Ruch Prawniczy, Ekonomiczny i Socjologiczny, 1983, nr 3


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    Spis treści RPEiS 45(3), 1983
    (Wydział Prawa i Administracji UAM, 1983)
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    Wstąpienie w prawa zaspokojonego wierzyciela
    (Wydział Prawa i Administracji UAM, 1983) Szpunar, Adam
    A third person, who pays off a creditor, acquires the paid-off claim up to the amount of the given payment (art. 518 § 1 of the civil code). It is the case of a statutory subrogation which covers a wide range of various situations. It is aimed to strengthen a position of the person paying off a creditor. At the outset the author analyses a question of separating the statutory subrogation from allied institutions. He is advocating for a position according to which we are dealing here with a recourse claim (in a wide sense). The statutory subrogation is therefore a specific type of claim. Next, particular instances of the statutory subrogation are analyzed by the author. His remarks are started with a discussion of a guarantors claim who satisfied a creditor. He represents the opinion that in this case the guarantor fulfils his own obligation and at the same time he pays another's debt for which he is liable personally. This position implies a solution of secondary questions related to the guarantor's recourse. If the guarantors are few, the provisions of joint and several debt are to be applied to their mutual relations in case of paying off a credit by one of them.In turn the author presents those instances where a third person is liable for a paid-off debt with certain material objects. A pledge and a real estate mortgage come into consideration. The author represents the opinion that a construction of the so called real obligation has to be adopted in this type of real securities. It implies that a pledger or an owner of mortgaged estate are real debtors bearing a limited liability to the creditor. The author also dwells on complex problems related to paying off a secured debt (in the light of the new act of 1982). A conclusion is reached that a mortgage expires when a creditor is redeemed by the owner of the estate. Next questions deal with paying off a claim which has a priority in settlement. Its practical effect is presently unimportant. A case of paying off a creditor by a third person with the consent of a debtor is eased in the present laws. It is the instance of the so called conversion. The payment is in a way imposed upon a creditor who cannot refuse acceptance of a performance which is already enforceable. In the final remarks the author dwells on premises of a recourse claim of an insurance institution vs. an injurer. It is the instance of property and not of personal insurance. In the result of subrogation the legal position of a debtor cannot be deteriorated and is entitled to all defences he had against the creditor
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    Poręczenie i dozór społeczny w postępowaniu karnym
    (Wydział Prawa i Administracji UAM, 1983) Daszkiewicz, Wiesław
    Polish penal law provides pledge and surveillance of social institutions, organizations and . collective groups under which defendant or the sentenced person: works, receives an education or is in the military service. These measures can be of a litigious or probational character. The litigious pledge is a preventive means aiming at securing the appearance of the defendant at summons before the organs conducting the proceedings and preventing his obstruction of a process. It cannot be geared on resocializing the defendant as there is a principle of presumption of the accused's innocence hold valid in the penal proceedings, as long as a perpetration of a crime is not established in the final judgement starting upon a resocialization of the defendant will be untimely. The pledge as a probational means is aimed, on the other hand, at the resocialization. The litigious pledge is applied in the course of proceedings and for its duration unless it was limited to a certain stage of a process. It is terminated, at the latest by the final completion of proceedings while the pledge as a probational means is ruled at the conditional discontinuance of proceedings, conditional suspension of the enforcement of punishment and release on licence, it is undertaken for the time of testing a favorable behavior of perpetrator of a crime. A social organization, institution or a collective body which are undertaking a pledge have to appoint a person to perform the duties of a pledger directly. Surveillance is in principle a probational means. It can be applied as the litigious means of prevention only by the way of an exception, in case of stay of execution of a judgement pertinent to an extraordinary appeal against a valid judgement or a motion for instituting a trial de novo. A difference between the pledge and surveillance is not clear. The pledge is not limited itself to standing surety for the accused or the sentenced. It is related, as in the instance of the suryeillance, to the duties to control a conduct of the pledgee. Yet, the duties of surveilling person are regulated in a wider scope and more precisely. Theoreticians are advancing a proposition that a pledge is more flexible and less binding form of control. The pledge and surveillance are terminated upon the expiration of a probation period, earlier m the case of releasing a pledger from his duties and also in the instance of a final ruling of the enforcement of punishment or recalling a release on licence. The pledge expires also upon the reopening of conditionally discontinued proceedings. The social pledge — litigious and probational — is not often used in practice and so is the social surveillance performed by the social institutions and collective groups. Surveillance by court appointed curators (mostly social ones) is dominating.
