Zasada odpowiedzialności państwa i związków publiczno-prawnych za szkodę wyrządzoną przez ich funkcjonariuszy w projekcie Profesora W. Czachórskiego z 1946 r.
Journal Title: Studia Iuridica - Year 2016, Vol 64, Issue
Abstract
In the present article, the author presents the origin of the draft law, prepared by prof. W. Czachórski, on the civil liability of state and self-government entities for acts of political power (imperium) of their public officers, as well as the reasons for the publication of the proposal followed by an article in 1946 just after the end of the World War II. Another question that has been discussed in the article is the correctness of implementation into Polish private law of a public concept of state liability adopted in Article 121 of the 1921 Constitution (being merely a declaration not a binding norm). The article reviews the opinions of scholars concerning public character and scope of constitutional concept of state liability. An attempt also was made to determine whether the drafted rules on compensation by the state for damages caused by its officers were adequately constructed within the law of obligations. The basic aim of the article is to provide an answer to the question, whether the proposed general liability rule was based on principle of the fault of the state for the damage caused, vicarious liability for the servant’s acts or whether it was based on another non-fault principle explaining state liability for the detrimental acts committed by the state officers. The author discusses possible conditions of state liability in 1946 draft law, as well as doubts expressed by legal doctrine in this matter. Furthermore, the work contains a review of judicial decisions and scholarly opinions with respect to the well-established and undisputed state liability for damages caused by public officers exercising commercial tasks (dominium). The article includes a review of the different pre-war binding rules on that issue, based on French, German, Austrian and Polish law, as well as a review of the judicial interpretation of those civil law rules binding in this respect during the Second Republic of Poland (1918–1939). The goal was to point out the dynamic character of the interpretation delivered by courts, with special reference to a new concept of organizational fault (faute de service) developed by the French Conseil d’Etat. The article also discusses proposed concept of state co-liability with the officer in terms of joint liability or complementary subsidiary non-fault state liability, resulting from the principle of justice or social solidarity. What is more, the article highlights another interesting issues concerning the question whether the relationship between state and its officer was meant to be based on the traditional solidarity of debtors or whether it represented another legal concept adopted in favour of the injured party. Finally, the present work characterizes the influence of the draft decree on the Act of 15 November 1956 on the liability of the state for damages caused by state agents and on the corresponding provisions of the 1964 Polish Civil Code, both acts adopted during the People’s Republic of Poland. The aim was to indicate important differences between the 1946 draft law and 1956 Law which was enacted under strong influence of new concepts of the socialist state liability for acts of its employees (agents), not only for officers. In the end, the article presents the potential course of the development of the Polish law in case the drafted law would be adopted.<br/><br/>
Authors and Affiliations
Katarzyna Królikowska
Keywords
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