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Związek przyczynowy jako przesłanka odpowiedzialności odszkodowawczej władzy publicznej

100%
Marczyk P.
Kwartalnik Prawa Prywatnego
|
2022
|
vol. 31
|
issue 3
431-468
EN
In connection with the restrictions introduced to combat the Covid-19 pandemic, the issue of liability for damages of public authorities is extremely topical. The condition of causality in the case of liability for damages of public authorities has not yet been discussed in detail in the science of law. The article will present current views of the science of law expressed in relation to the condition of the causal link in the liability for damages of public authorities. Presentation of such an ouline will make it possible to identify the key problems and disputes. These include, in particular, 1) the issue of the legal character of the causal link in compensatory liability of public authority; 2) the issue of the so-called normative link; 3) the problem of the construction of the so-called concretizing factor. When analyzing the above issues, special emphasis will be put on the anchoring of the liability for damages of public authorities in the Fundamental Law. For this reason, a detailed presentation will be given of the views of the science of law and the jurisprudence of the Constitutional Tribunal expressed against the background of article 77 paragraph 1 of the Constitution of the Republic of Poland, which is the provision that constitutes the constitutional right to compensation
2

Test wypłacalności w prostej spółce akcyjnej

100%
Herbert A., Kędzierski P.
Kwartalnik Prawa Prywatnego
|
2022
|
vol. 31
|
issue 3
399-430
EN
The article concerns the solvency test - a new structure of Polish company law which consists in testing the company's solvency before paying (distributing) assets to shareholders. The article interprets Article 300[15] § 5 of the Commercial Companies Code and gives initial assessment of the utility of the solvency testing mechanism as an instrument to protect the company's creditors. For this purpose, the following issues were discussed: 1) the existence of an obligation to formally assess the company's forecast solvency and the form in which the results of this assessment should be made public; 2) the subject of the assessment - the way of understanding the ability to pay debts as they fall due and its loss; 3) the time horizon and assessment criteria - in particular, understanding of the premise of normal circumstances used in the assessment of solvency; 4) the consequences of the negative result of the solvency test on the admissibility of the payment, and 5) liability for the breach of the principles of asset distribution, including failure to conduct the solvency test or conducting it in an unreliable manner. According to the authors, the introduction of a solvency testing mechanism to the Polish Commercial Companies Code is, in principle, a positive change, but not without any drawbacks. The authors have noticed that Article 300[15] § 5 of the Commercial Companies Code expresses a simple prohibition rule, according to which the payment to shareholders may not lead to the loss by the company, under normal circumstances, of its ability to pay debts as they fall due within the defined six-month time span. Moreover, it was noticed that the solvency test introduced into the company law system does not have to be carried out in any particular form and open procedure. The testing procedure has not been described in detail - the Code does not contain any criteria for conducting a reliable solvency test. What is more, failure to conduct the test does not per se prevent the company from making a payment to shareholders. It was concluded that the new regulation stipulates too short time horizon of the solvency projection and does not create a positive obligation for the management board to test company's solvency. In fact the solvency test gains importance only when the company actually becomes insolvent, without introducing sufficient protection against its occurrence.
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