Ruch Prawniczy, Ekonomiczny i Socjologiczny, 2005, nr 3

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    SWOBODA DZIAŁALNOŚCI GOSPODARCZEJ A SYSTEM ZASILANIA KAPITAŁOWEGO PRZEDSIĘBIORSTW
    (Wydział Prawa i Administracji UAM, 2005) Kubiak, Jarosław; Nowaczyk, Tomasz
    The external environment of an enterprise, shaped by the state, should support and facilitate the realisation of constitutional principles, including the freedom of economic activity. One of the necessary conditions for the realisation of this principle is the availability of capital resources for businesses at every stage of their development. The paper identifies the gaps existing in the system of capital supply for enterprises which limit the availability of equity capital or bank loans, or hinder the access to the market of public funding. Their impeding role as barriers for the functioning of an enterprise differs at each individual stage of the development of an enterprise. The effects of the identified gaps have been presented, including an increase in the economic activity risk resulting from the substituting of equity capital by lease, and the phenomenon of fixed capital redistribution by trade credit. Attempts to diagnose the causes of the occurrence of gaps in the capital supply system have been made to show that one of the important factors that weaken the principle of freedom of economic activity are the very attitudes of the entrepreneurs themselves.
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    KOSZTY AGENCJI A EFEKTYWNOŚĆ WEWNĄTRZKORPORACYJNYCH RYNKÓW KAPITAŁOWYCH
    (Wydział Prawa i Administracji UAM, 2005) Jantoń-Drozdowska, Elżbieta; Zembski, Michał
    The aim of this article is to identify the risk of loosing efficiency of internal capital markets as the result of opportunistic behaviour represented by agents. An internal capital market institution exists in most transnational corporations. The few publications available in economic literature allow us to draw a conclusion that the role of these markets as the source of funds for financing investments is still growing. It is also crucial to know the factors which influence the efficiency of their operations, as they enable movements of substantial funds in a relatively short period of time, which, in turn, stimulates a dynamic growth of an organization in an international context. On the other hand, however, this creates the risk of opportunistic behaviour amongst those members o f the organization who may influence the quality of information transferred onto higher levels of corporations where key decisions are made. The wish to control the largest possible number of corporate resources as well as the realization of individual goals at owners' cost lead to an inefficient usage of financial resources and implementation of investment projects which do not guarantee the highest return ratios. Treating the agency cost theory as a research platform will allow to analyse this issue in the light of decision makers' motivations, and to draw a conclusion that alongside the opportunities which these markets open, they also create many threats which have their roots in human nature.
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    WPŁYW ASYMETRII INFORMACJI NA DECYZJE FINANSOWE PRZEDSIĘBIORSTW
    (Wydział Prawa i Administracji UAM, 2005) Skowroński, Adam
    The article deals with the information asymmetry in the capital structure decisions of a corporation. Such an information asymmetry exists between different groups of stakeholders. Because the interests of those groups are connected with the financing of a company (managers on the one hand, owners and creditors on the other) a thesis may be put forward that an information asymmetry interferes with the financial decision making process. The consequences of the information asymmetry can be divided into two groups: direct and indirect ones. Direct consequences are the deviations from the optimal investment programme. There are two types of such deviations: underinvestment, meaning a rejection of the positive NPV investments and overinvestment, meaning an implementation of negative NPV investments. The stakeholders' action to minimise the consequences of the information asymmetry can be defined as indirect consequences. The most important indirect consequences include: asset substitution, i.e. replacement of safe assets with riskier ones, signalling, i.e. use of the capital structure to advise outsiders on the true situation of the corporation and creation of capital sources hierarchy to minimise the direct consequences of the information asymmetry. The information asymmetry nowadays, despite the development of technical possibilities of information transfer, has become a more serious problem leading, in a micro scale, to a decrease in the market value of the corporation and, in a macro scale, to the reduction of the effectiveness of capital allocation.
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    WYZNACZNIKI POLITYKI KREDYTOWEJ BANKÓW W ŚWIETLE POLITYKI PIENIĘŻNEJ BANKU CENTRALNEGO
    (Wydział Prawa i Administracji UAM, 2005) Jaremko, Małgorzata; Przybylska-Kapuścińska, Wiesława
    The lending activity carried out by commercial banks is a medium through which impulses sent by the central bank are transferred to their potential recipients. However, for this activity to be effective, banks must operate in an appropriate external environment in which the institutions creating the transmission mechanism behave in a certain prescribed manner. In the paper we classify lending activities of banks as well as point out their considerable variety and different scopes of influence depending on the phase (I-IV) of the transmission mechanism of the lending channels. We present relations between different factors that influence the functioning of the lending channels. We take into consideration external and internal, macro- and micro-economic, legal and institutional factors. We pay a special attention to the factors influencing the efficiency of the transmission mechanism of the central bank, which affect bank’s liquidity, the number of loans granted and demand for household and business loans.
