Ruch Prawniczy, Ekonomiczny i Socjologiczny, 2005, nr 1

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    WPŁYW NOWELIZACJI USTAWY O ORGANIZACJI I FUNKCJONOWANIU FUNDUSZY EMERYTALNYCH NA SYTUACJĘ FINANSOWĄ POWSZECHNYCH TOWARZYSTW EMERYTALNYCH
    (Wydział Prawa i Administracji UAM, 2005) Stolarek, Dawid
    The article presents some of the modifications to the Act on organisation and operation of pension funds that are important to general pension societies’ financial performance. Those modifications concentrate on the problems related to the way the deficits in pension funds are covered and also fees due to pension societies. The final effect of amendments to the act is the resultant of the reduction of the value of the resources that are to be kept by the general pension societies as the insurance for the possible commitment to the members of the fund and the reduction of the maximum rate of charges received by the societies. Their final evaluation should include good prospects for the open pension funds market, formed by regular inflow of capital resources into the system in the following years. Taking this fact into account, it seems that the recent legal amendments are a positive step toward finding a compromise between the interests of open pension funds members and pension societies.
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    MOŻLIWOŚCI ABSORPCJI FUNDUSZY UNII EUROPEJSKIEJ PRZEZ POLSKIE REGIONY
    (Wydział Prawa i Administracji UAM, 2005) Słodowa-Hełpa, Małgorzata
    It is, naturally, still premature to fully assess the scale of the EU financial aid in 2004-2006, or the fund transfer, structure and the impact upon the Polish beneficiaries, as well as the causes of any possible impediments. The events of the recent months and weeks regarding the application acceptance and qualification, mainly within the ZPORR (Integrated Operational Plan for Regional Development) have given rise to numerous questions, many of which cannot yet be answered. This is because, on the one hand, the main concerns about lacking projects have been dispersed, since local governments have overwhelmed provincial authorities with applications whose value by far exceeds the available funds. On the other hand, many procedural shortcomings have been revealed, which due to the need to accelerate the work on the 2007-2013 National Development Plan and the expected decentralization of the fund implementation system in this period, in addition to the expected major increase of the available funds, all call for answers to a number of doubts regarding the methods of aid allocation and use. The article offers an evaluation of the experience gathered so far by Polish local and regional communities. This analysis is carried out in the background of the main elements determining the EU fund absorption by Polish local authorities, as well as the present system of their implementation, the respective modifications planned for 2007-2013, the scale of the aid offered and the current data on the applications filed.
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    SPIS TREŚCI
    (Wydział Prawa i Administracji UAM, 2005)
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    ODPOWIEDZIALNOŚĆ ODSZKODOWAWCZA Z TYTUŁU BEZPRAWIA NORMATYWNEGO
    (Wydział Prawa i Administracji UAM, 2005) Safjan, Marek
    The non-conformity to the Constitution (determined by a superior act of law) is not equivalent to the occurrence of illegality as a prerequisite of ex delicto liability. Normative illegality may specifically concern a precisely defined area for the binding force of a given regulation and not the whole period of the binding force of the normative act (this is clearly acknowledged by the so-called secondary non-constitutionality of the regulation resulting from the new Polish Constitution entering into force). The so-called legislative failure to act (the non-issuing of a normative act) is a specific form of normative illegality (art. 417 § 4). The interpretation of the prerequisites of such liability must respect one of the basic principles of a democratic state ruled by law i.e. the principle of separation and balance between the legislative, executive and judicial powers (Art. 10 Constitution). The interpretation of the term “legislative failure to act” may under no circumstance lead to independent stipulation, by the court examining a claim for damages, of the contents of the not adopted legal regulations. The broad view of ex delicto liability prerequisites, when referring to activities connected with the realisation of the public powers empire, should incline towards the far reaching consideration when interpreting and applying new mechanisms of liability. For it is very easy to cross the boundary in this respect, which may lead not only to overburdening public finances with unpredictable damages but even to the infringement of the principle of balance and division of powers within the state. Therefore, a lot will depend on rational and considerate judicial practice in this area. Additionally. the strong aspiration to maximize claimant’s protection must not lead to a certain threshold of rationalism being exceeded, since in a further perspective this would cause negative consequences to the claimants themselves and the whole society.
