SILESIAN JOURNAL OF LEGAL STUDIES
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SILESIAN JOURNAL OF LEGAL STUDIES
CONTENTS VOL. 9
Foreword by
Joanna Nowakowska-Małusecka
Katowice 2017
Editor of the “Law Series”
Andrzej Matan
Reviewers
Bogumił BRZEZIŃSKI, Artur KOZŁOWSKI, Bartłomiej KRZAN, Jerzy MENKES, Agnieszka OLESIŃSKA, Łukasz POHL, Massimo STARITA,
Katarzyna ŚWIĘCH, Patricia TELES, Daniel WACINKIEWICZ
Ia. Scientific Board:
Andrzej BISZTYGA (Zielona Góra University, Poland),
Marek BOJARSKI (Wroclaw University, Poland), Paulo Ferreira da CUNHA (Universidade do Porto, Portugal), Adam CZARNOTA (Oñati International Institute
for the Sociology of Law, Spain, Universidad del País Vasco, San Sebastian, Spain, University of Bialystok, Poland), Israel DORON (Haifa University, Israel),
Angelo Viglianisi Ferraro (Universita degli Studi Mediterranea, Italy), Javier LETE (University in Santiago de Compostella, Spain),
Cornelius G.van der MERWE (Stellenbosch University, Republic of South Africa), Cezary MIK (Cardinal Stefan Wyszynski University, Poland),
Andrea OLSOVSKA (University in Trnava, Slovakia), Ryszard PIOTROWICZ (University of Aberystwyth, Wales),
Nadezda ROZEHNALOVA (Masaryk University Brno, the Czech Republic), Leon CHEŁMICKI-TYSZKIEWICZ (Higher School of Labour Safety Management
in Katowice, Poland), Maria ZABŁOCKA (Warsaw University, Poland)
Ib. Members from University of Silesia:
Rafał BLICHARZ, Bogdan DOLNICKI, Jadwiga GLUMIŃSKA-PAWLIC, Anna ŁABNO, Barbara MIKOŁAJCZYK, Wojciech POPIOŁEK,
Zygmunt TOBOR, Tadeusz WIDŁA
IIa. Editorial committee:
Joanna NOWAKOWSKA-MAŁUSECKA (Editor-in-Chief), Nick FAULKNER (Linguistic editor),
Anna HOŁDA-WYDRZYŃSKA (Secretary)
IIb. Members:
Magdalena HABDAS, Katarzyna POKRYSZKA, Ilona TOPA
III. The first level review committee:
Piotr GAŁA, Monika JAGIELSKA, Joanna JAGODA, Grzegorz ŁASZCZYCA, Ryszard MIKOSZ, Robert NETCZUK, Piotr PINIOR, Ewa ROTT-PIETRZYK, Anna STAWARSKA-RIPPEL, Urszula TORBUS, Piotr ZAWIEJSKI, Marek ZDEBEL
The publication is available at:
Central and Eastern European Online Library www.ceeol.com
Śląska Biblioteka Cyfrowa www.sbc.org.pl
TABLE OF CONTENTS
Editorial (J o a n n a N o wa k o w s k a - M a ł u s e c k a) . . . 7
ARTICLES
I g o r B a b i n , L u d m i l a Va k a r y u k
Challenges in Rolling out the Framework of Categories and Concepts of Tax
Code of Ukraine in Terms of “Tax Liability” Category . . . 11 A g n i e s z k a B i e l s k a - B r o d z i a k
Using a Provision’s Legislative History as an Instrument for Interpretation –
Several Observations Based on Judgments of Polish Administrative Courts . . . . 18 A n n a H o ł d a - W y d r z y ń s k a
Protection of Literary and Artistic Titles under Trademark Law . . . 27 D o m i n i k a I wa n
Genocidal Discrepancies . . . 38 K a r o l i n a M a n i a
Justice in the Time of E-Commerce: Online Dispute Resolution . . . 51 P a w e ł M i e l n i c z e k
Legal Aspects of NATO in the Aegean Sea Migrant Crisis . . . 64 A n n a M u ś
Self-Determination and the Question of Sovereignty over Falkland Islands/
Malvinas . . . 78 S i m o n - P e t e r A y o o l u wa S t . E m m a n u e l
When the Prisoner is not a Prisoner: Service Work as a Non-Custodial Measure in the Treatment of Adult Offenders and as a Panacea for Prison Problems
in Nigeria . . . 96
REPORTS
Magdalena Majos-Kwiatkowska, The United Nations System from the Polish Perspective (The conference report, Warsaw, Poland) . . . 109 Małgorzata Myl, Summer University of Srebrenica (The report, Srebrenica,
Bosnia and Herzegovina) . . . 114 Sylwia Żyrek, The EU without the UK, the Implications and Legal
Consequences of Brexit (The conference report, Warsaw, Poland) . . . 118
* * *
List of selected books published by the researchers of the Faculty of Law
and Administration of the University of Silesia in 2016 . . . 123 List of conferences organised at the Faculty of Law and Administration
of the University of Silesia in 2016 . . . 127
EDITORIAL
This is the ninth issue of the Silesian Journal of Legal Studies and we once again warmly welcome you to its selection of articles. The topics tend to overlap and continuing discussions made in previous issues, providing new aspects and arguments. We have again invited researchers from various different countries as well as representatives of legal sciences from many Polish scientific institutions to share the results of their research. The issue has work by authors from Poland as well as from Ukraine and Nigeria, presenting their knowledge and opinions, and some of them are gracing our columns not for the first time.
The text by Ukrainian Authors – Igor Babin and Ludmila Vakaryuk – gives a broad overview of issues on tax law in Ukraine in terms of “tax liability”. The second article, prepared by Agnieszka Bielska-Brodziak from the University of Silesia, concerns a very interesting problem connected with interpretation in the context of judgments of Polish administrative courts. Further, Anna Hołda-Wydrzyńska, also from the University of Silesia, takes a closer look at trademark law, and in particular at the issue of the protection of literary and artistic titles. There are two articles prepared by PhD candidates at the University of Silesia – Dominika Iwan and Anna Muś, devoted to hot topics of international law. The first one focuses on the crime of genocide and its interpretation in the context of judicial decisions of international criminal courts and tribunals.
The second one presents an interesting view on the principle of self-determination and the question of sovereignty over the Falkland Islands/Malvinas. Also dealing with issues of public international law is the paper submitted by Paweł Mielniczek from the University of Warsaw, in which he sets out ideas on the migrant crisis in connection with the legal aspects of NATO in the Aegean Sea.
Another interesting text comes from the Jagiellonian University, in which the author, Karolina Mania, focuses on questions connected with justice in a time of E-Commerce.
She touches upon several crucial problems to this penetrating topic.
In this issue of the Journal, we are again pleased to present an article related to human rights aspects. This time the author, Simon-Peter Ayooluwa St. Emmanuel from Adekunle Ajasin University in Nigeria, concentrates on the issue of prisoners’ rights in Nigeria, and the specific question of service work as a non-custodial measure in the treatment of adult offenders.
