Ruch Prawniczy, Ekonomiczny i Socjologiczny, 1988, nr 2

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Spis treści RPEiS 50(2), 1988
(Wydział Prawa i Administracji UAM, 1988)
Koncepcja praw podmiotowych osobistych
(Wydział Prawa i Administracji UAM, 1988) Radwański, Zbigniew
The article is devoted to the question whether civil-law protection of personar interests (Art. 23 and 24 of the Civil Code) is based on the subjective right conception. The author presents his standpoint with respect to the following controversies concerning various aspects of personal interests protection. First, he rejects the view that the immanent link between the person and his/her personal interests, i.e. the inseparability of a subject and an object of a right makes it impossible to adopt the construction of a subjective right. The author proves first that the notion of an object of a right is not a necessary element of a subjective right and that the essence of a subjective right lies in its regulative functions with respect to behaviours of others and not in delimiting the sphere of exclusiveness for a subject with respect to a separate object. Besides, the author proves also that in the case of personal interests the inseparatedness of a subject and an object does not actually take place because there are numerous individual attributes of human personality which do not come within the notion of legal capacity and thus require separate civil-law protection. Next, the author declares for an objective (intersubjective) conception of personal interests and for the conception of plurality of personal rights. The author then states that although there must always be a statutory basis for creating „erga omnes" rights, the degree of precision of the statutory formulation of those rights may vary and thus it is possible to construe „erga omnes" rights protecting interests which — though not mentioned in Art. 23 of the Civil Code — are nonetheless accepted in some way by the legal system. As to the presumption of unlawfulness of the infringement of a personal interest, the author states that each such infringement should be qualified as the infringement of a personal right, and that the criteria of evaluating the unlawfulness are to be of objective character, i.e. are to be based on normative grounds and subsidiarily on the grounds of principles of social coexistence. Similar criteria should be applied to the evaluation of conflicting interests. A generally accepted view that a prevailing social or individual interest may eliminate the unlawfulness does not in any way weaken the construction of a subjective right as a means of protecting personal interests. In turn, a view that a consent of an entitled person is a circumstance eliminating the unlawfulness of an infringement is fully in agreement with the conception of a subjective right. Namely, a consent is an expression of the freedom of decision with respect to one's own interests, and as such is the way of executing one's own subjective rights. Finally, the author analyses other constructions which might be used for the protection of human interests. In particular, he comments on „legal reflexes", tort liability, and the so-called „institutional protection". Neither of them meets the standards offered by the subjective right conception. The first does not stress adequately the fact that general duties originate in the individual interest of the entitled person, the second is based on guilt as one of the premisses of protection, and the third — being centered on the protection of supra-individual interests indicated in „the institution" — would be drastically in conflict with the very sense of introducing the protection regulated in Art. 24 of the Civil Code, aimed at safeguarding individual and not supra-individual interests.
Integralność człowieka w świetle jego statusu rodzinnego
(Wydział Prawa i Administracji UAM, 1988) Smyczyński, Tadeusz
The problem of human integrity appears in the context of international documents concerning the protection of human rights. In the author's opinion, there are no grounds to formulate a separate right to integrity. Human integrity should be conceived as a directive of interpretation necessary to assess and implement all human rights. However, integrity should be perceived as referring not only to a human being as a separate individual, but as a member of a family group he himself established or belongs to. Life of an individual is connected with a family, which constitutes natural environment of human existence. Belonging to a family apparently limits integrity of an individual in the sense of his/her autonomy correlated with the lot and well-being of other members of the family. At the same time, however, one may notice that the participation in a family „enlarges" one's personality and thus his/her integrity is also enlarged by those elements which are common for all family members, e.g. dignity, good fame, privacy of family life, etc. Family thus appears as a specific point of reference in an integral approach to the protection of an individual.
