Przegląd Prawa Rolnego, 2008 Nr 1 (3)
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Browsing Przegląd Prawa Rolnego, 2008 Nr 1 (3) by Author "Lichorowicz, Aleksander"
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Item Kwestia zgodności z Konstytucją ustawowego prawa odkupu Agencji Nieruchomości Rolnych(Wydawnictwo Naukowe UAM, 2008) Lichorowicz, AleksanderThe paper contains deliberations on the origin of the statutory right of the Agricultural Property Agency to re-purchase property arising from Art.29 para. 5 of the Act on management of agricultural property owned by the State Treasury and a conclusion that there is not much room for that right within the scope of the primary and fundamental tasks assigned to the Agency. Further on, a comparison is made between the right to re-purchase property and the concept of expropriation. The result of this exercise shows that the said right to repurchase constitutes a much more burdensome intervention and a greater limitation of the ownership, than it is in the case of expropriation. The analysis of Art. 31 para. 3, Art. 21 para. 2 and art. 64 para. 3 of P oland’s Constitution performed on the basis of case law of the Constitutional Tribunal leads to the conclusion that the said right to re-purchase land under Art. 29 para. 5 of the Act on management of agricultural property of 19 October 1991 is contrary to those provisions. The author argues that the resulting limitation of ownership is: (a) not necessary to pursue the objectives referred to in Art. 31 para. 3 of the Constitution and does not satisfy the test of proportionality formulated in the provision, (b) that the goals provided for in Art. 29 para. 5 can be hardly considered as meeting general public interests in the meaning of Art. 21 para. 2 of the Constitution, (c) that the ownership limitation interferes with the very essence of the right of property referred to in Art. 64 para. 3 of the Constitution, and last but not least (d) when the right to re-purchase property provided for in Art. 29 para. 5 is exercised, the party that transfers the property does not always receive fair compensation as provided for under Art. 21 para. 2 of the Constitution. Thus, in the author’s opinion, the provision of Art. 29 para. 5 of the Act of 19 October 1991 is contrary to the Constitution.