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Journal of Business Law 04/2022

ISBN: 0137-5490
Pages: 58
Publication date: 2022
Place publication: Warszawa
Binding: paperback
Format: A4
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DOI: 10.33226/0137-5490.2022.4.1
JEL: K2, K3

The subject of the legal analysis undertaken in this article is the nature of the settlement obligation imposed on the administrator of a multi-unit property. The purpose of the study will be to determine the legal nature of this obligation and its detailed content and scope. Two hypotheses will be considered — firstly, whether is that civil obligation arising from the management contract that the administrator concludes with the owners of the premises (or with a housing association), and secondly, whether the settlement obligation is a statutory obligation of the administrator resulting directly from the regulation of energy law. Then it should be treated as a public-law obligation. Determining the nature of this obligation is the basis for indicating who is liable to the energy entrepreneur for payment related to the heat supply service.

In order to verify these hypotheses a legal analysis on the status of the manager and the legal structure of the heated building on the basis of the Act on Ownership of Premises was made. Subsequently, it was analyzed who may be a party to the heat supply agreement, with particular emphasis on various variants of the legal status of the managing agent resulting from various management models referred to in the Act on the ownership of premises. Next, the second hypothesis was considered, namely whether, under the regulations of the energy law, the obligation of managing agent to settle costs may be considered as his additional obligation arising directly from the legal act (public obligation). Ultimately, the thesis about the public-law nature of the administrator's settlement obligation was adopted as the conclusion of this study.

Keywords: energy law; settlement obligation; property manager
DOI: 10.33226/0137-5490.2022.4.2
JEL: H57, H76

The purpose of the study is to analyze the status of the tenderer under the Public Procurement Law, in particular: determining the temporal limits of this status, the rights and obligations of the entity entitled to this status, and to examine the internal dynamics in the group of tenderers. In a public procurement procedure based on a tender model, three stages can be distinguished: pre-bid, bid and pre-contract. Article 7.30 of the Public Procurement Law enables the identification of four categories of economic operators, only two of which refer to participants in the procedure. The status of the candidate is linked to the pre-bid phase of the procedure, while the status of the tenderer is activated with the start of the bidding phase, and ends with the completion of the pre-contractual phase i.e. the award of the contract. The composition of the group of bidders as well as their rights and obligations are changed when the result of the procedure announced by the contracting authority becomes final. While at the bidding stage, tenderers have the right to actively act to maintain their offer in the proceedings or eliminate competitors' offers, at the pre-contractual stage, nonselected contractors can only wait for the reactivation of the bidding stage, which may happen if the tenderer whose offer has been selected refuses to conclude the contract.

Keywords: public procurement; stages of the public procurement procedure; contractor; tenderer
DOI: 10.33226/0137-5490.2022.4.3
JEL: H20, K34

Soft drink tax levied on selected sweet drinks, as being intermediate, consumptive and single-phase in nature, is in fact an excise duty. The aim behind the topic of this study is to examine whether and to what extent the Polish legislation (about taxation of sweet drinks) complies with global standards and trends. The fee is to be an effective fiscal tool that will create price pressure aimed at persuading consumers to make healthy choices. The degree of this pressure is correlated with pass through rate of the new burden down the distribution chain — not everywhere in the world the full amount of tax has been passed on to the consumer. It is difficult to determine how big (or how small) will be the impact of the tax on consumers' eating habits, and the balance of social benefits and costs could not be draw up until about 5 to 10 years. However, one can believe, as scientific research shows, that the levy will have a positive effect on the health of children and less affluent consumers, but the impact will not be large. Introducing a fee of a maximum amount of PLN 1.20/liter for beverages with the addition of sugars that are monosaccharides or disaccharides (over 5 g per 100 ml) and selected sweeteners, as well as for beverages containing caffeine or taurine, is in line with the global trend of taxing foods that are believed to have negative health effects. It is expected that further taxes (and fees) will be introduced in Poland, which will burden products with high caloric density and low nutritional value, such as chips or french fries.

Keywords: tax; tax on beverage; sugar tax; sweetened beverages tax; SSB; Soft Drinks Tax; health tax; sin tax
DOI: 10.33226/0137-5490.2022.4.4
JEL: K20, K22

This paper aims to analyse the issue of the control rights and information rights of a shareholder in a simple joint-stock company. The paper contains comprehensive characteristics of both of the above rights, emphasizing the comparative aspect with a limited liability company and a joint-stock company. Moreover, the mutual relation between the control right and the information right has been analysed as well. Furthermore, it should be emphasized that special attention was paid to the attempt to evaluate the incorporation of both the right of control and the right to information in the simple joint-stock company in order to enhance the shareholders' participation in the life of the company.

Keywords: simple joint-stock company; share; shareholder; information right; control right; limited liability company; joint-stock company
DOI: 10.33226/0137-5490.2022.4.5
JEL: K23, K24

Cloud computing outsourcing is a regulatory and operational challenge not only for insurance companies, but also for the Polish legislator and supervisory authority, who are dealing with the adaptation of the applicable regulations to the current needs of the trading practice. The article is devoted to selected regulatory aspects of outsourcing to cloud computing in terms of the insurance activity regime based on the provisions of the Act on Insurance and Reinsurance Activity, particularly essential after the implementation of the Solvency II Directive, and the position of the Polish Financial Supervisory Authority in the Communication on information processing by supervised entities using public or hybrid cloud computing services from January 23, 2020.

Keywords: insurance companies; insurance activity; outsourcing; cloud computing; Polish Financial Supervisory Authority; PFSA
DOI: 10.33226/0137-5490.2022.4.6
JEL: K12, K22

The aim of the article, as in the title, is an attempt to answer the question: Is an individual investor on the capital market a consumer? Answering the question, the author argues that if an individual investor meets the conditions which grant him the status of a consumer within the meaning of the provisions of the Civil Code, he should, in principle, be considered a consumer. This, however, is related to the application of the provisions on consumer protection to him. In support of this thesis, arguments were presented, referring to the jurisprudence of the Polish Supreme Court, the Court of Justice of the European Union, the linguistic and functional interpretation of the provisions regulating the consumer status, as well as the European Union policies in the field of consumer protection. The judgment of the Supreme Court and common courts, which refuse to grant an individual investor the status of a consumer, referring to criteria devoid of a normative basis, were criticized. The basic method used in the article is the dogmatic-legal method. The analysis of empirical data was used as an auxiliary.

Keywords: individual investor; consumer; capital market; financial instruments
DOI: 10.33226/0137-5490.2022.4.7
JEL: K23

According to the Supreme Administrative Court, Art. 143 paragraph 3 of the Geological and Mining Act (GMA) means that if it is not established who, without the required decisions, carries out prospective or exploration activity or mines an amber deposit, the increased fee for such violation of the law should be imposed on the landowner. This assessment is incorrect, as there are no grounds for interpreting this provision of the GMA in the manner described above. Furthermore, the sanction for illegal performance of geological works and the sanction for illegal mining are different. The Supreme Administrative Court also failed to notice that the said "increased fee" is de facto an "administrative fine" within the meaning of section IVa of the Code of Administrative Procedure, and therefore the decisions concerning it must be made taking into account the requirements provided for in Art. 189a et seq. of the above-mentioned code. Although the NSA revoked all judgments in this case, it erroneously ruled on the liability of the property owner for the consequences of actions performed without the consent and knowledge of the latter.

Keywords: prospecting; exploration; mining of minerals without the required licenses; unidentified perpetrator; liability of the landowner; application of the provisions on administrative fines
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