Ruch Prawniczy, Ekonomiczny i Socjologiczny, 2005, nr 2
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Item SPIS TREŚCI(Wydział Prawa i Administracji UAM, 2005)Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2005) Gomułowicz, AndrzejAntoni Hanusz, Podstawa faktyczna rozstrzygnięcia podatkowego, Zakamycze 2004, ss. 282.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2005) Zaborski, AdamIzabela Gawłowicz, Marzena Anna Wasilewska, Międzynarodowa współpraca w walce z przestępczością, Wydawnictwo Naukowe Uniwersytetu Szczecińskiego, Szczecin 2004, ss. 170.Item PRZEGLĄD PIŚMIENNICTWA(Wydział Prawa i Administracji UAM, 2005) Łazuga, WaldemarJan Sandorski, Bohdan Winiarski. Prawo, polityka, sprawiedliwość, Magistrii Nostrii. Profesorowie Wydziału Prawa poznańskiego Uniwersytetu, pod red. Andrzeja Gulczyńskiego, Wydawnictwo Poznańskie, Poznań 2004, ss. 152.Item PRÓBA EMPIRYCZNEJ WERYFIKACJI NEOKEYNESOWSKIEGO MODELU FUNKCJONOWANIA RYNKU PRACY. PRZYPADEK POLSKI I CZECH(Wydział Prawa i Administracji UAM, 2005) Bludnik, Izabela; Wallusch, JacekNominal rigidities are the cornerstone of the New Keynesian microeconomics. Sticky prices and wages are the determinant of the effectiveness of the demand regulation economic policy of a state. The paper presents an empirical analysis of the rigidities in the Czech Republic and in Poland. Using the cointegration-based impulse response analysis and a variance decomposition we have found little evidence proving the assumptions typical of the New Keynesian approach although the prices and wages were found to be more flexible in Poland. However, the obtained results do not challenge the theoretical foundations of the early New Keynesian models: one must take into consideration the specific problems relevant to the countries under transition.Item PODATEK DOCHODOWY JAKO REGULATOR DOCHODÓW OSÓB FIZYCZNYCH W POLSCE1(Wydział Prawa i Administracji UAM, 2005) Małecka, EdytaThere has been much discussion in Poland recently concerning the conceptions of the personal income taxation system. From time to time we can hear a new proposal calling for a replacement of the present progressive personal income tax with the flat one. The followers of the flat tax obviously point out to the advantages of the latter one, but it is interesting that none of the high economically developed states has opted for that solution so far. The main aim of the paper was to compare the two conceptions of the personal income taxation: the progressive one and the flat one, and to analyse the impact of either on the distribution of the present personal income. In the first part of the paper the main characteristics of the flat and progressive personal income tax are presented while in the second part the present tax scale is described against the nominal and effective related to it. Finally, the author makes a comparative analysis of the personal income tax scales existing in the OECD countries. The data used in the paper came from the information of the Polish Ministry of Finance.Item PRODUKTYWNOŚĆ PUBLICZNYCH INWESTYCJI INFRASTRUKTURALNYCH(Wydział Prawa i Administracji UAM, 2005) Rosik, PiotrThe results of the empirical research into the effects of public infrastructural investments on the growth of productivity that can be found in literature are not uniform. The first works initiated by Aschauer in 1989 were based on the Cobb-Douglas production function and indicated a certain elasticity of the product with respect to public fund investment ranging between 0.30-0.50. This approach, however, was criticised, both for its reasoning logic and for the econometric method it had used. The main criticisms included the following: - Firstly, the estimates of the public capital may be incorrect and the term ‘infrastructure’ is a vague one with no agreed definition. - Secondly, the conversion of the production function into the cost function, as well as an attempt to estimate that function for regions within a country implies a much lower return from the public capital. - Thirdly, there are a number of econometric issues, such as eg. the direction of causation and the occurrence of a spurious regression. - Fourthly, the long-term supply effects of infrastructural investments may be exactly opposite to the short-term demand effects. - Fifthly, the way in which infrastructure is managed and priced may be as important as the provision of infrastructure. The conclusion is that the public infrastructure, although very important for the development, may only be regarded as one of many production factors and only in combination with other factors, such as the human capital or knowledge can they lead to a substantial growth in productivity.Item WSPÓŁCZESNE ROZUMIENIE POJĘCIA REPREZENTACJI POLITYCZNEJ (ZARYS PROBLEMU)(Wydział Prawa i Administracji UAM, 2005) Szymanek, JarosławThe article constitutes a review of the contemporary concepts of a political representation. The phenomenon of representation may be construed in three different ways. Firstly, in the philosophical approach, such a representation denotes the duality of existence, something that is present and absent at the same time. The essence of representation in the philosophical approach stems basically from the fact that each represented unit or each individual lives and thinks (i.e. functions) in the person who is his or her representative, and through the trust and confidence in that person, such an individual identifies his or her will with the will of the person who represents him or her. The second possible construction of representation is a legal approach, in which a notion of representation constitutes a legal competence that