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Podstawy kasacyjne i ich uzasadnienie w najnowszym orzecznictwie Naczelnego Sądu Administracyjnego

Author(s): Kamil Majewski / Language(s): Polish Issue: 30/2016

This article represents the views of judicial decisions in the formulate of the cassation appeal’s base and their justification in the recent case law of the Supreme Administrative Court. The introductory part presents the character of the institution cassation appeal and the position of the Supreme Administrative Court in the structure of the judiciary and its property, including the consideration of remedies and an appeal in cassation. The main part shows the components of a cassation appeal, the grounds and the reasons behind them pointing out the basic requirements in this area outlined by judicial decisions and legal consequences in their absence

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Ograniczenia w obrocie udziałami spółek będących właścicielami gruntów rolnych

Author(s): Aleksandra Kudrzycka / Language(s): Polish Issue: 36/2017

Being in force since the 30th of April 2016 the new legal act suspending the sell of the properties of State Treasury and changing some other legal acts has implemented many changes. First of all, new regulations favor family farms lead by natural person. The Agency of Agricultural Properties, which acts on behalf of State Treasury, was given wide authorisation in buying agricultural properties. New regulations affects also partnerships which own agricultural properties. Nowadays, it is very difficult to buy such kind of properties by partnerships. In case of selling such a property their owners should be aware of the fact that the State Treasury has statutory preemption right. What is more, when a line-up of partnership changes then the State Treasury can easily buy the agricultural property belonged to this partnership. The author tries to evaluate the implemented changes, answer the question what is the main purpose of them and find out how partnerships deal with them so far.

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EFFECTIVENESS OF PUBLIC PRIVATE PARTNERSHIP AGREEMENT

Author(s): Nikolajs Ozoliņš / Language(s): English Issue: 1/2017

Discussion around the efficacy and effectiveness of Public private partnership agreement (PPPA) has become increasingly polarised. Private enterprises now build and staff the garbage trucks. They build and operate roadways; they staff manual and electronic toll collection systems; and they plow and maintain road surfaces. Critics of PPPA that, It has been suggested that the projects pursued are ones that are perceived to be financially viable from the private sector perspective; the ethical motivation is profitability over poverty reduction; the privatisation of some services will lead to the poor being left behind because of lack of affordability; and governments’ control over public services is greatly reduced with PPPAs.Effectiveness of PPPA means degree to which objectives of PPPA are achieved and the extent to which targeted problems are solved. In contrast to efficiency, effectiveness is determined without reference to costs and, whereas efficiency means “doing the thing right”, effectiveness means “doing the right thing”, “thing right”, effectiveness means “doing the right thing”.For effectiveness information shall be included in a public–private partnership agreement by law: 1) subject of the agreement including the amount, content, quality and manner of construction works or services; 2) financial conditions of the agreement; 3) set of rights each public partner transfers to the private partner; 4) public partner resources each public partner transfers to the private partner and the procedure for transferring such resources; etc..A common feature in any PPPA is the realization of value for money – the acquisition of the financial usefulness of investments along with the hand-over of respective risks, promotion of innovations and efficient management of resources. Thus the determination of value for money is one of the major components in adopting the decision on PPPA implementation.

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Akcininko locus standi dėl visuotinio akcininkų susirinkimo sprendimų pripažinimo negaliojančiais

Author(s): Lina Mikalonienė / Language(s): Lithuanian Issue: 77 (3)/2012

Invalidation of resolutions of shareholders’ general meeting is one of the remedies for breach of shareholders’ rights. Even though such remedy has been extensively used by shareholders in the Lithuanian court practice and one of the purposes of the corporate law is to protect shareholders’ investment in a properly balanced way, shareholder locus standi to challenge resolutions of shareholders’ general meeting have not been of major interest for the Lithuanian scholars. This article analysis ex lege requirements for shareholder’s right to suite on the basis of two criteria, e.g. function of the remedy and its proper use by a shareholder. Seeking to avoid abuses of litigating shareholder some countries apply different preventive measures. It is required that shareholder challenging the resolution of shareholders’ general meeting should have been participated at the meeting and opposed such resolution or should have demonstrated that the shareholder has not been able to attend the meeting due to the violation of procedural requirements by the defendant. Also, the right to control collective shareholders‘ powers is ex lege established as minority right, as the case may be for public stock companies for specific resolutions. Relying on comparative empirical studies representing that ex lege protective measures are not that effective as well as considering that these measures are not full-inclusive and they cannot be per se justified in all cases, it is concluded that the right to challenge resolutions of shareholders’ general meeting should be vested to each shareholder, as it is currently being established by the Lithuanian legislation. Nevertheless the preventive measures are important when evaluating legitimate interest of the shareholder as well as defining shareholder actions as abusive, therefore should be considered in the litigation procedures ad hoc. Invalidation of resolutions of shareholders’ general meeting as a remedy for breach of shareholder rights does not only protect shareholder‘s personal interest but also influence collective interests (e.g. rights of other shareholders, the company as an independent commercial entity) as well as third party interests. To comply with the proper function of the remedy, direct violation of the subjective right and (or) legitimate interest of the shareholder must be stated. Therefore, the article 2.82 Part 4 of the Lithuanian Civil Code should not be interpreted as a presumption of automatic violation of shareholder‘s interest in case of non-compliance with the legislation, by-laws or principles of reasonableness and fairness. In case merely private shareholder interest is breached, negative consequences caused by the violation of the subjective right and (or) legitimate interest of the shareholder should be established.

