Przegląd Ustawodawstwa Gospodarczego nr 11/2011

SPIS TREŚCI
 
Kazimierz Strzyczkowski, Uniwersytet Łódzki
Przedsiębiorca publiczny wobec wolności gospodarczej
Summary
Public entrepreneur versus economic freedom
This article seeks to explain a controversial question of relations between public enterprises and the economic freedoms with reference to constitutional fundamental rights, still remaining in area of ambiguity. In order to clarify whether public enterprises are a subjects of economic freedom, it remains necessary to elaborate a notion and function of the fundamental rights and also scope of their subject matter. Provided analysis proved that public enterprises are not a subjects of economic activity law. Their participation in economy is a subject of proper legal regulations but remain outside of  actualization of the freedom of economic activity law. Furthermore, this article tends to indicate that free economic activity of public enterprises in principle,  does not restrict free economic activity of private enterprises.   
 

Grzegorz Materna, Instytut Nauk Prawnych PAN
Uprzednie naruszenie przepisów ustawy o wymiar kar pieniężnych nakładanych przez Prezesa UOKiK
Summary
Precedent violation of Act’s provisions versus fines awarded by the President of Consumers’ and Competition Protection office (UOKIK)
The article discusses the interpretation problems concerning the concept of “previous infringement of the law“ under Article 111 of the Act of 16 February 2007 on Competition and Consumer Protection (O.J. L. of 2007 No 50 item 331), which is one of the major aggravating factors taken into account when imposing fines under the Act. The author concludes that in spite of its practical importance, the abovementioned factor is regulated unsatisfactory. The author describes decisions and judgments concerning the discussed factor and formulates proposals of its interpretation, in particular he proposes to take into account only infringements found in the final decisions of the President of the Office of Competition and Consumer Protection. The writer indicates also the need to take into account the similarity of the prior and subsequent infringement of the Act. In his opinion similarities should be examined on the basis of the findings, whether the infringements relate to the same goods protected.
 

Marcin Kłoda
Prawo właściwe dla umowy o kredyt konsumencki
Summary
The law governing a consumer credit agreement
This article discusses conflicts of laws issues relative to consumer credit agreements as seen from the Polish perspective. These issues are governed mostly by the Rome I and Rome II regulations. In the absence of a choice of law, the contractual obligations arising out of a consumer credit agreement are governed, as a rule, by the law of the creditor’s habitual residence; if, however, an agreement falls within the scope of article 6 of the Rome I regulation, the law of the consumer’s habitual residence applies. The parties are free to choose any law to govern a consumer credit agreement, subject to a number of restrictions. One of these restrictions is provided for by article 30 section 1 point 5 of the 2011 private international law act. By this provision, the choice of a law of a state other than a member of the European Economic Area cannot deprive the consumer of the protection afforded to him by the Polish laws that implement directive 2008/48/EC, if the agreement has a close link with the territory of at least one member of that Area. The pre-contractual obligations as between the creditor and the consumer are governed by the law that does or would govern the consumer credit agreement. In the event of other pre-contractual obligations or where that law cannot be determined, the law governing a pre-contractual obligation is regulated by such rules as set out in article 4 of the Rome II regulation.
 

Sławomir Czarnecki
O perspektywie wprowadzenia do prawa polskiego regulacji umowy odwróconego kredytu hipotecznego
Summary
Reflections on the Planned Implementation of Reverse Mortgage Regulation into the Polish Legal Order
Both current demographic projections and predicated amount of future retirement pensions are not too optimistic. No wonder then that financial services defined as Equity Release Schemes are introduced into the Polish market as well. They make possible to extract money from the value of seniors’ property without necessity of moving out of the residence. The essence of reverse mortgage agreement is that the homeowner’s obligation to repay the loan is deferred until the owner dies. The article contains the reflections on the benefits and risks resulting from the planned implementation of reverse mortgage regulation into the Polish law in the near future. Pre-analysis of the proposed solutions shows that some of them constitute exceptions to the general principles existing in a civil code and other acts. 

 
PRAWO PRASOWE
 

Krystyna Święcka, Uniwersytet w Białymstoku
Krytyka prasowa a prawo relacjonowania informacji
Summary
Press criticizm and press release of information
The article shows a very important the circumstances excluding journalist’s responsibility, i.e. press critizm and the right to report (press release). Right to report is an essential circumstance allowing the press to function in modern real conditions of the speed of transmission and information. Then the press liability falls, at the most, on an author of the questioned statement referring to important public affairs. In exceptional situations, a journalist may also face sanctions (if he/she reports on the events one-sidedly, thus taking the wrongdoer’s side).
In the case of the “right to report”, journalists are exempted from the obligation to verify the content of the quoted statement. Nevertheless, they should explicitly indicate which words in their own material come from another person. What is more, the right to report should meet specified criteria: of the truth, of the transmission content (its reliability), and most of all, of social usefulness of the information. An informative purpose of presented facts plays an essential role here. Additionally, it should be mentioned that the criterion of truth is understood here slightly different than in case of press criticism since a journalist does not have to check veracity of a quoted statement provided this statement should be conveyed to the society due to its importance. Liability for the transmission’s content is born by a participant of a public debate uttering words that violate personal interests or official secrets.
Nevertheless, it should be noticed that the right to press report covers statements made by public figures exclusively (therefore it does not refer to private individuals).
 

KONSULTACJE
 

Marcin Pawłowski, Uniwersytet Wrocławski
Prawo do firmy w postępowaniu ewidencyjnym
Summary
Right to trade name in registering proceeding
The ability to identify subjects on the market is one of the fundamental issues of the economic activity. Hence all entrepreneurs, regardless of their form are obligated to use trade name within the scope of their business. Moreover the entrepreneurs may undertake economic activities after they have been registered in the Register of Entrepreneurs in the National Court Register or in the Economic Activity Record. This article aims to present results of the latest amendments of the Act on Freedom of Economic Activity and the effects of the system of two different registering authorities. The article explores the consequences of sustaining double authorities with distinct competencies and emphasis on interpretation of problems regarding to lack of adequate regulations concerning natural persons.
The Act of 2 July 2004 on Freedom of Economic Activity leaves unanswered questions concerning the scope of the authority’s competence to verify and modify trade names chosen by entrepreneur. Placing a special emphasis on the different registering authorities, this article describes trade name regulations including the relevant aspects of the underlying proceedings before the authority. It is the purpose of this paper to propose and defend opinions of register authority’s competence to verify applications submitted by natural persons and, in so doing reaffirm the role of the authority to verify in similar way as to the legal person. It also discusses how the opposite interpretation risks negatively impacting not only upon entrepreneurs but also upon the all subjects on domestic market.