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    Niektóre sporne problemy nowej ustawy o związkach zawodowych
    (Wydział Prawa i Administracji UAM, 1983) Kijowski, Andrzej
    The article consists of four parts. In the first one, the author advocates that, it is an a c t u a l position of the trade unions which is decided by practice of the system, culture and political customs, virtual relations between unions' organs and organs of the party and State and economic apparatus or by an extent of its real influence on a shape of socio-economic policies and their implementation. Legal regulation of the trade unions movement is therefore necessary, but it cannot guarantee by itself the equal position of the unions vs. the party and the State in the structure. It should be the regulation limited to the basics, not introducing specific provisions. The previous Trade Unions Act of 1 July 1949 revealed such a skeleton structure; yet, the law was not implemented in a correct way. In the second part of the article the author discusses the so-called transitional provisions of the new Act of 8 October 1982, limiting temporarily unions' rights to their discretion in assuming names and forming their organizational structures, and suspending the so-called plurality of the unions until the end of 1984. The author's attention is focused on sec. 52 of the Act prescribing loss of legal validity to the previous acts registering trade unions. In the opinion of the authorit is a political decision, and as such it has been controversial. From the legal point of view the fact that it is resulted by a legal norm (act of lawmaking) and not by an administrative act (act of law implementation) what has expliciteiy been forbidden by the convention (nr 87 of the International Labour Organization) is of no crucial importance here. As it was already expressed in the legal literature individual and specific decisions are in the discretion of administrative organs, yet in case of declaring loss of legal validity, the decision was trade by the legislative. A formal substantiation of such move could not be therefore required, while it could have been troublesome for administrative organ or court. Subjective scope of the regulation, principle of branch structure of the unions and their tasks are discussed in the third part. The tasks are still understood as the protection of rights and interests of workers, but this has to be implemented in the way complying with the conditions of the Polish system. Problems of wages for periods of strike are presented in the closing part of the article. The author advocates that the remuneration ought to be decided in the agreements terminating a strike. Sec. 45 of the Act is interpreted in this way by the author i.e. strike remuneration is not guaranteed ex lege by the new regulation but it is also not forbidden for a workplace authorities to oblige themselves to pay such a remuneration in total or in part. It is emphasised by the author in the closing remarks that limitations of union freedoms introduced by the new Act should not be left unsaid, it is necessary to explain their temporary reasons to the society and immediately withdraw these limitations as the socio-political situation in the country stabilizes.
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    Prawne zagadnienia zawieszania i wznawiania działalności organów samorządu załogi przedsiębiorstwa państwowego
    (Wydział Prawa i Administracji UAM, 1983) Sowiński, Roman
    The author discusses two periods of resuming activities of workers' self-management in State enterprises which were suspended by the provisions of the Marshal Law Decree of 12 Dec. 1981. The first one lasted from 31 Jul. 1982 till 30 Dec. 1982, the second one was started by the provisions of the Act of Special Legal Regulations. For the Period of Suspension of Marshal Law and has been lasting from 31 Dec. 1982. The article discusses procedures of resuming activity by organs of workers' self-management in enterprises focusing on a legal character of a decision of quashing the suspension, legal effects of suspending self-management activities, employment protection of members of suspended workers' councils, potentiality of re-suspending those organs of workers' self-management which resumed their activities. Particularly the author considers the effects of the previous and possible future suspension of activities of workers' self-management organs on the estimation of legal character of such institutions as a State enterprise and workers' self-management. The author's qualification of the decision suspending activities of the workers' self-management in an enterprise to the category of supervision is changing, in his opinion, the legal character of an institution of joint management of an enterprise which is provided by the art. 13 of the constitution of the Polish People's Republic and by the Act of Workers' Self Management in a State Enterprise of 25 Sept. 1981.