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2005) Poczta, Agnieszka
    Soren Kjeldsen Kragh, Interantional Economics, Copenhagen Business School Press, Kopenhagen 2002, ss. 413
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    PRAWO DO OBRONY W POSTĘPOWANIU PRZED MIĘDZYNARODOWYM TRYBUNAŁEM KARNYM
    (Wydział Prawa i Administracji UAM, 2005) Wiliński, Paweł
    In the study the author discusses the scope of the right to defence before the International Criminal Court, the first permanent criminal court with an international and universal jurisdiction, created to prosecute the most grevious crimes, including crimes against humanity, genocide and war crimes.When defining terms such as suspect and defendant, the author points to the differences in understanding their positions in trial. He lists and discusses the rights vested in the defendant in the course of proceedings and also presents the ways in which the ICC has developed the principles of a fair trial. Then, he reflects on the right to an attorney, the right to the assistance of a translator, principles of using provisional detention, rules of conduct when approving charges in preparatory proceedings, the defendant’s rights in judicial proceedings. He also discusses the right to free expression, the right to remain silent, the right to appeal against the sentence or other decisions taken in court. Having analysed the range of the defendant’s rights, the author arrives at the conclusion that they meet requirements of a fair trial in criminal proceedings. At the same time, he emphasises that such model of conduct is a combination of two different systems of law: common law and civil law. The practical exercise of the right to defence depends to a great extent on the way in which the Tribunal interprets and implements those institutions in its judicial decisions. This, on the one hand, gives a chance for better realisation of fair trial postulates, on the other hand however, it may pose a threat to such a trial.
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    ZBIEG PRZEPISÓW USTAWY I ZBIEG PRZESTĘPSTW - PRÓBA UPORZĄDKOWANIA POJĘĆ
    (Wydział Prawa i Administracji UAM, 2005) Pohl, Łukasz
    The following study concerns the issues connected with the confluence of law regulations and crimes. The main objective o f the paper is to clarify the terms that have been used here in relation to the principle of faithful reality mapping, which is a kind of transposition of epistemology achievements into the field of criminal law. The terminological system created here employs the same concepts both in relation to the confluence of law regulations and to the confluence of crimes. The following concepts are of significance: real and apparent confluence (at the factual stage) and the confluence taken or not taken into consideration (at the further stage of qualification procedure). The concepts proposed by the author are determined by the classical truth theory, which defines truth as correspondence with facts.
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    FUNKCJONOWANIE AUTOMATYCZNYCH STABILIZATORÓW KONIUNKTURY NA PRZYKŁADZIE REPUBLIKI FEDERALNEJ NIEMIEC W LATACH 1980-1998
    (Wydział Prawa i Administracji UAM, 2005) Krajewski, Adam
    The article assesses to what extent various components of government budgets affected by the macroeconomic situation operate (through influencing domestic demand) to smooth the business cycle1 in Germany. The aim of the research is to evaluate government budget sensitivity to economic fluctuations and thereby assess the importance of automatic fiscal stabilisers. Fiscal policies and the analysis of fiscal stabilisers have been added to the agenda due to the fact that the EMU member countries no longer have national monetary policies at their disposal and therefore fiscal policy has to play a more important role in smoothing shocks, especially if they originate on the demand side. However, in order to avoid the typical pitfalls of fiscal finetuning, the main focus has increasingly been put on the work of automatic stabilisers. This view is codified in the Stability and Growth Pact, whose “fiscal philosophy” implies that countries should set a structural target of close to balance or surplus and simply let automatic stabilisers work, where appropriate, over the whole business cycle without breaching the 3% reference value for the deficit. To determine the size of budgetary cyclical components, i.e. the size of automatic fiscal stabilisers and the structural balance, the standard two-step procedure (also followed by the OECD, the IMF and the European Commission) was used. The first stage of this method is to measure the GDP gap, which is needed for both, estimating budget sensitivity and extracting a budget cyclical component. In line with the method of the European Commission, the estimate of the GDP gap is based upon a statistical smoothing technique (the Hodrick-Prescott filter). The Hodrick-Prescott filter (HP-filter) has been selected on the basis of pragmatic criteria such as simplicity and transparency. The second stage is to identify the cyclical sensitivity of all budget components (on the revenue and expenditure side2) - their sensitivity to the GDP gap. Finally, budget’s cyclical component and structural balance are both calculated on the basis of sensitivity estimates and the GDP gap. It is well known that the automatic fiscal stabilisers generally reduced cyclical volatility in the 1990s, although they were growing weak, while discretionary fiscal policy became more active. However, in Germany the need to undertake fiscal consolidation in order to improve public finances forced governments to take discretionary actions that in effect reduced, or even offset, the effect of automatic fiscal stabilisers. Based on data from 1980 until 1998 and using the two-step method, the cyclical sensitivity of the German budget was found to be only 0,35. This means that when the GDP diverges from its potential value by 1%, the budget balance will change accordingly by up to 0,35% of the GDP.
