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Dobre obyczaje i zasady współżycia społecznego w prawie spółek handlowych

Author(s): Katarzyna Kopaczyńska-Pieczniak / Language(s): Polish Issue: 2/2016

Both the general clause of rules of social conduct and the one of good practices apply incorporate relations – both internal and external ones. However, in internal relations of commercialcompanies, these clauses are accounted for to the same extent the provisions of the civil code areapplied due to the nature of the legal relation of a commercial company (Art 2 of the Code of Commercial Companies). The diversity of opinions concerning the essence of both clauses results fromthe presence of indeterminate phrases in them. What is indicated in both cases is the reference to, primarily, moral and social norms, honesty and decency. The specific concurrence of general rules of social conduct and good practices in the relationsof commercial companies occurs when the same aspect is subject to appraisal in different companies, applying one or the other clause. This is the consequence of the civil code applying mainlythe clause of rules of social conduct whereas the code of commercial companies – the one of goodpractices, and the definition of the mutual relation of both codes as the one of lex generalis – lexspecialis (Art. 2 of the Code of Commercial Companies). Such a concurrence of both clauses isprimarily present on two planes: the appraisal of the scope of the freedom of contract in formingcontracts of commercial companies (Art. 3 of the Code of Commercial Companies) and actionsagainst company resolutions.It seems that it needs to be adopted that as regards the code of commercial companies theclause of “good practices” is equivalent to the one of ‘rules of social conduct’ that is present in the Civil Code. Due to the wide scope of application of these clauses, it seems most justified to recognisethat they establish a certain model of appropriate honest and decent conduct in human relations. They can be seen as a kind of a conglomerate of social norms of various origin, that is norms thatcan be justified on moral, social, organisational or even economic grounds.

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Klauzula generalna interesu społecznego w postępowaniu administracyjnym, sądowo-administracyjnym oraz egzekucyjnym w administracji

Author(s): Zbigniew R. Kmiecik,Marta Grzeszczuk,Ewelina Streit-Browarna / Language(s): Polish Issue: 2/2016

The authors of the paper focused upon the general clause of social interest in the general administrative proceedings, as well as the proceedings before administrative courts and theadministrative executive proceedings. Thus we got a comprehensive – although limited, consideringthe framework of the study – analysis of the function of this clause in the three main sets of proceedings constituting the system of administrative procedure. The paper discusses a complicated concept ofsocial interest and its relationship to a concept of public interest. It must be emphasized that both of the terms mentioned above are used, among other things, in the regulations of the Code of Administrative Proceedings. The authors also analyze the questions regarding possibilities of a conflict between a social interest and an individual interest.

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Słuszność jako wartość w pracy notariusza

Author(s): Aleksandra Żaba / Language(s): Polish Issue: 2/2016

The article shows that the value of the equity is incessantly penetrating into the constituted law. Equity is becoming involved in the prescriptive regulations, it is opening the system of civil law to preterlegal values, making him more sensitive to the needs of the social environment. Equity is also a fundamental value which is the underlying reason for legal professional ethics. It leads to the conclusion that the equity constitutes the contact point between the law and the professional ethics of legal professions. it is expressing simultaneously the fundamental imperative of ethical proceedings and the interface of the law and ethics of legal professions.

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Rozumowanie per analogiam w prawie precedensowym: reguła, konkurencja, poszukiwanie i uzasadnienie dla korzystania z analogii

Author(s): Maciej Koszowski / Language(s): Polish Issue: 4/2015

The article addresses some of the specific issues that concern reasoning by analogy in the context of precedential law. It specifically touches on such questions as the necessity of the mediation of a general rule (norm) in an analogical pattern of inference, ways of resolving conflicts between competing analogies, the process of searching for potential analogies as well as the reasons for applying judicial precedents in concrete instances by recourse to analogy. The latter is done against the background of the merits and demerits of the so-called rule-based model of judicial precedent and its core notion: ratio decidendi. All the aforementioned issues have been analyzed from the perspective of two basic approaches to analogical reasoning in precedential law – i.e. the factual and rational model of legal analogy, which have been described in the previous article. The analyses take into account the stances and opinions of leading past and contemporary logicians, philosophers and legal theorists mainly, but not exclusively, from Anglo-Saxon countries.

