|Module title||Legal Acts In Criminal Proceedings: Conceptual, Theoretical And Practical Approaches|
|Module lecturer||prof. UAM dr hab. Barbara Janusz-Pohl|
|Faculty||Faculty of Law and Administration|
Friday 10:30-12:00; room 4.1
Collegium Iuridicum Novum. Address: Al. Niepodległości 53, Poznań
Module aim (aims)
The aims are following:1) Improving the competences linked with dogmatic perspective of Legal Acts in Criminal Proceedings – elaborating from the point of view of the Polish doctrine and case-law2) Introduction of the most representative questions regarding practical aspects of Legal Acts in Criminal Proceedings3) Shaping the capacity of differentiating the Types of Procedural Acts and their: temporary, subjective and objective issues4) Improving the competences connected with the Theoretical Aspects of Legal Acts in Criminal Proceedings: perspective of Conventionalisation and Formalisation5) Improving the general competences connected with the Law Interpretation on the basis of selected construction of Procedural Acts
Pre-requisites in terms of knowledge, skills and social competences (where relevant)
It is required that a candidate knows the fundamental notion and general construction of Criminal Proceedings as well as the fundamental construction of Jurisprudence. This course is dedicated mostly for the students who have already passed the exam of criminal procedure and who’s intention is to intensify and improve knowledge about the Theoretical (Jurisprudential) aspects of law.
FORMALISATION AND CONVENTIONALISATION. CONCEPTS AND METHODS1. Introductory remarks2. The evolution of the conception of conventional acts in jurisprudence2.1. The conception of conventional acts of the Poznań School of legal theory2.1.1. Essence of the conception2.1.2. Elaboration of conception -by the Poznań-Szczecin School of jurisprudence-by Gizbert-Studnicki2.2. From the conception of J.L. Austin to the linguistic conception of constitutive and regulative rules of J.R. Searle2.3. Connotative conception of constitutive rules as construction and consequential rules2.4. Formalisation and conventionalisation – elaboration on the conception of conventional acts in jurisprudence3. Significance of formalisation and conventionalisation concepts for shaping definitions and typologies of acts in criminal proceedingsThis par outline the history of the formation and evolution of the conception of conventional acts in law as presented by the Poznań-Szczecin School of jurisprudence. The discussion is enriched by including the foundations of Austin's conception of performatives and Searle's theory of constitutive rules that has subsequently developed. The latest modifications of the conception of conventional acts in law, involving the ideas of conventionalisation and formalisation were taken into account as well. Until then, they has been left out of dogmatic discussions even in the area of civil law. It is these two constructions that exert special influence on the moulding of the concept of 'act in proceedings' and formulating typological generalisations. These questions set a strict framework for the discussions in the next two chapters for they allow to determine precisely the structure of a criminal-proceedings cA and name the components of the structure indicated by constitutive rules and others indicated by formalisation rules. They also support research into the conditions to be met by the material substrate of a criminal-proceedings cA. DEFINITIONS AND TYPOLOGIES OF ACTS IN CRIMINAL PROCEEDINGS. A CRITICAL REFLECTION1. Introductory remarks2. Definitions of acts in criminal proceedings in the light of the conception of formalisation and conventionalisation-Juristic definitions of the name ‘Act in Criminal Proceedings’: subject-matter-oriented, party-oriented and mixed-Omission as the material substrate of a formalised conventional Act-Teleological aspect of the definitions of an act in criminal proceedings: ‘bringing about a specific trial effect’ and the illocutionary effect of a formalised conventional Act-Definition of an act in criminal proceedings: intellectual-volitional aspect-Behaviour by a person performing an act in criminal proceedings prompted by his/her will distorted by exogenous factors as the material substrate of a formalised conventional ActA. Review of juristic literature propositionsB. Error and deceit3. Typologies of acts in criminal proceedings approached from the standpoint of the formalisation and conventionalisation conception4. Juristic literature typologies of acts in criminal proceedings4. Act in criminal proceedings and its productThe discussion in this part bing us to the formulation of a definition of an act in criminal proceedings, accounting for the conventional and formalised status of this act. Under the definition, an act in criminal proceedings is a formalised conventional legally-relevant act (formalised conventional Act), involving the conscious and free execution of a material substrate for the purpose of performing this act (direct goal = illocutionary effect) in compliance with constitutive rules proper to it. Furthermore, the bringing about of trial effects (so-called final goal) of a formalised conventional Act is covered by its formalisation. So formulated, the definition is in principle universal, because irrespective of a legal system, every act in proceedings is a formalised conventional act and, thus, its material substrate consists in behaviour (action/omission) by the person performing it. A material substrate understood in this way, irrespective of the legal system, is thus an action considered in agreement with the causal conception, while the conventional act itself is modelled on the so-called finalistic theory of action. ACTS IN PROCEEDINGS AND THE CONCEPTION OF CRIMINAL-TRIAL RELATION1. Concept of criminal-trial relation- Conception of criminal-trial relation according to Cieślak- Conception of criminal-trial relation according to Ziembiński2. Competence subordination relation in criminal procedural law- Competence subordination relation and competence norm- Criminal-trial relation – is it only a competence subordination relation?3. Acts in criminal proceedings as acts joined by mereologic relationships.Acts in criminal proceedings, viewed as formalised conventional acts, form linear sequences in time. Arising in a trial, the sequences are not uniform, though – rather varied and intertwined. This view of acts in criminal proceedings corresponds well with the understanding of a competence norm. Its antecedent epitomises the question of performance of a conventional act by entity P. Its performance actualises the prescription of specific behaviour (or performing a conventional act) by entity A (competence norm addressee). It has been observed that the performance of a conventional act by entity P, apart from actualising the duty of entity A, is also a condition for actualising the right of some entity (the same entity P, entity A, or an entirely different entity C) to perform a conventional act next in the sequence. The intertwining of conventional acts is best seen in the relationships between acts in proceedings whose material substrates involve making a postulative declaration of will and responsive acts in proceedings involving making an imperative declaration of will.CONCLUSION AND PRACTISE
Barbara Janusz-Pohl, Definitions and Typologies of Acts in Criminal Proceedings. Perspective of Conventionalisation and Fromalisation, Poznań 2017.