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    Spis treści
    (Wydział Prawa i Administracji UAM, 2005)
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    DEFINICJA TERMINU „WZORZEC UMOWY KONSUMENCKIEJ”
    (Wydział Prawa i Administracji UAM, 2005) Rejdak, Monika
    The article is dedicated to one of the important terms o f the consumer law i.e. standard terms in consumer contracts, which in Polish civil law is functioning as “wzorzec umowy konsumenckiej”. In order to propose its definition, the author analysed the civil code provisions regulating the institution of standard terms (art. 384), the unfair terms in consumer contracts (art. and the provisions of the Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. Based on the institution of standard terms in consumer contracts, three major issues have been flagged out: 1) the content of standard terms in consumer contracts; 2) the manner of their edition; 3) the medium of transfer. It has been concluded that only the content of the standard terms in consumer contracts is controlled by the institution of unfair terms in consumer contracts (art. 385'-3853 k.c.). In the author’s opinion the Civil Code has introduced the principle of freedom in regard to the way both of edition (art. 384) and the type of the transfer media (art. 60). Further, the author states that the term “standard terms in consumer contracts” is a declaration of will made by the entrepreneur, or the enterprise, regulating mass goods within the scope of his specific, professional business activity. Standard terms in consumer contracts are formulated in order to make an unlimited number of contracts with an unlimited number of consumers and that is why they do not contain provisions defining an individual consumer or the subject of a given contract.
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    O POJĘCIU „JEDNOSTKA ORGANIZACYJNA” W POLSKIM PRAWIE SAMORZĄDU TERYTORIALNEGO
    (Wydział Prawa i Administracji UAM, 2005) Szewc, Andrzej
    The paper focuses on some terminological issues arising from the notion of an ‘organisational unit’ used by Polish territorial self-government law. The lack of a legal definition of this notion has been indicated, as it leads to different meanings associated with the term in different legal provisions, giving rise to a number of practical consequences. The de lege ferenda proposal to regulate that has been offered.
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    SPÓŁDZIELNIE OSÓB PRAWNYCH I NIEKTÓRE SZCZEGÓLNE RODZAJE SPÓŁDZIELNI W ŚWIETLE OBOWIĄZUJĄCEJ I PROJEKTOWANEJ USTAWY
    (Wydział Prawa i Administracji UAM, 2005) Niedbała, Zdzisław
    The doctrine of co-operative law as well as the practical application of co-operative law produces much controversy regarding the openness of the membership of a co-operative to legal persons. This issue also concerns the legal construction of a co-operative of legal persons, i.e. a co-operative institution which shall only admit legal persons. This may be possible because the authors of the statutes of co-operatives formed exclusively for legal persons, exercising the powers provided for in the statutory rights, anticipate an important derogation from one of the basic principles of an idea of a co-operative, i.e. the principle that “one member stands for one vote”, and favour a principle that the number of votes at the AGM should depend on the number of shares brought into the co-operative. If this view is implemented, the consequent situation will be that a co-operative of legal persons would work on almost exactly the same principles as those provided for in the code of commercial companies, and in particular to those applicable to limited liability companies. Hence, one of the objectives of this paper is to discuss the real need of continuing the effort to maintain this legal situation. This paper and the interest in the subject was prompted by the draft of a new law on co-operatives developed on the initiative of the President of the Republic of Poland. Besides the issues related to the co-operatives formed by legal persons, the paper also deals with a number of proposals of individual statutory norms regulating the status of craftsmen, student, or social co-operatives. The variety of social needs justify the establishment of specific legal regulations enabling those social groups as well as others, including disabled persons or the unemployed in various forms of co-operative businesses. The evaluation of the proposed legal solutions constitutes the main theme of the second part of the work.
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    OBYWATELSTWO TZW PÓŹNYCH PRZESIEDLEŃCÓW1 NIEMIECKICH. ROZWAŻANIA NA TLE PRAWA MIĘDZYNARODOWEGO (CZĘŚĆ II)
    (Wydział Prawa i Administracji UAM, 2005) Muszyński, Mariusz
    Citizenship 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.
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2005) Isański, Jakub
    Edmund Wnuk-Lipiński, Świat międzyepoki. Globalizacja. Demokracja. Państwo narodowe, Wydawnictwo Znak, Instytut Studiów Politycznych PAN, Kraków 2004, ss. 336.
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    UNIWERSALNA JURYSDYKCJA - KILKA UWAG FILOZOFICZNOPRAWNYCH
    (Wydział Prawa i Administracji UAM, 2005) Zajadło, Jerzy
    In recent years we have observed a worldwide debate on universal jurisdiction. This phenomenon is closely related to some international events: the Pinochet case, the Arrest Warrant Case, the International Tribunals for former Yugoslavia and for Rwanda, the International Criminal Court, etc. The concept of universal jurisdiction has become an important legal instrument in the international campaign against impunity. However, this institution is not only one of the most controversial issues in international criminal law, but has also some important philosophical aspects, of which the paper explores some. An attempt has also been made to compare the legal, political and ethical aspects of universal jurisdiction with similar problems that accompany another international institution: humanitarian intervention.
