Ruch Prawniczy, Ekonomiczny i Socjologiczny, 1993, nr 1
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Item Spis treści RPEiS 55(1), 1993(Wydział Prawa i Administracji UAM, 1993)Item Dyskusja w sprawie wyodrębniania prawa gospodarczego(Wydział Prawa i Administracji UAM, 1993) Bator, Andrzej; Chełmoński, Adam; Gilas, Janusz; Kosikowski, Cezary; Rabska, Teresa; Wasilewski, Andrzej; Włodyka, Stanisław; Żuławska, CzesławaTo the above question, posed to lawyers interested in corporate law, the editors of "Ruch Prawniczy, Ekonomiczny i Socjologiczny" received a number of answers. Though both the substance and the form of answers were very different, they present a very interesting, contemporary characterization of corporate law and the science of corporate law. 1. There seems no doubt that there is a close connection between corporate law and the political and economic system of the state (see in particular: Cz. Żuławska and C. Kosikowski). Despite this dependency (and the resulting correlation between the concept of corporate law and the political and economic system), there is little change as to the theoretical approach to the "nature" of this law and the method of solving this problem. The issue at stake lies not so much in the fact whether corporate law exists, but whether, and to what extent, it constitutes a specialized part of law, and further, whether this part is of a complex character, or whether it can be placed within one traditional branch of law (in favour of the latter view: Cz. Żuławska, against: S. Włodyka), or, finally, whether separate branches of law and/or scientific disciplines (or subdisciplines) should be distinguished, or both separate branches of law and scientific disciplines (thus all other respondents). 2. The most important issue is the argumentation in favour of distinguishing corporate law (A. Bator, A. Chełmoński, S. Włodyka). The existence of this branch of law seems to leave no doubt. However, the reference to the contents of positive law does not allow to answer the issue of distinguishing the said branch of law. The list of legal definitions and notions introduced by particular contemporary legal acts (e.g., "corporate case", "corporate entity", "economic activity", etc.) would not lead to uniform conclusions. The same can be said about the scope of cognition of courts which have jurisdiction to hear corporate cases (Chief Administrative Court, corporate courts, anti-monopoly court). Finally, frequent amendments to legal acts are not in favour of reaching any conclusions in this respect. 3. Against this background, it is maintained that the term "corporate law", with no other qualifications, cannot be a priori considered to be related to private law or both private and public law problems of corporate activity (A. Wasilewski). Besides, treating this branch of law as a specialized part of civil law (Cz. Żuławska) would not allow to encompass the whole sphere of corporate relations. Finally, the existence of specialized parts of administrative and constitutional law fully justifies the presence of the discipline of public corporate law, separate from private law ( T. Rabska, S. Włodyka). 4. No one was not in favour of a concept of the complex discipline. The respondents stressed that the catalogue of "principles of corporate law", elaborated in the past, ceased to exist (Cz. Żuławska). A view prevails that "corporate law" cannot be practiced as one integrated scientific and didactic discipline (A. Chełmoński). One should also refer to legal disciplines distinguished in Western Europe (S. Włodyka). The above fact is also reflected in university curricula in Poland. The justification is simple: specialization is dictated by specific needs of economic activity, requiring a detailed and complex approach and diversified legal solutions. The above opinion is shared also by other authors (Cz. Kosikowski, T. Rabska). However, final concepts presented by the authors are to a great extent determined by legal disciplines they represent. 5. Many respondents stressed that legal norms regulating "economic relations" cannot be regarded as a separate type of legal norms (in particular, A. Bator). Thus, of foremost importance is the subject-matter of regulation. Hence, there appears a basic question, namely whether the subject-matter of corporate law is the regulation by the state of economic relations from the viewpoint of individual rights and interests of corporate entities (C. Kosikowski, T. Rabska, S. Włodyka), or whether the subject-matter of corporate law refers exclusively to civil-law relations between corporate entities, regulated by dispositional legal provisions (Cz. Żuławska). A relatively new trend in Polish law and in the Polish science of law is the concept of public corporate law, the scope of which is wider than, and different from, the traditional administrative corporate law (T. Rabska, C. Kosikowski, S. Włodyka). Its subject-matter would be aimed at the protection of corporate entities, and not at a direct intervention of the state into the economic activity. Such an approach corresponds with the needs of transformation of the economic system of the state and with new aspects of international economic integration (J. Gilas, T. Rabska). Some respondents stressed that economic matters are regulated mostly by means of public-law, rather than civil-law, acts (J. Gilas) and that the most suitable conception of corporate law is the public corporate law (S. Włodyka). 6. The above opinions on corporate law - presented, out of necessity, in a summary and simplified form — do not allow to formulate any more elaborate generalizations as to the branches of law and corresponding legal disciplines. However, those opinions may be considered a very valuable source of reference and a competent introduction to the discussion on the development of the legal system and the science of law. In this sense, the initiative of "Ruch Prawniczy, Ekonomiczny i Socjologiczny" has fully reached its objective.Item Problematyka kompetencji prawodawczych a kontrola konstytucyjności prawa(Wydział Prawa i Administracji UAM, 1993) Naleziński, Bogumił; Wojtyczek, KrzysztofIn order to carry out any control properly, it is necessary to define precisely the object of control and the object of reference, to which the object of control is compared, and to determine the consequences of such a comparison. The Polish doctrine of constitutional law does not fully explain what is to be meant by the object of control and the object of reference in the