PRAWO i WIĘŹ

De Lege Ferenda Problems of Rights to Premises in Housing Cooperatives in Poland and Comparative Legal Perspective

Krzysztof Pietrzykowski — 2024-09-27

As a rule, the countries of „old Europe” have general regulations on cooperatives, which usually do not include specific regulations on housing cooperatives. In the aforementioned countries, members may most often be entitled to tenancy of premises, although this is not always explicitly stated. In some countries, members are also explicitly allowed to own premises. In post-communist countries, members of cooperatives are usually entitled to ownership of premises, less often to lease of premises with the possibility of conversion to ownership.

In the case of Poland, de lege ferenda urgently require a solution to the problem of those housing cooperatives that have erected buildings on land to which they have no legal title. It is necessary to return to the concept from more than 30 years ago of ex lege transformation of the cooperative ownership right to premises as a limited right in rem into the right of separate ownership of premises. The cooperative tenant right to housing should become a limited right in rem, with the possibility of its transformation into the right of separate ownership of premises. In Poland, in addition to housing cooperatives, there are housing communities (condominiums), which bring together owners of premises, but they are not legal entities, and their legal structure raises serious doubts. This raises the question of whether it makes sense to maintain the dualism of the legal regulation of separate ownership of premises in the Law on Ownership of Premises and on Housing Cooperatives. In Poland, in addition to the Law on Housing Cooperatives (ustawa o spółdzielniach mieszkaniowych), there is the Law of 2022 on Housing Cooperatives (ustawa o kooperatywach mieszkaniowych), which allows at least three persons to carry out a housing project involving the acquisition of undeveloped or developed land for the purpose of establishing separate ownership of premises or transferring ownership of single-family houses. However, serious doubts are raised by the adoption of the unfortunate name „housing cooperative” (kooperatywa mieszkaniowa) in the law, which irresistibly implies „housing cooperative” (spółdzielnia mieszkaniowa).

Directions of development of cooperatives in France. Analysis from a legal and historical perspective

Mariola Lemonnier — 2024-09-27

The article deals with the evolution of the various forms of cooperatives existing in French law. The regulations are presented chronologically, starting with the Act of 1867 and continuing with the regulations currently in force, in particular those of 1947. The types of cooperatives are presented according to the economic sector, which are a function of the private law regulations. Questions related to the French legal practice and theory, which may be important for the Polish practice and regulations, have been raised. Among other things, the answers to the following questions will be analyzed: what reforms have been carried out to adapt the old idea of cooperatives to the new economic conditions in France and in the world, whether the French cooperative model is a regulatory success or perhaps it developed by adapting to the environment, hence the large amount of case law in this system, why a cooperative code has not been created and whether it has an impact on the activities of cooperatives, although the share of cooperatives in many sectors of the economy is significant

The Issue of the Optimal Solution for Insolvent Cooperative Savings and Credit Unions in light of the Effectiveness of Past Bankruptcy Proceedings

Rafał Adamus — 2024-09-27

This study addresses the problem of the optimal strategy for protecting (a) private interest and (b) public interest in the event of insolvency of a cooperative savings and credit union. According to available data, the collection of credit claims by trustees of bankrupt credit unions is relatively high. Therefore, the economic effectiveness of bankruptcy proceedings conducted against credit unions in Poland may indicate that it is premature to choose the bankruptcy path. This study addresses the problem of the optimal strategy for protecting (a) private interest and (b) public interest in the event of insolvency of a cooperative savings and credit union. According to available data, the collection of credit claims by trustees of bankrupt credit unions is relatively high. Therefore, the economic effectiveness of bankruptcy proceedings conducted against credit unions in Poland may indicate that it is premature to choose the bankruptcy path.

Cooperative Principles in the Concepts of Social Economy and Social Enterprise in Polish Law

Dominik Bierecki — 2024-09-27

When a cooperative acquires the status of a social enterprise, the scope of its activities changes, extending beyond economic activity to include the social and professional reintegration of people at risk of social exclusion or the provision of social services. The introduction of a consultative and advisory body also changes the structure of the cooperative. A cooperative that is a social enterprise cannot distribute its balance sheet surplus (profit) among its members. There is also a requirement for a cooperative social enterprise to be independent of the state and local government. It should be examined whether these requirements for cooperatives are in line with the Cooperative Principles, which the International Cooperative Alliance considers to be fundamental for determining the cooperative nature of a legal entity, and how they change the nature of cooperatives in Polish law.

