Ruch Prawniczy, Ekonomiczny i Socjologiczny, 1987, nr 2
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Item Spis treści RPEiS 49(2), 1987(Wydział Prawa i Administracji UAM, 1987)Item Tajemnica przysposobienia w ujęciu prawa o aktach stanu cywilnego z 29 września 1986 roku(Wydział Prawa i Administracji UAM, 1987) Ignatowicz, JerzyThe article presents the process of shaping the principle of secrecy of. adoption in the Polish law together with a detailed analysis of regulations pertaining to the above issue contained in the Law on Civil Status Acts of 1986. Since the Law creates a highly complicated system of concealing the origin of an adopted child its application may cause difficulties in practice. Intricate problems arise with respect to the interpretation of regulations providing for drawing out a new birth certificate with adopters registered as the parents of the adopted child. In the author's opinion, such a certificate should be drawn out in the cases of 1) irrevocable adoption by the spouses jointly or by a single person, 2) full adoption of a step-child by a step-parent (a controversial issue), 3) full adoption by the spouses jointly, if the court, at the instance of the adopters, decided so; the latter possibility is an important novelty introduced by the Law of 1986. In the author's opinion, the line of the legislative changes concerning the secrecy of adoption fully responds to the expectations of the society. However, the new regulation requires somewhat more precision and needs to be better coordinated with Family and Guardianship Code provisions. Besides, it raises doubts also because it does not eliminate the possiblity of obtaining the information as to the origin of a child by informal channels. Such information should, however, be disclosed if the court requires so, whenever there is the danger of concluding marriage despite the obstacle of consanguinity.Item Prawo właściwe dla licencji patentowych w polskim prawie międzynarodowym prywatnym(Wydział Prawa i Administracji UAM, 1987) Sołtysiński, StanisławThe Polish Act on Private International Law does not contain provisions on proper law for contracts for the transfer of technology. In the legal writings three proposals to eliminate the existing axiological lacuna have been set forth. According to the first view, if the parties did not choose the proper law, patent licences should be governed by the law proper for the seat of the exporter of technology at the moment of concluding the contract (Art. 27 § 1 sec. 1 of the Act of 1975 on Private International Law). The above solution is based on „analogiae legis" and assumes the similarity between patent licences and the contract of sale. According to the second view, in the absence of the detailed statutory regulation of the issue in question, Art. 29 of the Act, providing for the subsidiary connecting factor of the place of contract (lex loci actus), should be applied. The third view is based on the assumption that patent licences should be governed by analogous application of Art. 27 § 1 sec. 4 of the Act stipulating that for contracts for acquisition of copyrights the proper law is the law of the importer. The author declares for the latter solution. His reasoning is based on the analysis of the socio-economic function of licence contracts. Both in copyright lawas well as in patent law, the establishment of the right to exploit an invention (the author's work) is ussually based on long-term contracts, the performance of the acquirer (licensee) is of continuous character and must be fulfilled on the licence territory. Moreover, the interest of the country which is the recipient of technology prevails over the interest of the country which exports it. While the latter is interested in obtaining proceeds from the licence fees, the former sets on the licence its hopes of developing its own economy. Besides, the recipient takes much greater risk of the transaction. The importation of technology is connected with concurrent investments, the ecological risk, etc. Moreover, subjecting the licence contract to the law in force on the licence territory is the only way to prevent the conflict between „lex loci protections" and the law proper for the contractual status. In case the licence encompasses several countries, the author suggests the competence of the law of domicile of the licensee, provided that his domicile is on the territory of the country being the center of the economical exploitation of an invention. The second part of the article is concerned with an attempt to distinguish between the contractual status of the licence contract and the patent status (lex loci protectionis). The author defends the opinion that the admissibility of granting a licence and the dispositional consequences of a legal transaction come under lex loci protectionis.Item Rada nadzorcza w systemie organów spółdzielni(Wydział Prawa i Administracji UAM, 1987) Niedbała, ZdzisławThe Act of Sept. 16, 1932 on Co-operatives modified the system of organs of a co-operative only to a very limited extent. The general assembly retains the rank of the supreme organ of a co-operative; the function of current management and representation of a co-operative is vested in the board. The task and competences in the area of control of over-all activity of a co-operative have been vested in the supervisory council. The Act has also transferred to the council some powers in the sphere of management and representation of a co-operative. The supervisory council is electively dependent on the general assembly since the latter is empowered to elect and remove the members of the council. Only in co-operatives which adopted the representative system, i.e. replaced the general assembly with the meeting of representatives, the