Ruch Prawniczy, Ekonomiczny i Socjologiczny, 2002, nr 2
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Item SPIS TREŚCI(Wydział Prawa i Administracji UAM, 2002)Item SPRAWOZDANIA I INFORMACJE. SPRAWOZDANIE Z KONFERENCJI „MŁODOCIANI MORDERCY” Poznań 10 - 11 XII 2001 r.(Wydział Prawa i Administracji UAM, 2002) Barczykowska, AgnieszkaItem PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2002) Marcinkiewicz, AgnieszkaMobilność zasobów pracy. Analiza i metody stymulacji, pod red. Elżbiety Kryńskiej, IPiSS, Warszawa 2000, ss. 266.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2002) Kraśniak, JanuszElżbieta Kowalczyk, Psychospołeczne uwarunkowania negocjacji gospodarczych, Wydawnictwo AE w Poznaniu, Poznań 2001, ss. 242.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2002) Budzinowski, RomanPaweł Czechowski, Proces dostosowania polskiego prawa rolnego i żywnościowego do prawa Unii Europejskiej, Wydawnictwo Twigger S.A., Warszawa 2001, ss. 376.Item UKRYTY WYMIAR TRANSFORMACJI KOMUNIZMU(Wydział Prawa i Administracji UAM, 2002) Brzechczyn, KrzysztofMaria Łoś, Andrzej Zybertowicz, Privatizing the Police-State. The Case o f Poland (Foreword by Gary T. Marx), St. Martin’s Press, INC. & Macmillan Press, LTD, New York-London 2000, ss. 270.Item PODSTAWOWE PROBLEMY DOMÓW SKŁADOWYCH (w kontekście aktualnych wypowiedzi doktrynalnych)(Wydział Prawa i Administracji UAM, 2002) Zacharzewski, KonradItem BRANŻA JAKO MEZOSYSTEM GOSPODARCZY(Wydział Prawa i Administracji UAM, 2002) Jankowska, BarbaraThis article attempts to answer the question whether a branch of economy, which is an intermediate link between economy as a whole and a single company, should be considered a real entity or merely a construct that helps explain the economic reality. The article includes arguments in favour of viewing a branch of economy as a real entity, while some examples are given of situations when a branch of economy only serves the function of a category that allows to understand the market. The author makes use of some of the philosophy findings concerning real entities. The problem is analysed with the help of the concept of collective and distributive sets. A large part of the presented discussion is taken up by definitions and presentation of a branch of economy in the field of branch economics. The author attempts to determine the extent to which the concepts of a branch of economy found in literature allow this notion to be considered a real entity rather than a cognitive construct.Item NOWE ZASADY KONCESJONOWANIA DZIAŁALNOŚCI GOSPODARCZEJ(Wydział Prawa i Administracji UAM, 2002) Trela, AnnaThis article presents new legal solutions concerning licensing the performance of business activities regulated in the Polish Business Activity Law Act of 19 November 1999. At the beginning, the author defines the scope of licensing, pointing out its limitations in comparison with the previous state, and analysing regulations which define terms and conditions for making new licenses legally binding. She evaluates performing the duty imposed on the legislator in article 98 section 1 of the Polish Business Activity Law Act, which concerns defining in separate acts the scope and conditions for performing the business activity and the legal consequences o f a failure to fulfil this duty. A considerable part o f the article refers to such procedural issues as legal regulations concerning refusal to issue a license, a revocation or alteration of a license. The author evaluates these legal solutions, underlying the changes introduced by the legislator in comparison to the previously binding regulations. She analyses institutions that so far have been unknown in the license proceedings, such as the preliminary control institution and the administrative trial institution applied in a situation when the body intends to issue a limited number of licenses. She also points out solutions concerning the possibility to revoke a license. On the basis of an analysis of legal regulations as well as views presented in publications and judicial decisions, she characterizes legal decisions concerning licensing. The author pays a lot of attention to the position o f the licensing body in the license proceedings. Therefore, she analyses article 16 section 1 of the Polish Business Activity Law Act, according to which it is the licensing body that specifies the terms and conditions for performing a business activity which is subject to licensing. The author points out the differences between the act on business activity dated 1988 and the Polish Business Activity Law Act with respect to the way in which the licensing body is bound with the promise. Another issue discussed in the article concerns the validity of a license issued still before the Polish Business Activity Law Act came into force. At this point she also discusses licenses issued to civil partnerships.Item OBOWIĄZKI PRZEDSIĘBIORCY I KARNOPRAWNE KONSEKWENCJE ICH ZANIECHANIA(Wydział Prawa i Administracji UAM, 2002) Sachajko, MarekThe Business Activity Law Act regulates such areas as the obligations involved in undertaking and conducting business activities by entrepreneurs. These obligations have a variety of legal characters and they serve a number of different functions. They refer, for instance, to the conditions of conducting a business activity, possession of appropriate professional qualifications to conduct specific types of business activity, registering an entrepreneur and traded products as