Unifikacja i kodyfikacja prawa rodzinnego w Polsce (1945-1964)

Abstract

This book presents the history of works on the unification (1945-1946) and then on the codification (1947-1964) of family law in People's Poland. The book consists of an introduction and three parts, corresponding to the particular stages of works on family law in chronological order, and of their completion. The introduction to the book, entitled The research issues and the state of research, identifies the most important research issues raised in the work, presents the existing literature and indicates that the key importance the documents from the archives had for the research. In the first part of the book, Chapter I covers works on the unification of family law. It was a part of the unification of civil law, an action undertaken by the new communist government. Family law was then considered as a part of civil law. The Ministry of Justice elaborated four decrees on this matter: the law of marriage, matrimonial property law, family law and guardianship law, as well as additional decrees containing introductory provisions. They covered all the substance of family law. The decrees were created in a very short time of a few months during the period 1945-1946. This was possible thanks to the drafts prepared by the Codification Committee of the Second Republic. They were in a small degree reworked after the war by lawyers working for the new government. The only exception was the decree of guardianship law, prepared from the very beginning. Chapter II is devoted to the place of family law in the draft of the Civil Code from 1948. It was the first attempt to codify the civil law in Poland after the end of war. The success of works on the unification led to the decision to attempt to codify the law on the basis of the four decrees which entered into force in 1946. The Codification of Civil Law Comrnittee created at the Ministry of Justice, consisted only of seven members. It prepared a draft of a civil code based on the systematics of the German Civil Code of 1896 - BGB. Family Law was ineluded in Book IV, and the proposed provisions were only a slight improvement of the regulations adopted in the decrees. They did not become binding law because in 1949 the works on draft of the Code were abandoned. It was proelaimed that the draft of the Code was inconsistent - as a capitalist one - with the rapid process of the Sovietization of the Polish political and economic system. This process was calIed "the construction of the foundations of socialism". Part II of the book presents the works on the Family Code in 1948-1950. An "even march towards socialism" was proelaimed by the communist propaganda. In this march Poland and Czechoslovakia were to develop a uniform Family Code, separated from the civil law. It was a Soviet pattem, as according to Soviet doctrine the family law is an independent branch of law, separated from civil law. Family law was supposed to be a place of experiment in the creation of a socialist pattem of the family. Chapter III presents the origin of the Family Code and the beginnings of the Polish-Czechoslovak cooperation. The initiative came from the Polish Minister of Justice Henryk Świątkowski. It has been very well received, since Czechoslovakia tended then to rapid codification of civil law, based on Soviet model. Chapter IV indicates the similarity of the processes of codification of civil law in Poland and Czechoslovakia since 1918. Section V presents the progress of works on a common project. The progress meant - in fact - the gradual introduction of the Soviet model. The elements of this model included, inter alia, the simplification of marriage law provisions, especialIy concerning annulment and the divorce. The Soviet system of matrimonial property law, based on the joint property of spouses (community of attainment), was also adopted. The works revealed differences between the Polish and Czechoslovak parties on those issues in which there was no elear Soviet guidance. In the absence of agreement, the parties ignored the problem by exeluding the provision from the draft. This has resulted in lacunas in the Family Cod e, which subsequently had to be filIed by case law. Chapter VI shows the further course of the works in Poland, after the preparation of the draft with the Czechoslovak state. SmalI amendments were introduced then, and the texts of Polish and Czechoslovak codes differed in only three of the 91 artieles. Chapter VII describes the debate on a motion in the Legislative Sejm. It illustrates that the Parliament was merely a propaganda voting machine, and the whole discussion was directed in advance. The Code was adopted unanimously. Chapter VIII presents the provisions on family law contained in the enacted in the 1952 Stalinist Constitution of People's Poland. They were declaratory in nature and did not re suit in the need to amend the Code. There was only one small amendment to the Code, passed in 1953. The amendment resulted from the lack of regulations in the Code. Chap ter IX presents the extensive case law of the Supreme Court arising in connection with the Code. The Supreme Court's guiding principles for the judiciary were - like the Soviet system - binding upon the lower courts. The chapter illustrates how many issues were still unresolved by the Code. Courts had great opportunities for interpreting the new law. The analysis of the Supreme Court decisions, however, did not confirm the thesis that the Family Code required urgent replacement by a completely new act. It needed amendments only, based on judicial decisions. Part III of the book is devoted to the works of the Codification Committee on family law. It was established in 1956. Family law was supposed to be - according to the original idea - a part of the Civil Code as one of its five books. The basis of the work was the text of the Family Code. Ultimately, however, it was decided, according to Soviet model, that the family law should be excluded from the Civil Code. The Codification Committee decided to prepare a separate legal act named the Family and Guardianship Code. Chapter X presents the origin and structure of the Codification Committee. Its task was to develop the civil and penal codes of the Polish People's Republic, as well as codes of judicial procedure law regulating the judiciary system. The Committee in its structure and organization of the work bears resemblance to the pre-war Codification Commission. Currently, it did not have such a large range of independence as its predecessor enjoyed. It was located at the Ministry of Justice. Its chairman was the prominent civil lawyer Jan Wasilkowski, who played a major role in the works on family law. Chapter XI presents the provisions of the preliminary draft, prepared by Aleksander Wolter. It aIs o discusses comments made by the reporter Seweryn Szer. The draft was based on the Family Code, but it was much more developed. The amount of articles in it was almost doubled. Chapter XII describes the work during the first reading, which lasted almost one and a half years. The work was very detailed, and discussions on individual provisions sometimes lasted for a very long time. Most disputes arose from the issue of matrimonial property regimes and the rules of divorce and alimony obligations. Noteworthy is the fact that after the first reading a draft of the whole of the Civil Code was subject to public consultation. Chapter XIII presents a lively discussion on the draft family law. It exposed the conservative attitude of the society to family relationships, contrary to the intentions of the communist authorities. Chapter XIV shows the progress of work in the second and third reading of the draft. During the second reading the decision to exclude family law from the Civil Cod e was passed. This decision was a result of political circumstances. It was decided to prepare a new legal act named the Family and Guardianship Code. A large number of amendments was mad e at this stage of the work. Chapter XV is devoted to work on the project in the Cabinet (Council of Ministers). The Codification Committee's draft had many opponents in the Ministry of Justice. They expressed the opinion that it is unnecessary to pass a new act and it would be sufficient to make amendments to the Family Code. Finally the idea of a new code prevailed. There were many amendments introduced to the draft. Work on the bill in parliament (Sejm), as described in Chapter XVI, did not lead to significant changes. It should be noted, however, that a small group of Catholic deputies proposed tightening the rules on divorce and the introduction of separation. These amendments had no chance of success because of the opposition coming from the communist authorities. The discussion in the Parliament, however, had interesting issues. The project was adopted unanimously. The last part of the book, the completion, presents a highly positive opinion on the results of work on family law. Even the Family Code, which arose in Stalin's time, contained many progressive solutions. For example, it was called "the code of the child", since it was based on a general clause of the best interest of the child. It is worth noting that Polish family law has never had a totalitarian character. Adopted in 1964, the Code is in power to this day, despite the political regime change.