Ruch Prawniczy, Ekonomiczny i Socjologiczny, 1989, nr 3
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Item Spis treści RPEiS 51(3), 1989(Wydział Prawa i Administracji UAM, 1989)Item Teoretyczne zagadnienia standardów w prawodawstwie w stosowaniu prawa(Wydział Prawa i Administracji UAM, 1989) Wróblewski, JerzyThe term „legal standard" is polysemiec and fuzzy in all languages related with law. The author singles out five basic uses of the term in question: (SP-1) standard as a legal rule;(SP-2) standard as a general clause; (SP-3) standard as an evaluation, (SP-4) standard as a legal principle; (SP-5) a technological standard. Each type of the singled out standard is analyzed. The standards SP-1, SP-2, SP-3 and SP-4 are interconnected and have a „family resemblance", whereas SP-5 stands apart, because the former group functionally serves the elasticity of law-applying decisions, and SP-5 restricts the variety of technology and its products by fixing quantitative requirements. The use of SP-1 is related to the conceptual identification of a legal rule. SP-2 involves various constructions of general clauses, which are either identified with SP-2 or SP-2 appears as a sub-class of the clauses in question. SP-3 implies axiological conceptions of values polarized in the opposition of cognitivism and noncognitivism. SP-4 is linked with different constructions of the principle of law and especially with the widely discussed comparison of rules and principles. Standards are linked with the choice of law-making technique which usually is a compromise between following the natural common language and shaping a precize artificial language. An use of standards delegates to the law-applying agencies the power to determine the solution of concrete cases. The discussion of the role of standards in application of law is based on the analysis of the normal formulas of the fractional decisions of the application of law (decision of validity, of interpretation, of evidence, of choice of consequences). The standards could function as applied rules, as directives of the application of law and as values justifying decisions. The way of using the standards depends not only on the formulation of applield legal texts but also on the accepted ideology of the application of law.Item Prawo człowieka do integralności(Wydział Prawa i Administracji UAM, 1989) Kędzia, ZdzisławThe idea of integrity of a human being is the object of interest of the human rights doctrine as well as of psychology and other social sciences. References to it are made i.a. by different currents in personalism or by the social doctrine of the Catholic Church. The American Convention on Human Rights and the African Charter on Human and Peoples' Rights proclaim the protection of integrity of an individual. In documents originating in the United Nations the notion of mental and physical integrity of an individual's personality appeared in connection with considerations on scientific and technological development, which according to the Proclamation of Teheran of 1968, was to be with in the focus of the United Nations' special attention. In the first place, the considerations aim at discovering whether the notion of integrity of a human being gives rise to any separate value to be protected and if so, whether this protection should take the form of a new human rights standard. The first question finds the affirmative answer. The analyses of meanings ascribed to the said notion allow to conclude that the human being's integrity may be described by means of the following words: identity — indyviduality of a human being, his/her psychical and physical autonomy, and psycho-physical equilibrium. As to the second question, the author states that integrity understood in the above way is nowadays protected by many separate, already existing rights, the scope of which may, or rather should, be enriched as the need arises. The protection of the said value can also be seen in a methodological approach, according to which human rights should be expressed in a complex way and their categories should not be arranged in a hierarchical order. Attention should also be paid to establishing a specific protection of human being's integrity by means of the instrument of general principle rather than that of subjective right. The former seems to correspond better with the wide scope and complex contens of the said value, which possesses a character of general category. Besides, in favour of the former instrument speaks also the function such categories play in the human rights protection. Namely, this protection have reached — so to speak — a new twist in the spiral of its development. While at the birth of the human rights idea one dealt just with general categories (life, freedom, property, happiness and equality), they were soon defined in terms of particular rights, very numerous today. The human rights protection became subject to atomization. More and more often an individual who claims his interests is forced to found his/her action not on one human right, nor on several such rights simultaneously, but he/she may even need to reach into the space between the boundaries of separate rights. This is where the present tendency to integrate the human rights protection comes from. In turn, the above general categories, forming the framework of the individual's rights, may perform the function of linking factors in building the said integration. The