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Standards Applied in Protection of Taxpayers’ Rights

Author(s): Alina Klonowska / Language(s): English Issue: 3/2017

The paper discusses selected legal solutions, from Polish tax system, which are to protect taxpayer’s rights. Using judgments issued by institutions adjudicating in tax cases, biding tax law provisions were critically assessed, in particular, the principle of trust. Consequently, based on the experience of selected countries, the weaknesses of legal solutions in force in Poland were mentioned, including difficult access to the information about the taxpayer's rights, lack of the Charter of Taxpayer’s Rights as well as limiting the need for trust only in relation to tax proceedings.

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NIP JAKO PODSTAWOWY ELEMENT IDENTYFIKACJI PRZEDSIĘBIORCY

Author(s): Maciej Etel / Language(s): Polish Issue: 2/2016

In accordance with Article 16 Act of 2 July 2004 on Freedom of Economic Activity, an entrepreneur is obligated to place in writ-ten declarations addressed within the scope of their activity to designated persons and authorities the tax identification number (NIP) and use this number in legal and economic transactions. What is more, the identification of the entrepreneur in particular official registers occurs on the basis of the tax identification number. The fundamental assumption of this obligation was that the tax identification number (NIP) from 1 January 2007 on, became the basic element identifying an entrepreneur in legal and economic transactions. The main aim (goal) of the publication is to point out the ideas and functions of NIP obligations.

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Regulations Concerning Dissemination of Information About the Condition and Protection of Natural Environment in the Light of Legal Acts in Force

Author(s): Elżbieta Zębek,Radosław Biedrzycki / Language(s): English Issue: 4/2017

The principles of availability of information about the state and environmental protection were regulated in the Convention in Aarhus and the Directive no. 2003/4/WE of the European Parliament and of the Council on public access to environmental information and repealing Council Directive 90/313/EEC and in the Polish legislation in the Law of 2008 on environmental information, public participation in environment protection and on environmental impact assessments. The authors of the paper showed the legal status in the range of the availability principles of information about the environmental state and protection aspect in related to the public participation in the protection of environment.

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Business Activity in Administrative and Private and Legal Aspects as Well as Interpretation and Collision of Statutory Definitions

Author(s): Tomasz Słapczyński / Language(s): English Issue: 4/2017

The paper tries to conduct an analysis of the existing definitions of business activity in the Polish legal system. Polish legal regulations assume in their subject matter a statutory concept of business (economic) activity. The term business activity is present in a number of detailed legal acts in an autonomic sense, independent from other also binding definitions. The research methods applied by the author of the paper contain critical analysis of the available literature on the subject, comparative analysis of regulations that govern business activity with respect to linguistic, systemic and functional interpretation. The factor of homogeneity of law with respect to the definition of business activity is also subject of analysis in the paper. There are two kinds of economic law in the doctrine i.e. public economic law (typically of administrative nature) and private economic law which regulates the civil and legal relations. Both categories of law are closely interlinked, because they are both binding and as a whole regulate the functioning of business entities in Poland. Private law regulates property and material relations of legal entities called entrepreneurs who are autonomous in legal turnover and are its equal partners. Public law regulates the relation of authoritative administrative assignment exercised by the State. The right to conduct business activity constitutes a part of public economic law, it regulates the existence of an entrepreneur, while the relations between entrepreneurs are the domain of private economic law. Business entities functioning on the market must meet a number of statutory requirements and act according to provisions of law. They must also fulfil certain obligations for the benefit of the State and other entities in business turnover. Polish regulations in force are not homogeneous with respect to the definition of an entrepreneur and business enterprise. This issue is very problematic, even though the definitions contained in various acts are very similar to one another, yet they are not uniform which, to a large extent, makes conducting business operations more complicated. Confusing legislation in force puts business entities in an uneven light before various state institutions which impose their respective obligations on the entrepreneurs. In the paper the author makes an attempt to systematize various definitions of an entrepreneur in Polish legal regulations; he also points to differences in particular acts and discusses related consequences.

