The problem of joint co-ownership in a Polish civil law partnership

Upravlenie ◽  
10.12737/5640 ◽  
2014 ◽  
Vol 2 (3) ◽  
pp. 71-75
Author(s):  
Лик ◽  
Jan Lic
Keyword(s):  
Civil Law ◽  
Public Law ◽  
The Other ◽  
Tax Law ◽  
Business Activity ◽  
Legal Capacity ◽  
Legal Personality ◽  
Foreign Law ◽  
Polish Law ◽  
The Right

The problem of joint co-ownership in a Polish civil law partnership constitutes one of the most complex and contentious problems in Polish civil law. On one hand, there are many reasons why a civil law partnership should have legal capacity, capacity to be a party in civil cases, bankruptcy capacity and a status of an entrepreneur. On the other hand, the system of joint co-ownership precludes the partnership from being accorded that status. Recognising the legal capacity of a partnership would mean that it is a carrier of rights and obligations. This, however, would be defied by the system of joint co-ownership, since in that case it would be the partners, as coowners, that would be the carriers of rights and obligations. It is not possible that a partnership and its partners are both carriers of the same property rights; particularly, the right to the property of partnership. Even if the legislature de-cided that a civil law partnership is not just a civil law obligation, but also an organisa-tional unit and that the legal capacity should be accorded to it, then the system of joint co-ownership in a civil law partnership would also have to be waived. Numerous provi-sions of public law, including in particular tax law, suggest such a solution. They already treat a civil law partnership as a legal entity. Accordance of” as the act of granting civil law capacity would unify its status in all areas of law. Furthermore, there are cases from foreign law that speak for the above-presented solution. In France and Scotland a civil law partnership has legal personality. In Germany the equivalent partnership was granted legal capacity. In the latter country, this was possible without the need to resign from the system of community of joint co-ownership (Gesamthand). Contrary to the Polish joint co-ownership, the German Gesamthand is not a type of co-ownership, but a type of legal community of personal rather than property nature. In countries in which a civil law partnership has not been granted legal capacity, problems similar to those that occur in Polish law arise. The postulate of granting legal capacity to a civil law partnership is justified. However, it should be limited to partnerships that operate business activity. Ordinary external partnerships do not require legal capacity; therefore they can still retain the system of joint co-ownership.

Probleme de interpretare privind constituționalitatea și capacitatea juridică a subdiviziunilor administrativ-teritoriale

2020 ◽  
Vol 2019 ◽  
pp. 126-133
Author(s):  
Vlad-Cristian SOARE ◽  
Keyword(s):  
Legal System ◽  
Administrative Law ◽  
The Other ◽  
Political Regime ◽  
Legal Capacity ◽  
Other Hand ◽  
The One ◽  
The Right ◽  
The Revolution

"The fundamental transformations through the Romanian state passed since the Revolution of December 1989, have also put their mark on the legal system. For this reason, there have been major changes in the content of administrative law. However, the regulation of the territorial-administrative subdivisions survived the change of political regime, due to Law 2/1968. Moreover, regulations on administrative-territorial subdivisions are also found in Law 215/2001 and in the 1991 Constitution, revised in 2003. This has led to problems of interpretation. Thus, on the one hand, we need to identify who has the right to constitute administrative-territorial subdivisions, and on the other hand, it must be seen whether the answer to the first question, leads to a possible interpretation that would be unconstitutional. At the same time, administrative-territorial subdivisions have created problems of interpretation regarding their legal capacity. Through this article, we have proposed to look at the issues mentioned above."

CONDUCTING A NON-AGRICULTURAL BUSINESS ACTIVITY AS A SOCIAL INSURANCE TITLE – SELECTED ISSUES

2021 ◽  
Vol specjalny (XXI) ◽  
pp. 641-654
Author(s):  
Kamil Antonów
Keyword(s):  
Social Insurance ◽  
The Other ◽  
Agricultural Activity ◽  
Business Activity ◽  
Personal Care ◽  
Other Hand ◽  
Agricultural Business ◽  
The Right

Conducting non-agricultural business activity is a special title of social insurance. It results from the fact that within the scope of being subject to social insurance, only entrepreneurs (out of all persons conducting non-agricultural activity) have the right to periodically exclude the obligation of social insurance and to suspend the conducting of business activity, not only due to the personal care of a child. On the other hand, in the sphere of paying social insurance contributions, there are three ways of establishing the contribution calculation basis on this account (ordinary, preferential and income-dependent basis). In general, it should be stated that conducting non-agricultural business activity as a social insurance title is of the following nature: commercial, obligatory, general (in case of an overlapping of social insurance titles), independent (autonomous), strictly paid and privileged (in relation to other forms of non-agricultural activity).

