Przegląd Ustawodawstwa Gospodarczego nr 12/2011
Publication date: 2011
Place publication: Warszawa
Aleksander Lipiński, Uniwersytet Śląski
W sprawie dopuszczalności zmiany tzw. ,,starych’’ koncesji na działalność regulowaną prawem geologicznym i górniczym
Problem of amendments of so called „old” concessions for mining and geological activity
Some of the mining (geological) concessions granted before the date of entry into force of Mining and Geological Act of 4 February 1994 are still in force. The problem is that the legal basis on which they were granted exists no more. Administrative courts consider that the amendment of the administrative decision is allowed only if the legal basis (Act of Parliament) on which it had been enacted still exists. That standpoint seems to be wrong. First of all, Mining and Geological Act of 4 February 1994 provides that such „old” mining concessions are remaining in force. What is more, the new Mining and Geological Act of 9 June 2011 (in force since 1 January 2012, repealing the Act of 1994,) provides that concessions granted on the basis of hitherto existing acts shall remain in force and are to be considered as concessions granted on the basis of that new Act. It results that there are not any legal obstacles in amending such “old” concessions.
Krzysztof Teszner, Uniwersytet w Białymstoku
Ulgi i zwolnienia w konstrukcji prawnej podatku a stymulowanie procesów ekonomicznych— wybrane zagadnienia
Tax relieves and exemptions in a legal construction of tax vs. stimulation of economic process
Every tax consists of steady features, and it is builded from the elements named variable features. The tax allowances and the tax exemptions are the elements of tax structure. The author pays attention to the definitions of tax allowance and the tax exemption. He thinks that there are various law institutions, and they does not identify its.
The direct results of application of the tax allowance is:
- reduction of tax base,
- abatement of tax rate,
- reduction of a tax amount.
The tax exemptions is an exclusion a certain cathegory of subjects or objects from taxation. Application of the tax allowances and the tax exemptions is the element of tax authorities too. Next, the author points a various functions of taxes – especially economic function. The tax allowances and the tax exemptions are mechanism which is used by the country for selective affect the field of economic. The author gives examples of this affect in France and Poland.
In the last part of the paper, the author presents the postulates. He says, that the tax allowances and the tax exemptions are part and parcel of the tax. There are elements of the tax structure in Polish constitution and in tax acts. The legal regulations concerned on the tax allowances and tax exemptions are insufficiency. The characteristic features of the tax allowances and the tax exemptions are various and have an enlarge structure. They can be use just like instrument which is regulating economic process.
The tax allowances and the tax exemptions can be an element used on the whole territory of the country, as good as element creationed tax policy by the local authorities.
Marcin Słomski, Centrum Praw Własności Intelektualnej im. H. Grocjusza w Krakowie
Zdolność prawna spółki cywilnej na gruncie prawa niemieckiego
The Legal Capacity of a Civil Law Partnership on the Basis of German Law
In this article, the author, an attorney-at-law and a doctor of German law, presents the legal situation of a civil law partnership on the basis of German law in the light of the judgement of the II BGH Senate (Bundesgerichtshof), recognised in the doctrine of German law as one of the most important judgements related to the essence of a civil law partnership, and its position in the German legal system, which was to end the more than thirty-year dispute in the doctrine of German law. With the judgment of 29 January 2001, the BGH granted legal capacity to the external civil law partnership and the capacity to perform actions in civil proceedings, when through participation in trade, it realizes its rights and obligations. The passage of the above judgement was intended to solve an issue that had been controversial for many years in German legal scholarship – whether a civil law partnership should be interpreted according to the so-called "Indivisible Hand Theory," or "Group Theory", which in turn was associated with the response to the question of whether the joint ownership is a legal entity or a separate related property of the co-owners. In interpreting the subjectivity of a civil law partnership on the basis of § 124 HGB (Handelsgesetzbuch), under which a company may acquire rights and incur obligations, and acquire property and other rights in rem in immovable property, BGH opted for the modern group theory (which is an offshoot of the doctrinal group theory) in issuing the judgement on 29 January 2001. The granting of legal entity status to civil law companies substantially changed their position in the German legal system, because civil law companies became subjects of rights and obligations, which may incur obligations, sue and be sued. First of all, a civil law partnership has been granted the right to be entered in the land register as the owner of a property, which was unambiguously confirmed by the BGH through the judgement of 4 December 2008. The granting of the capacity to perform actions in civil proceedings to a civil law partnership, in turn, was associated with the interpretation of § 50 ZPO and § 17 ZPO, according to which it has the ability to bring legal proceedings against those with legal capacity and that legal action against the company will take place in a court which has jurisdiction over its headquarters. This above position solved the biggest problem in the existing, procedural approach to the civil law partnership, namely the issue of enforcement. Until the judgement of 29 January 2001, in the case of actions against the company, it was necessary to be able to enforce actions against all of the shareholders, which changed after the granting of legal entity to the civil law partnership, since it became a subject of rights and responsibilities. Furthermore, an extremely important aspect from the standpoint of the legal existence of the civil law partnership in trade, related to the granting of legal subjectivity to a company is its ability to issue bills and cheques, and its fiscal capacity. In conclusion, the author emphasises the importance of the II BGH Senate judgement of 29 January 2001 for the existence of a civil law partnership under German law; however, he underlines that the said judgement did not fulfil the assumptions of the German doctrine on this subject, i.e. it did not explicitly resolve the dispute that has been on-going over thirty years regarding the legal nature of a civil law partnership.
PRAWO WŁASNOŚCI INTELEKTUALNEJ
Jan Błeszyński, Uniwersytet Warszawski
Michał Błeszyński, Uniwersytet Kardynała Stefana Wyszyńskiego w Warszawie
Obowiązani do uiszczania opłat na podstawie art. 20 ustawy o prawie autorskim i prawach pokrewnych
Anna Zirk-Cieślarek, Uniwersytet Łodzki
Rozporządzenie Parlamentu Europejskiego i Rady (WE) nr 1008/2008 z dnia 24 września 2008 r. a nowelizacja polskiego Prawa lotniczego dokonana w roku 2011
Regulation No 1008/2008 of the European Parliament and of the Council and the Polish aviation law amendment made in 2011.
Regulation No 1008/2008 of the European Parliament and of the council of 24 September 2008 on common rules for the operation of air services in the Community has repealed regulations (EEC) No 2407/92, (EEC) No 2408/92 and (EEC) No 2409/92 (the third package of liberalization). The regulation regulates the licensing of Community air carriers, the law applicable to them and the pricing of air services of the air carriers. It also standardized rules for air transport in the EU, including route rights. Because of the direct application of EU regulations, works on the amendment of the Polish air law began in 2009 and has been finished in 2011. After the entry into force of the amended aviation law it can be concluded that Poland fulfilled the requirements of the regulation No 1008/2008.
Spis treści rok LXIV (2011) nr 1–12
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