Ruch Prawniczy, Ekonomiczny i Socjologiczny, 2002, nr 4

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    SPIS TREŚCI
    (Wydział Prawa i Administracji UAM, 2002)
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    SPRAWOZDANIA I INFORMACJE. JOHN RAWLS 21 II 1921 - 24 XI 2002
    (Wydział Prawa i Administracji UAM, 2002) Zmierczak, Maria
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2002) Wrocławska, Anna
    S. Borkowska, Strategie wynagrodzeń, Oficyna Ekonomiczna Dom Wydawniczy ABC, Kraków 2001, ss. 570.
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2002) Borecki, Paweł
    Mirosław Sadowski, Państwo w doktrynie papieża Leona XIII, Kolonia Limited, Kolonia 2002, ss. 229.
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2002) Mikołajewicz, Jarosław
    Artur Kozak, Granice prawniczej władzy dyskrecjonalnej, Wydawnictwo Kolonia Limited, Wrocław 2002, ss. 192.
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    PRZEGLĄD PIŚMIENNICTWA
    (Wydział Prawa i Administracji UAM, 2002) Filar, Marian
    V. Konarska-Wrzosek, P. Konieczniak, W. Lang, M. Safian, E. Zielińska, Prawne problemy ludzkiej prokreacji, red. nauk. Wiesław Lang, Wydawnictwo Adam Marszałek, Toruń 2000, ss. 432.
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    DOBROWOLNE UBEZPIECZENIE ZDROWOTNE NA TLE ROZWIĄZAŃ PRZYJĘTYCH W SYSTEMACH WYBRANYCH PAŃSTW
    (Wydział Prawa i Administracji UAM, 2002) Lach, Daniel Eryk
    The common health insurance system imposes a duty of insuring a number of varied entities. However, in the method of listing entities that are obliged to take out insurance some social groups were left out. This was certainly the intention o f the legislator because although the insurance is called „common”, health insurance originates mainly from workers’ insurance, addressed primarily to impecunious hired workers. With a view to encompassing more and more social groups with the benevolence of health insurance, the legislator has been expanding the list o f entities obliged to take out health insurance, granting all the others the right for voluntary insurance. This article, whose subject has not yet been dealt with in Polish literature, attempts to evaluate the Common Health Insurance Act of 6th February 1997, which allows the possibility of voluntary health insurance. The author’s appraisal of the legislation is preceded by an account of relevant regulations in Germany, Austria, and Great Britain, all fully representative of the different types of health insurance systems.
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    CZYNNIKI ROZWOJU PROJECT FINANCE W POLSCE
    (Wydział Prawa i Administracji UAM, 2002) Świątek, Jakub
    In the view of the economic conditions and infrastructural needs of the Polish economy project finance as an investment strategy should certainly gain in popularity in the coming years in Poland. What makes this method especially desirable is above all insufficient investment capital in Polish companies. Additionally, this deficit deprives companies of possible support from the State. Project finance gives real benefits to project sponsors, who have an opportunity to make investments outside their own companies. Because whole businesses are founded from scratch in the process, such investments create jobs at a number of stages. Beside businesses and the State Treasury, also banks can benefit as lenders from project finance by earning profits from loan interests. The political stability of Poland, engagement of international banks in the market and twenty years of experience gained by institutions financing project finance all reduce the risks involved in the project to a level that is considered acceptable by banks in Poland. However, promoting project finance investments is impossible without some structural reforms of the Polish economy and legal system. Above all, it is necessary to further privatise those sectors which for years have seen a development of project finance in the world: in the transport, power, and extractive industries. Stability of the law and reduced red tape also condition a boost of project finance investments. It is also necessary to popularize this type of investments among potential sponsors, especially private businesses and local governments, training their staff in project finance.