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    Sytuacja prawna urzędników państwowych w świetle ustawy z 16 IX 1982
    (Wydział Prawa i Administracji UAM, 1983) Sypniewski, Zbigniew
    The article characterizes a legal status of civil servants falling under the Law of Civil Service Officers of 16 Sept. 1982. The author presents and analyzes basic institutions contained in the Act related to entering, changes and expiry of officers' employment relation as well as to their rights, duties and responsibilities. New regulation is adopting to some extent the provisions of traditional Civil Service Law which was previously based on the Act of Civil Service of 1922, it is also extending the provisions elaborated in common labor regulations on officers' employment relations arising from an act of appointment. In consequence the status of civil servants has a more mixed character. It is combining the elements of public law (appointment, higher subordination to superiors' discretion, disciplinary responsibility etc.) with the obligational ones (giving up compulsory transfers, possibility of dissolution of an employment contract by an officer, partial access to a recourse to the law). An individual character of legal position of civil servants is particularly manifested in the scope of the so-called collective labor relations (by means of limiting unions' freedoms). In the author's opinion it is an obsolete tendency which is not contributing to the work effectiveness of the Civil Service.
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    Transakcje kompensacyjne w handlu Wschód—Zachód. Zarys problematyki prawnej i ekonomicznej
    (Wydział Prawa i Administracji UAM, 1983) Sołtysiński, Stanisław
    The increase of trade after the World War Two is usually contributed to gradual lifting up of trade barrier's and to creating a multilateral system of merchandise exchange under the auspices of GATT. Recurring practices of protectionism and return to bilateralism are presently noted and experts in the problem analyze reasons of further impediment of the developement of the world trade. A substantial part of economic and legal literature of the OECD countries is devoted today to the discussion of barter (countertrade) transactions, which are, apart to from the trade between the CMEA states, accounting for a considerable part in the East-West trade. The barter transactiones are being criticized as practices having a disruptive effect on the system of „free trade" by introducing strong elements of protectionism and bilateralism. The expansion of various forms of barter in the North- -South trade relations as well as in transactions between the developed market economy countries results in a growing discontent of the adherents of „free trade". The task of this article is an attempt to analyze the validity of economic and legal arguments advanced by critics of the barter transactions. A question whether barter practices are infringing upon obligations resulting from GATT and if they are contrary to the antitrust laws of some developed market economy countries is under the author's consideration.
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    Procesy zmian we wzajemnych stosunkach finansowych państw socjalistycznych
    (Wydział Prawa i Administracji UAM, 1983) Olszewski, Andrzej
    The article presents a development of financial relations of the socialist states in the years of 1945—1963 and 1964—1982. Conditioning of the first period, forming and developing bilateral financial relations, is presented in the aspect of strong trends of protection of newly constructed industry, limited supply of export goods and inelastic demand on certain products. Circumstances of the second period which gave rise to technical and settling conditions for multilateral settlements are discussed in the latter part, they were not able to relieve a trade system of the socialist countries from the bilateral balancing. Discussing a complex problem of efficiency of multilateral settlements, the author quotes opinions of international finances' specialists and researchers and seeks for new substantial and technical solutions in order to arrive to an agreement between principles of state controlled economy and demands of international trade in the aspect of settlements. In the author's opinion, models of cash settlements between the socialist countries are unsatisfactory at their present stage. The author advocates that requirements of life have to be followed: the conditions of foreign trade are varying, world's economy is not static, supply of goods and services and demand are constantly fluctuating as well as world prices. It is therefore necessary to introduce a reasonable multilaterality of settlements making for stimulation of currency and increase of weight of finances in international settlements and in consequence- for multilateral balancing of trade turnover. In view of the tendencies to isolate socialist countries in the foreign trade, the author emphasises the need to concentrate