Przegląd Ustawodawstwa Gospodarczego nr 06/2011
Rok wydania: 2011
Miejsce wydania: Warszawa
PUG 6 2011
Mirosław Pawełczyk, Uniwersytet Śląski, Marlena Jankowska, Uniwersytet Śląski
Charakter prawny kontraktów długoterminowych w energetyce
The legal status of power purchase agreements in energy sector
Poland when adjusting the energy sector to EU requirements in 90’s had to modernize the electrical energy plants. The aim was to provide the cheap electrical energy, preserve rational level of the energy supply, upgrading standards of natural environment protection and prevent deteriorating these achievements. In order to achieve above a condition of fixed income level of enterprises had to be met. A solution in this matter were to be power purchase agreements as new type of civil law contracts. The legal status of power purchase agreements was the subject of European Commission analysis, which in decision of 25th September 2007 stated that power purchase agreements put some of the producers on privileged position against their competitors which may interfere with the rules of competitive market. For this reason the power purchase agreements were to be cancelled on the basis on “cancelling contracts” which gave the producers the right to cover investments costs, so called stranded costs, calculated on the basis of legal method given in the legal act on stranded costs. As it appears in practice, the manner of calculation of the costs shows interpretation difficulties as terms “competitive market” and “incomes” are concerned. These terms shall become the subject of analysis in order the gain the deeper understanding of their meaning which would let courts judge matters in proper way considering the fact they may have to deal with the issue more often just as the Court of Competition and Customer Protection pronouncing the sentence on may 26th 2010 had to.
Grzegorz Kozieł, Uniwersytet Marii Curie-Skłodowskiej w Lublinie
Występowanie niepublicznego zakładu opieki zdrowotnej (NZOZ-u) utworzonego przez fundacje lub stowarzyszenie w obrocie prawnym. Zagadnienia wybrane
The occurrence of the non-public healthcare institute set up by a foundation or association in legal transactions. Selected issues.
This article presents the issue of the occurrence of the non-public health care institute created by the foundation or association (registered), in the legal system, which operates under the general rules, i.e. in accordance with the provisions of the Act of 6 April 1984 on Foundations and the Act of 7 April 1989 the law of associations.
This article describes problems of the legal basis and the rules for appointing the head of the non-public health care institute, the legal status of the head of the non-public health care institute (including the specific legal status of the head of the non-public health care institute which is a field organizational unit (FOU) of the association with legal personality), combining the functions of the head with the functions in the forming subjects (a foundation or association), the variants of the participation of the head in the activities of the forming subjects (a foundation or association), and the admissibility of the establishment other than the head of the legal instruments of non-public health care institute.
Mariusz Stanik, Uniwersytet Kardynała Stefana Wyszyńskiego
Forma prawna „wypowiedzenia udziału” wspólnika spółki cywilnej
Legal form of the share notice of the member of civil law partnership”
The text concerns short summary of the essential elements of the civil law partnership, as well as three kinds of possible share notice of the member of such partnership and on this ground analysis of the legal form of such share notice. Analysis of the issue is made in two areas: (a) legal form of the member’s of civil law partnership share notice in case when the joint property does not include rights for transfer of which it is not necessary to observe any special form and (b) legal form of the member’s of civil law partnership share notice in case when the joint property includes rights for transfer of which it is necessary to observe some special form. Analysis of the aforementioned is made based on the current jurisdiction and the civil law doctrine. In conclusion the author states that the law does not require any special legal form for the member’s of civil law partnership share notice regardless of the rights constituting the joint property of all the members of the civil law partnership.
Waldemar Jaroch, Uniwersytet Warmińsko-Mazurski w Olsztynie
Odpowiedzialność przedsiębiorstw za czyny zabronione – uwagi de lege lata i de lege ferenda
Firm’s liability for unlawful acts – de lege lata and de lege ferenda remarks
The Author deals with the problems of liability of collective subjects (firms) for unlawful acts committed by individuals acting on their behalf and interest. In Polish legislation the question was not further regulated until 28th October 2002. The law on collective subjects’ liability for unlawful acts under penalty introduced only considerable legal regulations in this field.