Professional secrecy and legal professional privilege

2018 ◽  
Vol 25 (2) ◽  
pp. 188-207 ◽  
Author(s):  
Jorg Sladič
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Family Life ◽  
Common Law ◽  
Civil Law ◽  
Fundamental Rights ◽  
The Other ◽  
European Convention ◽  
Legal Professional ◽  
The Right

Legal privilege and professional secrecy of attorneys relate to the right to a fair trial (Article 6 European Convention on Human Rights (ECHR)) as well as to the right to respect for private and family life (Article 8 ECHR). The reason for protecting the lawyer via fundamental rights is the protection of fundamental rights of the lawyer’s clients. All legal orders apply legal privileges and professional secrecy; however, the contents of such are not identical. Traditionally there is an important difference between common and civil law. The professional secrecy of an attorney in civil law jurisdictions is his right and at the same time his obligation based on his membership of the Bar (that is his legal profession). In common law legal privilege comprises the contents of documents issued by an attorney to the client. Professional secrecy of attorneys in civil law jurisdictions applies solely to independent lawyers; in-house lawyers are usually not allowed to benefit from rules on professional secrecy (exceptions in the Netherlands and Belgium). On the other hand, common law jurisdictions apply legal professional privilege, recognized also to in-house lawyers. Slovenian law follows the traditional civil law concept of professional secrecy and sets a limited privilege to in-house lawyers. The article then discusses Slovenian law of civil procedure and compares the position of professional secrecy in lawsuits before State’s courts and in arbitration.

scholarly journals Apstākļu izmaiņu ietekme uz līguma saistošo spēku un labas ticības princips

2021 ◽  
pp. 128-133
Author(s):  
Kaspars Balodis ◽  
Keyword(s):  
Civil Law ◽  
Good Faith ◽  
The Other ◽  
Fundamental Change ◽  
Contractual Obligations ◽  
The Right

According to the Civil Law of Latvia, Article 1587, a contract imposes on a party a duty to perform the promise, and neither the exceptional difficulty of the transaction, nor difficulties in performance arising later, shall give the right to one party to withdraw from the contract, even if the other party is compensated for losses. The Civil Law does not recognise a fundamental change in circumstances as a ground for adjustment or cancellation of a contract, although the doctrine is well known in the country. In many cases, Covid-19 restrictions have been damaging to parties’ ability to perform their contractual obligations. Under certain conditions, the principle of good faith (Article 1 of the Civil Law) could be applied to adjust contracts to the changed circumstances.

scholarly journals HIPOTEKA PRZYMUSOWA JAKO FORMA ZABEZPIECZENIA WYKONANIA ZOBOWIĄZAŃ PODATKOWYCH

2016 ◽  
Vol 14 (4) ◽  
pp. 131
Author(s):  
Aneta Makowiec
Keyword(s):  
Civil Law ◽  
Case Law ◽  
Tax Law ◽  
Private Law ◽  
Legal Literature ◽  
Polish Law

The Judicial Mortgage: A Form of Securing Tax LiabilitySummaryThis paper incorporates a characterisation and a thorough dogmatic analysis of the judicial mortgage as a form of securing the satisfaction of tax liabilities in Polish law. The significance of this issue warrants a discussion of the research both on its practical and theoretical aspects. In addition there has not been much interest in this subject in the Polish tax and legal literature. Undoubtedly, the amendments introduced during the last few years have prompted numerous questions and doubts with regard to these issues, which justifies the need for such research all the more. The fact that securing the satisfaction of tax liabilities is performed by employing methods well-known in civil law connected with liability involving rights in rem such as the mortgage, and the insufficient regulations regarding the judicial mortgage in tax law have made it necessary to analyse the legislation on private law as well as the doctrines and case-law connected with it.

scholarly journals Administrative Legal Entities of Private Legal Entities as a Status Component of the Legal Regulation Mechanism: Characteristics of Elem

2019 ◽  
pp. 91-95
Author(s):  
V.V. Sukhonos
Keyword(s):  
Civil Law ◽  
Legal Regulation ◽  
Administrative Law ◽  
Regulation Mechanism ◽  
Private Law ◽  
Legal Capacity ◽  
Legal Entity ◽  
Legal Personality ◽  
The Subject ◽  
Legal Entities

