Ruch Prawniczy, Ekonomiczny i Socjologiczny, 1989, nr 2


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    Spis treści RPEiS 51(2), 1989
    (Wydział Prawa i Administracji UAM, 1989)
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    Konstytucyjne gwarancje wolności osobistej. Rozważania de lege ferenda
    (Wydział Prawa i Administracji UAM, 1989) Daszkiewicz, Wiesław
    Personal freedom is one of the interests which were very early counted among the rights of an individual declared and protected by constitutions. The Constitution of the Polish People's Republic of 1952 generally grants to citizens personal inviolability and stresses that the deprivation of liberty may take place only in instances determined by law. In Polish law legal titles of the deprivation of liberty are highly diversified. They comprise repressive measures, e.g. the deprivation of liberty for criminal offences and transgressions, and to some extent, e.g. in military law, for disciplinary delicts, preventive measures in criminal proceedings, arrest and preliminary detention, executive measures in civil and criminal proceedings, forced hospitalization, e.g. of people with contagious diseases, or of people who commited offences but who require medical treatment in isolation due to the threat they constitute to others, measures applied towards addicts. internment in extraordinary situations, measures applied for diagnostic ses, etc. A new constitution should determine the grounds and purposes of the deprivation of liberty so that to reduce the number of situations when a citizen may be deprived of liberty. Some measures consisting in deprivation of liberty should be eliminated, e.g. executive measures. The grounds and duration of preliminary" detention should be reduced, with the right to apply that measure vested exclusively in a court. The maximum duration of arrest without the court decision should not exceed 24 hours, and the arrested should be informed immediately about the grounds of arrest. In general, preventive measures should be applied only in order to secure the right course of proceedings. A new constitution should also contain the regulation concerning the damages for illegal deprivation of liberty and should provide for the interdiction to apply physical and psychical torture and other forms of inhuman or humiliating treatment to people deprived of liberty.
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    Interes przedsiębiorstwa państwowego a interes ogólnospołeczny (zarys problemu)
    (Wydział Prawa i Administracji UAM, 1989) Trojanek, Jacek
    In the first part of his article the author stresses that the existence of separate interests of state enterprises has for long been underestimated or even neglected both in. practice and in theory. The economic reform of 1981 was first to regard the interest of a state enterprise as a real and desirable phenomenon. The author shares the view that the external form of expression of economic interests of a state enterprise is profit. The economic interest of an enterprise is at the same time a legal category and is the object of both civil law and administrative law protection. In the second part, the author deals with controversial concept of social interest. The author rejects the view that the above concept is materially non-definiabie. He is of the opinion that „social interest" is the expression of the aggregate of needs of the society conceived as a whole and indues values and social advantages reflected in the socio-economic policy of the State, especially in socio- -economic plans of development of the country. In the system of economic interests of a socialist economy, the social interest is of supreme character. Its implementation, representation and protection is vested in central organs of State authority and administration. In the third part, the author indicates — contrary to the opinion often expressed by managerial circles — that the duty of realizing the social interest is vested also in the management and crew of an enterprise. A social aim of a state enterprise, a basic organizational unit of the national economy, is to satisfy a certain fraction of social needs. The duty of an enterprise to take into account the requirements of the social interest finds a sound political, normative and ethical justification. In the last part of his article the author presents a formerly neglected (i.e. in the period of directival and distributive management of the economy) problem of conflicts and contradictions of interests in a socialist economy. He also comments on the need to integrate group interests with the social interest by means of economic, legal and sociological tools. The author indicates that the problem of adequate integration and coordination of different interests has been and still is counted among the most difficult problems to solve in a socialist economy.
