sądy administracyjne; rola prawotwórcza; opłaty za przedszkola
Katowice : Wydawnictwo Uniwersytetu Śląskiego
B. Dolnicki (red.), "Sądowe stosowanie prawa" (S. 59-74). Katowice : Wydawnictwo Uniwersytetu Śląskiego
The subject-matter of the paper is the analysis of a law-creating role of administrative courts
on the example of the law of a district council in the case of fees for attending public kindergartens.
The very work will present how and by means of which methods administrative courts make
actions being law-creating in nature. What will be interesting is also showing how law-creating
adjudications are made in practice, and what results it brings.
The amendment to the article 6 and 14 of the 5th act of 7 September 1991 on the education
system on 1 September 2010. Newly-passed regulations stipulate that a public kindergarten provides
free teaching, education and upbringing at the time specified by the body in charge, namely
not less than 5 hours a day. In this way, a law maker sanctioned an already questioned law to
take fees for children attending public kindergartens. The regulations brought into life on 1 September 2010 do not precisely regulate the problem
of a partial payment for attending public kindergartens. The legislator judged that districts have
the right to take proper fees, however, did not specify how and on what grounds they could be
taken. The existence of areas legally unregulated led to numerous interpretative doubts.
A district freedom in creating the rules of taking fees and the lack of traditions in this context
led to the formation of a multiplicity of ways defining the amount of fee for attending public
kindergartens. In the course of a court-administrative proceeding the courts were forced to solve
numerous practical problems, especially to work out the rules specifying how the fees for using
kindergartens could be taken.
In the judicature of administrative courts one can find numerous examples of judicatures in
which the court, making an interpretation, in fact supplements the content of a legal norm in an
imprecise way or too laconically formulated in the content of the law.
In the case of legal doubts concerning a resolution on fees for attending public kindergartens,
a law-creating role of administrative courts took on two forms, a de facto precedent and
The course of the judicature of administrative courts judged three issues that did not result
by any means from the sound of regulations of the law of the system of education.
First of all, the courts concluded that the fee for attending kindergartens can be defined as
a legal-financial institution, an important feature of which is an equivalent nature, which means
that it is not either a public duty or a quasi agreement.
Secondly, the judicature courts dispersed a doubt concerning the way of establishing fees for
attending kindergartens. In practice, different solutions were created. In the part of districts a limit
fee for one hour of child kindergarten attendance over the free minimum was introduced. In some
other parts a fixed or a flat rate was taken. In some other districts, however, a fee proportionate
to the time a child spends in a kindergarten and amount of a salary was taken into account.
Thirdly, passing an abstract resolution, the Chief Administrative Court adjudicated that the
very fee for attending kindergartens can differ as to the number of children in a family attending
a kindergarten. The very court stipulated that introducing a fee lowered for each subsequent
child does not validate the rule of equality expressed in the 32nd article of the Constitution of
the Republic of Poland.