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Forma zapisu na sąd polubowny – analiza prawnoporównawcza

Author(s): Aleksandra Surma-Buczek / Language(s): Polish Issue: 30/2016

The issue of the form of the arbitration clause, which is applicable in Poland, in legal systems of other countries and in the international law is an issue of a significant importance, due to far reaching legal implications arising from the form chosen. Firstly, the accuracy of the arbitration clause determines the admissibility of the dispute settlement by the arbitral court. In addition, the recognition of the allegation of improper arbitration clause (invalid or improper clause) may give a rise to an action for annulment of the arbitral court judgment. The adopted form of the arbitration agreement has also an effect on the admissibility of the arbitration award’s recognition in another country. The aim of the article is to compare and contrast legal solutions used for the form of an arbitration clause in Polish and foreign legislations, as well as to determine the tendencies in this field. The evaluation of the obligations under the New York Convention and UNCITRAL Model Law that have been imposed on states parties will be conducted. Also, main practical problems related to the issue of the arbitration clause and the implications for contemporary economic relations in the field of the liberalization of the arbitration agreement form will be highlighted.

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System prawa w ujęciu teoretycznoprawnym

Author(s): Leszek Leszczyński / Language(s): Polish Issue: 1/2017

Paper’s aim deals with defining the role of the category of the system both in the essence of the law and in its implementation and interpretation. The course of deliberations starts with the notion of the legal system, being followed by the analysis of basic dimensions of the systemic analysis of law (systematization of the normative acts as well as vertical and horizontal structure of law) and of the role of the systemic (both structural and axiological) rules of the legal interpretation conducted in the process of the application of law. The results of these considerations are then confronted with the various divisions of the legal system, taking especially the position of the administrative law into account.

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W sprawie redefinicji funkcji administracji gospodarczej w warunkach społecznej gospodarki rynkowej (na przykładzie funkcji administracji miar)

Author(s): Agnieszka Żywicka / Language(s): Polish Issue: 1/2017

The article aims at redefining the functions of economic administration in the social market economy formulated in the literature of reference as laid down in Art. 20 of the Constitution of the Republic of Poland, exemplified by the administration of measures. The paper gives a comprehensive account of a specific area of activity of the state in the economy, which is connected with technical and legal metrology. The sphere of legal and technical metrology is closely linked to the industry and, at the same time, it refers to a wide range of economic entities, it is a field in which the tasks are performed by the authorities of the administration of measures. The choice is not accidental, because this detached department of government administration is a glaring example of the changing role of administration in the economy, which originated under the influence of political and economic changes after 1989 and was then established in the Constitution of the Republic of Poland of 1997.

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Wpływ organizacji pozarządowych na realizację celów publicznych – aspekty prawne

Author(s): Piotr Staszczyk / Language(s): Polish Issue: 2/2016

The activity of NGOs is an expression of the development of civil society, directed at functioning independently from state institutions. The autonomy of this activity should not be treated as competing with the state, but rather as supporting it and complementing its functions. Civil society strives to satisfy the needs of its members and feels responsible for their fate. In this way the NGOs may work in the so-called external sphere of administration. However, the functioning in the internal sphere is also possible – in this case public administration bodies transfer some of their competences to NGOs which “step into” position of public administration in this domain. is study focuses on the legal aspects of both types of this co-operation

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О ПРОМЕНАМА ЗАКОНА О ПАРНИЧНОМ ПОСТУПКУ

Author(s): Ranko Keča / Language(s): Serbian Issue: 1-2/2004

Више година у научној и стручној јавности присутна је идеја о новелирању или попуној реконструкцији грађанског судског поступка укључујући и парнични поступак.

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ПРАВНО РЕГУЛИСАЊЕ ЗАШТИТЕ ЖИВОТНЕ СРЕДИНЕ

Author(s): Slavoljub B. Popović / Language(s): Serbian Issue: 3-4/2004

Демократска експлозија, неконтролисана индустријализација, економски раст, трка у наоружању, разне врсте дискриминације итд. довели су до поремећаја равнотеже између човека и природе.

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ГРАЂАНСКОПРАВНИ АСПЕКТИ ПОСЕТЕ ПОЗОРИШНОЈ ПРЕДСТАВИ

Author(s): Slobodan Marković / Language(s): Serbian Issue: 1-2/2003

The contract on a theater visit is a complex, non-typical, adhesive contract, whose predominant elements belong to the contract for the supply of services, which is regulated by the Law on Obligations. Nevertheless, due to significant differences between these two contracts, the statutory provisions applying to the contract for the supply of services have to be applied to the contract on the theater visit very carefully. The most significant peculiarities of the contract on a theater visit are the non-material nature of the suppliers' obligation, the purchaser's presence at the theater show, as a mode of accepting the service provided; the beginning and the end of the show as the time limits that are essential for the performance of the supplier's obligation; the theater ticket as an identification paper and not as a security. The contract on a theater visit also contains elements of a contract of lease in respect of the concrete visitor's seat in the theater. Consequently, the rules governing the lessor's liability for defects in the rented object apply. Finally, since the contract of the theater visit is concluded by purchasing the ticket, the rules governing the contract on sale also apply.

