Browsing 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.Item Potrzeba prawnego uregulowania dzierżawy rolnej w Polsce (na podstwie doświadczeń krajów Unii Europejskiej)(Wydawnictwo Naukowe UAM, 2010) Lichorowicz, AleksanderRemarks presented in this paper aim at the justification for the need to provide legal regulations for farmland lease and offer de lege ferenda deliberations concerning its manner in the Polish legal system. These comparisons are based on the rich and complicated legal regulations for farmland lease in countries of Western Europe. In the conclusions the Author presents an extensive catalogue of proposals referring to the regulation of farmland lease in the Polish legal system. In particular the author supports the need to unify regulations on farmland lease and the extension of its scope (to include also lease of farms). The primary novelty in the future legal regulations on farmland lease should introduce two different legal regimes for lease, i.e. short- and long-term lease. The latter requires special treatment, particularly when it comes to granting a lessee more freedom in making decisions on production to be run on the leased land, investments connected with the adopted type of production with no need for the consent of the lessor.Item Uwagi w kwestii usytuowania przepisów o obrocie gruntami rolnymi w systemie prawa polskiego (na tle prawnoporównawczym)(Wydawnictwo Naukowe UAM, 2008) Lichorowicz, AleksanderIn discussions on the new civil law code that is currently in the process of being drafted, certain doubts have emerged and triggered off a question whether the existing regulations of the sale of agricultural land should continue to be part of the civil law code, or be moved to specific statutes. This question is aimed to provoke a discussion on that issue and invite participation in it of lawyers specialising in agricultural law. The paper begins with a comparative study and identifies the place which regulations concerning the sale of agricultural land occupy in domestic laws o f other European states. Next, changes that have been taking place in that respect in Poland are presented, followed by a discussion on the possibility of placing those regulations either in the civil law code or specific acts. Both the positive and negative consequences of either of the solutions are examined. In conclusion, it is argued that there are more good reasons for leaving the regulations of agricultural land sale where they are, i.e. the civil law code. At the same time it is emphasised that each decision concerning that matter must entail amendments and modifications of the existing regulations, and the inter vivos and mortis causa should be treated iunctim.Item Wybrane zagadnienia z problematyki rolnej w orzecznictwie sądowym - Glosa do wyroku Naczelnego Sądu Administracyjnego z 24 czerwca 2015 r., I OSK 2440/13(Wydawnictwo Naukowe UAM, 2015) Lichorowicz, AleksanderItem Zasada trwałości przekazania gospodarstwa rolnego następcy de lege lata i de lege ferenda(Wydział Prawa i Administracji UAM, 1985) Lichorowicz, AleksanderThe author points out a marked divergence between the doctrine and partly also the judicature, and legal regulations. The former jointly indicate the necessity of securing the permanence and irreversibility of the transfer of a farm to a successor, while the latter neither formulate such a principle, nor contain any guarantees of realising it in legal transactions. Having, as a consequence of the above, posed the question whether, in view of the binding legislation, one may speak at all of the existence of a principle of Permanence of the farmis transefr in our law, the author attempts to determine what are the guarantees of permanence in four, (according to him, in practice most significant and at the same time most doubtful) situations: 1) when the transferring farmer has not been qualified for retirement pension, 2) when the successor does not undertake, or relinquishes productive activities on the farm, 3) the transfer of a farm burdened with life annuity, 4) the reservation, in the transfer contract, of the right to renounce the contract. Critically appraising present legislation in this respect, the author postulates a clearer formulation, on the part of the legislator, of the principle of permanence of the transfer, and, simultaneously, proposes motions de lege ferenda as to specific future guarantees of the principle.