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    ZASADY TECHNIKI PRAWODAWCZEJ W PRAKTYCE WYKŁADNI PRAWA
    (Wydział Prawa i Administracji UAM, 2002) Piszko, Robert
    The conviction about the existence o f certain correspondence between the directives o f editing and interpreting legal texts is based upon the belief that it is the legislator that sets out the linguistic and axiological limits of law application of a legal text; this conviction is also connected with the developed notion o f rational legislator. However, initially one did not use to speak o f the need to create correspondence between the directives of editing and interpreting legal texts in spite of the fact that one was aware of the connection between law creation and interpretation. The author sets out to determine: (i) which of the previously foreseen ways of attaining correspondence was applied during the creation of the official set of legislative technique principles, (ii) whether and to what extent correspondence between legislative technique principles and literal law interpretation directives was attained, and (iii) to what extent the „Legislative Technique Principles” o f 1991 has given rise to the conviction of correspondence between the directives o f law creation and interpretation in the legal practice.
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    KILKA UWAG NA TEMAT GENEZY GIEŁDOWEGO KONTRAKTU OPCYJNEGO
    (Wydział Prawa i Administracji UAM, 2002) Golecki, Mariusz Jerzy
    Option contracts, because of their flexibility, became in the mid-1970’s an ideal instrument for transferring investment risk away from institutions that wished to secure themselves onto speculators ready to risk their funds to make large gains. At this turning point a new financial market segment was created where risks involved in investment replaced potentially profitable property as the object of trading. This is why, in a sense, the contemporary stock option market resembles an insurance market rather than a stock market. Option is regulated by the French and Italian law and although it is not regulated in the German Civil Code (BGB), it is dealt with in judicial decisions and the doctrine. Since the middle of the 19th century especially the doctrine has attempted to clarify the difference between preliminary contract, option contract, and bid contract, at the same time trying to define the legal status of option. The situation is quite different under common law. Here option becomes the main component of the contract conclusion procedure. With the development of trade in England and USA, in particular in the form of markets organized as commodity or financial exchanges, option contract began to be applied on the market as an investment instrument for speculation or for bracing against the risk of price and exchange rate fluctuations. Similarly, in ancient Greece option became a financial instrument, the only difference being that it would be controversial to consider the Greek option (.arrha) to be a derivative, especially with so few existing trade records from that period. By contrast, there has been no mistaking such a status of option on e.g. the Liverpool cotton market since at least the 18th c. On contemporary markets the notion of option as a derivative is considered equivalent with the construct of option contract developed under the common law. It is also very close to the well-known classical Greek law of arratic contract. This similarity is striking not only in the view of the time distance between the Greece of 6th c. and England and America of the 17-19th c. It is the more surprising that it was virtually impossible for the ancient Greek classical law to affect in any way the common law.
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    STRATEGICZNE ZNACZENIE NOWYCH PRODUKTÓW W DZIAŁALNOŚCI PRZEDSIĘBIORSTW
    (Wydział Prawa i Administracji UAM, 2002) Szulczyńska, Urszula
    The motivation to launch new products on the market and introduce new technical and organisational solutions certainly follows from the strategic role of new products. Actions taken to create and launch new products certainly strongly affect the manner and efficiency of using the resources of a company. Besides, these actions also have an effect on resource allocation on the market scale. Above all, the strategic role of new products is connected with their influence upon both the content of company strategy and the chosen way of implementing this strategy. This is because the preparation and commercial utilization of new solutions can be a goal in itself because of its pursuing benefits. However, its influence upon the position of a given company in the environment makes it useful to realize also some more general goals. Critically reviewing some of the views presented by other Polish and foreign authors (such as A. J. Almaney, M. E. Porter, G. S. Day, M. K. Starr, J. Altkom), the author analyses the significance of new products as a weapon against the competition, also discussing the aspects of market competition strategies and companies’ marketing activities.
