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Journal of Business Law 03/2021

ISBN: 0137-5490
Pages: 69
Publication date: 2021
Place publication: Warszawa
Binding: paperback
Format: A4
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DOI: 10.33226/0137-5490.2021.3.1
JEL: H

The binding Public Finance Act introduces the principle of openness of public funds management (the openness in the narrow sense). It enters as a lex specialis, into the broad principle of public finance openness. The source of the latter is the Constitution and numerous acts. Until now, the science of financial law has focused on the principle of openness in the narrow sense. The aim of the article is to present arguments for the importance of the principle of public finances in a broad sense and the need for its specific protection.

Keywords: openness of public finances; narrow view of the principle; broad view of the principle; restrictions on openness; implementation of openness
DOI: 10.33226/0137-5490.2021.3.2
JEL: K24

On the need to really criminalize corruption in the private sector The article refers to the criminalization of corruptive behaviours in the private sector. It contains a thesis that Art. 296a of the Penal Code does not fulfil the requirements set forth in the international and EU law, as it constitutes an offence of economic corruption, covering corruptive behaviours undertaken both in the private and the public sectors. The aim of the article is to critically analyse the current wording of Art. 296a PC in the light of the international and EU law, as well as to formulate a de lege ferenda proposition of a new wording of this provision, which would finally penalize all corruptive behaviours in the private sector and at the same time put the Polish law in compliance with the international standards.

Keywords: economic corruption; criminalization; corruption in the private sector
DOI: 10.33226/0137-5490.2021.3.3
JEL: K19, K20, K22, K33

The main purpose of this article is to present the concept of the cross-border conversion of a company and the possibilities for companies to carry it out under the freedom of establishment in the light of the recent judgment of the CJEU in case C-106/16 Polbud, and the provisions of Directive 2019/2121 EU of the European Parliament and of the Council of 27 November 2019 amending Directive (EU) 2017/1132 as regards crossborder conversions, mergers and divisions, which should be implemented by the Member States by 31 January 2023. The article discusses selected aspects of the procedure of cross-border conversion of a company, regulated in new Directive 2019/2121, and focuses on the scrutiny of legality of cross-border conversion of a company by competent national authorities. Particular attention is paid to the concept of abuse of law in the context of the possibility for national authorities to issue a pre-conversion certificate as the precondition for registration of the company undergoing conversion in the Member State of destination.

Keywords: freedom of establishment; cross-border conversion of the company; abuse of law
DOI: 10.33226/0137-5490.2021.3.4
JEL: A12, D18, D21, K20

Correct use of the designation "Made in" by entrepreneurs on the EU market is a highly relative issue. The lack of a clear, unambiguous and binding legal regulation for determining the origin, including that applicable to all types of products, forces the use of many criteria for this purpose. The general normative criterion is narrowly defined because it refers to the affiliation of a product to a given tariff heading in terms of customs duties. It will therefore often need to be adjusted. Technical and economic criteria are used for this. They are mainly considered from the point of view of the added value of the product. Sometimes, however, the conditions relating to the fixing of the so-called ex-works price, and additionally — or alternatively — to the course of the manufacturing process or the structure or characteristics of the product, may also be relevant. Moreover, it is necessary to confront the effect of the application of these criteria with the consumer prohibition of misleading. However, it should be taken into account that in some cases such a prohibition is to be repealed by expressly basing the designation of origin on individual production aspects. One should also be aware that such a legal situation is conducive to the occurrence of acts of unfair competition in terms of marking the origin. Finally, which is also demonstrated by this analysis, entrepreneurs may encounter difficulties in the discussed issue also due to the existence at the national level, in the scope of a certain category of products, of specific provisions regarding the indication of their native origin.

Keywords: product; designation; origin; substantial working or processing; tariff heading; added value; misleading representation; consumer
DOI: 10.33226/0137-5490.2021.3.5
JEL: G21, K15

This second part of the article is about banks` condiction claim regarding the reimbursement for noncontractual use of capital provided by banks in the situation of acknowledgement of invalidity (ex tunc) of credit agreement. The issue arises on the basis of judicial practice on mortgage credit agreements denominated in or indexed to foreign currencies. This issue arose on the basis of the jurisprudence concerning mortgage loan agreements denominated or indexed to a foreign currency. This part of article discusses the doubts that have arisen, based on — which requires an explicit reservation — the body of case-law, as well as proposing specific solutions. Such a solution is the result of the fact that the problem which is the subject of this paper has been created on the basis of court case law (where it was "initiated" in a way by the judgment of the Court of Appeals in Białystok on 20 February 2020; reference: I ACa 635/19) and is a strictly practical problem; thus, its solution should be drawn from the hitherto judicial output. As a result of the above, both the doctrinal considerations and the analysis of the doctrine acquis will be reduced here to the necessary minimum.

Keywords: non-contractual use of capital; unjust enrichment; invalidity of credit agreement; condiction claim
DOI: 10.33226/0137-5490.2021.3.6
JEL: K15

In the Polish legal literature, the majority accept the view that a minor is able to be an entrepreneur. However, Polish law does not allow a minor to be granted the fullscope legal capacity by a court, although it was once different. Like many legislations on five continents, the legal systems of Russia, Belarus, Ukraine and Kazakhstan provide for the admissibility of emancipation of a minor. In the paper, I broadly justify my earlier demand that Polish law allow granting a minor full-scope legal capacity.

Keywords: minors; emancipation; entrepreneur; Poland; Russia; Belarus; Ukraine; Kazakhstan
DOI: 10.33226/0137-5490.2021.3.7
JEL: K22

The article presents judgements of The Supreme Court, ruled in 2020, which have the most important meaning for the economics practice. Although the Polish legal system is not based on a precedent, the case law of the highest judicial body is respected by common courts. The position of the Supreme Court is of particular importance if it was issued as a result of the resolution of legal issues. The author highlights judgments which deals with such topics like: life insurance with insurance capital fund, nature of period of time under the article 584 the Commercial Companies Code, the costs of renting a replacement vehicle as a damage, contractual penalty from money obligations, limitation period under the article 819 § 4 of the Civil Code, interpretation of the article 13 § 1 of the Commercial Companies Code, nature of the claims about cancelation of the agreement in case of unfair market practice.

Keywords: judgments; the Supreme Court
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