Legal expert opinion on a Government bill to amend the Railway Transport Act and the Act on the M... more Legal expert opinion on a Government bill to amend the Railway Transport Act and the Act on the Mass Public Transport System (Sejm Paper No 3427) (BAS- 1475-1415): The bill’s aim is to remedy the deficiencies described in the opinion of the European Commission. The author of the opinion argues that the proposal, in its present form, responds to the Commission’s objections and, in the end, implements Directive 2012/34 / EU. It is possible to make further amendments to the bill, which would even interfere with its original assumptions, but they should be made through amendments rather than by notification of a new, modified, bill. Any possible changes in the text of the bill will not require repeat public consultations, provided that they are consistent with its original subject-matter.
In the Resolution of the seven-judge panel of 11 December 2019, Ref. No. III UZP 7/19, the Suprem... more In the Resolution of the seven-judge panel of 11 December 2019, Ref. No. III UZP 7/19, the Supreme Court judged that the pension authority may choose the contribution payer to be an entity obliged to return the benefit unduly received by the insured, completely ignoring the issue of possible negligence of the payer and the possibility of reimbursement claim for benefits from the person to whom they were paid. The Supreme Court held that the mere sending of payment data by the payer is a sufficient prerequisite for the reimbursement request. Thus, the Supreme Court resolved a dispute between two competing trends in case law on this issue. In the Authors’ opinion, the commented resolution may in practice result in many negative implications for contribution payers, who often have no influence on the data provided to the pension authority. Such a restrictive view also raises doubts of constitutional nature.
Legal expert opinion on a Government bill to amend the Railway Transport Act and the Act on the M... more Legal expert opinion on a Government bill to amend the Railway Transport Act and the Act on the Mass Public Transport System (Sejm Paper No 3427) (BAS- 1475-1415): The bill’s aim is to remedy the deficiencies described in the opinion of the European Commission. The author of the opinion argues that the proposal, in its present form, responds to the Commission’s objections and, in the end, implements Directive 2012/34 / EU. It is possible to make further amendments to the bill, which would even interfere with its original assumptions, but they should be made through amendments rather than by notification of a new, modified, bill. Any possible changes in the text of the bill will not require repeat public consultations, provided that they are consistent with its original subject-matter.
This gloss concerns a resolution of the Supreme Court in which the Court was supposed to settle t... more This gloss concerns a resolution of the Supreme Court in which the Court was supposed to settle the question of the starting point of the limitation period for claims for redressing damage resulting from the non-performance or improper performance of an obligation. Said issue continues to raise doubts in the doctrine and judicial decisions, despite the fact that regulations governing this matter have remained unchanged for the past fifty years. In light of the views presented on this subject, the limitation period in the aforementioned situation may commence at the time the obligation is breached, at the time the damage occurs, or at the time the creditor becomes aware of the damage. In the resolution discussed, the Supreme Court held that the limitation period for claims for redressing damage arising from a breach of contract begins at the time the pecuniary loss occurs. Hence, in view of the position taken by the Court, it is possible to seek redress from the debtor for the damage even years after the lapse of the time limit set for the performance of the obligation. The lapse of time between the date the obligation was breached and the occurrence of the damage to the creditor is of no significance in establishing the compensatory liability of the contractual debtor. Thus, an individual who fails to perform an obligation or performs it improperly enters an indefinite period of liability for the damage caused by the violation of the concluded contract. This resolution is a departure from the way the courts tend to rule. The gloss is critical in character.
This gloss pertains to a resolution of seven justices of the Supreme Court, in which the Court, a... more This gloss pertains to a resolution of seven justices of the Supreme Court, in which the Court, acting upon motion of the First President of the Court, considered apparent discrepancies in the practice of registry courts regarding the construction of regulations on proxies. Said inconsistencies concern the admissibility of entering a single proxy into the register of entrepreneurs of the National Court Register, with the reservation that such a proxy may only act jointly with a member of the Management Board. This type of proxy is known in the doctrine and judicial decisions as improper joint proxy. In the prior judicial decisions of 1938 and 2001, the Supreme Court had ruled in favor of admitting such proxy grants, while concurrently emphasizing the utility of this solution for the participants in business transactions. However, in the resolution discussed, the Supreme Court departed from the previously-held position, finding that an improper joint proxy appointment is not possible from a de lege lata perspective. The Civil Code does not provide for granting an improper joint proxy. Furthermore, in view of the statutory prohibition of limitations on proxy effective against third parties, a proxy holder’s freedom to act may not be made conditional upon the proxy’s cooperation with a Management Board member. In addition, the Supreme Court pointed out that the very act of granting a proxy is a unilateral legal transaction. In the Polish legal system, legal transactions are governed by a numerus clausus principle, which means that they may be effected only if the law so provides. Since the law does not expressly provide for granting a proxy to a single individual with the reservation that he or she may only act jointly with a member of the Management Board, then the granting of such a proxy would constitute an infringement of the numerus clausus principle of unilateral legal transactions. This gloss is favorable to the Supreme Court’s ruling. The author presents the arguments employed in earlier judgments and juxtaposes them against the Court’s current stance. Despite his support for the Supreme Court’s legal argumentation, the author disagrees with the opinion included in the statement of reasons for the resolution, which finds that improper joint proxy is not a useful tool for business entities. Recognizing its practical use and putting forth an assumption that improper joint proxy would not generate any risks for the participants in business transactions, the author, de lege ferenda, supports its introduction into the legal system as a fourth type of a proxy.
