DC pole | Wartość | Język |
dc.contributor.author | Mikołajczyk, Marian | - |
dc.date.accessioned | 2018-05-30T10:21:09Z | - |
dc.date.available | 2018-05-30T10:21:09Z | - |
dc.date.issued | 2013 | - |
dc.identifier.isbn | 9788322621264 | - |
dc.identifier.isbn | 9788380120747 | - |
dc.identifier.uri | http://hdl.handle.net/20.500.12128/4138 | - |
dc.description.abstract | Polish towns were located almost exclusively on the basis of a Magdeburg law or its
varieties: a Środa or Chełmno law. Accordingly, the basic sources of the court law in these
towns were Zwierciadło saskie and Weichbild magdeburski with comments (voices) added to
them later on. Sometime later it was undoubtedly Carolina known in Poland above all in
the form of the adaptation of Bartłomiej Groicki from 1559 that had a great influence on
the municipal material and trial criminal law. A big role in the shaping of a process law
was also played by lawyers’ works dealing with the municipal law appearing above all in
the 16th century. However, the municipal law (including the criminal trial) developed
mainly in the course of practices next centuries. That is why the studies on the history of
the procedure used in towns concentrate above all on the practices of the judiciary described
and retained in municipal court books.
The aim of the studies is to get to know the municipal procedure, trace its course of
action and examine particular institutions. The establishments made should allow for answering
the question if municipal proceedings in criminal cases maintained a traditional,
medieval, complaint-contradiction nature or were dominated by newer elements derived
from the inquisitive trial.
As it turns out, the procedure used in Polish towns did without investigation in
general. It was replaced by single, often informal, preparatory actions, frequently conducted
by the prosecutor to be. Thus, the proceeding was basically purely judicial and
initiated ex officio in exceptional cases. The rule was an initiative of the subjects “from
the outside”. However, apart from a traditional private complaint, a public complaint
was playing a more important role, made by a special office worker (an instigator).
The trial comprised clearly identified trial parties. Sometimes the accused used to make
use of the defense attorney’s help. Also, the defense attorneys were ascribed to the accused
ex officio (especially in bigger towns). The parties played an important role in the
evidence proceeding, e.g. when nominating the witnesses or preparing questions to be
answered by them. Still, a key role was played by the evidence oath of both trial parties,
especially the accused. What was an important element of the proceeding was the
parties’ arguments, starting from a complaint made by the plaintiff. The parties also
tried to use the appeal measures (though usually in vain). The traces of the activity of
a plaintiff party can even be observed in an executive proceeding, e.g. in the form of
granting a pardoning to the accused in terms of execution. Despite an increasing role of
writing in the form of an accurate protocol of action undertaken, the oral trial was retained.
The proceeding was also open not only as regards the parties, but also the audience.However, apart from numerous elements of a complaint-contradiction trial, other issues
associated with the inquisitive trial were also revealed. Many actions were taken by
the court ex officio, paying no attention to the initiative of the parties. One should also underline
a very typical concentration on the person of the accused. The attempts were
made to gain testimony from them. The voluntary testimony was not enough, and tortures
were also often used. In spite of a big role of the oath, the main aim of the trial was not
to free the accused from charge, but to prove them guilty. When it comes to criminal
cases, many restrictions existed concerning the use of appeal measures.
Probably not all restrictions of the complaint and contradiction nature should be connected
with the influence of an inquisitive procedure. Some of them, e.g. a limitation of
the law to defense in the case of catching a criminal red-handed, were surely of a medieval
origin. Probably it was assumed that if the case is obvious, complex procedures and trail
guarantees are not necessary.
All in all, one can speak of a certain mixture of the elements of a traditional complaint-
contradiction trial and newer solutions of an inquisitive nature now and then. It was
not a mixed trial yet. It lacked in this case any kind of arrangement leading to a separated
inquisitive preparatory proceeding and dominated by complaint-contradiction elements
of a proceeding in front of the court.
Besides, it seems that the complaint-contradiction elements maintained predominance
while the borrowings from the inquisitive procedure were rather peripheral and technical
in nature. They facilitated the proceeding and decision-making, however, they did not determine
the nature of the whole trial. Thus, we would be able to consider the municipal
criminal trial of the early-modern times the complaint-contradiction trail, only enriched
with some modern elements of an inquisitive origin, which, obviously, does not exclude
the existence of the exceptions to this rule. | pl_PL |
dc.language.iso | pl | pl_PL |
dc.publisher | Wydawnictwo Uniwersytetu Śląskiego | pl_PL |
dc.rights | Uznanie autorstwa-Użycie niekomercyjne-Bez utworów zależnych 3.0 Polska | * |
dc.rights.uri | http://creativecommons.org/licenses/by-nc-nd/3.0/pl/ | * |
dc.subject | prawo procesowe | pl_PL |
dc.subject | postępowanie karne w Małopolsce | pl_PL |
dc.title | Proces kryminalny w miastach Małopolski XVI-XVIII wieku | pl_PL |
dc.type | info:eu-repo/semantics/book | pl_PL |
Pojawia się w kolekcji: | Książki/rozdziały (WPiA)
|