permits one to make decisions of importance for the state. In such a case the competence of the electoral body is the authority to designate representatives, the competence of whom is then to perform public functions that are reserved for a representative organ. Finally, the third possible interpretation of representation is within its sociological understanding. Here, on the one hand a representation is seen as „responsible governments”, while on the other hand it is perceived as a „government based on the public opinion”. In the first case such a representation means a government exercised by the elite chosen in democratic elections, liable to the electorate who has chosen its members because of their politics and the policies they pursue. It is necessary here to complement the concept of representation with a wording content compliant to the principles of the state policies and social opinions. Such an approach is close to the broadly understood, stricte sociological, approach, namely the theory of the „government of the public opinion”. That theory emphasises the relations between those who govern and those governed, the differences and similarities between them and their behaviour. It is so because those governments are to base on the public opinion and are to be, sui generis, a form of aggregating the postulates and expectations articulated by the public in respect of the manner in which the state’s politics is being carried out.Item UŻYTKOWANIE WIECZYSTE NIERUCHOMOŚCI KOMUNALNYCH I MOŻLIWOŚCI JEGO PRZEKSZTAŁCENIA W PRAWO WŁASNOŚCI W KONTEKŚCIE DOCHODÓW BUDŻETOWYCH DUŻEGO MIASTA(Wydział Prawa i Administracji UAM, 2005) Kotlińska, JaninaThe institution of a perpetual use has become a vital element of the property management possibilities available in Poland. At the same time it ensures local governments a source of regular revenues, thus securing a stable financial base for budgetary planning. However, since such a form of funding is not very common in the European Union, Polish legislation has been gradually adjusting its solutions to those adopted in other member states. Between 1998 and the end of 2004 the binding regulations in Poland allowed one to transform the perpetual use of property into an ownership title either for a fee (being a price of the property paid at the date of its purchase), or they made property available on preferential basis (by effecting certain prescribed payments), or completely free, for no fee at all. Once this procedure has been stopped, one may expect that the local governments in Poland will eventually lose a significant source of income. So far, however, at least looking at the budget of the City of Poznań, the adverse effects of the new legislation being currently implemented have not been noticed.Item EKONOMICZNA TREŚĆ INSTYTUCJI LEASINGU(Wydział Prawa i Administracji UAM, 2005) Kramarek, MaciejFinancial lease is an alternative to a cash or hire purchase and is a more flexible way of acquiring the possession of the lease object, other than ownership. The possibility of adjusting to the current needs is of a significant practical value, but at the same time it poses a substantial difficulty in defining the constituent features of a financial lease. In order to understand its essence, two related instruments were taken as a point of reference: a lease and a rental. It was assumed that the essence of a financial lease lies in the set of features that provide for a different manner of accessing a given object, being economic functions allowing the use of the object rather that a legal form of its ownership. The results of the analysis allowed a statement that the question of the essence of a financial lease consists in considerations regarding the nature of the relations between the purchase price of the object, its market value, the amount of rent payable, and the selling price. The determination of the economically sound, or cost efficient configuration of the above parameters has become a tool used in the revision of opinions on the concept of a capital instalment as a criterion used to classify different types of lease. The differentiation between the determiners specifying the lease instalments made it possible to formulate the concluding remarks as to the essence of the financial lease.Item PROBLEM WAŻNOŚCI W HABERMASOWSKIEJ TEORII UNIWERSALNEJ PRAGMATYKI(Wydział Prawa i Administracji UAM, 2005) Cyrul, WojciechThe paper deals with a critical reconstruction and analysis of the Habermasian theory of the universal pragmatics and the discourse, and focuses on the issue of the influence of these very theories on the concept of normative validity. There is also an attempt to analyse the limits of the discursive theory on the ground of the criticism concerning the concept of the discourse ethic and the concept of an ideal discourse. Some light is consequently cast on the applicability of the theory to the legal discourse. The paper is an attempt to present some arguments which show that universal pragmatics and the Habermasian theory of the discourse provide an important conceptual framework for the discussion concerning the problem of legal validity.Item CHARAKTER PRAWNY UDZIELENIA PROKURY(Wydział Prawa i Administracji UAM, 2005) Grykiel, JarosławThe aim of the paper is an attempt to determine the legal nature of establishing a proxy, or giving a power of attorney, and in particular to identify the recipient of the power of attorney granted by way of a statement of will of the person establishing a proxy. Further, the role of a proxy in the creation of an effective power of attorney is analyzed. Issues such as the form, contents, legal effects