Przegląd Ustawodawstwa Gospodarczego nr 3/2013

PRZEGLĄD USTAWODAWSTWA GOSPODARCZEGO 3/2013

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Spis treści

Marlena Jankowska, Uniwersytet Śląski
Mirosław Pawełczyk, Uniwersytet Śląski
Wykładnia pojęcia „koszt energii elektrycznej” na gruncie kształtowania i kalkulacji taryf oraz rozliczeń w obrocie energia elektryczną

Summary

Interpretation of the term „costs of energy” on the ground of Tariff Regulation

This paper is about to bring the deeper understanding of the term “costs of energy” used on the ground of Regulation of Minister of Economy on the precise rules of creating and calculating tariffs and settlements in the electric energy trading (Journal of Laws from 2011 No 189 item 1126, called as Tariff Regulation), which sets the rules of calculating the costs of energy. The term “costs of energy” seems to be a technical word used for the needs of the Regulation, but still – as we are lacking any further legal specification on scope of this term – it brings the concern to the attention of energy suppliers, who need to calculate the energy price properly and legally. Authors of this paper describe this legal term by making reference to its technical meaning. They also argue that the interpretation of this term shall remain in accordance with its technical sense, which allows us to perceive its meaning as widely as possible. Authors also bring the arguments why the term “energy costs” shall not be used alternatively with the term “justified costs” that has been used on the ground of energy law act.

Maciej Koszowski, Wyższa Szkoła Biznesu w Dąbrowie Górniczej
Indywidualne uzgadnianie właściwości towaru w przypadku sprzedaży konsumenckiej

Summary

Individual agreements on qualities of a good in relation to the consumer sale

Polish Consumer Sale Act distinguishes instances in which arrangements between parties as to quality of a consumer good are made from instances in which such arrangements do not occur. Depending on each of these two situations, there are envisaged different presumptions of conformity of a good with the contract. This division can be, however, very misleading insofar as it suggests that, in instances in which individual agreements on quality of a good occur, the presumption provided for instances in which such agreements are not present does not work. Conversely, if they are only at stake, premises of that presumption must always be fulfilled so that one can presume that a given good conforms to the contract. The only exception is here the actual or presumed knowledge of non-conformity of a given good with the contract on the part of the buyer.

According to the provisions of the Polish Consumer Sale Act, as a result of individual arrangements, we presume the state of the conformity with the contract, if a good delivered to the buyer: a) complies with a description of that good given by the seller, b) possesses the qualities of samples or models of that good which have been shown to the buyer, and c) fits for any particular purpose about which the consumer has notified the seller within the act of concluding a contract upon which he/she has bought that good. Moreover, quality of consumer goods must meet standards on which parties have expressly agreed, especially by the adoption of special contractual clauses in that matter. Namely, except parties do decide otherwise, only such a good can be deemed to be in conformity with the contract. The same remark concerns agreements made per facta concludentia, i.e. agreements that we assume to be reached due to indicative behaviors of parties involved.

Piotr Kawałek, Uniwersytet Jagielloński
Koncepcja „cessione del contratto” oraz „współudziału” przyjęta w prawie włoskim – możliwość zastosowania na gruncie przepisów polskich

Summary

The concept of "cessione del contratto" and "participation" adopted by Italian law - the possibility of adopting under the provisions of the polish law.

"Diritto di partecipazione" is an alternative to the institution of temporary transfer of a player, called the "loan". The essence of the "loan" is to change the club's only for a certain period of time. “Diritto di partecipazione” is regulated in article 102 bis NORMEORGANIZZATIVE INTERNEDELLA F.I.G.C. Article 102 bis regulated the main principals of this institution. The right to participation assumes the existence of a obligation relationship between the two clubs, which results in an equal right to participation in the dimension of rights to benefits arising under the contract with the player. The article 102 bis regulate all the important rules such as: the duration of the “diritto di partecipazione”, acquisition of full rights, elements necessary for the validity of the agreement. The system is complex, but there is a clear motive behind it: compared to the more loan model, it allows for sharing of both risk and reward between two clubs. It has a great significance on the basis of changes in membership of the club by players in professional football. Construction of "diritto di partecipazione" based on institutions “cessione del contratto", which is regulated in Italian civil code. “Cessione del cotratto” is method of changing the contracting party. This institution corresponds to the Polish law as the assignment and acquisition of debt. By using this legal construction and the principle of contractual freedom (article 3531 of Polish civil code) “cessione del contratto” and “diritto di partecipazione” can be adopt under the provisions of polish regulations.

Z PRAKTYKI GOSPODARCZEJ

Tomasz Szczurowski, Uniwersytet Kardynała Stefana Wyszyńskiego w Warszawie
Pismo przygotowawcze w postępowaniu sądowym w sprawie gospodarczej

Summary

Pleading in the legal proceedings in economic lawsuit

The article concerns pleading in the legal proceedings in economic lawsuit. It is a very important subject, because many rules were changed recently. The new law was introduced under the Act of 16 September 2011. The Act repealed proceeding differences in economic matters. The article attempts to answer the question about the Act influence proceedings in economic lawsuit.
The fist part of the paper describes problems with new position of a response to a suit. The author show that it is not obligatory and it is absolutely disadvantage of the new system, because the response to a suit can be submitted during the fist trial and may obstruct it. It might also be a cause of adjournment of a trial.
The second part of the paper analyzes limitations connected with pleadings. The paper shows lots of problems with applying this regulation in practice, because the rules are not clear enough. It is dispute if a judge can reject it without the trial.
The third part of the article discusses problems with delivery of pleading. The author suggests that the new regulation is worse than the previous one. When the opposite party do not have a counsel, the delivery is longer than before, because it is made by court.
Finally the author object to the Act, because it influences on slowness of proceedings in economic lawsuit.

GLOSA

Iwona Sepioło, Uniwersytet im. A. Mickiewicza w Poznaniu
Zbieg odpowiedzialności podatkowej i karnoskarbowej

Glosa do wyroku TK z dnia 12 kwietnia 2011 roku (sygn. akt P 90/08)