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    SPRAWOZDANIA I INFORMACJE. ODNOWIENIE DOKTORATU PROFESORA KRZYSZTOFA SKUBISZEWSKIEGO
    (Wydział Prawa i Administracji UAM, 2005) Sandorski, Jan
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    O „POZYTYWNOŚCI” I „OFICJALNOŚCI” PRAWA W TEORII LEONA PETRAŻYCKIEGO
    (Wydział Prawa i Administracji UAM, 2005) Tkacz, Sławomir
    The following article deals with the concept of positive law in the theory of Leon Petrażycki. In the first part of his article the author presents different characteristics of the term positive law encountered in literature. The analysis of the term serves as a starting point for further study aiming at answering the question whether Petrażycki’s concept of positive law relates to other characteristics of the term in literature or whether the author introduces a new understanding of law positiveness. In the second part of the article the author analyses the varieties of law distinguished by Petrażycki. He is paying special attention to Pitrażycki’s division of law into positive and intuitive and describes the categories of positive law. Additionally, he mentions another Petrazycki’s typology: official vs. unofficial types of law; official law is applied by state authorities. The author’s reasoning leads to the general conclusion that Petrażycki’s definition of positive law corresponds neither with the understanding of the term in the theories of natural law as opposed to positive law, nor with the understanding of positive law as proposed by classical positivism. Furthermore, the author points to the fact that it is generally agreed that a number of views in the contemporary law theory were influenced by Petrażyckis works. This opinion is shared even by those who represent the view that law characteristics in Petrażycki’s theory is not an analytical definition but only a linguistic convention; as well as by those who think that he constructed a kind of idealistic theory which refers to the law described as a group of psychological phenomena. That is why the author concludes that both the interpretation of Petrażycki’s views and the influence of his concepts on the Polish contemporary theory of law require further scientific research.
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    OPODATKOWANIE DOCHODÓW Z NIEUJAWNIONYCH ŹRÓDEŁ PRZYCHODÓW LUB NIEZNAJDUJĄCYCH POKRYCIA W UJAWNIONYCH ŹRÓDŁACH
    (Wydział Prawa i Administracji UAM, 2005) Sowiński, Ryszard
    According to the provisions of the Polish Personal Income Tax Act, income that has not been disclosed by the taxpayer is subject to a 75% income tax rate. This regulation is a form of sanction for taxpayers not revealing their income and at the same time a good ‘addendum’ to the criminal law that cannot always be applied due to lack of evidence. A 75% tax rate can be applied if the value of property gathered by the taxpayer is not covered by documented income. If the income sources are disclosed (even during the tax procedure) - regular tax rates with interests and other forms of sanctions can be applied. The author analyses such issues related to tax regulations connected with non disclosure of income as, for example: money laundering regulations, fields of activity connected with hiding income, evolution of rules, procedure of income assessment, burden of proof and strategy of defense. The author notices lack of effectiveness in tax authorities policy.
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    WYZNACZNIKI POLSKIEJ POLITYKI GOSPODARCZEJ Z POCZĄTKIEM XXI WIEKU
    (Wydział Prawa i Administracji UAM, 2005) Wilczyński, Wacław
    The condition of the Polish economy in autumn 2004 reflects the evolution of the economic policy of transformation led by subsequent governments following 1989. A fast GDP growth was accompanied by such unfavourable phenomena as the increasing public debt, especially the most recently (2001-2004). The radical structural, monetary and fiscal policy of the first years after 1989 was replaced after 1992 by a „third way” policy, unable to assure equilibrium of the public finance. The Polish economy cannot afford such an expensive policy. On the contrary, stress should be given on augmenting the rate of investment to support the fight against unemployment. The increase of the public debt must be stopped as well. All these tasks require deep changes of the actual economic policy and reitaration of market motivated activities o f the government. The coexistence of a market sector with a non market sector is too expensive, not only in Poland
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2005) Matera, Rafał
    Zygmunt Bauman, Życie na przemiał, przekład Tomasz Kunz, Wydawnictwo Literackie, Kraków 2004, ss. 208
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    MODEL RADY ZAKŁADOWEJ NA GRUNCIE POWSTAŃCZEGO ROZPORZĄDZENIA Z 1 SIERPNIA 1944 R.
