Ruch Prawniczy, Ekonomiczny i Socjologiczny, 2008, nr 2

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    Spis treści
    (Wydział Prawa i Administracji UAM, 2008)
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2008) Brzozowska, Krystyna
    Katarzyna Sobiech, Partnerstwo publiczno- -prywatne w infrastrukturze drogowej w Polsce, Wydawnictwo Politechniki Poznańskiej, Poznań 2007, ss. 253.
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2008) Januszek, Henryk
    Gospodarowanie pracą we współczesnym przedsiębiorstwie. Teoria i praktyka, red. Wacław Jarmołowicz, Wydawnictwo Forum Naukowe, Poznań 2007, ss. 264.
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2008) Żabińska, Joanna
    Wiesława Przybylska-Kapuścińska, Polityka pieniężna nowych państw członkowskich Unii Europejskiej. Od transformacji przez inflację do integracji, Wydawnictwo Wolters Kluwer — Oficyna, Kraków 2007, ss. 513.
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2008) Jaskiernia, Jerzy
    Krystian Complak, Normy pierwszego rozdziału Konstytucji RP, Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław 2007, ss. 220.
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    PERSPEKTYWA FEMINISTYCZNA W BADANIACH NA TEMAT ZBIOROWYCH STOSUNKÓW PRACY
    (Wydział Prawa i Administracji UAM, 2008) Kubisa, Julia
    A feminist perspective in the research on collective industrial relations relates to the division of work in respect of gender and the differentiation between productive and reproductive work, conditioning the situation of men and women on the labour market and in trade unions. Therefore, a feminist perspective is a valuable complementation of the studies on industrial relations. It identifies other reasons for men and women to join the unions and the women’s types o f union activity that have been so far neglected. While the role for women has been traditionally confined to housework, the men’s roles in trade unions have been perceived as “male” or “manly” activities. A feminist perspective also points out to other aspects that are noteworthy, such as unequal pay for work of the same value or unpaid housework, and their influence of women’s activity in trade unions. The paper is an overview o f the literature on a feminist perspective in the research into collective industrial relations.
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    MIEJSKIE STRATEGIE I TAKTYKI WOKÓŁ KONCEPCJI PRAKTYKI ŻYCIA CODZIENNEGO MICHELA DE CERTEAU
    (Wydział Prawa i Administracji UAM, 2008) Miciukiewicz, Konrad
    This paper comments on the problems of urban space production with regard to Michel de Certeau’s theory of the practice of everyday life. It attempts to link the analysis of strategic actions of architects and town planners with the research on the spatial practices of the everyday and the individual cognitive mappings of urban space. The author points out the problematic character of the application of the dualistic social practice concept. On the one hand, as a result of various turns in urban planning (communicative, cultural, interpretative, etc.) the architects are more sensitive to the problems o f everyday life. On the other, due to the increasing fear of crime and terrorism, the practices of the urban dwellers have become more instrumental and rationalised.
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    ZACHÓD I ŚWIAT ISLAMU W ŚWIETLE KONCEPCJI SAMUELA HUNTINGTONA
    (Wydział Prawa i Administracji UAM, 2008) Brataniec, Katarzyna
    This paper discusses the main issues connected with the concept of civilization and comparative studies of civilizations. The analysis is based on Samuel Huntington’s conception of the clash of civilizations, which claims that contemporary confrontations between the Western and the Arab countries result from the nature of Islam as a different civilization, and, in particular, from the bellicose and hermetic character of this religion. Huntington follows the oriental understanding of Islam, in which Islam is presented in a stereotypical way, thus enhancing the negative images of the Muslims. This, in turn, underlines the mythical dimension of this paradigm. For both, the Orientalism and the Huntington’s paradigm, it is obvious to identify Islam with “original cultural aggressivity” whose subject has always been, first the Judeo-Christian, and currently the secular West.