efforts to create better currency system which would, under the influence of developing CMEA cooperation, improve multilateral settlements. Although payments turnover is functioning efficiently in the CMEA countries by means of the transfer ruble, the article indicates that major problems in the trade between socialist countries are caused by the fact that each socialist state, in order to balance its foreign trade according to plan, establishes quotas, attempts at bilateral balancing of a foreign trade and links directly a volume of exports and imports of deliveries under contract. Bilaterality understood in that way diminishes utility of transfer ruble and its flexibility in settlements and results in ruble's failure to perform its functions in the international trade. In the following remarks the author discusses the role of transfer ruble in settlements in socialist states as a product of the currency system of these states and of the principle of inconvertibility of national currencies, he is also trying to determine whether transfer ruble is a contractual unit of settlement predominated by elements of bilateralism or it is a type of international currency. The author adopts a notion of transfer ruble as an international currency, in its narrow meaning, i.e. which is recognized solely by those states which had created it, as their common unit of account. The article attributes functions of money sui generis to transfer ruble: a scope in which the ruble can perform classical functions of money is described, as a standard of value, as a tender, as a means of accumulation of value. Various views of scientists and financial experts are quoted in this respect. In conclusion, the author admits that transfer ruble is not an international currency in the wide meaning of this word and should be classed among extramonetary units of settlement. Present forms of trade between socialist countries should be, in the authors opinion, altered to overcome a "product for product" barrier, to extend the trade turnover and to create a possibility of converting a value expressed in one currency into another currency. This requires the existence of real exchange rates and a national currency should act as a tender not only in the country but also abroad. Estimating real financial relations of trade and settlements, the author speaks for improving the existing collective currency and elaborating a program in future aiming at introducing convertible currency of the CMEA states or, at least, a currency of partially limited convertibility.
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    Zagadnienia prawne nieuczciwej konkurencji
    (Wydział Prawa i Administracji UAM, 1983) Mokrysz-Olszyńska, Anna
    Several problems of unfair competition are discussed in the article: a concept of unfair competition in the doctrine of law, preventing it in the judicial practice in capitalist countries and new tendencies in a developement of unfair competition laws. The study is of a comparative character, i.e. laws of the largest capitalist countries and at the same time, principal legal systems are analyzed i.e. French, English and West German regulations, with due regard paid to the systems of the United States, Austria, Switzerland, Sweden as well as of Poland (on account of the pre-war act of 1926 on preventing unfair competition). A phenomenon of unfair competition was closely related to economic developpement of the age of early capitalism and fluorishing free competition, its concept in the European doctrine of law had its roots in the protection of exclusive rights falling within the scope of industrial property. In some legal systems the notion of unfair competition was extended on the grounds of the adopted "right to goodwill" (fr. achalandage), "right to competition" or principle of "fair commercial practices". Preventing unfair competition in a judicial practice is based either on general principles of liability in torts (England, France) or on special laws designed to prevent unfair competition (Federal Republic of Germany). Judicial decisions are of significant importance in forming principles of unfair competition prevention, In the United States the concept of unfair competition which is understood to be a tortious act is regulated by anti-trust law; it involves not only actions which are contrary to fair business practices but also activities which can cause restraints of competition. In business practice, signs of unfair competition are not only prejudicing interests of competitors or disturbing the principle of a full play of market forces, but they also prejudice consummers' interests. This aspect of unfair competition is more often noticed in a doctrine of law and in legislational and judicial activities. Interpretation of notion of unfair competition itself developes into widening its scope to include questions of consummer protection. At the same time the tendencies are observed to control market activities in administrational and legal way in order to protect consummers' interests.
