Ruch Prawniczy, Ekonomiczny i Socjologiczny, 1989, nr 1
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Item Konflikt dóbr i kolizja norm(Wydział Prawa i Administracji UAM, 1989) Gizbert-Studnicki, TomaszIn the process of applying the law there often appears the need to settle a conflict of goods. A conflict of goods is a symptom of a collision of legal norms. Norms ordering to protect or realize some good (legal principles) are marked with a specific feature, i.e. their realisation is graduable. Settling a collision of principles, unlike settling a collision of rules, does not lead to recognizing one of colliding principles as non-valid. The way of settling a collision of goods depends not only on a determined in abstracto hierarchical position of particular goods, but also on weight which should be ascribed to particular goods in certain circumstances. A hierarchical position of goods is determined in abstracto, whereas weight may be ascribed to them in specific factual circumstances. Weight of a goods is relative, i.e. it may be determined only in relation to another good in a given factual situation. One may formulate some minimum requirements for settling conflicts of goods. Firstly, colliding goods should be properly identified and should be of legal character. Secondly, a hierarchical position of goods should be properly determined. Thirdly, criteria of ascribing proper weight to some goods in a given situation should be formulated and justified. They should be of generic character and the application of those criteria should be based on properly determined facts. The above requirements are of legal character, and a control based on those requirements is concerned with legality of a decision settling conflicts of goods.Item Spis treści RPEiS 51(1), 1989(Wydział Prawa i Administracji UAM, 1989)Item O obowiązku alimentacyjnym między rozwiedzionymi małżonkami(Wydział Prawa i Administracji UAM, 1989) Szpunar, AdamThe Supreme Court's Guidelines of Dec. 16, 1987 encourage to examine once again some basic questions concerning the duty of alimony between the divorced spouses. The analysis of the Guidelines is preceded by the presentation of main views expressed in Polish legal writings with respect to ex-spouses' support obligations. Thus, the author distinguishes four groups of problems: 1) Attention should be focused on the question about the source of support obligations between the ex-spouses. Some authors maintain that such a source should be seen in the very fact of divorce. However, the author subscribes to a prevailing view that the source of the divorced spouses' duty of alimony is their former marriage. The Guidelines support the latter view. 2) Related to the above is the question whether there exists a marital duty of support during the marriage. The author answers in the affirmative. He analyses the marital duty of contribution to the support of the family, (Art. 27 of the Family and Guardianship Code) referring frequently to other views expressed in legal writings. 3) According to Art. 60 of the Family and Guardianship Code, a distinction should be made between a regular and qualified duty of support. A qualified duty of support (Art. 60 § 2 of the Family and Guardianship Code) is vested in a spouse considered to be solely guilty of the breakdown of marriage. The author analyses the premises of a qualified duty of support. In his opinion, the Guidelines have shed light on some important matters. The most important was the explanation of the statutory formula that the innocent spouse, whose material situation deteriorated considerably in consequence of the divorce, may demand that the solely guilty spouse should contribute to the satisfaction of the justified needs of the innocent spouse, even though the latter is not in poverty. 4) In the last part of his article the author considers the premisses of prolonging the 5-year-period of the duty of alimony between innocent spouses (Art. 60 § 3 of the Family and Guardianship Code). 3Item Wybrane zagadnienia reformy postępowania egzekucyjnego w sprawach cywilnych(Wydział Prawa i Administracji UAM, 1989) Zedler, FeliksIn his article the author determines the criteria the legislator should observe in carrying out works on the reform of executive proceedings in civil law cases. According to the author, the reform should lead to the regulation which would allow to reach in practice the ideal civil proceedings. In the author's opinion the ideal civil proceedings should secure the adequate legal protection to those who seek such a protection and at the same time should not infringe values protected in a given society, should be as little burdensome as possible to the parties and participants, and should be cheap and quick. The author concludes that in consequence of the adoption of those assumptions several changes in legal provisions would have to be introduced, especially the one precluding the examination of the merits of a case in executive proceedings.Item Karnoprawna ochrona nekropolii(Wydział Prawa i Administracji UAM, 1989) Daszkiewicz, WiesławCult of the dead, their various last resting-places and ceremonies connected with burials or cremations should be protected by law. There is a clear link between those elements and a spiritual sphere of a human being and his/her personal (immaterial) interests. Such interests, as well as various