Zmiana płci w świetle prawa polskiego
(Wydział Prawa i Administracji UAM, 1988) Zielonacki, Andrzej
The article discusses the problems of the change of sex in Polish law in the contex of comparative aspects. A main topic is the regulation of the way of changing sex in the law on civil status acts. Only a few countries (Sweden, West Germany, Italy, The Netherlands, Austria) adopted appropriate legislative acts in that respect. Polish law, like most other European legal systems, does not address that issue in the statutory form. Hence, numerous problems arise with respect to the judicial change of sex of transsexuals. Contrary to the Supreme Court's view allowing to apply by analogy the provisions on correction cf a birth certificate, the author proposes to use for that purpose a declaratory action regulated in Art. 189 of the Civil Procedure Code. Accepting a prevailing opinion that sexual integrity is one of personal interests protected by the civil law and that a natural person has personal rights to those interests, the author draws the conclusion that Art. 189 of the Civil Procedure Code may be used by a person showing the traits of transsexualism. At the same time the author points to the possibilities of regulating the issues of the change of sex in the future law on medical care and medical profession.
„Nowe prawa człowieka". Perspektywy i zagrożenia
(Wydział Prawa i Administracji UAM, 1988) Kowalski, Piotr
The purpose of the article is a comprehensive critique of the actual process of enlarging the catalogue of international human rights by including the category of so-called "new human rights". In consideration of the size of the article and abundant literature concerned with descriptions of the "new human rights" the author, in introductory remarks, confines himself to the presentation of an outline of the theory of the "new human rights" in the version elaborated by one of the architects of that trend, K. Vasak. The description of that theory is a starting point for, the main part of the article focused on threats the conception of the "new human rights" poses for the existing catalogue of human rights. The author starts his analysis by showing substantial and methodological mistakes which are present in a vision of the history of human rights used by the propagators of the conception of the "new human rights" as a basis for shaping normative postulates. Next, legal character of the "new human rights" is analysed from the point of view of the theory of sources of international public law and accepted rules of interpretation. The author concludes that one may only talk about some postulates "de lege ferenda" with respect to defining legal character of the "new rights", and that placing those rights on a par with the existing catalogue of human rights is wrong and may lead to normative inflation. Proposals of the "new human rights" are of collective character — a people is defined as their subject. The author criticizes the conception of a people being the subject of human rights and shows the danger of using that construct by States for the purposes of limiting the existing human rights. Analysing normative documents concerning the "new rights" he points out to the fact that they have a character of political manifestos, abstract and devoid of any mechanisms of control, rather than a character of legal acts. In the author's opinion, it drastically undermines their practical usefulness for realizing social purposes they are supposed to achieve. The author also analyses the fact that discussions on the "new rights" are limited exclusively to axiological or normative planes, with no account of more thorough analyses of social mechanisms and without the participation of social scientists representing disciplines other than law and philosophy. The analysis of the "new rights" is completed by considerations concerning the relation between those rights and the existing catalogue of human rights. The author criticizes three types of argumentation: "new rights" as the instrument of realization of the existing rights; "new rights" as a synthesis of the hitherto existing catalogue of human rights; "new rights" as a precondition of the full realization of other human rights. In concluding remarks the author states that the conception of the "new human rights" points out to the need of including new social problems in the theory and praxis of protection of international human rights. However, the proposals of "new rights" not only do not solve those problems, but they also present a threat for the existing international catalogue of human rights.
