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Ustanawianie ograniczonych praw rzeczowych w prawie prywatnym międzynarodowym - uwagi na tle statutu rzeczowego i jego rozgraniczenia

100%
Dadańska K. A.
Problemy Prawa Prywatnego Międzynarodowego
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2019
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vol. 24
141-168
EN
In international trade, it is essential to determine the scope of the law applicable to property rights, i.e. the law applicable to the assessment of rights in rem. Article 41 of the Polish Private International Law Act uses the connecting factor of the situs rei. The competence of legis rei sitae regarding rights in rem should not be challenged when the subject of rights in rem is tangible property. If, however, the subject of rights in rem is not a tangible object but in a claim or other type of a right, then there is an urgent need to seek other ways of establishing the law applicable to the formation of such rights. In addition, there is a recurrent problem with the proper delimitation with the laws applicable to other issues, i.e. the determination of the law applicable to the assessment of the effectiveness of the acquisition of a limited right in rem, and the question of the so-called adaptation and qualification. The purpose of the present study is to determine the law applicable to the establishment of limited property rights. Using the dogmatic-legal, comparative and complementary historical methods, the provisions of Article 41 of the Private International Law Act are evaluated, and conclusions are drawn de lege ferenda.
2
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Regulacja prawna timesharingu w wybranych państwach europejskich

72%
Romanowska M.
Studia Prawnicze
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2017
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issue 1 (209)
57-91
PL
Timeshare is a part of the process of satisfying consumer needs through the use of material goods and services. Timeshare means touristic, cyclic use of things in a concrete period of time over many years. Consumer acquires the timeshare right under a contract of a consumer character. This right is regulated at EU level and is a supranational legal relationship, when it usually involves entities from different countries. Timesharing is a legal institution which is regulated by the Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts. The purpose of the Directive according to the article 1.1 is to contribute to the proper functioning of the internal market and to achieve a high level of consumer protection, by approximating the laws, regulations and administrative provisions of the Member States in respect of certain aspects of the marketing, sale and resale of timeshares contracts. Directive is without prejudice to national legislation which: provides for general contract law remedies, relates to the registration of immovable or movable property and conveyance of immovable property, relates to conditions of establishment or authorisation regimes or licensing requirements, and relates to the determination of the legal nature of the rights which are the subject of the contracts covered by this Directive. Under the definition set out in the Directive „timeshare contract” means a contract of a duration of more than one year under which a consumer, for consideration, acquires the right to use one or more overnight accommodation for more than one period of occupation. While the Directive does not determine the legal nature of the rights which are the subject of the timeshare contracts, in the practise of Member States, there are a lot of different legal timesharing structures like inter partes or in rem ones, trust, etc. Such situation does not help in consumer protection. The timeshare Directive was transposed to the legal systems of the Members States without significant changes. As the domestic legislation after the Directive does not determine the character of the timeshare right, the constructions of it are created with some specification of a common law system, german one as well as a roman culture. In England and in Spain the most popular timeshare construction used in practice is club-trustee, while in France there is a société d’attribution and Dauerwohnrecht in Germany. Timeshare is prepared for holiday use and is associated with tourist services. It represents a preferred alternative to purchase things as a legal owner, because only performs the function of consumption and aims to provide pleasure to the consumer lessee. The law is carried out by many consumers, although at a specific time they are entitled to exclusive use of one of them. Timeshare usage allows for real use of things without exercising the duties of taking care of thing, pay in respect of its ownership taxes, or making a repair. That is why it became such a success in tourism and in the same time while not functioning in the similar structure it is not clear institution for a potential consumer.
3
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Z prawnej problematyki nabycia służebności przesyłu przez zasiedzenie

71%
Hasińska I.
Studia Iuridica Agraria
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2016
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vol. 14
389-400
EN
Ownership is the main property right which gives the fullest control over a thing and, simultaneously, imposes the obligation to respect that control. The situation is totally different in respect of limited property rights. The limited property rights entitle a person to exercise some rights, which are typically given to an owner, on another person’s thing. The right of transmission easement constitutes a special, separate type of easement and it limits the ownership. The introduction of that right was a legislator’s response to the postulates made by transmission entrepreneurs to regulate the use of the real estate on which distribution equipment has been or is planned to be constructed. The possibility to acquire transmission easement by acquisitive prescription still causes numerous disputes both in the doctrine and among legal practitioners. That claim raised by the entrepreneurs entails the necessity to prove that the transmission entrepreneur and their legal predecessors used another person’s real estate in exactly the same way as it would have been used by the person who is entitled to the transmission easement (from 2008) or to an easement analogical (similar) to the transmission easement (until 2008), namely by using permanent and visible facilities which in this case are designed to transmit electrical energy (energy transmission, equipment maintenance, checkups and repairs).
4

Służebności fotowoltaiczne w prawie polskim z odniesieniami komparatystycznymi

71%
Bieranowski A.
Rejent
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2021
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issue 12 (368)
9-68
EN
The purpose of this Article was to verify the different types of easement from the point of view of suitability for photovoltaic investment. The above analysis has shown that the easement of transmission cannot be established for the location of photovoltaic panels. With regard to barriers than German or Swiss law. To begin with, the catalogue of rights in rem in Polish law is very limited. Polish law does not include building right. Secondly, unlike in Swiss law, the regulation of easement in Polish law is not adjusted to the needs of a modern economy. Those weaknesses manifest themselves primarily in the non-transferability of personal easements (quoad ius) and the narrowing down of the subject matter scope of personal easements (only natural persons are entitled to personal easements). However, in light of art. 393 of CC (§ 328 of BGB) there are no barriers when a person declares that they will establish personal easement for the benefit of a third party, also under the suspending condition (e.g. expiry of the hitherto valid easement). The third person does not have to be marked immediately. Similar to German law (§ 1019 of BGB), the usefulness of appurtenant easements in protecting the photovoltaic investment definitely reduces the necessity of carrying out the premise of usefulness for benefiting property (utilitas).
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