Malawi Birth Certificate Registration
Malawi is a landlocked country in East Africa. It borders with Tanzania, Mozambique and Zambia. It has a population of 19 million.
Recently, the Law Firm has had the opportunity to pursue a case for registration of a birth certificate from this country at the Registry Office. The document was prepared in English, so for the purposes of its registration it was necessary to order a sworn translation into Polish. The stamp duty for registering a foreign birth certificate is PLN 50.
Documents from "exotic" countries are often unknown to officials of Polish registry offices, therefore their prior legalization is required. It is most often done by obtaining an apostille stamp on a document in the country of origin of the document. If a given country has not signed the Hague Convention of 1961 on the abolition of the requirement of legalization of foreign official documents, it will be necessary to obtain legalization of the document at a Polish diplomatic mission abroad. Malawi has signed the Hague Convention so an apostille can be obtained for Malawi documents.
The Malawi birth certificate registration procedure was successful and the Registry Office prepared a Polish birth certificate for our client.
Effective defense against insults and defamation
Offenses of defamation and insult (Articles 212 and 216 of the Criminal Code) are prosecuted by private prosecution, so it is the aggrieved party, not the prosecutor, who submits and supports the indictment. The lawyers of the Law Firm, acting on behalf of the aggrieved party, managed to convict the client for insult and defamation. A successful young Warsaw businessman found himself in an embarrassing situation when the accused began to direct insults and false accusations against him - by calling his company, coming to the office and sending text messages. The decisive actions of the lawyers before the court led to the conviction and punishment of the guilty, who is additionally obliged to reimburse the victim for the costs of representation.
We have recovered over 30,000 for our client zlotys
Our client provided services to the Developer. Unfortunately, he did not receive the payment due to him. The law firm has prepared and filed a claim for payment to the court. The entire amount sought, including interest, court and attorney fees, was awarded to our client in the order for payment
Unfortunately, there was a problem with the recovery of receivables at the execution stage. It turned out that the debtor (limited liability company) did not have any assets, and its management board was abroad. However, we checked the condition of the land and mortgage registers and it turned out that although the debtor had sold his real estate, it was stated in the sale contract that he had not yet received payment for it. With this knowledge at his disposal, the bailiff could seize the receivables from the sale of real estate by the debtor. Ultimately, this led to our client getting their money back.
Successful negotiation on inheritance.
After the testator's death, it turned out that there were no funds on his bank account. The culprit of this state of affairs was the bank account attorney who, shortly before the death of his principal, paid himself all his savings. The money was taken over without any legal basis (so-called causy), e.g. donation or loan agreements. This means that they were the so-called undue benefit and as such should be returned to the heirs. Fortunately, a lawsuit for the release of the inheritance money was avoided. The law firm sent a request for payment and the subsequent negotiations led to the signing of the agreement and recovery of the money.
Discontinuation of preparatory proceedings
Pursuant to the provisions of the Criminal Code, a person who, at the time of acting, could not direct his / her conduct or understand its significance, does not commit a crime. Thanks to the intervention of lawyers from our law firm, we were able to discontinue the proceedings in our client's case based on this regulation. He found himself in a very difficult situation when, as a result of the drugs administered to him in the hospital, he became agitated and aggressive, which resulted in hitting one of the doctors. Our client did not remember the whole situation and was convinced that if it were not for the drugs, nothing like this would have happened. Nevertheless, the prosecutor's office decided to indict him against him. It was only after the defense lawyer's intervention that the case was transferred to the Public Prosecutor's Office to complete the preparatory proceedings, and then discontinued.
We use consensual procedures in criminal proceedings
Criminal law is one of the basic areas that our law office deals with. In recent weeks, we have managed to complete proceedings in a number of cases with the use of consensual procedures - a motion for a conviction without a trial and a motion for voluntary submission to a penalty (Articles 335 and 387 of the Code of Criminal Procedure, respectively). Thanks to efficient negotiations with the prosecutors in charge of the case and appropriate preparation of clients, we were able to obtain fines favorable to our clients, and to make the proceedings end much faster than it would have been in the case of full court proceedings.
Consensual procedures are often a very beneficial solution for suspects and accused persons, used especially in obvious cases - thanks to reaching an agreement with the Prosecutor or the Court in charge of the case, it is possible to agree on the amount of the penalty and the applicable penal measures, which on the one hand will be adequate to the committed crime, and on the other hand acceptable to the perpetrator.