election and removal of members of the council is vested either in the meeting of representatives or in the meetings of the members' groups. The instance dependence of the council on the general assembly manifests itself through examining by the supreme organ the appeals from the resolutions of the council. The Act provides also for the dependence of the council on the general assembly in the sphere of decision-making, i.e. it defines the instances of making the resolution of the council dependent on the prior opinion of the general assembly and on the conditions determined in the resolution of that organ. In relation to the board of a co-operative, the supervisory council performs the functions of supervision and control. The statute of a co-operative may also authorize the council to elect and remove the members of the board. Performing the above functions by the council justifies the interdiction to combine the membership of that organ with the membership in the board. Members of a supervisory council do not receive any compensation for their services as such. The above does not exclude their liability for their actions towards the co-operative; by virtue of art. 58 of the Act on Co-operatives, their liability is based on art. 114 et seq. of the Labour Code. The position of the supervisory council in a co-operative allows that organ to perform independently the function of internal control according to the needs and requirements of the co-operative democracy.Item Zasady odpowiedzialności majątkowej za szkody spowodowane wykonaniem decyzji organu sprawującego nadzór nad przedsiębiorstwem państwowym(Wydział Prawa i Administracji UAM, 1987) Wostal, MirosławThe article presents a special type of administrative-legal responsibility based on provisions defining the ways of compensating for damages caused to a state enterprise by legal acts of a supervisory organ. In the past, depending on the system of the management of the economy in force, the responsibility of such a kind was regulated in various ways and inadequately. To some extent, the present Act of September 25, 1981 on State Enterprises may further the regulation of the above issue. The Act defines the division of competences between a state organ and an enterprise; it must be decisive for the responsibility for undertaken decisions. Besides, the provisions of Art. 58 sec. 1-3 of the Act introduce a new very important principle according to which in case of damage resulting from carring out the decision of a supervisory organ, an enterprise may demand compensation from that organ. The above regulation is to increase the self-dependence of an enterprise and to protect it from economically detrimental decisions of a supervisory organ, irrespective of whether they are legal. One may also perceive in the above regulation the elements of prevention or warning to a supervisory organ, ordering it to concider the economic usefulness of undertaken decisions and their consequences for a self-dependent (legally and economically) enterprise. So far, however, there have been no suits for damages resulting from carring out a decision of a supervisory organ. Compensation may be claimed from an organ which issued a decision. Most often it is a founding organ and usually an organ of State administration. The damage must result from carring out the decision of a supervisory organ. The claim for compensation may be filed both by a director of an enterprise and by the employees' council; the competence of the latter results from the fact that the self-management organs are considered not only the organs of he factory crew but also the organs of an enterprise. The jurisdiction in suits for compensation for damages is vested usually in the provincial common court of law. The Act is silent as to the financial sources of compensation. One of the solutions might be to create a special fund for that purpose. At present, the plaintiffs should institute actions against the Treasury. By virtue of Art. 58 of the Act, the problem of vindicating the compensation has been regulated differently by orders of the Council of Ministers of September 30, 1981 with respect to state enterprises to which some parts of the Act do not apply.Item Kryminologia konsensualna czy konfliktowa? Spór o koncepcję(Wydział Prawa i Administracji UAM, 1987) Krajewski, KrzysztofSince late sixties one can observe in criminological literature significant change of the assumptions about society and social order. This change may be described as the turn from the assumption of normative consensus towards the assumption of social conflict, which is of very significant consequences for sociological conceptions of crime and deviance. Because of this it is possible to speak about two paradigms within criminological thought: consensual and conflict ones. Consensual Paradigm assumes normative consensus as the main source of social order. Because of this, deviance is treated as an indicator of the lack of adjustment, product of individual or social pathology. Within conflict paradigm, which assumes that social order results from coercion, society is perceived as the aggregation of many social groups with different and conflicting cultures. In such situation deviance constitutes normal behavior of individuals acting in accordance with values and norms of the groups they belong to, which under certain conditions may be stigmatised as deviant or criminal. Sources of stigmatisation and criminalisation are main problems for contemporary conflict criminology. They are explained in terms of social conflict, where criminal law is perceived as the tool of power elites in subduing other groups. Because of this conflict, criminology abandones traditional etiological questions. Instead, it tries to develop critical