The Author makes a few de lege lata and de lege ferenda remarks, taking into account recommendations of the Council of Europe, Convention on the protection of the European Communities’ financial interests, drawn up on the basis of Article K. 3 of the Treaty on European Union, and other instruments of public international law. He emphasizes that one of the aims of mentioned modifications was to conform the Polish law to European Union law through implementation of legal instruments provided in several acts of public international law, knowing liability of collective subjects. He presents conditions and rules of liability, objective scope (types of offences), penalties and procedural questions connected with proceedings in such cases. The Author points out, that Polish legislator enlarged personal and objective scope of the regulation in comparison to UE requirements and made liability dependent upon offender’s identification. He points out as well, that procedure of proceedings’ establishing on request results in limiting of application’s scope of the law in question.
Tomasz Bakalarz, Uniwersytet Wrocławski
Ochrona wyników badań naukowych
Protection of the Results of Scientific Research
The problem of commercialization of research results is inextricably linked with the issue of their protection. In the absence of evidence to include, as part of the intellectual property rights, research results and ideas of exclusive rights, the clause of confidentiality is being used which aim is to preserve the secrecy of these goods.
This article aims to identify methods to protect the research results used in the concept of scientific work organization, the so-called knowledge management. Two- the most popular strategies are: personalization and codification of knowledge that can be helpful in ensuring proper security intangible goods against their spillover at the level of their creation in research institutes or in other units. However, obligations, which are associated with these strategies, should be based on the provisions of law, in particular on the laboratory regulations, staff rules, etc. The aim of this paper is therefore to translate the principles resulting from the science of organization and management into the legal language. The paper presents in particular, the problem of the responsibility of researchers for non-compliance with obligations flowing from the knowledge management strategies adopted, at least in terms of the so-called laboratory notebooks. The considerations are based on an analysis of the Labour Code and the laws of the widely understood intellectual property rights.
PRAWO WŁASNOŚCI INTELEKTUALNEJ
Michał Błeszyński, Uniwersytet Kardynała Stefana Wyszyńskiego w Warszawie
Spory z telewizjami kablowymi – postępowanie przed Komisja Prawa Autorskiego
Disputes with cabel televisions – proceedings before the Copyright Commission
On July 13, 2010, the Supreme Court – Civil Division composed of seven judges decided (file number III CZP 1/2010), whether in course of disputes related to conclusion of the agreement between cable operators and collective management organizations referred to in Article 211 sec. 1 of the Copyright Act, the parties are authorized to: bring a case to the Copyright Commission or directly to the court, or whether are obligated to exhaust procedures before the Copyright Commission. In the decision referred to above, the Supreme Court formulated the thesis, that exhausting procedures before the Copyright Commission is necessary.
Assuming, that there is the obligation to exhaust procedures before the Copyright Commission is unequivocal with so called temporary exclusion of court procedure.
The decision has been adopted with regard to current legal conditions being in force until October 21, 2010. Starting with this day, the aforementioned provisions have been novelized.
According to Article 3 sec. 3, the first sentence of the novel „proceedings with regard to disputes on application of tables of remunerations or referring to conclusion of the agreement referred to in Article 211sec. 1 of the act referred to in Article 1, started and not finished before this act comes into force, the current provisions shall apply”. These proceedings are therefore to be conducted on current basis and by already appointed teams, but with no obligation to exhaust the proceedings before the Copyright Commission.
According to the novel (vide Art. 11018 of the Copyright Act) the disputes related to conclusion of the agreement referred to in Article 211 sec. 1 of the Copyright Act, „may be examined in course of mediations between the parties”, while „provisions of the Civil Proceedings Code with regard to mediations shall be applied adequately”.
a) the legislator has only left the possibility not the obligation of mediation;
b) mediation provided with this regard has been modified comparing to general rules on mediation;
c) the basic feature of mediation – its voluntary character - has been maintained.
The resignation to bring disputes on application of the approved tables of remuneration and disputes on agreements with collective management organizations with cable operators before the Copyright Commission has caused, that cases with this regard should take place in court on general basis.
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