Review of European and Comparative Law, 2021, Vol. 47, No 4

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https://hdl.handle.net/20.500.12153/2204

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    Gloss to the Resolution of the Supreme Court of 26 February 2021, III CZP 24/20 [on the Interpretation of the Will]
    (Wydawnictwo KUL, 2021) Zdanikowski, Paweł Marcin
    The resolution with gloss concerns the rules for interpreting a will. The Supreme Court stated in it that an interpretation of a will should be performed taking into account all circumstances, including those external to the will, and using all means of evidence. The Supreme Court decided that it is the court adjudicating in the case for inheritance acquisition, assessing the evidence gathered in a specific case, that should assess whether it is actually possible to establish the will of the testator. The author of the gloss accepts the thesis of the resolution, but argues with the position of the Supreme Court contained in its justification that only the rules for evidence assessment constitute an instrument allowing one to establish the testator’s will. In the opinion of the author of the gloss, the functional interpretation of Art. 948 of the Polish Civil Code (k.c.) indicates limits to the interpretation of the will. After all, this is a process that renders it possible to determine the testator’s will in a manner that does not raise any doubts. Therefore, if the interpretation of the will of such fails to secure such a degree of certainty, even despite a positive assessment of the evidence gathered in the case, the court should state that the inheritance has been acquired under the Act.
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    Solvency Test in Polish Simple Joint-Stock Company: A Review and Comparative Analysis
    (Wydawnictwo KUL, 2021) Herbet, Andrzej; Wielgat, Natalia
    The subject of the article is a comparative analysis of the solvency test - a legal instrument that conditions causa societatis payments for limited liability companies upon ascertaining their impact on its future liquidity (ability to pay debts as they come due), which has recently been incorporated into the Polish legal system with reference to a simple joint-stock company (pol. Prosta Spółka Akcyjna) (Article 30015 § 5 of Polish Commercial Companies Code). Considering that the solvency test originated in common law, the comparative analysis of the instrument in question was set against the background of selected foreign legal systems, i.e., the law of New Zealand, United States and the United Kingdom, where the solvency test is shaped much differently than the polish one.
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    The Control of the Constitutionality of European Union Law by Means of Constitutional Complaints
    (Wydawnictwo KUL, 2021) Grądzka, Ilona
    The subject of this article is the institution of the constitutional complaint, which is analysed in connection with European integration. It should be noted that Poland’s membership of the European Union has had a great influence, not only on the system of national law, but also on the jurisprudence of the Polish Constitutional Tribunal; therefore considerations are carried out here mainly in relation to the Constitutional Tribunal. In examining the issue of the constitutional complaint, the following assumptions may be stated. First, the constitutional-complaint procedure, is in fact, the examination of the compliance of legal norms with the Constitution, any deviation being related to the entities initiating proceedings before the Constitutional Tribunal, Article 191(1)(6), of the Constitution, and to the material scope of the complaint, as determined in Article 79 of the Constitution. Second, there is no doubt that the constitutional complaint can become an important legal instrument shaping the jurisprudence of the Polish Constitutional Tribunal, which has to face constitutional issues related to European integration. Following the example of the practice of other Member States, e.g. Germany, the Tribunal may use the institution of the constitutional complaint as a means of controlling the compliance of the secondary law of the European Union with the Constitution of the Republic of Poland.
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    Medieval Canon Lawyers and European Legal Tradition. A Brief Overview
    (Wydawnictwo KUL, 2021) Giaro, Tomasz
    The Roman Church was a leading public institution of the Middle Ages and its law, canon law, belonged to the most powerful factors of European legal history. Today’s lawyers have hardly any awareness of the canonist origins of several current legal institutions. Together with Roman law, canon law constituted the system of “both laws” (utrumque ius) which were the only laws acknowledged as “learned” and, consequently, taught at medieval universities. The dualism of secular (imperium) and spiritual power (sacerdotium), symbolized by the so-called two swords doctrine, conferred to the Western legal tradition its balance and stability. We analyze the most important institutional achievements of the medieval canon lawyers: acquisitive prescription, the Roman-canonical procedure, the theory of just war, marriage and family law, freedom of contract, the inheritance under will, juristic personality, some institutions of constitutional law, in particular those based on the concept of representation, and finally commercial law. Last not least, the applicability of canon law defined the territorial extension of medieval and early modern Christian civilization which exceeded by far the borders of the Holy Roman Empire, where Roman law was effective as the law of the ruler. Hence, the first scholar to associate Roman law with (continental) Europe as a relatively homogeneous legal area, Paul Koschaker, committed in his monograph Europa und das römische Recht, published in 1947, the error of taking a part for the whole. In fact, Western legal tradition was based, in its entirety, not on Roman, but rather on canon law; embracing the common law of England, it represented – to cite Harold Joseph Berman – the first great “transnational legal culture”. At the end, some structural features of canon law are discussed, such as the frequent use of soft-law instruments and the respect for tradition, clearly visible in the approach to the problem of codification.
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    Death in Times of SARS-CoV-2 Pandemic. Legal Regulations of the Burial of the COVID-19 Deceased in Poland
    (Wydawnictwo KUL, 2021) Szczot, Elżbieta
    The article discusses the issues of death in times of the SARS-CoV-2 pandemic and burial of the COVID-19 deceased. It also presents some currently binding legal regulations as well as restrictions and obligations for the organizers of the funeral connected with the infection of the deceased with COVID-19. Moreover, it shows the influence of state law on funeral regulations in the denominational form and the cult of memory of the dead.