related material interests are protected i.e. by penal law. Several legal acts should be mentioned here, in particular the Penal Code of 1969, the Petty Offences Code of 1971, the Act on Cemeteries and Burials of 1959 and the Act on Military Cemeteries of 1933. The objects located on cemeteries or even the whole cemeteries are monuments and thus they are also subject to protection provided for in the Act on Protection of Cultural Values and on Museums of 1962. Generally speaking, penal law norms on protection of cemeteries could be divided into 4 groups. The first contains norms determining offences and petty offences against the cult of the dead, against their last resting-places, and against the freedom to engage in funeral ceremonies. The second group contains provisions penalizing the violation of norms regulating the exploitation of cemeteries (including sanitary regulations, exhumation permits, transportation of corpses, etc.). To the third group belong the provisions on responsibility for offences and petty offences against property, (including the provision on protection of objects having no material value). Finally, the fourth group is composed of norms protecting monuments as values of culture. The article presents penal law instruments contained in the above 4 groups, sketches the evolution those measures have undergone in Polish law, and puts forth de lege ferenda postulates. The Penal Code of 1969 instead of two offences provided in a former code of 1932, one of which consisted in profaning the corpse or maliciously disturbing a funeral ceremony, the other in taking a corpse or its part away from the entitled person's possession — introduced one offence in two forms (Art. 197), A basic form, with a penalty of imprisonment of up to 3 years, consists in maliciously disturbing a funeral ceremony or in profaning the corpse, ashes, or the last resting-place of the dead, whereas a qualified form of that offence, with a penalty of 1-10 years of imprisonment has an additional feature: plundering the corpse, the grave or any other last resting-place of the dead. Both forms of the analysed offence require intention (dolus directus) and a definite motive of action. The subject-matter of protection provided for in Art. 197 is the freedom of conscience and religion in the sphere of the cult of the dead. Let me add that Art. 197 grants protection to funeral ceremonies and last resting-places irrespective of their secular or sacral character. Paragraph 2 of Art. 197 may be a source of difficulties. Namely, it is sometimes understood as prohibiting willful taking of property from the corpse, the grave or from another resting-place. Thus "plundering" is considered to be tantamount to an ordinary theft commited at the last resting-place of the dead, eg. stealing a tombstone without the intention of profaning the place.Item Przesłanki procesowe w postępowaniu o wydanie wyroku łącznego(Wydział Prawa i Administracji UAM, 1989) Kwiatkowski, ZbigniewThe article presents the problems of procedural premises in proceedings for rendering a cumulative judgment. There are some modifications of premises in those proceedings in comparison with ordinary proceedings. Namely, beside some modified general premises there are also special premises, characteristic only for proceedings for rendering a cumulative judgment. The said proceedings are conditioned upon theree general positive procedural premises: a) being subject to Polish criminal courts, b) jurisdiction, c) the existence of litigant parties. To general negative premises belong: 1) immunities (Art. 11 sec. 3 of the Criminal Procedure Code), 2) the lapse of the prercribed statute of limitation (Art. 11 sec. 6 of the Criminal Procedure Code), 3) material validity (Art. 11 sec. 7 of the Criminal Procedure Code), 4) pendency of the litigation (Art. 11 sec. 7 of the Criminal Procedure Code), 5) amnesty as a negative premise not mentioned in Art. 11 of the Criminal Procedure Code. Special premises are specific factors, the existence of which is a condition of rendering a cumulative judgment. From that point of view one can distinguish: 1) special material premises, 2) a special procedural premise. Special material premises are regulated in the Criminal Code (Art. 66, 68, 69, 71§2). Those provisions allow to distinguish the following premises: 1) real concurrence of offences, 2) concurrence of penalties. A special procedural premise is formal validity of separate judgments sentencing for concurring offences (Art. 503 § 1 of the Criminal Procedure Code). The admissibility of proceedings for rendering a cumulative judgment depends on a simultaneous appearance of general and special premisesItem Problemy prawne odpowiedzialności związanej z działalnością przedsiębiorstwa państwowego(Wydział Prawa i Administracji UAM, 1989) Kosikowski, CezaryThe author considers legal responsibility to be one of important instruments of increasing effectivity and thriftiness of state enterprises. He believes that the above problem should be regulated comprehensively, and thus it is necessary to depart from a traditional division of responsibility according to the branches of law. Instead, an objective approach should be adopted, for the legislator grants legal protection first of all to an object of legal relations linking a state enterprise with other subjects. The object of legal responsibility