scholarly journals Polska godność narodowa w świetle prawa karnego

2018 ◽  
Vol 70 (1) ◽  
pp. 153-185
Author(s):  
Witold Kulesza
Keyword(s):  
Public History ◽  
Criminal Liability ◽  
Modern World ◽  
Historical Interpretation ◽  
Applicable Law ◽  
20Th Century History ◽  
Current Assessment ◽  
The Law ◽  
Polish Law ◽  
Contemporary Interpretation

Poland is contemporarily the only country in Europe where the law includes criminal liability for publically defaming the nation or for being disrespectful towards it. This makes the national dignity an independent legal interest. Consequently, it seems worthwhile to pay attention to the origins of the regulations which protect this particular legal interest which were introduced into the Polish law in 1932. Moreover, it creates the need for a commentary on the statutory description of the acts which break the law. It also necessitates the portrayal of the issues created on the grounds of the practical application of the sanctionative norms in the modern world. Historical roots are the reason behind the way national dignity is currently perceived and felt. Furthermore, the historical experiences determine the direction of the interpretation of the applicable law which protects the nation’s dignity. To put it in other words, the present-day interpretation of the penalnorms is based on public history and as such it constitutes the historical interpretation which leads to a prescriptive understanding of the semantics of these terms. The aforementioned contemporary interpretation seeks to answer the question what type of behaviour is characterised by the perpetration of “disrespect”. Furthermore, it aims to answer whichacts can be defined as a show of contempt which is equal to “defaming” the Polish nation. Consequently, the objective of the following article is to look at the contemporary law through the historically determined prism of symbolic criminalization of behaviours which attack Polish national dignity as well as to give examples of modern incriminating public statements. The provisions of criminal law which stipulate criminal liability for public defamation and disrespecting the nation have not changed since it was introduced into the Polish law. Despite this fact, the current assessment of behaviour as a violation of the nation’s dignity is influenced by the tragic 20th-century history and its memory as a legal interest. In the course of the study of the specific instances of behaviour which were not anticipated by the pre-war legislator, one needs to attempt to point to the reasons behind preserving their punishability.

scholarly journals Glosa do postanowienia Sądu Najwyższego z dnia 23 marca 2016 r., sygn. akt: III CZP 112/15

2020 ◽  
Vol 26 ◽  
pp. 209-221
Author(s):  
Agata Kozioł
Keyword(s):  
Supreme Court ◽  
Legal Order ◽  
Applicable Law ◽  
The Law ◽  
Court Proceedings ◽  
Polish Law ◽  
Double Nature ◽  
Mandatory Provision

The role of art. 57 § 1 of Polish Family and Guardianship Code in proceedings concerning international divorce is disputed and gives rise to many questions concerning its nature. The provision, addressed to the Polish courts dealing with divorce cases, obliges the seized court to rule on fault of spouses in the breakdown of marriage. It may then seem to remain unclear if the court shall apply art. 57 § 1 when the law applicable to divorce does not state for fault based grounds for dissolution of marriage, while the legal order applicable to maintenance obligation between former spouses requires, among other prerequisites, that the fault of the former spouse obliged to alimony is declared in court proceedings. This paper analyses the judgement of Polish Supreme Court from 23rd of March 2016, in which this issue was raised. The Author rejects the opinion of Supreme Court that the provision in question has a procedural nature. The view, that it constitutes an example of overriding mandatory provision should also be denied. As a provision of double nature: material and procedural, it should be applied by Polish courts as an instrument that enables to rule on fault in all those cases when applicable law provides for fault grounds for divorce; it should be also applied by foreign court deciding on dissolution of marriage when Polish law is applicable.

scholarly journals ANALISIS YURIDIS TENTANG TINDAK PIDANA PENCEMARAN NAMA BAIK MELALUI INTERNET DIKAITKAN DENGAN KEBEBASAN PERS

2020 ◽  
Vol 2 (2) ◽  
pp. 147
Author(s):  
Rudolf Silaban ◽  
Jaminuddin Marbun
Keyword(s):  
Criminal Liability ◽  
Criminal Code ◽  
Press Freedom ◽  
The Internet ◽  
Applicable Law ◽  
Legal Provisions ◽  
Internet Media ◽  
The Press ◽  
Inductive Methods ◽  
The Law