sociology of criminal law and criminal justice. The main problem about this approach is whether it is really impossible to reconcile it with traditional consensus criminology. It seems that it is possible. Consensus and conflict constitute two aspects of every society. Which one prevails depends on circumstances. The main task is to ascertain in what situations which approach constitutes better and more adequate tool of describing deviant and criminal phenomena.Item Paserstwo a instytucja przepadku świadczenia na rzecz Skarbu Państwa w trybie art. 412 k.c(Wydział Prawa i Administracji UAM, 1987) Pływaczewski, EmilThe article is concerned with the problem of applying to the receivers of stolen Property the consequences resulting from Art. 412 of Civil Code regulating the institute of forfeiture of the subject matter of foul performance to the Treasury. The said institute is aimed at eliminating the profits of the person who became enriched by means of foul performance. The justification for taking up the subject is that a considerable number of court decisions based on Art. 412 of Civil Code are the instances of the receiving of stolen property. Besides, the practice of applying the said provision by courts and prosecutors leaves much to be desired. In the introductory part the question of what is subject to forfeiture by virtue of Art. 412 of Civil Code has been dealt with. In the author's opinion the forfeiture affects the subject-matter of performance; thus the conception of the forfeiture of a claim seems to be excluded. Besides, a strong emphasis has been laid on general character of Art. 41 of Civil Code. Following remarks aim first of all at defining the scope of application of the said provision to transactions concluded with the participation of a receiver of stolen property. Thus, as to the most frequent form of the receiving of stolen property, namely the purchase of an object acquired by means of a prohibited act, the forfeiture may affect only the price Paid by the receiver to the seller. As to another form of the receiving of stolen Property, namely accepting the object acquired by means of a prohibited act, the forfeiture should affect the receiver's remuneration for performing some activities towards the object, agreed upon in a previously concluded contract. Analysing the foulness of behaviour as one of the premisses of the forfeiture, the author points out to the need of distinguishing between the foul act and the act perpetrated with the foul intention. Thus not every criminal act must be committed with foul intention. In turn, the evaluation of the degree of blameworthiness and foulness of a given act should be carried out taking into account objective as well as subjective criteria. In this way, excessive widening of the scope of application of Art. 412 of Civil Code could be prevented, In the last part of the article the author analyses the problem of concurrence of Art. 412 of Civil Code and Art. 48 § 1 of Criminal Code, providing for the same legal effect, namely the forfeiture to the Treasury of the property of an object of performance. The lack of internal coordination between those two provisions makes it difficult to question the incorrect practice of criminal courts which apply Art. 48 of Criminal Code without referring to possible application of Art. 412 of Civil Code. However, the complications arising from the „concurrence" of Art. 48 of Criminal Code and Art. 412 of Civil Code are for the most part of theoretical character only.Item Skuteczność środków penalnych stosowanych wobec młodocianych a typowe struktury czynników kryminogennych(Wydział Prawa i Administracji UAM, 1987) Stępniak, PiotrThe article is based on the study conducted in years 1979 - 85 on the group of 207 young adult offenders tried in Poznań District Court. The purpose of the study Was to perform a synthesizing evaluation of efficiency of particular penal measures.. The basis of the evaluation is an attempt to grasp the connections and dependencies between typical crime generating factors (exo- and endogenic) — grouped in 11 structures and forming sets characterized by different degrees of cumulation — and the offenders' subsequent lines of conduct, determined by the levels of their recidivism, and to determine the influence of measures applied by the courts on the above dependencies. No connnection was found between the degree of cumulation of crime generating factors and severity of the measure. The penalty of deprivation of liberty was in cases of greater cumulation of crime generating factors even less frequent than in variants with weak cumulation of these factors. It indicates that Art. 51 of Criminal Code is not always applied. (i.e. the exposition of educational aims of proceedings concerning the young adult offenders). The highest percentage of recidivism occurs after the penalty of deprivation of liberty (39,3%), somewhat lower after the conditional suspension of the execution of such penalty (32,6%), small after the penalty of restricted liberty (6,4%); there is no recidivism after autonomous fine and after educational and corrective measures. The relation between the recidivism and the lack of stabilization (i.e. the situation when the offender does not relapse into crime but nevertheless does not stabilize his situation through e.g. taking a job) is statistically significant (p<0,001) with correlation coefficient v = 0,411. The above result indicates the lack of efficiency of applied penal measures and suggests the need of changes in the policy of punishing.Item O legitymowaniu zasad prawa(Wydział Prawa i Administracji UAM, 1987) Pogasz, WojciechThe article contains the review of the methods presented in Polish legal writings which are concerned with the legitimization of