Nieprzedawnialne roszczenia majątkowe w prawie cywilnym

2016 ◽  
pp. 149-171
Author(s):  
Mateusz Grochowski
Keyword(s):  
Similar Case ◽  
General Rule ◽  
Case Law ◽  
General Concept ◽  
The Other ◽  
Real Property ◽  
Close Link ◽  
Rule Set ◽  
Damage Claims ◽  
Prescription Rules

The text deals with the question of proprietary claims in the Polish civil law, which are exempted from prescription. The existence of such claims is a clear exception from the general rule set forth in Article 117 of the Civil Code (hereinafter: “CC”), which embraces all the proprietary claims with the general concept of prescription after the elapse of particular term (specified further in the following provisions). The article tries to explore the premises behind the general concept of lack of prescription, as well as to identify particular reasons for disapplication of Article 117 CC on the grounds of particular types of claims. The statute exempts explicitly two types of claims from prescription. It is the case of Article 223 § 1 CC, declaring lack of prescription for the damage claims supplementary to vindicatory claim. Similarly, according to Article 220 CC prescription does not embrace a claim for dissolution of co-ownership. In the other instances, the similar conclusion is derived in interpretation, mainly upon functional and systematic arguments. The case-law and the private law scholarship identify five examples of such claims. In all of these instances, the main reason behind disapplication of prescription rules is the close link of this claims with real property. Prescription of these claims and, hence, the possibility to transform them into natural obligations, seem from this perspective counter-functional and difficult to reconcile with the other principles and provisions of property law. It pertains, first of all, to the claims for establishing a way of necessity ease (Article 145 and 146 CC). Secondly, the same view is adopted for art. 151 CC, regarding another type of easement – available in the case of unintentional introducing a building or another facility behind the border of the somebody else’s ground. Thirdly, in the similar case of the intruding with a construction into another real property, the lack of prescription is adopted as regards the claim for transfer of title to the occupied part of the ground (Article 231 § 1 CC). Fourthly, the lack of prescription has been approved for the claim for establishing a transmission servitude (art. 3052 CC). Fifthly, the same solution has been proposed for the claim for transfer of title in performance of the contract with solely obligatory effects. This interpretation has been, however, rejected in the subsequent case-law and does not seem to be acclaimed currently.

From the “Judicialization of Politics” to the “Politicization of Justice” in the UK and Switzerland

2016 ◽  
Vol 6 (2) ◽  
pp. 118-135
Author(s):  
Lucia Della Torre
Keyword(s):  
General Rule ◽  
The State ◽  
The Other ◽  
Specific Field ◽  
Widespread Phenomenon ◽  
Judicialization Of Politics ◽  
The Uk ◽  
Migration Law

Not very long ago, scholars saw it fit to name a new and quite widespread phenomenon they had observed developing over the years as the “judicialization” of politics, meaning by it the expanding control of the judiciary at the expenses of the other powers of the State. Things seem yet to have begun to change, especially in Migration Law. Generally quite a marginal branch of the State's corpus iuris, this latter has already lent itself to different forms of experimentations which then, spilling over into other legislative disciplines, end up by becoming the new general rule. The new interaction between the judiciary and the executive in this specific field as it is unfolding in such countries as the UK and Switzerland may prove to be yet another example of these dynamics.

MAIN SPECIFICATIONS OF ASSESSING ACTIVITIES OF MINOR IMPORTANCE OF IN MODERN CRIMINAL LAW

Law and World ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 83-95
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Case Law ◽  
Criminal Code ◽  
The Other ◽  
European Countries ◽  
Minor Importance ◽  
Detailed Review

The research includes the full and the detailed overview of assessing activities of minor importance in Georgian Criminal Law. The Article 7 of the Criminal Code of Georgia states the following: a crime shall not be an action that, although formally containing the signs of a crime, has not produced, for minor importance, the prejudice that would require criminal liability of its perpetrator, or has not created the risk of such harm. The research includes the main criteria of defining activities as activities of minor importance. The detailed review of Georgian case law is also introduced, as well as, legislation, judicial literature and experience of the other European countries.

