Przegląd Ustawodawstwa Gospodarczego nr 05/2012
Publication date: 2012
Place publication: Warszawa
Przegląd Ustwodawstwa Gospodarczego nr 5/2012
Mirosław Pawełczyk, Uniwersytet Śląski
Marlena Jankowska, Uniwersytet Śląski
Wypowiedzenie umowy o zaopatrzenie w wodę i odprowadzanie ścieków przez przedsiębiorstwo wodno-kanalizacyjne lub gminną jednostkę organizacyjną
Termination of the water supply and sewage disposal contract by the waterworks and sewage utility company or by the commune organizational unit
The legal act on collective water supply and collective sewage disposal does not state precisely when the waterworks and sewage utility company is allowed to terminate the contract of water supply and sewage disposal to a party. Having in mind the specific character of the services performed, constituting public utility services, and the reading of the article 8 of the legal act mentioned before it seems reasonable to claim that it is possible only in situations, in which the legal act allows the company to cut the supply of water or to close the sewage lateral. In other situations terminating the contract would be found to be null and void. In order to avoid invalidity the company may consider to apply specific institutions regulated in civil code, such as assignment of supplier’s claims and assignment of debt. This article is about to bring a deeper understanding of the regulations on terminating a water supply and sewage disposal contract.
Katarzyna Babiarz-Mikulska, Sędzia Sądu Rejonowego
Charakter prawny listy wierzytelności w postępowaniu upadłościowym – wybrane zagadnienia
The legal nature of the list of claims in the bancuptcy proceedings – select problems.
This article is an attept to describe the legal nature of the list of claims in the polish bancuptcy proceedings and it is very important becouse of the whole bancruptcy law. There is the historical sketch of the problem in the description and the diferences between the prior and current regulations of it. The authoress shows the diferences between the definitiones: „the draft of the list of claims” and „the list of claims”. The article implies the legal nature of the list of claims at the different stages of the bancruptcy proceedings: first stage includes the making list of claims by the general receiver and submission of it to the judge – commissioner, the second stage includes the acts of the judge – commissioner until the moment he publishes it, and the third stage includes the acts after publishing the list of claims. This discrimination is based on the problem of the admissibility and the character of changes the list of claims. It is the main implication for the legal nature list of claims in the polish bancuptcy proceedings. The authoress gives the detailed descripition of the permissible changes in the list of claims and she draws up who can make those changes. Finally, she undertakes giving a definition of the legal conception of the list of claims.
Aleksander Maziarz, Akademia Leona Koźmińskiego
Ewolucja ustalania kolektywnej pozycji dominującej w prawie UE
Evolution of setting a collective dominant position in EU law
Treaty on Functioning of the UE in art. 102 nor explains what is a dominant position neither explains what is a collective dominant position. But the article applies to conduct of one or more undertakings. What should be noted art. 102 of the Treaty prohibits different practices than those formulated in art. 101 of the Treaty.
The article presents the evolution of the definition of collective dominance which was formulated by the European courts. It presents judgements and European Commission decisions relating conducts of undertakings which were found to held collective dominant position. First part of the article presents approach of the courts to collective dominance while assessing practices according to art. 102 of the Treaty. Second part of the article focuses on European merger regime which aim is to prevent creation or strengthening dominant position as well as collective dominant position. Also judgements on the matter of creating or strengthening of collective dominant position while merging are presented.
Anna Stangret-Smoczyńska, Uniwersytet Wrocławski
Sposób ustania stosunku prawnego wynikającego z umowy mandatu kredytowego
The way of extinction of legal relationship resulting from a credit mandate contract (mandate to extend credit to a third party)
A mandate contract to extend credit to a third party is regulated fragmentarily under the Article 77a of Bank Law Act. According to the mentioned above article a bank may accept an instruction to extend credit to a third party. In such a case, unless the contract provides otherwise, the instructing party shall become a surety of a future debt. The contract belongs to nameless contract as it combines elements of two various contracts: a mandate contract with mandating function and a suretyship contract with guaranty function. The subject of the analysis of the article is to determine which of regulations – either related to a mandate contract or related to a suretyship contract- should be applied when terminating a contract on the basis of the Article 77a of Bank Law Act. Termination of a credit mandate contract might be realized before the day when a credit contract is concluded. If a bank concludes a credit contract with a third party in accordance with a substance of a mandate, it means that the liability of the bank resulting from a credit mandate contract expires. Consequently, such a contract cannot be terminated. If such a contract is suretyship for a future debt it may be revoked as well at any time before the debt arises on a basis of the Article 878 par. 2 Civil Code.
PRAWO WŁASNOŚCI INTELEKTUALNEJ
Joanna Sieńczyło-Chlabicz, Uniwersytet w Białymstoku
Zofia Zawadzka, Uniwersytet w Białymstoku
Elementy twórcze i nietwórcze dzieła naukowego
Creative and non-creative elements of scientific works
Problematic of creative and non-creative elements of scientific works is rarely discussed in the literature. Determining whether scientific works are eligible for copyright protection is very controversial and problematic. This is caused by the character and purpose of this kind of works. The specifics of scientific works demands that they illustrate the reality in the most thorough, precise and accurate way. This means that scientific works need to re-create the reality rather than create the new one. This causes problems in determining whether scientific works with their reconstructing character gain copyright protection.
In order to determine which elements distinguished in scientific works have creative character, the methodological meaning of the term “creative work” needs to be determined. A creation is original whenever there is a human contribution in the process of creating a protected work. Originality can be defined as innovation, creating something new. Individual character is understand as a reflection of the personality of author. The creative level will vary according to the kind of work protected and the degree of freedom in individuality the author has. Compared to literary and artistic works, scientific works feature a lesser degree of protectiveness, because the data do not usually belong to a proprietor.
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