Dychotomiczny charakter podmiotowości prawnej państwa (imperium i dominium)
The dichotomous nature of the legal capacity of the State (imperium and dominium)

Summary/Abstract: The legal capacity of the State is a complex and complicated issue under both public and private law. In particular, the problem of how to represent the State in civil law transactions (including mainly the exercise of property rights) concentrates political and legal dilemmas. The essential components of the concept of the civil legal capacity of the State, and at the same time the most debatable ones, are the problem of appropriate structures (organisational units) able to effectively participate in legal transactions and the problem of legal instruments adequate to the roles played by these structures (acting, after all, in the sphere of public interest), capable of precisely defining the competences and public interest-determined duties of the entities through which the legal personality of the State is to be realised. The elaboration of a clear conception of the exercise of property rights belonging to the State is difficult due to the fact that the legislator, preserving the purity of civilist formulas, in the light of which the beneficiaries of subjective rights regulated by civil law may be subjects of that law, i.e. natural persons and legal persons, constructs the State Treasury as a legal person (Article 33 of the Civil Code), but in addition to the fact that this is a conceptual construction, created from the meaning of legal provisions, it is also peculiarly fictitious, i.e. not equipped with an adequate network of bodies. The organisational status of the State Treasury therefore does not guarantee the State an effective presence in civil law transactions using the instruments typical of the normative construction of a legal person (cf. Article 38 of CC). Hence the need to use specific mechanisms. The organisational units that are now established in large numbers are various kinds of State agencies. A momentous significance when it comes to the function of implementing the civil law personality of the state is attributed to the Agricultural Property Agency of the State Treasury. A similar fiduciary status as the one held by the APAST is also attributed to the Military Property Agency and the Military Housing Agency. Other entities, such as the Agricultural Market Agency or the Agency for the Restructuring and Modernisation of Agriculture, have the characteristics of extra-budgetary funds. However, the legislative initiatives listed are uncoordinated and piecemeal, whereas there is a pressing need for a comprehensive settlement on the issue under discussion, defining the state's status as a civil law person from a structural and functional perspective.

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