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    Teoria i praktyka międzynarodowej współpracy gospodarczej krajów RWPG
    (Wydział Prawa i Administracji UAM, 1983) Najlepszy, Eugeniusz
    The task of the article is a comparison of theoretical findings of the conception of the international economic cooperation of the CMEA member states with the premises of their economic policies in this scope and with the previous course of integrational processes in the CMEA group. In the first part of the study, three basic theoretical concepts of economic cooperation are presented which can be related to differing views of economists on the part played by planning and international market in the socialist economy. In the second part of the study a system of the international economic cooperation adopted in the premises of the economic policies of the CMEA member states is analyzed. The author's attention is focused mainly on those elements of the international cooperation system which are compromising opposing pursuits of the particular member states of securing themselves most favorable conditions for balancing necessary means with needs stated autonomously in the national plans of economic developement. The third part of the study is devoted to the analysis of features of functioning of the present system of international cooperation of the CMEA states. The actual distribution of competence and roles in the system of relations between various levels of domestic and international institutions and organizations are characterized. The scope of implementation of resolutions and recommendations of the CMEA on the developement of the international specialization and productional cooperation is evaluated. The excessive build up of the consulting and negociating activities almost on all the levels of economic organizations of the member states and of the CMEA organs is also indicated. The identification and analysis of structure of interdependence of economic interests in the sphere of realization of international economic cooperation in the CMEA are performed. Particularly, following groups of interests can be singled out: Party and government governing bodies, central economic administration, productional and trade enterprises, international organs of the CMEA. In the final remarks factors diminishing the ability to control a mechanism of the international cooperation are presented, this can well account for the lack of developement in real integrational ties and related organizational structures in the system of cooperation of the CMEA states.
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    Z problematyki ekologizacji działań ekonomicznych
    (Wydział Prawa i Administracji UAM, 1983) Kośmicki, Eugeniusz
    The interrelation of humanity and its biosphere is undoubtedly a basic problem of the present day. A new science- ecology gained in this context a considerable importance. A postulate of ecologizing is advocated i.e. of linking ecology with all activities of mankind. In the effect the ecology of man appeared, programs of protection of natural environment, new paradigm of economic sciences and ecological ethics were formulated. The traditional economic paradigm based of autonomy of society and economy toward nature becomes more and more of no avail in analysis of the modern economic processes. The concept of "homo oeconomicus" and traditional methods of economic calculations are not adequate from the view-point of- ecology and the long run functioning of economy. Ecological economy recognizes a close dependence of man and economy from their biosphere. It is also refuting traditional economic indices of welfare focusing its attention of a quality of life. Ecological ethics is related to ecological economy, it is studying moral relations man to man and man to environment. A program of natural protection has a complementary character toward economy and ecological ethics. An urgent necessity of intensifying ecologization of economy and of bringing basic propositions of ecological economy into life is presently observed.
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    Regresyjne badania efektywności produkcji w warunkach niejednorodności zbioru obiektów
    (Wydział Prawa i Administracji UAM, 1983) Nowak, Edward
    The article attempts at discriminating a set of objects in the regressive studyin situation of their heterogenity. The first stage consists of a division of the set into typological groups and next, of regressive modelling in the received sub-sets. The following phase, which is in the focus of this study, involves proceeding with group regressive examinations. Suggested approaches to the regressive modelling, distinct to the classical one, is compromising between a general regression related to the whole set and a group regression which is designed in a traditional way i.e. a two phase regression. It proves correct to estimate a general regression for the whole set of objects and for groups and on these grounds — to create a two stage model which can explain changes of an explained variable in the respective groups which are resulting from the properties of the whole set of objects as well as of specific groups. The study is illustrated with the construction of one variable models on the example of simulational data for 30 plants isolated into three typological groups.
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    Symulacja komputerowa jako narzędzie sterowania rynkiem
    (Wydział Prawa i Administracji UAM, 1983) Foryś, Jerzy
    The study presents one of the stages of a process of systematic market research which consists, among others, of control understood as an intentional manipulation of the system which has to result in reaching its desirable state by means of obtaining determined values of variables of objective by variables of decision. The attempted construction of complex market model in a macroeconomic scale resulted in thirteen equasion final model which was used for market manipulation with the use of computer simulation. The simulation results are presented in three variants, differing as to the choice of desirable values of the exit vector, for the market of foodstuffs, alcoholic beverages and for the market in general in the 1980 -1985 span of time. Results of the presented research procedures proved a high degree of usefulness of complex market models not only in forecasting future results of certain moves and ventures but also in the simulation of market control in Poland.