Formation of contracts for the international sale of goods under Korean law and the CISG

2017 ◽  
Vol 21 (3) ◽  
pp. 208-223
Author(s):  
Byung Mun Lee
Keyword(s):  
Comparative Study ◽  
Design Methodology ◽  
Case Law ◽  
The Other ◽  
Basic Question ◽  
Content Type ◽  
International Sale Of Goods ◽  
The Comparative Study ◽  
International Sales ◽  
Insight Into

Purpose The purpose of this paper is to describe and analyze the rules on the formation of contracts under Korean law and the Contracts for the International Sale of Goods (CISG) in a comparative way and introduce the relevant proposed rules under the Amendment Draft of the Korean Civil Code (KCC). In addition, it attempts to compare and evaluate them in light of the discipline of comparative law. Design/methodology/approach In order to achieve the purposes of the study, it executes a comparative study of the rules as to the formation of contracts of the CISG, Korean law and the Amendment Draft of the KCC. The basic question for this comparative study is placed on whether a solution from one jurisdiction is more logical than the others and to what extent each jurisdiction has responded to protect the reasonable expectations of the parties in the rules as to the formation of contracts. Findings The comparative study finds that most of the rules under the CISG are quite plausible and logical and they are more or less well reflected in the proposals advanced by the KCC amendment committee. On the other hand, the other rules under the CISG which have brought criticisms in terms of their complexity and inconsistent case law invite us their revision or consistent interpretation. The drawbacks of the CISG have also been well responded in the Amendment Draft of the KCC. Nevertheless, it is quite unfortunate that the Amendment Draft of the KCC still has a rule that regards any purported performance with non-material alteration of the terms of an offer as an acceptance. Originality/value This study may provide legal and practical advice to both the seller and the buyer when they enter into a contract for international sales of goods. In addition, it may render us an insight into newly developed or developing rules in this area and show us how they interact with each other. Furthermore, it may be particularly useful in Korea where there is an ongoing discussion for revision of the KCC.

Regeneration from duplicating fragments of the Drosophila wing disc

Development ◽  
1981 ◽  
Vol 66 (1) ◽  
pp. 117-126
Author(s):  
Jane Karlsson ◽  
R. J. Smith
Keyword(s):  
Imaginal Disc ◽  
General Rule ◽  
Wing Disc ◽  
The Other ◽  
Posterior Compartment ◽  
Drosophila Wing ◽  
Polar Coordinate ◽  
New Type ◽  
Coordinate Model

It is a general rule that of two complementary Drosophila imaginal disc fragments, one regenerates and the other duplicates. This paper reports an investigation of an exception to this rule. Duplicating fragments from the periphery of the wing disc which lacked presumptive notum were found to regenerate notum structures during and after duplication. The propensity for this was greatest in fragments lying close to the presumptive notum, with the exception of a fragment confined to the posterior compartment, which did not regenerate notum. Structures were added sequentially, and regeneration stopped once most of the notum was present. These results are not easily explained by the polar coordinate model, which states that regeneration cannot occur from duplicating fragments. Since compartments appear to be involved in this type of regeneration as in others, it is suggested that a new type of model is required, one which permits simultaneous regeneration and duplication, and assigns a major role to compartments.

Die Nacherfüllung aus Verkäufersicht

2022 ◽  
Author(s):  
Constantin Jungclaus
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Focal Points ◽  
European Union Law ◽  
Economic Interests ◽  
Court Of Justice ◽  
European Court ◽  
Specific Performance ◽  
Damage Claims ◽  
High Level

The thesis examines the question of which of the compared sales law systems is most likely to realize the (economic) interests of the seller in connection with the consumer’s claim for specific performance, which is characterized by a high level of consumer protection. In this respect, the thesis examines 7 different complexes - from the position of specific performance in the system of purchase warranty rights to the scope of specific performance owed and the objection of disproportionality. Dogmatic focal points are, for example, the problem of self-execution in the light of European Union law and the allocation of certain damage items to specific performance or to damage claims in the light of the case law of the European Court of Justice.

scholarly journals Can the relation between fat and protein in milk be changed by selective breeding

1947 ◽  
Vol 19 (1) ◽  
pp. 8-21
Author(s):  
T. Lonka
Keyword(s):  
Milk Yield ◽  
Climatic Factors ◽  
Production Capacity ◽  
General Rule ◽  
Regression Equation ◽  
Fat Percentage ◽  
Protein Percentage ◽  
Coefficient Of Correlation ◽  
Rule Set ◽  
The Individual

