Suchergebnisse

Die Vorbereitungen laufen bereits viele Jahre, nun liegt er endlich vor: der Entwurf der Europäischen Kommission für ein Gemeinsames Europäisches Kaufrecht als Optionales Instrument. Beteiligte an den Vorarbeiten und wichtige Kritiker derselben setzen sich in diesem höchst empfehlenswerten Buch mit dem Kommissionsentwurf auseinander. Wie wird die Harmonisierung des europäischen Vertragsrechts durch den Entwurf vorangetrieben? Wie "schlägt" sich der Entwurf im Vergleich zum BGB, zum DCFR oder zu den Acquis-Principles? Beleuchtet werden insbesondere Irrtumsanfechtung, AGB-Kontrolle, allgemeines und besonderes Leistungsstörungsrecht beim Kauf und bei verbundenen Dienstleistungen sowie übergreifende Fragestellungen zum Verbraucherrecht. Der Band wird abgerundet durch eine Synopse des Kommissionsentwurfs und der vorangegangenen Machbarkeitsstudie, in der die Entwicklung des Textes deutlich wird.

The Law Amending the General Administrative Procedure Act refers to a variety of provisions. New solutions should contribute to a more rapid, more efficient and more cost-effective procedure. Primarily due to elimination of the inconsistent use of individual provisions in practice, the amending law regulates more definitely the issues of authorizing the persons to manage and make decisions at different decision-making levels in administrative procedures in municipalities. The law also develops electronic operations and it especially amends the electronic service provisions. There is a fairly large number of amendments in the Service Chapter. And an important novelty needs to be emphasized. This is the institute of the waiver of the right to appeal which the General Administrative Procedure Act did not know. However, it is well-known in foreign legal regulations and in the Construction Act adopted in our country. Adapted from the source document.

Traditionally, the quality of law is associated with observing certain principles of law making, the so-called principles of good legislation. Such a way of thinking, however, seems to be an over-simplification. Thus, the author indicates that the high-quality of legislation and the principles of good legislation are not the same. Law passed on the basis of good legislation procedures does not automatically result in the high-quality law, in particular, if one makes an assumption that the quality of law depends, above all, on legal certainty being ensured. The reflections presented here express an opinion on the immediate connection between the quality of law and the theory of law. In this perspective, thoughts on the quality of law resulted in an opinion how firmly the process of improvement in law quality is associated with the development of the theory of law. As regards the studies on the quality of law as a measure of legal certainty, three issues are pointed out in the material: 1. the quality of law from the point of view of its formation in reference to certain general social phenomena, 2. the quality of law relating to a person, 3. the quality of law in judicial activities.

This article deals with the evaluation of some of the new and significantly modified concepts included in the Tax Ordinance bill. The proposed bill introduces a number of previously non-existent regulations (e.g. non-executive forms of settlement) into the general tax law, it codifies the general principles of the tax law, and substantially modifies some of the existing regulations (e.g. statutes of limitation, correction of declarations). The purpose of the publication is to clarify these regulations and to indicate possible changes, which the author finds essential, to the proposed legislation. ; Artykuł poświęcony jest ocenie niektórych nowych oraz istotnie zmodyfikowanych instytucji, zawartych w projekcie ustawy Ordynacja podatkowa. Przedstawiony projekt wprowadza bowiem do ogólnego prawa podatkowego szereg instytucji dotychczas w nim nieistniejących (np. niewładcze formy załatwiania spraw), kodyfikuje ogólne zasady prawa podatkowego, a także w sposób istotny modyfikuje niektóre z obecnie obowiązujących przepisów (np. przedawnienie, korygowanie deklaracji). Celem publikacji jest przybliżenie tych instytucji oraz wskazanie ewentualnych niezbędnych, zdaniem autorki, zmian proponowanych przepisów

The special legal nature of the concession contract (as one of the legal transactions) which represents a legal framework where the public & private interests meet (two parties cooperate for mutual benefit) is characterized by intertwining of general rules of obligation law & special legal institutes that originate from the sphere of public law. The legal nature of the contractual relationships that arise between administrative & private entities requires special regulation of individual institutes that should reflect the public interest as an important guiding principle for concluding these contracts, & a special legal position of a public law entity as a holder of this public interest. Despite adoption of the new Public-Private Partnership Act in the legislative regulation of the concession contract that still remains variously regulated in previously adopted special provisions of sectoral laws, there are still some deficiencies & dilemmas that are more or less effectively dealt with in the contractual practice. For the legal positions that are classically civil at first sight, the legislator or court practice have laid down special modified rules of civil law in most developed countries. In the course of time, these rules became part of public law/administrative law. Thus, the French legal order has best developed the rules of the public contractual law & the legal institute of the administrative contract that the Slovenian administrative theoreticians try more & more to introduce also into our legal order. References. Adapted from the source document.