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УСЛОВИ ЗА ВРШЕЊЕ ПРАВА АКЦИОНАРА НА ПОСТАВЉАЊЕ ПИТАЊА

Author(s): Vuk Radović / Language(s): Serbian Issue: 1/2014

Law on Business Organizations from 2011 has significantly improved the regulation of shareholders’ right to ask questions in Serbia. In contrast to the previous law from 2004, that has completely transferred regulation to companies which is why there was no guarantee for exercising this right, new law contains detailed norms in this respect. They are written under the dominant influence of German law and are completely harmonized with the Shareholders’ Rights Directive. All important issues of shareholders’ right to ask questions have been regulated mostly with imperative norms (subject of the right, conditions for exercising this right, debtor of this obligation, court protection, etc.). Corporations have lot of freedom to adjust exercising this right to their needs, but only by giving more rights to shareholders. Limiting the scope of this right is possible only in certain, precisely defined areas. Although the general impression of the new regulation is very positive, there are certain aspects which can be criticized. Some of them can be cured by adequate judicial interpretation, while others cannot be cured without changes to the law. In the area of conditions for exercising this right, the most important deficiency is the fact that the law has not determined when the right to ask questions can be exercised, and that stands in obvious disharmony with the adopted conception to regulate all important aspects of this right. Contrary to conditions, which basically have been properly formulated, other aspects of legislation regarding this shareholders’ right contain more profound obscurities that go beyond the scope of this paper.

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ПОБИЈАЊЕ ПРАВНИХ РАДЊИ БЕЗ НАКНАДЕ ИЛИ УЗ НЕЗНАТНУ НАКНАДУ У СТЕЧАЈНОМ ПОСТУПКУ

Author(s): Vuk Radović / Language(s): Serbian Issue: 1/2013

Avoiding transactions without consideration or with insignificant conside ration has not yet been meaningfully disputed in Serbian theory of bankruptcy law. Practitioners and academics usually conclude that this type of avoidance is uncontroversial and does not raise problems in practice. This paper is trying to show that such conclusion is not justified, and most probably is a consequence of infrequent use of this type of avoidance. Writing of this paper is particularly justified by the fact that the new Bankruptcy Act has partially changed national regulation of this question.

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НАЧЕЛО СПЕЦИЈАЛНОСТИ ЖИГА И ЗАБРАНА РАЗВОДЊАВАЊА ЧУВЕНОГ ЖИГА – ПРАВНОЕКОНОМСКО ТУМАЧЕЊЕ

Author(s): Slobodan Marković / Language(s): Serbian Issue: 1/2011

This article starts off with a presentation of economic foundations of trademark protection, and continues with an analysis of two essential institutes of trademark law: the specialty principle (as a rule), and the prohibition of dilution of famous trademarks (as an exception). The goal of the analysis was to reveal the economic logic behind the operation of the two, and thereby indicate the scope of the exception. The conclusion is that the prohibition of dilution of famous trademarks should exist only within the boundaries of the basic economic function of trademark, namely the promotion of market efficiency by reducing the asymmetry of information. Inversely, the proprietary economic reasoning behind the prohibition of dilution of famous trademarks leads to unjustified and excessively broad interpretation of this exception.

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ЈАСНА И НЕПОСРЕДНА ОПАСНОСТ: ПРИКАЗ НОВОГ ЗАКОНА О ЗАШТИТИ КОНКУРЕНЦИЈЕ

Author(s): Boris Begović,Vladimir Pavićević / Language(s): Serbian Issue: 2/2009

The main objective of this article is to analyze the Law on Protection of Competition enacted by the Serbian legislator in July 2009; and especially to scrutinize the changes introduced into Serbian law by this new piece of legislation. Harmonization of domestic provisions with those of the European Community has been a guiding principle in the drafting process and the legislator has attempted to mimic the legislative model of the Community as closely as possible. Among the provisions analyzed are those dealing with restrictive practices, dominant position and abuse of dominance, determination of the relevant market, merger control, temporal scope of the law, penalties, as well as the basic procedural mechanisms, particularly those dealing with legal recourse against decisions of the Competition Commission. The authors conclude that the new law represents a step back when it comes to business environment, i.e. regulatory risk to which the entrepreneurs are exposed, and that it de facto abolishes effective legal recourse against the rulings of the Commission. Therefore, this law represents a ‘clear and present danger’ for doing business in Serbia, for its economic growth and prosperity.