The coronavirus pandemic affects all areas of our life - it has also affected higher education. For several weeks, the media interested in the topic have been warming up the idea of a group of extramural students of the University of Warsaw - they want to demand a reduction in tuition fees in connection with the introduction of remote classes in place of traditional exercises and lectures. Our lawyer, attorney-at-law Piotr Modzelewski, had the opportunity to comment on this subject from the position of an expert: www.eska.pl
The team of our law firm has achieved another success - the Warsaw court has fully admitted the claim for the delivery of a movable property (a car belonging to him) submitted by us on behalf of our client. At the same time, it dismissed the counterclaim filed by the other party in its entirety. What is additionally important, the judgment was made immediately enforceable.
Effective defense in a criminal case
Thanks to the help of our team, it was possible to legally acquit our client of the allegation under Art. 286 § 1 of the Criminal Code. A young woman was accused, along with another person, of fraud in having a car repaired and then driving it from the garage without paying for the service. However, the whole situation turned out to be a misunderstanding - its clarification required an in-depth analysis of the case and effective argumentation before the court.
The amendment to the Criminal Code, which entered into force on March 31, 2020.
The amendment to the Criminal Code, which entered into force on March 31, 2020, increased the threat of punishment in the case of two crimes - art. 161 and art. 190a of the Criminal Code. In the case of the first of them, concerning the risk of infecting another person with an infectious disease, the context seems understandable - this regulation came into force during the coronavirus epidemic. More surprising is the change in the second law dealing with persistent harassment, also known as stalking. It is worth noting that increasing the penalty that can be imposed has far-reaching consequences - including the possibility of conditional discontinuation of the procedure under Art. 190a par. 1 of the Penal Code, and in the case of cases under Art. 161 par. 2 of the Criminal Code, pre-trial detention may be applied
Defense of a professional soldier in WIELKOPOLSKA
Help from a lawyer is valid from the first moments of criminal proceedings. The efficient intervention of our team in the case of a professional soldier in Wielkopolska voivodship convinced the court that it is not necessary to apply temporary detention to him. We treat this situation as the greater success because two other co-suspects in this case have been isolated for 3 months. The order regarding our client was also upheld by the court of second instance.
Help for disciplinary dismissal
Thanks to our help, we managed to quickly end the case of a computer service worker dismissed from work for alleged theft of equipment. In view of the vision of a lengthy lawsuit, we and the client decided to resolve the dispute by negotiation. The parties managed to reach a happy agreement, which allowed our client to obtain the expected compensation and a corrected employment certificate.
The amount of the deposit in the sales contract
In most cases, the down payment is a small part of the cash benefit to be met by the obligated party. It is often 10% of the total amount. The amount of the deposit may, however, be shaped differently by the parties to the contract. The Supreme Court decided that it could constitute even more than half of the main benefit.
The Supreme Court considered the possibility of reserving such a high down payment in the judgment of 31 May 2019. In the cited case (IV CSK 163/18) the plaintiff paid 110,000 thousand. PLN down payment, while the entire property she wanted to buy cost PLN 188,000 zł. The parties agreed that in the event of non-performance of the contract by the buyer, the seller is entitled to retain the down payment of PLN 110,000, while in the event of the non-performance of the contract by the seller, the buyer may demand from it a sum representing twice the down payment, i.e. PLN 220,000. The contract was ultimately not the fault of the buyer, so it lost a high down payment.
Pursuant to art. 394 § 1 of the Civil Code, the down payment given at the conclusion of the contract means that if the contract is not performed by one of the parties, the other party may, without setting an additional deadline, withdraw from the contract and keep the down payment, and if it has given it, it may request the sum twice higher. This situation takes effect in the absence of a different custom or reservation in the contract. The purpose of the deposit is considered to be to strengthen the bond of commitment between the parties. It is to perform a mobilizing, disciplinary and protective function.
The Supreme Court emphasized that a high amount of deposit does not change its legal nature and the effects it produces. It is up to the parties to determine the amount of the deposit, even if its relation to the whole amount is significant.
In the case under consideration, the down payment set by the parties and paid by the claimant exceeded half of the agreed price of the flat. According to the Supreme Court, this did not conflict with the rules limiting the freedom of contracting or the essence of a down payment.
Settlement of a long-standing dispute
The proceedings for payment were pending at the Warsaw Commercial Court between the company and its partner. Aware of the amount of evidence that remains to be taken and the very long waiting times for an appeal to be heard in Warsaw, we decided to convince our clients and the representative of the opposing party to negotiate. The result of long talks was the development of an agreement and settlement, which enabled the company to recover part of its receivables and the partner to sell shares on favorable terms.
Nursing homes and senior homes and their responsibility in connection with the COVID-19 epidemic
Due to the prevailing COVID-19 epidemic, neglections and violations occur in many senior and nursing homes (hereinafter DPS), which may result in the exposure of the charges to danger, and even their infection or finally abandonment without help and care. In such situations, homeowners and their families may require DPS to assume civil and sometimes even criminal liability.