This issue also contains reports on selected conferences and seminars organised by various scientific institutions, at which researchers from the Faculty of Law and Administration of the University of Silesia took an active part. For the Faculty, the first two reports are of great importance and should draw the reader’s attention, as PhD candidates participated there.
As in previous issues, we present a list of selected monographs published in 2016 by researchers from our Faculty of Law and Administration, as well as a list of conferences organised or co-organised by the Faculty and our Foundation Facultas Iuridica. We would
like to stress that the publication of the Journal is, as in previous years, possible thanks to Facultas Iuridica, which covers most of the publishing costs of the Journal.
Issue No 9 of SJLS touches upon several disciplines: theory of law, economic law, public international law, human rights and EU law, and they are represented by researchers from universities from a range of countries. From this it is clearly visible that, as in previous issues of the Journal, we continue international discussions on a broad range of legal problems – discourse across borders, not only European. We would like to go further in this direction in our subsequent editions, which is why we warmly invite researchers from Polish and foreign universities to read this and to submit their texts to us, sharing their views on legal problems. The materials contained in the issue may be useful not only for researchers, but also for practitioners, as well as for students and PhD candidates. You can find us at www.sjls.us.edu.pl.
Joanna Nowakowska-Małusecka
ARTICLES
I g o r B a b i n L u d m i l a Va k a r y u k
Yuriy Fedkovych Chernivtsi National University (Ukraine)
CHALLENGES IN ROLLING
OUT THE FRAMEWORK OF CATEGORIES AND CONCEPTS OF THE TAX CODE OF UKRAINE
IN TERMS OF THE “TAX LIABILITY” CATEGORY
INTRODUCTION
Tax liability is one of the primary taxation law categories. It was originally implemented by the Law of Ukraine “On Value Added Tax” and later spread to all specific legal types of tax by the Law of Ukraine “On the Procedure for Paying off Taxpayers’ Obligations to Budgets and State Trust Funds”. Academics are divided in their approach to the term
“tax liability”, which has, in turn, affected the further development of this category in the tax legislation of Ukraine1.
The systematisation of tax legislation and the adoption of the Tax Code of Ukraine led to a narrow use of this category and its partial substitution by other inadequate concepts.
The result of such unjustified and inconsistent activities by the legislator increased the complication and extended the taxation-legal terminology and the contradictions between the General and Special Parts of the Tax Code of Ukraine. Therefore, the studies of the legal nature and the content of tax liability still remain relevant.
1. TAX LIABILITY IN PRINCIPLE AND LEGISLATION
The usefulness of this concept in fiscal legislation is denied by a number of leading academics. Specifically, N.P. Kucheryavenko states that the exclusive position of the state as the organiser and supervisor of tax legal matters and the holder of fiscal revenues suggests a tax obligation, but not liability. In the academic’s opinion, the term “liability”
is characteristic of a non-mandatory legal regulation, when it comes to a certain equality of the parties, their countervailing powers and liabilities. Still, tax relations hardly call for a relationship of equality, or the terms of contracts or agreements2.
A similar approach is shared by a number of Russian academics. In particular, according to A.V. Demin, the term “liability” has a strong private-law nature and is based on the freely expressed will of the person in some way (at one’s own discretion) to implement one’s legal personality within a non-mandatory legal regulation. Thus, liability is a specific type of legal obligation that is voluntarily assumed by a person participating
1 I.I. Babin, Tax Law of Ukraine, Chernivtsi 2012, pp. 190–200.
2 N.P. Kucheryavenko, Course of Tax Law, [in:] Doctrine of the Tax: Volume III, Kharkiv 2005, p. 375.
in non-mandatory legal relations, namely, contractual. The creation and administration of a tax obligation, as A.V. Demin notes, do not depend on the willingness (discretion, will) of the taxpayer, but result directly from the law. The imperative method of fiscal regulation does not provide for granting a remission of taxation at the discretion of any of the participants of tax relations, and the taxpayer is certainly not entitled to refuse to execute his/her tax obligations3.
The authors of the Tax Code of Ukraine, either taking into consideration the opinion of the authoritative scholars, or blindly following the provisions of the Tax Code of the Russian Federation (which uses the term “tax obligation” and not “tax liability”), tried to reject the term “tax liability” by substituting it with the term “tax obligation”.
However, either the efforts turned out to be non-systemic, or the substitution of notions with different semantic content was not possible (in the authors’ opinion, probably the latter), but these attempts were unsuccessful and instead of a logically coherent, readable text of the Tax Code of Ukraine (which, given the quite bulky and hard to understand tax legislation, is extremely important), we have uncertain terminology and several quite different terms representing one and the same phenomenon. Thus, the text of Tax Code of Ukraine contains and simultaneously uses such terms as “tax obligation”,
“tax liability”, “financial obligation” and “tax amount”.
2. “TAX LIABILITY” AND “TAX OBLIGATION”:
THE PARITY OF CATEGORIES
The introduction of the term “tax liability” into tax law raises several questions.
Firstly, what is the difference between the duties of taxpayers set out in Article 16 of the Tax Code of Ukraine and the tax obligation set out in a dedicated Article 36 of this Code. Paragraph 36.1 of Article 36 of the Tax Code of Ukraine determines that the tax obligation of the taxpayer is the recognised obligation to calculate and/or declare the amount of tax or fee pursuant to the procedure and within the time limit defined by this Code, along with laws on customs matters. However, duties of a similar content are stated in the list provided for in Article 16 of the Tax Code of Ukraine.
Relying upon classification of the duties of the taxpayers suggested by S.G. Pepelyaev, the duties listed in Article 16 of the Tax Code of Ukraine can be classified into three groups: 1) organisational duties (to register at the tax authority, to submit the nece- ssary information to the competent authorities…); 2) the obligation to pay taxes (independently and correctly calculate the amount of tax payments, pay them timely and in full, repay the tax debt); 3) accounting and reporting obligations (to maintain records in a timely manner, to prepare and file accounts, to make necessary changes, to keep the documents for a specified period, and to file documents and explanations with the tax authority…)4. According to this classification, the tax obligation defined by Article 36 of the Tax Code of Ukraine belongs to the second group (the obligation to pay taxes). A distinctive feature of the tax obligation, according to the legislator, in accordance with paragraph 36.3 of Article 36 of the Tax Code of Ukraine, is the fact that the tax obligation is unconditional and takes precedent over other non-tax obligations
3 A.V. Demin, Tax Law in Russia, Moscow 2006, pp. 251–252.
4 S.G. Pepelyaev, Tax Law, Moscow 2003, pp. 166–177.
of taxpayers, except in cases provided by the law. Principally, the use of the pronoun
“other” in this norm is doubtful, as it relates the tax obligations of the taxpayer to non-tax obligations. Therefore, without this pronoun, this provision of law would look like: a tax obligation is unconditional and takes precedent over non-tax obligations of taxpayers, except in cases provided by law.