connected with the activity of a state enterprise would comprise rights and duties of an enterprise and its organs as well as rights and dutied of other subjects which are in legal relations with that enterprise in organizational, economic and financial spheres. The author suggests to create a theoretical construction of economic responsibility comprising legal, financial and political areas. At the same time, the author presents a catalogue of problems to be solved. It includes the questions of grounds and types of responsibility (liability), and the procedure to disclose, decide about and execute economic responsibility.Item Opodatkowanie fundacji i spółek(Wydział Prawa i Administracji UAM, 1989) Małecki, JerzyA new phenomenon of recent years in Poland is the emergence of various foundations and partnerships conducting their economic activity in non-conventional forms and scopes. The article discusses numerous and complicated provisions regulating the taxation of foundations and partnerships in Polish law. The differences between the taxation of those two types of economic units follow from the character of those organizations. Tax preferences for foundations consist mainly in exemptions or reliefs in taxation of partnerships is highly diversified, for one may distinguish at least six ways of taxing their activity. The legal principle of equality of economic subjects, proclaimed in Art. 1 of the draft for the Act on Undertaking Economic Activity, is not adequately expressed in the present tax regulation, particularly as far as partnerships are concerned. Thus, it is necessary in the nearest future to reconstruct the Polish tax system. in the direction of creating the uniform tax system for all economic subjects,, neutral with respect to different forms of property.Item Co to jest „krytyczne" prawo rodzinne(Wydział Prawa i Administracji UAM, 1989) Eekelaar, JohnA growing segment of British legal literature, identified by the label Critical Legal Studies UK might be explained as a delayed reflection of the „movement" of that name originating in the United States. The purpose of this article is to attempt an assessment of the value which a „critical" approach might hold for English family law. It is not easy to capture the essential thread of critical legal studies. „Critical" legal writers would reject a view of law which saw legal decisions as formal deductions from established premises, and systems of law as emanations of systems of values which have inherent, objective validity. Instead, the „critical" legal conclusion — scarcely a revelation — is that the law is „inextricably mixed in the totality of social relations and institutions". As far as family law is concerned, „critical" legal writers would claim that „at the root of a critical theory is the, public/private dichotomy". The author questions the usefulness of that dichotomy as a tool of contemporary legal analyses. Then, he tries to prove that one feature of „critical" legal theory not shared by "non-critical (liberal)" theory is that the critical writer inserts an explicit ideological stance into his or her legal analysis. If this is so — claims the author — the "critical" approach reverts to a political programme, and is jurisprudentially irrelevant. If the "critical" writer is less concerned about exploring the doctrinal and empirical problems of achieving coherence within the multitude of legal and institutional mechanisms and is surer of the answers to the value-conflicts than the "non-critical" scholar, i.e. if his/her "currency is commitment rather than truth", one may truly ask whether the movement has appropriated to itself theepithet "critical" under false pretences.Item Ordoliberalna koncepcja porządku gospodarczego (przyczynek do zaplecza teoretycznego reform systemowych)(Wydział Prawa i Administracji UAM, 1989) Kramarek, Maciej; Skorupa, WandaThe article undertakes an attempt to compare the ordoliberal paradigm with the paradigms of other more important economic schools. The purpose of the article is to determine whether Walter Eucken's theses deseve to be called original or they are merely a continuation of earlier conceptions. Defining a paradigm (sec. 1), reconstructing it with respect to ordoliberal theory (sec. 2) and comparing it with other paradigms (sec. 3) allowed us to formulate the following conclusions: — There are hardly any more original elements in ordoliberal writings. — The ordoliberal theory is nonetheless a coherent system which, as a whole, is an interesting and new attempt to adapt competition mechanism to "serving" the society. — Developing consistently a thesis about a complex character of economic phenomena Eucken was able to determine the features of the economic order policy; it constitutes a major theoretical achievement verified by the economic praxis. — The ordoliberal paradigm seems, as a whole, to be the outcome of the naturalistic approach — with respect to assumptions, and the neovoluntary approach — with respect to norms. The analyses justify an observation that Walter Eucken's theory is of reformistic character, i.e. it tries to introduce into the mechanism of free competition economy some conditions of moral nature. Since in the economics of socialism one can also observe the appearance of reformistic paradigms introducing into the theory of socialism some conditions of pragmatic nature, the