Najlepsze ceny Specjalne oferty dla członków klubu książki PWE Najtańsza dostawa

Przegląd Ustawodawstwa Gospodarczego Nr 12/2007

ISSN: 0137-5490
Liczba stron: 32
Miejsce wydania: 2007 Warszawa
Oprawa: miękka
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Jan Błeszyński Zakres i charakter prawny uprawnienia o rozstrzyganiu sporów związanych z zawarciem umowy o reemisję utworów w sieciach kablowych

The scope and legal character of entitlement to resolve disputes related to reemission of works in cable network agreement
1. An especial conciliation procedure was established in the article 108 section 5, related with article 21(1) of the Copyright Law. This procedure aims in presenting to both parties (i.e. appropriate collective management society and undertaking reemission cable operator) resolution, which each party may deprive ex tunc of legal consequences by filing in designated term claim, in the scope concerning reemission, to district court. 2. Action of undertaking the initiative to proceed in front of the Copyright Law Commission, composed of three members, temporarily closes the ability to file claims connected with the reemission of works. 3. Proceeding of the Copyright Law Commission composed of three members may be undertaken as a result of the cable operator's initiative or appropriate collective management society's initiative and may be led irrespectively of whether the participating collective management society has approved Remuneration Tables in reference to reemission. 4. "Resolution" reached in the proceeding in front of the Copyright Law Commission which assigns due remuneration or other conditions of the work's reemission agreement may refer also to the situation when the collective management society has not any approved Remuneration Tables. 5. The character of the Copyright Law Commission's resolution is decided upon the circumstance that its consequence depends on whether the parties accept the resolution or whether at least one of them will file a suit to appropriate district court in two weeks period. About the character of this lawsuit decides the circumstance whether parties act in understanding , which of the parties (cable operator or collective management society) files a claim and whether it refers to the situation in which collective management society has approved Remuneration Tables and also whether an illegal reemission took place, and was it undertaken by the cable operator as a result of not reaching of the remission agreement. 6. The resolution of the Copyright Law Commission composed of three members does not constitute an exception from the article 64 of the Civil Code because it does not lead to modification of the rule stating that court's judgment cannot replace entitlement leading to exercise one's right. 7. Expression in article 108 section 5 in connection with article 21(1) of the Copyright Law of the scope of Copyright Law Commission's recognition, particularly legal character of the resolution which is made in this proceedings, does not change legal situation of the party which asserts its rights in a common court action covered by the Copyright Law Commission's resolution. 8. Because of the obligation of entering the reemission agreement by the agency of an appropriate collective management society, in the situation when this society has approved Remuneration Tables in this scope and is bound by the obligation of equal treatment, it is possible for the cable operator to assert replacement of the statement of will by the court's judgment basing on the article 64 of the Civil Code. 9. In the situation of lack of the reemission agreement collective management society may assert from the subject which is illegally undertaking reemission responsibility basing on the article 79 section 1 of the Copyright Law. Point of reference for such judgment is a remuneration which suitability shall be estimated taking into account legal prerequisites indicated in article 110 of the Copyright Law. 10. In the situation of both parties to the conditional reemission agreement cooperation, entering by the collective management society a lawsuit aiming to adjudicate remuneration based on the article 17 of the Copyright Law taking into account criterions stated in the article 110 of the Copyright Law is possible. 11. When collective management society refuses to conclude an agreement without any important reason (for example: an operator declares readiness to conclude an agreement providing suitable amounts of remuneration which would be finally determined by the court or the court of conciliation in the lawsuit filed by the collective management society) cable operator may assert compensation for damages.

Michał Będkowski-Kozioł

Prywatne wdrażanie prawa antymonopolowego w RFN - uwagi na tle regulacji siódmej noweli kartelowej

Private Enforcement of the competition law, as an important tool to improve the effectiveness of anti-trust protection, has been discussed broadly among law academics and practitioners in Europe for some time.
The reform of the EC competition law, especially of its procedural aspects, under Regulation 1/2003/EC creates in fact the need for strengthening of private litigation system in competition law cases. However the judgments of the European Court of Justice in case Courage and of the Court of First Instance in case Automec II made it clear, that the detailed regulation of the private enforcement of the EC competition law must be carried out on national level. The German Legislature, as the first one on the continent, has undertaken a broad reform of the national competition law to encourage private enforcement of European as well as national competition rules, passing the so called 7th Bill Amending the German Anti-Trust Law (7. GWB-Novelle) in 2005. The article examines the most important instruments of private enforcement, regulated in § 33 GWB (German Anti-Trust Law), which implement - to some extent - the well known institutions of the US anti-trust law, such as the circle of persons entitled to claim on damages for breach of anti-trust rules, the exclusion of passing-on defence and its consequences, regulation in respect to the follow-on claims, and the expiration of claims. The German experiences with private enforcement of competition law and the reform discussion might be very interesting for Poland, as the Polish Anti-Trust Law comprises rather a rudimentary regulation in this area, and a further reform seems to be inevitable.