Secondly, we agree with the views of N.P. Kucheryavenko that the “implementation of certain taxpayers’ obligations becomes possible only in conditions of successive, changing each other stages… It is obvious that the implementation of the obligation to pay the tax is not possible without the registration of taxpayers (provision of information on taxpayers in a unified register), without accounting events as to the tax entities. Moreover, it is impossible to imagine the obligation of a tax report without the implementation of the duties of the two previous groups”5. This means that the obligations of taxpayers are closely related, cause each other, and providing the advantage to any taxpayer’s obligation means violating the integrity, consistency and effectiveness of the system of obligations of taxpayers.
According to the authors of the academic-practical commentary to the Tax Code of Ukraine, one of the advantages of the current edition of the Tax Code of Ukraine is its formalisation, i.e. the consistency of the terminology of the tax legislation with the provisions of the Constitution of Ukraine6. In particular, this refers to the dissociation of such categories as taxation and revenue, and the withdrawal of the term “mandatory payment”, not specified by the Constitution of Ukraine, from tax legislation.
To be consistent and to use the tax law terminology of the Constitution of Ukraine, it is necessary to use the term “responsibility to pay the taxes and fees” (Article 67 of the Constitution). However, the problem of using the term “tax obligation” instead of “tax liability” is not only in the introduction of a new term into tax legislation, which is actually synonymous with the concept of “responsibility to pay taxes and fees”, but in the fact that the concepts of “tax obligation” (an obligation to pay taxes and fees) and
“tax liability” are quite different tax and legal categories. If the tax liability reflects only the estate side of tax relations, and its essence is reduced to the responsibility to transfer a certain amount of money from taxpayers to public entities (state and/or the territorial community), then the obligation to pay taxes and charges (tax liability) is a complex concept with a much wider content; it covers all the duties of taxpayers in any tax legal relations, displays not only the property aspect, but also the organisational aspect of tax relations. After all, the science of tax law is a sufficiently reasoned judgment about the nature of the organisational and property character of tax relations. Thus, the substitution of tax liability by tax obligation is a restriction of the meaning of the latter, and creates the need for further differentiation of the tax duties and the obligations to pay taxes and fees.
3. TAX LIABILITY AND TAX LEGAL MATTERS
As for the rejection of the term “tax liability” in tax legislation, the conclusions of A.I. Khudyakov, specifically investigating the problem, are of a certain interest. The aca-
5 N.P. Kucheryavenko, Course of Tax Law, [in:] Doctrine of the Tax: Volume III, Kharkiv 2005, p. 157.
6 M.J. Azarov, Scientific and Practical Comments of Tax Code of Ukraine: Volume 1. 2nd ext. and rev.
ed., Kyiv 2011, pp. 35–36.
demic noted that, for ideological and political justification in the field of taxation, the government is more profitable to use the category of “tax obligation”, which refers only to one side of the legal relationship of tax, namely, the taxpayer. The other side, the state, is in a so-called legal vacuum, having a vague (and therefore unlimited) set of rights and without any responsibility7.
The validity of this statement is proved by the content of Articles 16–17 and 20–21 of the Tax Code of Ukraine. We believe that it is the very explanation of the negative attitude of the academics and lawmakers to the term “tax liability” rather than its “private- law nature”. Their anxiety to transfer non-mandatory elements into tax law, namely the term “liability”, is groundless, because tax liability is a special kind of obligation that is not the same as a civil obligation. Obligations are not the prerogative of civil law, they are an inter-branch structure that is characteristic of any property relations that mediate the movement of financial benefits. The essence of financial legal relationships, including tax, is that they are property relations, and the imperative nature of the tax legal matters, as well as the imperative grounds of their origin, does not exclude the possibility of using the term “liability”.
The method of tax law may not contain significant differences from the method of financial law, as the term “liability” is used quite widely in other parts of financial law.
For example, in Article 2 of the Budget Code of Ukraine, the term “budget liability” is used. It should also be noted that the concept of liability is used in financial law in the definition of government debt (Article 2 of the Budget Code of Ukraine). At the same time, liabilities have their own characteristics in different branches of law. The legislator, using these or other legal structures, must necessarily take into account the specifics of the legal regulation sphere.
The problem, in our opinion, should lie not in the possibility or impossibility of using the term “tax liability”, but in the content of this concept, i.e. its meaning. In Section 14.1.156 of Article 14 of the Tax Code of Ukraine, tax liability is defined as the amount of money that the taxpayer, including a tax agent, should pay to the respective budget as a tax or fee on the basis of the procedure and the line defined by the tax legislation (including the amount of assets determined by the taxpayer in the tax bill and not paid in time defined by law). A similar definition is contained in paragraph 1.6 of Article 1 of Law of Ukraine “On Value Added Tax”, where tax liability means the total sum of tax received (charged) by the taxpayer during the reporting (tax) period, determined in accordance with this Law. Paragraph 1.2 of Article 1 of Law of Ukraine “On the Procedure for Paying off Taxpayers’ Obligations to Budgets and State Trust Funds”
defined the tax liability as the taxpayer’s obligation to pay a respective amount of assets into the respective budgets or state trust funds pursuant to the procedure and within the time limit defined by this Law or other laws of Ukraine.
We believe that the concept of “tax liability” should be used to refer to tax legal matters in which the tax authority has the right to demand, and the taxpayer is obliged to carry out, actions to transfer a certain amount of assets to the budget. It is, in this sense, used in the Tax Code of Ukraine for certain types of legal structures of the tax. Therefore, a more accurate definition is contained in the Law of Ukraine “On the Procedure for Paying off Taxpayers’ Obligations to Budgets and State Trust Funds”.
7 A.I. Khudiakov, Financial Law of the Republic of Kazakhstan: Special Part, Almaty 2002, p. 161.
4. DYNAMICS OF TAX LIABILITY
The tax obligation arises, changes and terminates on the grounds specified by the tax legislation. The general basis of occurrence is the presence of the taxpayer’s tax object and the end of the tax period, after which the amount of tax is to be calculated and paid. At the same time, special bases may be formed for each tax; they are independent legal facts forming a complex set of facts. As for the accountant tax calculated by the tax authorities, the basis for it is a tax notice sent out to the taxpayer8.