principles referring to such rights, addressed in the first place to the organs applying the law, may serve as interpretative directives referring to the whole body of human rights and as a basis for interpreting the catalogue of means of the individual's protection when the application of separate rights failsItem Zawiadomienia indywidualne przed Komitetem Praw Człowieka(Wydział Prawa i Administracji UAM, 1989) Michalska, AnnaLast year Hungary, as the only one of the socialist states, ratified the Optional Protocol to the International Covenant on Civil and Political Rights. It means that Hungary recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by the state of any of the rights set forth in the Covenant The postulates to ratify the Protocol have also been raised in Poland, so far in the doctrine rather than in political circles. Two types of fears are in the way. Firstly, international supervision is still strongly believed to constitute the intervention in the domestic jurisdiction, to be the violation of sovereignity, and to be against Art. 2 § 7 of the United Nations Charter. Secondly, it proves extremely difficult to overcome a traditional perception of relations between a state and an individual and to recognize those two subjects as equal parties in a dispute heard by the international authority. States are also afraid of individual communication abuse for political purposes. Are those fears justified? A partial answer may be given by the analysis of the international norms regulating the competence of the Human Rights Committee and the supervision procedure. The author analyses the provisions of the Optional Protocol and the Provisional Rules of Procedure adopted by the Committee. She discusses in detail the rules of submission of communications and the their admissibility. Special attention is paid to the views formulated by the committee as well as to their binding force and to the role they play of may play in international practice. Although the Committee's views are of persuasive value only, numerous examples may be given to indicate their significance. The Committee interprets the dispositions of the Covenant. Thus, the views of the Committee may contribute not only to the unification of interpretation of the Covenant by the states, but also to the adoption by the states of some common standards of implementation. In many cases the Committee indicated the measures of enforcement to be adopted by the state. The views of such a kind may not only contribute to securing a friendly settlement of the matter on the basis of respect of human rights as defined in the Covenant but may also encourage the state to adopt the administrative and legislative measures indicated by the Committee. In a few cases the Committee found gross violation of fundamental human rights, i.e it formulated the views which clearly characterized certain facts as violations of international norms considered as "ius cogens". The Committee many times published its view "in extenso"; such publicity has the character of a „sui generis" sanction. However, the purpose of supervision procedure is not the accusation of a state on the international scene. The role of international instruments analysed in the article is not only to protect human rights but also to protect the interests of the state against which the individual raises his/her claism. It is this latter circumstance that should encourage other socialist states to ratify the Optional Protocol.Item Zasada sprawiedliwości w polskim systemie podatkowym(Wydział Prawa i Administracji UAM, 1989) Gomułowicz, AndrzejAlthough the sciences of finance and financial law use the term "tax equity", they have so far failed to define its content. Need is felt an over-all work which would comprise economic, social and praxiological questions of tax equity. The existing considerations are in most cases limited to the formulation of persuasive definitions. Many Polish authors do not accept principles of tax aquity formulated in the pre-war period and they blame them with "burgeois character". Such an approach is wrong for aquity cannot be conceived as "socialist" or "capitalist". Another obstacle to an orderly discussion about tax equity is raised by the lack of generally accepted terminology. The considerations contained in the article may be treated as an attempt to formulate postulates as to the meaning of the term "tax equity". The first quest cos to be considered is whether thore is any single formula of equity in force Poland. The point is what values are accepted not only by State authorities, but also by e.g. religious groups, social movements, etc. Only then will it be possible to assess whether those values (find confirmation in the tax system. The above evaluation should be formulated not only on the basis of the tax regulation in force, but also on the basis of observations and analyses of the course of "real" tax phenomena In other words, important are taxes "in action". The sciences of finance and financial law, in their attempts to explain the meaning of „tax equity", must refer to two forms of taxation: direct and indirect. On the background of that distinction comments on ways of individualizing tax burdens can be made.Item Polityka orzekania i wymiaru kary grzywny w latach 1982 -1987(Wydział Prawa i Administracji UAM, 1989) Kunicka-Michalska, BarbaraThe article is based on statistical data obtained from the Ministry of Justice, concerning valid