Basics of Law (2)

The concept of law and the

principles of the application
and interpretation of law
 Interpretation of law

A loophole is an ambiguity in provisions of a

legal system or legal issues that are not
directly covered by legal acts.

From the point of view of the legal system

there are no loopholes, in fact because it
provides rules that allow to avoid any
loopholes.
 System of law

Public Private
law law
 Public law
Public law relationships are characterized by the
position the state represented by a proper
authority (state organ) provided with state
power and the legitimacy to determine the legal
situation of the individual who is to act
according to the decision of the state.
Public law protects public interest that is the
interest of the community.
 Public law

Public law is the law that governs the

relationship between the state and the
individual, who is considered to be either an
organizational entity or a citizen (natural
person).
Public law covers constitutional, administrative
and criminal law.
 Private law
Private law governs relationships between
individuals, or private relationships between
citizens and organizationial entities.
It covers e.g. civil law.
Civil law is divided into general part of civil law,
property law, the law of obligations, the law of
torts, succession law, family law and intellectual
property law.
 Norm

Legal norms are binding rules of

conduct established by the state
authority in a proper legislative
procedure .
 Norm

Hypothesis - sets forth the addressee and the conditions

under which a person should be guided by the given legal
norm (addressee and legal situation)
Disposition –indicates the rights and duties of the parties
in relations arising under the circumstances envisioned in
the hypothesis (the pattern of the proper behavior)
Sanction –defines legal consequences for persons who
violate the prescriptions of a particular norm (the
consequences of the behavior which is not the right one)
 Norm vs provision

Article 148. § 1. Polish Penal Code

Whoever kills a human being
shall be subject to the penalty of the deprivation of
liberty for a minimum term of 8 years, the penalty
of deprivation of liberty for 25 years or the penalty
of deprivation of liberty for life .
 Norm vs provision

Article 136 Polish Constitution

In the event of a direct external threat to the State, the President of the
Republic shall, on request of the Prime Minister, order a general or partial
mobilization and deployment of the Armed Forces in defence of the
Republic of Poland.
Article 198 Polish Constitution
For violations of the Constitution or of a statute committed by them
within their office or within its scope, the following persons shall be
constitutionally accountable to the Tribunal of State: the President of the
Republic, the Prime Minister and members of the Council of Ministers, the
President of the National Bank of Poland, the President of the Supreme
Chamber of Control, members of the National Council of Radio Broadcasting
and Television, persons to whom the Prime Minister has granted powers of
management over a ministry, and the Commander-in-Chief of the Armed
Forces.
 Rules of application of law

Application of law in time

Application of law in space
 Application of law in time
-Vacatio legis
-A law does not apply retroactively
(lex retro non agit)
-A later legal act (e.g. statute)
derogates the earlier legal act (e.g.
statute) (lex posterior derogat legi
priori)
 Application of law in space
-International civil procedure:
jurisdiction
- International private law :
applicable law
 Case - scheme

1) Question
2) Facts of the case
3) Legal norm
4) Subsumption (incorporating the facts
of the case to the legal norm)
5) Answer
 Case 1
There is a contract concluded between Polish
Company XYZ sp. z o.o. and Chinese Comany
QWE. Company XYZ sp. z o.o. buys toys
produced by Company QEW.
1) Which law is applicable for such contract,
if the Polish Court has jurisdiction?
2) Can Companies choose law in such
contract and what kind of law?
 Case 2
The Company A from Luxembourg sells on their
website www.sell.pl products only for Polish
consumers. In the general trade conditions
Company A wrote that: „The law applicable to
contracts concluded via website with Company A
and consumers is the law of Luxembourg”.
1) Is such wording of general trade conditions
legal?
2) If not, how should the choice of law be
formulated in general trade conditions?
 Next lecture

Next lecture consists of: the continuation of

concept of law and the principles of the
application and interpretation of law.

Please bring:
Rome I Regulation and Rome II Regulation;
Polish Constitution

Additional: please think about the subject of

oral presentations.