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Teoretyczno-prawne poszukiwania sposobu „oznaczenia” państwa w obrocie prywatno-prawnym

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Bierć A., Mucha-Kujawa J.

Studia Prawnicze

2016

issue 2 (206)

49-105

The subject of „designating” state in private transactions is important not only because of the issue of representation and liability for the obligations with public property but primarily on account of widely understood protection of the state’s property interests. The present essay is dedicated to theoretical exploration of the way to „designate” state in private trading on the ground of national theory and practice, at the same time taking into account European solutions, in particular of German legal traditions. Authors, analizing the ways to „designate” state in private transactions in European legal traditions, indicate the dominance of public nature approach, which treats the state as an entity of public law acting in private transctions as fiscus (treasury) and administering - depending on legal tradition - a different scope of rights. In national doctrine, however, fiscus (called treasury) is generally treated as a special private law entity not bothering that it is deprived of typical features of a private law entity but at the same time uses in practice – to some degree – imperious instruments shaping property relations of the state. Taking into consideration European perspective and its influence on national theory and practice, the authors indicate a need to undertake harmonization actions towards treating the treasury – the equivalent of fiscus in European states - as an entity of public law to ensure cohesion of the concept of public treasury on the ground of the whole legal system, not only private law.

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1 Studia Prawnicze

1 Bierć A.

1 Mucha-Kujawa J.

1 2016

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Teoretyczno-prawne poszukiwania sposobu „oznaczenia” państwa w obrocie prywatno-prawnym