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Umowa jako prawna forma działania administracji publicznej w polskiej i niemieckiej doktrynie prawa publicznego

100%
Sancewicz P.
Studia Prawa Publicznego
|
2019
|
issue 1(25)
55-79
EN
Within the administrative construction of legal forms of public administration activity developed by the doctrine of administrative law, one may distinguish both a civil-law contract (private-law), as well as an agreement having certain features of a public-law contract. The German doctrine of public law, has long been struggling with problems of legal qualification of contracts used as legal forms of action by public administration entities. As part of the work undertaken by the German doctrine of public law, a two step theory, a concept of contract law in administration and a model administrative contract have been developed. Approximation of these theories allowed the Polish doctrine of public law to identify the most important features, which should characterise the theoretical construction of a public-law contract concluded with a citizen or an administrative contract. First of all, it should be concluded by a public administration entity on the basis of its competence. The administrative agreement should concern the relationship between the administration and the citizens. Secondly, the subject matter of the contract should be governed by public law and relate exclusively to the performance of public administration tasks. Thirdly, disputes arising from an administrative agreement should be submitted to the jurisdiction of administrative courts. The article shows that from the point of view of legal protection of the individual this is a crucial matter. Although the legislator has not decided to introduce an administrative agreement into the Polish legal system, many of the contracts already in operation under Polish law have certain features which at least in part resemble the administrative agreement described above. Such an administrative agreement often concerns the relationship between public administration and the citizen and is concluded in connection with the performance of public tasks. De lege ferenda the conclusion of an administrative contract should be subject to review by the administrative courts.
2
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Współpraca gminy z inwestorem w sferze planowania przestrzennego

100%
Błażewski M.
Roczniki Nauk Prawnych
|
2022
|
vol. 32
|
issue 3
27-38
EN
The model of cooperation between the commune and the investor in the sphere of spatial planning covers two levels: 1. the preparation of the act of spatial planning and 2. the implementation of the act of spatial planning. This model does not include social participation. Legal provisions significantly limit the scope of use this model.
PL
Model współpracy gminy z inwestorem w sferze planowania przestrzennego obejmuje dwie płaszczyzny przygotowania aktu planowania przestrzennego oraz realizację aktu planowania przestrzennego. model ten jest odrębny względem partycypacji społecznej. Przepisy prawa ograniczają znacząco zakres stosowania tego modelu.
3
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Swoboda wyboru prywatnoprawnej formy działania administracji gospodarczej w polskiej i niemieckiej doktrynie prawa publicznego

87%
Sancewicz P.
Studia Prawa Publicznego
|
2019
|
issue 3(27)
93-116
EN
The purpose of this paper was to present views of both Polish and German public law doctrine on the issue of the possibility to choose a legal form of implementa­tion of public tasks by the public administration. This issue is not only a theoretical matter because currently administration has to cope with increasingly complex and complicated public tasks that must be implemented. The article first explains the concept of the legal forms of action, distinguished from the measures available in administration. Next, the freedom of choice of the legal form of action as well as the instances of its abuse are analysed. The considerations carried out in the article allow to adopt the position that the choice of the legal form of action by public administration cannot be actually prejudged under Polish law. The main limitation of the freedom to choose the le­gal form of action is contained in Article 7 read in connection with Article 2 of the Constitution of the Republic of Poland which stipulate a legal framework that ought to embrace them. There is also a concern that the authorities may abuse certain forms of action in order to, for example, avoid certain administrative procedures or to achieve desired fiscal objectives. As indicated in the course of the analysis, the German doctrine and practice encountered similar problems, and now the experi­ence and undoubted successes of German law and practice could be a significant inspiration for Polish lawmakers in this area. De lege ferenda, it is necessary to propose the introduction of legal regulations that will enable or facilitate a free choice of the legal form of action by administra­tive bodies. However, establishing such regulations will only be possible and and effective when the administrative agreement becomes part of the Polish legal system.
4

Umowa o ponoszenie opłat za pobyt w domu pomocy społecznej w orzecznictwie sądów administracyjnych

75%
Pierzchała E.
Prawo
|
2016
|
issue 320
107-119
EN
This paper is devoted to the issue of concluding an agreement on the charges for staying at a nursing home in the case law of administrative courts. The debated issue is based on a very extensive case law and against this background the most important problems are discussed. The first problem concerns the sources and forms of participation in the cost of maintaining a person in a social welfare home. In the case law of administrative courts a prevailing view is that law is the source. Other opinion says that the source is an administrative decision. The second opinion cannot be accepted. The views in the case law of the courts tend to conclude that the source of the duty is the law and the agreement individualizes this obligation. Another issue concerns the refusal to conclude an agreement on participation in the cost of maintaining a person in a social assistance home. In this situation, in the case law a prevailing view is that an agreement may be replaced with a central administrative decision.
5
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Partnerstwo publiczno-prywatne a porozumienie administracyjne. Efektywna realizacja zadań własnych administracji publicznej w ujęciu porównań systemowych

63%
Krajewski J.
Studia Iuridica
|
2018
|
vol. 76
244-265
PL
This publication focuses on defining the legal nature of the constructions of public-private partnership and administrative agreements under different legal systems, with particular emphasis on Polish regulations. Due to complex changes within the concept of public administration, alternative methods of its operation gradually appear. Unification of European legal structures and global socio-economic innovations are an impulse for the analysis of methods that allow adapting to the marketization of public tasks. The aim of the author is to assess the effectiveness of a hybrid forms of public-private partnership and administrative agreement combining the features of private and public law, based on the evaluation of doctrine and jurisprudence. Solutions taken from Polish legal acts on local government and the practice of public institutionsreflect the challenging problem of multilayeredness of obligations undertaken by aforementioned form. Extracting the conclusions from market research and cited government reports allows to formulate postulates de lege ferenda and accurate diagnosis of the activities of modern administration.
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