Acta Universitatis Lodziensis. Folia Iuridica <div style="text-align: justify;"> <p>At the beginning<em>&nbsp;Acta Universitatis Lodziensis. Folia Iuridica</em> presented articles of academics from Faculty of Law and Administration UŁ only. Since several years the articles are being published by all polish and foreign academics, too. Currently at the initiative of&nbsp;<em>Acta Universitatis Lodziensis. Folia Iuridica </em>Editors the articles have been grouped in the thematic structure and include not only jurisprudence issues from lawyers` point of view, but also philosophers, logicians, sociologists, psychologists, economists and at the same time becoming an interdisciplinary journal.</p> </div> Wydawnictwo Uniwersytetu Łódzkiego en-US Acta Universitatis Lodziensis. Folia Iuridica 0208-6069 New system of conditionality in the European Union law <p>The new regime of conditionality relating to the protection of the rule of law, postulated in the conclusions of the European Council and proposed in the Commission’s proposal, does not meet the dictionary requirements of genuine conditionality in two ways. Firstly, it does not introduce clear criteria as to the rule of law. Secondly, the rule of law is not required to be linked – on a sufficiently direct causal nexus – with what is to be dependent on the “rule of law”, i.e. the rule of law is not required to be sufficiently directly related in an actual (and not just potential) manner to certain (specific) EU finances, although the stated aim is to protect the financial interests of the Union. In such circumstances, the principle of legal certainty, being one of the elements of the actual rule of law, is breached. Moreover, the new conditionality duplicates and modifies to a certain extent the treaty procedure for the protection of the rule of law, what in itself constitutes a breach of treaty law by circumventing the law if only because the treaty procedure is more difficult to start than the one under the new conditionality system due to the required majority in the Council and unanimity in the European Council.</p> Waldemar Gontarski Copyright (c) 2021 2021-12-30 2021-12-30 97 5 45 10.18778/0208-6069.97.01 The evolution of civil legislative initiative legal regulation and its practical purpose based on citizens of Łódź draft of resolution projects <p>The article concerns on the citizens’ resolution initiative issue. The subject matter of the study is to undertake an analysis of the current legal regulations applicable to citizens’ resolution initiative in terms of the above mentioned initiative. The article discusses works on changes in the Polish legislation which will simplify the usage of this form of civil activity. Based on the example of the city of Łódź, the author has presented the citizens’ activity in the field of civil legislative initiative before and after changes in law. Thereby, the accuracy and absoluteness of these legislative solutions has been analysed practically.</p> <p>The article also tries to answer the question, whether the settlement of civil legislative initiative in legal regulations solved the legitimate dilemma in this range. The settlement of the civil legislative initiative in self-governments’ statutory law is the first step to implement the initiative stage of locals creating the law, but not the only one which has to be taken, so the mentioned institution can come into existence in the residents’ awareness.</p> Małgorzata Niewiadomska-Cudak Copyright (c) 2021 2021-12-30 2021-12-30 97 47 71 10.18778/0208-6069.97.02 Legal Obstacles in Medical Communication <p>This paper discusses medical communication as an issue, important from the point of view of the functioning of the health service. Attention is paid to the spheres of interpersonal and institutional communication, and selected legal obstacles in medical communication are presented, mainly in the relationship between medical personnel and the patient. The communicological aspect of the discussed issue was especially taken into account. For this purpose, the concept of communicology and the associated terminological problems have been presented. The discussed matter was analyzed through the prism of the thesis about excessive juridization of the sphere of communication.</p> Jan Okoński Copyright (c) 2021 2021-12-30 2021-12-30 97 73 85 10.18778/0208-6069.97.03 CN Code as a Legal and Tax Standard <p>The Excise Tax Act provides one of many forms of official tax law interpretations, i.e. the Binding Tariff Information. Pursuant to Article 7d, it is supposed to ensure the uniform application of the Excise Tax Act within taxation of excise goods or passenger cars, particularly by the interpretation that takes into consideration the classification in the system corresponding to the Combined Nomenclature (CN). Such interpretations are any General Rules for the Interpretation of the Combined Nomenclature and explanations of the customs tariff in accordance with the legal status as of the effective date of the Excise Tax Act, intended for the tax authorities and the Customs and Tax Service.