Język:
PL
| Data publikacji:
22-03-2023
|
Abstrakt
| s. 5-28
The law applicable to marriage between Polish and Ukrainian nationals is set out in the 1993 Convention between the Republic of Poland and Ukraine concerning legal aid. The Convention stipulates that that a marriage can be contracted if the prerequisites provided for in the prospective spouses’ national laws are satisfied - determined separately for each of them. The Convention concerns only marriages between Polish and Ukrainian citizens and does not apply to stateless persons. The form of marriage is governed by the law of the State where the marriage was celebrated. The article discusses some issues concerning the prerequisites and scope of application of these regulations, taking into account the differences between the Polish and Ukrainian family law. These differences concern mainly the form of marriage (Ukrainian law does not provide for a religious form and does not allow the marriage by proxy) and some obstacles to marriage (in Ukrainian law the invalidity of marriage results, inter alia, if the marriage in question constitutes a sham or if there occurred a misrepresentation as to the health of a prospective spouse). The reader’s attention is also drawn to a specific ordre public exception contained in Article 58, paragraph 1 of the Ukrainian Law on Private International Law, according to which a marriage between a Ukrainian national and a foreigner concluded under foreign law outside the territory of Ukraine is valid in Ukraine provided that the Ukrainian national complies with the provisions of the Family Code of Ukraine concerning the grounds invalidating the marriage. However, this provision should not be applied if Polish law applies on the basis of the provisions of the Convention. The paper also touches upon the Ukrainian law to the extent it contains a residual regulation concerning engagement. Under this regulation, the person who refuses to marry despite an earlier engagement must reimburse the other party for the costs incurred in connection with the preparation for the registration of the marriage and the wedding. The study also draws attention to some practical aspects of marriage conclusion - in Poland by a Ukrainian citizen (Ukrainian law does not provide for the possibility of issuing a certificate of capacity to marry) and in Ukraine by a Polish citizen.
Język:
PL
| Data publikacji:
20-03-2023
|
Abstrakt
| s. 29-48
Mass inflow of Ukrainian citizens into Poland gives rise to many legal issues, including conflict-of-law questions about rights in rem held by such persons both in respect of property left in Ukraine and property brought to Poland. In the context of the prolonged stay of such persons in Poland, one crucial task may be, for example, to establish the law applicable to the disposal of their property brought to Poland under legal acts made in Poland. The Agreement between the Republic of Poland and Ukraine on legal aid and legal relationships in civil and criminal matters, done at Kiev on 24 May 1993, applicable in Polish-Ukrainian relations, devotes several provisions to those questions. However, the Agreement ignores the question of the law applicable to property law relationships having movable items as their objects. In particular, it does not designate the law applicable to contracts transferring the ownership of movable assets and contracts encumbering such assets with limited rights in rem. The relevant norms in this regard are conflict-of-law rules of the Polish Act of 04 February 2011 — Private International Law, and of the Ukrainian confl ict-of-law Act of 23 June 2005, designating the law applicable to property. Accordingly, as long as movable items are located in Poland, Polish law will apply with regard to the respective property law relationships. This is provided for in Article 41 (1) of the Private International Law Act. However, Polish law will not apply to obligational and property rights having as their object immovable properties located in Ukraine, which is covered by Article 32 of the Agreement of 24 May 1993. In this regard, Ukrainian law is exclusively applicable. Under Article 41 (2) of the Private International Law Act, in the assessment of legal relationships relating to a movable property brought to Poland from Ukraine, one should also consider legal events taking place when the asset in question was still in Ukraine. However, the assessment of legal events having an impact on property law relationships taking place in Poland and relating to movable items brought back to Ukraine will be based on the Ukrainian law.
Język:
PL
| Data publikacji:
11-04-2023
|
Abstrakt
| s. 49-94
The conflict-of-laws rules laid down in an international agreement binding Poland and a non-Member State enjoy priority over rules of national origin (where a situation does not fall within the scope of EU conflict-of-laws rules), as well as over EU private international law rules (on the basis of the clauses provided for in the EU Regulations), yet in both cases exclusively in scenarios falling within their own scope of application. With regard to conflict-of-laws rules of a bilateral international agreement, such as those provided for in Article 35 of the Agreement of 1993, the characterization has to be carried out independently from the understanding of specific concepts that may be inferred from national substantive law or from private international law, be it of domestic or EU origin. As to the determination of the “material scope” of such conflict-of-laws rules, the textual interpretation of a bilateral agreement in question should play crucial role. Although the conflict-of-laws rules of such agreements generally call for characterization of the legal institutions established by the legal order of one of the two Contracting States, the comparative study limited to those two legal orders can merely serve as guidance when it comes to the determination of the “material scope” of those conflict-of-laws rules. While it is difficult to formulate generalizable conclusions concerning the “spatial reach” of the conflict-of-laws rules provided for in a bilateral agreement, it can be argued that — in the course of a dispute before a court — the law designed as applicable under Article 35 (1) of the Agreement of 1993 applies to the assessment of tort liability originating in an event that occurred on the territory of Poland or Ukraine, if the individuals involved in the tort have their domicile (seat) on the territory of Poland or Ukraine, and — although this is highly debatable — insofar as they have the nationality of one of these States, provided that all the above-mentioned elements do not link the situation underlying that dispute exclusively with only one of those States.
