Volume 4 Spring 2017 Issue 1 UNIVERSITY OF WARSAW JOURNAL OF COMPARATIVE LAW ARTICLES The role of public prosecutor and parties in criminal cases – an insight – Judyta Banaszyńska into Polish and American regulations The meaning of bad faith in European trademark law – Sofie Cristens Methods of lifting the veil of incorporation in the company law of the – Patryk Polek United Kingdom and its judicial difficulties CEFTA and CISFTA as Mechanisms for Introducing Free Trade in – Maria Bun Central and Eastern Europe Post-1989 An ocean apart: Comparison of Insider Trading regulations in the US – Michał Bałdowski and in the EU SHORT ARTICLES The system of monitoring wholesale energy markets for electricity and – Julia Rychlińska gas – the REMIT Regulation Copyright © by the Authors UNIVERSITY OF WARSAW JOURNAL OF COMPARATIVE LAW UNIVERSITY OF WARSAW JOURNAL OF COMPARATIVE LAW THE JOURNAL – SUBMISSIONS – The University of Warsaw Journal of The Journal accepts two types of Comparative Law has been established as an manuscripts: open access Journal welcoming students, legal (1) articles between 5,000 and 12,000 scholars and professionals from various words including footnotes; jurisdictions to contribute to the study of (2) short articles between 3,000 and differences and similarities between different 5,000 words including footnotes; legal systems. (3) case notes not exceeding 3,000 words including footnotes. CONTACT INFORMATION – All manuscripts must be submitted University of Warsaw Journal of through our Electronic submission system Comparative Law accessible on our website. Articles are University of Warsaw subject to a double blind peer review by Faculty of Law and Administration the Editorial Board and by the Academic Collegium Iuridicum I Building Review Board. Room 003 Citations must be conform with the 4th 26/28 Krakowskie Przedmieście Street Edition of the Oxford Standard for 00-927, Warsaw, Poland Citation of Legal Authorities. E-mail: [email protected] COVER DESIGN – Web: www.uwjcl.wpia.uw.edu.pl Copyright © by Justyna Markowska CITATION – The online version of the Journal is its primary version. This issue should be cited as (2017) 4(1) University of Warsaw Journal of Comparative Law. ISSN 2353-3358 (Print) ISSN 2353-642 X (Online) ii EDITORIAL BOARD 2017 EDITORS-IN-CHIEF Marta Ołowska – Samanta Wenda-Uszyńska EDITORS Aleksandra Chadaj – Monika Ziarno ACADEMIC REVIEW BOARD PROF. DR DRES. H.C. RAINER ARNOLD, PROF. STUART R. COHN, Emeritus Professor of Law, University of Regensburg; Professor of Law, University of Florida; Jean Monnet Chair of EU Law; Membre Member of the American Bar Association; Associé of the International Academy of Senior Fellow, United Nations Institute for Comparative Law; Fellow of the European Training and Research Law Institute PROF. DR HAB. TADEUSZ ERECIŃSKI, PROF. LARRY A. DIMATTEO, Huber Hurst Professor of Civil Procedure at the Professor of Contract Law & Legal Studies University of Warsaw; President of the Civil at the University of Florida; President, Chamber of the Supreme Court of the International Law Section, Academy of Republic of Poland Legal Studies in Business PROF. DR HAB. ZDZISŁAW GALICKI, PROF. DR HAB. LECH GARDOCKI, University of Warsaw Professor of Professor of Criminal Law at the International Law; former Member of the University of Warsaw; former First United Nations International Law President of the Supreme Court of the Commission Republic of Poland PROF. DR HAB. TOMASZ GIARO, Professor DR HAB. EWA GMURZYŃSKA, Assistant of Roman Law at the University of Warsaw Professor in Alternative Disputes and Vice-Dean for International Resolution at the University of Warsaw; Cooperation of the Faculty of Law and Director of the Centre for American Law Administration; former researcher at the Studies, Faculty of Law and Max Planck Institute for European History Administration, University of Warsaw of Law PROF. DR HAB. ROBERT GRZESZCZAK, PROF. DR DRES. H.C. MARCUS LUTTER, Professor of European Law, University of Professor of Commercial and Economic Warsaw, Member of the Committee of Law at the University of Bonn; former Legal Sciences of the Polish Academy of Visiting Professor at the University of Sciences; Member of the Programming Oxford and at the University of California Board of the Strategic Litigation Program of Berkeley; former Member of the the Helsinki Foundation for Human Rights government commission on the German Corporate Governance Code; Honorary Doctor of Law of the University of Warsaw; Consultant with WillmerHale Germany iv DR ELŻBIETA MIKOS-SKUZA, Assistant PROF. JOAKIM NERGELIUS, Professor of Professor in International Law at the Law at the University of Örebro; Assistant University of Warsaw; Member and former Professor of Comparative and European