</p> Adam Drozdek Copyright (c) 2021 2021-12-30 2021-12-30 97 87 100 10.18778/0208-6069.97.04 The Governance of Covid-19 Pandemic Health Emergency in Italy: A Constitutional Perspective <p>The essay focuses on the measures that have been taken in Italy to limit the contagion with Coronavirus in the first phase of the health emergency in 2020. The Italian Government was the first to face the epidemiological crisis in a constitutional democracy. The lockdown was one of the most drastic in Europe. On the one hand, fundamental freedoms of individuals have been compressed; on the other, the objective of limiting the expansion of the contagion in the early stage of pandemic expansion has been achieved, probably saving all European countries from an ungovernable health crisis before a minimal preparation. Even some critical aspects in the decision making process could be highlighted from a constitutional law perspective, the Author believes that the temporary measures, although drastic, not exceeded the limits allowed by the Italian Constitution, nor they seriously affected the balance between the powers at least in the first/second phase.</p> <p>The majority of Parliament approved <em>ex post </em>the law-decrees adopted by the Council of Ministers, demonstrating that it share the Government’s political position. Furthermore, in a very short time, the Italian people, in their vast majority, spontaneously adapted to the imposed prohibitions, demonstrating a sense of responsibility and solidarity towards the most vulnerable categories with respect to the effects of the virus (elderly and sick people, for example).</p> <p>The reasons of the economy, which would have required not to stop business activities, have been temporarily recessive with respect to the protection of the health of the community. This decision seems to find its ultimate foundation in the Article 2 of the Italian Constitution which requires everyone to respect the duty of social solidarity.</p> Angela Cossiri Copyright (c) 2021 2021-12-30 2021-12-30 97 101 109 10.18778/0208-6069.97.05 COVID-19 as a force majeure in the context of contractual obligations <p>The aim of this article is to indicate whether the current pandemic related to the disease caused by the SARS-CoV-2 virus can be recognised from a legal perspectice in the context of contractual obligations. It is essential to consider what force majeure is within the meaning of the civil law and what premises have to be fulfil to recognise the unforeseen circumstance as force majeure. The COVID-19 pandemic exerted, without a doubt, a huge influence on economic turnover. Here comes up a question whether this pandemic can be treated as force majeure justifying an exemption from liability for non-permormance of an obligation or suspension of the time-limit for the period of limitation in connection with an impossibility of prosecution of claims during the pandemic. It should be pointed out that the article is general and it does not involve detailed solutions.</p> Kamila Kozień Copyright (c) 2021 2021-12-30 2021-12-30 97 111 129 10.18778/0208-6069.97.06 Censorship and whistleblowing in a workplace: selected issues <p> </p> <p> The article will present four cases of abuses against Polish whistleblowers, including the last one from the period of the COVID-19 pandemic. Therefore, this article aims to draw attention to the problem of abuses against whistleblowers in Poland in the context of the employee’s obligation to care for the welfare of the workplace and the integrally related loyalty to the employer. The author used the upcoming implementation of the Directive of the European Parliament and the Council (EU) 2019/1937 of 23 October 2019 on the protection of persons reporting breaches of EU law as a background for her considerations. The author claims that the legislator in Poland will confront the challenge of redefining the issue of loyalty in labor law and the related freedom of expression of employees.