People in the center where the infection occurred may contact the Patient Ombudsman, who launched a special telephone line for this purpose (800 190 590). Soldiers of Territorial Defense Forces also help the charges of DPS in which outbreaks have been identified.
If, as a result of negligence of the DPS staff, the mentee has suffered damage (falls ill), a civil suit can be filed against the DPS, demanding reimbursement of costs incurred (including treatment) and compensation - compensation for mental suffering (e.g. fear, uncertainty and a sense of powerlessness caused by illness or leaving the resident without help).
If the home ward dies - his family may demand reimbursement of medical expenses incurred by DPS and compensation for suffering related to the death of a loved one.
Even if the mentee does not get sick or the disease is mild, it is possible to sue DPS. This applies to situations in which the Nursing Home unlawfully violates the personal rights of the mentee - min. his freedom, dignity or honor.
In principle, the DPS's liability will depend on whether or not the house employee was actually at fault in the given situation. The guilt may also consist in violating the rules of behavior (not using appropriate hygiene and preventive measures). Depending on the case, the grounds for liability and the outcome of the case may vary.
In some cases, the behavior of DPS employees may be so grossly inappropriate that it will constitute a criminal offense. A criminal act is exposing a person to the direct danger of losing life or serious damage to health (even unintentionally) as well as exposing another person to a real life-threatening disease (in this case the person must know that he is sick and act with premeditation - want to expose charges in danger) and abandoning the sick despite the obligation to look after them.
In each of these cases, you should report the crime to the police or prosecutor's office. In the course of criminal proceedings, damages and redress can be claimed, provided that the accused is found guilty.
Mandates during an epidemic
In the light of recent reports related to the controversial activities of the Police, imposing fines for various types of alleged violations of the provisions on the conduct of quarantine and the so-called social distancing, we remind you that the mandate proceedings under the law of offenses are not absolute. In a situation in which an officer proposes to impose a fine in the form of a fine, we believe that the offense accused of us did not take place, the best (and at the same time the simplest) action is to refuse to accept the ticket. As a result, the proposed penalty is not imposed, and the case must (together with the request for punishment) be sent to court. It is in court proceedings that we have the best chance to present our arguments and defend our interests. However, it is worth remembering two things - first, if we accept the mandate, in practice we lose the possibility of going to court or withdrawing this statement - the penalty proposed by the officer was imposed, and we have the obligation to pay it. Secondly, in practice the penalties imposed in the form of fines are often (especially in typical, obvious situations) much lower than those used by the courts - remember that the maximum amount of the fine is, in principle, PLN 500, and the court can punish us a fine of up to PLN 5,000, restriction or even imprisonment for up to 30 days, we will also have to cover the costs of the proceedings. You must defend your business, but you must do it wisely. Our law office also provides legal assistance in cases of misdemeanors - judicial proceedings after filing an application for punishment, the accused may have a defense counsel.
The case of the dismissed teacher won
After more than 3 years of litigation in two instances, the lawyers of our office managed to successfully end the case of a teacher unlawfully dismissed from work. The problem was nuanced because there were doubts both about the existence of circumstances justifying the termination of the employment contract with any teacher of a particular specialization, and about the procedure for selecting our client for dismissal. During the proceedings, serious doubts also emerged as to the correctness of the consultation on the intention to terminate the contract with trade unions. Despite the unfavorable judgment before the court of first instance, our appeal was upheld.
Criminal liability and coronavirus infection
Art. 161 par. 2 of the Criminal Code provides for liability up to one year imprisonment for exposing another person (or persons) to contracting an infectious disease. There is no doubt that it also applies to people infected with coronavirus. It is worth remembering this especially in the light of the provisions of the Act on preventing and combating infections and infectious diseases in humans, the Regulation of the Minister of Health on the announcement of an epidemic emergency in the territory of the Republic of Poland and other related provisions on the mandatory quarantine for persons returning from abroad. Our law office offers legal assistance in all matters (including criminal matters) related to the current situation.
Coronavirus - legal advice
Due to the dynamic situation related to subsequent disclosed cases of COVID-19 infection in Poland and measures taken by public authorities to prevent its spread, a lot of information is also penetrating public information regarding the legal aspects of this situation. Unfortunately, many of them are imprecise or even untrue. Our law office offers advice on all legal issues related to the control of infectious diseases, dedicated to both entrepreneurs and private individuals.
Registration of foreign adoption at the registry office
The Law Firm successfully registered foreign adoption at the registry office.
The facts were as follows. The mother of the child immigrated to the USA with a child. There was an adoption trial before an Oregon court. The child's father agreed to be adopted and the child was adopted by his mother's husband - a US citizen. The child took the mother's husband's surname. The American court's ruling became final.