sentences in adult offenders' cases. Although the analysis is focused on the period of 1982 - 1987, the author included some comparative material dating back to the 1970s. She included the problems of sentencing to and the measure of fine as a basic penalty and as a penalty decreed besi'de the penalty of deprivation of liberty. The author discussed the problems of the frequency of sentencing to fine in comparison with other penalties and separately in comparison with other penal measures (including conditional suspension of penalty), the proportions between the two types of fine, the legal basis of sentencing to fine, the problem of frequency of sentencing to fine in comparison with other measures of patrimonial character and the problem of size of the two types of fine. The author criticizes the policy of sentencing to and the measure of fine. She comes to the conclusion that the penalty of fine in its present form does not meet its functions, for it is excessively severe and is not adjusted to the financial potential of the society. The author postulates to change both the present shape of the penalty of fine as well as the practice of its application.Item Postępowanie nakazowe w świetle praktyki(Wydział Prawa i Administracji UAM, 1989) Gronowska, Bożena; Jeż-Ludwichowska, Maria; Noskowicz, KrzysztofThe article is concerned with analysis of functioning of penal order proceedings in the shape determined in the Law on Special Penal Responsibility of May 10, 1985 (Official Gazetee No. 23, item 101). The analysis and evaluation has been based on empirical research conducted in three district courts (Bydgoszcz, Toruń, Iława). The research included 592 cases with 666 penal orders. The cases examined according to penal order proceedings constituted ca. 6% of all criminal cases. They were concerned with the so-called trivial crime, directed mostly against property. The research provided grounds to formulate several reservations concerning the courts practice of estabilishing the existence of one of the conditions of admissibility of penal order proceedings, namely that the circumstances relating to the commission of an act and guilt are beyond doubt. Moreover, reservations arose also with respect to negative prerequisites for penal order proceedings. Most schortcomings were noted with respect to the process of establishing the presence of good reasons to doubt sanity of an accused. The analysis of the participation of the parties in hearings confirmed that in penal order proceedings the principles of directness, openness and of adversary trial system are absent, for in most instances the parties were not notified of the date of a court session. The examination of the contents of penal orders revealed that a prevailing penalty was a fine. Besides, the courts too often applied the additional penalty of publication of the penal order. As few as 13% of penal orders were subject to objection, with only 7% of penal orders objected to by the accused and their counsels. In consequence of objections, the court aggravated the situation of the accused in as many as 43% of casesItem Konkubinat a bezpodstawne wzbogacenie (uwagi na tle judykatury Sądu Najwyższego)(Wydział Prawa i Administracji UAM, 1989) Szlęzak, AndrzejThe author criticizes the view expressed by the Supreme Court that in cases of cohabitation without marriage there is no room for all types of condictions (condictio indebiti, condictio sine causa, condictio causa data causa non secuta, condictio causa finita) may arise between the cohabiting partners. He also criticizes the application of the construction of „obligation de conscience" to claims raised by informal spouses, indicating that the above construction of the French civil law is incompatible with the Polish civil law provisions. In particular, the notion of „obligation de conscience" obscures the distinction between legal and moral norms and makes it difficult to arrive at a plausible interpretation of Art. 411 sec. 2 of the Civil Code on imperfect obligations.Item Zawieranie umów przy użyciu wzorców nienormatywnych(Wydział Prawa i Administracji UAM, 1989) Zalewski, LeszekThe author, noting that general conditions of contracts are widely used in international commercial transactions, focuses his attention on the problems of the so-called battle of forms. The latter includes the situation when e.g. a buyer makes an offer on his own printed form of a contract while a seller accepts that offer on the form whose content is different from the content of the offeror's from. The overwhelming majority of such transactions are carried out without any trouble and thus the question of validity of a contract does not arise. However, if one of the parties intends to evade the performance of his obligation, or if delivered goods are defective, the question appears whether the contract was validly concluded and what is the content of such a contract. The author analyses the ways of eliminating such "battles" adopted in selected legal systems (USA, West and East Germany, Great Britain) and in the light of the United Nations Convention on Contracts for the International Sale of Goods of 1980 and the General Conditions of Delivery of Goods 1968-1975 (in the 1979 version). Finally, the author presents the rules of settling the conflicts of forms in the Polish civil law. It does not regulate separately the above question; instead, general rules of making and accepting offer are applicable. In