substantive principles of law considered to be legal norms of a specific kind. The term „legitimizing the principles of law" refers to an intellectual process consisting in arguing for legally binding force of principles of law. The author considers the above term devoid of some defects present in other expressions, more frequently represented in legal writings. The methods of legitimizing the principles of law have been discussed in three basic groups, of which the first comprises the ways referring to applying only the directives of validation and interpretation, the second contains the methods of legitimization consisting also in carrying out legal reasonings according to specified inferential directives, and the third comprises the methods based on the statement that particular principles of law are the norms of customary law. The actually existing ways of legitimizing the principles of law have been systematized by means of typology; hence, the requirements of separation and completeness do not apply. Within the first two types subtypes have been distinguished.Item „Nasciturus" w prawie deliktowym USA(Wydział Prawa i Administracji UAM, 1987) Szlęzak, AndrzejThe article presents recent developments in the tort law concerning the protection of the interests of the unborn and/or the parents of the unborn and attempts to reconstruct basic notions and definitions appearing in the court decisions and legal writings dealing with the said branch of tort law. Five types of delicts have been described: preconception torts, prenatal torts, wrongful life, wrongful birth and wrongful death. Included are the remarks on the origin and evolution of of each of the delicts as well as on their enforcement in the judicial decisions throughout the fifty states.Item Przesłanki i bariery realizacji reformy gospodarczej w warunkach nierównowagi rynkowej(Wydział Prawa i Administracji UAM, 1987) Ratajczak, KlemensAssuming that the economic reform in Poland is the process encompassing the whole system, the author attempts to present the causative factors of both accomplishments and difficulties in implementing the reform. Having carried out a comprehensive theoretical and empirical analysis of the unbalanced market and of the producer's market as the main barriers for harmonious and dynamic socio-economical development of the country, the author justifies the thesis that the causes of the existence of those obstacles should not be sought only in hitherto applied systems of managing the economy, since those barriers existed both before the introduction of the economic reform as well as during its functioning. Further parts of the article are concerned with the sources of the lack of the economical balance of the country, both dependent and independent of the economic reform. Much attention has been devoted to the problems of the areas into which the reform has been introduced and of those which remain beyond its reach. Taking the contribution of the State budget to the national income, its section-branch structure and the directions of distribution as the measures delimiting those areas, the author states that in order to redress the market balance the economic reform should be introduced also to other areas and that most of the present budgetary units should be subordinated to the direct production sphere. It means that the incomes of such units must be placed in the phase of the primary distribution of the national income to a greater extent than it has been so far. It should be favourable to the improvement of supply, the structure of employment and to social productivityItem Nowa klasyczna makroekonomia a polityka stabilizacji gospodarczej w kapitalizmie(Wydział Prawa i Administracji UAM, 1987) Kowalski, TadeuszA considerable deterioration of economic situation in the '70 was accompanied by a gradual rebirth of classical economic conceptions. A clear example of the above is new classical economics formulated in the USA in the '70. That trend calls in question not only the output of Keynesian economics but also its methodological foundations. New classical economics, like monetarism, should be included among general equilibrium theories. The article contains the analysis of theoretical structure of new classical macroeconomics, with the emphasis laid on the key element of that theoretical system, namely the rational expectations hypothesis in J. F. Muth's sense. The article also presents and analyses the new-classical invariance proposition referring to the stabilization policy originating from Keynesian economics. Besides, the article contains the critique of new classical economics and attempts to evaluate the significance of that highly controversial trend for changes occurring in contemporary macroeconomics.Item Inflacja jako konsekwencja struktur społeczno-gospodarczych kapitalizmu(Wydział Prawa i Administracji UAM, 1987) Barczyk, Ryszard; Kowalczyk, ZygmuntInflation is one of main problems appearing in contemporary highly developed capitalist economies. Due to low efficiency of implemented anti-inflation policies, the research into the causes, effects and means of fighting inflation is still being carried out. Yet Western studies in that field possess the character of fragmentary explanations and do not grasp the very essence of the process of the rise in prices. The article is an attempt to look anew, by means of the structural method, at the origin of inflation. The inflation processes in contemporary highly developed capitalist economies are the product of long-term, internal mechanisms functioning in capitalist structure. Socio-economic conditions of economic activity within that structure form the basis for certain disproportions, the sign of which is, inter alia, the inflation. (The structural changes