Nowadays, the notion of the State Treasury does not generate particular interest in the legal doc... more Nowadays, the notion of the State Treasury does not generate particular interest in the legal doctrine. This situation raises concerns because opinions on said entity’s nature presented in the literature on the subject often contradict one another. The view granting the State Treasury permission to exercise so-called imperious powers (i.e. state control that includes the possible use of coercive measures) is gaining more and more support among authors. In this light, the State Treasury is presented as an entity of dual character which acts as the state in fulfilling the functions of both the imperium and dominium spheres. This article aims to confront one view on the exercise of imperious powers by the State Treasury which is already quite well represented in the doctrine. The author argues that the aforementioned view is contrary to the traditional and well-established conclusions regarding the nature of the entity in question. Applicable regulations governing the legal status of the State Treasury and judicial decisions of general jurisdiction courts constitute the point of reference for the reflections contained in the article.
The new regulation which constitutes a restriction on freedom of economic activity is incompatibl... more The new regulation which constitutes a restriction on freedom of economic activity is incompatible with Article 20, Article 22 and Article 31 paragraph 3 of the Constitution of the Republic of Poland. It would be difficult to prove that it meets the test of proportionality.
The aim of this article is to review selected historical aspects of government budget and budgeta... more The aim of this article is to review selected historical aspects of government budget and budgetary legislation in Poland. Starting with the explanation of the contemporary understanding of the budget, the author explores how this concept evolved and was understood in the past. The paper draws from both Polish and European experience.
Legal expert opinion on a Government bill to amend the Railway Transport Act and the Act on the M... more Legal expert opinion on a Government bill to amend the Railway Transport Act and the Act on the Mass Public Transport System (Sejm Paper No 3427) (BAS- 1475-1415): The bill’s aim is to remedy the deficiencies described in the opinion of the European Commission. The author of the opinion argues that the proposal, in its present form, responds to the Commission’s objections and, in the end, implements Directive 2012/34 / EU. It is possible to make further amendments to the bill, which would even interfere with its original assumptions, but they should be made through amendments rather than by notification of a new, modified, bill. Any possible changes in the text of the bill will not require repeat public consultations, provided that they are consistent with its original subject-matter.
In the Resolution of the seven-judge panel of 11 December 2019, Ref. No. III UZP 7/19, the Suprem... more In the Resolution of the seven-judge panel of 11 December 2019, Ref. No. III UZP 7/19, the Supreme Court judged that the pension authority may choose the contribution payer to be an entity obliged to return the benefit unduly received by the insured, completely ignoring the issue of possible negligence of the payer and the possibility of reimbursement claim for benefits from the person to whom they were paid. The Supreme Court held that the mere sending of payment data by the payer is a sufficient prerequisite for the reimbursement request. Thus, the Supreme Court resolved a dispute between two competing trends in case law on this issue. In the Authors’ opinion, the commented resolution may in practice result in many negative implications for contribution payers, who often have no influence on the data provided to the pension authority. Such a restrictive view also raises doubts of constitutional nature.
Legal expert opinion on a Government bill to amend the Railway Transport Act and the Act on the M... more Legal expert opinion on a Government bill to amend the Railway Transport Act and the Act on the Mass Public Transport System (Sejm Paper No 3427) (BAS- 1475-1415): The bill’s aim is to remedy the deficiencies described in the opinion of the European Commission. The author of the opinion argues that the proposal, in its present form, responds to the Commission’s objections and, in the end, implements Directive 2012/34 / EU. It is possible to make further amendments to the bill, which would even interfere with its original assumptions, but they should be made through amendments rather than by notification of a new, modified, bill. Any possible changes in the text of the bill will not require repeat public consultations, provided that they are consistent with its original subject-matter.
This gloss concerns a resolution of the Supreme Court in which the Court was supposed to settle t... more This gloss concerns a resolution of the Supreme Court in which the Court was supposed to settle the question of the starting point of the limitation period for claims for redressing damage resulting from the non-performance or improper performance of an obligation. Said issue continues to raise doubts in the doctrine and judicial decisions, despite the fact that regulations governing this matter have remained unchanged for the past fifty years. In light of the views presented on this subject, the limitation period in the aforementioned situation may commence at the time the obligation is breached, at the time the damage occurs, or at the time the creditor becomes aware of the damage. In the resolution discussed, the Supreme Court held that the limitation period for claims for redressing damage arising from a breach of contract begins at the time the pecuniary loss occurs. Hence, in view of the position taken by the Court, it is possible to seek redress from the debtor for the damage even years after the lapse of the time limit set for the performance of the obligation. The lapse of time between the date the obligation was breached and the occurrence of the damage to the creditor is of no significance in establishing the compensatory liability of the contractual debtor. Thus, an individual who fails to perform an obligation or performs it improperly enters an indefinite period of liability for the damage caused by the violation of the concluded contract. This resolution is a departure from the way the courts tend to rule. The gloss is critical in character.