effect, if an offeree accepts an offer using the from the content of which differs from the content of the offeror's form, the offer is deemed rejected and the new offer, this time made by the offeree, comes into existence. However, if the offeror collects a delivery and pays the price, such a behaviour is regarded as an implied consent (to the offeree's conditions (Art. 60 of the Civil Code). The above solution is advantageous to the party who was the last to send his/her form "the last shot" rule). An objection against the conclusion of a contract on conditions set forth by the other party contained in one or both forms does not change much the above image. However, in some circumstances it may be of importance for the interpretation of the parties declarations of will in the light of Art. 65 of the Civil Code.Item Europejski rynek wewnętrzny 1992 roku i jego implikacje dla Polski(Wydział Prawa i Administracji UAM, 1989) Komar, AndrzejThe article discusses the process of formation of internal makret of 12 member states of the European Communities and analyses its implications for Poland. Attention was paid to the fact that European internal market is a consequence of economic integration within the Communities. In June 1985 the Commission prepared for the Council of Ministers the so-called White Paper on the implementation of internal market. Its content is very interesting, for it defines the features of internal market and contains about 300 proposals to implement internal market in various spheres. These proposals are accompanied by a detailed schedule of their realization. By the end of 1988 the Council of Ministers took about 90 decisions with respect to the internal market implementation; further steps are being discussed in working groups. The White Paper was later confirmed by Single European Acts, having the binding force of treaties. Single European Acts define the notion of internal market of member states of the Communities, proclaim the rule of qualified majority vote for decisions taken by the Council and set the deadline for a full realization of internal market for December 31, 1992. Various economic implications for Poland result from the above. It is indispensable for Polish economy to achieve a certain degree of convergence with the economies of member states of the Communities. In order to accomplish it, deep reforms of the structure of economy and management are necessary. The article indicates main directions of reforms and ways of carrying them out. It is a very demanding task for the Polish economic policy. Otherwise, Poland would find itself outside the economic relations with the Communities. Therefore, the article is against „emergency" reforms and instead postulates the realization of far-reaching reforms which would take into account the changes on the economic map of Europe.Item Struktura władzy i odpowiedzialności zarządu w korporacjach amerykańskich(Wydział Prawa i Administracji UAM, 1989) Mundheim, Robert; Sołtysiński, StanisławThe paper describes basic principles of U.S. Corporate Law, including federal legislation concerning the role of the Securities Exchange Commission. After presenting basic tenets of corporation law and delineating the scopes of respective jurisdictions of State and Federal laws in this field, the authors analyze the allocation of power among shareholders, managera and other constituents of the corporation. Among major problems discussed in the second part of the paper are legal solutions aimed at assuring the accountability of corporate management vis-a-vis shareholders. Thus, the paper analyzed the content and enforcement of basic duties imposed upon managers by state corporation law (i.e. duties of care and loyalty), derivative suits brought by shareholders against management on behalf of corporation, the role of independent directors, and the techniques of public disclosure. Finally, the paper discusses the controversial role of unfriendly take-overs and the role of institutional shareholders in this context.Item Teoria systemów gospodarczych w pracach J. Kornaia(Wydział Prawa i Administracji UAM, 1989) Polowczyk, JanThe article presents synthetically the views of J. Kornai on constructing mathematical models of economic processes. Since Kornai aims at formulating a descriptive- explanatory theory of economic systems, it makes it necessary to abandon the optymalization approach. Kornai focuses his attention on diachronic, not a synchronic, description of a system. His analyses are of qualitative character. Kornai's conception of the economic system is based on a distinction between a real sphere and a control sphere. This is why each mathematical model of the economic system should be composed of functions describing separately the changes in those two spheres. Changing the reaction functions belonging to the control sphere, one can investigate how the real sphere functions in conditions of different mechanisms of management. The operation of the control sphere is based on so-called autonomous functions of the economic system. They concern routine actions which repeat simple patterns of behaviour. In those so-called standard decision- making processes an important role is played by norms and by non-price information concerning the level of stock and the portfolio of orders.Item Rola przemysłu w gospodarce europejskich krajów socjalistycznych(Wydział Prawa i Administracji UAM, 1989) Najlepszy, EugeniuszThe article