Wyniki wyszukiwania - Biblioteka Nauki

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Przewodnie konstrukcje i pojęcia kodeksu handlowego z 1934 roku

100%

Górnicki L.

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2015

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tom 101

63 - 91

EN

The Polish Commercial Code, which came into force on 1 July 1934 and in fact ceased to be binding on 1 June 1965, was prepared by the Codifying Commission, established by the Act of 3 June 1919. It is a significant codification achievement in the twentieth century in Poland. With the entry into force of the Civil Code of 23 April 1964, the Commercial Code was repealed, while most of its provisions were maintained, and namely those relating to general partnerships, limited liability companies and joint stock companies, but not limited partnerships, together with the introductory provisions concerning: the business name, commercial power of attorney and the commercial register. As far as foreign trade relations are concerned, the provisions of the right of retention and compensation were maintained in force. Also, the provisions of the Commercial Code relating to commercial activities did not disappear from Polish law, as they were maintained for the entire civil circulation or just its part, such as foreign trade, or they were included, usually in a modified form, in the Civil Code. In principle, however, the Commercial Code became a normative act concerning exclusively commercial companies. This situation lasted until the entry into force of the Commercial Companies Code of 15 September 2000. Like the German Handelsgesetzbuch of 1897, also the Polish Commercial Code, treated as lex specialis in relation to the Civil Code, included only substantive commercial law, but not in its entirety. The Commercial Code did not include cooperative law, banking law, stock exchange law, bankruptcy and composition law and commercial judiciary, as well as some specific matters that were applied not only in the trade but also in the civil circulation. As the author of the Polish Commercial Code argues, the Code was a major step forward in the global legislation in defining the concept of a merchant, because the condition it adopted here was in principle the mere fact of running a commercial enterprise of any type, any size and in any way. A commercial enterprise constituted the basic construct of the Commercial Code, on which depended understanding of all other institutions of commercial law. Polish codifiers adopted a position that it was necessary to use a very broad concept of a merchant, that would allow for other persons who have not been previously qualified as merchants, to be now qualified as such. It was the mere fact of carrying out a commercial activity, and not other activities that determine whether a person is a merchant or not. In this way, the term “merchant” moves closer to the term “entrepreneur.”

2

Przedsiębiorstwo w projekcie części ogólnej kodeksu cywilnego Rzeczpospolitej Polskiej z lat 1928−1932

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Górnicki L.

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nr 316/2

187 - 207

EN

The subject of analysis are the legal regulations on enterprise in the draft of the general part of the Civil Code of 1928–1932, whose author (referent of the Codifi cation Committee of Poland) was professor Ignacy Koschembahr-Łyskowski (1864–1945). The author of the article analyzes the overall objectives of the draft of this part of the Code, which was based on a rejection of the idea of individual rights and was difficult to reconcile with the majority of drafts of Codification Committee of the Second Republic of Poland. He indicates that enterprise was placed in the provisions of the general part of the Code relating to legal items, based on a broad concept of legal items and the subject of rights in rem. In the French court judiciary referent Łyskowski noticed a tendency to treat the general relations of monetary value, which a person finds himself, as a property, which could be the subject of property, considered by the doctrine as the universitas iuris. This was to be confirmed also in the Austrian legislation. The referent constructed enterprise as the property of entrepreneur, and as the property which explicitly refers to differentiation of enterprise in civil law, the essence of which could not depend solely on business activities of entrepreneurs and on enterprise in commercial law. The author of the article argues that the legal regulations on civil enterprise included in the analyzed draft were not exhaustive, could sometimes cause problems of interpretation, moreover did not always suit the trends expressed in the legislation of the Second Republic of Poland.

3

Zasadnicze przejawy ingerencji w prawa podmiotowe prywatne jednostek przez III Rzeszę

63%

Górnicki L. , Kruszewski T.

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nr 1

45-74

EN

The article analyzes the most important manifestations of limitation of subjective rights of private individuals by the Third Reich. The authors begin the article by undermining by the national socialist regime one of the fundamental principles, which is equality before the law. Then, the authors analyze the violations of particulars individual rights of private individuals. The purpose of the authors is to demonstrate that the self-reliance of aperson (Eigenständigkeit) has ceased to be an essential element of private law in the national socialist legal order. The sphere in which the subject of law could freely regulate the legal situation created by acts of his will, became clearly restricted. But also, and even more specifically, the sphere of traditionally protected civil rights of private individuals has fallen. The interference of the national socialist regime in the sphere of human privacy followed by changes both in civil and in public law. The existence of a formal legal basis was supposed to exclude the unlawfulness of the behavior of the subjects of the law, especially the state, its organs and institutions, but in the light of the idea ofthe law of the civilized nations it was “statutory lawlessness”.