Dyskusja w sprawie wyodrębniania prawa gospodarczego
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Date
1993
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Wydział Prawa i Administracji UAM
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Discussion on distinguishing corporate law
Abstract
To the above question, posed to lawyers interested in corporate law,
the editors of "Ruch Prawniczy, Ekonomiczny i Socjologiczny" received
a number of answers. Though both the substance and the form of answers
were very different, they present a very interesting, contemporary characterization
of corporate law and the science of corporate law.
1. There seems no doubt that there is a close connection between corporate
law and the political and economic system of the state (see in particular:
Cz. Żuławska and C. Kosikowski). Despite this dependency (and the
resulting correlation between the concept of corporate law and the political
and economic system), there is little change as to the theoretical approach
to the "nature" of this law and the method of solving this problem. The
issue at stake lies not so much in the fact whether corporate law exists,
but whether, and to what extent, it constitutes a specialized part of law,
and further, whether this part is of a complex character, or whether it can
be placed within one traditional branch of law (in favour of the latter view:
Cz. Żuławska, against: S. Włodyka), or, finally, whether separate branches
of law and/or scientific disciplines (or subdisciplines) should be distinguished,
or both separate branches of law and scientific disciplines (thus all
other respondents).
2. The most important issue is the argumentation in favour of distinguishing
corporate law (A. Bator, A. Chełmoński, S. Włodyka). The existence
of this branch of law seems to leave no doubt. However, the reference
to the contents of positive law does not allow to answer the issue of distinguishing
the said branch of law. The list of legal definitions and notions
introduced by particular contemporary legal acts (e.g., "corporate case",
"corporate entity", "economic activity", etc.) would not lead to uniform conclusions.
The same can be said about the scope of cognition of courts which
have jurisdiction to hear corporate cases (Chief Administrative Court, corporate
courts, anti-monopoly court). Finally, frequent amendments to legal
acts are not in favour of reaching any conclusions in this respect.
3. Against this background, it is maintained that the term "corporate
law", with no other qualifications, cannot be a priori considered to be related
to private law or both private and public law problems of corporate
activity (A. Wasilewski). Besides, treating this branch of law as a specialized
part of civil law (Cz. Żuławska) would not allow to encompass the whole
sphere of corporate relations. Finally, the existence of specialized parts
of administrative and constitutional law fully justifies the presence of the
discipline of public corporate law, separate from private law ( T. Rabska,
S. Włodyka). 4. No one was not in favour of a concept of the complex discipline. The
respondents stressed that the catalogue of "principles of corporate law", elaborated
in the past, ceased to exist (Cz. Żuławska). A view prevails that
"corporate law" cannot be practiced as one integrated scientific and didactic
discipline (A. Chełmoński). One should also refer to legal disciplines distinguished
in Western Europe (S. Włodyka). The above fact is also reflected in
university curricula in Poland. The justification is simple: specialization is
dictated by specific needs of economic activity, requiring a detailed and
complex approach and diversified legal solutions.
The above opinion is shared also by other authors (Cz. Kosikowski,
T. Rabska). However, final concepts presented by the authors are to a great
extent determined by legal disciplines they represent.
5. Many respondents stressed that legal norms regulating "economic relations"
cannot be regarded as a separate type of legal norms (in particular,
A. Bator). Thus, of foremost importance is the subject-matter of regulation.
Hence, there appears a basic question, namely whether the subject-matter
of corporate law is the regulation by the state of economic relations from
the viewpoint of individual rights and interests of corporate entities (C. Kosikowski,
T. Rabska, S. Włodyka), or whether the subject-matter of corporate
law refers exclusively to civil-law relations between corporate entities,
regulated by dispositional legal provisions (Cz. Żuławska).
A relatively new trend in Polish law and in the Polish science of law is
the concept of public corporate law, the scope of which is wider than, and
different from, the traditional administrative corporate law (T. Rabska,
C. Kosikowski, S. Włodyka). Its subject-matter would be aimed at the protection
of corporate entities, and not at a direct intervention of the state
into the economic activity. Such an approach corresponds with the needs
of transformation of the economic system of the state and with new aspects
of international economic integration (J. Gilas, T. Rabska). Some respondents
stressed that economic matters are regulated mostly by means of
public-law, rather than civil-law, acts (J. Gilas) and that the most suitable
conception of corporate law is the public corporate law (S. Włodyka).
6. The above opinions on corporate law - presented, out of necessity, in
a summary and simplified form — do not allow to formulate any more elaborate
generalizations as to the branches of law and corresponding legal
disciplines. However, those opinions may be considered a very valuable
source of reference and a competent introduction to the discussion on the
development of the legal system and the science of law. In this sense, the
initiative of "Ruch Prawniczy, Ekonomiczny i Socjologiczny" has fully reached
its objective.
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
Keywords
Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny, 55, 1993, z. 1, s. 1-45
Seria
ISBN
ISSN
0035-9629