The tax legislation of Ukraine provides for the payment in instalments and the deferment of tax liabilities (Article 100 of the Tax Code of Ukraine). Instalments and deferred tax liability are a postponement of the payment by the taxpayer’s tax obligation at interest based on 120% of the annual standard National Bank of Ukraine interest rate, acting on the date of the tax liability occurring, or on the day of its (or part thereof) of repayment, depending on the higher rate, for each calendar day of delay. The basis for instalments of the tax obligation of the taxpayer is as follows: the taxpayer is to provide sufficient proof of the existence of circumstances as listed by the Cabinet of Ministers of Ukraine and indicating the existence of a threat of, or increasing the tax debt of the taxpayer, as well as the feasibility study suggesting the possibility of repayment of the tax liability and/or increasing tax revenues to the budget as a result of using instalments, during which there is a change of production or marketing management policies of such taxpayer. Deferred tax liability (including separately the amount of penalty (financial) sanctions) is repaid in equal instalments, beginning from the month that comes after the month in which the decision granting the use of instalments is issued. The basis for deferring the tax liability of the taxpayer is as follows: the taxpayer is to provide sufficient proof of the existence of evidence, a list of which is determined by the Cabinet of Ministers of Ukraine, indicating the presence of force majeure circumstances that led to the threat of, or the accumulation of tax delinquency of the taxpayer, as well as a feasibility study suggesting the possibility of repaying the tax liability and/or increasing the tax revenues to the budget as a result of using a deferral, during which there is a change of production or marketing management policies of the taxpayer. Deferred tax is repaid in equal instalments starting from any month specified by the relevant supervisory authority or local government, but not later than the end of a 12-calendar- month period from the date of occurrence of the tax liability, or a one-time payment.
As a general rule, a tax liability subsequently terminates after its proper execution, when the tax is paid by the taxpayer in due time and in full. Among other reasons for the termination of a tax liability, identified by the tax legislation of Ukraine, are:
1) the liquidation of the legal unit; 2) the death of an individual, his/her recognition as disabled or missing; 3) a person losing the status of a taxpayer as defined by the Code;
4) the cancellation of a tax obligation in the way stipulated by the legislation (Article 37 of the Tax Code of Ukraine). For example, Article 44 of the Tax Code of the Russian Federation provides for the following grounds for the termination of a tax obligation:
1) payment of the tax (fee) by the taxpayer; 2) the occurrence of other circumstances with which the tax legislation connects the termination of tax obligations; 3) the death of
8 I.I. Babin, Juridical Structure of Tax, Chernivtsi 2008, pp. 158–160.
the taxpayer, or his/her recognition as dead; 4) the liquidation of the taxpayer institution after the liquidator makes all payments to the budgets (off-budget funds).
However, the death of an individual taxpayer or the liquidation of the taxpayer’s institution is hardly to be the basis of a tax liability ceasing. In this situation, the ground that stops the tax liability a tax payment from the funds and property of the heirs / liquidator; in the event of a failure to perform the tax obligations, a tax write-off takes place, which is, respectively, in accordance with Articles 97–101 of the Tax Code of Ukraine.
The forfeiting of taxpayer category as a basis for the cessation of tax liability, as suggested by N.P. Kucheryavenko, and its introduction into the tax legislation, is also doubtful. So, N.P. Kucheryavenko writes: “These circumstances distinguish the specific tax group, the implementation of obligations of which is based on the concept of the taxpayer as a special subject. Such kinds of payments include, for example, the vehicle and other machines and mechanisms possession tax. The peculiarity of these circumstances that stop the performance of tax obligations is the fact that the taxpayer continues to exist as an obligated person, but the forfeit of or change in the individual taxpayer category forecloses the tax obligation in a particular type of payment. An individual taxpayer may be obliged to make a range of tax payments, but the loss of the vehicle causes his lack of responsibilities for accounting, payment and reporting as to the vehicle possession tax. Moreover, such obligations are actually connected not only with the presence of the vehicle, but with its use, abstinence from which can lead to non-performance of tax obligations”9.
We believe that the term “tax liability cessation” should be applied to a tax liability that has eventuated and exists. Tax liability is limited in the set of regular taxes by the distinct time frame, namely, the tax period. The loss of the object of taxation during the tax period does not give rise to the tax liability of the taxpayer for this tax in the future, but with respect to the actual tax period it will continue to exist and must be fulfilled by the taxpayer. In our opinion, the circumstances that discharge the tax liability, except for its execution by the taxpayer, are also: tax withholding by a fiscal agent; tax enforcement; the write-off of tax debt if it turns to be uncollectable; tax payment in the event of the death of an individual, or the liquidation or reorganisation of a legal entity by its legal successor; offset of overpaid tax amount and an accelerated obligation against future payments.
An interesting borrowing from the Tax Code of the Russian Federation is provided for in the Tax Code of Ukraine, namely the possibility of “suspending the execution of the tax liability”. For example, if the property of a disabled or missing person is not enough to ensure the execution of the monetary obligations of that individual, as well as for payment of accrued penalty (financial) sanctions, the payable taxation is written off in accordance with the procedure established by the central body of the State Tax Service. In the event of rescission by a court, the recognition of individual missing or the renewal of the civil capacity of an individual earlier recognised as disabled, the financial obligations of the individual will resume with regard to written off taxes. The penalty (financial) sanctions in such a case will not be paid for the period from the date of the court decision on the recognition of an individual as disabled or missing until the day of the court decision on the renewal of the civil capacity of an individual.
9 N.P. Kucheryavenko, Course of Tax Law, [in:] Doctrine of the Tax: Volume III, Kharkiv 2005, p. 403.
CONCLUSION
Summarising all the above, the following should be noted. The systematisation and codification of tax legislation is an essential part of its development. The aim of codification is not simply to compile the tax legislation into a single legislative act, but to coordinate and develop unified fiscal and legal terms, to eliminate gaps and conflicts in the legal regulation. An important element of such a codification is using the positive experience of foreign countries and the scientific research of experts. In the Tax Code of Ukraine one can see a lot of borrowings from the Tax Code of the Russian Federation, in particular, as to tax liabilities and their dynamics. Drawing on the provisions of the Tax Code of the Russian Federation, the authors of the Tax Code of Ukraine should have analysed their application. After all, the Tax Code of the Russian Federation is also far from the mark, and many of its provisions are subject to criticism by academics, including the definition of tax liability, and the basis for its origin, change and cessation.
BIBLIOGRAPHY LITERATURE
Azarov M.J., Scientific and Practical Comments of Tax Code of Ukraine: Volume 1. 2nd ext.
and rev. ed., Kyiv 2011.
Babin I.I., Juridical Structure of Tax, Chernivtsi 2008.
Babin I.I., Tax Law of Ukraine, Chernivtsi 2012.
Demin A.V., Tax Law in Russia, Moscow 2006.
Khudiakov A.I., Financial Law of the Republic of Kazakhstan: Special Part, Almaty 2002.
Kucheryavenko N.P., Course of Tax Law, [in:] Doctrine of the Tax: Volume III, Kharkiv 2005.
Pepelyaev S.G., Tax Law, Moscow 2003.
ACTS OF LAW
Constitution of Ukraine of 28 June 1996 (Supreme Council of Ukraine 1996, No. 30, item 141 as amended).
Budget Code of Ukraine of 8 July 2010 (Supreme Council of Ukraine 2010, No. 50–51, item 572 as amended).
