Prawotwórcza rola sądów administracyjnych na przykładzie uchwały rady gminy w przedmiocie opłat za korzystanie z przedszkoli publicznych

Abstract

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 prejudicature. 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.