In Poland, however, the child's biological father was still included as the father in the child's birth certificate, and the child's mother's husband did not have any rights to the child. The child was also found in the registers under the previous name. The idea was to enter the mother's husband as the child's father in the register of marital status. This could be done in two ways - either a new child's birth certificate should be entered with the mother's husband as a father, or mentioned in the child's existing birth certificate. Because the US court ruling did not specify exactly how the case was to be resolved, the second solution was adopted and a mention was made of the change of name and new father. From now on, the abridged copies of the child's birth certificate include only the mother's husband as the child's father and the child bears his surname. All child documents will now also be issued in the child's new name.
Win before the Provincial Administrative Court - a special allowance for a professional soldier
The Law Firm's team won another proceeding before the Provincial Administrative Court. This time the case concerned a special allowance due to a professional soldier in relation to the position he held and the nature of the service. It was significantly reduced, and the justification for the decision was very laconic and did not allow to determine what the authority was guided by when issuing it. The Provincial Administrative Court in Warsaw decided that this constitutes such a significant disadvantage of the order under appeal that it should be repealed.
Positive conclusion - driving under the influence of alcohol
Our team has led to another successful discontinuation of criminal proceedings against our client - a professional soldier. He was suspected of causing a traffic collision while driving under the influence of alcohol. The evidence, however, was far from unambiguous, primarily due to the fact that the first breathalyser test only took a few hours from the moment of the incident. Hearing of the suspect and numerous witnesses (each of whom confirmed the sobriety of the driver at the time of getting into the car), and a critical analysis of the retrospective opinion of an expert toxicologist enabled the conviction of the Military Police and Prosecutor's Office that it was impossible to clearly determine the state in which the vehicle was . Therefore, the only possible conclusion was that his behavior was not a criminal offense.
Lawyer Piotr Modzelewski
A positive decision to restore Polish citizenship
After several months of administrative proceedings, the Minister of the Interior and Administration restored Polish citizenship to our client.
Aniela D. (name and surname changed) was born in 1951 in Poland, in Upper Silesia. After finishing education and getting married to a citizen of the Federal Republic of Germany, she left for Germany, where she lives until today. At the time, German law did not allow dual citizenship, which is why Aniela D., to obtain German citizenship, renounced Polish citizenship in 1993. Currently, the regulations allow for having other citizenship alongside German citizenship, which is why the Law Firm, acting on behalf of Aniela D., applied to restore her Polish citizenship. By decision of December 10, 2019, the Minister of the Interior and Administration restored Polish citizenship to Aniela D. Since then, she has two citizenships - Polish and German.
Pursuant to the Polish Citizenship Act of 2009, persons who lost Polish citizenship before 1 January 1999 may be restored to Polish citizenship. Polish citizenship is not restored if someone voluntarily joined the army of the Axis States or their allies between September 1, 1939 and May 8, 1945, or took public office between September 1, 1939 and May 8, 1945. in the service of the Axis States or their allies, or acted to the detriment of Poland, in particular its independence and sovereignty, or participated in violations of human rights. In addition, Polish citizenship is not restored if it constitutes a threat to national defense or security or the protection of public safety and order.
This is one of many cases conducted in our Chancellery regarding the restoration of Polish citizenship and successful.
Attorney Piotr Stączek
Favorable tax changes for heirs
The interpretation of the National Tax Information (No. 0112-KDIL3-2.4011.292.2019.1.MKA) confirmed that in accordance with art. 10 paragraph 5 of the PIT Act from January 1, 2019, the 5-year period from the purchase of real estate, after which you do not have to pay income tax, counts on the purchase of the real estate by the testator, not from his death as it was before.
In addition, it was confirmed that even if the tax must be paid, the income can be reduced by the inherited debts paid (Article 22 (6d) of the PIT Act). Inheritance burdens are understood as the inheritance debts paid by the taxpayer, reserved claims for legacy and ordinary records and orders made, also in the case where the taxpayer has paid inheritance debts, satisfied claims for a legacy or executed ordinary records and orders after a paid sale.
Divisibility of claims after opening the inheritance.
The Supreme Court stated in a judgment of 9 May 2019 (I CSK 198/18) that the claim ceases to be divisible upon entry into inheritance and the heir cannot claim his share. It may turn out that even if a given person is an heir (which is confirmed in the confirmation of the inheritance purchase or confirmation of inheritance), it may turn out that as a result of the division of the inheritance they will not be given the given claim. It may even happen that a given heir will not receive anything if, for example, during the testator's lifetime he received donations covering his entire inheritance share.