</p> Łucja Kobroń-Gąsiorowska Copyright (c) 2021 2021-12-30 2021-12-30 97 131 142 10.18778/0208-6069.97.07 Possibility of using rebus sic stantibus clause for the protection of parties of contractual relations affected by the effects of SARS-COV-2 <p>This article deals with the problem of application of <em>rebus sic stantibus </em>clause, set forth in Art. 357(1) of the Civil Code, in conjunction with announcing by the Minister of Health a state of epidemiological emergency in the territory of the Republic of Poland, and, subsequently, the state of SARS-CoV-2 epidemic. This article aims to determine whether it is permissible to apply the foregoing clause in order to mitigate the effects of the pandemic that may affect a party to contractual relationships and also in relation to which contracts the foregoing clause shall be applicable. The authors analyse, under what circumstances it shall be possible to apply to a court the amount of performance or with a motion to terminate a contract. Attention was drawn to the necessity to have a narrow interpretation of the norm set forth in Art. 357(1) of the Civil Code. An opinion has been presented in this article that the effectiveness of <em>rebus sic stantibus </em>clause may be affected by an admissibility to formulate a claim in pursuance of Art. 357(1) of the Civil Code. of law with a motion to determine a manner of performing anobligation, with a motion to change the amount of performance or with a motion to terminate a contract. Attention was drawn to the necessity to have a narrow interpretation of the norm set forth in Art. 357(1) of the Civil Code. An opinion has been presented in this article that the effectiveness of <em>rebus sic stantibus </em>clause may be affected by an admissibility to formulate a claim in pursuance of Art. 357(1) of the Civil Code.</p> Michalina Barylska Magdalena Deka Copyright (c) 2021 2021-12-30 2021-12-30 97 143 156 10.18778/0208-6069.97.08 On certain similarities and a fundamental difference in the interpretation of legal and literary texts <p>The aim of the article is to show that at a certain level of interpretation, both legal texts and literary texts are non-intrinsic – for the purposes of this kind of approximation of the perspective of the analysis of legal and literary texts, I use respectively elements of derivative theory for legal texts and elements of the theory of Susan Sontag and Eric Donald Hirsch for literary texts. Ascribing the feature of non-intrinsicality to legal and literary texts forces one to look at possible “extra-textual sources” allowing for the reconstruction of the meaning of these two types of texts. However, the fundamental difference that determines the possibilities of interpreting legal and literary texts must not be overlooked – the interpretation of legal texts is aimed at unifying their meanings, and the interpretation of literary texts (especially in the spirit of “interpretive anarchism”) may be aimed at multiplying the interpreted meanings.</p> Jędrzej Janicki Copyright (c) 2021 2021-12-30 2021-12-30 97 157 168 10.18778/0208-6069.97.09 The problem of the subjective side of the crime of killing and abusing animals under the act of august 21, 1997 on the protection of animals <p>The aim of the article is to discuss the crimes of killing and abusing animals set out in the Animal Protection Act. The characteristics of the subjective side of the analyzed acts were analyzed. Attention was drawn to the problem related in particular to the subject of the crime of animal abuse. The positions of the representatives of the criminal law doctrine and views appearing in the jurisprudence, especially of the Supreme Court, were presented.</p> Anna Fijałkowska Copyright (c) 2021 2021-12-30 2021-12-30 97 169 181 10.18778/0208-6069.97.10 The importance of the philosophy of law in judicial decision – considerations based on the philosophy of Gustav Radbruch <p>This article aims to discuss the influence that personal views on philosophy of law held by individual judges exerts on their judicial decisions in a connection with philosophy of Gustav Radbruch. Commonly, the subconscious philosophical position held by the judge towards the law determines the statutory interpretation and, thus, the final decision. Through the juxtaposition of Gustav Radbruch’s and Hans Kelsen’s schools of thinking, it is proven that philosophical outlook of the judges is very much relevant for the process of making judicial decisions. Lon Fuller’s notorious article “The Case of Speluncean Explorers” is used to illustrate the problem and demonstrate the causality between accepting the positivistic paradigm and the preference for formalistic interpretation of the law and, conversely, between the adherence to legal realism or naturalism and the preference for antiformalistic interpretation. Therefore, two key issues are introduced to prove the significance of philosophy of law for judicial decisions: the developments in philosophical and legal thought under the influence of law held by particular judges. historical events and the relationship between statutory interpretation