process of constitutional review of legislation, nor has it examined closely the process of comparing those two objects. The article attempts to present those problems, utilizing the instruments created by the theory of law.Item Ochrona życia prywatnego człowieka(Wydział Prawa i Administracji UAM, 1993) Kubiński, Krzysztof W.The article investigates the problems of the protection of t h e right to privacy in the Polish civil law. The right to privacy is not expressis verbis recognized in Polish legislation. Therefore, the introduction of such right into the open catalogue of personality rights defined in the Civil Code brings about a series of questions, the answers to which are the subject-matter of the article. The most important of such questions are the following: 1. what rationale speaks in favour of the introduction of such rights into the catalogue set forth in the Civil Code? 2. whether the right to privacy is to be a superior right, protecting many individual (subordinate) rights, or whether it is to be a separate right? 3. how (through what means) the privacy is to be protected? 4. whether the scope of protection should be identical with respect to all individuals, or whether it should depend on specific features characterizing an individual?.Item Ewolucja prawa o inwestycjach zagranicznych(Wydział Prawa i Administracji UAM, 1993) Popowska, BożenaThe article presents the evolution of foreign investment law. Three main legislative groups of legal acts have been analyzed, i.e. the acts on representative offices, on foreign companies and enterprises with foreign participation, and on limited liability and joint stock companies with foreign participation. With respect to the first group, the author observes that it is necessary to harmonize those regulations with the stipulations of the Association Treaty between the EEC and Poland. With respect to the second group, the author stresses the need of preserving the companies established by foreign nationals of Polish background; thus, she is against the view that such category of companies should be abolished. With respect to the third group, the author is of the opinion that th e Law of 14 June 1991 was a step forward in comparison with previous legislation; moreover, the need to harmonize the Law with the EEC standards has also been stressed.Item Powrót do przestępstwa jako "okoliczność obciążająca"(Wydział Prawa i Administracji UAM, 1993) Janiszewski, BogusławOne of t h e circumstances taken into account in deciding on the measure of penalty is "the past behaviour" of an offender. However, as long as one does not specify what, in such a context, is the object of condemnation (disapproval) connected with the measure of penalty, one will be unable to reach a necessary degree of clarity in evaluating this circumstance. The object of such condemnation is an offensive act, and return to crime has no influence, with few exceptions, on the evaluation of such an act from the point of view of the measure of penalty. Return to crime is here merely a prognostic factor, and is treated purely "technically". It may serve the preventive aims of the measure of penalty, within the limits determined by the commensurability of penalty to the degree of guilt.Item Konsekwencje układu o stowarzyszeniu Polski z EWG dla rolnictwa(Wydział Prawa i Administracji UAM, 1993) Czyżewski, AndrzejThe article presents the nature of protectionist and interventionist practices in the agriculture of the EEC countries. So far, those practices consist in the protection of the EEC market through market instruments (prices, subsidies, customs) and are aimed at the increase of productivity of agriculture and agricultural self-sufficiency within the EEC. However, new proposals set forth by the EEC depart from the above conception of interventionism. The remarks referring to the above issues provide the background for the analysis of the "agricultural part" of the Association Treaty made between Poland and the EEC. The author points to the discrepancy between the expected and actual access of Polish agricultural produce to the EEC markets. The article is concluded with comments focusing on Polish agricultural policy and stressing the need of systemic adaptation to the EEC standards on one hand, and the need of state interventionism with respect to the stimulation of the growth of agricultural income and the protection of agricultural produce markets on the other.Item Rządowa promocja eksportu małych i średnich firm. Doświadczenia zagraniczne i propozycje dla Polski(Wydział Prawa i Administracji UAM, 1993) Krzykała-Schaefer, RenataA governmental promotion of export of in market economy countries is the form of t he activity of t h e state, which, on one hand, takes steps to safeguard a smooth course of economic and social processes, and, on the other, aims at securing for itself an advantageous market position in conditions of increased international competition. The promotion of export of small and medium companies is specific as to its character and scope. It must take into account characteristic features of such firms, their problems and potential, main motives of their operation and main risks. Governments of developed countries grant special protection to small and medium firms, for such firms play special role in the economy through their flexibility and dynamism, their contribution to the development of innovative activity and new technologies, as well as their contribution to export-oriented restructuring of t h e state economy and the improvement of competitiveness.Item Zarządzanie w zmieniającym się środowisku(Wydział Prawa i Administracji UAM, 1993) Penc, JózefGrowing complexity and perplexity of economic environment makes it is no longer possible to manage a company by means of a simple philosophy based on the conception of "product — mark e t . Marketing and innovative activity become the basis for defining the objectives of a company; actions of this type determine the position and development of a company on the market-place. Management becomes more complex and thus, the area of uncertainty becomes larger, making it more difficult to take correct decisions. A company has to react to the challenges of t h e marketplace by creating new technologies, new products and forms of marketing. In other words, in order to survive and be successful in a contemporary economic environment, the company must apply strategic management techniques.Item Przegląd piśmiennictwa RPEiS 55(1), 1993(Wydział Prawa i Administracji UAM, 1993)