Konstytucyjne aspekty regulacji procesu inwestycyjno-budowlanego

Authors:

• Roman Hauser,
• Zygmunt Niewiadomski

Abstract

The authors consider regulating the construction investment process in the aspect of constitutional freedoms, rights and values. They emphasise that any systemic, codified regulation of the construction investment process in Poland has to take into account constitutional grounds, in particular the constitutionally-protected right of ownership and the related right of development. The legislator, when enacting regulations which enable exercise of the right of development (construction freedom), cannot disregard legal protection of other constitutional freedoms, rights and values, including public interest and interests of third parties. So the legislator's task is to balance the conflicting values. The balancing must be based on the principle of proportionality and the degree of legislator's interference in the right of development on the one hand and in other values on the other should be in adequate proportion to the scope of the interference by authority. Nevertheless, one should not lose sight of the constitutional standard of requirements of social justice. Finally, it is necessary to implement, to a greater extent than now, the principle of certainty, clarity and intelligibility of the law. According to the authors it is necessary to create an internally coherent regulation, first of all efficient and fair one, effectively protecting the constitutional freedoms and rights of both an individual and the community. It is only such a law (building code) that may produce the intended result.