well as requirements regarding payment transactions in trade with existing entrepreneurs on the market. Violation of one’s obligations entails a number of different legal consequences other than administrative, such as penal liability for violation. However, in order to consider a breach of one>s administrative duties to be a violation of the law, each of the two conditions must be met: the committed act must be unlawful (prohibited by an act under the threat of a penalty) and injurious to the public. A violation of an order does not entail liability for a violation of the law i f the act is not injurious to the public. Criminal provisions are regulated by chapter 9 of the act. However, because of the textual character of any criminal norm, which is to refer to other legislative texts, the definition of a violation is determined not only by the Business Activity Law Act but also other administrative legal norms referred to by the Act. There is a large number of administrative and legal norms regulated in separate acts and binding for an entrepreneur in the course o f conducting a business activity. This article only deals with the criminal consequences of neglecting these obligations. It is a duty of eligible administrative bodies to oversee the discharge of these obligations imposed upon entrepreneurs. If a violation (as defined in chapter 9 of the Act) is disclosed, then eligible administrative bodies have the powers of a public prosecutor, providing that they have disclosed the violation and applied for the punishment in the scope of their competences. The court competent to consider violation cases is the regional court, which applies the procedure proper for violation cases. According to the principle o f criminal law subsidiarity, criminal measures only serve a supplementary function to the administrative means of administrative duty obligations imposed upon entrepreneurs. In administrative law enforcement the main role is played by administrative law instruments including administrative execution means. These execution means are the most apt for the character of the activities that are taken by the administrative bodies and that aim at implementing the norms of material administrative law on undertaking and conducting business activity.Item J. A. SCHUMPETER PÓŁ WIEKU PÓŹNIEJ - WSPÓŁCZESNA RECEPCJA TEORII(Wydział Prawa i Administracji UAM, 2002) Maślak, ElżbietaThe aim of this paper is to present the core concepts of the work of Joseph A. Schumpeter, a person that is considered to be one of the greatest economists of the 20th century. In his numerous works he makes attempts at explaining the methodological concepts related to economics as a science, explore certain social phenomena like democracy, social and institutional change and make predictions about the transformation from capitalism into socialism. However, Schumpeter’s greatest contribution is his explanation of the development o f the capitalist market economy, the factors and process of economic development. Unlike neoclassical economists, J. A. Schumpeter seeks progress factors among endogenous objects, i.e. innovations. Progress initiators are those entrepreneurs who introduce innovations to the market. Schumpeter is therefore regarded to be the founder of the innovation theory. Schumputerian ideas, though slightly forgotten after his death, are again beginning to gather importance similar to those of J. M. Keynes. The growing popularity o f the postschumpeterian (evolutionary) economics centred around the phenomenon of technical change proves that Schumpeter’s theory has not lost its relevance.Item ZAKRES POJĘCIA „PRZEDSIĘBIORCA” W PRAWIE DZIAŁALNOŚCI GOSPODARCZEJ ORAZ W INNYCH AKTACH PRAWNYCH(Wydział Prawa i Administracji UAM, 2002) Lissoń, PiotrThe aim of the article is to present the notion of entrepreneur both in the light of the Business Activity Law Act of the 19th November 1999 and in other legal acts, arriving at conclusions drawn from the current state of affairs. The author makes an assumption that this notion is among the most crucial ones in the area of legal regulation of business relationships and it should as such be used by the legislator in the legal system in a standardised manner, so that the term universally denotes only one single meaning. The author postulates that the meaning of the term „entrepreneur” should be consistent with the definition presented in the Business Activity Law Act, which has a special system-making character, as it regulates the general issue of undertaking and conducting business activities. In order to attain the goal of this article, the author poses the following questions that determine the order of the article: what is the genesis of the term „entrepreneur” in the Polish law? What is the meaning o f the term in the light of the Business Activity Law Act? Has the legislator introduced any changes to the meaning of the term since the publication of the Act? And finally, in what way do separate legal acts deal with this notion, or in what acts is it mentioned and what meaning does it have in those texts? Since the article is set within the general topic of „Business activity law one year after its introduction”, the considerations presented in this article are ordered chronologically. The author makes an attempt to juxtapose various changes in the meaning of the term „entrepreneur” over time, trying to systematise them and assess from the legislative technique principle perspective, i.e. regarding