This gloss pertains to a resolution of seven justices of the Supreme Court, in which the Court, a... more This gloss pertains to a resolution of seven justices of the Supreme Court, in which the Court, acting upon motion of the First President of the Court, considered apparent discrepancies in the practice of registry courts regarding the construction of regulations on proxies. Said inconsistencies concern the admissibility of entering a single proxy into the register of entrepreneurs of the National Court Register, with the reservation that such a proxy may only act jointly with a member of the Management Board. This type of proxy is known in the doctrine and judicial decisions as improper joint proxy. In the prior judicial decisions of 1938 and 2001, the Supreme Court had ruled in favor of admitting such proxy grants, while concurrently emphasizing the utility of this solution for the participants in business transactions. However, in the resolution discussed, the Supreme Court departed from the previously-held position, finding that an improper joint proxy appointment is not possible from a de lege lata perspective. The Civil Code does not provide for granting an improper joint proxy. Furthermore, in view of the statutory prohibition of limitations on proxy effective against third parties, a proxy holder’s freedom to act may not be made conditional upon the proxy’s cooperation with a Management Board member. In addition, the Supreme Court pointed out that the very act of granting a proxy is a unilateral legal transaction. In the Polish legal system, legal transactions are governed by a numerus clausus principle, which means that they may be effected only if the law so provides. Since the law does not expressly provide for granting a proxy to a single individual with the reservation that he or she may only act jointly with a member of the Management Board, then the granting of such a proxy would constitute an infringement of the numerus clausus principle of unilateral legal transactions. This gloss is favorable to the Supreme Court’s ruling. The author presents the arguments employed in earlier judgments and juxtaposes them against the Court’s current stance. Despite his support for the Supreme Court’s legal argumentation, the author disagrees with the opinion included in the statement of reasons for the resolution, which finds that improper joint proxy is not a useful tool for business entities. Recognizing its practical use and putting forth an assumption that improper joint proxy would not generate any risks for the participants in business transactions, the author, de lege ferenda, supports its introduction into the legal system as a fourth type of a proxy.
Nowadays, the notion of the State Treasury does not generate particular interest in the legal doc... more Nowadays, the notion of the State Treasury does not generate particular interest in the legal doctrine. This situation raises concerns because opinions on said entity’s nature presented in the literature on the subject often contradict one another. The view granting the State Treasury permission to exercise so-called imperious powers (i.e. state control that includes the possible use of coercive measures) is gaining more and more support among authors. In this light, the State Treasury is presented as an entity of dual character which acts as the state in fulfilling the functions of both the imperium and dominium spheres. This article aims to confront one view on the exercise of imperious powers by the State Treasury which is already quite well represented in the doctrine. The author argues that the aforementioned view is contrary to the traditional and well-established conclusions regarding the nature of the entity in question. Applicable regulations governing the legal status of the State Treasury and judicial decisions of general jurisdiction courts constitute the point of reference for the reflections contained in the article.
The new regulation which constitutes a restriction on freedom of economic activity is incompatibl... more The new regulation which constitutes a restriction on freedom of economic activity is incompatible with Article 20, Article 22 and Article 31 paragraph 3 of the Constitution of the Republic of Poland. It would be difficult to prove that it meets the test of proportionality.
The aim of this article is to review selected historical aspects of government budget and budgeta... more The aim of this article is to review selected historical aspects of government budget and budgetary legislation in Poland. Starting with the explanation of the contemporary understanding of the budget, the author explores how this concept evolved and was understood in the past. The paper draws from both Polish and European experience.
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1475-1415): The bill’s aim is to remedy the deficiencies described in the opinion of the European Commission. The author of the opinion argues that the proposal, in its
present form, responds to the Commission’s objections and, in the end, implements Directive 2012/34 / EU. It is possible to make further amendments to the bill, which
would even interfere with its original assumptions, but they should be made through amendments rather than by notification of a new, modified, bill. Any possible changes
in the text of the bill will not require repeat public consultations, provided that they are consistent with its original subject-matter.
1475-1415): The bill’s aim is to remedy the deficiencies described in the opinion of the European Commission. The author of the opinion argues that the proposal, in its
present form, responds to the Commission’s objections and, in the end, implements Directive 2012/34 / EU. It is possible to make further amendments to the bill, which
would even interfere with its original assumptions, but they should be made through amendments rather than by notification of a new, modified, bill. Any possible changes
in the text of the bill will not require repeat public consultations, provided that they are consistent with its original subject-matter.