Prawo o szkolnictwie wyższym. Nowe prawo - aktualne problemy, 263 s.

Abstract

This publication is the result of collective work of the team centered around the Faculty of Law and Administration of Nicolaus Copernicus University under direction of Mr. Jacek Pakuła. Initial impulse to start works on this project was the reform of science and higher education, especially the Act of 18 March 2011. This amendment may be differently evaluated, as it is reflected in presented texts. For some, proposed solutions are not sufficient to cure education, especially higher education. For others, they represent a kind of revolution. The subject of the particular analysis are issues of great importance. They deserve attention, though sometimes for different reasons, they were not sufficiently discussed in the public debate and sometimes even ignored. For these reasons, these texts are non-clerical interpretation. The publication consists of twelve articles:

Aleksandra Szczerba-Zawada Prohibition of discrimination in higher education in Polish legal system. Remarks against EU law The aim of the article is to analyze how the non-discrimination principle in the higher education is guaranteed in the Polish legal system. For this purpose, the author has analyzed those of national regulations, from which the prohibition of discrimination in higher education could be inferred, to a great extent the Law of 3 December 2010 implementing certain EU regulations concerning equal treatment law (so-called equality law) – the first in the Polish legal order manifestation of the right to equal treatment in the objective area. In subsequent chapters, the author has pointed out the legal basis of the prohibition of discrimination in higher education and prohibited forms of unequal treatment in this sphere, outlined the subjective and objective scope of the protection against the unequal treatment in the higher education introduced by virtue of the so-called Polish equality law, analyzed the exceptions and exemptions from the principle of non-discrimination in this field as well as the consequences of breach of the principle of equal treatment in higher education. To conclude, the author has subjected the Polish anti-discriminatory instruments in the field of higher education to critical evaluation. To fully realize the topic – to reveal the relevance of the prohibition of discrimination in the higher education – the author has made reference to the relevant EU anti-discriminatory regulations. In consequence, where it is justified by the need of comprehensive approach to the issues presented in the article, the comparative method is applied.

Michał Szewczyk Payment for full-time studies in the light of the constitutional right to education The Constitution of the Republic of Poland establishes the right to education in article 70 (1). Article 70 (2) of the Constitution states that education in public schools shall be free of charge, whilst permitting statue to impose fees for “certain educational services” provided by State higher education institutions. Th e purpose of this article is to analyse the possibility of introducing fees for full-time studies on the ground of above-mentioned constitutional provisions. One of the most important social rights, i.e. the right to education is included in most of the main acts of the international human rights law but none of them obliges states to introduce unpaid studies in public institutions of higher education. What is more, only some European countries (e.g. France, Greece, Lithuania, Bulgaria and Romania) guarantee unpaid public higher education in their constitutions. In the main part of the article, analysing Polish constitutional regulations about free education from the critical perspective, the author concludes that introducing fees, either total or partial, for full-time studies will be unconstitutional. Such thesis is based mainly on the jurisprudence of the Constitutional Tribunal who is in a position that fees for certain services provided by public institutions of higher education should have an exceptional character, i.e. unpaid studies shall be the basic form of educating students in State higher education institutions and fees for studies in such schools shall be charged only for some types of studies. Nevertheless, introducing fees for studies on the second or subsequent major of full-time studies (introduced in 2011), in the opinion of the author, is in accordance with constitutional provisions.

Krzysztof Czarnecki The legal construction of financing universities from budgetary funds The article presents general rules of financing public universities in Poland according to the Act on Higher Education of 2005 and the Act on the Principles of Financing Science of 2010. Constitution of the Republic of Poland states that education in public schools (also universities) is free of charge. Only some of the educational services provided by public universities may be chargeable, as an exception to the general rule. Thus, financing higher education in Poland is based on budgetary grants. Running expenses (funds for the remuneration, scholarships, maintenance grants, minor renovations etc.) and investment expenses are regulated by the Act on Higher Education. Financing scientific research, special equipment, some kind of investments and international cooperation in the field of science are specified by the Act on the Principles of Financing Science.

Adam Szymański Charter of higher school as a source of labour law In principle a charter is an act governing the structure and operating rules of an institution. It stems from both administrative and civil law. A charter often contains rules concerning rights and obligations of the parties to an employment relationship as well. As stipulated by article 9 of the Labor Code, the labor law has its specific system of sources of regulations including autonomous sources of labor law and charters among them. Although the charters are not directly mentioned by the Constitution as sources of law, it is widely accepted that their normative power governs employment relationships. The charters are the lowest rank sources of law however, so they have to conform with the universally binding law, as well as with the higher-ranked sources of labor law i.e. the collective agreements and statute-based collective agreements. Following the rule of employee’s privilege the stipulations of a charter shall be applied as far as they are more beneficial to the employee than the provisions of all of the abovementioned sources of law. The Act on Higher Education authorizes the higher-education schools to govern some of the employment issues on charter basis. This paper covers my search for a labor law-adequate definition of a charter. It also concerns the position of a charter in constitutional system of sources of law and the system of labor law sources. The paper also covers the issues passed by the Act on Higher Education to a charter-based regulation. Finally, the paper contains a thorough analysis of individual provisions applied by higher schools in their charters, focusing on their compliance with the statutes. The analysis is based on the example of the Charter of Nicolas Copernicus University and other higher schools charters.

