Przegląd Ustawodawstwa Gospodarczego nr 09/2010
Place publication: 2010 Warszawa
Bartłomiej Nowak, Akademia Leona Koźmińskiego w Warszawie
Niezależny organ regulacyjny na przykładzie sektora energetycznego
Independent regulatory executive on example of energy sector
New market-oriented regulation for network industries requires an active national regulatory authority which is independent from the influence of market players as well as from day-to-day governmental interference. The domestic regulatory authorities need to be legally and functionally separate from any other public or private entity; moreover, their employees as well as decision makers need to act independently of the interests of any particular market player, any government body, or any other public or private entity. For this reason, the national regulatory authorities need to have legal, personnel, and budgetary autonomy as well as appropriate human and financial resources and independent management.
Third legislative package proposed by the Commission is about to strengthen national regulatory agencies giving them independence of the legal person and a budgetary autonomy. Further on propositions of the package clear up the competencies of national regulators in the way that they should exercise monitoring of implementation of directives on energy liberalization, analyze investments plans of transmission network operators, observe for transparency the market and competition and protect consumers. All these measures aim to equip regulators with legal, functional and financial independence from the market players and from the government authorities.
Wojciech Iwański, Uniwersytet Jagielloński
Wpłaty wkładu na rachunku bankowym na rzecz osoby nieurprawnionej – problematyczna zmiana linii orzeczniczej
Withdrawal of funds from a bank account by an unauthorised person – problematic changes in mainstream jurisprudence
The article constitutes the second part of analysis on the problem of ramifications of funds withdrawal from a bank account by an unauthorised person from the point of view of Polish jurisprudence. The previous article reconstructed the mainstream point of view on this problem which is based on general rules applicable to contractual relationships. In this article, the author analyzes particular recent court rulings which considerably deviate from the mainstream jurisprudence.
Firstly, the article provides for detailed description of the ruling in which the Supreme Court classifies allowing for withdrawal by an unauthorised person as a breach of contract for maintenance of a bank account. The Supreme Court tried to construct claim for damages for breach of contract on the basis of general prudential rules applicable for banks.
Furthermore, in recent rulings, the courts, including, notably, the Supreme Court, tend to transfer legal ramifications of withdrawals originated by an unauthorised person from the area of bilateral contractual relationship between the bank and its client to the area of torts. Often such endeavors are made purely for utilitarian reasons, namely, to assure the client (usually acting as a consumer) enforceability of claims (e.g. to avoid lapse of applicable limitation period). The article includes the detailed analysis of two court rulings in which the Supreme Court qualified withdrawals made by unauthorised persons as damages incurred by banks’ clients as a result of torts.
Magdalena Fedorowicz, Uniwersytet Szczeciński
Anna Zalcewicz, Uniwersytet Szczeciński
Przejawy działalności instytucji finansowej w polskim prawie bankowym
Financial institutions’ forms of activity in Polish banking law regulations
The Polish legislator may regulate financial institutions’ activity provided that, such provisions are compatible with Community law and are intended to exercise of the right of establishment and the freedom to provide services, however regulations of financial institutions’ activity under banking law aims at, in particular, protecting the interests of the depositors of credit institutions and at ensuring the stability of the financial system, too.
The main purpose of the article is to settle how financial institutions’ activity is regulated in Polish banking law and also where EU regulations’ influence is visible in Polish banking law.
Analyzed following regulations covering:
- the taking up and pursuit of business by a financial institution, whose registered office is located in the Republic of Poland, in the light of Article 48h of Banking Law of 29 August 1997;
- the taking up and pursuit of business by a financial institution, whose registered office is located in the territory of one of the member states of the EU or the OECD, which meet the requirements laid down in Article 48h item 1 of Banking Law of 29 August 1997;
- conduct of business by groups such as financial groups, hybrid groups, mixed-activity groups, foreign banking group and domestic banking group, where at least one of the undertaking is a financial institution and at least of one of the undertaking is credit institution registered in Poland (domestic bank).
Paweł Wajda, Uniwersytet Warszawski
Zasada ogólna pogłębienia zaufania obywateli do organów Państwa jako mechanizm zabezpieczający efektywność obrotu gospodarczego
The general principle of enhancing citizens` trust in state bodies activities as the guarantee of the optimal regulatory decisions in the polish economy
The article is focused on presenting the basic, theoretical and practical aspects of the general principle of enhancing citizens` trust in state bodies activities (article 8 of the polish Code of Administrative Procedure). The main aim is to prove that the mentioned general principle is one of the most important and significant guarantees, that allows to undertake only optimal decisions by public administration in the area of polish economy. The content of the article is concentrated on complete and exhaustive analyze of this general principle, by putting special emphasis on showing practical sense of the institution and significance within the scope of administrative proceedings. The public administration should regulate the economy by using only the optimal decisions. To do so, the public administration has to choose how to trade off such factors as public and private interest against one another. Among other considerations, the public administration’s decision will be influenced by the general principle of enhancing citizens` trust in state bodies activities.
Joanna Błeszyńska-Wysocka, Uniwersytet Warszawski
Glosa do wyroku Sądu Apelacyjnego w Warszawie z dnia 3 sierpnia 2006 roku Syg. akt VI Aca 151/06
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