Przegląd Ustawodawstwa Gospodarczego nr 05/2011
Publication date: 2011
Place publication: Warszawa
PUG 5 2011
Pojęcie „przedsiębiorcy” i „przedsiębiorstwa” w prawie naprawczym
The position of the Bankruptcy and Rehabilitation Law in the system of the law
This article has been devoted to the position of the Bankruptcy and Rehabilitation Law in the system of the Polish Law. The article focuses on the sources of the bankruptcy law in Poland, the different kinds of the bankruptcy norms. The main conclusion is the following: the bankruptcy law is a separate branch of the law. This thesis is generally accepted by the Polish doctrine of the bankruptcy law. The criterion to separate the bankruptcy law is the special subject of the social relations connected with insolvency. Unfortunately this criterion is not ideal because of the leak of the disjunction to the other branches of the law. The bankruptcy law is not homogeneous. There is – among others – the substantive bankruptcy law and the procedural bankruptcy law. The substantive bankruptcy law is a part of the private law. In many situations provisions of the bankruptcy law modify the general rules of the civil law.
Anna Zalcewicz, Uniwersytet Szczeciński
Instytucja płatnicza na gruncie regulacji europejskich
Payment institution under European law
On 13 November 2007, the European Parliament and the Council of the European Union adopted Directive 2007/64/EC on payment services in the internal market (hereinafter referred to as the Directive). The new legal framework for payment services in the European Economic Area (EEA) was established by this act. All member states have been obligated to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 November 2009.
One of the more important new solutions of the Directive is the clear specification of the categories of payment service providers who may legitimately provide payment services throughout the European Economic Area. Thus, all of the EEA’s countries have to distinguish six categories of payment service provider; for example, among others: credit institutions, electronic money institutions and payment institutions.
A payment institution is a new category of payment service provider. In accordance with the Directive, "payment institution" means a legal person that has been granted the authority to provide and execute payment services throughout the EEA. This means that it has been necessary to establish standardised licensing rules in all of the EEA’s countries, and relevant supervisory provisions in new legislation. The legal scope of requirements in the area referred to were specified and described in the Directive. Notwithstanding the foregoing, there is the possibility of the legitimate provision of payment services by registered natural or legal persons, who shall be treated as payment institutions. Each country implementing the Directive may itself decide whether or not to allow the provision of payment services by these kinds of entities.
Some of the changes in legal regulations of payment services in the internal market are the object of analysis in this article. Strictly speaking, the regulations for new payment service providers (payment institution and entities which shall be treated as payment institutions) are described. The Directive’s requirements for payment institutions and the scope of its implementation in European countries have been taken into consideration. Therefore, in a few cases it was only possible to analyse bills. Although the deadline for transposition was 1 November 2009, some countries have yet to implement some or all of the Directive’s provisions.
Piotr Brzeziński, Wyższa Szkoła Handlu i Prawa im. R. Łazarskiego w Warszawie
Charakter prawny umowy o generalne wykonawstwo i generalną realizację inwestycji
The legal nature of contracts, of general contracting and general project implementation
The purpose of this article is to assess the legal nature of general contracting agreements and general investments. The paper first characterises agreements on general performance and general investments. Then, after stating the essential features of these agreements, the author attempts to determine the differences between them. Further the author presents the views of jurisprudence on the legal nature of these agreements and the relevant jurisprudence of the Supreme Court. In the main part of the article the author explains the rules of the legal classification of these contracts, based on the principles for an assessment of the legal nature of civil contracts that were not explicitly systematised in the Civil Code. In this part of the article the author challenges the view that contracts for a general contractor and the general implementation of the investments are mixed contracts. In conclusion, the author proposes that the classification of the contracts discussed in the article should be carried out on material as well as functional criteria.
PRAWO WŁASNOŚCI INTELEKTUALNEJ
Justyna Mordwiłko-Osajda, Politechnika Warszawska
Utwór audiowizualny a rejestracja audiowizualna
Audiovisual work versus audiovisual registration
Due to the fact that Polish Copyright Law Act does not define the notion of an “audiovisual work”, it is often difficult to distinguish subjects which stay within its scope from those which remain outside. Even more doubts emerge when it comes to delimitation of the notion of an audiovisual work from other notions used in legal regulations, namely cinematographic work or audiovisual registration.
The article, divided into two main parts – a comparative research and an analysis of Polish law, constitutes an attempt of defining an audiovisual work by finding its borderlines and, consequently, giving examples of works which can be regarded as audiovisual works. The first part of the article contains a brief review of different European, as well as American copyright laws with some remarks concerning the notion of an audiovisual work in the light of European Union’s and international law. The second part focuses on Polish law, mainly taking into account what criteria are set for works to be considered as audiovisual ones. On the grounds of this study, different types of audiovisual subjects are analyzed in order to identify those belonging to the scope of an audiovisual work.
Małgorzata Sieradzka, Wyższa Szkoła Zarządzania i Prawa im. H. Chodkowskiej w Warszawie
Ochrona tajemnicy przedsiębiorstwa w postępowaniu wyjaśniającym przed Prezesem Urzędu Ochrony Konkurencji i Konsumentów- glosa do uchwały SN z dnia 8 kwietnia 2010 r., sygn. akt III SZP 1/10
Company's secret protection in a preliminary investigation instituted by the President of the Office of Competition and Consumer Protection - Gloss to the Supreme Court Resolution of April 8 2010, Case file no. III SZP 1/10
The resolution in question passed by the Supreme Court has a practical aspect as the SC addressed an issue of the entrepreneur's right to business secret protection during a preliminary investigation. Although the company's secret protection in anti-monopoly proceedings instituted by the President of the OCCP does not raise any doubt, justified doubts with regard to this matter appear in the preliminary investigation. It should be pointed out that legal grounds for protection of the company's confidential information are provided by art. 69 of the Competition and Consumer Protection Act of February 16, 2007 (Polish Competition Law) (Dz. U. - Journal of Laws, 2007, No. 50, item 331, as amended). However, the structure of the provision itself has cast doubt about its legitimacy in the preliminary investigation, which is solely a proceeding in camera with no presence of the parties to the case. Hence a question can be brought up (to which an answer is given by the SC in its resolution) not only about legal grounds for the company's secret protection in the preliminary investigation but also about the time point at which an entrepreneur's respective petition is examined. The SC indicated that due to the nature of the preliminary investigation, the effectiveness of a petition for restricted access to evidence included in the dossier is limited by time since such petition is examined by an anti-monopoly authority at the same time the evidentiary material is transferred to and included in the case file of the anti-monopoly proceeding.
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