Ruch Prawniczy, Ekonomiczny i Socjologiczny, 2005, nr 3
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Item DEFINICJA TERMINU „WZORZEC UMOWY KONSUMENCKIEJ”(Wydział Prawa i Administracji UAM, 2005) Rejdak, MonikaThe article is dedicated to one of the important terms o f the consumer law i.e. standard terms in consumer contracts, which in Polish civil law is functioning as “wzorzec umowy konsumenckiej”. In order to propose its definition, the author analysed the civil code provisions regulating the institution of standard terms (art. 384), the unfair terms in consumer contracts (art. and the provisions of the Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. Based on the institution of standard terms in consumer contracts, three major issues have been flagged out: 1) the content of standard terms in consumer contracts; 2) the manner of their edition; 3) the medium of transfer. It has been concluded that only the content of the standard terms in consumer contracts is controlled by the institution of unfair terms in consumer contracts (art. 385'-3853 k.c.). In the author’s opinion the Civil Code has introduced the principle of freedom in regard to the way both of edition (art. 384) and the type of the transfer media (art. 60). Further, the author states that the term “standard terms in consumer contracts” is a declaration of will made by the entrepreneur, or the enterprise, regulating mass goods within the scope of his specific, professional business activity. Standard terms in consumer contracts are formulated in order to make an unlimited number of contracts with an unlimited number of consumers and that is why they do not contain provisions defining an individual consumer or the subject of a given contract.Item JASNOŚĆ PRAWA PODATKOWEGO JAKO WARUNEK POPRAWNEJ LEGISLACJI PODATKOWEJ(Wydział Prawa i Administracji UAM, 2005) Mączyński, Dominik; Sowiński, RyszardTax law interferes into the sphere of citizens’ property rights. Therefore it is of extreme importance that during the tax legislation process the (legal) principles developed on the basis of law, legal science and jurisdiction have been obeyed. The starting point for our considerations is a statement that tax provisions should be formulated in a way allowing reconstruction of legal norms precisely formulated therein. In the paper, provisions related to the creation of law are analysed, with particular attention drawn to the regulations applying to tax law. Further, the rich jurisdiction of the Constitutional Tribunal, whose verdicts have on many occasions given rise to a number of detailed postulates deriving from general constitutional principles of the legislative process, is presented. The Tribunal often emphasised that legal regulations must be clear, precise and comprehensible. Similar postulates are frequently found in the jurisdiction of administrative courts which have often expressed an opinion that the in dubiopro tributario principle should govern the interpretation of tax law. According to that principle, no tax obligations should be imposed if their legal grounds are imprecise or incomprehensible. If this principle is consistently applied, the legislator will be bound to a stricter discipline in the legislative process of tax law. The present paper is meant to be another voice in the wide discussion that has been going on in the field of financial law.Item KOSZTY AGENCJI A EFEKTYWNOŚĆ WEWNĄTRZKORPORACYJNYCH RYNKÓW KAPITAŁOWYCH(Wydział Prawa i Administracji UAM, 2005) Jantoń-Drozdowska, Elżbieta; Zembski, MichałThe aim of this article is to identify the risk of loosing efficiency of internal capital markets as the result of opportunistic behaviour represented by agents. An internal capital market institution exists in most transnational corporations. The few publications available in economic literature allow us to draw a conclusion that the role of these markets as the source of funds for financing investments is still growing. It is also crucial to know the factors which influence the efficiency of their operations, as they enable movements of substantial funds in a relatively short period of time, which, in turn, stimulates a dynamic growth of an organization in an international context. On the other hand, however, this creates the risk of opportunistic behaviour amongst those members o f the organization who may influence the quality of information transferred onto higher levels of corporations where key decisions are made. The wish to control the largest possible number of corporate resources as well as the realization of individual goals at owners' cost lead to an inefficient usage of financial resources and implementation of investment projects which do not guarantee the highest return ratios. Treating the agency cost theory as a research platform will allow to analyse this issue in the light of decision makers' motivations, and to draw a conclusion that alongside the opportunities which these markets open, they also create many threats which have their roots in human nature.Item O POJĘCIU „JEDNOSTKA ORGANIZACYJNA” W POLSKIM PRAWIE SAMORZĄDU TERYTORIALNEGO(Wydział Prawa i Administracji UAM, 2005) Szewc, AndrzejThe paper focuses on some terminological issues arising from the notion of an ‘organisational unit’ used by Polish territorial self-government