Deprivation of an entity of acquired rights deriving from an administrative act is possible through the combined application of administrative provisions of substantive and procedural law. The limits of durability acquired under an administrative decision rights are the constitutional principle of the protection of acquired rights and the general principles of administrative procedure. The permanence of the right acquired by the administrative decision is not absolute. Repeal or change of the administrative decision is possible only in the mode provided in the law, since the administrative decision makes use of the presumption of regularity. The deprivation of administrative and legal powers in the area of public law takes place in the context of an assessment of the implementation of an administrative decision carried out by a state body. This assessment is possible with the use of two procedural institutions for the expiry of an administrative decision and a substantive institution for the withdrawal of rights. The body assesses whether the addressee of an administrative act has implemented the administrative decision not only in accordance with its content but also the provisions of the generally applicable law. The deprivation of a party of an acquired right is often accompanied by the need to award damages (grant compensation). The procedure and premises for claiming compensation liability have been regulated in the provisions of substantive administrative law. The principle of the effectiveness of public administration bodies is one of the basic principles of administrative law. Its application is not limited only to the creation of law, but also includes the application of law by public administration bodies. The problem of the efficiency of operations of state bodies is of particular importance not only in the area of enforceability of an administrative decision, but also its authorising function. The efficiency of operations of entities in the State structure is assessed through the prism of the implementation of a given administrative decision.

Deprivation of an entity of acquired rights deriving from an administrative act is possible through the combined application of administrative provisions of substantive and procedural law. The limits of durability acquired under an administrative decision rights are the constitutional principle of the protection of acquired rights and the general principles of administrative procedure. The permanence of the right acquired by the administrative decision is not absolute. Repeal or change of the administrative decision is possible only in the mode provided in the law, since the administrative decision makes use of the presumption of regularity. The deprivation of administrative and legal powers in the area of public law takes place in the context of an assessment of the implementation of an administrative decision carried out by a state body. This assessment is possible with the use of two procedural institutions for the expiry of an administrative decision and a substantive institution for the withdrawal of rights. The body assesses whether the addressee of an administrative act has implemented the administrative decision not only in accordance with its content but also the provisions of the generally applicable law. The deprivation of a party of an acquired right is often accompanied by the need to award damages (grant compensation). The procedure and premises for claiming compensation liability have been regulated in the provisions of substantive administrative law. The principle of the effectiveness of public administration bodies is one of the basic principles of administrative law. Its application is not limited only to the creation of law, but also includes the application of law by public administration bodies. The problem of the efficiency of operations of state bodies is of particular importance not only in the area of enforceability of an administrative decision, but also its authorising function. The efficiency of operations of entities in the State structure is assessed through the prism of the implementation of a given administrative decision.

The article presents legal solutions of the European Union (EU) and Member States (MS) with respect to the digitalisation of company law. We analyse and evaluate the EU's efforts to overcome the backlog of legislation concerning technological development, with legal solutions in the field of the electronic formation and registration of companies and in shareholders' communication with company board members. The analysis shows that company law in the EU is lagging behind technological development. Despite ongoing dynamic efforts to modernise it on the EU level, the MS reveal differences in their speed of implementing the EU's directives. The case of Slovenia shows that while digital tools are in wide use for ensuring transparent data disclosure and publication, along with the realisation of basic corporate governance functions, big differences remain between the minority of companies traded on the regulated market and the majority of companies for which such regulation is deficient. Keywords: digitalisation, electronic means, block chain technology, company registration, shareholders' general meeting (SGM), COVID-19 pandemic