authors considered it interesting to continue comparative research into both types of reformistic paradigms.Item Główne kierunki teoretycznych analiz wahań cyklicznych(Wydział Prawa i Administracji UAM, 1989) Barczyk, RyszardWestern model analyses of contemporary cyclical processes are only sets of more or less proved hypotheses which do not form a consistent theoretical conception. A general purpose of the contribution is to present two main lines of Western theoretical analyses explaining contemporary cyclical flunctuations: neo-Keynesian and neoclassical. * The former interpretation, with its roots at J. M. Keynes theories, is a demand approach, with the source of fluctuations located first of all in combined mechanisms of investment multiphir and accelerator. The neoclassical approach is identified with a so-called balanced theory of the business cycle, where all oscilations are explained in terms of rational expectations of the economic subjects. In the analysed lines of theoretical research into cyclical fluctuations highly idealized assumptions are adopted. In effect, despite the use of extensive conceptual apparatus and formal mathematical instruments those conceptions can hardly meet the demands of the economic praxis.Item Antycykliczny interwencjonizm finansowy państwa włoskiego w latach 1967 -1986(Wydział Prawa i Administracji UAM, 1989) Kowalczyk, Zygmunt; Przybylska-Kapuścińska, WiesławaState countercyclical financial interventionism is conceived here as a permanenet intervention of a state into the economy of a country by means of financial instruments directed at preventing economic fluctuations. In a market economy financial instruments are easier to assimilate than administrative and regulative instruments. The Italian State tries to improve the economic balance of the country by manipulating the financial flows. Thus it prevents business fluctuations of national economy. The possibilities of the State exerting influence on the economy of the country depend on social and economic doctrines adopted by the governing elites and on institutional and administrative infrastructure. In the article the Italian economy has been divided into two basic markets: money and short-term credit market and capital and long-term credit market. The policy of direct refinancing, the regulation of obligatory reserve, the policy of open market and the control of foreign financial relations have been analyzed. The analyses of empirical data justifies the conclusion that financial instruments at the State disposal played small role in moderating the business fluctuations of national economy. Competition among banks, internationalization of bank systems, widening the specialization of banks, the emergence of Euro-currency market are among the most important factors reducing the effectiveness of the State financial policy aimed at preventing business fluctuations of economy. Such a policy is more efficient in times of economic expansion than during depression. The article ends with conclusions concerning the possibilities of employing financial instruments in future, reformed Polish economy.Item Bariery reformy ekonomicznej w opiece zdrowotnej(Wydział Prawa i Administracji UAM, 1989) Sobiech, JanThe present economic and financial system of health care was subject to a general discussion which resulted in agreement as to the necessity of introducting the economic reform also into that sphere. However, despite a wide range of discussion and in spite of relatively deep engagement of the State authorities into the economic and financial reform of health care, the extent of changes which have already been implemented is still very small. It made the author consider the barriers the economic reform meets in that sphere. The following barriers in health care have been distinguished and analysed: political, balance, psychological and conceptual. A political barrier is expressed in a lack of a wider and more concrete shape of future reformed socio-economic system, a background for health case system. A balance barrier is expressed in terms of disproportions between economic potential of the country and social expectations (resulting from health threats and health consciousness and aspirations) with respect to the health care standard offered by a new, reformed financial and economic system of health care. A psychological barrier can be seen in anxieties or even fears — a more advanced economic reform in health care brings about, the fears expressed at the same time by potential patients, health care staff and authorities responsible for the functioning of the health care system. Finally, a conceptual barrier is expressed in the absence of a comprehensive, consistent and acceptable conception of a new, reformed health care system and its management.Item Dylematy motywowania pracowników przedsiębiorstw przemysłowych(Wydział Prawa i Administracji UAM, 1989) Ziółkowska, WiesławaA set of instruments and undertakings contained in the implementation programme of the second stage of the economic reform creates a chance for the growth of enterprising and innovative activity of individuals and groups. However, there are no guarantees that it will be so. All the solutions will turn out efficient only to the extent to which the employees will have to use and implement them. The source of compulsion should lie in practical and