law. The lack of a legal definition of this notion has been indicated, as it leads to different meanings associated with the term in different legal provisions, giving rise to a number of practical consequences. The de lege ferenda proposal to regulate that has been offered.Item OBYWATELSTWO TZW PÓŹNYCH PRZESIEDLEŃCÓW1 NIEMIECKICH. ROZWAŻANIA NA TLE PRAWA MIĘDZYNARODOWEGO (CZĘŚĆ II)(Wydział Prawa i Administracji UAM, 2005) Muszyński, MariuszCitizenship is a legal tie that connects a person to a certain state. Although, as a rule, decisions regarding citizenship lie within the exclusive competence of the state, one can observe an increasing role of the international law in that matter, and consequently a limitation of sovereign rights of the state which is now forced to take into account the will of the person in question in matters related to the granting, changing or depriving of citizenship. The only one, exceptionally accepted possibility, is a collective regulation of citizenship in the case of a territorial succession. This was the case regarding Polish-German relations after the acquisition by Poland in 1945 of parts of the former Third Reich, and the consequent international obligations arising from Potsdam-Yalta regulations which called for displacement of German citizens beyond the new borders. In the year 2005, already 60 years after the 2nd World War, the issue of citizenship of persons who had left for Germany after 1945, came back as an off-shot of the property-reparations dispute and has now constituted a certain political problem. The paper is a legal analysis of the post-war national verification pursued within the territories attached to Poland as a consequence of the Potsdam displacement decisions as well as the later deprivations of Polish citizenship exercised on those who, between 1945 and 1989, had left Poland to live in either of the two German States. It is indicated , against the background of the post-first-world-war solutions regarding national questions (Versailles standard), that this problem should be looked at from the point of view of Potsdam regulations. In the paper, an assessment of the national regulations is pursued in the light of international law. It covers an analysis of the official legislation of the Polish People’s Republic (1945-1989), the unpublished international and national acts and the quasi-precedent judiciary of the Polish courts. Its aim is an attempt to answer the question of the factual status of the said persons in the Polish law today. The conclusion of the analysis indicates that the international and national legal acts are in conflict as there are certain legislation gaps and political misconceptions of successive Polish governments, including the present one. Further, it is proved that from the legal point of view, the current Polish foreign politics according to which the issue of the German „displaced” citizenship constitutes „Poland’s internal problem” is wrong and disadvantageous. The solution should rather lead to force Germany to regulate the issue on the basis of international agreements in the real interests of Poland i.e. the confirmation of the deprivation of their Polish citizenship of those „displaced”. Keeping the current status quo may result in a verification of Potsdam regulations and will be a victory of the German policy seeking of the revision of the obligations and penalties for the aggression and the war.Item OCHRONA WOLNOŚCI I PRAW EKONOMICZNYCH A GRANICE OPODATKOWANIA - ZASADY I KONTROWERSJE(Wydział Prawa i Administracji UAM, 2005) Gomułowicz, AndrzejThe content of tax rules, and, consequently, the whole taxation system is never free from a political aspect. Taxes have always been, and shall remain, an issue related to power. Therefore the decisions how the tax burden shall be distributed, even if taken by parliament, will never be free from political pressures. Consequently, it is even more important to secure transparency of the tax rules, especially of those which impose tax obligations, because those are too often blurred and contain a vested interest of a certain pressure group which has helped a given politician to raise to power, or has at least contributed to his attaining of political power. Politicians should remember that the way to understand taxes leads through the understanding of the essence of a state. Therefore, in the course of tax legislation, care should be taken to ensure that the common good prevails and wins over a particular interest, and that conflicts of interests and political disputes are given in, to allow real cooperation in the legislative work on taxes. Only such a situation will allow creation of constitutionally legal relations between the state and a tax payer. Further, it must be remembered that even if a politician is tempted to interfere with the tax law and violates constitutional standards for a period of time, lawlessness never creates law. And then, we may reflect whether indeed fiscus non erubescit.Item PRAWO PODATKOWE A GOSPODARKA(Wydział Prawa i Administracji UAM, 2005) Mastalski, RyszardTaxes will fulfil their function in economy adequately when and only they are in conformity with the principles of a market economy, and in particular with the freedom of economic activity and free competition rules. Therefore