During the political transformation in Poland, electoral law was frequently changed. The general principles, already adopted in 1991, were maintained in parliamentary elections (to the Sejm). The changes only affected the detailed solutions concerning how the votes were calculated as mandates, and the sizes of constituencies. The so-called elective thresholds, which were introduced in 1993, have been maintained. In practice, the result of the current system of parliamentary elections is that the parties that attract approximately 25% of the votes cast by all those authorized to vote, win over half the parliamentary mandates, thereby exercising power. Therefore, the claim that a democratic electoral system is based on the principle of majority rule seems doubtful here, as what we actually get entails the rule of the largest social group, or at least the one that has the most effective organization. Contrary to popular belief, the majority elections to the Senate do not change the above rule. A voter supporting a given candidate in these elections is mainly directed by the political group which supports this candidate. The electoral system to the Senate was finally formed in 1991 and only slightly amended in 2001. Asingle-mandate constituency in the elections to the upper chamber of the parliament was only introduced by Electoral Law in 2011. ; During the political transformation in Poland, electoral law was frequently changed. The general principles, already adopted in 1991, were maintained in parliamentary elections (to the Sejm). The changes only affected the detailed solutions concerning how the votes were calculated as mandates, and the sizes of constituencies. The so-called elective thresholds, which were introduced in 1993, have been maintained. In practice, the result of the current system of parliamentary elections is that the parties that attract approximately 25% of the votes cast by all those authorized to vote, win over half the parliamentary mandates, thereby exercising power. Therefore, the claim that a democratic electoral system is based on the principle of majority rule seems doubtful here, as what we actually get entails the rule of the largest social group, or at least the one that has the most effective organization. Contrary to popular belief, the majority elections to the Senate do not change the above rule. A voter supporting a given candidate in these elections is mainly directed by the political group which supports this candidate. The electoral system to the Senate was finally formed in 1991 and only slightly amended in 2001. Asingle-mandate constituency in the elections to the upper chamber of the parliament was only introduced by Electoral Law in 2011.

Socialisation of private law in the second half of the 19th century brought about a new approach to a civil process and its purpose. The main characteristics of the evolution of the civil procedure in the 19th and 20th centuries was limited autonomy of the parties to a process. This limitation was introduced to ensure fair, expedient and cost-effective judgment. A tendency to replace the principle of an adversarial trial with elements of an inquisitorial trial was observed in civil law as well as common law systems. Relevant changes were fi rst made in the Franz Klein Austrian code of civil procedure, followed by departures from the formal truth in the civil process implemented in the system in Germany, Hungary, the Swiss cantons of Zurich and Bern, in Poland, and later, in the second half of the 20th century, also in France. In the common law system, the reform of 1999 ascertained judges a number of discretionary powers to help them establish the facts in a civil proceeding. Those changes added the public element in the civil procedure, but the very idea of a private process and the protection of private interests has been maintained. The totalitarian regimes which emerged in some European states considerably distorted the process of shaping the relationship between the state and the individual. In the socialist civil proceeding, the principle ne eat iudex ultra petita partium was replaced with ex offi cio ultra petita, which was a novelty characteristic of the civil procedure of totalitarian states. The departure from an adversarial principle in the socialist civil process was not much different from the general tendencies observed in the civil procedure in West European states. After the political transformations and change of the regime, former states of the Eastern Bloc sought to signifi cantly increase the autonomy of the parties in a civil process. However, as experience of the Western European states shows, certain public elements must be taken into account in a civil procedure if the European Convention on Human Rights is to be observed.

Socialisation of private law in the second half of the 19th century brought about a new approach to a civil process and its purpose. The main characteristics of the evolution of the civil procedure in the 19th and 20th centuries was limited autonomy of the parties to a process. This limitation was introduced to ensure fair, expedient and cost-effective judgment. A tendency to replace the principle of an adversarial trial with elements of an inquisitorial trial was observed in civil law as well as common law systems. Relevant changes were fi rst made in the Franz Klein Austrian code of civil procedure, followed by departures from the formal truth in the civil process implemented in the system in Germany, Hungary, the Swiss cantons of Zurich and Bern, in Poland, and later, in the second half of the 20th century, also in France. In the common law system, the reform of 1999 ascertained judges a number of discretionary powers to help them establish the facts in a civil proceeding. Those changes added the public element in the civil procedure, but the very idea of a private process and the protection of private interests has been maintained. The totalitarian regimes which emerged in some European states considerably distorted the process of shaping the relationship between the state and the individual. In the socialist civil proceeding, the principle ne eat iudex ultra petita partium was replaced with ex offi cio ultra petita, which was a novelty characteristic of the civil procedure of totalitarian states. The departure from an adversarial principle in the socialist civil process was not much different from the general tendencies observed in the civil procedure in West European states. After the political transformations and change of the regime, former states of the Eastern Bloc sought to signifi cantly increase the autonomy of the parties in a civil process. However, as experience of the Western European states shows, certain public elements must be taken into account in a civil procedure if the European Convention on Human Rights is to be observed.

