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1

LEGAL PERSONALITY STATUS OF PARTNERSHIPS IN SWISS LAW (Podmiotowosc spólek osobowych w prawie szwajcarskim)

100%
Lic J.
Studia Prawnicze
|
2008
|
issue 4(178)
89-111
EN
The problem of legal status of partnerships belongs to the most hotly disputed issues in European corporate law. In Polish literature, no analyses have been published explaining the viewpoint of the Swiss doctrine. In spite of many similarities between legal solutions applied in Swiss and Polish law systems, a significant difference exists in approach to the mentioned problem. In Poland, the most common standpoint relies on treating civil partnerships as obligation, while the Swiss doctrine has abandoned this position and treats civil partnership (Einfache Gesellschaft) as a legal group of joint interests, i.e. a type of organizational unit. In relation to commercial partnerships, a very similar norm has been adopted in Polish Commercial Companies Code (art. 8 § 1), and in Swiss Code of Obligations in art. 562. In Poland, the above norm is generally understood as leading to legal capacity of commercial partnerships, while in Switzerland legal capacity of such partnerships is normally rejected. In effect of the existence of legal loopholes, as well as the influence of strong legal tradition, Swiss doctrine faces the problem of the legal capacity of civil partnerships, including in particular business partnerships, as well as the problem of legal capacity of commercial partnerships. In both cases, Swiss doctrine has been following two divergent tendencies: the former leading to rejection of legal capacity in effect of the adoption of joint and indivisible ownership of assets (Gesamthand) in such partnership, and the latter, accepting the mentioned partnerships as legal entities, in effect of the necessities of trade, in particular those related to the managing the business organization under own trade name or brand. Until now, Swiss law has not followed in the footsteps of German legal system, and refused to accept the legal capacity of either civil partnership or commercial partnerships.
2

ON LIABILITY FOR EXECUTION OR NON-EXECUTION OF THE BINDING INSTRUCTION IN THE GROUP OF COMPANIES UNDER POLISH LAW

100%
Żaba M.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2022
|
vol. 105
|
issue spec. issue
60-72
EN
This article deals with the new Polish regulation of the group of companies and the issue of internal liability between companies participating in such a group. The purpose of this paper is to analyse the regulation concerning not only the legal nature of binding instruction issued in the group of companies but also the liability in the case of damage caused by the execution or non-fulfilment of such an instruction. In the article pages that follow, references are made to the boundaries of the binding instruction, the premises for refusal to perform it and the issue of the parent company’s liability for damage caused by the execution of a binding instruction and the subsidiary company’s liability for failure to carry out the instruction.
3

NEW PROVISIONS ON SUPERVISORY BOARD UNDER POLISH COMMERCIAL COMPANIES CODE

75%
Pinior P.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2022
|
vol. 105
|
issue spec. issue
44-59
EN
The mandatory supervisory board is obliged to supervise the joint-stock company under Polish law. Supervision over the company’s activities in all aspects of its business is one of the most crucial elements in the corporate structure. This paper presents the new supervisory instruments in joint-stock companies and their assessment. The latest amendment to the Commercial Companies Code allows, among others, for the nomination of a supervisory board advisor, broader access to information, the appointment of committees, and the approval of transactions with related entities. Additionally, it aims to describe the impact of new provisions on the liability of the supervisory board members.
4
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DEFINICJA ZABYTKU NIERUCHOMEGO W PRAWIE POLSKIM I FRANCUSKIM

63%
Drela M.
Ochrona Zabytków
|
2008
|
issue 1
111-118
EN
The term 'historical monument' appeared in the vernacular, but has numerous designates since a characteristic feature of the vernacular is the spontaneous emergence of concepts, without the necessity of their rigid systematisation. Defining an immobile historical monument for the purposes of the application of the law calls for resorting to suitable regulations foreseen in the statute of 23 July 2003 on the protection of historical monuments, the regulations of the statute of 21 August 2007 on real estate administration, and the civil code. The aforementioned regulations state that an immobile historical monument can denote real estate as a whole, its component or real estate complexes. An immobile monument can also designate space historically shaped due to man's activity, containing the products of civilisation and natural elements (the cultural landscape), while protection foreseen for immobile monuments may encompass also their surrounding. French law does not have a special statute formulating a definition of the historical monument. Book VI of 'Code du patrimonie', in force since 2004, concerns historical monuments and contains separate regulations on immobile and mobile monuments, presented in distinct sections. Immobile monuments are divided into two groups, but affiliation is based on a formal criterion of inclusion in a suitable register. The text of the statute does not define the nature of a monument and merely describes which real estate can be registered as historical monuments, and which - placed on a supplementary list (literally known as an additional inventory). The difference between classified (i. e. registered) monuments and listed ones relates to the range of state intervention and the scope of subsidizing the construction work conducted in the case of such monuments. France is familiar also with the concept of the natural monument, whose legal status is defined by the regulations of 'Code de l'environnement'. Both types of immobile monuments can be subjected to the procedure of view protection, which either coincides with work on the registration (or the list) or is performed later. In Poland and France conservation authorities deciding on the historical character of real estate or the need to protect an immobile monument, act independently of the decisions of spatial development plans.
5

APPLICABILITY OF THE FRENCH THEORY OF THE APPEARANCE IN THE POLISH CIVIL LAW (Teoria pozoru prawnego w prawie francuskim oraz mozliwosc jej stosowania w prawie polskim)

51%
Wyszogrodzka S.
Kwartalnik Prawa Prywatnego
|
2010
|
vol. 19
|
issue 2
349-380
EN
At first the authoress explains the theory of the appearance as it is recognized by the French judge, to analyze, secondly, the applicability of this theory in the Polish legal system. In France, among the most prevalent examples of the application of the theory of the appearance are: the apparent ownership, the apparent mandate, the heir apparent and the simulation. The theory of the appearance should be understood as an independent basis for the creation of the legal consequences consistent with the legitimate expectations of the person who trusted the appearance created by another person. In the Polish law, there are few legal exceptions that allow, in specific situations, the acquisition of rights by the person who trusted the appearance, as for example, the acquisition of property on the basis of the Article 169 of the Polish Civil Code and the effectiveness of the apparent transaction in the benefit of the third party acting in good faith in case of simulation, as it is allowed on the basis of the Article 83 § 2 of the Civil Code. As for other cases, unforeseen by the legal rules, the authoress makes some proposals: the application by analogy of the Article 83 § 2 of the Polish Civil Code and the interpretation by the courts of the statements of intent within the spirit of protection of legitimate expectations. The authoress proposes as well legislative amendments that would seek the inclusion in the Civil Code of a general regulation to protect the good faith.
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