Przegląd Ustawodawstwa Gospodarczego nr 10/2010
Miejsce wydania: 2010 Warszawa
Marek Szydło, Uniwersytet Wrocławski
Zawieszenie wykonywania działalności gospodarczej
Susupension of performance the economic activity
The author analyses the legal basis of suspension the economic activity. He also tries to define an idea and essence of this „institution”, elaborates its ordinary definition, performance of the economic activity and its performance during the period of its suspension. Then he analyses a relation between suspension of economic activity and premises testifying about its continuity. In the last part, author presents the procedures and legal results of suspension of performance the economic activity.
Andrzej Majewski, Elbląska Uczelnia Humanistyczno-Ekonomiczna
Ograniczenie wolności działalności gospodarczej na przykładzie niezgodności z Konstytucją reglamentacji obrotu produktami leczniczymi w sklepach zielarsko-medycznych
Limitation of the freedom of economic activity based on the example of a constitutional incompatibility of the restrictions imposed on the marketing of medicinal products in herbal medicine stores
Limitations upon the freedom of economic activity may be imposed only by means of statute and only for important public reasons, including the protection of public health (Article 22 of the Constitution of the Republic of Poland). The principle of proportionality allows for such freedom-restricting measures to be taken provided they are effective and indispensable.
According to the Pharmaceutical Law of 6 September 2001, the restrictions on the trade in medicinal products result from the broad definition of 'a medicinal product' and the adoption of the general rule for such products to be sold in pharmacies and - only as an exceptional provision - in out-of-pharmacy distribution, i.e. in pharmacy stations, herbal-medicine shops, and public stores. Which products may be sold in an out-of-pharmacy distribution remains to be resolved by a minister competent for health issues by means of a positive enumeration in a form of a regulation.
The broad definition of medicinal products as well as the strict requirements regarding the premisses and the personnel distributing these products in herbal medicine shops should result in the liberalization of the out-of-pharmacy market by allowing all medicinal products available without doctor's prescription to be sold because, according to law, these products ought to be harmless for human health, even when misused.
By analysing the evolution of legal restrictions on the marketing of medicinal products, as well as analysing the legislative initiatives of the pharmacists' lobby, a conclusion can be drawn that the restriction on the range of medicinal products available in out-of-pharmacy distribution, including herbal medicine shops, has had little to do with public health protection. Rather, it is aimed at the protection of the vested interests of a specific professional group. To prevent the unconstitutional limitations on the trade in medicinal products, these issues should be regulated in a broader and a possibly detailed way in the Pharmaceutical Law, according to the provisions of the Constitution.
Magdalena Fedorowicz, Uniwersytet Szczeciński
Anna Zalcewicz, Uniwersytet Szczeciński
Regulacja nadzoru nad instytucjami finansowymi w Prawie bankowym
The regulation of the supervision of financial institutions under Polish banking law
In Polish banking law the financial institution is placed under the supervision only on a consolidated basis. Additionally it applies in these situations when financial institution is one of the undertaking of groups and where at least one of the undertaking is credit institution registered in Poland (Polish legal term: “domestic bank”). Therefore the subject of regulation under Polish banking law is the taking up and pursuit of business by a financial institution acting in the group (financial groups, hybrid groups, mixed-activity groups, foreign banking group and domestic banking group). It is vital to emphasize that supervision of financial institutions on a consolidated basis aims at, in particular, at ensuring the adequate levels of cash flows’ transparency and the solvency of the credit institutions
It is obvious, that credit institution may be a subject of influence exerted by financial institution. Financial institution may be a parent undertaking or subsidiary undertaking in the group and it gives an opportunity of various interactions. Therefore another function banking supervision is to ensure that financial institution is not affecting adversely credit institution activities as it is main concern of banking law.
Maja Klubińska, Uniwersytet im. Adama Mickiewicz w Poznaniu
Syndyk jako pokrzywdzony w postępowaniu karnym
Official receiver as aggrieved party in criminal proceedings
The article contains a discussion on the issue being relatively rarely touched by literature, that is a legal situation of an official receiver in bankruptcy as a party aggrieved by an offence. The dissertation begins with some notes on the structural position of an official receiver and the related theories which have developed in the doctrine. The analysis, which also refers to particular regulations of the Bankruptcy and Reorganization Act dated 28th February 2003, resulted in the recognition of the theory of office taken as correct, in particular this variety of the theory which recognizes an official receiver in bankruptcy as a State agency. Having explained this issue, based on the definition of the aggrieved party contained in Art. 49 § 1 Code of Criminal Proceedings, some of the criminal proceedings (due to the legal qualification of the offences they refer to) are discussed, where an official receiver in bankruptcy is an aggrieved party as a State agency. Particular attention is paid to the issue of possible recognition of criminal proceedings as “proceedings relating to bankruptcy estate” and its consequences. Also discussed is the issue of the inaccurately formulated definition of a public officer in Art. 115 § 13 Penal Code, which does not allow for the fact that an official receiver in bankruptcy can be a commercial law partnership as well.
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