the principles of drawing up correct legal acts. On the basis of the accepted criteria, the author draws conclusions from the current state of affairs in the law. These conclusions are twofold. Firstly, some are critical of the construction of the „entrepreneur” notion in the Business Activity Law Act and other legal acts. The author blames the legislator for lack of transparency in constructing legal regulations and incoherence in the legal solutions applied, which is especially visible in the variety of different definitions of this term in numerous legal acts. Secondly, the author postulates some changes in the legal provisions in order to do away with the existing irregularities.Item CHARAKTERYSTYKA PRAWNA ODDZIAŁÓW PRZEDSIĘBIORCÓW ZAGRANICZNYCH(Wydział Prawa i Administracji UAM, 2002) Szymańska, Joanna KatarzynaThe Polish Business Activity Law Act came into force on 1 January 2001. In section 5 of the Act the Polish legislator regulated the issue of undertaking and performing business activities by foreign entrepreneurs in the form of branches in Poland. The legislator allows a foreigner to undertake and conduct business activities in the form of branches in the Republic of Poland on condition of reciprocity insofar as the international agreements ratified by Poland do not stipulate otherwise. At the same time, an entrepreneur is obliged to obtain an entry in the National Register of Companies in order to undertake a business activity, just like a Polish entrepreneur. Moreover, an entrepreneur is obliged to designate an authorised person in the branch to represent a foreign entrepreneur, formulate the name of the branch and do the bookkeeping separately from the foreign entrepreneur. The Polish legislator ensures freedom for foreign entrepreneurs to undertake business activities, however, the very performance of the business activity is subject to state supervision. The Polish Business Activity Law Act provides for the special means of supervision in order to protect important public interest as well as ensure security of economic relations, i.e. decision concerning the prohibition to perform business activities by a branch. Despite this legal solution, which may put foreign entrepreneurs at a disadvantage, the Polish legislator makes national law more liberal in chapter 5 of the Polish Business Activity Law Act as far as undertaking and performing business activities by foreign entrepreneurs in the form of a branch is concerned. The above liberalization complies with the obligations undertaken by Poland in the European Treaty.Item UMOWA O PARTNERSTWIE MIĘDZY KRAJAMI AFRYKI, KARAIBÓW I PACYFIKU A WSPÓLNOTĄ EUROPEJSKĄ I JEJ PAŃSTWAMI CZŁONKOWSKIMI - NOWA DROGA INTEGRACJI GOSPODARCZEJ?(Wydział Prawa i Administracji UAM, 2002) Mleczko, MałgorzataOn the 23rd o f June 2000 in Cotonou, Benin, a new convention was concluded for the contracted period of 20 years: Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States of the Part, and the European Community and its member states, of the other Part. This Convention opens a new stage o f cooperation between ACP and EU countries, strengthened by the Lome agreements so far. The author attempts to answer the question whether it is correct to consider the new agreement to be a breakthrough in the mutual relations between these country groups, and whether it in effect broke up with the form of cooperation as determined by the Lome conventions. The article also presents a discussion on how the mutual relations between EU and ACP countries have been affected and how they have adapted themselves to the new conditions of the world economy. Despite declarative goals, a practical implementation of the convention stipulations is by no means an easy task, in particular in the view of the following sensitive aspects: - Insufficient knowledge and limited opportunities to gain enough know-how necessary to carry out complex tasks on the local, national, and regional level; limited managing skills for such instruments as programme over-gearing and budgeting; - Vague description in the convention given for particular engagement and participation procedures for non-governmental entities in the development policy implementation; lack of executive procedures; - Need to make concessions in order to create Economic Partnership Agreements or not participate in the commercial policy; - Internal EC reforms and the prospect of accepting new community members overlapping with the time of the Cotonou agreement, which in effect can pile up additional difficulties in the relations with the ACP countries.Item SYTUACJA PRAWNA INWESTORÓW ZAGRANICZNYCH W POLSCE I NA BIAŁORUSI (porównanie Prawa działalności gospodarczej i Kodeksu inwestycyjnego Republiki Białoruś)(Wydział Prawa i Administracji UAM, 2002) Struczewski, JuryLiberalization of conducting business activity by foreign investors in both Poland and Belarus constitutes the most important element of the economic transformation in these two countries. On the basis of the analysis of the Polish Business Activity Act and the Investment Code of the Republic of Belarus one may notice considerable differences between the legal regulations, including the legal terminology. Therefore, for example, the activity of foreign investors in Poland is regulated by a parliamentary Act. However, such activity in Belarus is regulated by the Code. This Code is called the „Investment” Code and the term „foreign investors” is applied to foreign subjects