Parents bring an action for the child
The Supreme Court in its judgment of 30 April 2019 (file reference number I CSK 79/18) stated that parents can bring an action for the child without the permission of the guardianship court. This is even the case if it involves the risk of losing and burdening the child with the obligation to pay procedural costs.
The overthrow of disinheritance
In its judgment of 30 April 2019 (Ref. No. I CSK 79/18), the Supreme Court stated that those obliged to pay a reserved share may not, in the proceedings for the descendants 'descendants' charge, make the charge of dispossession unfounded. In order to refute disinheritance, he must institute a separate process in which the party will also be disinherited.
Determining the groundlessness of disinheritance may be beneficial for the person obliged to pay a reserved share if the inherited share would be less than for his descendants (i.e. when the disinherited is of legal age and has the right to a reserved portion of 1/2 inheritance share, and his descendant is a minor and has the right to a larger share (2/3 of the inheritance share.
It should be added that in the case of establishing the groundlessness of disinheritance brought by a testamentary heir against the inherited descendant of the testator and the descendant of the disinherited, the minor should be represented by a guardian appointed by a guardianship court (Article 99 in conjunction with Article 98 § 2 point 2 and § 3 of the Civil Code) - cf. resolution of the Supreme Court of 13 March 2008, III CZP 1/08, OSNC 2009, No. 4, item 52.
Thus, the Supreme Court upheld the interpretation presented in the resolution of the Supreme Court of April 22, 1975, III CZP 15/75, OSNC 1976, No. 3, item 38.
Funds on the sub-account at ZUS in the event of divorce
The Supreme Court ruled (decision of April 9, 2019) that the division of joint property includes not only funds in OFEs, but also funds accumulated on the sub-account at ZUS.
Sale of shares in a limited liability company without the consent of the wife
The Supreme Court (judgment of 4 April 2019, file reference number III CSK 146/17) stated that if the shares in a limited liability company are part of the property of the joint spouses, their sale (eg sale or donation) without the consent of the other spouse is invalid , although only one husband is a partner.
How to divide property after a divorce - a new ruling of the Supreme Court
In the case of reference number III CZP 103/17, the Supreme Court, on February 23, 2019, adopted a resolution with the following wording:
"In the case of division of common property after the end of the joint property between spouses, the composition of joint property is determined according to the time when the property cessation ends, and its value according to the state of this property and prices at the time of division."
The supreme court thus crossed the emerging doubts and confirmed the lines of previous case-law. At the same time, due to the fact that a lot of time could have passed since the disappearance of property and property could change, the Supreme Court explained that any property changes that occurred between the moment of cessation of the community and the moment of the department - spontaneous, accidental and intentional, such as natural or physical wear of property components, or even their loss, increase in value due to inputs, material charges, market situation, etc. - are subject to settlement and subsequent compensation in the form of repayments or surcharges. The application of surrogation rules is also not excluded; in this case, the components acquired in exchange for items previously covered by the marital community are subdivided (see the decision of the Supreme Court of 26 October 2017, II CSK 883/16, not public).
No compensation for betrayal of marriage
The Supreme Court in itsjudgment of December 11, 2018 (referencenumber IV CNP 31/17) statedthat no damagesweredue for maritaldecree. At most, youcanapply for a divorce with the guilt of the spousewhocommittedbetrayal for the breakdown of your life.
The sentencepassed in a casethatconcerned a manwhosewifewithouthisknowledgebetrayedhimthroughouthismarriage with hisowncolleague. Moreover, 4 childrenwereborn as a result of betrayals. Eventually, the marriageended in divorce, and the betrayedmandemandedcompensation from his ex-wife and herlover.
The Supreme Court stated in the Polishlegal system that the award of damages for treason was possiblepursuant to art. 29 of the decree of 25 September 1945 Marriage law (Journal of Laws 1945.48.270), which was in forceuntil 30 September 1950 (Article 1 § 2 point 1 of the Act of 27 June 1950. Provisionsintroducing the Family CodeDz .U.1950.34.309). According to itswording, in a divorcedecree, the court, upon the request of aninnocentspouse, willmake the spousepaydamages for the damagecaused by the divorce, and in particular for the loss of benefitsresulting from the matrimonialpropertycontract, and for actsthat form the basis of the divorcedecree ; in addition, the courtmay grant compensation for moralharm. In the currentlegalstate, family law does not establishsimilarclaims to protect the tiesbetweenspousesorkinshiprelationships. Therefore, the award of compensation for betrayalisunacceptable.
Whatismore, the Supreme Court pointed out that the behavior of a wife'slover (having sex with anunhe happy wife) was not prohibited by law, and therefore one can not be heldresponsible for damages.