contains the results of research on structural changes in industry of 7 European CMEA countries in years 1970 -1985 in connection with the respective levels of their economic development, In order to observe the process of industrial growth of those countries the following problems were subject to a detailed analysis: — the comparative review of the trend of correlation between the participation of industry in national economy and the level of national income per one employee ; — the shaping on an international scale of differentiation of the growth of outlays and the productivity of production factors engaged in industries of particular CMEA member states; — the degree of participation of industries of particular CMEA member states in the international division of labour, with attention paid to its time and spatial diversification. The analysis proved the empirical dependence of the development of industries of European CMEA countries on their national income levels per one employee and showed significant similarities among respective countries as to, the above dependence in years 1970 -1975. The industrial growth trends in most of European CMEA countriested gradually decreased, with the set-back and stabilization of participation of industry in national economy most evident in countries with the lowest level of national income per one employee (GDR, Czechoslovakia). Besides, in years 1970-1985 a considerable break in the continuity of the process of eliminating differences in the levels of economic growth took place. In effect, in years 1981 -1985 some countries (especially Poland and Hungary) were more backward in their industrial growth than others. Although the indexes of dynamics of industrial export and import in particular European CMEA countries showed favourable tendencies, their comparison with the period of 1960 -1970 reveals, a set-back in growth. In effect, both in particular countries as well as in the CMEA as a whole, the participation of industrial export and import in the world market decreases.Item Wpływ handlu wiązanego na import (analiza kosztów)(Wydział Prawa i Administracji UAM, 1989) Kayser, TomaszThe beginning of the 1980s saw a considerable increase in scope and proportion of linked transactions in international trade. Thus the significance of determining the economic consequences of such practices became more evident. The subject-matter of the article is the analysis of costs resulting from the impact of counertrade on import realized by the country which introduces the countertrade. Proving the existence of convergence as to cost effects between the introduction of linked transactions and typical import bariers such as tariffs and import quotas made it possible to perform the cost analysis on the basis of partial equilibrium model. Subject to analyses were the trends in countertrade costs in market economy as well as in conditions of restricted market mechanisms. The author also presented the conditions and cost effects of the process of acquiring by countertrade the character of import quota and he indicated that in such a case there appears the tendency to a considerable cost increase. In conclusion the author remarks that in some cases the costs of countertrade for the country which introduces it may be relatively small owing to the decrease of direct costs and due to the fact that their considerable part has the character of internal transfer. The author stresses the existence within the economy of the transfer of income between consumers and producers in consequence of countertrade. He also indicates that some costs are of deadweight losses character and that their level depends on the degree of susceptibility of supply and demand to the changes of prices and on the process of acquiring by countertrade the character of import quota.Item Nowe przedsiębiorstwa uspołecznione w przemyśle drobnym(Wydział Prawa i Administracji UAM, 1989) Bittnerowa, Ewa; Gruszka, Piotr; Kamiński, RyszardIn the 1990s a dynamic process of creating new socialized enterprises in small industry may be observed, despite various general developmental obstacles encountered by that branch of industry. The impulse to investigate the problems of founding and development of such enterprises came from the lack of detailed analyses and theoretical generalizations of that process and from the shortage of knowledge of factors which influence or hinder that process. The purpose of the article is to distinguish and characterize the factors influencing the growth of new enterprises in small industry and barriers hindering their development. Among detailed problems are: the origin of new enterprises, their current activity and developmental prospects, and (their ties with their surroundings. The article utilizes the results of inquiries made in 21 enterprises founded between 1983 and 1987. The research proved that basic motives of development of new enterprises in small industry are the strive of their founders to satisfy their own professional ambitions and to improve their living standard as well as their willingness to meet social and market demand. It also turned out that main developmental barriers come from the shortage of material factors of production. Another source of difficulties was located in great complexity and instability of economic legislation. Despite the above obstacles, newly created enterprises show great developmental potential.Item Pojęcie identyfikacji w naukach