The article covers the legal and tax aspects of the implementation of general anti-avoidance clause in Polish tax law, including the historical outline of the clause, its essence, and the usefulness of achieving the legislator's intended effects. The article deals with the disadvantages and advantages of the clause, its compliance with constitutional regulations, as well as the institution of GAAR protective tax opinions and the position of the Council on counteracting tax evasion. ; Artykuł omawia prawne i podatkowe aspekty wdrożenia do polskiego prawa podatkowego klauzuli o przeciwdziałaniu unikania opodatkowania, rys historyczny klauzuli, jej istotę oraz przydatność dla osiągnięcia zamierzonych przez ustawodawcę efektów. Artykuł odnosi się również do kwestii wad i zalet klauzuli, konstytucyjności regulacji oraz instytucji opinii zabezpieczających i pozycji Rady do Spraw Przeciwdziałania Unikaniu Opodatkowania.

Climate law is a fast-developing branch of law. It is regulated in a multi-centric way, since as a global issue, it needs systemic solutions that would be broader than national ones. Climate protection can also be achieved through the implementation of human rights, including the right to court. Thus, the multi-level regulation as a lex generalis is accompanied with a lex specialis regulation governing the right to court from a collective perspective and linked strictly with climate law under Article 9 of the Aarhus Convention. The theoretical and indirect aim of the article is to emphasise the relationship of environmental law in general and climate law in particular with human rights, using the example of the right to court. The direct and practical aim is to demonstrate in a horizontal manner the role of the Convention in the case law of the Polish Supreme Administrative Court. The essence of the problem is the finding of the lack of direct effect of the Convention, which weakens this protection. The article is of a scientific and research nature and the analysis of the previous case law may have cognitive value for practice. The first part provides a theoretical and legal outline of introductory issues, showing the links between human rights and climate law and the scope of application of the Aarhus Convention. The second part, concerning research materials and methods, contains an analysis of the provisions of Article 9 of the Convention made using the logical-linguistic method and teleological interpretation. The third part shows the results of the interpretation search carried out by the Supreme Administrative Court, some of them being widely accepted and some controversial. Polish administrative courts, when deciding on environmental matters under Polish administrative law, co-apply together with Polish national law the normative acts of European law, including the Aarhus Convention. However, the wording of its provisions precludes, according to the established case law, the possibility of their direct application, thus pointing to the importance of legislative actions, and administrative courts cannot substitute the legislature in this activity. It was noted in the conclusion that the implementation of the Convention is "generally correct", which does not mean, however, that it implements the Aarhus-type principles in full and comprehensive. ; Prawo klimatu stanowi bardzo dynamiczną gałąź prawa. Jest regulowane multicentrycznie, gdyż jako problem globalny potrzebuje szerszych niż państwowe rozwiązań systemowych. Ochrona klimatu może się odbywać również poprzez realizację praw człowieka, w tym prawa do sądu. Do wielopoziomowej regulacji jako lex generalis dochodzi więc regulacja lex specialis, w myśl której prawo do sądu uregulowano w ujęciu kolektywnym i powiązano stricte z prawem klimatu w art. 9 Konwencji z Aarhus. Celem teoretycznym i pośrednim artykułu jest zaakcentowanie związku prawa ochrony środowiska w ogólności, a prawa klimatu w szczególności, z prawami człowieka na przykładzie prawa do sądu. Celem bezpośrednim i praktycznym jest ukazanie w sposób przekrojowy roli Konwencji z w orzecznictwie Naczelnego Sądu Administracyjnego (NSA). Istotę problemu stanowi uznanie braku bezpośredniej skuteczności Konwencji, co osłabia wspomnianą ochronę. Artykuł ma charakter naukowo-badawczy, a analiza dotychczasowego orzecznictwa może mieć wartość poznawczą dla praktyki. Pierwsza część zawiera rys teoretycznoprawny i dotyczy zagadnień wprowadzających, ukazując połączenia praw człowieka z prawem klimatu oraz zakres obowiązywania Konwencji z Aarhus. Druga część dotyczy materiałów i metod badawczych oraz zawiera analizę przepisów art. 9 Konwencji dokonaną przy użyciu metody logiczno-językowej i celowościowej wykładni. W części trzeciej ukazano – niekiedy niebudzące kontrowersji, niekiedy dyskusyjne – rezultaty poszukiwań interpretacyjnych dokonywanych przez NSA. Orzekając w sprawach środowiskowych wynikających z polskiego prawa administracyjnego, NSA współstosuje z prawem krajowym akty normatywne należące do prawa europejskiego, w tym także Konwencję. Jednak sposób sformułowania jej przepisów wyklucza, w myśl linii orzeczniczej, możliwość ich bezpośredniego zastosowania, podnosząc tym samym ważkość działań legislacyjnych, a sądy administracyjne nie mogą zastąpić w tym zakresie ustawodawcy. W ramach konkluzji podkreślono, że implementacja Konwencji jest "zasadniczo prawidłowa", co nie oznacza jednak implementacji w pełni realizującej Aarhus-type principles.