In Finland the protein content of the feeds is in general so low that it restricts the milk yield particularly in herds of high production capacity. This is especially significant for the reason that owing primarily to climatic factors the quality of the feeds cannot be notably improved in this respect. Therefore an effort should be made to change the composition of milk by means of breeding in such a way that it would correspond to the possibilities of feed cultivation in Finland better than at present. This would mean that it should be endeavoured to breed cows whose milk is very fat-rich but at the same time poor in protein, in which case more of the commercially valuable butterfat could be produced on the feed grown on the estate. Since a correspondingly greater amount of milk of poor protein percentage could be produced than that of protein rich milk, the breeding of such cows would not decrease the yield of protein, which is of such great food value, but as great an amount in kilograms of milk protein would be available as earlier for domestic purposes as well as dairies. We have aimed at this goal in our country in general by endeavouring to raise the fat percentage of the milk by means of breeding. It is known that protein percentage does not increase exactly as markedly as the fat percentage, wherefore the protein yield per kilogram of fat decreases as the percentage rises. The influence of breeding would however be incomparably greater if low protein percentage were selected simultaneously with high fat percentage. In the investigation we have dealt with the possibilities of such selection in Finnish cattle, in connection with which we have striven to make clear how much the protein percentage of the milk varies independently of the fat percentage. The material comprises 54 West-Finnish Native cows; the fat and protein percentages of their milk yield has been determined once a month during one lactation. The relation of fat and protein is not the same throughout the whole lactation, but it changes so that at the end of the lactation the protein percentage as compared with the fat percentage is relatively greater than at the beginning of the period (Table and Figure 1). The averages of the fat and protein percentages and likewise the correlation between them depend consequently upon the length of the calving interval. Therefore the said averages have been estimated only on the basis of 2—7 production months. Fy means of these averages r = +0.60 ± 0.09 was derived as the coefficient of correlation between the fat and protein percentages y = 1.53 + 0.39 x as the regression equation, x = fat percentage and y = protein percentage. The individual cows diverge very much from the general rule set by the regression equation, which can be concluded already from the comparatively low value of the coefficient of correlation. The protein percentage of the milk yield of the West- Finnish Native cows diverges at least about one per cent independently of the fat percentage when judging on the basis of the extreme divergencies in the material. Although a part of the divergency evidently is caused by external factors, the role of the genetic factors is nevertheless so great that there appear to be great possibilities for breeding cows producing fat-rich milk by means of breeding but having a protein which would be considerably lower than the present average.

scholarly journals The Fiduciary Duties of Joint Venture Parties – When do They Arise and What Do They Comprise?

2011 ◽  
Vol 42 (1) ◽  
pp. 117 ◽  
Author(s):  
Jane Knowler ◽  
Charles Rickett
Keyword(s):  
Joint Ventures ◽  
Joint Venture ◽  
Case Law ◽  
The Other ◽  
Common Goal ◽  
Fiduciary Duties ◽  
Fiduciary Obligations ◽  
Australian Case

Joint Ventures are often used by parties in commercial enterprises where parties seek to achieve a common goal. One issue which is increasingly contentious is the extent to which, if any, joint venture parties owe each other fiduciary obligations. This paper refutes, as a dangerous heresy, the idea that joint venture relationships are discrete legal relationships that are inherently fiduciary in nature. The majority of self-styled "joint ventures" are, invariably, nothing more in legal terms than contracts. If parties are going to be bound by fiduciary duties, over and above the contractual duties they owe each other, this will only be so by virtue of the particular arrangement they have entered into which, on a thorough examination of the facts, is found to require each party to give unstinting loyalty to the other. Recent Australian case law bears this out.

scholarly journals A VINCULAÇÃO DO PRINCÍPIO PROCESSUAL DA NÃO-SURPRESA E A APLICAÇÃO DA LEI DE INTRODUÇÃO ÀS NORMAS DO DIREITO BRASILEIRO – LINDB

Percurso ◽  
2019 ◽  
Vol 3 (30) ◽  
pp. 42
Author(s):  
Frabriccio Petreli TAROSSO
Keyword(s):  
Decision Making ◽  
General Rule ◽  
Case Law ◽  
Public Law ◽  
Tax Law ◽  
The Novel ◽  
Legal Certainty ◽  
Federal Law ◽  
National Tax ◽  
Definition Of