Tax Code of Ukraine of 2 December 2010 (Supreme Council of Ukraine 2011, No. 15–4, No. 17, item 112 as amended).
Tax Code of Russian Federation, Part I of 16 July 1998 (Assembly of legislation of the Russian Federation 1998, No. 31, item 3854 as amended).
Law of Ukraine on Procedure of Extinction Liabilities of Taxpayers to Budgets and State Trust Funds of 21 December 2000 (Supreme Council of Ukraine 2001, No. 10, item 44 as amended).
Law of Ukraine on Value Added Tax of 3 April 1997 (Supreme Council of Ukraine 1997, No. 21, item 156 as amended).
A g n i e s z k a B i e l s k a - B r o d z i a k
University of Silesia (Poland)
USING A PROVISION’S LEGISLATIVE HISTORY AS AN INSTRUMENT FOR INTERPRETATION – SEVERAL OBSERVATIONS BASED ON JUDGMENTS
OF POLISH ADMINISTRATIVE COURTS
11. HOW TO CONSTRUE THE TERM LEGISLATIVE HISTORY
The era of advanced information technologies, allowing free access to the electronic versions of legislative materials, has opened up new opportunities for searching for traces of legislative intent, thus starting a new chapter of reflecting on the admissible or preferable tools for interpretation in various disciplines of law. This kind of discussion appears particularly significant for such areas of the law as fiscal law and administrative law, both of which interfere with the rights and freedoms of citizens, who may be acutely affected should they base their decisions on an incorrect interpretation of a regulation, and subsequently decide on a solution that will later be rejected by public administration authorities. On the other hand, fiscal law and administrative law are disciplines of the law that give rise to interpretative conflicts whose outcome is the most difficult to predict – the intuitive sense of justice, good and evil does not serve as a compass for understanding the text of a piece of legislation (understanding the intent of the legislator) as much as it does in criminal or civil law. This is why legislative materials, ever since they have become commonly available online, appear to be a tempting source of support in the process of interpreting provisions. This thesis is corroborated by judgments of Polish administrative courts, which demonstrate that a broad spectrum of decisions are taken using parliamentary materials in the process of interpreting acts that raise doubts.
Let us start by explaining what the term legislative history2 means. In international literature (in Poland, this issue has not been thoroughly explored yet3), legislative history is conventionally described as a collection of documents generated in the course of drafting legislation and reflecting this process; it is a set of documents that is the outcome of completing specific legal procedures, from using the right of legislative initiative to enacted legislation. “The legislative history of a statute is the history of its
1 Project financed by the Polish National Science Centre under grant no. DEC-2011/03/D/HS5/02493.
2 Legislative history is a popular term in English literature – see e.g. W.D.Popkin, A Dictionary of Statutory Interpretation, Durham 2007, pp. 160–183. Another commonly used term for this type of interpretative materials is travaux preparatoire.
3 The first comprehensive analysis of this issue, authored by A.Bielska-Brodziak and entitled Materiały legislacyjne jako narzędzie interpretacji prawa, is pending publication by Wolters Kluwer in 2017.
consideration and enactment”4; it is “the written record of deliberation surrounding and preceding a bill’s enactment. Legislative history includes all the documentation that was generated during the enactment process”5. It is materials, in the form of documents, generated by the legislator (or commissioned by the legislator) in the process of creating and enacting a statute. Conventional LH6 consists of written statements – usually subcommittee and committee debates and debates of the Sejm and the Senate as a whole – which accompany the passage of a statute7. This group also encompasses draft bills and statements of reasons8, as well as opinions and expert reports. Since the particular stages of the legislative process are meticulously documented, the comprehensive set of documents offers a faithful representation of the process leading to the creation of the final version of a regulation. The objective of using LH is – as signalled at the beginning of this paper – to obtain information allowing to determine the intent behind introducing a provision or a bill, and to establish what goals the legislator was planning to achieve through the bill9.
As far as the Polish interpretative practice is concerned, the situation of legislative materials is very interesting. As mentioned before, the issue of using travaux preparatoires in statutory interpretation is given marginal treatment in Polish literature. However, despite the apparent lack of interest by literature, the popularity of using LH in judicial decisions is beyond significant. An analysis of decisions issued by administrative courts reveals the growing importance of this argument and shows an increase in the number of references made to legislative history in judicial decisions. Despite the lack of legal education in this respect, legislative materials constitute an important and increasingly used interpretative tool. An ever-growing number of judicial decisions containing references to travaux preparatoires, and – perhaps more importantly – the fact that, in the case of some decisions, the argument from preparatory documents becomes the clinching argument suggests an increase in the interest in this type of instrument.
4Y.Kim: Statutory Interpretation: General Principles and Recent Trends, New York 2009, p. 31.
5L.D.Jellum: Mastering Statutory Interpretation, Durham 2008, p. 161. – “Legislative history is the written record of deliberation surrounding and preceding a bill’s enactment. Legislative history includes all the documentation that was generated during the enactment process, including committee reports and hearing transcripts, floor debates, recorded votes, conference committee reports, presidential signing and veto massages, etc. Most legislative history is generated at the chokeholds, or vetogates, within the legislative process”. Similarly W.N.Eskridge Jr., P.P.Frickey, E.Garrett, Legislation and Statutory Interpretation, New York 2006, p. 303: “The legislative history of a statute is the record of deliberations surrounding, and generally prior to, the law’s enactment”.
6 In this text “LH” will be the equivalent of meaning of the term “legislative history”.
7W.D.Popkin, A Dictionary of…, p. 140: “Conventional legislative history consists of written statements (usually committee reports and legislative debates) which accompany the passage of a statute”. Suggestions on how to construe the term LH may also be found in S.Breyer, On the Uses of Legislative History in Interpreting Statutes, “Southern California Law Review” 1992, Vol. 65, p. 845. In Poland, L.Morawski, Wykładnia w orzecznictwie sądów. Komentarz, Toruń 2002, p. 277.
8 Ibidem.
9R.B.Brown, S.J.Brown, Statutory Interpretation: The Search for Legislative Intent, Notre Dame, Indiana 2002, pp. 117–118.
2. WAYS OF USING LEGISLATIVE HISTORY IN JUDICIAL DECISIONS
Analyses of administrative court decisions demonstrate how useful legislative ma- terials are for statutory interpretation. Arguments developed using legislative process information can corroborate the meaning that follows from the letter of the law.
The corroborative function of legislative history is its most popular and obvious function.
Another popular way of deploying arguments from LH is to use them as directives of choice from among various interpretation hypotheses. However, it is two other uses that appear to be the most interesting – using LH to “supplement” the norm or “break”
the linguistic meaning. I am going to illustrate these uses, with examples so as to better demonstrate the fundamental value and importance that the information from legislative materials has for the final decision.