conducting business activities in the Republic of Belarus. The Polish Business Activity Law Act differs from the Investment Code in the specification of the range of investment activity subjects. The Code stipulates that foreign states, their legal-administrative units and international organizations can also be considered to be foreign investors, while the Polish Act does not mention such subjects. Pursuant to the Act, business activity may be conducted in Poland by a partnership of foreign natural or legal persons that does not have the status of a legal person and has its main seat abroad. The Investment Code of the Republic of Belarus does not provide for the activity of a foreign organization without the status of a legal person in Belarus. Under the Act foreign entrepreneurs may set up branches and representative offices in the Republic of Poland. The issue of setting up branches and representative offices and conducting activity by the branches and representative offices on the territory of Belarus is not regulated in the Investment Code. The term „branch” does not exist in the Belarusian legislation. One of the basic principles of the Business Activity Law Act which regulates the conducting of business activities in Poland is the principle of reciprocity. The Investment Code does not include such a principle. The Business Activity Law Act maintains the principle of equal treatment of foreign and domestic subjects. The Investment Code of Belarus provides for the principle of national treatment of the foreign investors. However, one should mention at this point that the Investment Code has been in force only since 9 December 2001 and the legal situation of foreign investors is determined on the basis of the previous legal acts which have not been harmonized with this general principle of the Investment Code. Besides, Belarusian legal acts uphold many limits and exceptions concerning foreign investors. As a result, the legal system in force is not favourable enough to the influx o f foreign investments in Belarus.Item PRAWO DZIAŁALNOŚCI GOSPODARCZEJ REALIZACJĄ ZOBOWIĄZAŃ UKŁADU EUROPEJSKIEGO PRZEZ STRONĘ POLSKĄ W ZAKRESIE ZAKŁADANIA PRZEDSIĘBIORSTW(Wydział Prawa i Administracji UAM, 2002) Kokocińska, KatarzynaThe European Association Agreement between the European Union and Poland is a legal act regulating the legal aspects of undertaking and conducting a business activity in the area of the Republic of Poland by entities coming from the EU member countries. The provisions of art. 44 of the Europe Agreement impose an obligation „to treat EC citizens and enterprises in a way that is no worse than the treatment of Polish citizens and enterprises in the area of undertaking and conducting business activity”. This obligation means that Poland should take immediate or gradual action towards a condition in which „EC entities are treated in no worse a way than domestic entities” in undertaking and conducting business activities on the territories of the parties to the Agreement. Accepting the principle of no worse treatment by the Polish side should result in a change of the Polish law in such a way that no natural and legal persons from the EC countries are affected by the laws that impose a special, disadvantageous course of undertaking and conducting a business activity by foreign entities on the territory of Poland. Doing away with the discrimination should gradually follow according to the agenda in the areas mentioned in the Europe Agreement. Despite the above mentioned undertaking of the Polish side, it is only the Business Activity Law Act of 1999 that comprehensively introduces legal solutions in this area. The Act introduces a principle of free and equal treatment of foreign entities (including EC entities) in undertaking and conducting business activities. At the same time the legislator liberalised the principles of access to business activity for foreign entities. Gradually the separate standards for these entities are being abandoned in the area of undertaking and conducting business activities.Item TE CI INI C ZN O-FIN ANSO WE ASPEKTY PRZESTĘPCZEGO WYKORZYSTANIA TZW. NOWYCH TECHNOLOGII PŁATNICZYCH W DOBIE GLOBALIZACJI NA PRZYKŁADZIE PRANIA PIENIĘDZY(Wydział Prawa i Administracji UAM, 2002) Prengel, MarekThis article is a discussion of the issue of new payment technologies along with a comprehensive view of their possible unlawful use. The notion of „new payment technologies”, virtually unknown until recently, denotes a system o f closed networks, chip cards system, and open payment systems. The author puts special emphasis upon problems related to the interconnection and mutual influence between the following four new phenomena of the 20th century: intensive organized criminal activity and such crime-fostering phenomena as: abuse of new payment technologies, ongoing globalisation, and intensified money laundering. The author sets out to present the arising socio-economic threats connected with the discussed processes and above all to shed light upon the technical and financial mechanisms connected with them. The author arrives at the following conclusions. Methods of applying new payment technologies, especially in money laundering, are as complicated as the economic system itself. The criminals’ unlimited imagination and resourcefulness is still ahead of any preventive measures. Additionally, the constantly transforming globalisation process makes it even more difficult to enumerate all the