The article is devoted to administrative legal personality, which is part of the structure of the administrative-legal personality of private legal entities. At the same time, it is argued that, on their own, the rules of law cannot influence the behavior of their addressees, therefore the only instrument by which legal regulation is used to help ensure such influence is the mechanism of legal regulation within which the functions of law are implemented, and specific life situations are addressed. It is noted that, like any state mechanism, the mechanism of legal regulation consists of the relevant elements, namely: norms of law, legal relations, and acts of realization of rights and obligations. Thus, we can conclude that the disclosure of the features of the mechanism of legal regulation is possible only if a thorough study of its elements. Thus, each state that there is no language and there can be no legal regulation, which in its nature and nature is different from other types of regulation. It should also be remembered that, at its core, legal regulation is not material but is done through the consciousness and will of the people. It is perfect. However, any ideal process cannot occur without the participation of matter. Based on all the above, it can be stated that one of the constituent parts of the mechanism of legal regulation is legal relations. It should be remembered that public relations also have an internal structure to which the subject, object, and content relate. However, the absence of at least one of the elements of the relationship automatically complicates, or even precludes their very existence. The same rule applies to the mechanism of legal regulation. Thus, the study of each of the components of the mechanism of legal regulation has the same scientific significance and importance as the study of the mechanism itself. Therefore, if we conduct a study of administrative-legal personality, then it must take into account its place and the impact on legal regulation as a whole. Legal personality nowadays also exists in administrative law, although the very concept of “legal personality”, as a certain characteristic of a legal entity, originally originated in civil law. However, it should be remembered that the method of administrative law is significantly different from civil law, and therefore the use of civil law expertise in the field of legal personality should be used with extreme caution. In his desire to ensure state control and the possibility of applying state coercion, the legislator adapted the rules of public law to the construction of a legal entity of private law. On this basis, it should be noted that different types of legal entities under private law would have different levels of administrative capacity. That is why the legal capacity of legal persons under private law can be recognized as administrative law, both social and legal capacity, and the need to be the subject of administrative-legal relations. Keywords: administrative-legal personality, legal entity, private law, mechanism of legal regulation.

Przemiany własności w rolnictwie – kontekst systemowy z perspektywy prawa krajowego i unijnego

2014 ◽  
pp. 29-72 ◽  
Author(s):  
Alina Jurcewicz ◽  
Paweł Popardowski
Keyword(s):  
Economic System ◽  
Public Interest ◽  
Civil Law ◽  
Legal Order ◽  
Point Of View ◽  
The Other ◽  
Eu Legislation ◽  
Economic Reality ◽  
Polish Law ◽  
Point Of Reference

In the article, the Authors attempt to systematically formulate “property”, from the point of view of both – Polish and EU legislation. They highlight various understandings of property and point out, how complicated the evolution of this law aspect has been. The point of reference in the conducted analysis is the assumption that property is one of the most important elements of the legal order. It is also perceived as a pillar of social and economic system. At the same time, property, and more precisely – its juridical concept assumed by a legislator as a factor shaping not only the content of property right but also determining its allowable forms, constitutes a fundamental instrument used by a country to influence its social and economic reality. As a reference to the Polish law, the Authors presented understandings of property that result from the constitution and civil law and pointed out fundamental differences between them. They highlighted also the fact that the constitutional concept of property is normatively superior to the other concept, what is reflected by the fact that property, formulated in the Constitution as an elementary right, determines the requirements concerning statutory under-standing of property. According to the principles of EU legislation, property is also perceived as an elementary right, but, as in the Polish law, it does not constitute an absolute (unlimited) right. It is though indicated that public interest in the broad sense of the term may constitute a legal prerequisite for interference in owner’s entitlements.

scholarly journals Court Judgement as a Jural Fact in Civil Law: Doctrinal Discourse and the Problem of Legal Formulations

2021 ◽  
pp. 240-262
Author(s):  
V. G. Golubtsov ◽  
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Modern Science ◽  
Legal Regulation ◽  
Public Law ◽  
Procedural Law ◽  
The One ◽  
The Right ◽  
Substantive Law ◽  
The Relationship