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    Symulacja jako narzędzie usprawniania zarządzania przedsiębiorstwem
    (Wydział Prawa i Administracji UAM, 1983) Waćkowski, Kazimierz
    The article includes: methodological remarks on simulation of the compound industrial systems, classifications of the operating systems most frequent in the machine industry, methodology of computer simulational experiments on those systems and multiple criterion analysis of their performance, reflections on integrating optimalizational models with segmental informatic systems for enterprise managing purposes, conception of a dialogue simulational system for the cited above needs. The problems are illustrated with model constructions and simulational calculations worked out on the basis of selected enterprises of Polish and the U.S.S.R.. machine industries. The author advises the economists to increase their interest in the dialogue experiments "man — machine" on real production system models in order to: discover their bottle-necks and organizational shortcomings, describe directions, of the system developement, analyse its previous functioning, improve management decision making and eliminate the direct experimenting on economic systems
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    Aktywność innowacyjna w ujęciu socjologicznym
    (Wydział Prawa i Administracji UAM, 1983) Stankiewicz, Janina; Walkowiak, Jerzy
    The sociological approach to innovation is discussed in the context of its other aspects: technical, economic, legal and psychological ones. It is assumed that social setting of contradiction or lacuna, occuring and being solved is the essence of sociological perspective. The setting consists both of relations assigned organizationally and of those more spontaneous, regulated and shaped in groups, group conformities and social conditioning of innovational activities. The basic values are defined for its analysis types shape of a course, form object and functions (kinds), intensiveness, mass scale, profit; rank, degree of complexity, prosperity, success and continuance. Three various types are characterized in detail: 1) significant innovational activity in the legal meaning, 2) innovations partially defined by law, 3) innovational activity indifferent in the light of law or even conducted contra legem. On account on the divergences of shape of innovational course, eight classes of this value are defined and characterized. On discussing a form of innovation it is pointed that its individual character is dominating upon the collective one in the industrial labor saving movement. The dominating parts are also played by technological-constructional and technological kinds of innovation. Presented values are discussed in the aspect of their substance and empirical results of a study.
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    Marynarska zbiorowość na statku
    (Wydział Prawa i Administracji UAM, 1983) Sosnowski, Adam
    The article touches on a problem which is contained in the problems of maritime sociology and, to be more precise, in sociological theory of a ship. The first part is devoted to a discussion of the organizational structure of sea vessel. Its specific problems are a consequence of interelation of the environment of professional labor and of personal life outside the work on a ship as contrasted with a typical inland working place. Next the basic organizational structures of a sea vessel are indicated. The category of "social organization" is adopted as the particularly adequate to describe life and work on a boat as most sailors are defining their position on a boat through its angle. In the second part of the article basic groups and circles having an impact on the ship along with their social reflections are presented. The groups and circles are defined with regard to 1) the character and substance of the professional activities carried out, functioning in task roles, 2) character and substance of contacts and social relations beyond the task activities- functioning in friendly, comradely, informal and cultural roles, 3) character and substance of the activities indirectly related to professional activities- socio-political roles. The study proves that a problem of circles shaped by the hierarchical structure of a crew is particularly important, it is percepted by almost all sailors. The analyses also prove that ship circles of the privileged and discriminated persons are functioning in sailors' consciousness and in social reality, yet they are not the poles of the social hierarchical structure of a ship.
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    Przegląd piśmiennictwa RPEiS 45(3), 1983
    (Wydział Prawa i Administracji UAM, 1983)
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    Nekrologi RPEiS 45(3), 1983
    (Wydział Prawa i Administracji UAM, 1983)
Uniwersytet im. Adama Mickiewicza w Poznaniu
Biblioteka Uniwersytetu im. Adama Mickiewicza w Poznaniu
Ministerstwo Nauki i Szkolnictwa Wyższego