Cooperative Intermediate Housing Tenures in Poland and Germany

Katarzyna Królikowska — 2024-09-27

This paper presents a comparative analysis of cooperative tenures available in housing cooperatives in Poland and Germany. The research is based on the typology that understands property rights from the moderate constructivist approach and applies them to housing tenures by means of the analysis of the distribution of specific bundles of property rights which appears to be different across the housing tenures. Innovative intermediate tenures as housing options beyond tenancy and homeownership are approached and supported for a particular reason – as remedies to address the growing European housing crisis. So, the article contains a comparative analysis of the features of cooperative housing tenures as intermediate tenures for international comparisons of „affordable” and „social housing” options.

Criminal Liability of a Member of the Board of Directors of a Housing Cooperative for Failure to File a Bankruptcy Petition in a Timely Manner

Zbigniew Miczek — 2024-09-27

The article discusses the question of the applicability of the criminal provisions contained in the Cooperative Law to members of the board of directors of housing cooperatives, in particular the possibility of imputing criminal liability to them for failure to file a bankruptcy petition in a timely manner.

The Asset Lock Under the Regular Operation of Social Enterprises in Italy

ziwei xu — 2024-09-27

Italian law establishes the legal status of social enterprises by providing the accreditation of entities that satisfy the requirements to be a social enterprise. Due to the variety of legal forms of social enterprises, the specifics of the asset lock rule may vary in the course of their regular operation. The reform of the third sector, which explicitly includes social enterprises, adds complexity to this issue. In this context, the question of how the asset lock can be used to ensure that there is no drift away from the social purpose of the social enterprise is of paramount concern. This paper will explore four main types of participants in these entities, which are directors, shareholders (or members), third parties, and the controller. To this end, the operation of the asset lock will be dissected by discussing and analyzing the constraints on directors’ remuneration, the principle of the non-distribution of profit motive, restrictions on transactions with third parties in social enterprises, and regulation by the controller during which period of operation, as well as by comparing from a theoretical point of view which of the legal forms of social enterprises would be more conducive to serving the interests of the community and the public interest.

Limits of Application of the Institution of Free Credit by a Member of the Cooperative Savings and Credit Union

Jacek Skoczek — 2024-09-27

The author discusses the limits of the application of the institution of interest-free credit by members of the Cooperative Savings and Credit Union (SKOK). The concept of interest-free credit was introduced into Polish law as a result of the implementation of EU Directive 2008/48/EC, which allows member states to establish sanctions for breaches of national provisions adopted in accordance with this Directive.

According to Polish law, a consumer may demand repayment of the credit without interest and other costs if the creditor has violated the information obligations specified in the Consumer Credit Act. Similar sanctions already existed in national law, but their wording was changed, including the requirement of a written declaration by the consumer.

However, the interest-free loan sanction appears to be disproportionate and one-sided, negatively affecting the economic interests of the creditor. Its implementation is especially problematic in the case of SKOKs, where members have extended financial liability for the activities of the union.

An analysis of the principle of proportionality in the context of the application of the interest-free credit sanction to SKOKs highlights the need to maintain a balance between consumer interests and the financial stability of the union. In the case of SKOKs, which operate on the basis of shared ownership by members and a common economic purpose, the application of the interest-free credit sanction requires particular caution and consideration of the specific nature of these relationships.

The author of the article emphasizes the need to amend the regulations on interest-free credit in order to take into account the differences in the creditor’s misconduct and the specific economic relations between the creditor and the consumer. The de lege ferenda proposal suggests introducing differentiated sanctions and taking into account the actual damage to the consumer, which would allow for more proportionate and fair regulations regarding consumer protection and the stability of SKOK-type financial institutions.

Odsetki od kredytowanej prowizji a Rzeczywista Roczna Stopa Oprocentowania kredytu konsumenckiego

Joanna Mędrzecka — 2024-09-27

The aim of the paper is to consider the acceptability in the Polish legal system of crediting a commission by an entrepreneur to a consumer for granting a loan, and in particular the admissibility of charging interest on the amount granted to the consumer in order to credit such a commission. The subject of the article is also the issue of correct calculation of the annual interest rate on consumer credit for cases in which the commission related to granting the loan is credited to the consumer. An important issue is also whether the crediting of the commission, understood as the granting of a loan to the consumer by the entrepreneur to cover the commission and charging interest on the part of the loan repaid in loan installments, may entitle the consumer to submit a statement on the use of the sanction of free credit, and thus to return the loan without interest and other fees. Another practically significant legal problem is the problem of whether a clear indication in the agreement that the lender will charge interest on the credited commission, resulting in the informed consent of the consumer borrower to such content of the legal relationship, is relevant for both parties to be bound by the concluded agreement. These problems have gained great practical significance due to the fact that specialized companies have appeared on the market, which professionally deal with the purchase of claims from consumers resulting from loan agreements for a fraction of their value.