Introduction: the role of the court judgement that determines civil rights and obligations remains not completely perceived in civil law. In the modern science of civil law, no definite theoretical views on this subject have yet been formed, except for those that were formulated in the period when the science was actively discussing the very fact of referring court judgements to jural facts of civil law. In the article, we address this issue through reviewing, analyzing and generalizing the existing scientific views, with inter-disciplinary aspects also involved. The scope of study includes the disputable issues of the legislative definition of the court judgement seen as the basis for the commencement of civil rights and obligations and also the analysis of methodological positions significant for the research. Purpose: while taking the theory of modificatory claims as what is recognized in the modern doctrine of civil procedural law, to investigate the right-establishing force of the court judgement defined by the legislator as a jural fact of civil law. Methods: the methodological framework of the research is based on the general scientific method of scientific cognition, which reflects the relationship between the doctrine and law enforcement, as well as methods of dialectics, analysis, synthesis, analogy, functional, interdisciplinary, and system approaches. Results: the article proposes a system of concepts with the court judgment in its civil law meaning of a jural fact of substantive law lying at the core. Based on this system, we can state that the relationship between such concepts as the ‘court judgement’ and the ‘jural fact of substantive law’ is to a greater extent speculative. It is not sufficient to explain a court judgement as the basis for the commencement of civil law relations only based on the theory of procedural law, which divides all claims into declarative and constitutive ones. We argue that the concept ‘court judgement’ in its substantive meaning has a dual civil law function: (1) in the meaning of its right-restorative function – as a result of the protection of a violated civil right, and (2) as one of the grounds for the establishment of civil rights and obligations resulting from a private person’s initiative and the court authority. The right of the court to deliver right-establishing judgements that become one of the legal regulation elements within civil law, is an exception to the general civil law rule implying the discretionary method of regulation, according to which the parties determine their rights and obligations by mutual agreement. Following the analysis of the doctrinal views on the concept of the court judgement in its substantive meaning, which many authors consider to be the one not corresponding to its broader procedural meaning, we justify the position that there are no obvious grounds for diagnosticating the alleged contradiction between substantive and procedural legislation in terms of the logical scope of the ‘court judgement’ concept. It is more important to see the real legal meaning of this concept in the civil law reality, which involves a combination of the substantive law significance of a court judgement for establishing civil rights and obligations and the public law essence of this act, which is manifested not in private actions of the interested persons themselves but in unilateral actions of the court as a public law subject. We also formulated some methodological positions that could serve as theoretical guidelines for further research into the problem of the court judgement as one of the jural facts of civil law.

scholarly journals WOLNOŚĆ KOALICJI ZWIĄZKOWEJ PRACOWNIKÓW NIETYPOWYCH, OSóB ZATRUDNIONYCH NA PODSTAWIE UMÓW CYWILNOPRAWNYCH I SAMOZATRUDNIONYCH

2016 ◽  
Vol 13 (4) ◽  
pp. 127
Author(s):  
Anna Reda-Ciszewska
Keyword(s):  
Public Administration ◽  
Civil Law ◽  
Armed Forces ◽  
The Self ◽  
Freedom Of Association ◽  
Labour Law ◽  
International Labour Organisation ◽  
Polish Law ◽  
The Right ◽  
Labour Organisation

FREEDOM OF ASSOCIATION OF ATYPICAL EMPLOYEES, PERSONS EMPLOYED ON THE GROUNDS OF CIVIL CONTRACTS, AND THE SELF-EMPLOYED Summary This article discusses the freedom of association of atypical employees, persons employed on the grounds of civil law contracts, and the selfemployed. Polish law guarantees the right of association to employees on the grounds of its labour law (kodeks pracy). However, the International Labour Organisation Convention denies the right of association to members of the armed forces, police, and public administration. In 2011 a complaint was submitted to the Committee on Freedom of Association, which has drawn up recommendations for Polish law. The author analyses the solutions of Polish law in the context of the Committee’s recommendations on freedom of association for atypical employees, persons employed on a civil law contract, and the self-employed.

scholarly journals Gondolatok és javaslatok a román Polgári törvénykönyv magyar fordításához

2021 ◽  
Vol 4 (2) ◽  
pp. 41-64
Author(s):  
Tamás Nótári ◽  
Előd Pál
Keyword(s):  
Family Law ◽  
Civil Code ◽  
The Other ◽  
Legal Capacity ◽  
Legal Personality ◽  
The Third ◽  
The Law ◽  
Legal Fact ◽  
Personal Law ◽  
The Relationship

In this paper, we wish to make a few comments on the third edition of the hungarian translation of the Romanian Civil Code, without claiming to be exhaustive. Our translation suggestions concern certain provisions of personal (and family) law, law of property and law of obligations. We will expand on the concepts of legal personality, legal capacity and capacity to act in the personal law section, the concepts of property and assets in the law of property section, and the relationship between the concepts of legal fact and deed in the law of obligations section, and then make translation and correction suggestions for all the other articles in the books mentioned.

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