Kompetencja Międzynarodowego Trybunału Sprawiedliwości do rozpoznawania sporów międzypaństwowych
(Wydział Prawa i Administracji UAM, 1988) Ostrihansky, Rudolf
The article deals with some aspects of the International Court of Justice (ICJ) jurisdiction considered in a recently decided dispute between Nicaragua and the USA. The analysis is concerned with strictly jurisdictional problems as well as the problems concerning the admissibility of the case. The purpose of the article is to point out to new conceptions elaborated by ICJ. The article also assesses the correctness of objections raised by the USA. The following jurisdictional issues are discussed: validity of a declaration to recognize compulsory jurisdiction, issued on a basis of the PCIJ Statute; form of acceptance of compulsory jurisdiction of the ICJ; submitting a reservation excluding the jurisdiction of the ICJ shortly before the suit is instituted; application of the reciprocity principle to time limitations; the conception of simultaneous binding force of contractual and customary norms; dependency between the claim on the one hand and the purpose and subject-matter of a treaty on the other; the right to interpret the jurisdiction exclusion clause and the condition of failure of diplomatic methods. The article discusses also the ICJ's interpretation of some stipulations of the UN Charter, such as the difference between the scopes of Chapter VI and VII of the Charter, the ICJ's right to decide a case which has earlier been examined by the UN Security Council, the meaning of „inherent" right to self-defence, the application of regional agreements provided for in Art. 52 of the UN Charter. Of greatest significance for the development of international public law seems to be the conception of simultaneous binding force of contractual and customary norms. In the sphere of the ICJ's jurisdiction, important precedents are: the requirement of reasonable period of time in reversing the declaration to recognize compulsory jurisdiction and non-application of the reciprocity principle to time limitations pertaining to those declarations. The decision stating the validity of Nicaragua's declaration of 1929 evokes. serious reservations and in that respect the objections raised by the USA should be considered justified.
Zarys zmian opodatkowania dochodów osobistych w Polsce
(Wydział Prawa i Administracji UAM, 1988) Komar, Andrzej
The article discusses the problem of personal income taxation reform in Poland. The proposed changes consist in introducing common income tax. The author sketches the conception of such a tax. Therefore, he discusses specific elements of the income tax construction, such as the subject of the income tax, its assessment basis, tax-rate, tax reductions and exemptions. The author declares for common taxation of income with one tax. Hence, he proposes to eliminate separate income tax for a non-socialized sector of the economy. Besides, he is also for including into income taxation the income obtained from agricultural activity (from both plant and animal production as well as from special sectors). The above postulate may evoke reservations and cause trouble in its parctical implementation. The introduction of income tax should be preceded by setting the system of personal income and prices in order. Otherwise the tax reform will be of isolated character and of limited importance. In the article the author shows the difficulties connected with the introduction of the said tax. They are of psychological and economic nature. Besides, it is also necessary to analyse in detail the existing tax law in order to eliminate inconsistency and incoherency of tax law regulations. Finally, the author points out to the need of examining American and West German examples of tax law since they contain many solutions which may be interesting from a Polish point of view.
Zrzeczenie się spółdzielczego prawa do lokalu
(Wydział Prawa i Administracji UAM, 1988) Stecki, Leopold
A renouncement of a right to cooperative premises by a member of a housing cooperative in favour of that cooperative may take place due to various reasons and in various circumstances. Although Polish law on cooperative societies does not regulate the institution of a renouncement of a right in favour of a cooperative, such an act should be considered possible. It may pertain to a property-like right to a cooperative apartment, to a tenancy-like right to a cooperative apartment as well as to a right to cooperative business premises. A renouncement of a right to cooperative premises is a dispositional legal transaction causally involving increment of property, usually for a valuable consideration. A declaration to renounce such a right should be issued in a written form (ad probationem). Taking up the premises by a member of a cooperative is not a prerequisite for a renouncement of that right. The object of a renouncement is the right, not the premises. The said act may concern either a right to premises only, or that right together with the share in a cooperative society. A member cannot renounce a part of that right or a part of his/her apartment. In principle, only a member of a cooperative may renouncet that right. Exceptions concern the member's heirs and legatees since they may renounce the right without being members of a housing cooperative. One of the spouses may renounce the said right only when that right belongs to his/her separate property If the right belongs to a common matrimonial property, one of the spouses may renounce that right only if the consent of the other spouse has been granted. In the case of so-called independent common property with respect to a right to a cooperative apartment, the declarations of will of both spouses are necessary. In consequence of a renouncement, a right to cooperative premises expires. However, the relationship of membership in a cooperative remains intact. Two different situations should be distinguished. The first appears when a member renounces the said right just because he/she wants to get rid of that right and he/she wants the cooperative to grant that right to another person. The second situation takes place when the renouncement of that right is a part of a contract for exchange of an apartment concluded with a cooperative. The said contract needs to be properly qualified. A tendency to subsume it under Art. 603 and 604 of the Civil Code, regulating the exchange contract, is understandable, yet one should also keep in mind that here the object of exchange are not things but rights and that on the part of a member a transfer of a right does not take place since the right expires in consequence of a renouncement. In turn, a cooperative society creates a new right to a new apartment in favour of that member. Thus its act has no features of a translative transmission of a right. In practice, such an act leads eventually to the exchange of cooperative apartments. Thus one might assume that in such a case a "sui generis" contract for allocation of another right to premises, or — simplifying a little — a contract for exchange of a coperative apartment comes into existence.