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    PRAWNE UWARUNKOWANIA ROZWOJU FUNDUSZY INWESTYCYJNYCH LOKUJĄCYCH W NIERUCHOMOŚCI
    (Wydział Prawa i Administracji UAM, 2002) Borowski, Grzegorz
    In the current conditions one could hardly expect a rapid establishment and development of investment funds investing in real estate in Poland, not only due to the lack of relevant legal regulations. Among some further causes there are some technical obstacles in dealing in real estate as well as an often unclear legal status of real property. Besides, the high minimal allowed asset value is an additional deterrent. Currently, this minimal value is 0.5 billion zl for an investment of 30 - 40 million zł. This condition follows the requirement to maintain an appropriate level of investment diversification in order to reduce the risks involved. The only specialist closed investment fund that has ever attempted to invest in real estate in Poland failed to collect even 10% of the amount. Another obstacle in developing specialist closed investment funds investing in real estate is also the relatively short time of keeping shares by Polish investment fund shareholders (in Germany the median of keeping open investment fund shares being 7 years). This can impede selling off specialist closed investment fund shares and in the case of open funds it also implies the need to maintain a high share of liquid securities (especially T-bonds) with a view to securing possible obligations involved in share redemption. This can in consequence reduce the investment return rate. When drafting legislation concerning funds investing in real estate (especially open ones) one should focus in particular upon their investment target. Transparency of the real estate market is veiy limited, as there is no full information on the deals handled on this market; also, the object of the deals, i.e. real estate ownership, is atypical. On the market it is dealt in ownership rights, which are highly individualized and which are priced on the basis of a number of factors, such as the location, legal and physical condition, or local land development plan, all of which add up to the individual value of each property. One should therefore consider limiting the investment target of future open real estate funds only to managing and reaping profits from owned real property rather than allow speculative transactions, which should be allowed only for specialist closed investment funds. Collective real estate investment institutions are an important element of developed capital markets. It is hard not to appreciate their impact upon the development of real estate market and due to a relatively low risk involved in investing in this market, such institutions are a significant long-term saving instrument (especially toward pension). One should hope that the legislator will soon give a green light to the investments in question not only for smaller investors (for whom open real estate funds will be available) but also to e.g. open pension funds. Under the current law open pension funds are banned from investing not only directly in real estate but also in specialist closed investment fund shares.
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    METODY ANALIZY EKONOMICZNEJ ZJAWISKA UBÓSTWA
    (Wydział Prawa i Administracji UAM, 2002) Pollok, Artur
    Poverty is one of the worst and most common oppressions that afflict humanity. This phenomenon occurs in any community, whether rich or poor. Wherever it affects more than a few individuals, it turns into a serious social problem. Social studies on poverty have been conducted for over a century (in Poland they were clearly intensified over the last decade). Despite its long history, the contemporary study is still unable to provide unambiguously a single definition of poverty or define its causes. This fact largely hinders both a close study of this phenomenon and an effective social policy against poverty and its results. The article attempts to summarize the results of the research done so far on the subject, in particular concerning the notion, typology, and changing perception of poverty. The article includes a proposed classification of poverty causes and a discussion of its main sources indicated by the contemporary study. Furthermore, the main poverty measurement methods have been discussed with an emphasis upon the problems involved and the practical implication of applying study results. Fighting poverty has been considered a priority of any country’s economic policy. According to the author, it is paramount to create a socially desirable goods and service division system that also promotes the production sphere as the source of universal prosperity.
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    REZERWA OBOWIĄZKOWA JAKO INSTRUMENT POLSKIEJ POLITYKI PIENIĘŻNEJ
    (Wydział Prawa i Administracji UAM, 2002) Przybylska-Kapuścińska, Wiesława
    The article characterizes the essence and function of obligatory reserve as an instrument of the Polish monetary policy ever since 1989. The presented analysis of regulating the banking system by means of the obligatory reserve over the past 14 years shows a similar trend evolution as in other, economically more developed countries. Obligatory reserve has grown less restrictive, its rates have been unified and its whole system has been simplified. In the future the instrument of obligatory reserve will need to be adapted to the European Union legislation. Since market instruments have a priority, obligatory reserve will continue to play a complementary and auxiliary role and will be available to increase temporarily monetary restrictiveness. 37
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    PROCESY UPADŁOŚCIOWE BANKÓW KOMERCYJNYCH NA TLE EWOLUCJI SEKTORA BANKOWEGO W LATACH 1989 - 2001
    (Wydział Prawa i Administracji UAM, 2002) Appenzeller, Dorota; Nowara, Wanda
    The article gives an account of the evolving Polish banking sector after 1989 with a special focus on bankruptcy proceedings and taking over troubled banks by other financial institutions. The account is complemented with an analysis of the change dynamics and financial conditions of commercial banks in 1992 and 2001. The main goal of the analysis was to determine whether there are any common features of the banks that either became insolvent or were taken over following their financial problems.