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Prawno- finansowe instrumenty równoważenia samorządowej gospodarki finansowej

Author(s): Jolanta Gliniecka / Language(s): Polish Issue: XXXVIII/2017

There are various legal instruments that can be used in order to balance the finance of self-government territorial units. Some of them can be applied in modern systems of self-government revenue, others cannot. Therefore, it is worth reiterating the proposal to use supplements to the revenues of other territorial communities (state, self-government territorial units) in the Polish system of self-government revenues.It is also easy to notice that the use of returnable financial resources in the process of balancing the local self-government finance, which allows local self-government units to contract obligations, finance local needs, increase the efficiency of the management of material and financial resources and finance projects beyond the capabilities of the current budget. On the other hand, this instrument of financing local self-government units carries many risks. The protection of creditors is provided by the legal control over the use of this financial measure.The balance of local self-government budgets may be also based on the shares of taxes constituting the revenue of the state budget. They are global and they do not directly affect the structure of budget expenditures. They are supplemented in this role by grants and subsidies from the state budget.The balance of the local self-government finance maintained by the means of grants(subsidies) may be „safe” for local authorities, as they would always be able to count on state budget revenues. However, this would be a defective solution. First of all, because it eliminates the autonomy of the recipient of a grant (subsidy). Territorial self-government units deprived of the right to manage revenue sources on their own are just tools for redistributing grants (subsidies). The dependence of the local self-government revenues on the decisions of the central government eliminates the self-governments’ concern for their own local economy and its financial effects, and it is also an anti-motivating solution.

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Rzecznik finansowy: nowa instytucja ochrony klienta na rynku usług finansowych

Author(s): Anna Jurkowska-Zeidler / Language(s): Polish Issue: XXXVIII/2017

Changes in the regulation and supervision of the financial market after the global financial crisis have also influenced the shift of paradigm in the sphere of consumer protection on the financial market, both at international, European and national levels. The establishment of the institution of Financial Ombudsman on 11 October 2015 has substantially changed the institutional structure of the protection system of the consumers of financial services. The Financial Ombudsman has replaced the Insurance Ombudsman, who was an institution specialized in insurance issues established to protect consumers of the insurance market that worked well for over 20 years. The expansion of Ombudsman’s activities to other financial market sectors strengthens the protection of its clients and unifies the mode of processing complaints submitted by financial market actors, which represents the systemic approach to the financial market as a regulatory item. The article presents the tasks and role of the Financial Ombudsman and the systemic importance of this institution to the financial market.

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Abuzywność klauzul walutowych w umowach o kredyt hipoteczny denominowany w walucie obcej

Author(s): Rafał Mroczkowski / Language(s): Polish Issue: XXXVIII/2017

The problem of mortgages denominated in a foreign currency, still awaiting to be solved in a systematic way, carries a growing threat both to the financial situation of both parties of these contracts (consumers and banks) and to the stability of the national financial system. The attempts to overcome it by the legislative and administrative measures have not been satisfactory so far. The further depreciation of the Polish zloty in relation to major currencies in which mortgages are denominated may lead, as expected by many currency analysts, to a significant increase of the systemic risk in the banking sector. At the same time, settling disputes between borrowers and banks in judicial proceedings may appear to be the most expensive for the latter.The purpose of the article is to analyze typical currency clauses applied in mortgage contracts denominated in a foreign currency in the light of judicial decisions, with particular emphasis on their potential abusiveness, and to identify ways to resolve this problem.The implementation of the these objectives requires the application of legal research methods, in particular the general-theoretical and formal-dogmatic methods.

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Status podmiotu zarządzającego portem morskim o podstawowym znaczeniu dla gospodarki narodowej – wybrane aspekty prawne

Author(s): Magdalena Adamowicz / Language(s): Polish Issue: XXXVIII/2017

There are seventy maritime ports and havens which vary in size and the complexity of functions at the Polish coast. These entities operate under the Law on Maritime Ports and Havens of 20 December 1996 which has introduced two port management models depending on the port category: ports of key importance for the national economy and other ports and havens. The article discusses the specific features of a joint stock company managing a port of key importance for the national economy which differentiate it from a model joint stock company. The specific status of a port company results from the statutory regulation and relates to an important public interest - these ports, according to the law, are essential for the national economy.

