No. 31

On 14 June 2018, the Lublin Scientific Society in Lublin held the Nationwide Polish Scientific Conference "Civil Law and Commercial Law in Activities of the Administration. Tradition and Modernity in Legal Institutions". It was the third edition of the nationwide scientific conference on the use of legal instruments in the area of civil law and commercial law in the activities of the administration, which was organised at the initiative of dr hab. Grzegorz Kozieł, professor at UMCS. The organizers of the conference were the Lublin Scientific Society, Faculty of Humanities, the Scientific Association Pro Scientia Iuridica, and the Association for the Promotion of Legal Sciences. The conference was under the honorary patronage of: the Patent Office of the Republic of Poland, Voivode of Lublin, dr. hab. Przemysław Czarnek, Marshal of the Lublin Voivodeship Sławomir Sosnowski, Mayor of the City of Lublin Dr.  Krzysztof Żuk, the Institute of Intellectual Property based in Katowice, the Polish Scientific Press Law Society, the Association of Notaries of the Republic of Poland, as well as the Lublin Bar Association of Attorneys-at-Law in Lublin. The media patronage for the conference was provided by C.H. Beck, Zeszyty Naukowe Katolickiego Uniwersytetu Lubelskiego, Europejski Przegląd Sądowy and Prawo i Polityka. The conference’s partner was the University College of Enterprise and Administration in Lublin. 

The aim of the Conference was to provide an opportunity for discussion, primarily in the area of the use of instruments in the field of civil law and commercial law, including copyright law, in the activities of the administration in the broad sense. These issues are the matters from the “borderline” between private law and public law, which are not often the subject of in-depth research and scholarly discussion. However, they are of high theoretical and practical importance.  During the third edition of the nationwide scientific conference “Civil Law and Commercial Law in Activities of the Administration. Tradition and Modernity in Legal Institutions”, on 14 June 2018, in parallel discussion panels, more than 40 papers were delivered, which reflected the greatest attention paid to the subject in the history of these conferences.

The discourse that took place during the first, second and third editions of this Conference – in Lublin on 12 May 2016, 3 April 2017 and 14 June 2018 – resulted in the monographies:  “Prawo cywilne i handlowe w działaniach administracji. Rozwiązania istniejące, projektowane i uwagi de lege ferenda” [“Civil and Commercial Law in Activities of the Administration, Existing and Drafted Solutions and the Proposals for the Law as it Should Stand”, „Prawo cywilne i handlowe w działaniach administracji. Stanowienie, wykładnia i stosowanie" [“Civil and Commercial Law in Activities of the Administration. Law-making, Interpretation and Application”], issued in 2017 and 2018 respectively by the publishing house of the University College of Entrepreneurship and Administration in Lublin, as well as “Prawo cywilne i handlowe w działaniach administracji. Tradycja i nowoczesność w instytucjach prawnych. Part 1” [“Civil Law and Commercial Law in Activities of the Administration. Tradition and Modernity in Legal Institutions. Part 1”] published in Zeszyty Naukowe KUL of 2018, No. 4.

The discussion during the conference leads to the general conclusion that in the activities of the administration, including legal institutions used to pursue these activities one can notice both elements of tradition and innovation being the components of legal institutions of a modern state, and both these elements should be mutually balanced. Traditional elements of legal institutions from the beginning of the existence of the state and law constitute the foundations for the legal order.  On the other hand, innovations, including in particular innovations in the legal area, allow us to take into account in this order the needs resulting from the progress of civilization. The idea of keeping a balance between tradition and innovation in legal institutions is of fundamental importance for the development of a modern state.