possibilities of unlawful use of these technologies.Item WŁASNOŚĆ W KONSTYTUCJI III RZECZYPOSPOLITEJ(Wydział Prawa i Administracji UAM, 2002) Pokitko, DawidOne can distinguish two main meanings of the notion of ownership under the terms of the current Constitution: the narrow one, when the Constitution legislator speaks of the right to ownership, other property rights, right of succession (art.64, points 1 and 2), and limiting ownership in the civilistic sense (art.64, point 3); in its broad sense the term collectively refers to all rights of ownership - in art. 21 of the Constitution. Since art. 21 point 1 of the Constitution introduces the principle o f ownership and succession, one should consider that the guarantees resulting from this principle apply not only to ownership in the strict sense but also other rights of ownership in the broad sense of the term. Art. 21 of the Constitution secures the guarantee of ownership and succession protection and regulates the expropriation conditions; one could therefore assume that expropriation encompasses cases of deprivation or disproportionate limitation of both rights of ownership and other property rights. These rights, like the rights of ownership, can be expropriated only on the conditions mentioned in art. 21 point 2 of the Constitution. The term „ownership” used in art. 21 of the Constitution (in the broad sense) is a synonym of property (art. 44 of the Polish Civil Code). One cannot agree with the view that ownership in the broad sense encompasses only some property rights (e.g. only those rights which are part of the notion o f property and which are exclusive for their bearers). When interpreting the mutual relation of art. 21 and 64 o f the Constitution, if one accepts the arguments for the broad understanding of the term „ownership” in art. 21 (as a synonym of property) and narrow understanding in art. 64, then one should accept that this relation is not complementary, since the notion of ownership in art. 21 encompasses the notion of right o f ownership and other property rights from art. 64, but rather this relation presents the right of ownership in other categories. On the issue of „essence of ownership” (in the strict sense), one undeniably cannot exclude any right from this same construction of the right of ownership, while any external exclusion (limitation) is only possible if the previous rights are restored when the exclusion is lifted. Besides, without the full damages one cannot limit the owner in such a way as to grant him a title with no real rights connected with it. In the Polish legal system the essence of ownership in the strict sense is best expressed in art. 140 of the Civil Code. This right would be violated if the introduced limitations infringed upon the basic freedoms comprising this right and impeded its due function in the legal order founded upon the guidelines included in art. 20 o f the Constitution.Item PRAWO DZIAŁALNOŚCI GOSPODARCZEJ PO ROKU OBOWIĄZYWANIA - OCENA I WNIOSKI(Wydział Prawa i Administracji UAM, 2002) Popowska, BożenaItem ODPOWIEDZIALNOŚĆ ODSZKODOWAWCZA DUCHOWNEGO Z POWODU NARUSZENIA PRAWA PRZY ZAWIERANIU MAŁŻEŃSTWA(Wydział Prawa i Administracji UAM, 2002) Smyczyński, TadeuszThe author lists a clergyman’s possible transgressions that can occur when contracting a marriage, as well as the effects of such transgressions upon the couple contracting the marriage. Additionally, the author touches upon the issue of the liability for damages of the clergyman and those addressed by a claim for damages.Practice shows that the most common negligence o f clergymen when administering a marriage under the concordat terms is to exceed the 5-day deadline for submitting the documentation to the registry office. This time has been defined normatively as the final deadline and keeping it is therefore a prerequisite for the conclusion of any civil marriage before a clergyman. If, however, force majeure makes this deadline impossible to keep, then the clergyman should hand in the documents at a later date, mentioning the cause for the delay. This allows the head of the registry office to issue a marriage certificate. However, i f the clergyman fails to provide sufficient explanation for the delay, then the head of the registry office refuses to issue a marriage certificate and notifies the interested parties about this fact (art. 7 point 2 of Polish Civil Register Act). Only the Regional Court considering a motion or appeal from the decision can assess the provided explanation for the delay. A marriage before the head of registry office is contracted following the appropriate statements made by the couple (art. 7 § 4 of the Polish Family and Guardianship Code). In the view of this legal construction of a marriage, the requirement to draw up a certificate o f marriage when a marriage is contracted under the concordat terms, is in a certain way discordant. The strict character o f the five-day final deadline makes this discord even greater, as it further impedes the contraction of a marriage, even in the case of a minor delay. If the deadline served only the purpose of procedural order regulation, then the prerequisites to issue a certificate of marriage could be met more easily. In any way, also under the current regulations i f a certificate of marriage is issued despite a delay, then the prerequisites for the contraction of a marriage are met and the thus contracted religious marriage is recognized as valid under the Polish law.