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    PROBLEMY WYDZIELANIA PERYFERII SPOŁECZNO-GOSPODARCZYCH
    (Wydział Prawa i Administracji UAM, 2008) Bajerski, Artur
    “Periphery” is a multi-dimensional notion. The basic dimensions include geographical, economic and social (socio-cultural). The geographical aspect of a periphery is basically limited to its location relative to a centre. The economic and social dimensions, although focusing on economic and social characteristics, also rely on the location relative to a centre, as exemplified by the delimitation of a periphery in economic terms through its location outside the zone of the greatest economic activity. Because economic and social dimensions are wider and more complex than the geographical one, they constitute higher-order dimensions. Assuming socio-economic properties as the only criteria for the delimitation of a periphery is insufficient because the key element o f this notion is distance from a core. Usually, however, the location (distance) aspect tends to be ignored. One reason may be the popularity of this term which leads to its intuitive use. Another is the fact that the inclusion o f distance into the procedure of periphery delimitation is rather troublesome because it involves the knowledge of the effect that the distance from the centre has on the socio-economic situation. The distance aspect, however, can be ignored in the case of a borderland. Therefore, peripherality can be defined by purely socio-economic variables. The division into a core and a periphery is usually dichotomous, i.e. one where an area is classified either as a core or as a periphery. An advantage of the dichotomy is its simplicity, and a drawback, lack of intermediate categories. An opposite o f a dichotomous division is the conception of a continuum, but it would be too unwieldy to use since the number o f classes distinguished would equal the number o f units analysed. Thus, the right approach seems to be the delimitation of several classes of peripherality as this would facilitate an analysis and the readability of its results. Moreover, it gives more emphasis to the intermediate categories, which also become part of the study. The construction of multi-class divisions, however, involves the use of “hard” data, mainly socio-economic, which may lead to a periphery appearing somewhat “de-socialised” and “de-cultured”. The notion of a periphery and the research procedure aiming at its identification need some revitalisation which should embrace not only the inclusion o f distance from the centre and a departure from the centre-periphery dichotomy in favour of multi-class divisions, but also the working out of indicators defining peripherality.
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    IMPULSY I INSTRUMENTY MONETARNE W KSZTAŁTOWANIU RELACJI MIĘDZY BANKIEM CENTRALNYM A SEKTOREM BANKOWYM
    (Wydział Prawa i Administracji UAM, 2008) Przybylska-Kapuścińska, Wiesława
    Monetary impulses consist in a change in the monetary category and are the effect of the central bank’s administrative decisions. They take the form of changes in the size of the monetary policy instruments applied. Those impulses are generated by the central bank using the monetary policy transmission mechanism and they predominantly induce certain behaviours of banking institutions. Consequently, the banking sector reacts to the monetary instruments being used by creating a more or less favourable financial environment for the real sphere, i.e. businesses and households. The type of monetary policy instruments, when they are applied as well as the power exercised through them by a central bank shape in different ways the relations of dependencies and independencies within the banking sector and its sensitivity to monetary impulses in different liquidity conditions.
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    WSPÓLNOTOWA OCHRONA WZORÓW DLA CZĘŚCI ZAMIENNYCH
    (Wydział Prawa i Administracji UAM, 2008) Kępiński, Jakub
    Protection of the visible spare parts used to repair a complex product in order to restore its original appearance has been for years an issue of vivid discussions in the European Union. Generally, it is a dispute involving large motor car manufactures (owners of exclusive rights to the registered industrial designs) and independent (not related to motor car concerns) spare part producers, in which the former demand protection, arguing that the exclusive rights granted to them constitute compensation for their outlays, while the latter claim that such protection should be abolished because the spare-parts-market has been monopolised, thus making them incapable of competing legally with manufacturers of original spare parts. The Polish legislator has resolved the dispute in a similar way as some other EU member states, i.e. by incorporating a repair clause in the Act on industrial property and excluded protection of the manufactured good as an element of a complex one used to restore its original appearance. The paper refers to the discussion that has been still going on within the EU, and which had influenced the decision o f the Polish legislator. The author presents different concepts and solutions proposed in recent years and the current standpoint of the deciding bodies in the EU. The repair clause in Polish legislation is not subject of those considerations.
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    PRAWNOMIĘDZYNARODOWA ODPOWIEDZIALNOŚĆ ZA SZKODY TRANSGRANICZNE W ŚRODOWISKU - PROBLEM PREWENCJI
    (Wydział Prawa i Administracji UAM, 2008) Zbaraszewska, Anna
    At its fifty-third session (2001), the International Law Commission finally adopted a complete text of the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities. The Articles apply to activities not prohibited by international law, which involve a risk of causing significant transboundary harm through their physical consequences. “Transboundary harm” means harm caused in the territory of, or in other places under the jurisdiction or control of a state, other than the state of origin, whether or not the states concerned share a common border (Art. 2c). The scope of the Draft Articles encompasses the activities involving a low probability of causing disastrous transboundary harm or a high probability o f causing significant transboundary harm. International liability arises only when there is a physical link between such an activity and its transboundary effects. Art. 3 of the Prevention Draft imposes a general obligation to take all appropriate measures to prevent significant transboundary harm, or at any event, to minimize the risk thereof. The state of origin shall procure prior authorization for any activity within the scope of the Draft Articles carried out in its territory or otherwise under its jurisdiction or control. Any decision in respect of the authorization will be based on an assessment of the possible risk o f transboundary harm caused by that activity, including an environmental impact assessment. If the assessment indicates a risk of causing significant transboundary harm, the state of origin shall provide the states likely to be affected with timely notification o f the risk. The state of origin and the states likely to be affected shall enter into consultation, at the request of any of them, with a view to achieving acceptable solutions regarding measures to be adopted in order to prevent significant transboundary harm. Due diligence is the criterion to assess whether the state has complied with its obligations under the Prevention Draft.