Wynagradzanie pracowników za wykonanie określonych zadań jako nowy element polityki płac
(Wydział Prawa i Administracji UAM, 1988) Chobot, Andrzej
One of the assumptions of the 2nd stage of the economic reform is the introduction of new principles of remunerating the employees, relating directly their pay to the results of their work. Such a connection is possible first of all under the condition that the principle of task forms of employing and remunerating the employees is adopted, the principle expressed presently in Art. 136 of the Labour Code, but later requiring a more complex regulation making it possible to determine the scope of a duty to work in terms of the size of assignment rather than the amount of time of work. It is one of key mechanisms of the economic reform which, if realized properly, should be decisive for the success of the economic reform and should contribute to creating a basis for a further social growth. Task forms of remunerating (and employing) should be introduced gradually, especially with respect to: managers of the socialized units of economy; people carrying out research, developmental and implementive tasks of great significance for the national economy; remuneration connected with group organization of work (including so-called innovation brigades) recently implemented in state enterprises; and remuneration resulting from contracts for creative work. A proposed system of remuneration, changeable in time and with respect to the amounts paid (as a consequence of changes of tasks) and determined in subsequent autonomous clauses accidentally connected with a contract for being ready to work, is closely linked with the need to formulate a new conception of employment relationship which would directly relate the pay to the outcome of work. The new shape of employment relationship sketched in this article requires further studies both with respect to its detailed justification as well as social side-effects of its implementation.
Państwowe osoby prawne (na tle zmian ustawowych po 1980 roku).
(Wydział Prawa i Administracji UAM, 1988) Jakubek, Marek
The article discusses different types of legal persons created by the State by virtue of statutes adopted after 1980. The author, referring to the distinctions accepted in the science of administrative law, distinguishes: 1) State legal persons of the "enterprise" type, among which — besides enterprises founded on the basis of the Act of Sept. 25, 1981 on State Enterprises — he includes State banks, post offices, State insurance companies, "Lot" and "Airports" enterprises, and research, artistic and film institutions; 2) State legal persons of the "public institution" type — schools of academic rank and the Polish Academy of Sciences; 3) organizational units of power engineering and mining industry and the Fund of Structural Changes in Industry as organizations of a specific character. Contrary to former views, the institution of a "legal person" proves to be useful in organizing diversified activity of the State. State legal persons differ in their structure and rules of activity with respect to both State organs and institutions as well as other subjects of private law.
Teoretyczne aspekty prawa podziału według pracy a praktyka gospodarki socjalistycznej
(Wydział Prawa i Administracji UAM, 1988) Jarmołowicz, Wacław
The problems of functioning in a socialist economy of the economic principle of distribution according to one's work and the problems of applying that principle as a well-known and consciously implemented rule of distribution of income for work are particularly important and controversial. The author presents and critically evaluates some views of Polish and Soviet authors and shows that the prevailing theoretical interpretation of the essence of functioning of that principle is highly simplified and unsatisfactory. It ascribes, in remunerating for labor, a particularly important role to the efficiency of individual work and decidedly underestimates the results of economic efficiency of group work (the enterprise efficiency). In the author's opinion, the need to increase the influence of the latter factor on shaping the level and relations of pay is an indispensable element of developing the hitherto existing interpretation and is the condition of overcoming low motivating effectiveness of pay.