społecznych(Wydział Prawa i Administracji UAM, 1989) Radziewicz-Winnicki, AndrzejThe aim of the article is to present three ways of interpreting the concept of "identification" used in social sciences writing. The article offers examples of interpretation by psychologists, sociologists and educationists. The author starts with the uses of the said concept in selected theories of marxism and interactionism. Despite different ways of interpretation, various authors arrive at conclusions which often lead to the same basic statement, i.e. to a conviction that an individual always strives to satisfy his/her own needs. If his/her actions are efficient (i.e. if they are successful or if they meet the expectations of an individual), then the appearance of identification processes with another person, a social group or a system of values becomes more probable.Item Czynnik ludzki w systemie warunków wydajności pracy(Wydział Prawa i Administracji UAM, 1989) Jagas, JózefModern literature concerning the socio-economic growth more and more often focuses its attention on a human being and on motives of his/her actions as well as values he/she represents. In developed countries basic factors of development are creative abilities and personal achivements of people. Thus more and more attention is devoted to the theory and practice of a so-called human factor. The author tries to define the notion of „human factor" and characterizes it as pertaining to a psychophysical set of inherent and acquired features. Then, he defines the place of a human factor in the system of conditions of work productivity. Finally, the author tries to quantify the impact of a human factor on work productivity on the basis of foreign writing and his own research.Item Warunki organizowania pracy w zespole(Wydział Prawa i Administracji UAM, 1989) Реnс, JózefIn search of higher productivity of work more attention should be paid to organization of work, which in our country is still very neglected. Its improvement is the cheapest and at the same time efficient way of attaining the growth of productivity. Nowadays, work should be organized so as to stimulate active and enterprising behaviours, to make it possible to utilize growing skills of employees and to encourage their cooperation and strive to success. The above requirements are to a considerable degree met by team forms of organization of work, used in many countries to achieve higher productivity and quality of work and quality of life at a workplace. Team forms of organization of work strengthen ties between people and create better conditions of their cooperation, based on the strive of individuals to achieve a comon aim and on their integration with the aims and activity of their enterprise. The countries which use the above method, especially capitalistic countries, treat it as an important source of growth of productivity, initiative and invention of employees and the source of their satisfaction from work. Considerable experience as well as significant economic and humanistic effects result from the use of that method in the USSR. In Poland, its application is in the stage of experiments; thus our experience is very limited and our results have little diagnostic value. Organizing team work requires that certain conditions be met. In particular, it is necessary to determine the size and composition of a team, to determine the scope and evaluation of its work, to work out just methods of distribution of remuneration, to verify the system of norms applicable in an enterprise, to organize the cost evaluation system, to define the rules of cooperation, and to improve the supply system. A failure to meet such conditions would distort the idea of team work and would increase the employees' reluctance to implement it.Item Homogeniczność kulturowa małżonków w świetle badań środowiskowych(Wydział Prawa i Administracji UAM, 1989) Augustyniak, HannaA full developmental cycle of a family includes the period of its formation and the shaping of procreational attitudes and behaviours. So far, relatively little attention has been paid to the problem of family formation by sociologists and demographers. The present article is an experimental study aimed at working out research tools which would allow to evaluate the links between social environment of a family, its cultural homogenity and a pattern of family formation in the period of modernization changes. The author focuses her attention on cultural environment of regional groups. These groups represent different degree of evolution of cultural transfer between the generations. One of the problems considered in the article is concerned with statistical identification of culturally homogenous groups. Patterns of family formation were analysed in both demographic and sociological aspects. Empirical material was gathered in the course of direct interviews among 3248 families living in Warmia, Mazury and Lubawa regions. The importance of the problem consists also in the fact that differentiation as to the number of children is of psycho-sociological background and is tightly connected with the period of family formation. The statistical analysis leads to the conclusion that homogenity is favourable to the retention of the specificity of the family formation pattern, whereas cultural heterogenity leads to its uniformity. It seems that changes in the.Item Przegląd piśmiennictwa RPEiS 51(3), 1989(Wydział Prawa i Administracji UAM, 1989)