Credit Union Models in Poland and USA in Comparative Perspective

Maksymilian Migdalski — 2024-09-27

The article introduces the concept of two models of credit unions: American and Polish. The distinction is the result of a comparative analysis of selected aspects of the functioning of credit unions in Poland and the USA, such as the nature, interpretation of the common bond, scope of activities, organizational structure or supervision. The article highlights the peculiarities of each credit union system, which allow to distinguish two models of functioning of these institutions. The paper presents postulates focused on efforts to increase the competitiveness and efficiency of the credit union system in Poland.

The Effects of the Termination of Marriage on the Rights of the Spouses to the Residential Premises in the Housing Cooperative. Selected Issues Regarding the Cooperative Ownership Right to the Premises and the Cooperative Housing Tenancy Right to the Residential Premises

Paulina Pałach — 2024-09-27

Selected issues concerning the effects of the termination of the marriage due to the death of one of the spouses and in the case of a divorce decree on the rights of the spouses to housing in terms of the cooperative right to ownership of housing and the cooperative tenant's right to housing are analyzed. The considerations made relate mainly to issues specific to these rights under the Law on housing cooperatives.

Prawa człowieka w czasach rywalizacji geopolitycznej XXI wieku

Cezary Mik — 2024-09-27

Human rights are among the recognized areas of international law. However, global actors such as the United States, the European Union, China and Russia have different perceptions of their place in the international order. These differences have been exacerbated as China and Russia have increasingly challenged the dominant position of the United States since the late 20th century. Russia’s aggression against Ukraine and the practical division of the world into the West and East have been of additional importance in exacerbating the differences. The positions of these parties with regard to human rights are presented in the context of the formulation of doctrines of the international order, the attitude towards the attempt to recognize that certain human rights constitute norms juris cogentis, and the relationship between human rights and unilateral coercive measures.

Prawo do strajku jako prawo człowieka

Milena Kloczkowska — 2024-09-27

This paper presents the findings of research into the concept of the sector of essential services. The key objective is to gain an understanding of the nature of this sector. Essential services are fundamental to the functioning of everyday life for all. The lack of their provision will have irreversible consequences. The presented considerations argue that research on legal qualification should be based not only on the analysis of regulations but also on philosophical principles. It is essential to give due consideration to the moral implications of this issue. This approach is not exhaustive or universal. However, it aims to enhance the incomplete presentation of approaches and solutions to the problem.

Tworzenia prawa sztucznej inteligencji - wyzwania i perspektywy.

Piotr Burczaniuk — 2024-09-27

The discussion around artificial intelligence (AI) is currently leading the political, journalistic, technical and legal debate. This interest should come as no surprise, given that this technology is likely to underpin the ongoing process of the so-called “fourth industrial revolution”, and lead us towards strategic economic and social change. In this debate, however, theoretical and legal considerations touching on the very process of the creation of artificial intelligence law have not received a cross-cutting discussion. This paper attempts to fill this gap, building research areas for further comprehensive expansion. The topic of AI lawmaking is discussed here from three perspectives. First, vertically, by presenting the directions of legislative work carried out by the legislators of diverse subjects; second, horizontally, by analyzing the areas and issues that appear to be of regulatory relevance due to the use or imminent implementation of AI-based systems in them; and finally, third, by presenting the regulatory methods and types of legal norms that are or should be subject to legislative use in the area of IS law. These considerations have made it possible to outline the directions and foreseeable effects to which this use will lead.

Wymagalność roszczenia o zapłatę kary umownej jako przesłanka dopuszczalności potrącenia. Uwagi z perspektywy historyka prawa

Marek Sobczyk — 2024-09-27

In this paper, I address the problem of the enforceability of a claim for payment of a contractual penalty in the context of the admissibility of the set-off of such a claim. This problem manifests itself primarily in a situation where the contractual provision regarding the penalty does not contain a deadline for its payment. The prevailing view in contemporary Polish case law is that in such a situation the obligation to pay the contractual penalty is indefinite, and therefore the claim for payment becomes due after the debtor is called upon to perform this obligation, which means that the creditor should first demand the payment of the contractual penalty. I tackle the issue from a historical perspective, starting from Roman law, through the ius commune and views expressed in legal science on the basis of the Code of Obligations of 1933, up to the modern academic and jurisprudential concepts. These concepts, to the extent that they emphasize the need for prior a demand for payment of a contractual penalty, establish a new requirement that braks with the old tradition of understanding of the enforceability of a claim for payment of a contractual penalty.