Vice-President of the International Law, Abo Academy, Turku, Finland Humanitarian Fact Finding Commission; full Member of the San Remo International Institute of Humanitarian Law; former Vice- President of the Polish Red Cross PROF. DR HAB. KRZYSZTOF PROF. DR HAB. JERZY POCZOBUT, PIETRZYKOWSKI, Professor of Civil Law at Professor of Private International Law at the University of Warsaw; Justice of the the University of Warsaw Supreme Court of the Republic of Poland PROF. DR HAB. JERZY RAJSKI, Professor of PROF. DR HAB. MACIEJ SZPUNAR, Civil Law at the University of Warsaw; Professor of Private International Law at former Visiting Professor at the University the University of Silesia in Katowice; of California Berkeley; Correspondent of Advocate General in the Court of Justice the International Institute for the of the European Union Unification of Private Law UNIDROIT DR STEPHEN TERRETT, Director of the PROF. TAKIS TRIDIMAS, Chair of European British Law Centre at the University of Law, Dickinson Poon School of Law, Warsaw Kings College London; Sir John Lubbock Professor of Banking Law, Queen Mary College, University of London; Professor of European Law, College of Europe, Brugges PROF. DR HAB. MAREK ZUBIK, Professor of Constitutional Law at the University of Warsaw; Justice of the Constitutional Tribunal of the Republic of Poland Volume 4 Spring 2017 Issue 1 TABLE OF CONTENTS ARTICLES The role of public prosecutor and parties in criminal cases – an insight into 2 Polish and American regulations – Judyta Banaszyńska The meaning of bad faith in European trademark law 16 – Sofie Cristens Methods of lifting the veil of incorporation in the company law of the 48 United Kingdom and its judicial difficulties – Patryk Polek CEFTA and CISFTA as Mechanisms for Introducing Free Trade in Central 63 and Eastern Europe Post-1989 – Maria Bun An ocean apart: Comparison of Insider Trading regulations in the US and in 96 the EU – Michał Bałdowski SHORT ARTICLES The system of monitoring wholesale energy markets for electricity and gas – 120 the REMIT Regulation – Julia Rychlińska vi 2017 Judyta Banaszyńska 2 The role of public prosecutor and parties in criminal cases – an insight into Polish and American regulations Judyta Banaszyńska* Abstract The role of public prosecutor and parties in criminal cases is determined by the criminal law regulations, which in Polish and American law are mostly conditioned on the bases of common law and continental legal systems. Several differences and various approaches with reference to the special rights and obligations of the entities each time need to be considered in regard with the whole domestic legal system. In the paper the main distinctions and similarities between the roles in Polish and American regulation will be presented, as well as the short historical outline and laws in force in both countries. I. INTRODUCTION – HISTORICAL BACKGROUND Despite of the latest reforms, conducted in relevance to Polish acts: Penal Code1 from 1997 (hereinafter referred as “p.c.”) and the Code of Criminal Procedure2 from 1997 (hereinafter referred as “c.c.p.”), the role of public prosecutor and parties in the criminal procedure remains connected with the system of proceedings which has been evolving in Polish law over past centuries. The first modern own Polish criminal act was Kodeks Karzący Królewstwa Polskiego (Penal Code of the Kingdom of Poland) from 1818, based on the Austrian, French and Bavarian law3, later replaced by the Russian Kodeks Kar Głównych i Poprawczych (The Code of Main and Correctional Punishments) numbering 1221 articles.4 * The Author is a 5th year Law student at the Faculty of Law and Administration of the University of Warsaw 1 Penal Code - Ustawa z dnia 6 czerwca 1997 r. – Kodeks karny, Dz.U. 1997 nr 88 poz. 553 2 Code of Criminal Procedure - Ustawa z dnia 6 czerwca 1997 r. - Kodeks postępowania karnego, Dz.U. 1997 nr 89 poz. 555 3 B. Sygit, Historia prawa kryminalnego (Toruń 2007) 404 4 Ibid 419 3 The role of public prosecutor and parties in Vol. 3, Issue 1 criminal cases – an insight into Polish and American regulations On the beginning of the independent Poland’s history there were different criminal procedural laws being in force: Russian (1864), Austrian (1873), German (1877) and Hungarian (1896) acts. In 1919 the Codification Commission (Komisja Kodyfikacyjna) was launched in order to prepare the proper unified Polish procedural code, which was finally enacted in 1926 as the Regulation of the President.5 During the XX century many reforms - connected with Polish political systems - were conducted: communistic changes in the 50s, and also the Code of Criminal Procedure from 1969 (prepared by the Codification Commission), which was modifying the obligatory system in the framework