Principle of Pragmatism in Tax Proceedings

The article refers to one of the changes included in the Tax Ordinance Project prepared in 2017 by the General Tax Law Codification Commission, which introduced the so-called principle of pragmatism into the group of general principles of Polish tax proceedings. This principle, previously unknown in Polish tax proceedings, provided for the possibility not to initiate or to discontinue initiated tax proceedings if they concerned cases which did not fall within the “triviality limit”, set at PLN 50. The study points out that it is necessary to take into account the needs of fiscal penal law when introducing the discussed principle into tax proceedings, considering its subsidiarity in relation to tax law and, more broadly, financial law and the ways it is understood in the Polish doctrine of criminal law. The authors conclude that the proposed principle of pragmatism in tax proceedings is an institution identical to the principle of opportunism in criminal proceedings, although it has more specific statutory prerequisites for its application than its criminal law prototype. They also indicate the necessary de lege ferenda actions in the field of prerequisites for prosecuting criminal offences, should the principle be codified.

Załączniki:

Obuchowski_Kanty.pdf

293 kB

About the Misdemeanour of Insulting the President of the Republic of Poland

In 2019, the Court of Appeals in Szczecin acquitted a perpetrator who insulted the President of the Republic of Poland with a poem. His act was characterized by a negligible degree of social harmfulness. It is important to answer a question whether the perpetration of the act being the basis for issuing the judgment in question exceeded the scope of normalization of the decoded norm under Article 135 § 2 of the Criminal Code, so was his act really unlawful. The article discusses the legitimacy of maintaining in Polish criminal law the increased protection of the dignity of the President.

Załączniki:

Grudecki.pdf

433 kB

Roman Law Tradition and the Obligation to Accept Partial Performance of a Contract

Is it possible to compel a creditor to accept partial performance of a contract, even if parties of a contract have not agreed on such a method of performance? A comparison of the contemporary regulations with the view developed and finally expressed in Justinian’s Digest – D. 12.1.21 (Julian, book 48 of his Digest) supports the view that in the sixth century AD a solution was found which is still in force in practically all civil codes. According to it, the compelling of a creditor to accept a partial performance is generally not allowed, apart from clearly defined exceptions. Meanwhile, the 1964 Polish Civil Code departed from the solution adopted in the “mainstream of European legal orders” and, although this is not a sufficient basis for its evaluation, nonetheless this decides about its uniqueness.

Załączniki:

Tracz.pdf

438 kB

Deadlines in the Election of the President of the Republic of Poland Ordered by the Marshal of the Sejm on 3 June 2020

The aim of this study is to evaluate the solutions regarding the shape of the election calendar in the elections of the President of the Republic of Poland ordered by the decision of the Marshal of the Sejm of 3 June 2020. First, the study analyzes the legal nature of the decision of the Marshal of the Sejm and the special powers granted to this body under the episodic act of 2 June 2020 on the special rules for the organization of general elections for the President of the Republic of Poland ordered in 2020 with the possibility of voting by post. In this regard, the Marshal’s right to set deadlines ignoring the regulations of the Electoral Code and the possibility of modifying the terms specified in the election calendar in connection with the epidemic situation were assessed. In the second part of the paper, the system of election terms resulting from the election calendar was analyzed in order to verify whether the adopted solutions favored the exercise of subjective election rights in the elections of the President in 2020. The research was based on the formal and dogmatic method.

Załączniki:

Pyrzynska.pdf

349 kB

The Scope of Genetic Data Protection under the Regulation (EU) 2016/679 of the European Parliament and of the Council

In result of adopting the Regulation (EU) 2016/679 of the European Parliament and of the Council, the catalog of sensitive data has been broadened by genetic data. In such a way is has been demonstrated that genetic data are one of autonomous subcategory of sensitive data. Although the Regulation contains a legal definition of genetic data, it does not provide special rules related to protection of genetic data. Member states are however allowed to maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or data concerning. Adoption these conditions in turn implies a necessity to determine a scope of protection of genetic data in order to comply with the principles relating to processing of personal data.

Załączniki:

Drozdzowski.pdf

455 kB

Party to the Procedure for Setting Prices for Water Services

Subject of this paper refers to applying provisions of the Administrative Procedure Code of 14th June 1960 (hereinafter referred to as: A.P.C.) within one of the stages related to determining charges for water services defined in the Water Law Act of 20th July 2017 (hereinafter referred to as: W.L.A.). Author analyses situation in which obliged entity – after the receipt of information determining the amount of charge for water services – upon the lapse of 14 days time limit – has not made the payment and has not submitted complaint. Provisions of the W.L.A. state that in the aforementioned case authority of the National Water Holding ‘Polish Waters’ issues administrative decision determining the amount of charge. Moreover, the aforementioned procedure requires applying provisions of the A.P.C. Amendments related to provisions of the W.L.A. constitute a trigger for further, detailed analysis.

Załączniki:

Sobota.pdf

300 kB

Critical Commentary to the Judgment of the Supreme Court of 3.7.2019, Ref. V KK 256/18

The commentary concerns two major threads leading to a critical assessment of the commented judgement of the Supreme Court – the role of subsidiarity principle of criminal law interpretation and the insignificance of “economic justification” of manager’s actions to determine if those actions breached Article 296 of the Penal Code. Author shows considerations regarding the importance of subsidiarity of criminal law, both in the aspect of lawmaking and interpretation of law for the correct legal interpretation of Article 296 of Penal Code. Author criticises the level of importance of the “economic justification” of manager’s actions which was given by the Supreme Court in the commented judgement. As a rule, the so called “economic justification” of manager’s action is inappropriate to the assessment of the substantive components of crime. It is especially irrelevant to the assessment of the results of manager’s action – potential infliction of substantial damage or large-scale damage.

Załączniki:

Zielinski.pdf

293 kB