Język:
PL
| Data publikacji:
29-05-2023
|
Abstrakt
| s. 95-122
The Yugoslav Act of 1982 on resolving conflict of laws with regulations of other countries is still in force in the Republic of Serbia. The law drafted over 40 years ago was considered as innovative at the time of its adoption. At present, the Serbian academic community signals the need to update the current provisions of private international law, both in the spirit of approximation with the law of the European Union and in the need to better embed this law in the present legal order of the Republic of Serbia. The draft of a new act on private international law, prepared in 2014, was not adopted yet, although it was not formally rejected as such in Serbian legislative procedures (as of April 13, 2023) either. Though not formally binding, the draft law has been cited in recent years in the Serbian law journals, being an important point of reference for considerations on questions related to private international law in Serbia. It must be admitted that the progressive Serbian academic community turned out to be an active inspirer, creator and is now also a tireless advocate of changes in the field of private international law in Serbia. Serbia, which has been an EU candidate since 2013, has no particular obligation to introduce specific solutions in the field of private international law into its national law neither before nor after accession. EU law in the field of private international law is contained in regulations that will be automatically and directly applicable in Serbia when it becomes a member of the European Union. This is a dilemma whether to adopt the provisions which, in principle, will have to be repealed after the accession. At the same time, there are several benefits of approximating the law before the accession, including accustoming legal practitioners in Serbia to apply solutions similar to those in the EU, and increasing legal certainty by applying similar solutions of private international law in transactions between entities from Serbia and the European Union (regardless of the accession prospects). The author describes and summarizes the current state of regulations in Serbian private international law and analyses the main changes proposed in the draft law of 2014. The article also presents agreements binding Serbia in the field of private international law, including the still binding 1960 Polish-Serbian agreement.
Język:
PL
| Data publikacji:
24-06-2023
|
Abstrakt
| s. 123-149
Artykuł naukowy koncentruje się na odpowiedzi na pytanie, czy następcy prawni pierwotnego użytkownika dóbr cyfrowych mogą wejść po jego śmierci w stosunek prawny łączący go z dostawcami tych dóbr. W pierwszej kolejności należało podjąć próbę zdefiniowania pojęcia dóbr cyfrowych i dokonać ich odpowiedniej kwalifikacji prawnej, a także zastanowić się nad materialną oraz niematerialną wartością tych dóbr. Niezbędne było także wskazanie obecnie najpowszechniej stosowanych sposobów radzenia sobie z losem dóbr cyfrowych, które pozostawił w przestrzeni wirtualnej po swojej śmierci ich pierwotny użytkownik, a także poczynienie rozważań z zakresu jurysdykcji i prawa prywatnego międzynarodowego w aspekcie statutu umownego i prawa spadkowego. Ponadto w opracowaniu zostały wzięte pod uwagę, podnoszone w piśmiennictwie, kwestie dotyczące prywatności post mortem, ochrony danych osobowych i zapewnienia stosownej ochrony pozostawionym dobrom cyfrowym na gruncie prawa własności intelektualnej, które stanowią swego rodzaju przeszkody w dopuszczeniu do prostego następstwa prawnego dóbr cyfrowych post mortem. Jako podsumowanie pochylono się również nad obowiązującymi aktualnie w wybranych państwach na świecie rozwiązaniami prawnymi, które stały się następnie podbudową pod sformułowanie postulatów de lege ferenda.
Język:
PL
| Data publikacji:
13-06-2023
|
Abstrakt
| s. 151-163
The author aims to present the possibilities of helping Ukrainian citizens from the practical side, as based on author’s own professional experience. To that effect, the paper considers various legal issues faced daily by Ukrainians who came to Poland after the outbreak of the war in Ukraine. The purpose of the article is also to study the changes in Polish legislation that were introduced to simplify the possibility of regulating the legal situation of Ukrainian citizens residing in Poland. The work touches upon the issue of legalizing the stay of Ukrainians on the territory of the Republic of Poland, the care and guardianship of minor children coming from Ukraine, the transfer of economic activity from Ukraine to Poland, as well as the issue of marriage conclusion by Ukrainians in Poland.