Marta Czakowska The competences of a public university senate in the light of the amendment to the Act on Higher Education The reform of higher education in Poland has become one of the major challenges to those who establish law and to the academic community. The long-awaited amendment to the Act on Higher Education, which came into effect on 1 October 2011, introduced many changes in the following areas: management of universities, pursuing scientific careers, improving the quality of education, competences of the university authorities, including the university senates. These changes apply to both public and private universities. The author describes the main changes in the competences of senate as a public university collegial body.

Paweł Raźny Role of rector of public university in amended the Act on Higher Education Polish public university is a legal person who has basically two kinds of bodies: the collective bodies and single authority. These bodies have a different character and powers. The rector is the head of the university. He/she represents, governs and manages the university. He/she is also the superior of the staff , students and doctoral students. According to the amended Act of 27 July 2005 Law on Higher Education rector can be elected or selected through a competition for a brief period with a right to be re-elected once. The law specifies the minimum academic qualifications a successful candidate for rector should possess, but it does not define requisite managerial competence.

Michał Mościcki The essence of PhD studies after amendment of 2011 The author describes actual regulations of PhD studies – after comprehensive amendment of 2011. The author pays his attention on already demanded directions of modifications and the level of its implementation, as well as he makes evaluation of equity of several guidelines and regulations established by the Polish legislator in this scope.

Łukasz Górski The importance of ethical codes of undergraduate and graduate students for their disciplinary proceedings The amendments to the Act on Higher Education obliged relevant students’ councils to prepare ethical code of conducts of both undergraduate and graduate students. The paper aims to present the purpose of those codes in the course of disciplinary proceedings of the aforementioned persons. Some theoretical remarks pertaining to the legal interpretation of relevant legal provisions, as well as the general status of ethical codes are presented. The practical aspects are also not omitted – the way those provisions are applied is taken into account.

Szymon Krajnik Application of Criminal Code of 1997 and Code of Criminal Procedure of 1997 in disciplinary proceedings involving students or doctoral students – selected issues The subject matter of this paper is the problem of an appropriate application of the provisions of the Criminal Code 1997 and the Code of Criminal Procedure 1997 for the purpose of disciplinary proceedings involving students or doctoral students, which are not regulated in the Act of July 27th,2005 – the Law on Higher Education. The essence of the subjective issue is the problem of an adequate interpretation of a legal notion: “appropriate application”. Such legal construction needs to comply with a specific character of a disciplinary liability as well as the range of adjustment by the Law on Higher Education and its executory provisions. Further difficulty regards the question whether specific matters are not regulated in order to avoid the unnecessary repetition of the regulation or are purposely unregulated by the Law on Higher Education. It should be noted that the rules of disciplinary proceedings are not as rigid as the legal principles binding in criminal proceedings, thus the question of an appropriate application of the substantial provisions set in the Code of Criminal Procedure 1997 is additionally ambiguous. On the other hand, the application of the criminal responsibility principles established in the Criminal Code 1997 might be carried out only per analogiam because of a lack of referring regulation set out in the Law on Higher Education.

Jacek Pakuła Material assistance for higher education – an assessment attempt The article is an attempt to assess the system of material assistance for college. The starting point for consideration is the legal grounds, including judicial decisions of the Constitutional Court. The study includes also inspection reports regarding inter alia Supreme Audit Office and the Ministry of Science and Higher Education. These reports have revealed a number of irregularities that had a negative impact on the efficiency of the material assistance system. Material assistance was also included in the prepared strategies to reform science and higher education. The study also includes changes implemented by amendment of 2011 year. The complements to study are the conclusions de lege lata and requirements de lege ferenda.

Bogusz Bomanowski Criteria of comprehensive verification of phd studies participant activities and output in view of scholarship system Polish system of academic education is in the important and at the same time difficult period, when it undergoing reforms. Together with another regulations of this system, scholarship and grant system is the subject of significant modifications. Author presents his point of view on role of scholarships seen in the light of legal criteria.

Michał Tyburek The construction contract for the provision of educational services by the university concluded the public under the Act on Higher Education Article introduces the issues relating to contracts entered into by public universities, and whose object is the provision of education services. The article discusses the basic elements of the structure of the contract, beginning with the presentation of the right to education and its constitutional basis. The author presents a further problem with the naming of the agreement. The article then provides an overview of the parties to that agreement, including consideration of the public school recognition as an entrepreneur. Moreover, discussed the rights and obligations of the parties to the agreement, the form for its conclusion and its legal nature. In presenting the various elements of the agreement by capturing focused on the principle of freedom of contract restrictions and the reasons for such a legislative solution. In conclusion, the findings, the author concluded the assessment of the current state of the law, and demands change.