Thisverdictsuggeststhat the obviousharm to the injuredman and the lack of provisionsprotectinghispersonalrightsshouldresult in the intervention of the legislator
Project Akademia Paragrafu
Towarzystwo Inicjatyw Prawnych i Kryminalistycznych Paragraf 22 (a Non-Government Organisation that advocate Piotr Modzelewski is the Vice-President of) is working on a project called Akademia Paragrafu, which goal is to educate high-school students on law. 100 teams (approx. 300 participants) from all over Poland has enrolled to take part in the project. First educational materials were provided to them on the 7th of October - over 80 pages on criminal and misdemeanor law.
More information on the project can be found here : https://paragraf22.eu/post/akademia/
The legitime is paid also by the heirs of the recipients.
The Supreme Court in its judgment of 13 April 2018 (file reference number I CSK 381/17) stated that the obligation to pay a receipt for receiving a donation is not only gifted but also his heir if he died before the donor.
This is an interpretation that goes beyond the literal understanding of the preservation provisions in which only the recipients who are given to pay the price are saved, not their heirs. In the meaning of the Supreme Court: "Once the donation was made on the side of the recipient, there was a germ of a potential future obligation to pay the amount due to the preservation of the estate, which was one of the elements of the recipient's legitimate situation and would come to fruition if he lived to open the inheritance. the beneficiary, this situation, including the potential obligation connected with it, was entered by the defendants as heirs. A different solution would be justified only if it were assumed that the obligation to cover the recipient's charge is closely related to the person, however, as mentioned above no convincing arguments speak. Successor recipient can not at the same time rely on the fact that they had received free from the burden of decline, due to the general rules of inheritance as a universal succession. however, they may limit their liability by adopting a decline of benefactors inventory (Article 1012 of the Civil Code). "
Business trip of professional drivers - judgment of the Constitutional Tribunal
The basic and comprehensive regulation regarding the rights and obligations of employers and employees in the private sphere is the labor code. However, the legislator sometimes decides to exclude certain issues and to regulate them in separate acts due to the specificity of certain relations or professions. The Labor Code is then applied in a subsidiary way. This type of regulation was also applied to the drivers' working time, which applies to the Act of 16 April 2004 (hereinafter referred to as' the UCPK ' ). This act has aroused controversy almost from the beginning of its validity. The first problems concerned the proper application of the labor code, and specifically regulations on business travel. The question whether a professional driver has a business trip within the meaning of the LC , caused serious rulings and found a response only in the resolution of the composition of seven Supreme Court Justices dated 19 November 2008 r. (reference number , file: II PZP 11/08), according to which "the driver of international transport who travels as part of the performance of the agreed work and under the contractual area as a place of work is not on a business trip in meaning of art. 775 § 1 of thekp . "
The aforementioned state of affairs changed the amendment of ucpk , introducing a legal definition of the business trip of drivers and requiring the application of Art. 775 pairs 5. This paragraph refers to par. 3 then referring to parish 2 recipe. According to the above:
- § 2. The minister competent for labor issues shall determine, by way of a regulation, the amount and conditions for determining entitlements due to an employee employed in a state or local government budgetary unit, for a business trip within the country and outside the country. The regulation should in particular determine the amount of the diet, taking into account the duration of the journey, and in the case of travel abroad - the currency in which the diet will be determined and the limit for accommodation in individual countries, as well as the conditions for reimbursement of travel, accommodation and other expenses.
- § 3. The conditions for paying a business trip to an employee employed by a different employer than the one mentioned in § 2 shall be specified in a collective agreement or remuneration regulations or in a contract of employment, if the employer is not covered by a collective agreement or is not obliged to remuneration regulations.
- § 5. If the collective labor agreement, remuneration rules or employment contract does not contain the provisions referred to in § 3, the employee is entitled to receivables to cover travel expenses according to the regulations referred to in § 2.
Such a construction consequently creates a multi-level cascade appeal, finally referring to the regulation of the Minister of Labor and Social Policy of 29 January 2013 on the receivables due to an employee employed in a public or local government budget unit for a business trip (hereinafter referred to as the business travel regulation) ). This regulation provides that the employee is entitled to reimbursement of accommodation costs according to the invoice from the hotel or other facility in accordance with the limits annexed to the regulation or, if the employee fails to submit the relevant bill, a lump sum of 25% of the limit. The above standards do not apply if the employer provides the employee with free accommodation. The expression free accommodation has not been left in clarified, which resulted in another wave of discrepancies. On this ground, two basic jurisprudence lines were created. Some adjudicating teams assumed that the driver's cabin can not be considered as a general rule or is not a free night's accommodation - it is necessary to individually examine the conditions prevailing in it. This view is justified in particular by the Regulation (EC) of the European Parliament and Council no 561/2006 from on March 15 2006 which states that: 'daily rest periods and reduced weekly rest periods away from base may be used in a vehicle, as long as it has a suitable place to sleep'. So if we identify "free accommodation" and "adequate place to sleep", we come to the conclusion that the driver's cabin can free accommodation within the meaning of the regulation on business travel, as long as it meets the relevant requirements.