Próba porównania systemu zabezpieczenia socjalnego w Polsce i Republice Federalnej Niemiec
(Wydział Prawa i Administracji UAM, 1988) Piasny, Janusz
The article points out to the place, role and legal aspects of social security systems in social policy of both countries. The author first compares the scopes, forms and types of social benefits and then compares those elements of both systems which in his opinion are of greatest importance. Thus, the subject-matter of comparisons were: number of working hours, the system of retirement and disability benefits, maternity benefits, the system of occupational injuries and diseases benefits, the employees' rights to holidays, unemployment benefits, forms of help rendered to senior citizens, and the system of health protection benefits.
Determinanty zróżnicowania pieniężnych dochodów ludności Polski w układzie wojewódzkim w latach 1976-1984
(Wydział Prawa i Administracji UAM, 1988) Rutkowski, Tadeusz
The article presents spatial differentiation of the level of personal income in Poland and main components of that income, i.e. income from work in a socialized sector and revenues from the sale of agricultural produce. The main purpose was to determine the factors causing territorial differentiation of the said types of income through applying certain statistical and econometric methods (factor analysis and descriptive econometric models). The following determinants of differentiation of personal income were distinguished: — the rate of employment in a socialized sector; — the structure of employees according to age, sectors of State economy, the level of education; — the use of the region's territory for production purposes; — the value of the sold agricultural produce. The statistical and econometric analysis of spatial differentiation of the level of income carried out in the article creates the conditions for analysing the whole process of shaping the income in regional arrangement and allows to point out to the causes of that differentiation, what constitutes the basis for realizing by the State the efficient socio-economic policy with respect to regions.
Ekonomiczne aspekty procesu degradacji i dewastacji gleb
(Wydział Prawa i Administracji UAM, 1988) Koczyński, Wojciech
In the article the author undertakes an attempt to formulate the conception of research into economic consequences of the process of degradation and devastation of rural environment in Poland, especially the degradation and devastationof soil. „Devastation" is understood as the destruction of the layer of soil, and „degradation" is conceived as a gradual loss of its fertility. The considerations have led the author to the conclusion that the most adequate research method is the system analysis; its scheme is included in the article. The said scheme was the basis for multidirectional analysis of relations between the sphere of natural environment and the sphere of human activity. Several types of negative influence of human activity on rural environment, especially on soil, have been taken into account, i.e. detrimental activity connected with industry, agriculture, exchange and consumption. Most of negative influences are reflected in the increase of soil pollution, and — in consequence — in the decrease of arable land area. A separate paper will be devoted to the formulation of a mathematical model of relations between man and environment; the above findings and the scheme will be used for that purpose.
Modele regresji liniowej dzietności rodzin względem dochodu
(Wydział Prawa i Administracji UAM, 1988) Roeske-Słomka, Iwona
In economic theories concerning a number of children in a family income plays a special role. On the one hand, it is the factor shaping all possible attitudes and behaviors (including procreation) and — on the other — it is a factor setting in motion and controlling the functioning of competition mechanisms in the sphere of behavioral processes. The article presents the results of the analysis aimed at determining general character and intensity of the influence of income on the number of children in a family. The empirical basis of the analysis was the all-Polish research into family budgets in years 1973 - 1983. The calculus of correlation and linear regression was used with respect to more homogenous subpopulations distinguished according to the features differentiating procreative behaviors such as: the length of marriage, the level of education of the head of the household, and the character and class of place of residence. It has been found that although in some cases the range of variations of a number of children in a family explainable in terms of income was considerable, on the average income explained only a small fraction of all such variations. In most part of the subpopulation the dependence of the number of children on income was statistically insignificant. In turn, in the cases where that dependence could be considered significant, it was of positive character and usually the lower the level of education of the head of the household was, the stronger that dependence became. In the light of the above results one may suggest that the material status of a family better than the status of families belonging to the same social group is correlated with a weaker function of aspects of material competition with respect to having children. Thus a better material status strengthens extra-economic motivations for having a preferred number of children.