of a power of attorney granted, or its active or passive legitimization are not discussed. In the author's opinion, the granting of a power of attorney is a one-sided legal act the effects of which exist independently of the internal relations between the person establishing a proxy and the person to whom a power of attorney is given. A statement of will of the person establishing a proxy is made in favour of the person receiving the power of attorney of which he is only recipient. Accepting the granted power of attorney is an intrinsic element of the proxy being established and effective. Such an acceptance consists in an inclusion in the statement of will of the person establishing a proxy of the consent of the recipient of the proxy to receive the power of attorney so given. Such a statement, however, does not need to be specifically addressed and submitted, and may take a form the proxy so established commencing to exercise the granted powers of attorney.Item POTRĄCENIE USTAWOWE W STOSUNKU DO CES JONARIUSZA W ŚWIETLE PRZEPISÓW O PRZELEWIE WIERZYTELNOŚCI(Wydział Prawa i Administracji UAM, 2005) Gutowski, MaciejThe paper deals with a possibility of a statutory compensation charged upon an assignee of the assigned debt- The aim o f the legal regulation is to establish a certain protection o f the debtor who has no means or power to influence the assignment and who should not bear the risk of transferring the rights without his ¡yiowledge and consent. Further, there is no protection of the certainty of the legal transaction or the assignee's rights who is acting in good faith and takes the position of a creditor, towards whom the debtor does not have any counter, off-balancing receivables. The paper offers a number of possible solution* to compensate the assignment o f receivables in individual phases and evaluates the binding legal regulations regarding that issue.Item OPODATKOWANIE UDZIAŁU W ZYSKACH SPÓŁKI OSOBOWEJ NA GRUNCIE UMÓW O UNIKANIU PODWÓJNEGO OPODATKOWANIA(Wydział Prawa i Administracji UAM, 2005) Jamroży, MarcinThe subject of the paper are the taxation rules of a partner’s income earned in a partnership established in another state. The paper focuses predominantly on the specific dogmatic problems having their origin in the differences resulting from domestic tax laws of member states who are parties of respective bilateral tax treaties concerning the treatment of a partnership as a subject to income taxation. The recommendations of the OECD that the state which applies the credit method is obliged to give credit for the source tax levied on partnership may be considered as convincing. As of 1 January 2005 the Polish internal tax considers a foreign partnership as a subject to taxation if the tax law of the state where such a partnership is registered treats it as a legal person.Item KONSTYTUCJA DLA EUROPY - KONSTYTUCJA BEZ PAŃSTWA?(Wydział Prawa i Administracji UAM, 2005) Dauses, Manfred A,On 29 October 2004 the Constitution for Europe was solemnly signed in Rome. However, it still needs ratification by each of the 25 member states, of which at least 10 will hold a national referendum to decide whether the Constitution should be adopted. The idea of the Constitution for Europe is to deepen the process of European integration, to strengthen the democratic principles, to bring the European Union closer to the European citizens, and to increase the clarity of the functioning of the Union. The term: ‘Constitution for Europe’ may sounds pompous and indeed, in a political context, it may give rise to strong controversies because constitutions are normally characterised by a certain elementary identity, being, at the same time, a showcase of their respective sovereign states. And yet, the European Union is not, even does not display some features of a budding state, a state as would be construed within the classical definitions functioning in public law. In the case of the EU, neither the state territory, nor the nation is of primary character, but each of those has only a derivative nature. The territorial scope of the applicability of the Union legislation is nothing else but a sum of the territories of the member states. The so-called European ‘citizenship’ turns out to be an artificial creation, which can only be ‘attached’ to the citizenship from another state and as such it does not remove or supersede the latter. Further, also the criterion of the state authority is burdened with a structural deficit because it lacks the character of the competence o f competence, which still remains in the hands o f the member states being the 'rulers of the Treaties’. The aim of the paper, apart from the presentation of a new organisational order of the European Union as a legal entity, is to identify the main prospects and chances before the emerging European federal state. The Basic Rights Chart included in the Constitution, solemnly proclaimed on 8 December 2000 in Nice, constitutes a cornerstone in the process of building a constitutional order in Europe.Item REPARACJE WOJENNE A REZYGNACJA Z NICH: NIEMIECKO-POLSKIE STOSUNKI Z PERSPEKTYWY HISTORYCZNO-PRAWNEJ(Wydział Prawa i Administracji UAM, 2005) Eckert, JornItem OBYWATELSTWO TZW PÓŹNYCH PRZESIEDLEŃCÓW NIEMIECKICH1. ROZWAŻANIA NA TLE PRAWA MIĘDZYNARODOWEGO(Wydział Prawa i Administracji UAM, 2005) Muszyński, MariuszCitizenship is a legal tie that connects a person to a certain state. Although, as a rule, decisions regarding citizenship lie within the exclusive competence of the state, one can observe an increasing role of the international law in that matter, and consequently a limitation of sovereign rights of the state which is