consistent observance of the dependence between the quality of life and work. A main factor determining the improvement of living conditions of people must be the improvement of the quality of work, its productivity and efficiency, mostly in the socialized sector of economy. An efficient process of motivating should be treated as a conscious transformation of dependencies between needs and aspirations of people on the one hand and the quality of work on the other into their motivation to show rational attitudes and behaviours which would lead to the formation and implementation of common aims of an enterprise and its crew. Motivating conceived in the above way should: 1) be based on the formation and practical exploitation of supply-creating function of pay. The essence of that function can be reduced to making people materially interested in efficient work in the socialized sector, what in turn would result in the growth of quality and quantity of goods and services. The pay in the socialized sector should become a real economic category instead of its „embarrasing value" of today; 2) approach the problem in a complex way, considering it in its interrelations with and dependencies on other managerial functions in an enterprise, especially planning and organizational functions; 3) make a practical use of motivation aspects of socializing the management of production. The above conception differs radically from a traditional approach to motivation. To expose that difference one should say that the actual pay policy is dominated by income and social function of pay and corresponds with conceiving the economy as one big multifactory enterprise.Item Kształtowanie udziału ludności w dochodzie narodowym(Wydział Prawa i Administracji UAM, 1989) Gomułowicz, AndrzejNot before the majority of the society understands the sense of past, present and future social changes, will it be possible to talk about the sense of co-creating the future. The problems of tomorrow shoul be known to the whole society and not only to its intellectual elite, for everybody must participate in introducing changes which are to prevent the catastrophe. It is just in creating such unity that the sense of co-creating the future lies. The future of the mankind is not given „a priori"; instead, it is created in objectively favourable conditions. The future evokes both fear and hope. The fulfilment of hopes depends on the competent use of opportunities. It is only knowledge and the will of action that can prevent from wasting those opportunities. The future of the mankind consists not only in multiplying technical and technological devices, but in the first place requires that people be aware of aims and be willing to attain them. At our stage of development of the mankind, a main aim remains to be the change of social relations in the direction of a further harmonization of an individual development with collective forms of co-existence. Such is our nearest aim. The aims of future generations can by no means be foreseen at the moment. Fighting contradictions existing in both capitalist and socialist worlds is a complex process. Inherent features of capitalism, i.e. making people strive for profit and adopt a consumption-style way of living, do not promise long life to capitalist forms of coexistence. On the other hand, accumulated difficulties which the socialist countries have to cope with do not go along quick accomplishment of harmonizing a human personality with collective forms of existence. In such a case, co-creating the future, creating a new socio-economic formation on a global scale is a long-run and even distressing process. It seams that the present battle for peace is an important step in the process of changing human mentality for proper utilization of new productive forces in co-creating the future.Item Kształtowanie się dochodowości gospodarstw chłopskich w zależności od obszaru gospodarstwa(Wydział Prawa i Administracji UAM, 1989) Wiatrak, Andrzej PiotrThe article presents the dependence between farmers' income calculated per 1 farm, 1 person and 1 ha of arable land and the size of a farm, together with the changes in the above indexes, causes of those changes and the sources of income. The analyses indicate that the income calculated per 1 farm and 1 person increases together with the growth of area and dicreases when calculated per 1 ha of arable land. The above processes are determined by the outlays of labour and equipment and by relations between various productive factors. The following data may serve as an example. Whereas there is a ninefold difference between the average area of farms over 15 ha and farms under 3 ha, the difference between the outlays of labour is only twofold, and between the outlays of equipment — fivefold. The increase of both types of outlays, although it contributes to the growth of the scale of production, is insufficient as compared with the increase of the size of farms. In consequence, those outlays, when calculated per 1 ha of arable land, diminish together with the increase of area, bringing about a simultaneous, though slower, decrease of productivity and income. However, if outlays are at the same level, the income brought by land increases together with owth of area of farms. It indicates that it is necessary to provide farms with more equipment and that providing the farms with means