Przegląd Ustawodawstwa Gospodarczego nr 04/2012

Przegląd Ustawodawstwa Gospodarczego 04/2012

SPIS TREŚCI
 
Wiesław Czyżowicz, Szkoła Główna Handlowa
Poważne naruszenie prawa w teorii i praktyce koncesyjnej

Summary
Serious abuse of in theory and practice of licensing
Gross or serious violation of law by the entrepreneur, as a prerequisite for negative consequences for permits issued to him is common in the legal system. Such institution is used within the customs law system, and by the commercial law, as a cause of revoking a permit issued for that entrepreneur. The article discusses the interpretation of that term, using the example of the statute on gambling dated 19th of November 2009.
Entities who operate gambling premises (ie. casinos or bingo parlours) or betting operations must obtain an approval from the Minister of Finance for the change of share capital, that is for having their shares sold (article 52 of statute).
According to article 59 of statute, the authority appropriate for issue a permit may revoke it, in whole or in part, in particular, if a gross violation of law or a permit took place or if the entity did not rectify the violation within the time set by the authority.
In case of gambling statute, the entrepreneur was in fact burdened with obligations and sanctions for actions of persons which he cannot control. Therefore - according to my opinion- regulations of the statute must be understood in such a way that only actions by the entrepreneur, which are intentional and aimed at violating or avoid the regulations concerning the structure of share capital, as well as a complete lack of cooperation with the authority may be a reason to revoke the permit.
The alternation of the commercial law, especially connected with the business activity which requires a permit, should be considered in the way which involve precise definition of “gross” or “serious” violation of law. This would limit the discretion in the interpretation of such terms by the permit authority which would not respect the state of law rule and legitimate interests of entrepreneurs.
This process was illustrated on the ground of the statute on gambling dated 19th November 2009. Based on an example of one possible violation of law it was presented that change in the share capital without approval of the appropriate authority may lead to revocation of the permit. The author underlines, that without consideration of all facts of the case, in particular possibility of the entrepreneur to control the change in the share capital and actions taken by this entity to restore the accordance with the legal requirements, the revocation of the permit should be considered as invalid.


Michał Będkowski-Kozioł, Uniwersytet Kardynała Stefana Wyszyńskiego w Warszawie
Kilka uwag o dogmatyce prawa energetycznego

Summary
Some remarks on the dogmatic jurisprudence of energy law
The energy law, like the legal framework of the network-bound sectors in general, has been developing very dramatically in the recent years. The complexity and singularity of the energy law instruments and institutions nowadays invites to put some essential questions about the definition and regulatory scope of the energy law, its relations with other legal disciplines as well as other sciences, and last but not least about its role and place within the legal order. The scope of this article is the analysis of these questions. Its main aim is however to work out the basic structures and concepts towards the energy law, as a dogmatic discipline.

Iwona Sepioło, Uniwersytet A. Mickiewicza w Poznaniu
Strategiczne umowy przedsiębiorców w obrocie gospodarczym jako przedmiot ochrony prawno karnej

Summary
Strategic contracts of entrepreneurs in business transactions as a subject of criminal law protection.
In recent years, the contracts passing all the management powers to a new entity, usually not being part of the governing bodies of a company, have become more and more popular. These contracts include, in particular, a trust management agreement and agreement for company’s property management. Under such agreements, a trustee or a manager takes over the rights and obligations specified in the agreement, relating to running business activity of a managed entity and the actions taken by the trustee or the manager bring consequences directly to an entrusting party without a need for any additional actions to be taken. If the trustee or the manager breaches the scope of their powers under the management agreement (including trust management agreement) by exceeding the powers or not performing the duties, they undoubtedly are to be held responsible under civil law. It has to be admitted, however, that the institutions discussed in this article provide opportunities for pathological situations in business transactions to take place and grow and it seems necessary to use also criminal penalties to prevent such situations. As the practice shows, the fear that the persons having management powers may use their position and cause damage to the managed property is fully justified. The purpose of this article is to examine whether the criminal regulations laid down by the legislator apply to all aspects of managers’ incompetence, in particular to the situations where the trustee or the manager has unlimited powers to exercise in relation to a company.

Tomasz Wołowiec, Wyższa Szkoła Informatyki i Zarządzania w Rzeszowie
Opodatkowanie budowli będących w posiadaniu spółdzielni mieszkaniowych (wybrane problemy praktyczne)

Summary
Property tax on structures belonging to housing cooperatives
(chosen practice problems)
As far as the property tax on structures belonging to housing cooperatives is concerned, the fundamental problem lies in the issue whether a housing cooperative is an entrepreneur as understood in the Act on Freedom of Economic Activity (hereinafter referred to as AFEA) and whether it has structures which are directly related to conducting economic activity. Another issue is whether the structures belonging to the cooperative (that is roads, pavements, parking lots, etc.) located in the roadway serve only the purpose of satisfying housing needs and as not connected with economic activity are not subject to property tax.

Prawo własności intelektualnej

Paweł Żerański
Płaszczyzna arbitrażowo-mediacyjna w postępowaniach o zatwierdzenie tabel, sporach związanych z ich stosowaniem i sporach związanych z zawarciem umów o reemisję w prawie autorskim

Summary
Arbitration and mediation aspect of the copyright tables confirmation proceedings, disputes arising from the application of the copyright tables and disputes arising from the making of the reemission contracts in the copyright law
The sole body competent in the copyright tables confirmation proceedings, disputes arising from the application of the copyright tables and disputes arising from the making of the reemission contracts in the copyright law is the Copyright Commission. It applies selectively the quasi-mediation (earlier - quasi-arbitration) rules i.e. the adequate rules of the civil proceedings code partially adapted through the provisions of the copyright law. In particular, it is possible to decide in the quasi – mediation (earlier - quasi-arbitration) proceedings before the Copyright Commission the disputes arising from the application of the copyright tables and the disputes arising from the making of the reemission contracts. The copyright tables however, are confirmed in the specific proceedings which is not an arbitration or mediation proceeding.
From the point of view of the Polish arbitration and mediation law that kind of selective application of the quasi-mediation (earlier – quasi arbitration) rules do not have sufficient reason. All three proceedings constituting the object of this article have both the arbitrability and the mediation ability. It is therefore not reasonable to exclude the copyright tables confirmation proceedings from the quasi-mediation (earlier – quasi-arbitration) proceedings. Moreover, one can hardly explain the selective application of mediation and arbitration, i.e. the application of only mediation (earlier – of only arbitration) rules as each of these proceedings have its own advantages. Both, the mediation and the arbitration rules allow the parties to reach the solution in the softer and more flexible way than by a decision of any public body – each in its own way.
The Copyright Commission has only superficial characteristics of an arbitration court being rather a complex public administration body than an arbitration court or a mediation institution. The legal paternalism excluding the free will of the parties to choose the private mediation or arbitration proceedings in any of the proceedings being the object of the article is unjustified. Also the chaotic way of application of these proceedings (earlier quasi – arbitration, now – quasi - mediation) is not well substantiated.