Tradycje socjologii polskiej
(Wydział Prawa i Administracji UAM, 1988) Kwilecki, Andrzej
The article presents over one hundred years of history of Polish sociology from the perspective of its traditions, still important for the present times. Those traditions include 1) patriotic and civic stances and intensive research activity of leading scientists; 2) outstanding works created by those scientists; 3) developing the science in connection with Itaking up problems important for the Polish nation; 4) maintaining contact with the world science. Recalling past achievements of Polish sociology, the author takes into account the conditions of cultivating sociology in Poland. In some periods they were very difficult [e.g. until 1918, when there was no Polish state, during the 2nd World War (1939-1945)], in others they changed dramatically several times (e.g. between 1951 and 1956, when all sociological institutions and university departments of sociology were dissolved), what placed sociology in an exceptional situation in comparison with other European countries. Calling to mind imperishable values brought by Polish sociologists to Polish science and culture, the author presents in short the activity of two generations of scholars. To the first generation belong those whose creative activity fell to the post-partitions period (before 1918) and who laid the foundations of Polish sociology (Józef Supiński, Ludwik Gumpiowicz, Ludwik Krzywicki, Leon Petrażycki, Florian Znaniecki and others). To the second generation the author includes those who started their research and organizational activity in Poland between the World Wars (Józef Chałasiński, Maria and Stanisław Ossowski, Stanisław Rychliński, Tadeusz Szczurkiewieiz and others). The sociologists of the second generation rebuilt and organized the scientific activity in the Polish People's Republic after the 2nd World War.
Rodzaje grup nieformalnych w zakładach przemysłowych
(Wydział Prawa i Administracji UAM, 1988) Krężlewski, Jerzy
The article contains a characterization of informal groups functioning in Polish industrial plants. The first part deals with a short presentation of types of informal groups described in the literature. Most considerations in that part are devoted to M. Dalton's typology of cliques, used by the author to characterize the groups of such a type active in Polish industrial plants. Considerations contained in the second part are the result of the analyses of the theoretical and empirical output of many scientists researching the problems of social groups and enterprises. The direct inspiration for formulating a characterization of informal groups functioning in an industrial plant has come from the analyses of autobiographies of employees of Polish institutions. The author presents informal groups operating on three levels of formal structure of authority, i.e. on the management level, middle supervision level and on the level of common employees. In addition, the author also describes groups crossing vertically the structures of an industrial plant. The last part of the article attempts to answer the question of the reasons of domination of groups of pathological or deviant character in social environment of Polish industrial plants.
Teoretyczne i metodologiczne problemy międzynarodowych badań porównawczych w socjologii
(Wydział Prawa i Administracji UAM, 1988) Berting, Jan
The purpose of this article is to develop a framework useful for a systematic discussion of the theoretical and methodological problems in international comparative research. In the author's opinion, such a framework may primarily serve as an instrument to a) classify the main types of international comparative research and to b) make an inventory of the main theoretical, methodological and practical problems in this field. The author first comments on two classifications of comparative research that were developed by Scheuch and Smelser and next he presents a more comprehensive framework that is more appropriate to the situation of theoretical and methodological pluralism in the social sciences. The classification proposed by the author is made by looking at the main theoretical perspectives or paradigms which are based on fundamental differences regarding the subject-matter of sociology. The author opposes catascopic and anascopic approaches, the approaches conceiving the reality as „objective" or „intersubjective", consensus and conflict approaches, synchronic and diacronie approaches, and continuous and discontinuous changes approaches. In addition, the author distinguishes other differences, e.g. cultural level and social-structural level approaches and draws conclusions concerning, among other, the goal of international comparative research.
Przegląd piśmiennictwa RPEiS 50(2), 1988
(Wydział Prawa i Administracji UAM, 1988)
Sprawozdania i informacje RPEiS 50(2), 1988
(Wydział Prawa i Administracji UAM, 1988)

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