    (Wydział Prawa i Administracji UAM, 2005) Kijowski, Andrzej; Jankowiak, Jarosław
    Numerous publications have been issued to mark the 60th anniversary of the outbreak of the Warsaw Uprising, offering a variety of viewpoints for this historical event. At the same time, many authors analysed various aspects of the Polish Underground State during the Second World War. Yet, the substantial legal accomplishments of this state, e.g. two Journals of Laws (Dzienniki Ustaw) issued by the State Authorities during the uprising, remain overshadowed. For that reason the following publication has been devoted to the analysis of one of the most fundamental accomplishments from that period, which is the model of company employee council in the light of the Regulation of the Polish Council of Ministers of 1 August 1944. The authors present the historical context of this regulation and normative constructs introduced in it. They also consider whether it would be possible to use it, at least partially, in the draft copy of the new Polish Labour Code.
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    WYBRANE KARNOPROCESOWE ASPEKTY ŚCIGANIA PRZESTĘPSTW PRZECIWKO WŁASNOŚCI INTELEKTUALNEJ
    (Wydział Prawa i Administracji UAM, 2005) Gerecka-Żołyńska, Anna
    The purpose of this article is an evaluation of penal procedure institutions which have some influence on intellectual property protection or are only related to it. The article shortly presents the impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (especially its rule 61) on intellectual property protection. It also discuses some Polish Criminal Procedure Law institutions related to intellectual property protection. Many institutions are still controversial despite the imposition of the industrial property act in 2001 and the revision of the act on copyright and similar rights in 2000. Some controversial institutions presented in this paper include: public action implementation mainly on victim demand, determination of persons who have the right to conduct preparatory proceedings, evidence material gathering and protection especially with respect to offence commonly referred to as piracy (industrial or intellectual). A presentation of the role of preliminary procedures is also offered, as it has been gaining in significance in the western European model of intellectual property protection.
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    AUTONOMIA PROCEDURALNA PAŃSTW CZŁONKOWSKICH. ZASADA EFEKTYWNOŚCI I ZASADA EFEKTYWNEJ OCHRONY SĄDOWEJ W PRAWIE UNII EUROPEJSKIEJ
    (Wydział Prawa i Administracji UAM, 2005) Wróbel, Andrzej
    This paper focuses on the relationship between the so called ‘procedural autonomy’ of the Member States on the one hand and the principles of effectiveness and effective judicial protection in the European Community law on the other. In Rewe and Comet judgments the ECJ holds that the creation of individual rights is a matter of Community law, while the remedies for the enforcement of these rights are - in the absence of relevant Community legal provisions - to be provided by national (procedural) law. In this context, it is obvious that the effectiveness of Community rights depends on national procedural rules. However, this national procedural autonomy is restricted by two important requirements: firstly, such rules are not less favourable than those governing similar domestic actions (the principle of equivalence) and secondly, they do not render the exercise of Community rights virtually impossible or excessively difficult (the principle of effectiveness). Recent European legislative interventions in procedural matters show that the concept of national procedural and institutional autonomy of the Member States no longer explains the very complicated relationship between the European substantive law and national procedural rules. This is rather a question of division of competences in procedural matters between the Member States and Communities and procedural harmonization than the somewhat obscure concept of autonomy. On the other hand, the principle o f effectiveness starts to play a crucial role in the protection of individual Community rights in national courts, so that it replaces the principle of primacy of Community law in those matters. However, the ECJ has developed the principle of effective judicial protection, which has received the rank of a fundamental Community legal principle. This principle can be regarded as more appropriate than the former one, to protect Community rights at the national level and within national procedural competences.