In the issue no.4 of 2019 of the journal Prawo i Więź, in its separate part “Prawo cywilne i handlowe w działaniach administracji. Tradycja i nowoczesność w instytucjach prawnych. Cz. 2.” [“Civil Law and Commercial Law in Activities of the Administration. Tradition and Modernity in Legal Institutions. Part 2”] the second part of scientific articles is published as a continuation of the papers delivered at the national scientific conference “Civil Law and Commercial Law in Activities of the Administration. Tradition and Modernity in Legal Institutions”, or those submitted after this conference, which concern primarily the issues of civil law and commercial law in activities of the administration, including: the method of regulation and the legal nature of public procurement law, providing real estate with land access to the public road through the establishment of easement, the importance of the institution of whistleblower in the area of public administration activities, the legal status and scope of power of attorney of succession manager, sale of shares and stocks in municipal companies, as well as the way of perceiving organizational and legal forms of performing tasks of local development as activities of the administration. I hope that they will be useful both for theoreticians and practitioners in the areas of law-making, interpreting and applying civil law and commercial law in activities of the administration, and may also constitute a specific “point of reference” for further considerations and discussions on law-making, interpreting and applying the law in this area.

On behalf of the authors, with full confidence and pleasure, please be invited to get familiar with these works. 

Thematic Editor

Dr hab. Grzegorz Kozieł, professor at UMCS, Faculty of Law and Administration of UMCS

What appears repeatedly in business practice is the issue of assessing the legal character of contracts concluded under public procurement procedures. There is an unanimous opinion among the representatives of the doctrine that these agreements are purely civilian. The problem related to the current nature of legal contracts concluded under public procurement procedures concerns the actual freedom in shaping their content, the possibility of contractual modification of contract provisions, the effects of the conclusion of the
contract and terms of the contract itself. Authors ask the question whether public procurement law is a civil law under “coercion” of administrative law, or administrative law on the basis of civil law. The dogmatic research method, the analytical research method and case law analysis were used to elaborate this issue.

Adequate access to a public road is essential for the use of land in a manner fully consistent with its socio-economic purpose. The law provides for institutions whose purpose and function is to provide a land property with appropriate access to a public road, and what follows, to enable the owner of a property to exercise his rights under Article 145 of the Civil Code. Such regulations exist within civil and administrative law and are applicable both in factual circumstances in which a land property is already deprived of access to a public road (curing function) and in situations in which the land may only be created without such access (preventive function). They arouse certain doubts as to their interpretation, which concern in particular the premises for establishing an easement by necessity  and the consequences of not establishing an appropriate easement for the separated property which does not have direct contact with a public road.

The topic of whistleblowers is discussed not only in the area of ​​legal sciences, but also in widely understood journalism. The issue arouses controversy, and by some debaters it is called a return to the dark times of informing. The supporters of this institution point to the measurable benefits of using it. It was therefore considered justified to undertake scientific analysis and reflection on this issue. The article presents the institution of a whistleblower whose implementation is planned for the Polish legal system. It also attempts to explain the meaning of the institution and its perspectives in the area of ​​administration. The article discusses the historical aspect of the signaller as well as its potential impact on public administration. The authors found that the experiences resulting from the analysis of this context may prove useful in forecasting the opportunities and threats accompanying the introduction of sygnalists to the Polish legal system. The issue of legal protection of whistleblowers was presented in turn. Finally, the draft of Law on transparency of public life was discussed and summary conclusions were presented.

The author studies the legal status of a succession manager in Polish law. From the perspective of the origins and objectives of the institution of succession in Polish, he outlines the legal character of the civil-law representation of the inheritance owner by the succession manager, the characteristics of the succession manager as a civil law substitute compared to the powers of the holder of a commercial general power of attorney (prokurent) as a civil-law deputy of the entrepreneur and the consequent scope of power of attorney of the succession manager, the question of the liability of the succession manager for damage resulting from improper management and the waiver of the liability of the succession manager for the liabilities incurred on behalf of the owner of an enterprise in succession, as well as the conclusions from the deliberations (analysis). The author primarily uses the formal-dogmatic method for generally applicable law and all other available methods of legal interpretation.

