Wyniki wyszukiwania - Biblioteka Nauki

1

CURRENCY OPTIONS AS AN ECONOMIC PROBLEM - LEGAL ANALYSIS OF SOLUTIONS (Opcje walutowe jako problem gospodarczy - analiza prawna proponowanych rozwiazan)

100%

Cioch P.

Pieniądze i Więź

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2009

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tom 12

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nr 1(42)

156-166

EN

Currency options contracts which were generally concluded between banks and Polish enterprises currently lead to the huge financial problems or even to the bankruptcy of many of them. These contracts very often had an asymmetrical and harmful character for enterprises. Regarding to this matter the Minister of Economy put forward the statutory solution. All three options of the statutory project were critically discussed in this article. Bringing the Minister's of Economy ideas into effect would expose Poland to the great financial losses connected with expensive international arbitration legal proceedings. Currency contracts were signed by the banks with majority foreign capital, therefore cancellation of these contracts in legislative procedure would be against the bilateral agreements regulations concerning support and mutual protection of investment, so-called BIT (Bilateral Investment Treaties). The governmental ideas' weak point is also a great possibility of the opinion that these regulations are in contradiction with the Constitution of the Republic of Poland. Also making implementation of the Minister's of Economy act dependent on banks' failure to comply with informative duties, questioned in the 2004/39/WE European Parliament and European Council Directive of 21st of April 2004 concerning financial instruments' markets, known as MiFID (Markets in Financial Instruments Directive) deserves criticism. The main purpose of the directive is to implement freedom of investment services within the European Community and to protect the customers of investment services and also to ensure the bigger transparency in banks', brokerage houses' and financial agents' activities. Unfortunately, for some reason, MiFID has not been implemented by Poland yet (the implementation's deadline expired on 31st of January 2007), in this case, referring to it in the horizontal relations between banks and enterprises is an error. Under the circumstances, there is nothing left for enterprises but claiming the agreements' cancellation and suing for damages. The legal basis of making the claim was discussed in this article. These are, first of all, the error (a. 84 of the Civil Code), the exploitation (a.388 of the Civil Code), rebus sic stantibus clause (a. 3571 of the Civil Code) and also unfulfillment of informative duties by banks (a. 94 of the act of 29th of July 2005 concerning dealings in financial instruments and the Minister's of Finance Regulation of 28th of December 2005 concerning the procedure and conditions of investment companies' and trust companies' activities). In this article the emphasis was put on the courts' duty of pro-community interpretation of the above-mentioned regulations. It means that the court while interpreting Polish regulations, referred in the plaint, should follow the MiFID despite it has not been implemented.

2

THE LEGAL BASIS OF CONSUMER BANCRUPTCY (Podstawy prawne upadlosci konsumenckiej)

100%

Cioch P.

Pieniądze i Więź

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2010

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tom 13

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nr 2(47)

117-125

EN

Since 31 March 2009, there is a possibility for personal bankruptcy in Poland. The article presents selected models of personal bankruptcy (fresh start and earned fresh start) in the United States and selected European countries - Great Britain, France and Germany. On the background of these regulations the author has developed legal analysis of Polish solutions. There is a need for their amendment. Model of personal bankruptcy in Poland is too restrictive and often unavailable to people who get into debt not because of their guilt. In practice, the declaration of personal bankruptcy by the court may be more difficult than in the case of trader bankruptcy. In the case of personal bankruptcy there is a requirement for at least two creditors and certificated bankruptcy. Apart form basis for declaration of bankruptcy, the author outlines the course of the liquidation and payment of creditors and proposes amendments which would remove the existing holes in provisions on personal bankruptcy.

3

CURRENCY OPTIONS CONTRACTS - DRAFT OF CRIMINAL APPRAISAL ANALYSIS (Umowy z instrumentem opcji walutowych- zarys analizy prawnokarnej)

63%

Cioch P. , Jagiello J.

Pieniądze i Więź

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2009

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tom 12

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nr 2(43)

EN

The issue of contracts between entrepreneurs and banks, that subject are currency options as well as derivatives, may be in some particular situations given under penal appraisal. In case of willing mislead of a second part regard to essential elements and legal consequences of the contract normative definition of fraud, art. 286 § 1 of Penal Code may be applied. Similar situation takes place in case of usage of contractor's lack of knowledge. Essential condition is however, that concluded contract should lead to damage i.e. in entrepreneur's bank account. On occasion normative definition of breach of trust (art. 296 of Penal Code) or extraordinary usury (art. 304 of Penal Code) may be considered. In case of fraud or breach of trust not only members of the managing bodies but also bank as an institution (legal entity) may be responsible under criminal law on a legal basis of The Act of the Liability of Collective Entities for Prohibited Acts of 28.10.2002. It should be taken for granted that due to some similarities of conditions both crimes and civil law claims, which can found a legal base for entrepreneurs' suits willing to invalidate of a contract or to avoid its legal effects, penal proceedings will be applied before civil law proceedings or both proceedings will be open simultaneously. Pursuant to the Polish legal system can be noticed that both civil law and penal proceedings may in this particular situation have complement character. Penal law procedure focuses on imputation of responsibility for committed crime may be also suitable to satisfy civil law claims.