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    AKCYZA W ORZECZNICTWIE EUROPEJSKIEGO TRYBUNAŁU SPRAWIEDLIWOŚCI
    (Wydział Prawa i Administracji UAM, 2002) Mączyński, Dominik
    The article deals with the verdicts issued by the European Court of Justice concerning excise taxation. The ECJ is gaining in significance in the area of taxation. Initially, the interest of the ECJ focused on unifying VAT across the community o f the 1970s but then the excise unification in the EU as o f the 1st o f January 1993 gave rise to new tax lawsuits. Since the unification of the excise regulations was only limited in scope, the ECJ’s verdicts comprehensively concern all taxed goods and such excised goods as alcohol, tobacco, and mineral oil. The article presents the various types o f tax suits brought to the ECJ, the total view o f judicial decisions and the underlying taxation doctrine.
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    INTERPOL JAKO STRONA TRZECIA TRAKTATU
    (Wydział Prawa i Administracji UAM, 2002) Węgrzyn, Jacek
    The current Interpol constitution, dating back to 1956, is the only constitution and internal normative document in Interpol that, unlike any earlier constitution or any general regulations, secures in its provisions the institution’s competence to be party to a treaty. In the discussion of this uncommon subject the author mainly focuses upon the validity of the pactum in determinentum (favorem) tertii formula as well as a set of basic rights and duties of this subject of international law. The article also touches upon inherent rights (powers) and implied powers of Interpol, in particular the practice of the institution’s activity in the aspect of international relations and its place in the treaty law structure.
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    ZAKAZ REKLAMY A PRAWO DO RZETELNEJ INFORMACJI (W ŚWIETLE PRZEPISÓW O ADWOKATURZE)
    (Wydział Prawa i Administracji UAM, 2002) Masiota, Aleksandra; Masiota, Jacek
    The interdiction to advertise attorneys’ services, although sometimes claimed to violate the freedom of speech, is a limitation consciously self-imposed by the corporation, as it has been considered deontologically sound according to the Bar Code of Conduct. Yet, although ethical norms prevent attorneys from advertising themselves, they are allowed to provide information concerning their services. This freedom, secured in art.61 o f the Code in relation with art. 8 point 2 o f the Polish Constitution, gives the right for reliable and complete information concerning the activity of organs which perform their duties imposed by force of freelance profession self-government. Additionally, it is worth considering the future of freelance profession codes of conduct, including the Bar code. Leaving them unchanged might result in their trivialisation, i.e. they might turn from deontic codes into codes o f wishful thinking and accounts of desirable manners of conduct set out to corporation members as a goal to be attained. When it comes to professional ethics, this is the case in the USA, where the law imposes no obligations even in ethically unambiguous situations.
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    REFLEKSJE NA TEMAT ŻĄDAŃ ODSZKODOWAWCZYCH ZABUŻAN Z TYTUŁU UTRATY MIENIA NA KRESACH WSCHODNICH W ŚWIETLE PRAWA MIĘDZYNARODOWEGO I PRAWA POLSKIEGO
    (Wydział Prawa i Administracji UAM, 2002) Łaski, Piotr
    The years 1943 and 1945 marked the two waves of displacing residents of the eastern borderlands of Poland, forcing the people to abandon their real estate in the areas that no longer belonged to Poland. The Author discusses the moral and legal implications of the displacement, focusing on the legal regulations in Poland, under communism and beyond, depicting the political tendencies regarding the displaced population in the communist Poland. Additionally, an analysis is proposed of the international treaties ratified by Poland and the ensuing obligations, as well as the issue of courts’ reluctance to hear cases of the repatriates’ claims for damages. The article is wrapped up by the sad conclusion that until the present time this group of people has been given no opportunity to regain any compensation due for the property they were deprived of.