The first case encompasses a series of decisions10 issued in relation to regulations governing the award of veteran status. The status in question can be awarded to an individual taking part in activities carried out outside the country who has experienced damage to his health as a result of an accident related to these activities. What follows from the literal wording of the definition laid down in Article 4 (15)C11 is that it is a sudden event, caused by external factors, resulting in damage to a person’s health, which took place in the course of or in connection with other activities directly related to performing activities outside the country. This wording resulted in veteran status applications submitted by individuals who sustained accidents in the following circumstances:
after finishing his duty, was on his way back to the building where he was quartered. When he was climbing the stairs, he tripped and fell, and the firearm he was carrying hit him in the mouth. As a result, the applicant sustained injury in the form of a tooth crown fracture12. [W]as lifting a printer from the floor to the table in a service room. In doing so, the applicant failed to exercise due care, as a result of which he sustained a spinal overload injury13. In view of the facts of such cases, a question arose as to how to construe the phrase
“accident related to activities carried out outside the country”. In order to answer the question, the court referred to information from legislative materials and concluded that:
It is unequivocally clear from the explanatory statement to the bill that the legislator’s intent was to honour and reward individuals who put their life and health at risk, who are in direct contact with events and situations that do not take place in peaceful conditions, and who, as a result of these events and situations, sustain damage to their health. For this reason,
10 Judgment of the Voivodeship Administrative Court in Warsaw of 21 November 2012, II SA/Wa 1473/12, LEX No. 1249102; Judgment of the Voivodeship Administrative Court in Warsaw of 21 November 2012, II SA/Wa 1412/12, LEX No. 1249091; Judgment of the Voivodeship Administrative Court in Warsaw of 6 December 2012, II SA/Wa 1808/12, LEX No. 1334348; Judgment of the Voivodeship Administrative Court in Warsaw of 21 November 2012, II SA/Wa 1605/12, LEX No. 1249127; Judgment of the Voivodeship Administrative Court in Warsaw of 21 November 2012, II SA/Wa 1434/12, LEX No. 1249094.
11 Act on Veteran Activities Outside the Country of 19 August 2011, Journal of Laws of 2011, No. 205, item 1203.
12 Judgment of the Voivodeship Administrative Court in Warsaw of 21 November 2012, II SA/Wa 1473/12, LEX No. 1249102.
13 Judgment of the Voivodeship Administrative Court in Warsaw of 21 November 2012, II SA/Wa 1434/12, LEX no, 1249094.
a broadening, as proposed by the applicant, of the catalogue of individuals eligible to be awarded the status in question would inevitably lead to changing the nature of this status – individuals undertaking military activity or those affected by this activity, […] and individuals who are indeed involved in activities carried out outside the country, but at the time of the accident are not subject to threats relating to the nature of the mission14.
As demonstrated, the intent expressed by the legislator in the legislative materials provided context that enabled the court to properly interpret the literal meaning of the provision in question. This made explicit and obvious what legal intuition had suggested before – the legislator did not mean every single accident that happens outside the country, but a very specific type of accidents. And, while the literal wording of the provision did not allow for a different treatment of an individual who strained his back while lifting a printer, or one who damaged his tooth when stumbling to that of an individual who sustained damage to his health in connection with warfare, the context provided by legislative history made it possible to identify the legislator’s intent in a very precise way. It turned out that interpreting the provision using the legislator’s intent, as expressed in the LH, makes the wording of the provision unequivocal, both linguistically and axiologically. In this case, the legislative materials played a supplemental role – they enriched the literal interpretation of the provision with the legislator’s intended meaning, which was not expressly stated in the wording of the act, but was nonetheless essential for the passing of fair judgments.
Another very interesting example concerns a situation where information from legislative materials was used to “break” the literal meaning of a regulation15. The case involved a female who applied to establish her eligibility to receive maternity allowance and a single-payment birth grant16. Pursuant to the legislation17, in order to be eligible to receive these benefits, a woman must be placed under medical care from the 10th week of the pregnancy at the latest, and must remain under such care until birth. The timeline has been defined extremely precisely – by a number – without having provided any exceptions. In the case analysed, the woman did not know she was pregnant, as she had been treated for hypothyreosis for over a year. Prior to the diagnosis, she maintained a regular menstrual cycle, but when she started taking medication, her menstrual cycle became irregular. This is why, during a check-up gynaecologist appointment, she found out she was 12 weeks pregnant. The court referred to the explanatory statement to the
14 Judgment of the Voivodeship Administrative Court in Warsaw of 21 November 2012, II SA/Wa 1473/12, LEX no, 1249102; judgment of the Voivodeship Administrative Court in Warsaw of 21 November 2012, SA/Wa 1412/12, LEX no 1249091; judgment of the Voivodeship Administrative Court in Warsaw of 6 December 2012, II SA/Wa 1808/12, LEX No. 1334348.
15 In another interesting judgment, (see judgment of the Voivodeship Administrative Court in Wrocław of 10 July 2013, I SA/Wr 482/13, LEX No. 1351221), the tax authority proposed a judgment based on information from the LH, breaking the literal meaning. Nevertheless, the court did not decide to adopt this line of interpretation and concluded: “The explanatory statement to a bill can help dissolve doubts in a situation when a provision of the law is equivocal. However, it cannot be used to form conclusions that contradict the wording of the provision. The objectives expressed in the explanatory statement cannot change the literal meaning of the provision”. The judgment represents a line of interpretation that precludes the a priori rejection of the literal meaning of a provision.
16 Judgment of the Voivodeship Administrative Court in Gdańsk of 11 July 2013, III SA/Gd 223/13, LEX No. 1368857.
17 Article 9 (6) and Article 15b (5) of the Act on Family Benefits of 28 November 2003.
bill in order to determine what the legislative intent was18. Based on the explanatory statement, the court concluded that, while the regulation does introduce an exact time limit, expressed by a number (10 weeks), at which time a woman must be placed under medical care, the interpretation of the act’s provisions must not overlook the
“legislator’s real intent”. Based on the LH, the court deemed that, in order to establish the woman’s eligibility to receive benefits, it was necessary to determine both whether she had cared for her health during pregnancy (whether she had been under medical care during this period), and whether she had exercised due care in meeting the deadline for submitting to medical care19. In the court’s opinion, it was necessary to adopt such a line of interpretation that would guarantee access to assistance also to those women who, without any fault on their part, failed to be placed under medical care by the 10th week of pregnancy. It is worth noting that, in the case discussed here, the arguments that affected the court’s judgment were entirely absent in the literal wording of the regulation.
As a result, the literal wording of the regulation was rejected, and the legislator’s intent, as expressed in the legislative materials, prevailed.
3. SEVERAL REMARKS ON THE FACTORS THAT DETERMINE THE VALUE OF LH IN STATUTORY INTERPRETATION
The significance and popularity of interpretative arguments based on LH varies between countries, and depends on a number of factors: both the quality and availability of the legislative materials, the competence of the interpreters, and cultural factors – beliefs held by the interpretive community as to the role that legislative materials ought to play in statutory interpretation20. In general, it can be observed that the worldwide ideological dispute on the place and role of legislative history in statutory interpretation is held by proponents and opponents of the deployment of LH. Operating at the level of idea, the proponents of using LH, who subscribe to the statement that “The letter of the law is the body of the law, and the sense and reason of the law is the soul of the law”21, see it as highly useful, in that it allows strong, hard-to-refute arguments to be developed.