RESUMOO presente artigo pretende aproximar alguns conceitos da novel Lei de Introdução às Normas do Direito Brasileiro – LINDB ao princípio da não-surpresa aplicável ao processo tributário, seja ele Administrativo ou Judicial. A Lei Federal n. 13.655 de 25/04/2018 houve por incluir no Decreto-Lei nº 4.657, de 4 de setembro de 1942 - Lei de Introdução às Normas do Direito Brasileiro - disposições sobre segurança jurídica e eficiência na criação e na aplicação do direito público. Deste modo, muitas dúvidas têm surgido acerca da convivência entre a regra geral de direito tributário, inserta no Art. 144 do Código Tributário Nacional, de que a lei vigente à época dos fatos geradores deve ser levada em conta ao deslinde de uma questão e que a jurisprudência majoritária à época dos mesmos fatos – se modificada – não deve servir de parâmetro para a tomada das decisões. PALAVRAS-CHAVE: Lei de Introdução às Normas do Direito Brasileiro – LINDB; Princípio Processual da não-surpresa.ABSTRACTThe present article intends to approximate some concepts of the novel Law of Introduction to the Norms of Brazilian Law - LINDB to the principle of non-surprise applicable to the tax process, be it Administrative or Judicial. Federal Law n. 13,655 dated 04/25/2018, there was a need to include in Decree-Law No. 4.657, dated September 4, 1942 - Law on Introduction to the Rules of Brazilian Law - provisions on legal certainty and efficiency in the creation and application of public law. In this way, many doubts have arisen about the coexistence between the general rule of tax law, inserted in Article 144 of the National Tax Code, that the law in force at the time of the generating facts must be taken into account in the definition of an issue and that the majority case-law at the time of the same facts - if modified - should not serve as a parameter for decision-making. The study will have as a method the legal and bibliographical research on the subject.KEYWORDS: Law of Introduction to the Norms of Brazilian Law – LINDB; Procedural Principle of Non-Surpris

scholarly journals Dual citizenship and military service in Yugoslav law

1999 ◽  
Vol 71 (12) ◽  
pp. 204-209
Author(s):  
Tamaš Korhec
Keyword(s):  
Military Service ◽  
General Rule ◽  
The Other ◽  
Dual Citizenship ◽  
Other Hand ◽  
The Law ◽  
The Military

Persons with two or more citizenship are exceptions from the rule that one person has a citizenship of one state. Yugoslav Law make no restrictions for Yugoslav citizens to gain the citizenship of other states, besides the citizenship of the FRY, with the general rule that these dual citizens shall be treated as Yugoslav citizens during there residence in FRY. On the other hand, concerning the military service the Law on Yugoslav Army makes an exception, and provides that dual citizens, regular service in military is conditional and facultative obligation. This pretty vague rule has been recently interpreted by the decisions of the Supreme military court.

scholarly journals LEGAT W PRAWIE RZYMSKIM

2017 ◽  
Vol 3 (1) ◽  
pp. 69
Author(s):  
Elżbieta Loska
Keyword(s):  
Economic Benefit ◽  
Civil Law ◽  
General Concept ◽  
The Other ◽  
Roman Law ◽  
Legal Nature ◽  
Legal Effect ◽  
Ancient Times ◽  
The Times ◽  
Concept Of Law

A LEGACY IN THE ROMAN LAWSummary A notion of a legacy did not exist in the archaic Roman law as a homogenous concept of law and it developed as late as in the pre-classical Roman law. Even then, however, only particular types of legacies, rather than their general concept, were defined. Nevertheless, one may say that a legacy was a civil law instrument by means of which a testator left a certain economic benefit to a particular person, not making him\her an inheritor.At the beginning there were four basic types of legacy in the Roman law: legatum per vindicationem, legatum per praeceptionem, legatum per damnationem and legatum sinendi modo. The first two types had an effect of a disposition while the two latter ones of an obligation only. In sources there also exist two other types: legatum optionis and legatum partitionis. This last mentioned is similar to a later established concept of a fideicommissum, an informal legacy, which became actionable in the times of the Emperor August.Already in the ancient times one may observe a decrease in the significance of these types of legacy, the effects of which directly related to the ownership of objects (legatum per vindicationem and legatum per praeceptioneni).They were connected with the notion o f an ownership according to ius civile and formal means of transferring the ownership. They lost its significance when - beside the oldest civil law - praetorian law and emperors’ constitutions appeared and when the ownership was standardised. After the issuance of senatusconsultum Neronianum in the 1st century AD it became possible to retain the legal effectiveness of the legacies which until then were considered invalid due to a failure to preserve an appropriate form; an ex /^ con version took place. It resulted most probably in converting invalid legacies into legatum per damnationem.In the subsequent centuries, emperors’ constitutions led to a harmonisation o f the concept of legacy (while the division between the legacy having an effect of a disposition and an obligation was still preserved), and later on to equalisation in the legal effect of formal and informal legacies. The most important regulations were: the constitution of the Emperor Constantinus dated 339 AD, which abolished the requirement of solemnitas verbum and two constitutions of the Emperor Iustinianus - the first - dated 529 AD - introduced an identical legal nature of all legacies, the other - dated 531 AD - completely equalised legacies with fideicommissa. 

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