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Kodyfikacja prawa prywatnego międzynarodowego — doświadczenia polskie w perspektywie europejskiej

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Czepelak M.

Kwartalnik Prawa Prywatnego

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2017

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vol. 26

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issue 2

251-296

EN

The paper discusses current state of the codification of private international law bringing together the Polish experience from this field and the perspective given by the unification efforts of the European Union. It is divided in two parts. In the first part the Polish experience of the codification is depicted in order to demonstrate some of its achievements. Indeed, at the very beginning , i.e. in 1926, when the first Polis Act on Private International Law was promulgated, it was the experiment incomparable with any of contemporary instruments (which were scarce at this time). This experiment proved itself to be very successful. Despite what one could have expected, another Polish Act on Private International Law of 1965 was based on the same principal assumptions as its predecessor. Eventually, the ‘Polish’ model of the codification emerged. In the second part the characteristic of the mentioned ‘Polish’ model of codification is set against the current state of the development of private international law, in both its dimensions, i.e. national and international. It is argued that the unification of private international law by the European Union has led to the ‘creeping codification’. This is a state, when national systems can no longer be considered proper codifications, and the EU instruments constitute a kind of piecemeal legislation, although they cover important part of private international law. In the nutshell, the creeping codification has led to the de-codification. In the conclusion, the proper codification is pled to be the solution for the shortcomings of the current state of the private international law. Such a codification could immensely benefit from the Polish experience.

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W sprawie statutu personalnego osób prawnych. Uwagi na tle tomu 20A Systemu prawa prywatnego

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Wiśniewski A. W.

Kwartalnik Prawa Prywatnego

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2015

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vol. 24

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issue 1

215-225

EN

This paper is a necessary reaction to the treatment of the problem of proper law of corporate relationships in the, recently published, Volume 20a of the System of Private Law, edited by M. Pazdan. The Volume deals with Private International Law. The proper law of corporate relationships which is an essential part of the international corporate law (usually discussed, as pars pro toto, in place of the conflict law applicable to legal persons), is currently the subject of vivid discussions in the European Union, including Poland. Here, the main source of dissention is the choice between the s.c. “real seat” and “statutory seat” as connecting factors. The new Polish Private International Law Act of 2011 failed to expressly solve this dispute, remaining with the enigmatic “seat of the legal person” criterion. The author of § 19 of the discussed Volume, A. Wowerka, takes a very firm opinion in the matter of the applicable corporate law, clearly favouring the “real seat” doctrine. In his discussion, historical and partly outdated arguments for this doctrine are extensively repeated, while counterarguments are at the best mentioned, never fully presented and never discussed as to their substance. This might create the impression that the “real seat” doctrine is the only serious concept in the field of proper law of corporate relationships. The picture of the state of the Polish doctrine which the Reader shall obtain through A. Wowerka’s treatment of the subject is completely incompatible with facts. The Author is probably the last Mohican in Poland to follow the “real seat” doctrine without reservations, while more than a dozen authorities can be listed among the adversaries of this opinion and important arguments – totally omitted by the Author – are raised against it. The purpose of this paper is to warn the Reader that the partisan treatment of the subject by A. Wowerka cannot be relied upon as a genuine systematic presentation thereof.

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Dopuszczalny zakres działania spółki komunalnej

61%

Szczepaniak R.

Kwartalnik Prawa Prywatnego

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2014

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vol. 23

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issue 2

449-472

EN

A municipal company operates most often as a limited liability company or a joint stock company. However, its legal status is characterized by a high degree of originality and it significantly differs from the status of a typical limited or joint stock company. In particular, local government units (in municipalities, counties, or provinces) implement through a municipal company their statutory duties to satisfy the needs of the local community. Therefore, the legal nature of the company is closely linked to the nature of a particular local government unit. A municipal company is an entity with a special purpose. It has been created to achieve specific objectives and the scope of its activities is defined by the law. One may ask the question what legal consequences arise when the company takes legal action, for example, it concludes a contract, beyond the statutory scope of its activity. According to the author this question is complex. In order to answer it interdisciplinary analysis should be carried out taking into account the scientific achievements regarding both the civil and the public law. In conclusion, the author advocates a moderate and cautious solution, taking into consideration the need to respect the principle of legal security. Thus he expresses the view that legal action, such as a contract concluded outside the scope of permissible activities of such companies will be valid. Consequences of another kind, such as administrative and legal sanctions may nonetheless occur

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3 Kwartalnik Prawa Prywatnego

1 Czepelak M.

1 Szczepaniak R.

1 Wiśniewski A. W.

1 2017

1 2015

1 2014

Kodyfikacja prawa prywatnego międzynarodowego — doświadczenia polskie w perspektywie europejskiej

W sprawie statutu personalnego osób prawnych. Uwagi na tle tomu 20A Systemu prawa prywatnego

Dopuszczalny zakres działania spółki komunalnej