The adoption of the the State-owned Property Management Rules Act of 2016 and the Act implementing the State-owned Property Management Rules Act eliminated the so-called „privatization” in the form that had been known from the 1990s and replaced it with completely different, more succinct and general, rules applicable to the transfer of shares in companies owned by the state and local government units. The adopted changes, primarily aimed at the companies with the state shareholding, to a large extent affected,
by appropriate references, also municipal companies.
The author presents and evaluates currently effective legislation on the transfer of shares in municipal companies. He tries to evaluate the appropriateness of the model introduced by the legislator, who made the rules regarding the transfer of shares in state-owned companies applicable accordingly to municipal companies based on a reference in the Act on municipal services. The analyses are framed in a historical context – the rules in force before the effective date of the State Property Management Rules Act of 2016 are a background for the research result.

Legal and organizational structure of the local action group as an entity responsible for local development, within which we can observe a fusion of local government units and other persons and entities in a corporation operating on the basis of the EAFRD Act and provisions relating to local development with the participation of the local community. This innovatively shapes bonds between public administration bodies and non-public entities, because they are based on close bonds of partnership cooperation within the association with a special status. This ensures the diversification of views and prevents monopolization
of operations by one of the parties. Nevertheless, such legal and organizational structure, and especially its statutory property jurisdiction, breaks the established rules for the implementation of public tasks, as well as a breaches the forms adopted in the doctrine. This is undoubtedly related to the latest tendencies to move away from imperious unilateral forms of public administration, in favor of consensual forms characteristic of private law. This also has its source in the tendencies to use public management methods in public administration activities, and especially in the dynamic development of the planning function, which is significant to the activities of the EU structures. This is justified by certain ideological and economic views, which are reflected in the European Union law and affect the change of paradigms of public administration in Poland, which follows the role of the performer in favor of the role of a co-creator. It is particularly evident in the area of shaping development policy, including local development.

Pursuant to Art. 982 of the Civil Code “the testator, in a will, may impose on a heir or legatee the obligation to carry out a specific action or to refrain from carrying out of specific action without making anyone a creditor (testamentary burden)”. The institution of testamentary burden allows the testators produce such legal effects mortis causa, the achieving of which would not be possible in the way of other testamentary disposals (for instance legacy). This paper relates to testamentary burden (done in the public interest), the fulfillment of which may be demanded – apart from testator and last will executor – also by a competent State agency (Art. 985 of the Civil Code). In the article the notion of the competent State agency was defined. This notion raises interpretation doubts as the principle of the uniform system of state power was given up. Furthermore, the issue of the prosecutor’s right of action to demand the fulfilment of the testamentary burden was discussed. Based on the analysis of the institution of the testamentary burden in German, Swiss and Austrian law, the comments de lege ferenda were formulated, according to which the notion of “a competent State agency” should be replaced with the notion “a competent authority”.

The subject of the article is the legal analysis of a special form of real estate management, which is performed by a housing cooperative, which is based on art. 27 section 2 u.s.m. The reason for undertaking this research topic was dispute on the scope of competences of the cooperative, which manage common part of condominium. Points 1 and 2 present an evolutionary outline of changes in the law on housing cooperatives and the accompanying changes in the views of doctrine and case law (points 3 and 4). However, in points 5 and 6, current the legal regulations, in force since the 2017, were interpreted and final conclusions made that indicated the need to distinguish three levels of property management. This postulate is grounded on a comparative analysis basis on property management law coming from Germany law, Austrian law and Swiss law.

The purpose of the article is to show the evolution, character and elements of the practice of applying the law of grace in the Republic of Poland of the interwar period (1918–1939). The general feature of pardon in Poland during World War II will also be mentioned. Both the content and the essence of the law of grace, as well as the specifics of its application will be analyzed.

The author attempts to analyze the legal situation of the American prison in Abu Ghraib through the prism of the philosophy of law developed by Carl Schmitt. According to the author Schmitt’s philosophy of law is the right one since Schmitt treats law as assigned to particular geographical territory. He also analyzes the institution of an unlawful combatant as an implementation of the partisan concept developed by Schmitt.