the implementation of external elements such as taxes into the economic mechanism must be properly integrated with that mechanism. On the microeconomic scale, taxation rules should, above all, conform with the principle of the ability of a tax payer to perform the obligation, i.e. the subjects on whom the tax obligation has been imposed must be capable of fulfilling that obligation. Further, the influence of national economies must be recognised, which is of particular significance in the European Union where tax harmonisarion is one of the key elements of the overall harmonisation of laws of its member states. From the legal aspect, the tying of taxes to economy manifests itself mainly in the relations between tax law and civil law. A reasonable legislator should attempt to ensure a compromise between the interest of the State Treasury and the cohesion and completeness of the legal system ensuring that institutions formed and regulated according to the procedures of the civil law code can function in a manner not disrupted or hindered by tax law. In the exercising the objectives of the legislation policy and selecting legislative techniques, it is necessary to account for the fact that tax law operates within an area of natural economic activities phenomena and that the legal regulations must be very precise and clear. Another important element of proper legislation procedure is accounting for potential conflicts of interests of different groups subjected to a given legislation, and providing for compromises to alleviate their such potential conflicts.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2005) Równy, KazimierzJerzy Menkes i Andrzej Wasilkowski, Organizacje międzynarodowe. Wprowadzenie do systemu, wyd. 1, Wydawnictwo Prawnicze LexisNexis, Warszawa 2004, ss. 233.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2005) Isański, JakubEdmund Wnuk-Lipiński, Świat międzyepoki. Globalizacja. Demokracja. Państwo narodowe, Wydawnictwo Znak, Instytut Studiów Politycznych PAN, Kraków 2004, ss. 336.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2005) Babiak, JerzyGospodarka polska w warunkach integracji europejskiej, praca zbiorowa pod red. Wacława Jarmołowicza, Wydawnictwo Akademii Ekonomicznej w Poznaniu, Poznań 2005, Zeszyty Naukowe, nr 51, ss. 364.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2005) Rój, JustynaJoanna Niżnik, W poszukiwaniu racjonalnego systemu finansowania ochrony zdrowia w Polsce, Oficyna Wydawnicza Branta, Bydgoszcz- Kraków 2004, ss. 219.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2005) Nawrot, Katarzyna A.Polska-Niemcy a rozszerzenie Unii Europejskiej, t. 1—2, pod red. W. Małachowskiego, Wydawnictwo Szkoły Głównej Handlowej w Warszawie, Warszawa 2004, ss. 467 i 328.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2005) Górnicki, LeonardMAGISTRI NOSTRI*. O PROFESORACH WYDZIAŁU PRAWA UNIWERSYTETU POZNAŃSKIEGOItem PRZESŁANKI WYKORZYSTYWANIA SEKURYTYZAC JI AKTYWÓW W PROCESIE FINANSOWANIA PRZEDSIĘBIORSTW(Wydział Prawa i Administracji UAM, 2005) Lizińska, JoannaThe paper presents securitisation technology as a source of capital. Securitisation can be defined as a process of converting cash flows arising from underlying assets due to the originator into a smooth repayment stream, thus enabling the originator to raise asset-backed financing (funds). Deals are normally structured by a transfer of receivables from the originator to a newly established company known as a special purpose vehicle, designed to separate the receivables from the insolvency risk of the originator, and referred to as a “true sale”. In the US, securitisation is stable and mature. In Europe, the securitisation market is growing rapidly, and in Poland it is still at an early stage of development, having to cope with number of obstacles including legal and tax issues that hamper securitisation of all asset classes. The rationale for securitisation varies widely from company to company. One of the most frequently cited reasons for undertaking securitisation is a lower cost of funds, which is possible first of all because of the segregation of receivables from the insolvency risk of the originator. Another objective of securitisation may be the freeing of regulatory capital, balance sheet management, funding diversification, transfer of risk or a strategic profile. Market mechanisms in financial markets increasingly displace administrative solutions of allocating scarce capital. Securitisation facilitates disintermediation in financial markets. The use of asset securitisation is propelling the use of market mechanisms to allocate capital.Item Spis treści(Wydział Prawa i Administracji UAM, 2005)Item SPÓŁDZIELNIE OSÓB PRAWNYCH I NIEKTÓRE SZCZEGÓLNE RODZAJE SPÓŁDZIELNI W ŚWIETLE OBOWIĄZUJĄCEJ I PROJEKTOWANEJ USTAWY(Wydział Prawa i Administracji UAM, 2005) Niedbała, ZdzisławThe doctrine of co-operative law as well as the practical application of co-operative law produces much controversy regarding the openness of the membership of a co-operative to legal persons. This issue also concerns the legal construction of a co-operative of legal persons, i.e. a co-operative institution which shall only admit legal persons. This may be possible because the authors of the statutes of co-operatives formed exclusively for legal