Intencjonalizm a tradycyjna koncepcja wykładni Eugeniusza Waśkowskiego (analiza porównawcza)

Paweł Boike — 2024-09-27

The paper deals with the theory of legal interpretation. The main problem of this field of jurisprudence is the perception of the purpose of the interpretation process (ontological dimension) and the desired methodology for determining the meaning of a legal text (application dimension). The author’s aim is to establish the parallel elements of contemporary intentionalism (represented by Stanley Fish, Lawrence Alexander, Jeffrey Goldsworthy, Richard Ekins and Zygmunt Tobor) and the traditional concept of interpretation by Eugeniusz Waśkowski. It turns out that both currents equate the determination of the meaning of the text with the determination of the legislator’s intention. Thus, they fit into the communicative perception of the law.

Standardy ochrony małoletnich (SOM) w podmiotach świadczących usługi hotelarskie – aspekt teoretyczny i praktyczny

Dorota Ambrożuk-Wesołowska — 2024-09-27

From August 15, 2024, every entity providing hotel services in facilities where minors may or do stay is obliged to have and use the so-called standards for the protection of minors (SPM). This document should include policies and procedures to protect children from harm. In the case of hotel facilities, the most important thing is to develop rules and procedures regarding the relationship between minors and the staff of the facility, as well as the identification of the minor and his relationship with the adult with whom he is staying in the facility. The legislator, introduced the above-mentioned responsibilities, but did not provide any instructions on how to implement them. Meanwhile, the obligation to identify a minor and his relationship with the adult in the facility may cause difficulties in practice. The paper indicates related problems and ways of solving them. It is also considered necessary for the legislator to intervene urgently in this matter, by directly specifying the personal data that a hotel establishment may request in order to comply with the obligation imposed on it.

Podstawa ogólna skargi nadzwyczajnej

Oktawian Nawrot — 2024-09-27

This paper is devoted to the general prerequisite (also known as the functional prerequisite) of an extraordinary appeal, as set forth in Article 89 § 1 in principio of the Supreme Court Law. Its fulfillment determines the possibility of upholding the extraordinary complaint. In other words, a final decision of a general or military court may be revoked if it is necessary to ensure compliance with the principle of a democratic state of law, realizing the principles of social justice. An analysis of the indicated concept in the existing literature and case law was carried out, and conclusions were presented.

Humanitaryzacja rosyjskiego prawa karnego w dobie panowania cesarzowej Elżbiety (1741-1761)

Dariusz Szpoper — 2024-09-27

The daughter of Peter the Great, Empress Elizabeth of Russia (1741-1761), upon ascending to the throne, attempted to amend the Code of Tsar Alexei Mikhailovich from 1649 (Sobornoye Ulozheniye) and her father’s legislation. She introduced a moratorium on the death penalty, defined the age of juvenile offenders, and established rules for their accountability for committed acts. In 1754, she established a Codification Commission, which presented a draft of the new Russian Criminal Code. The paper analyzes the humanization of criminal law in this period.

O potrzebie zmian przepisów o ewaluacji jednostek naukowych 2022-2025

Piotr Stec — 2024-09-27

The Polish Research Evaluation Exercise was created in 2018 as a tool for an impartial research assessment and allocation of block grants to universities. However, the system has been distorted by arbitrary political interference and poorly designed metrics. This paper proposes legislative changes that will make the system workable and return it to its „factory conditions”: an impartial system based on calculable, unbiased, and hard-to-manipulate metrics.

Decyzja zasadnicza w procesie inwestycyjnym w zakresie obiektów energetyki jądrowej – ocena stanu prawnego oraz zmian wprowadzonych w 2023 roku

Łukasz Młynarkiewicz — 2024-09-27

The subject of the article is the analysis and assessment of the changes introduced in 2023-2024 in the legal framework of the so-called basic decision, regulated by the provisions of Chapter 1a of the Act of June 29, 2011 on the preparation and implementation of investments in nuclear power facilities and related investments. To date, a total of ten decisions-in-principle have been issued in favor of five different entities intending to implement both large and small nuclear reactors. Amendments to the Special Nuclear Power Act, which came into force in 2023-2024, introduced a number of changes to the structure of the decision-in-principle, including, inter alia, its subject and position in the licensing procedure for nuclear energy facilities, elements of the application for initiation of administrative proceedings, as well as the conditions for its issuance and components of this decision. At the same time, issues related to changes in the ownership structure of the investor who obtained the decision-in-principle, or the company that is a partner or shareholder in this entity, were regulated. In addition, the competence of the authority conducting the proceedings has been changed and the circle of cooperating (opinion-giving) authorities in the matter of issuing the decision-in-principle has been expanded. The aim of the article is to assess the changes introduced, to point out doubts of interpretation and to propose de lege ferenda postulates for changes in the regulations in the analyzed area.