Paweł Frańczyk

Zasady odpowiedzialności deliktowej na przykładzie art. 98 ust.1 OfertaPublU

Principles of tort liability on the basis of art. 98 par. 1 OfertaPublU.
(Offering securities to the public, admission of securities to the organized system of exchange and public partnerships act.)Principles of liability of the entities mentioned in art. 98 par. 1 OfertaPublU are not defined uniformly. On this basis those entities could be divided into two groups. Entities from the first group-issuer, undertaker, guarantor, offeror, person asking for admission of securities to trading on a regulated market are liable for misstatement of the information given in "prospectus documents" on negligence basis. Proving however lack of negligence in case of those entities is impossible in practice, in a manner that makes it difficult to distinguish their liability from vicarious liability. Second group is other entities participating in preparing "prospectus documents", (other than issuer, undertaker, guarantor, offeror, person asking for the admission to trading on a regulated market), which are also liable for misstatements in "prospectus documents" on negligence basis, however the characteristic of liability of those entities is different than liability of the first group of the entities mentioned above. Liability of the second group is based on negligence principle in it's classical normative shape, which consists in the possibility of accusing certain person of performing certain conduct, that is to say accusing an entity of preparing misleading information or participating in preparing misleading information. Though legislator established a legal presumption of negligence of those entities, unlike entities from the first group they can overthrow this presumption by proving that they did not prepare or participate in preparing misleading information. Different principles of liability of the entities mentioned in art. 98 par. 1 OfertaPublU and a practical possibility of overthrowing presumption of negligence of the entities of the second group is not in contradiction with the principle of joint liability of all the entities mentioned in art. 98 par. 1 OfertaPublU.

Tomasz Krawiel

Czy Konstytucja chroni korporacje zawodowe? Kogo chroni art. 17 Konstytucji?

Does the Constitution protect occupational corporations?
Who is protected by article 17 of the Constitution?Article 17 of the Constitution is a norm restricting the powers of the state based on the sovereignty principle. In a case of lack of article 17 of the Constitution, the state would have the power creating occupational self-governments freely, for each freely chosen profession, concurrently freely supplying such self-governments in competences. Self-governments pointed out in article 17 of the Constitution, including self-governments of professions of public trust, may be created as well dissolved only by decision of the legislative body. Corporations of professions of public trust may be brought into life if and only if a specific profession may be classified as the profession of public trust. Such recognition and categorization of a profession is necessary but also a sufficient condition of creation of a self-government under article 17 paragraph 1 of the Constitution. However, article 17 paragraph 1 of the Constitution does not obligate the legislative body to set up an occupational corporation, even if a profession, in question, may be named as the profession of public trust. The Constitution, including its article 17, does not protect of existence of occupational corporations established by the legislative body under article 17 of the Constitution. The Constitution, specifically article 17 of the Constitution, does not protect existing competences of occupational corporations, also those granted before the Constitution was passed. The legislative body, within the limits of article 17 paragraph 1 of the Constitution, may relatively freely determine a range of competences of a newly established occupational corporation, but also by modifying existing competences of corporations created earlier. Article 17 of the Constitution protects individual rights and freedoms by limiting powers of the legislative body to creation of corporations and to equipping such corporations in competences. Article 17 of the Constitution protects individuals from compulsory belonging to an occupational corporation as a condition of pursuing a profession. The compulsory occupational corporation may be created for very few of professions - professions of public trust only. Simultaneously, this regulation is a securement against corporatism as a form of society organization in compulsory occupational corporations. Nevertheless, the Constitution protects voluntary occupational corporations such as occupational associations founded by individuals exercising the freedom of association.

Orzecznictwo w sprawach gospodarczych

Elżbieta Skowrońska-Bocian

Sąd Najwyższy
I. Badanie przez sąd rejestrowy zgłoszenia zajęcia udziałów wspólnika
II. Sytuacja spadkobiercy wspólnika spółki z ograniczoną odpowiedzialnością
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