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    „Przekształcenie" przedsiębiorstwa państwowego w spółkę
    (Wydział Prawa i Administracji UAM, 1989) Kruczalak, Kazimierz
    A „conversion" of a state enterprise into a company is an important instrument of stimulating social activity in the direction of creating conditions for preferred economic behaviours and motivations. In the author's opinion a „conversion" of a state enterprise into, a company regulated in Art. 29 of the Act of September 25, 1981, on State Enterprises (Official Gazette 1987, no 35, item 201) and in Ordinance of the Council of Ministers of February 8, 1988 (Official Gazette 1988 no. 6, item 51) is an important novelty in our economic legislation. The said regulation cannot be reduced to a „pure" conversion, like in cases of fusion and division of enterprises, or to a „pure" liquidation of an enterprise. A „converted" state enterprise becomes a joint stock company or a limited liability; company, acquiring both assets and liabilities of a former enterprise. The initiative to convert an enterprise belongs entirely to its organs and not to the organ which founded that enterprise. In a „converted" state enterprise the self-government of a crew does not participate in the management of that enterprise along the rules provided for in the Act of September 25, 1981 on Self-Government of a Crew of a State Enterprise (Official Gazette No 24, item 123 with subsequent amendments). The Commercial Code, which provides the legal basis for creating and functioning of companies, declares that companies shall be independent, self- -governing and self-financing bodies. However, the Commercial Code regulates these features in the way different from the manner adopted in the law regulating the activity of state enterprises. The basis for participating in a company is the initial capital, which is decisive for the scope of rights and duties of partners. A self-government of a company is based on capital. At the same time a self- -go'vernment of a state enterprise crew draws its rights from the labour relationship and is based exclusively on legal provisions. De lege ferenda it seems desirable to postulate the adoption of legal provisions regulating the participation of a crew in the management of „converted" state enterprises. Such a participation might take the form of the participation of the representatives of a crew in a supervisory board with a decisive vote, and in a general assembly of partners with an advisory vote.
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    Umowy o korzystanie z cudzych rozwiązań technicznych w obrocie pomiędzy krajami RWPG (w świetle praktyki przedsiębiorstw polskich w latach 1981-1987)
    (Wydział Prawa i Administracji UAM, 1989) Nowicka, Aurelia
    The article is based on empirical research conducted by the author in the Ministry of Foreign Economic Relations. The research comprised licence agreements (for both export and import), concluded between 1981 -1987 by Polish enterprises with partners from the CMEA countries. Analysing the contents of the contracts the author takes into account the stipulations of the CMEA documents which in the form of "directives" regulate the circulation of so-called „.scientific and technical works". Taken into account were the stipulations of Organizational, Methodical, Economic and Legal Foundations for Scientific and Technological Co-operation of the CMEA Member States of 1972 (in the 1986 version) and the provisions of „model forms of licencing agreements" issued by the CMEA Secretariat in 1975. The purpose of the analysis was to establish to what degree the solutions recommended for application within the CMEA influence the praxis of shaping the contents of contracts. It should be emphasized that licence relations have not yet been regulated in the acts of the so-called „CMEA common '' law". Besides, the author analyses the contents of particular clauses, especially those of importation contracts, from the viewpoint of their agreement with Polish norms regulating the transfer of technology contained in the 1986 Regulation on Principles and Procedure of Exportation and Importation of Scientific and Technical Achievements issued by the Minister of Foreign Trade. The author aims at establishing to what degree Polish licencees are able to secure for themselves preferred elements of the contents of contracts and to what degree contracts for importation of technology from the CMEA countries are tainted with restrictive practices. The author carries out a survey of typical licence clauses, in particular clauses regulating the extent and character of a licence, the transfer of technical documentation, the exchange of technological improvements, the licensor's legal and technical protective measures and the liability for infringing them, technical assistance, licence fees and their payments, measures to protect the secrecy of know- -how, the clauses regulating the settling of disputes and the choice of applicable law. Then, the author turns her attention to the areas of inadequate contractual regulation (especially the problems of liability and the choice of applicable law). She also discovers in importation contracts. concluded with the CMEA countries the existence of practices restricting the economic activity of Polish licences. From among the restrictive clauses indicated in the Regulation of 1986 the author finds the restrictions as to the right of granting sublicences, exportation restrictions and interdictions to question the licensor's protective title. In that connection the author deals with the character of Polish legal norms regulating the transfer of technology and analyses the relation of these provisions to the norms of the Law on Counteracting Monopolistic Practices. She concludes that restrictive licence clauses may be subject to, sanctions provided for in the Law. The last part of her article is devoted to the problem of transfer of technology within joint ventures carried out with partners from the CMEA countries. Legal foundations of such a form of co-operation and means of transfering the technology within joint ventures have been discussed.