In substantiating their position, they claim that each regulation has its underlying objective, which – unlike nitrogen – does not come from the air, but derives from the
18 The court concluded that: “The intent of the regulation is to ensure that pregnant women actually receive medical care during pregnancy, which may decrease the high infant mortality level and reduce the number of infants with low birth weight” (Sejm of the Republic of Poland of the 6th term, Sejm paper No. 630)”.
19 The Court observed: “we cannot eliminate the possibility that, for reasons beyond a woman’s control and knowledge, she might not be able to meet the deadline for submitting to medical care (e.g. in case when the waiting time between booking an appointment and the actual date of the appointment is long or when a woman cannot find out that she is pregnant within the first 10 weeks due to her individual physiological or health circumstances)”.
20Cf.H.Fleischer, Comparative approaches to the use of legislative history in statutory interpretation,
“American Journal of Comparative Law” 2012, Spring. In Polish literature, see: A.Bielska-Brodziak, Materiały legislacyjne w dyskursie interpretacyjnym z perspektywy brytyjskiej, amerykań skiej, francuskiej, szwedzkiej i polskiej, [in:] Konwergencja czy dywergencja kultur i systemów prawnych?, Eds. O.Nawrot, S.Sykuna, J.Zajadło, Warsaw 2012, pp. 144–153.
21W.N.Eskridge Jr., All About Words: Early Understandings of the “Judicial Power” in Statutory Interpretation, 1776–1806, “Columbia Law Review” 2001, Vol. 101, p. 1000.
language of the act and is interpreted in light of other external manifestations of the intent22. On the other hand, the opponents are of the opinion that “the legislator said what he wanted to say, and omitted what he did not want to say (quod voluit dixit, quod non dixit noluit, idem dixit quam voluit)”23. In other words, “interpretation cannot be determined by how the legislator was going to regulate a given issue, because what matters is how he actually did it”24.
As the statements above show, these two extreme positions accentuate certain contradictory visions of the law. According to the first one, law is what the legislator wants of us. Therefore, searching for the intent of the legislator can and should centre on the wording of an act and on any other proofs of legislative intent, and the final outcome of the search can differ from what prima facie followed from the letter of the law. According to the other position, law is what the legislator has managed to exhaustively contain in the wording of an act. In addition to the aforementioned ideological preferences, there are two other factors that influence the position of legislative history in interpretation.
Although these are practical factors, it is my belief that they play a key role. These factors are: quality of access to LH and the interpreters’ competence in using LH.
Let us elaborate on the issue of the availability of legislative history. The attitude towards legislative history has changed considerably due to the development of modern data transfer technologies. As a result of technological advancements of the past decades, the citizens of Poland – and of most other democratic states for that matter – have obtained access to public information via the Internet. Consequently, parliamentary materials, which are a form of public information, have to a large extent become available to the general public online, free of charge. This has unquestionably influenced the popularity of legislative history in interpretation. It must be noted, however, that making legislative materials publicly available was a manifestation of the principle laid down in Article 61 of the Constitution of the Republic of Poland (providing citizens with access to public information so as to allow social control; protection of transparency of public life). It was not, therefore, not directly at least, intended to facilitate the work of interpreters of the law. This impacts the way in which legislative materials are shared – in many cases they are made available without treating the needs of interpreters as a priority (examples of such needs being a simple access path, short processing time, easy copying). Whereas the current Polish status quo still requires many improvements, it is considerably different from the reality less than twenty years ago, at the turn of the 20th and 21st century. Building a coherent and comprehensive system allowing access to legislative materials is not a short-term process, but a large-scale and time-consuming project.
The other important issue from the perspective of the usefulness of LH and, as a result, from the perspective of its attributed value, is the competence of the interpreters themselves. Lack of competence is likely to deter interpreters from using this instrument
22F.Frankfurter, Some Reflections on the Reading of Statutes, “Columbia Law Review” 1947, Vol.
47, pp. 538–539, quoted after: L.D.Jellum, Mastering Statutory…, p. 183.
23 Resolution of the Polish Supreme Court of 26 October 2016, file ref. No. III CZP 56/16.
24 Cf. a resolution passed by 7 Supreme Court Judges of 16 December 2008, III CZP 102/08, OSNC 2009, No. 5, item 65. Also see an example of an interesting tax judgment, formulated in a similar spirit – Judgment of the Voivodeship Administrative Court in Gdańsk of 23 January 2013, I SA/Gd 1218/12, LEX No. 1291455.
due to fears of formulating incorrect conclusions and potentially losing prestige. It is currently stressed that the subject of debate is not whether or not to use legislative materials, but when and how to use them25. However, to know when and how to use them, one needs to be provided with the right knowledge in the course of education, and must continue to acquire it on their own after completing their education. Literature offers more and more rules on how to properly use legislative materials26. Examples of some of the universally applicable rules are as follows:
1) never use legislative history without knowing the legislative procedure – the legislator’s intent is not a psychological experience, but rather a decision taken in compliance with clear procedural rules;
2) remember that legislative sequence is not random – lex posteriori derogat legi priori – decisions taken during later stages of the legislative process supersede earlier ones.
If you refer to a fragment of legislative history, you must bear in mind that the position you are referring to might have changed during later stages of the process. Therefore, the legislative intent must be searched for in reverse order.
3) do not create abstract hierarchies of legislative history. Assuming that the most valuable form of LH is, for example, the explanatory statement to a bill, and the least informative part are the various deputy speeches is hasty and may lead to missed conclusions. The value of LH depends on the interpretative context, and cannot be determined in abstract terms.
4) do not quote legislative history if you do not know who won in the parliamentary debate. The wording was achieved through a compromise. Reliable materials are those that have been recognised as such during the legislative process. If the legislators did not take them into consideration, neither should interpreters27.
Administrative judicature in Poland, although quite young, is characterised by its very modern and creative approach to the application of the law. It is worth noting that some of the new and significant interpretation directives, such as the in dubio pro tributario principle concerning interpretative doubts, or the distinction between two types of changes of the law (interpretive and normative) derive from judgments of administrative courts. Clearly, to a large extent, it is this part of the Polish judicature that should be credited with the current increase in the popularity of using legislative materials in statutory interpretation. It is said that if you have just a hammer, nails are your only solution to any problem. The interpretation of the law, just like interpretation of literature, paintings, or holy books, is such a complex undertaking that in order to do it in a responsible and fruitful manner, one needs to resort to using all the tools available. Only the comprehensive use of all these instruments will make it possible to develop argumentatively strong reasons for a judgment – one that will persuade the parties involved that the court conducted the proceedings in a fair way, and that it was right in its judgment.