now forced to take into account the will of the person in question in matters related to the granting, changing or depriving of citizenship. The only one, exceptionally accepted possibility, is a collective regulation of citizenship in the case of a territorial succession. This was the case regarding Polish-German relations after the acquisition by Poland in 1945 of parts of the former Third Reich, and the consequent international obligations arising from Potsdam-Yalta regulations which called for displacement of German citizens beyond the new borders. In the year 2005, already 60 years after the 2nd World War, the issue of citizenship of persons who had left for Germany after 1945, came back as an off-shot of the property-reparations dispute and has now constituted a certain political problem. The paper is a legal analysis of the post-war national verification pursued within the territories attached to Poland as a consequence of the Potsdam displacement decisions as well as the later deprivations of Polish citizenship exercised on those who, between 1945 and 1989, had left Poland to live in either of the two German States. It is indicated, against the background of the post-first- -world-war solutions regarding national questions (Versailles standard), that this problem should be looked at from the point of view of Potsdam regulations. In the paper, an assessment of the national regulations is pursued in the light of international law. It covers an analysis of the official legislation of the Polish People's Republic (1945-1989), the unpublished international and national acts and the quasi-precedent judiciary of the Polish courts. Its aim is an attempt to answer the question of the factual status of the said persons in the Polish law today. The conclusion of the analysis indicates that the international and national legal acts are in conflict as there are certain legislation gaps and political misconceptions of successive Polish governments, including the present one. Further, it is proved that from the legal point of view, the current Polish foreign politics according to which the issue of the German „displaced” citizenship constitutes „Poland’s internal problem” is wrong and disadvantageous. The solution should rather lead to force Germany to regulate the issue on the basis of international agreements in the real interests of Poland i.e. the confirmation of the deprivation of their Polish citizenship of those „displaced” . Keeping the current status quo may result in a verification of Potsdam regulations and will be a victory of the German policy seeking of the revision of the obligations and penalties for the aggression and the war.Item UZNANIE ZAGRANICZNYCH POSTĘPOWAŃ UPADŁOŚCIOWYCH W PRAWIE EUROPEJSKIM(Wydział Prawa i Administracji UAM, 2005) Zedler, FeliksFirst, the paper presents the manner in which bankruptcy proceedings have been regulated in European law. Further, proceedings classified in European law as bankruptcy proceedings are discussed. Pursuant to EU Regulation No 1346/2000 of 29 May 2000, bankruptcy proceedings instigated in one member state are, by operation of law, subject to recognition in the other member states. The paper analyses the legal consequences of such recognition as well as possible instances of a refusal of recognition of either the foreign bankruptcy proceedings or the very proceedings themselves.Item ROLA TRYBUNAŁU KONSTYTUCYJNEGO W OKRESIE PRZEMIAN USTROJOWYCH A PROBLEM AKTYWIZMU SĄDOWEGO(Wydział Prawa i Administracji UAM, 2005) Smolak, MarekOne of the most interesting issues discussed within the so called transitional constitutionalism is court activism. Court activism is a phenomenon of extending judicial decisions, and in particular constitutional tribunal decisions, onto the distribution of a variety of resources. There are four main reasons for the increasing activism of courts: the need to legitimise the functioning of other organs of public authority, the transfer of the political and social legislative role to the levels at which it is executed, legislative inflation, and a greater functional and cultural differentiation of social systems. The main issue of the activism of constitutional tribunals is related to the question whether their increased role in the distribution of resources would have or has any significant impact on the functioning of parliamentary democracy. Analysing the above issue on the example of granting various privileges to certain social groups by way of judicial decisions, the author has formulated three conclusions: the relation between the legislative and a constitutional tribunal largely depends on the unarticulated assumptions about the very nature of democracy. Therefore it should be postulated that the activity of court (or the constitutional tribunal) should be limited only to those cases, where, for some reason, the parliament is unable to amend the existing laws, and its inactivity or inertia would result in gross grievance and harm to the otherwise due recipients of a given norm, or would lead to other extraordinarily adverse effects. Secondly, the activism of constitutional tribunals is to a great extent determined by the way in which the political community perceives the place and role of Parliament in the state system of the execution of public authority. Thirdly, the involvement of courts or the constitutional tribunal in the execution of public authority reflects the stabilization in the state. It may be assumed that where the social, economic or political stability increases, the role of constitutional tribunals in the creation of political or economic relations in the state will gradually diminish.