The second case-law categorically excludes the possibility of the driver's cabin being considered free accommodation regardless of the conditions prevailing in it. Such a decision is based on the assumption that the regulation on business travel ultimately regulates the situation of employees in the budget sphere, and thus it is impossible to recognize that an adequate place to sleep will be the car's cabin. Free accommodation means a hotel or similar facilities. With this interpretation, the Supreme Court also agreed in the composition of 7 judges of 12 June 2014 (file reference: II PZP 1/14), declaring that the notion of "free accommodation" and "adequate place to sleep" can not be equated , therefore, the car's cabin, even the best prepared, does not meet the definition of "free accommodation" within the meaning of art. 9 of the Regulation on receivables from business trips. The resolution did not obtain the legal principle in truth, but the undeniable view expressed in it became the dominant one.
Consequently, the understanding of the regulations presented by the Supreme Court resulted in the necessity of incurring significant costs by employers who were obliged to pay the driver the accommodation costs for the previous years. The dissatisfaction of employers and their conviction that this interpretation is incompatible with the Constitution of the Republic of Poland ultimately led to the judgment of the Constitutional Tribunal of 24 November 2016 ( file no . K 11/15). The verdict concludes that Art. 21a ucpk in connection with art. 77 5 kp in relation to art. 16 of the regulation on business travel from Art. 2 The Constitution.
The Court agreed with the applicant, Association of Employers "Transport and Logistics Poland", that the construction creating a multi-stage cascading appeal is incompatible with the Art. 2 The Constitution is the principle of clarity and precision of the regulations and makes the regulation inadequate to the actual states to which it is to be applied. The Court emphasizes that the principle of a democratic state of law results from the principle of citizens' trust in the state and law, and the so-called principles of correct legislation according to which the regulation must be language-correct, and therefore clear and precise, thanks to which, without the use of complicated interpretations, the addressee and the content of the norm can be determined. Not every ambiguity is obviously a violation of the Constitution - it must exceed a certain level, be qualified. IN in the case at hand, the Tribunal determined that, based on the challenged provisions, it is impossible to determine the standard's instructions simply and unambiguously, which indicates the unconstitutionality of the provision. At the same time, in the justification of the judgment, it was pointed out that in the case of a legal reference to referral, which refers to the regulation, it is not possible to determine the hierarchical position of a given norm. Therefore, there is a serious breach of the principles of correct legislation.
What's more, employers acting in the belief that the vehicle cabin is a suitable place to sleep have allocated considerable resources to adapt the vehicles accordingly. This conviction was created by min. due to common practice, the case law and European law. The law should not mislead citizens and they should not bear the negative consequences of acting in accordance with the law. The provisions of the regulation on business travel in the sense given by resolutions of the Supreme Court violate in this respect the principle of citizen's trust in the state and the law, and thus are unconstitutional.
Another objection to the questioned construction concerns its inadequacy to the actual situation and violation of the principle of equality. Article 32 of the Constitution did not in fact constitute a model of control established by the applicant (which the Tribunal is bound), but the lack of equality also affects the assessment from the point of view of art. 2 of the Constitution. A situation in which non-similar entities (drivers and budget employees) are treated in the same way and at the same time similar entities (drivers and other mobile workers) - in a different way, is discriminatory. The Court emphasizes that it is possible to effectively and lawfully create a separate category: "business trip by drivers", but it would have to be connected with a separate regulation taking into account the specificity of this profession. Reference to the provisions concerning a completely different sphere of relations results in the inadequacy of normalization and many practical problems, e.g. an interpretation of the term "free accommodation", whose interpretation raises doubts only in relation to professional drivers.
Finally, the Court considered that the uncertainty of the challenged provisions is qualified their interpretation causes many difficult to remove doubts. These doubts caused a significant increase in the cost of labor (employers additionally had to reimburse employees for business trips from previous years).Therefore, art. 21a ucpk was declared unconstitutional.
In passing, the Court noted that the uncertainty as to whether the professional driver is traveling at all and whether the vehicle's cabin has been free of charge has been in place for many years and the rational legislator should have normalized this matter much earlier. At the same time, the verdict is recalled by the EU regulation, which aims to improve road safety and social conditions of drivers, and which recognizes the driver's cabin as a place suitable for night rest. If the Polish legislator wanted to introduce higher than the EU standard, he should do it clearly and without any doubt.