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    ŚWIADCZENIA PODATKOWE JAKO INSTRUMENTY REALIZACJI PROGRAMÓW SANACJI ORAZ RESTRUKTURYZACJI GOSPODARKI PRZEDSIĘBIORCÓW
    (Wydział Prawa i Administracji UAM, 2005) Zdebel, Marek
    The period of economic transformations which started in Poland at the early 1990 has revealed a number of weaknesses and maladjustments of enterprises, particularly those state owned, to the market economy demands. The Polish legislator, aiming at eliminating the adverse results of those phenomena as well as the causes of their occurrence, has introduced a number of legal acts establishing different institutions operating at different levels, among them the restructuring and recovery of financial management in enterprises. The aim of both is to restore the ability of businesses to compete in the market ,and improve their financial condition. These aims can be realized with the help of selected legal instruments. The most important are those of tax character. They can be of different kinds though they are mainly associated with activities aiming to regulate tax obligations, such as: renouncement of a tax obligation, cancellation of the tax in arrears, postponement of tax payment deadlines, or installment plans. The paper analyses selected issues connected with the use of tax instruments of that such kind for the needs of restructuring and recovery of businesses as well as for the legal procedures that enable application of those instruments in practice.
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2005) Nawrot, Katarzyna A.
    Polska-Niemcy a rozszerzenie Unii Europejskiej, t. 1—2, pod red. W. Małachowskiego, Wydawnictwo Szkoły Głównej Handlowej w Warszawie, Warszawa 2004, ss. 467 i 328.
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    JASNOŚĆ PRAWA PODATKOWEGO JAKO WARUNEK POPRAWNEJ LEGISLACJI PODATKOWEJ
    (Wydział Prawa i Administracji UAM, 2005) Mączyński, Dominik; Sowiński, Ryszard
    Tax law interferes into the sphere of citizens’ property rights. Therefore it is of extreme importance that during the tax legislation process the (legal) principles developed on the basis of law, legal science and jurisdiction have been obeyed. The starting point for our considerations is a statement that tax provisions should be formulated in a way allowing reconstruction of legal norms precisely formulated therein. In the paper, provisions related to the creation of law are analysed, with particular attention drawn to the regulations applying to tax law. Further, the rich jurisdiction of the Constitutional Tribunal, whose verdicts have on many occasions given rise to a number of detailed postulates deriving from general constitutional principles of the legislative process, is presented. The Tribunal often emphasised that legal regulations must be clear, precise and comprehensible. Similar postulates are frequently found in the jurisdiction of administrative courts which have often expressed an opinion that the in dubiopro tributario principle should govern the interpretation of tax law. According to that principle, no tax obligations should be imposed if their legal grounds are imprecise or incomprehensible. If this principle is consistently applied, the legislator will be bound to a stricter discipline in the legislative process of tax law. The present paper is meant to be another voice in the wide discussion that has been going on in the field of financial law.
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2005) Rój, Justyna
    Joanna Niżnik, W poszukiwaniu racjonalnego systemu finansowania ochrony zdrowia w Polsce, Oficyna Wydawnicza Branta, Bydgoszcz- Kraków 2004, ss. 219.
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    PRZESŁANKI WYKORZYSTYWANIA SEKURYTYZAC JI AKTYWÓW W PROCESIE FINANSOWANIA PRZEDSIĘBIORSTW
    (Wydział Prawa i Administracji UAM, 2005) Lizińska, Joanna
    The paper presents securitisation technology as a source of capital. Securitisation can be defined as a process of converting cash flows arising from underlying assets due to the originator into a smooth repayment stream, thus enabling the originator to raise asset-backed financing (funds). Deals are normally structured by a transfer of receivables from the originator to a newly established company known as a special purpose vehicle, designed to separate the receivables from the insolvency risk of the originator, and referred to as a “true sale”. In the US, securitisation is stable and mature. In Europe, the securitisation market is growing rapidly, and in Poland it is still at an early stage of development, having to cope with number of obstacles including legal and tax issues that hamper securitisation of all asset classes. The rationale for securitisation varies widely from company to company. One of the most frequently cited reasons for undertaking securitisation is a lower cost of funds, which is possible first of all because of the segregation of receivables from the insolvency risk of the originator. Another objective of securitisation may be the freeing of regulatory capital, balance sheet management, funding diversification, transfer of risk or a strategic profile. Market mechanisms in financial markets increasingly displace administrative solutions of allocating scarce capital. Securitisation facilitates disintermediation in financial markets. The use of asset securitisation is propelling the use of market mechanisms to allocate capital.
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2005) Babiak, Jerzy
    Gospodarka polska w warunkach integracji europejskiej, praca zbiorowa pod red. Wacława Jarmołowicza, Wydawnictwo Akademii Ekonomicznej w Poznaniu, Poznań 2005, Zeszyty Naukowe, nr 51, ss. 364.
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2005) Równy, Kazimierz
    Jerzy Menkes i Andrzej Wasilkowski, Organizacje międzynarodowe. Wprowadzenie do systemu, wyd. 1, Wydawnictwo Prawnicze LexisNexis, Warszawa 2004, ss. 233.
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2005) Górnicki, Leonard
    MAGISTRI NOSTRI*. O PROFESORACH WYDZIAŁU PRAWA UNIWERSYTETU POZNAŃSKIEGO