25S.Costelloe, The Need for Conditions Limiting the Use of Legislative History in Statutory Interpretation:
Lessons from the British Courts, “Notre Dame Journal of Law, Ethics & Public Policy” 2015, Vol. 29, p. 327.
26V.F.Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, “Yale Law Journal” 2012, Vol. 122, pp. 90–133.
27Ch. Boudreau, A.Lupia, M.D.McCubbins, D.B.Rodriguez, What Statutes Mean. Inter- pretative Lessons from Positive Theories of Communication and Legislation, “San Diego Law Review” 2007, Vol. 44, p. 973 et seq.
BIBLIOGRAPHY
LITERATUREBielska-Brodziak A., Materiały legislacyjne w dyskursie interpretacyjnym z perspektywy brytyjskiej, amerykań skiej, francuskiej, szwedzkiej i polskiej, [in:] Konwergencja czy dywergencja kultur i systemów prawnych?, Eds. O. Nawrot, S. Sykuna, J. Zajadło, Warsaw 2012.
Boudreau Ch., Lupia A., McCubbins M.D., Rodriguez D.B., What Statutes Mean. Inter- pretative Lessons from Positive Theories of Communication and Legislation, “San Diego Law Review” 2007, Vol. 44.
Breyer S., On the Uses of Legislative History in Interpreting Statutes, “Southern California Law Review” 1992, Vol. 65.
Brown R.B., Brown S.J., Statutory Interpretation: The Search for Legislative Intent, Notre Dame, Indiana 2002.
Costelloe S., The Need for Conditions Limiting the Use of Legislative History in Statutory Interpretation: Lessons from the British Courts, Notre Dame Journal of Law, “Ethics &
Public Policy” 2015, Vol. 29.
Eskridge W.N. Jr., All About Words: Early Understandings of the “Judicial Power” in Statutory Interpretation, 1776–1806, “Columbia Law Review” 2001, Vol. 101.
Eskridge W.N. Jr., Frickey P.P., Garrett E., Legislation and Statutory Interpretation, New York 2006.
Fleischer Cf.H., Comparative approaches to the use of legislative history in statutory interpretation, “American Journal of Comparative Law” 2012, Spring.
Frankfurter F., Some Reflections on the Reading of Statutes, “Columbia Law Review” 1947, Vol. 47.
Jellum L.D., Mastering Statutory Interpretation, Durham 2008.
Kim Y., Statutory Interpretation: General Principles and Recent Trends, New York 2009.
Morawski L., Wykładnia w orzecznictwie sądów. Komentarz, Toruń 2002.
Nourse V.F., A Decision Theory of Statutory Interpretation: Legislative History by the Rules,
“Yale Law Journal” 2012, Vol. 122.
Popkin W.D., A Dictionary of Statutory Interpretation, Durham 2007.
JUDGMENTS
Judgment of the Voivodeship Administrative Court in Warsaw of 21 November 2012, II SA/Wa 1473/12, LEX No. 1249102.
Judgment of the Voivodeship Administrative Court in Warsaw of 21 November 2012, II SA/Wa 1412/12, LEX No. 1249091.
Judgment of the Voivodeship Administrative Court in Warsaw of 6 December 2012, II SA/
Wa 1808/12, LEX No. 1334348.
Judment of the Voivodeship Administrative Court in Warsaw of 21 November 2012, II SA/
Wa 1605/12, LEX No. 1249127.
Judgment of the Voivodeship Administrative Court in Warsaw of 21 November 2012, II SA/Wa 1434/12, LEX No. 1249094.
Judgment of the Voivodeship Administrative Court in Warsaw of 21 November 2012, II SA/Wa 1473/12, LEX No. 1249102.
Judgment of the Voivodeship Administrative Court in Wrocław of 10 July 2013, I SA/Wr 482/13, LEX No. 1351221.
Judgment of the Voivodeship Administrative Court in Gdańsk of 11 July 2013, III SA/Gd 223/13, LEX No. 1368857.
Judgment of the Voivodeship Administrative Court in Gdańsk of 23 January 2013, I SA/
Gd 1218/12, LEX No. 1291455.
RESOLUTIONS
Resolution of the Polish Supreme Court of 26 October 2016, file ref. No. III CZP 56/16.
Resolution passed by 7 Supreme Court Judges of 16 December 2008, III CZP 102/08, OSNC 2009, No. 5, item 65.
A n n a H o ł d a - W y d r z y ń s k a
University of Silesia (Poland)
PROTECTION OF LITERARY AND ARTISTIC TITLES UNDER TRADEMARK LAW
A good title is at least half of the work’s success.
Good books are known by few, but good titles by all.
J. Wittlin
INTRODUCTION
“The title of a work of art” is accepted as a “linguistically defined, widely, if not commonly, accepted unit name of a given work of art”1. The title of a work speaks for the recognisability of the author2, where often it is characterised by various levels of individuality corresponding to the recognisability of the work, the author, and the popularity of the work itself. The title often “[…] attracts the amateur, focuses his gaze and enchants him in advance; the title is a magician, but every so often also a shameless trickster […]”3. Titles of literary works function in the world of “symbols”.
The titles dictate our choice, as convenient symbols in a set of psychological factors4. The importance of a good title still arises, so the choice of a title of work has become the subject of unbridled competition5.
Title protection is not the protection of the work under the title, but the protection of the recognisable marking individualising the work. As a result, the protection of a work title is possible when it fulfils its individualising and distinguishing function6. It should be remembered that its protection can be considered on two levels: either in the context of the whole work, where the title is understood as an integral part7, or quite the opposite – according to various pieces of legislation – where it is treated as a separate legal entity.
Taking this into consideration, title protection can result from legislation on fighting
1 M. Wallis, Sztuki i znaki. Pisma semiotyczne, Warszawa 1983, p. 226.
2 W. M. Borchard, Trademarks and the Arts, Nowy Jork 1989, p. 1 et seq.
3 H. Béhar, O tytułach surrealistycznych, “Pamiętnik Literacki” 1981, No. 2, p. 261.
4 V.S. Netterville, B.L. Hirsch, Piracy and Privilege in Literary Titles, 32 “S.Cal.L.Rev.” 101 (1958–
1959), p. 102.
5 S.W. Tannenbaum, Copyright Law: Titles in the Entertainment Field, 45 “A.B.A.J.” 459 (1959), p. 459.
6 S. Grzybowski, A. Kopff, J. Serda, Zagadnienia prawa autorskiego, Warszawa 1973, pp. 99–100.
7 J. Barta, R. Markiewicz, Prawo autorskie, Warszawa 2008, p. 42. Concerning the integrity of work see: A.M. Niżankowska, Prawo do integralności utworu, Warszawa 2007; M. Szaciński, Integralność utworu a prawo moralne autora, “Palestra” 2010, No. 1–2, pp. 132–135.