In conclusion, it is worth mentioning the effects of the judgment of the Constitutional Tribunal in the jurisdiction of the Supreme Court and, in fact, of the absence of any effects. As a consequence of the judgment of the Constitutional Tribunal from the legal basis disapplied the legal basis referring to the regulation, under which lump sums were granted. The Supreme Court (at least in the judgment of February 21, 2017, file reference: I PK 300/15) seems to omit this fact - it continues the case-law line from before the judgment of the Constitutional Tribunal and orders the payment of receivables due to a business trip. Therefore, it is difficult to predict how the legal situation of professional drivers will ultimately shape in terms of their working time and business trip, and whether the legislator will decide to regulate this matter more precisely.
On 1 June 2017, the amendment to the Code of Administrative Proceedings (adopted on April 7, 2017) entered into force in the Code, Section IVa , comprehensively regulating the issue of administrative fines:
- the scope of application of the provisions,
- legal definition of administrative penalty,
- directive on imposing a penalty,
- waiving the imposition of a penalty,
- limitation of the imposition of the penalty and its execution, and
- relief in imposing a penalty.
- The scope of application of the provisions
The new regulations should be applied both in relation to fatal states arising after the entry into force of the Act and those from before the entry into force, unless the legal status in force in the time of the event is more relative to the subject.
If there are separate provisions regulating the issues of specific administrative sanctions, the regulation of Section IVa shall only apply in a subsidiary manner. It is not used in when the body decides on the basis of the provisions on:
- proceedings in cases concerning misdemeanors,
- disciplinary responsibility,
- order responsibility,
- liability for violation of public finance discipline.
- The legal definition of an administrative fine
Article 189b introduces a legal definition, according to which the administrative pecuniary penalty is a monetary sanction, imposed by a decision by a public administration authority for a violation of the law by a natural person, legal or imperfect legal person (failure to comply with obligations or violation of the prohibition). Additionally, in accordance with art. 189 e, the party is not punished if the violation occurred due to force majeure. If the party delays the payment of the amount due, the interest for the delay in the amount applicable to the tax arrears is added to the amount.
- Directives on imposing a penalty When imposing a penalty, the authority shall take into account: the personal values of the infringer (natural person), the degree of contributing to the infringement, the benefit obtained from the violation, actions taken by the party to address or remove the effects of the violation; the gravity and circumstances of the violation (especially the threat to life and health) and similar violations committed by the party in past (also convictions for crimes and offenses).
- Withdrawal from the imposition of a penalty Section IVa introduces the principle of opportunism when imposing an administrative penalty. It manifests itself in the order to withdraw from punishment and stop at the instruction when the scale of the infringement is negligible and the party ceases to violate the law or if the party has already been punished for the same behavior (in administrative, criminal or offense proceedings) and the penalty already meets the objectives to comply with the administrative penalty (the structure is very similar to the absorption write-off). In addition, if the above premises do not occur, but "it will allow to meet the purposes for which an administrative fine would be imposed", the authority issues a ruling ordering the party to provide evidence for the removal of the infringement or notification of infringers. If the party presents such evidence, the authority will issue decisions on waiving the penalty.
a) Limitation of the imposition of a penalty
The card can not be imposed after 5 years from the date of the violation or the consequences of its occurrence. This deadline is interrupted in the case of bankruptcy and suspended in the event of: lodging an appeal, making a claim to establish the existence of a relationship (common court), ordering a security under the provisions on administrative enforcement.
b) Limitation of execution
Administrative penalty payment is not enforceable if 5 years have elapsed since the day on which it was to be exercised. The time limit shall be interrupted in the event of: declaration of bankruptcy, application of an enforcement measure of which he was obliged to notify or ordering security in accordance with the provisions on enforcement proceedings in administration.
- Relief in the execution of punishment
The authority may grant a concession in the execution of a penalty (ie it is an optional or discretionary decision) if the conditions are met: the party has submitted a request for a concession and it is justified by an important public or private interest. It should be remembered that in the case of entities running a business activity, such a concession can be granted only if it does not constitute state aid or constitutes de minimis public aid or public aid complying with the requirements specified in art. 189k par 3 point 3 (the relief is aimed at repairing damages caused by natural disasters (or other exceptional occurrences), remedying serious disturbances in the economy and at the same time it is in line with the principles of the EU internal market).
The Act provides for a closed catalog of relief forms, i.e .:
- postponing the date of administrative penalty payment or spreading it into installments;
- postponing the deadline for completing an outstanding administrative fine or spreading it into installments;
- cancellation of an administrative fine in whole or in part (the interest is also depreciated proportionally to the principal amount written off)
- ADMINISTRATIVE ISSUES
- CIVIL LAW
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- CANNON LAW
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