This study ims at finding out and understanding the provisions in the provisions of Indonesian law regarding the relation to defamation through the internet associated with press freedom, forms and criteria for criminal acts of defamation carried out in the internet media, forms of accountability for perpetrators of criminal defamation of names both through the internet in the applicable legal provisions in Indonesia. This research is a normative juridical research that is descriptive analytical and data analysis is carried out qualitatively descriptive, normative, logical, systematic, using deductive and inductive methods. The results of the study show that the regulation in the provisions of Indonesian law regarding the relation to defamation through the internet is related to freedom of the press. In a criminal case involving the press, of course, it cannot necessarily use the law against the law contained in the Criminal Code because a journalist's work is protected by Law No. 40 of 1999 concerning the Press. If there is a use of criminal legal instruments, then the element of unlawfulness contained in the Criminal Code must be linked to the Press Law. The forms and criteria for criminal defamation with complaints, insults to official bodies, insults to the dead. The forms of liability of perpetrators of criminal defamation through the internet in the provisions of applicable law in Indonesia, namely liability for criminal defamation through the internet media can be applied along with imprisonment sanctions or in the form of fines in accordance with applicable laws. This liability is charged in accordance with the criminal element which has been reviewed in terms of terms of criminal liability.

War Crimes

2020 ◽  
Author(s):  
Ioannis Kalpouzos
Keyword(s):  
Criminal Liability ◽  
War Crimes ◽  
International Criminal Law ◽  
Humanitarian Law ◽  
Law Of War ◽  
Applicable Law ◽  
Law Of Armed Conflict ◽  
The Law ◽  
The Relationship

The law of war crimes consists of the criminalization of the violations of the law of armed conflict (LOAC), also known as international humanitarian law (IHL), leading to individual criminal liability. Accordingly, the understanding of the law requires a discussion of a) the underlying regime of the LOAC, its general principles, and their application in specific rules; b) the relation between LOAC/IHL and the international criminal law (ICL) of war crimes; and c) the process of criminalization and enforcement, often through judicial institutions. All three steps are necessary for a doctrinal as well as a critical historical understanding of the legal regime and an appreciation of the role that the concept of war crimes plays in the regulation of war. The literature is rich with references to these questions, and to the tensions inherent in the relations between legal regimes or the process of criminalization and enforcement. This is evident whether the sources address ICL as a whole, the relationship between ICL and IHL, the role of courts and tribunals, or specific (categories of) war crimes. An interpretation of the underlying principles of IHL, its relation to ICL, and the process of criminalization and enforcement will also determine the stance of an author when they intervene in the development of the law of war crimes, for example by commenting on recent jurisprudence. Over the 20th century, the literature has encompassed arguments for the expansion of applicable law as well as more skeptical or conservative interpretations. Alongside and through formalist doctrinal arguments, different positions in the literature are informed by different understandings of the proper balance in the regulation of war and in the development of international law.

Practical Application

2018 ◽  
Author(s):  
Kubo Mačák
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
Practical Application ◽  
Temporal Perspective ◽  
Applicable Law ◽  
The Law ◽  
Geographical Scope

This chapter analyses the practical application of the law of belligerent occupation in internationalized armed conflicts in its temporal, geographical, and personal dimensions. Firstly, from a temporal perspective, the law is shown to apply once one of the conflict parties consolidates its control over the enemy territory and substitutes its own authority for that of the displaced enemy. Secondly, the chapter assesses the geographical scope of the applicable law and draws specific guidelines for the determination of the territory subject to the law of occupation in various types of internationalized armed conflicts. Thirdly, the chapter endorses the allegiance-based approach to the designation of protected persons under the law of occupation and applies it to the reality of internationalized armed conflict. Overall, the chapter presents a workable toolkit for the application of the law of occupation to internationalized armed conflicts.

scholarly journals Illogicality and Roman Law

1972 ◽  
Vol 7 (1) ◽  
pp. 14-24 ◽  
Author(s):  
Alan Watson
Keyword(s):  
South Africa ◽  
International Law ◽  
Western Europe ◽  
Outer Space ◽  
Roman Law ◽  
Modern World ◽  
Legal Systems ◽  
The Moon ◽  
Age Of Reason ◽  
The Law