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Wpływ zaleceń Państwowej Komisji Badania Wypadków Morskich na stan bezpieczeństwa morskiego

Author(s): Dorota Pyć / Language(s): Polish Issue: XXXVIII/2017

The investigation and proper analysis of marine casualties and incidents can lead to a greater awareness of casualty causation and result in safety recommendations. A marine safety investigation means an investigation or inquiry into a marine casualty or marine incident conducted with the objective of preventing marine casualties and marine incidents in the future.The Polish State Marine Accident Investigation Commission (SMAIC) was established in 2012 in accordance with the European Parliament and Council Directive 2009/18/EC.SMAIC is an agency of the Polish government that investigates maritime accidents and incidents. The analysis of the SMAIC safety recommendations leads to the conclusion that they indirectly serves as instruments of normative-regulatory nature.

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Ograniczenia realizacji zasady prawa do sądu w systemie zamówień publicznych

Author(s): Hanna Wolska / Language(s): Polish Issue: XXXVIII/2017

The right to a trial constitutes one of the fundamentals of a state of law. This right is interpreted not only as a legislator’s obligation to make new laws, but also as a public right of citizens and other entities. It establishes the right to be tried before an independent entity which reaches its decisions based on the current law and guarantees access to court to the public.The right to a trial is universal and should also be applicable in the public procurement system and extend to all entities within it. Nevertheless, the access to courts in the public procurement system might be constricted. The main reasons are the current time-limit for bringing an appeal, the obligation to file an appeal with the National Appeals ChamberPresident before or on the last day of the aforementioned time-limit and the appeal fees, which may prove to be too high for some contractors within the public procurement system to exercise their rights even when making an appeal, and might contribute to the reduction or even elimination of an effective tool from the public procurement system, namely a control of contracting authority’s actions in the public procurement procedures.

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Unikanie opodatkowania a uchylanie się od opodatkowania – o kryteriach rozróżniających

Author(s): Małgorzata Kurzac / Language(s): Polish Issue: 105/2017

The article presents some reflections on the essence of tax avoidance and tax evasion in Polish tax system. Both tax evasion and avoidance can be viewed as forms of tax noncompliance as they describe activities that intend to reduce one’s tax burden. The article’s main part covers the differences between these two phenomena. Analysis leads to form the differencing criteria. Tax evasion which is the kind of tax fraud is strictly connected with penal law, that is based on the special rules of responsibility. The penal responsibility has subjective and individual character. In case of tax evasion, a taxpayer does not report the subject of taxation (f.e. income) to the tax authorities in order to eliminate their tax liability. Tax avoidance is based on the abuse of tax law by means of making the artificial constructions (“tax gaps”). These constructions have no economic meaning and their only aim is reducing the taxation burden. Tax evasion is always illegal and immoral whereas tax avoidance is not illegal but means the abuse of tax legislation in order to draw benefits contrary to its aims. Both above-mentioned phenomena are incompatible with the principles upon which Polish tax system is founded. They stay in contradiction with the axiology of tax law, mainly the rules of equality and universality in taxation.

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Проявления коррупции в Восточной Европе

Author(s): Viacheslav Hladky / Language(s): Russian Issue: 01/2018

The purpose of this article is to identify the main manifestations of corruption in the states of Eastern Europe, and, first of all, in Ukraine, which since 2014 has been actively carrying out multiple anti-corruption transformations, although the state is becoming increasingly corrupt every year. The author defines the main groups of manifestations of corruption and analyzes their constituent elements, in the light of which, delineates such categories as "gratitude", bribe, and corruption "gratitude". Particular attention is paid to the study of corruption intercession, which unites nepotism, cronyism and corruption lobbying. It is noted that to date nepotism is essentially supplanted by the rabble, which is the advantage of "privatization" of the state in the light of the clan capitalism. It is concluded that bribery and deviant intercession (corruption protection), as the main manifestations of corruption, the facts that corruption behavior is life-affirming security and protective actions of people, to which they resort, on the one hand, because of the insolvency of the state and society, but, on the other hand, to optimize the achievement of the good that is provided by the state and society, however, in an improper way. Meanwhile, if the discrepancy measures and methods of granting the benefits of state benefits (i.e., on average, the measure and method is applicable), then ignoring the state provision of certain goods as such (i.e., they can be provided only in the corruption plane) - this phenomenon is completely objective. On this basis, it is argued that the policy of counteracting corrupt practices in the state should focus, first of all, on the solution of such problems and objective problems, the refusal to account, which will lead to further criminalization of the society, which is observed, in particular, in modern Ukraine.

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