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Rola sądowego kuratora zawodowego i zakładu pracy w wykonywaniu kary ograniczenia wolności.

Author(s): Radosław Giętkowski / Language(s): Polish Issue: XXXVIII/2017

The article describes the rights and duties of the professional legal guardian and the workplace (other entity), in which the penalty of restriction of liberty is exercised, in regard to the enforcement of this penalty. The scope of these rights and duties my vary depending on the kind of the punishment – an obligation to perform not paid, controlled work for social purposes or deductions from the remuneration for work. The Author draws attention to loopholes, inaccuracies and inconsistencies in the applicable regulations which may impede the correct execution of the penalty of restriction of liberty. The incompleteness of the regulation is particularly evident with regard to the deductions from the remuneration for work.

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Charakter prawny Narodowego Programu Rozwoju Medycyny Transplantacyjnej

Author(s): Dominika Tykwińska-Rutkowska / Language(s): Polish Issue: XXXVIII/2017

The aim of the article is to define the legal nature of the Multi-annual Program 2011-2020 called the National Program for the Development of Transplantation Medicine. This program was adopted by the Council of Ministers on 12 October 2010 in the form of theResolution No. 164/2010 pursuant to art. 136 of the Act of 2009 on Public Finances and § 7a of the Resolution No. 49 of the Council of Ministers of 19 March 2002 –Rules of Procedure for the Council of Ministers. The analysis of the legal basis of the program as well as its content in connection with the provisions of other generally and internally binding regulations relevant to its implementation leads to the conclusion that the Program is a planning act that establishes current and investment tasks performed in accordance with the adopted schedule. Thus, in the light of the theory of administrative law, it constitutes an administrative policy act which, although is not a generally or internally binding normative act, complements the formal sources of administrative law in a functional sense asa policy act of the Council of Ministers concerning a specific sphere, and so the entities obliged to realize this policy are required to take it into account.

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Status prawny papierosów elektronicznych

Author(s): Małgorzata Balwicka-Szczyrba,Łukasz Balwicki / Language(s): Polish Issue: XXXVIII/2017

There are significant implications of legal regulation for the use of electronic cigarettes.The Authors determine the legal status of electronic cigarettes in the light of the amendedAct of 9 November 1995 on the Protection of Health from the Consequences of the Use ofTobacco and Tobacco Products, and evaluate its most important regulations concerning these products. In particular, it has been assumed that, in the light of current regulations, electronic cigarettes should not be classified as tobacco products but as other products subject to statutory regulation. It has also been pointed out in which areas the Act on theProtection of Health from the Consequences of the Use of Tobacco and Tobacco Products needs to be amended in order to provide real and effective protection from the effects of electronic cigarettes use.

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Aspekty prawne dywersyfikacji ryzyka zanieczyszczenia środowiska pomiędzy sprawcę, państwo i ubezpieczycieli

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

The aim of the article is to present the problem of ecological insurance which essentially means the use of insurance as a legal means to manage the risk of environmental pollution. It’s slow development is due to many reasons. The most important are: the lack of uniform conceptual apparatus, the interdisciplinary nature of insurance protection of the environment and the underestimation of the preventive function of insurance. The elimination of these barriers is facilitated by regulations and initiatives undertaken at the EU level.

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Ustawowe postaci mieszkaniowego rachunku powierniczego – rzeczywista czy pozorna wielowariantowość środków ochrony zapewnianej nabywcom zawierającym umowy deweloperskie?

Author(s): Bartłomiej Gliniecki / Language(s): Polish Issue: XXXVIII/2017

The article presents reflections on the practical use of the four variants of the housing trust account specified in the Act on the Protection of Rights of the Buyer of Housing Units or Single Family Homes. When confronting the legal structure and characteristics of each variant with the legitimate expectations of developers, banks conducting these accounts and buyers, one can argue that the degree of their dissemination will vary and their practical application will de facto determine the use of only one of them. The above thesis has been supported by market research showing that out of four statutory variants one is most popular and two are not used at all. At the same time, it is not difficult to notice a specific shape of the catalog of statutory variants of housing trust accounts, which is based on hedging instruments offered exclusively by banks, which is an exception in comparison to other similar regulations. This may cause the actual domination of banks in relations concerning the implementation of such safeguards, which may be detrimental to the interests of developers and potentially also buyers.