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    ZAKRES UDOSTĘPNIANIA AKT SPRAWY W POSTĘPOWANIU ADMINISTRACYJNYM
    (Wydział Prawa i Administracji UAM, 2008) Kmiecik, Zbigniew R.
    In administrative proceedings, files o f a case are accessible only to the parties, their attorneys and other participants with the rights of a party. The scope of the duty to make the files accessible to the parties is determined first o f all by the notion “files of a case”, which may be interpreted in different ways. The doctrine accepts a broad (“substantive”) understanding of this notion. This duty is also delimited by the “formal” factors: a technical, and a legal one. Thus, it refers only to files which are, at a given moment, available, save for files protected as a state secret, files excluded for the sake of an important public interest. Public interest may be a reason for excluding files which contain a classified information. Accessibility of files which contain information constituting some other type o f secret protected by law (business secret, professional secret) is disputable. De lege lata there is no legal ground for the refusal to make such files accessible to parties.
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    SWOBODY CZĄSTKOWE A SWOBODA DZIAŁALNOŚCI GOSPODARCZEJ
    (Wydział Prawa i Administracji UAM, 2008) Kołacz, Jacek
    The main issue discussed in the paper are the so-called “partial freedoms” , treated as components of the constitutional freedom to carry out economic activities. The focus of the analysis is on the following aspects: freedom of establishment; freedom of choice regarding to the kind o f business; freedom of choice of the legal form of the enterprise; freedom of choice of the mode o f performing activities; freedom of determination of temporal and spatial frames of business; freedom of financing; freedom of competition; freedom of contracting. The paper is an attempt of clarification and delimitation o f the inner boundaries of the freedom o f economic activities - the question that could be a useful device in the assessment o f legal limitations of that freedom arising from the national legal system.
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    MAŁŻEŃSKIE USTROJE MAJĄTKOWE W STANACH ZJEDNOCZONYCH AMERYKI PÓŁNOCNEJ
    (Wydział Prawa i Administracji UAM, 2008) Stępień-Sporek, Anna
    Two systems of marital property exist in the United States, namely separate property system and community property system. In separate property states each spouse owns property separately. In community property states each spouse is entitled to his or her separate property and both spouses own jointly and equally community property. Each system of marital property has its own rules concerning management, liability for debts or spousal rights at divorce and at death. The separate property system exists in the majority of the states, however in many states it has been altered in ways that make it closer to the community property system. Although there are some similar rules, there are still many differences between the two systems, which become more pronounced in the event of a divorce or death of one of the spouses. Certain problems also appear when spouses travel and change residence between the states.
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    REGULACJA INSTYTUCJI MAŁŻEŃSTWA W PRAWIE KANONICZNYM I ŚWIECKIM
    (Wydział Prawa i Administracji UAM, 2008) Jędrejek, Grzegorz
    The purpose o f this paper is to present the difference between the meaning of the term “marriage” in the civil and canon law and to examine the relation between those two systems of law. It should be conceded that the current regulation of marriage in civil law is consistent with the rule of autonomy and independence o f the Roman Catholic Church and the state as laid down in article 1 of the Concordat. The jurisdiction divisibility rule of civil law courts and church courts laid down in art. 10 § 3Ł 4 o f the Concordat makes reciprocal recognition of judgments rendered by those courts impossible. However, it is not completely clear i f the civil law courts could render judicial assistance to church courts or i f the agreement negotiated in the church court could be recognized and upheld by a civil law court. Both those questions remain open. The fact that the institution o f legal separation has been recently established in the Polish civil law system should be regarded as a positive development. A question remains, though, whether the existing provisions of the binding family law do not contain, by any chance, solutions that might be found inconsistent with the binding principle in Polish law of marriage durability.
