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Zmiany w strukturze obszarowej i własnościowej gospodarstw rolnych po wejściu w życie nowelizacji kodeksu cywilnego z 28 lipca 1990 r.

100%

Kosmęda P. M.

Studia Iuridica Agraria

2010

vol. 8

69-81

The historical turning point of the year 1989 led to fundamental changes in agricultural policy towards a free market economy and respect for private property. Liberal tendencies caused the resignation on the restrictions in trade and favouritism of the state ownership. Characteristic for the entire period of 1989–2009 was a progressive polarisation of the farms. Despite a slight annual decrease in the total number of farms, the area of the farms in two size groups: up to 2 hectares and above 20 hectares can be observed, including the biggest increase in the 30–50 hectares group. Such observation indicates that a dichotomous division into small farms, producing only to meet their own needs and organised agricultural enterprises, able to produce goods in substantial amounts existed. At the same time a slow process of concentration advanced, causing the increase of the average farm size. While the first 15 years since 1989 till 2004 could be recognised as a clear polarisation period, the last five years show a decline in the quantity of the smallest farms, up to 2 hectares shall, but still the tendency of the rising growth of the biggest farms can be noticed. It should be examined whether this process is associated only with the overall improvement of the economic situation after the year 2004, which supported the process of concentration or maybe also the consequence of the law on the formation of the agricultural system on 11th April 2003. Additionally it seems that the possibility of acceleration of the concentration processes could result from the creation opportunities for farmers in other sectors of the economy or in increasing the profitability of farming itself. Effective instrument capable of achieving this objectives are the programs carried out under the Common Agricultural Policy, althought it carries the risk of over-redistribution of resources, which can lead to a decrease in investment caused by excessive fiscal burdens needed to finance the agricultural projects. The main goal shall be the creation of large number of efficient farms capable to production and investing. This could be achieved through the implementation of mechanisms that will promote improvement of farm structure, e.g. by reducing the phenomena of unreasonable division of farms and facilitation of integration of the neighbourhood farms. As an interesting proposal must be considered a statutory pre-emptive right in favour of landowners adjacent to the property being sold as well as the exclusion of marginal agricultural land for non-agricultural purposes. The key problem seems to be the improvement the profitability of agriculture, which shall accelerate the process of concentration. Following the regulations of the Polish Constitution the family farms shall become support. Criterion for determining the existence of preferences shall be therefore the economic efficiency, regardless of the size of the area farm, included in legal regulations as a criterion of ensuring an adequate farm operating income. Such criterion could set the direction of transformations in agriculture as a whole, with particular emphasis on structural changes.

Ochrona gospodarstwa rodzinnego – uwagi de lege lata i de lege ferenda

100%

Kurowska T.

Studia Iuridica Agraria

2010

vol. 8

14-29

The subject matter of the family farm protection can and should be considered on the ground of 1) provisions of the Constitution of the Polish People’s Republic of 1997 and 2) regulations of common legislation. The first part of the article deals with the notions of the legal character of Article 23 of the Constitution, the notion of property in Article 21 whose character is of political directive and Article 64 of the Constitution whose contents are formed by the citizen’s right to property. The provision of the latter article finds its place with no conflict in the network of the Civil Code notions. Constitutional provisions related to property are concise and are formulated on two planes: subject’s right law (Article 64) and object’s law (Articles 23, 20 and 21). They allow to recognise the existence of other types of property, agricultural property among others, which requires marking its limitations and the scope of protection. The relation of the act on the creation of agricultural system to the provision of Article 23 of the Constitution as well as its other regulations is with respect to the question about the shape of property transformations in agriculture in the conditions of market economy in Poland, where the family farm would be under special protection. The answer may be negative since the act does not meet the prerequisites accepted in its preamble. In the second part of the article there was made an attempt to present legal means of the protection of the family farm de lege ferenda postulating 1) the introduction of new contents of Article 23, the correction of Article 21 ( possibly 64) of the Constitution, 2) the change (broadening) the subject of the act on the creation of agricultural system as well as determining explicitly its place in the provisions of agricultural law and joining legislative activities marked in the ‘Green Book’ in the part on agricultural property turnover, 3) considering the introduction of debt recovery provision, and 4) testamentary distribution, with the reservation of the family farm protection.

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2 Studia Iuridica Agraria

2 2010

1 Kosmęda P. M.

1 Kurowska T.

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Zmiany w strukturze obszarowej i własnościowej gospodarstw rolnych po wejściu w życie nowelizacji kodeksu cywilnego z 28 lipca 1990 r.

Ochrona gospodarstwa rodzinnego – uwagi de lege lata i de lege ferenda