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4 Kontrola Państwowa

4 Padrak R.

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Podstawy prawne kontroli NIK u przedsiębiorców

100%

Padrak R.

Kontrola Państwowa

2018

tom 63

nr 4 (381)

25-44

On 30th August 2018, the act – Law of Entrepreneurs (u.p.p.) entered into force, whose Chapter 5: Limitations on Economic Activity Auditing comprises the basic regulations related to the principles and mode of entrepreneurs auditing. As a result, the need arouse to decide whether the provisions of the said chapter should apply to NIK audits, or whether the provisions of the Act on NIK of 23rd December 1994 should be applied. The dialogue in “Kontrola Państwowa” presents two opposing stances. Rafał Padrak is of the opinion that u.p.p. should be treated as superior in interpreting the individual provisions of the law related to entrepreneurs, while Elżbieta Jarzęcka-Siwik believes that the discipline stemming from the regulations of u.p.p. does not apply to audits conducted by NIK. This is because it cannot be reconciled with the constitutional and statutory provisions related to the status of a supreme audit institution, the subject matter of state auditing, its principles and objectives. It seems that the problems identified will be solved in practice, including judicature.

Zakaz reformationis in peius w postępowaniu dyscyplinarnym NIK – procedury stosowane wobec mianowanych kontrolerów

100%

Padrak R.

Kontrola Państwowa

2018

tom 63

nr 1 (378)

24-40

In criminal proceedings, this prohibition is to ensure that a decision from a court of appeal is not amended to a worse one, if the ruling is in favour of the accused. The European Court of Human Rights is for respecting the reformationis in peius prohibition, and for not toughening the ruling by the appeal court. The Constitutional Tribunal has emphasised many times that “Due to the fact that the right to defence is ingrained in the constitutional principle of the democratic state of law, it relates not only to criminal proceedings, but also to other proceedings taking place in the area of responsibility that is of repressive nature”. Hence, the right to defence applies to those subject to disciplinary proceedings at NIK as well. In his article, the author discusses the regulations that allow for using the reformationis in peius prohibition in these proceedings.

Umorzenie postępowania dyscyplinarnego w NIK – procedura dotycząca mianowanych kontrolerów

100%

Padrak R.

nr 5 (376)

27-49

The article attempts to discuss the reasons for dismissing disciplinary proceedings at the Supreme Audit Office and the contents of the ruling that the Disciplinary Committee should issue in this regard. Since the provisions of the Act on NIK of 23rd December 1994 do not regulate this issue, and Article 97p of the Act sets forth that the provisions of the Code of Criminal Procedure (Polish: k.p.k.) should be applied accordingly. The ruling on dismissal of disciplinary proceedings at NIK should include the contents listed in Article 413(1) of the Code of Criminal Procedure. The provisions of Article 17(1) of the Code shall also be applied accordingly. The article presents a set of situations when criminal proceedings shall not be conducted or shall be dismissed. Since we should assume that a dismissal of disciplinary proceedings, similarly as is in the case of dismissal of criminal procedure, takes place when further proceedings are impermissible or pointless.

Przekształcanie prawa użytkowania wieczystego – pomoc publiczna

100%

Padrak R.

2019

tom 64

nr 5 (388)

119-133

On 1st January 2019, the law of 20th July 2018 entered into force, related to transforming perpetual usufruct of land with residential buildings into ownership. However, the provisions of the law are applied with consideration of public assistance regulations, since the legislature did not exclude entrepreneurs from the group of beneficiaries of this solution. This is because transformation is possible, in accordance with the regulations, also in the case of buildings whose part is used for purposes other than housing, for instance in the case of land whose vast part is used for housing, while in other parts businesses are located. For such land property rights will be granted simultaneously – at the time when these are granted to the land where residential buildings are situated. In his article, the author discusses the possibility to apply public assistance provisions during the property rights granting process. He also focuses on proper definition of the scope of such assistance, as well as the necessity to appropriately identify its beneficiaries.