indicated in the article confirm that the rise in prices coincides to a high degree with the transformations in the sector and branch structures of capitalist economies and with the differences in the dynamics of growth of labour efficiency and wages related to those transformations. Inflation processes are also correlated with interventionist policies of contemporary capitalist states.Item W kwestii „nadopiekuńczości" państwa(Wydział Prawa i Administracji UAM, 1987) Szopa, BogumiłaThe crisis, persisting already for quite a long time, besides evoking a heightened interest in the structural problems, stimulated also the increase in studies of the problems of distribution. Among the latter issues belongs, inter alia, the question concerning the scope of protective functions of a socialist state. It even grew into the problem of alleged „over-protectiveness" of our state towards the citizens, manifested supposedly through an increase in the participation of social benefits in the national income in years 1981 -1983. The said increase was considered symptomatic first of all because it occured during an acute crisis, while in most other countries „normal" reaction to economic recession is the cut in social benefits. In connection with the above, an alternative was even suggested: a "state of work" or a „protective state". The problem appears to be very complex and multidimensional, yet solving it — as it seems — does not consist in choosing one of the two possibilities, but in adequate and competent combining one with the other. In the case of a socialist state both are of complementary character.Item Efektywność ekonomiczno-społeczna usług wczasów pracowniczych(Wydział Prawa i Administracji UAM, 1987) Pajdziewicz, JolantaVacation recreation, especially in the form of organized services for employees, is an important element of social policy of the State. However, the activity of many recreational centers owned by the employing institutions is characterized by low social and economic efficiency. The increase in that efficiency can be achieved mostly by means of economic and organizational tools, provided that certain conditions, both external (i.e. not pertaining to a recreational center) and internal (i.e. concerning the center), are met. It has been assumed that recreational centers should be run on an internal self-supporting basis, with self-financing as a tool of increasing the economic efficiency. It is indispensable to use all ways of reducing the costs of exploitation, eg. through joint undertakings with other centers, rationalizing employment and offering services on the open market. The changes in the system of managing the recreational centers should bring about a considerable increase in their economic efficiency; in turn, such increase should ensure the growth of social effect of vacation services.Item O możliwościach badania efektów wychowania(Wydział Prawa i Administracji UAM, 1987) Suchocka, RenataThe analysis of the works of Polish authors dealing with the problems of education, personality, consciousness or attitudes revals several problems and controversies appearing in the research practice. The assumption of a given standpoint on consecutive levels of analysis creates various possibilities of deciding about the effects of education. Indirect inference as to: 1) the shape of personality on the basis of declared values, opinions, views, 2) the efficiency of education on the basis of personality transformations, is sometimes burdened with error; in effect it influences the accuracy of social prognoses. The effects of education may be evaluated from macro-, mezzo- and microsocial perspective by relating them 1) to the aims of particular groups, serving to stabilize and develop the structure, 2) to the "needs" of global society. The fact of an individual's participation in different social structures allows to isolate, on the level of each of the structures, the sets of values-norms characteristic of each of them, and to analyse only conflict situations (e.g. the appearance, on a microsocial level, of the norms contradictory with those characteristic of mezzoand macro-levels) leaving out the situation of the existence of different yet not contradictory norms. In this way one may avoid the danger inherent in analysing personality, attitudes, hierarchies of values and interpretations concerning the question whether isolated values are interiorized or declared, sensed or accepted, as well as avoid the shortcomings of generally applied research techniques.Item Alienacja w społeczeństwie masowym: los ludzi marginesu czy powszechna kondycja ludzka?(Wydział Prawa i Administracji UAM, 1987) Fudalej, MałgorzataThe article contains an attempt to consider the problem whether alienation, determined on the basis of the features of the social status of groups and individuals as well as on the basis of the state of their consciousness, is a symptomatic feature of contemporary mass societies. The author distinguishes between three types of alienation: impendence, isolation and inability, and analyses the arguments pointing to the fact that the states of the above kind have also been known to societies which could not be called „mass societies". The final part of the article contains the presentation of typical relations existing between a given type of alientation and the type of social order and points out to the relation between the way the conceptions of alienation are formulated and the places the individuals and/or groups occupy in the social structure.Item Przegląd piśmiennictwa RPEiS 49(2), 1987(Wydział Prawa i Administracji UAM, 1987)Item Sprawozdania i informacje RPEiS 49(2), 1987(Wydział Prawa i Administracji UAM, 1987)Item Nekrologi RPEiS 49(2), 1987(Wydział Prawa i Administracji UAM, 1987)