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Leges imperfectae w prawie

Author(s): Jarosław Niesiołowski / Language(s): Polish Issue: XXXVIII/2017

The article is devoted to the phenomenon of leges imperfectae in law. The name and the associated normative solutions have a long tradition going back to the Roman times.However, the issue has not been subject to deepened researches and is considered to be marginal. The article presents views on this phenomenon presented in the polish legal studies. Regardless of the above, the subject of the analysis is both the nature of the statements which the legislator is using in case of leges imperfectae, as well as issues related to the concept of a legal sanction. The results of the research lead to the conclusion that the normativity of legislator’s expression, understood as the intention to have impact on the behavior of recipients, and the binding force have in contemporary law differential character and leges imperfectae should be located in the sphere of soft law, as a kind of directives, not deprived of the effective aspiration on the behavior of recipients. In case of leges imperfectae sanctions should be recognized linguistically, as a lack of announcement of legal sanctions on the basis of legislation. Analyses show, that the cause of leges imperfectae appearing in law may be an error in the field of law-making techniques, caused by forgetting to establish legal sanctions, as well as a rational action of legislator associated with the impossibility or inexpediency of providing legal sanctions. The inability of establishing legal sanctions will happen, for example, in constitutional law where an important role is played by even political sanctions. The futility of establishing legal sanctions can be observed in family and guardianship law. Due to the fact that marital relations as well as the relations between parents and children are a very delicate sphere of behavior, in which the legislator enters with a big moderation, taking into account the regulations from moral and religious rules related to this sphere. The futility of establishing legal sanctions will be present also in wider economic law because, as the experience has shown, the command and-control economy does not lead to the desired result.

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Zasada dwuinstancyjności a zasada zaskarżalności rozstrzygnięć wydawanych w postępowaniu administracyjnym w pierwszej instancji (uwagi na tle orzecznictwa Trybunału Konstytucyjnego)

Author(s): Mariusz Bogusz / Language(s): Polish Issue: XXXVIII/2017

The article is devoted to the relationship between the principle of two instances and the principle of the challenge ability of decisions issued at first instance in administrative proceedings considered on the background of the case-law of the Constitutional Tribunal concerning art. 78 of the Constitution. The Author points out differences between the two principles and presents the Constitutional Tribunal’s judgements regarding the limits of admissible derogation in administrative proceedings from the constitutional principle of challenging decisions issued at first instance.

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Особенности механизма правового воздействия

Author(s): Ekaterina Shcherbakova / Language(s): Russian Issue: 2/2017

The importance of studying law as one of the most efficient means of social control and regulation has been raised in the paper. Solving this problem requires understanding the mechanism by which law influences society and people. The aim of the study is to develop a concept of phased action of the mechanism of legal effect as of a separate and individual phenomenon of the legal reality. To achieve the aim of the study, the following research methods have been used: analysis, synthesis, and systematization. Legal effect has been considered as one of the most complex and little known phenomena in jurisprudence, i.e., in the theory of state and law, and distinguished from the similar legal category of legal regulation. The paper analyzes different views on the mechanism of legal effect. Thus, this concept has been defined. Its essence and characteristics have been revealed. Such characteristic of the mechanism of legal effect as dynamics has been discussed in detail. Various forms of legal effect have been analyzed. Furthermore, key elements in the structure of the concept under study have been investigated. The main phases of legal effect have been singled out. Their order and legal means used at each stage have been found.

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Wykorzystanie standardów organizacji biznesowych w zakresie raportowania społecznego w działalności sądów powszechnych

Author(s): Przemysław Banasik / Language(s): Polish Issue: 4/2017

he aim of the article is to present an original model of social reporting in courts. Thus, an attempt has been made to fill the cognitive gap in terms of using our knowledge of social reporting in public organization. The article includes both appropriate methods for quantitative and qualitative research in other words the so-called mixed method design. Literature of the subject and empirical research from secondary sources have been used, as well as multiple case studies. Analysis conducted by the author shows that besides their statutory-judicature, the courts more and more often interact with their stakeholders by taking pro-social action. They do not make it in systemic way, and most often they fail to communicate those activities to the local community. Social reporting may provide a perfect tool that allows not only control of the socially engaged actions undertaken by the courts, but also their ordering, coordination and monitoring. It also involves the employees and other stakeholders in court management.

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