Browsing by Author "Bator, Andrzej"
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Item Dyskusja w sprawie wyodrębniania prawa gospodarczego(Wydział Prawa i Administracji UAM, 1993) Bator, Andrzej; Chełmoński, Adam; Gilas, Janusz; Kosikowski, Cezary; Rabska, Teresa; Wasilewski, Andrzej; Włodyka, Stanisław; Żuławska, CzesławaTo the above question, posed to lawyers interested in corporate law, the editors of "Ruch Prawniczy, Ekonomiczny i Socjologiczny" received a number of answers. Though both the substance and the form of answers were very different, they present a very interesting, contemporary characterization of corporate law and the science of corporate law. 1. There seems no doubt that there is a close connection between corporate law and the political and economic system of the state (see in particular: Cz. Żuławska and C. Kosikowski). Despite this dependency (and the resulting correlation between the concept of corporate law and the political and economic system), there is little change as to the theoretical approach to the "nature" of this law and the method of solving this problem. The issue at stake lies not so much in the fact whether corporate law exists, but whether, and to what extent, it constitutes a specialized part of law, and further, whether this part is of a complex character, or whether it can be placed within one traditional branch of law (in favour of the latter view: Cz. Żuławska, against: S. Włodyka), or, finally, whether separate branches of law and/or scientific disciplines (or subdisciplines) should be distinguished, or both separate branches of law and scientific disciplines (thus all other respondents). 2. The most important issue is the argumentation in favour of distinguishing corporate law (A. Bator, A. Chełmoński, S. Włodyka). The existence of this branch of law seems to leave no doubt. However, the reference to the contents of positive law does not allow to answer the issue of distinguishing the said branch of law. The list of legal definitions and notions introduced by particular contemporary legal acts (e.g., "corporate case", "corporate entity", "economic activity", etc.) would not lead to uniform conclusions. The same can be said about the scope of cognition of courts which have jurisdiction to hear corporate cases (Chief Administrative Court, corporate courts, anti-monopoly court). Finally, frequent amendments to legal acts are not in favour of reaching any conclusions in this respect. 3. Against this background, it is maintained that the term "corporate law", with no other qualifications, cannot be a priori considered to be related to private law or both private and public law problems of corporate activity (A. Wasilewski). Besides, treating this branch of law as a specialized part of civil law (Cz. Żuławska) would not allow to encompass the whole sphere of corporate relations. Finally, the existence of specialized parts of administrative and constitutional law fully justifies the presence of the discipline of public corporate law, separate from private law ( T. Rabska, S. Włodyka). 4. No one was not in favour of a concept of the complex discipline. The respondents stressed that the catalogue of "principles of corporate law", elaborated in the past, ceased to exist (Cz. Żuławska). A view prevails that "corporate law" cannot be practiced as one integrated scientific and didactic discipline (A. Chełmoński). One should also refer to legal disciplines distinguished in Western Europe (S. Włodyka). The above fact is also reflected in university curricula in Poland. The justification is simple: specialization is dictated by specific needs of economic activity, requiring a detailed and complex approach and diversified legal solutions. The above opinion is shared also by other authors (Cz. Kosikowski, T. Rabska). However, final concepts presented by the authors are to a great extent determined by legal disciplines they represent. 5. Many respondents stressed that legal norms regulating "economic relations" cannot be regarded as a separate type of legal norms (in particular, A. Bator). Thus, of foremost importance is the subject-matter of regulation. Hence, there appears a basic question, namely whether the subject-matter of corporate law is the regulation by the state of economic relations from the viewpoint of individual rights and interests of corporate entities (C. Kosikowski, T. Rabska, S. Włodyka), or whether the subject-matter of corporate law refers exclusively to civil-law relations between corporate entities, regulated by dispositional legal provisions (Cz. Żuławska). A relatively new trend in Polish law and in the Polish science of law is the concept of public corporate law, the scope of which is wider than, and different from, the traditional administrative corporate law (T. Rabska, C. Kosikowski, S. Włodyka). Its subject-matter would be aimed at the protection of corporate entities, and not at a direct intervention of the state into the economic activity. Such an approach corresponds with the needs of transformation of the economic system of the state and with new aspects of international economic integration (J. Gilas, T. Rabska). Some respondents stressed that economic matters are regulated mostly by means of public-law, rather than civil-law, acts (J. Gilas) and that the most suitable conception of corporate law is the public corporate law (S. Włodyka). 