and views on philosophy of law held by particular judges. historical events and the relationship between statutory interpretation and views on philosophy of</p> Agata Dąbrowska Copyright (c) 2021 2021-12-30 2021-12-30 97 183 198 10.18778/0208-6069.97.11 Administrativisation of punishment <p> The article describes the phenomenon of “administrativisation” of punishment. The legislator, when regulating an area of social relations, frequently chooses administrative monetary penalties instead of other instruments of repressive law, such as creating a crime or a petty offence. In particular the reasons for such a decision were analysed. On the basis of statutes adopted during last few years the character of the administrative monetary penalties was described. The possible directions of development of administrative liability in the context of system of law were also indicated.</p> Emil Śliwiński Copyright (c) 2021 2021-12-30 2021-12-30 97 199 224 10.18778/0208-6069.97.12 Predictive analytics in crime prevention and the European Convention on Human Rights: tackling risks in privacy and fair trial frameworks <p>In this paper, I discuss whether the European Convention on Human Rights provides safeguards to individuals affected by predictive analytics in crime prevention. I start with depicting a conceptual issue that worries legal scholars – the trend of law-enforcement authorities to increase their attention to crime prevention rather than traditional criminal investigations. Then, I dive into the right to privacy case-law of the European Court of Human Rights looking for the Court’s references to the threats of data processing. Lastly, I select concrete cases of the European Court of Human Rights on the right to a fair trial to show that the human rights safeguards are not yet developed to frame predictive analytics in crime prevention.</p> Donatas Murauskas Copyright (c) 2021 2021-12-30 2021-12-30 97 225 250 10.18778/0208-6069.97.13 Three levels of conclusiveness of legal argumentation <p>Article presents three analytical perspectives of the problem of closing legal argumentation against the background of the central interpretative assumptions of two leading Polish theories of interpretation, i.e. the clarificative and derivational concept. Author presents thesis that the ability of operative interpretation to regulate social relations is, inter alia, the resultant of conclusiveness of a given interpretative paradigm and the cultural context in which it is embedded. Regardless of the validation of the result of interpretation in the legal discourse, i.e. in the environment of professionals, it is possible that the directives of interpretation, which constitute a cultural artifact, are not fully compatible with the ideological and axiological assumptions of the legal and political culture of a given society, constituting a counter-productive element of that culture.</p> <p>&nbsp;</p> Tomasz Grzybowski Copyright (c) 2021 2021-12-30 2021-12-30 97 251 262 10.18778/0208-6069.97.14 Some remarks on change and innovation in ancient Near Eastern customary law <p>The article presents the ways customary law could be gradually changed in the ancient Near East. They included working with existing institutions while modifying their consequences as well as their scope of application with tools such as legal fiction. However, the conservative nature of the ancient oriental culture, as well as that of the scribal education made any sudden, radical modification impossible, and even if a new contract type was created, it would keep the pretense of following a long-established practice.</p> Lena Fijałkowska Copyright (c) 2021 2021-12-30 2021-12-30 97 263 277 10.18778/0208-6069.97.15 The optimization of the basis for the social insurance contribution rates for individuals operating a business enterprise on their own pursuant to provisions applicable to business activities <p>The article presents methods of optimizing the basis for the social insurance contribution rates for individuals operating a business enterprise on their own pursuant to provisions applicable to business activities. The consequences of applying optimization are also analyzed, both from the point of view of the insured person, the income of the Social Insurance Fund and the impact of optimization on the labor market. A person starting a non-agricultural business activity may pay lower contributions for up to sixty-six months. Such a long period of preference applied by the legislator causes short-term benefits in the form of lower operating costs, but in the future it will lower the level of pension and disability benefits.</p> Marcin Krajewski Copyright (c) 2021 2021-12-30 2021-12-30 97 279 295 10.18778/0208-6069.97.16