursued social objectives that were only seemingly worthy of approval, thus, undermining trust in the codified law and entities that apply that law, and causing a whole range of other, strongly unfavourable and difficult to foresee consequences.

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Mularski.pdf

559 kB

Tax Avoidance in the Judicial Doctrine of Polish Courts

The article presents conclusions from an examination of the judicial practice of Polish courts connected with the functioning of what is known as the judicial doctrine of the circumvention of the tax law. The study covers more than 500 judgments issued over the past 40 years, primarily by the Supreme Administrative Court, which have referred to the circumvention of the tax law. On this basis, an attempt is made to identify and systematise the characteristics of the facts that are considered relevant in order to classify those facts as circumventing the tax law. There is also an evaluation of their significance for the reasoning of the courts, as well as their broader context. The analysis allows a reconstruction of the typical approach that Polish courts take to tax avoidance, and offers guidance on the application of the current anti-avoidance rules, including the general anti-avoidance rule introduced to the General Tax Code.

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Slifirczyk.pdf

441 kB

The Development of Modern Legal Constructions of Citizenship and Statelessness in Light of Hannah Arendt’s Thesis on the Aporetic Character of the Enlightenment Concept of Human Rights

The article analyses the development of modern legal constructions of citizenship and statelessness in light of the key observations concerning the modern legal and political paradigm raised by Hannah Arendt. Studying the fallacies of the modern notion of citizenship, Arendt claims that the problem of statelessness is conditioned by a radical shift in understanding of politics, which took place during the enlightenment. Moreover, she proves that the fate of the stateless is symbolic for all modern people. Remedies to the challenges of modernity, which are based on the same modern political paradigm, are therefore considered by Arendt as aporetic. The study examines the adequacy of Arendt’s account of the European premodern concept of community and analyses the reception of her thoughts by later thinkers. It is concluded by brief analysis of the aptness of Arendt’s thoughts in reference to the key contemporary legal problems.

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Zych.pdf

451 kB

Civil Disobedience and Judicial Disobedience in the Face of a Constitutional Crisis

That article tends to resolve two problems related to a constitutional crisis. In the first instance it asks – whether certain acts of people subjected to law and associated directly with a constitutional crisis shall be, perforce, recognized as the disobedience in view of the law, if one deems – on the one hand – Hans Kelsen’s positivistic idea, and on the other hand – the claims put forward on the concept of Gustav Radbruch’s Formula. The conclusions that can be drawn from the conducted analyses are the basis for deliberations about the second paper’s problem – whether citizens actions which are contrary to statutory law, but made in belief of their constitutional rights, shall be, perforce, recognized as civil disobedience, in the light of the fact that the presumption of the constitutionality mechanism is limited due to the Constitutional Court’s state of affairs

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Piekarczyk.pdf

370 kB

Nasciturus’ Right to Life in the Light of Constitutional Law and International Law

Human life in the prenatal phase enjoys legal protection under the constitutional law in Europe, international law and European Union law. The intensity of this protection varies considerably depending on the adopted solutions in the area of abortion, research on embryos and the selection of embryos in the procedure of artificial insemination. In some legal systems the embryo or foetus is recognized as a subject of the right to life equally with a born person, while in other “developing life” is treated as an objective value, which, however, is lower in the hierarchy than the rights of a born citizen. It should be noted that even countries with a very wide access to abortion consider the need to ensure the minimum of legal protection of nasciturus e.g. France, which by ratifying the Oviedo Convention has underwritten the commitment to guarantee respect for the dignity of unborn human beings by on-going scientific research.

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Roszkiewicz.pdf

544 kB