of production stops those negative processes.Item Sens współtworzenia jutra(Wydział Prawa i Administracji UAM, 1989) Żurawicki, SewerynNot before the majority of the society understands the sense of past, present and future social changes, will it be possible to talk about the sense of co-creating the future. The problems of tomorrow shoul be known to the whole society and not only to its intellectual elite, for everybody must participate in introducing changes which are to prevent the catastrophe. It is just in creating such unity that the sense of co-creating the future lies. The future of the mankind is not given „a priori"; instead, it is created in objectively favourable conditions. The future evokes both fear and hope. The fulfilment of hopes depends on the competent use of opportunities. It is only knowledge and the will of action that can prevent from wasting those opportunities. The future of the mankind consists not only in multiplying technical and technological devices, but in the first place requires that people be aware of aims and be willing to attain them. At our stage of development of the mankind, a main aim remains to be the change of social relations in the direction of a further harmonization of an individual development with collective forms of co-existence. Such is our nearest aim. The aims of future generations can by no means be foreseen at the moment. Fighting contradictions existing in both capitalist and socialist worlds is a complex process. Inherent features of capitalism, i.e. making people strive for profit and adopt a consumption-style way of living, do not promise long life to capitalist forms of coexistence. On the other hand, accumulated difficulties which the socialist countries have to cope with do not go along quick accomplishment of harmonizing a human personality with collective forms of existence. In such a case, co-creating the future, creating a new socio-economic formation on a global scale is a long-run and even distressing process. It seams that the present battle for peace is an important step in the process of changing human mentality for proper utilization of new productive forces in co-creating the future.Item Elita a zagadnienie władzy politycznej(Wydział Prawa i Administracji UAM, 1989) Żyromski, MarekThe author tries to prove the significance of including the factor of power in building theories of elites. It turns out that in many approaches the elite has been defined mostly and exclusively in terms of political power (Pareto, Mosca, Lasswell, Mills). Such an attitude followed from the adoption of „a priori" assumptions about the universality of dividing societies into those who govern and those governed (Italian scholars) and from empirical studies (especially Mills). Also the sociologists who stressed a highly diversified character of contemporary societies point to a great role of factors of a political character (Mannheim, Keller). Political power is not only an important criterion of stratifying the society but also of distinguishing the elite. Defining power appears to be very difficult. At present, with more and more diversified social structures, it is more difficult than several decades ago to indicate persons or groups who really (not nominally) are in authority.Item Kształcenie pracowników socjalnych w RFN(Wydział Prawa i Administracji UAM, 1989) Sałustowicz, PiotrIn the early 1970s the training of social workers in FRG was raised to the university level. At the same time a distinction was introduced between the studies in a so-called Fachhochschule and at university departments of pedagogics. The change in status of social workers training is more than just the evidence of growing professionalization of that vocation. It must also be treated as an important element of modernization processes within the West-German society. On the one hand the necessity of such a modernization was a result of growing social expectations with respect to having both "old" and "new" needs satisfied. On the other hand, it was an attempt to answer to the criticism of the sociopolitical system voiced by the so-called "new left". Other symptoms of modernization attempts were i.e. widening the scope of self-goverment in various spheres of public life, making the system of higher education more accessible in consequence of "equal opportunities" programme, developing the social security system, etc. To attempts at modernizing the socio-political system should also be counted the replacement of the so-called "hard" social control with the so called "soft" control. The core of the "soft" control are social workers. Therefore the issue of training them is in the focus of interest of social sciences. The article discusses several problems connected with the training of social workers, in particular: a) demand for social benefits and services and a corresponding conception of social work professionalization; b) social workers' utilization of scientific knowledge and the related question of science as a means of solving practical problems; c) differentiation of training. The author hopes that even though the article in concerned with West German matters, it may still attract attention of all those professionally and practically interested in the social workers' status and activity.Item Przegląd piśmiennictwa RPEiS 51(1), 1989(Wydział Prawa i Administracji UAM, 1989)