Constitutional Reviews of Incomplete Regulations in Poland

Piotr Radziewicz

Abstract

The Polish legal order distinguishes between two types of incomplete regulations: legislative omissions and oversights. Omissions take place when a regulation (required because of the need for the application of the Constitution or for the performance of specific constitutional obligations) is missing in the system of law. Legislative oversights occur when a normative act is in force but, from the constitutional point of view, it is formulated fragmentarily. The former are not subject to Constitutional Tribunal (CT) control, whereas the latter are embraced by its competence. The existence of incomplete regulations is one of the most important yet still unresolved problems faced by the CT. Therefore, it constitutes a permanent source of discrepancies in CT judgments. The article posits that all incomplete regulations – both omissions and oversights – should be controlled by the CT. However, for the CT to do so, the Constitution should be amended, a special control procedure should be established and a new type of judgment should be introduced, which would consist of finding a statute unconstitutional without derogating it from the system of law. The expansion of the CT’s competence corresponds with the function and axiology of the operation of a contemporary constitutional court that should effectively and completely eliminate all violations of the Constitution arising from inactivity by the legislator.
Author Piotr Radziewicz (FASS / DALPP)
Piotr Radziewicz,,
- Department of Administrative Law and Public Policy
Journal seriesUtrecht Law Review, ISSN 1871-515X, (N/A 70 pkt)
Issue year2019
Vol15
No1
Pages38-49
Publication size in sheets0.55
Keywords in English legislative omission , Polish Constitutional Tribunal , constitutional court , constitutional review of the law , rule of law , constitutionalism , gaps in the law
ASJC Classification3308 Law
DOIDOI:10.18352/ulr.498
Languageen angielski
File
Radziewicz_Constitutional_Reviews_Incomplete_Regulations_Poland.pdf 285.26 KB
Score (nominal)70
Score sourcejournalList
ScoreMinisterial score = 70.0, 20-10-2019, ArticleFromJournal
Publication indicators Scopus Citations = 0; WoS Citations = 0; Scopus SNIP (Source Normalised Impact per Paper): 2016 = 0.743
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