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    ZAKRES SWOBODY INTERCYZY W ZNOWELIZOWANYCH PRZEPISACH KODEKSU RODZINNEGO I OPIEKUŃCZEGO
    (Wydział Prawa i Administracji UAM, 2008) Sokołowski, Tomasz
    The most recent amendments to most of the provisions of the Polish matrimonial property law (2005) and the new contents of article 47 § 1 of Polish family and guardianship code support the claim that there is a need for a new construction of this legislation. The new interpretation of the amended provisions presented in this paper has considerably enlarged the scope of freedom of the matrimonial agreement, which corresponds with the new social and economic situation in Poland. The author postulates, firstly, to take into consideration the admissibility of a conditional matrimonial agreement, the matrimonial agreement for a specific period of time and the mixed matrimonial agreement that combines the enlargement of common property with the limitation of its scope, but only in relation to different periods of time. Secondly, there are also a number of important legal and social factors that support the claim for consideration of the admissibility of a combined matrimonial agreement which relates directly to one legal relation. This theory is supported in particular by recent amendments to the legislation of our neighbours: Russia and the Czech Republic.
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    EGALITARYZM CZY ZASADA POMOCNICZOŚCI W FINANSOWANIU OPIEKI ZDROWOTNEJ
    (Wydział Prawa i Administracji UAM, 2008) Łączkowski, Wojciech
    The progress in medicine has given rise to a rapid increase in the costs of health care, and today many states are finding it increasingly difficult to finance them. Although financial difficulties are primarily encountered by poorer states, those with more means are also beginning to feel the burden of high cost o f medical services. Therefore, it will not be out of place even to suggest that we are currently experiencing a crisis in the financing of health service. This crisis has been the result of the egalitarian manner in which medical costs have been reimbursed or covered from public funds in a system in which everyone, regardless their financial status, has been an equal beneficiary of the system. Despite continued efforts to repair the existing status quo in health care, not much has been improved, and the few reforms have not changed much, save for a decision to increase public funds for medical services (which usually also meant higher personal health care contributions) or an introduction o f organisational changes which only marginally improved the situation. However, as experience shows, such measures are not a satisfactory solution as they are incapable o f stopping the growing costs of medical treatment, or the pathologies generated by the egalitarian system of financing the health care sector. In the author’s opinion, the only solution in this crisis situation is replacing the obsolete system based on the egalitarian beliefs with the principle o f subsidiarity. According to that principle, the costs of ALL medical services should be refinanced fully from the public funds but only and exclusively in the case o f those patients who really need them and cannot otherwise afford them. Further, it should be of secondary importance whether the institution which has provided the service was public of private. The remaining citizens should be obliged to participate partially or fully in the cost of treatment, while the existing health care contributions should be classified as the tax for the poor. Only such a solution seems to be logical, just and fair, and not causing a permanent havoc to public finances. Its implementation would, however, require an amendment to the Constitution of the Republic o f Poland, and more specifically its article 68 clause 2. Following that, a number of little popular but necessary, and very difficult detailed issues would need to be resolved and implemented. All we need is hope that a brave legislator will eventually undertake to implement the necessary long-term reforms in the best interest of the state and its citizens.
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    O FORMACH KONTROLI KONSTYTUCYJNOŚCI PRAWA PRZEZ SĄDY
    (Wydział Prawa i Administracji UAM, 2008) Hauser, Roman; Trzciński, Janusz
    Decisions of the Constitutional Court (Trybunał Konstytucyjny), the Supreme Court and the Supreme Administrative Court have demarcated the admissible limits of control that courts may exercise over the constitutionality of law. Those limits are also guarantees of the integrity of competences of the Constitutional Court and a good example of different forms in which the Constitution may be directly applied. The most extreme views i.e. that under no circumstances is a court authorised to control (or supervise) the unconstitutionality of a given regulation/provision, or that it may do so in respect of each individual case, have been practically eliminated. Moreover, adoption of the latter view would have resulted in a refusal to implement and enforce e.g. a statutory provision, thus enabling direct application o f the Constitution. Taking as an example the jurisdiction of the Supreme Administrative Court, those admissible limits in which the constitutionality of laws may be controlled (and therefore the Constitution directly applied), being a peculiar compromise between the two extreme positions described above would be as follows: 1) regarding the constitutionality of a statute, the rule is that in case of doubt, a court is obliged to refer the matter to the Constitutional Court, unless: a) it is a case o f so-called secondary unconstitutionality of the provision b) the provision is clearly and explicitly unconstitutional; 2) regarding the constitutionality o f fundamental acts (ordinances), the long established opinion has been that courts may review their compliance with the Constitution in the course o f the matter under revision, with effect only for that particular matter. It is obvious that an alternative for each court shall always be a referral of the matter to the Constitutional Court rather than formulating an independent opinion on the unconstitutionality of an ordinance. This decision, however, shall always be made by the court in question.