6. The above opinions on corporate law - presented, out of necessity, in a summary and simplified form — do not allow to formulate any more elaborate generalizations as to the branches of law and corresponding legal disciplines. However, those opinions may be considered a very valuable source of reference and a competent introduction to the discussion on the development of the legal system and the science of law. In this sense, the initiative of "Ruch Prawniczy, Ekonomiczny i Socjologiczny" has fully reached its objective.Item Ewolucja analitycznej teorii prawa a bezpośrednie stosowanie konstytucji(Uniwersytet im. A. Mickiewicza w Poznaniu Wydział Nauk Społecznych, Instytut Filozofii UAM, 2018) Bator, AndrzejThe paper analyses the sources of diversity in opinions about the acceptability of direct application of constitution by courts in the so-called confrontational version (a judicial review: the refusal of application of the parliamentary act which is incoherent with a constitution). I claim that such differences result from diverging assumptions accepted within analytic jurisprudence. More precisely speaking, the above differences stem from the three alternative approaches within analytic legal theory: a traditional, a modern, and a postmodern (postanalytic) one. Polish legal thought is dominated by the modern approach, what influence also a debate on the direct applicability of constitution. The modern approach hardly accepts a situation in which a legal professional (a judge) needs to face new social and political challenges. The more adequate in this respect seems to be the postanalytic approach. Thus, arguments which refuse the judge’s right to directly and autonomously apply the constitution against the parliamentary law (which are put forth by some representatives of both legal doctrine and judiciary), are based mainly upon the modern version of the analytic legal theory. Alternatively, the postanalytic perspective offers theoretical foundations for the acceptability of direct and autonomous judicial application of the constitution. As for the traditional version of analytic theory, it possesses some explanatory force towards Polish political practice of the day. Since it supports claims which question any form of judicial activism. This approach seems to undermine any reasons for the existence of independent constitutional judiciary, the direct application of constitution by ordinary courts included.Item Interpretacja a konkretyzacja obowiązków na przykładzie prawa podatkowego(1991) Bator, AndrzejThe article attempts to determine, on the example of tax law, the role played by interpretation and concrétisation in the process of defining legal duties. Using theoretical constructs of a substantive norm, a competence norm and a so-called decision rule, the author reconstructs each of the above types of norms from the provisions of tax legislation. A tax-law substantive norm determines in a general way the contents of a duty. A tax-law competence norm actualises this duty through conventional acts, the undertaking of which is the element of the situation provided for in the scope of application of this norm. Such an actualisation is always accompanied by the concretisation of the contents of a duty defined in the substantive norm. In turn, a decision rule regulates a technical and operative side of the concrétisation of a duty. Defining the relation between interpretation and concrétisation the author comes to the conclusion that in tax law a basic role is played by concrétisation. Interpretation is limited by the characteristic features (measurability) of terminology appearing in tax legislation.Item O adekwatności założeń derywacyjnej koncepcji wykładni do badań nad interpretacją prawa Unii Europejskiej(Wydawnictwo Naukowe UAM, 2015) Bator, AndrzejThe article concerns application of the derivative concept of law interpretation for the interpretation of the regulations originating in the European Union law. Although the assumptions of this concept are based on broad methodological foundations built on the achievements of many representatives of the Poznań centre of theory and philosophy of law (now continued in Szczecin), it is Professor Maciej Zieliński who is largely responsible for the current shape of this concept. The derivative concept of interpretation of the law should be regarded as one of great achievements of Polish analytical theory (philosophy) of law. This concept was built on two pillars: (i) the heritage of classical logic adapted – mainly thanks to the work of Professor Zygmunt Ziembiński – to the needs of jurisprudence and (ii) the dominant in the twentieth-century linguistics concept of language (i.e. structuralism, non-referential concept of the meaning). In this paper a question was posed whether (and possibly to what extent) this, still new for the Polish theory of interpretation area of regulations, might affect the theoretical (methodological) assumptions underlying this concept. There was no attempt in the study to analyse the European Union law texts themselves, but only to determine the adequacy of the very assumptions of the derivative concept of interpretation from the perspective of specific properties which are attributed to the legal doctrine of the European Union law. Among the research assumptions adopted by the concept of derivation there were three analyzed here: 1. the need to distinguish laws and legal norms conceptually, 2. the rationality of the legislator – i.e. rationality in the so-called instrumental version, and 3. the recognition of norms as clearly characterized expressions. In turn, the challenges that the practice of interpretation of the European Union law puts before the concept of derivation include mainly: 1. multiplicity of the subjects performing legislative functions, 2. a requirement of a uniform interpretation, taking into account texts of the EU and national legislation (the so-called mutually friendly interpretation), 3. technicality of most of EU regulations, and 4. multilingualism of EU regulations. Conclusions reached in the study support the derivative theory.Item SPRAWOZDANIA I INFORMACJE SPRAWOZDANIE Z KONFERENCJI NAUKOWEJ PRACOWNIKÓW KATEDR TEORII I FILOZOFII PRAWA Karpacz, 7 - 8.06.1999 r.(Wydział Prawa i Administracji UAM, 1999) Bator, Andrzej