It is a commonplace that Rome's greatest contribution to the modern world is its law. Whether this is strictly true or not, Roman law is certainly the basis of the law of Western Europe (with the exception of England and Scandinavia), of much of Africa including South Africa, Ethiopia and in general the former colonies of countries in continental Europe, of Quebec and Louisiana, of Japan and Ceylon and so on. Perhaps even more important for the future is that International law is very largely modelled, by analogy, on Roman law. Just think of the perfectly serious arguments of a few years ago as to whether outer space (including the moon and planets) were res nullius or res communes and whether they were, or were not, susceptible of acquisition by occupatio. This persistence of Roman law has had undesirable consequences. First, Roman law as an academic subject has got into the hands of lawyers whose love of technicalities has frightened off classical scholars who tend not to use the legal sources. Secondly, scholars of antiquity, since Roman law is left well alone, have also been reluctant to look at other ancient legal systems. So have lawyers since these other systems have no ‘practical” value. Thirdly, following upon these but worse still, the usefulness of Roman law for later ages, coupled with its enforced isolation from other systems of antiquity, has often led to an exaggerated respect for it, and to its being regarded as well-nigh perfect, immutable, fit for all people. Many in “the Age of Reason” were ready to regard Roman law as “the Law of Reason”.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

Legal Challenges for Romanian Family Medicine Practitioners in Times of ‘COVID-19’

2021 ◽  
Vol 28 (1) ◽  
pp. 71-75
Author(s):  
Silviu Dumitru PAUN ◽  
◽  
Sinziana-Elena BIRSANU ◽  
Codrut Andrei NANU ◽  
◽  
...  
Keyword(s):  
Family Medicine ◽  
General Practitioners ◽  
Point Of View ◽  
Insurance Policy ◽  
Roles And Responsibilities ◽  
Applicable Law ◽  
Professional Activities ◽  
Legal Challenges ◽  
The Law ◽  
Special Circumstances

The general practitioners (GPs’) practice faced serious challenges as a result of COVID-19 pandemic, including from a legal point of view. In this context, a series of questions related to the GPs’ professional activities might arise such as: (i) what happens if a doctor makes a mistake because he/she is exhausted, as a result of overtime or (ii) if he/she performs medical acts outside the boundaries of his/her own specialty or without consent, as requested by his/her own conscience, by the situation, by the authorities and by his/her principal? In all these special circumstances this could mean that the doctor fails to comply with the applicable law. Moreover, because he/she breaches the law, the professional insurance policy will cease to be applicable. With new roles and responsibilities, the GPs should adjust their practice to the current conditions.

scholarly journals Criminal Liability and Crime and Punishment Proportionality in the Crime of Legal Entities

2016 ◽  
Vol 9 (6) ◽  
pp. 61
Author(s):  
Samira Soltani ◽  
Ahmad Ramazani
Keyword(s):  
Criminal Liability ◽  
Penal Code ◽  
Legal Person ◽  
The Public ◽  
Crime And Punishment ◽  
Economic Exclusion ◽  
The Law ◽  
Definition Of ◽  
Legal Entities ◽  
The Way

One of the innovations of Islamic Penal Code in 2013 was to accept criminal liability of legal entities. By accepting criminal liability of legal entities, the way to punish them is arisen. As a legal person cannot commit any crime, any punishments are not applicable to them. Accordingly, Article 20 of this Law enumerated a list of penalties applicable to legal persons and it was tried to use penalties in accordance with the legal entities to deal with them. Punishments such as dissolution, confiscation, cash fine, announcement of the judgment, Diyeh, social and economic exclusion; such as a ban on business activities, prohibition of the public invitation to raise capital and ban from drawing business documents listed in Article 20 and Article 14, are a set of punishments which relatively different from usual punishment for individuals. These penalties are relative diversity, but what is objectionable is that the details and conditions of implementation of each of these punishments are not clear. If legislator described the details exactly or provided the condition to require the adoption of The Executive Bylaw of the punishment, it would be better. Given that all the points and issues about penalties for legal persons are not stated in this law as well as ambiguities in the law for a comprehensive definition of legal person, the way to implement main and supplementary punishments, In this study it was tried to evaluate and criticize the legal entities penalties including main and supplementary ones and their grading.

scholarly journals Public Procurement Transparency and Openness Effective Instruments Analysis

2021 ◽  
Vol 21 (3) ◽  
pp. 52-61
Author(s):  
E.A. Bondareva ◽  
Keyword(s):  
Public Procurement ◽  
Criminal Liability ◽  
The Law

Liability measures provided by the legislation and reports of the controlling bodies are analyzed. The conclusion is drawn that it is necessary to strengthen administrative and criminal liability for violations of the law in the course of public procurement. The author proposes tools to ensure compliance with the principles of transparency and openness of public procurement.

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