persons, exercising the powers provided for in the statutory rights, anticipate an important derogation from one of the basic principles of an idea of a co-operative, i.e. the principle that “one member stands for one vote”, and favour a principle that the number of votes at the AGM should depend on the number of shares brought into the co-operative. If this view is implemented, the consequent situation will be that a co-operative of legal persons would work on almost exactly the same principles as those provided for in the code of commercial companies, and in particular to those applicable to limited liability companies. Hence, one of the objectives of this paper is to discuss the real need of continuing the effort to maintain this legal situation. This paper and the interest in the subject was prompted by the draft of a new law on co-operatives developed on the initiative of the President of the Republic of Poland. Besides the issues related to the co-operatives formed by legal persons, the paper also deals with a number of proposals of individual statutory norms regulating the status of craftsmen, student, or social co-operatives. The variety of social needs justify the establishment of specific legal regulations enabling those social groups as well as others, including disabled persons or the unemployed in various forms of co-operative businesses. The evaluation of the proposed legal solutions constitutes the main theme of the second part of the work.Item SPRAWOZDANIA I INFORMACJE. KOMUNIKAT O XII KONKURSIE IMIENIA PROFESORA MANFREDA LACHSA(Wydział Prawa i Administracji UAM, 2001)Item ŚWIADCZENIA PODATKOWE JAKO INSTRUMENTY REALIZACJI PROGRAMÓW SANACJI ORAZ RESTRUKTURYZACJI GOSPODARKI PRZEDSIĘBIORCÓW(Wydział Prawa i Administracji UAM, 2005) Zdebel, MarekThe period of economic transformations which started in Poland at the early 1990 has revealed a number of weaknesses and maladjustments of enterprises, particularly those state owned, to the market economy demands. The Polish legislator, aiming at eliminating the adverse results of those phenomena as well as the causes of their occurrence, has introduced a number of legal acts establishing different institutions operating at different levels, among them the restructuring and recovery of financial management in enterprises. The aim of both is to restore the ability of businesses to compete in the market ,and improve their financial condition. These aims can be realized with the help of selected legal instruments. The most important are those of tax character. They can be of different kinds though they are mainly associated with activities aiming to regulate tax obligations, such as: renouncement of a tax obligation, cancellation of the tax in arrears, postponement of tax payment deadlines, or installment plans. The paper analyses selected issues connected with the use of tax instruments of that such kind for the needs of restructuring and recovery of businesses as well as for the legal procedures that enable application of those instruments in practice.Item SWOBODA DZIAŁALNOŚCI GOSPODARCZEJ A SYSTEM ZASILANIA KAPITAŁOWEGO PRZEDSIĘBIORSTW(Wydział Prawa i Administracji UAM, 2005) Kubiak, Jarosław; Nowaczyk, TomaszThe external environment of an enterprise, shaped by the state, should support and facilitate the realisation of constitutional principles, including the freedom of economic activity. One of the necessary conditions for the realisation of this principle is the availability of capital resources for businesses at every stage of their development. The paper identifies the gaps existing in the system of capital supply for enterprises which limit the availability of equity capital or bank loans, or hinder the access to the market of public funding. Their impeding role as barriers for the functioning of an enterprise differs at each individual stage of the development of an enterprise. The effects of the identified gaps have been presented, including an increase in the economic activity risk resulting from the substituting of equity capital by lease, and the phenomenon of fixed capital redistribution by trade credit. Attempts to diagnose the causes of the occurrence of gaps in the capital supply system have been made to show that one of the important factors that weaken the principle of freedom of economic activity are the very attitudes of the entrepreneurs themselves.Item UNIWERSALNA JURYSDYKCJA - KILKA UWAG FILOZOFICZNOPRAWNYCH(Wydział Prawa i Administracji UAM, 2005) Zajadło, JerzyIn recent years we have observed a worldwide debate on universal jurisdiction. This phenomenon is closely related to some international events: the Pinochet case, the Arrest Warrant Case, the International Tribunals for former Yugoslavia and for Rwanda, the International Criminal Court, etc. The concept of universal jurisdiction has become an important legal instrument in the international campaign against impunity. However, this institution is not only one of the most controversial issues in international criminal law, but has also some important philosophical aspects, of which the paper explores some. An attempt has also been made to compare the legal, political and ethical aspects of universal jurisdiction with similar problems that accompany another international institution: humanitarian intervention.