Refusal to Execute a Notarial Transaction Contrary to the Tax Law

A party to notarial transactions taking the form of a notarial deed is informed by a public notary of all legal effects of the transactions undertaken thereunder. Moreover, a public notary is prohibited from executing a deed that would infringe the law. The purpose of the article is to elaborate on conditions for a refusal of a public notary to execute a deed due to inconformity of a notarial transaction stated therein with the tax law. The article examines also the notion of a “notarial transaction” and that of “inconformity with the tax law”. The author relied on the analytic and dogmatic methodologies of research. Following the research it was established that a notarial transaction is any transaction assisted by a notary public that the latter recorded in a document (whether or not that document takes the form of a notarial deed). As regards the other concept, the author concludes that notarial transactions violating the tax law are those which nature undoubtedly lead to unlawful increase of the rights or obligations of the taxpayer or of the tax authority as compared with those resulting from the tax law. The conditions for a refusal of a public notary to execute a transaction violating the tax law include: doubts of a public notary as to intended tax avoidance, qualification of the envisaged notarial transaction as contrary to substantial or procedural tax law and attempted misconduct of a party to the transaction towards the tax administration. Such refusal may also be based on the ostensible character of transactions, as construed for tax purposes. As regards the de lege ferenda comments, legislative developments have been advocated that would specify in more detail the conditions for a refusal to execute a notarial transaction in case a public notary discovers inconformity of such a transaction with the tax law.

Załączniki:

Bernat.pdf

374 kB

Remarks on Acts of EU Law as Sources of Law on Religious Denominations (Law on Religion) in Poland

Some acts of EU law are sources of law on religious denominations (law on religion). It means that these acts contain legal norms on freedom of conscience and religion and status of religious denominations in a member state. Examples of relevant regulations in the sources of primary law are included in, inter alia, the Treaty on the Functioning of the European Union, the Treaty on the European Union as well as the Charter of Fundamental Rights of the European Union (although pursuant to Protocol no. 30 the Charter, however binding, in effect does not affect the content of binding law in Poland). The EU primary law has formulated two principles: respect of freedom of conscience and religion and the no interference principle, according to which EU respects and does not prejudice the status of churches, religious associations or communities and philosophical and non-confessional organisations under national law of the member states. However, selected secondary law instruments do touch upon the rights and duties of religious denominations incidentally and in a fragmentary way, yet such interventions may in effect turn out to be extensive. This may yield negative results, as acts of secondary law allow bans to be placed on ritual slaughter or attempt to diminish the autonomy of religious denominations in the field of employment. This development shall be viewed together with relevant provisions on the system of reliefs from customs duties or on restricting television advertising and teleshopping during transmissions of religious services.

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Olszowka.pdf

445 kB

Directive on the Right of Access to a Lawyer in Criminal Proceedings and in European Arrest Warrant Proceedings in the Light of Art. 6 of the European Convention of Human Rights

This article touches upon the problem of harmonization of rights of an individual in criminal proceedings, especially during the pre-trial stage. Directive on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings is compared with the standards stemming from art. 6 of the European Convention of Human Rights as regard to the right to defense. The conclusions of such a comparison lead to the assessment of the solutions chosen by the EU lawmaker in this directive. As a result it is possible to describe the model of harmonization and to point out its potentially strong and weak elements.

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Ujazdowski.pdf

422 kB

Unilateral Legal Actions of a Member of the Management Board of a Limited Company

This paper concerns the problem of unilateral legal actions of a member of the management board of a limited company. At the beginning the authors present the existing views on Articles 210 § 1 and 379 § 1 of the Polish Company Code. In detail, the aim of the introduction of the abovementioned articles to the legal order is discussed. The main objective of the paper strives to answer the question whether, besides the requirement of the representation of the company by the supervisory board or a plenipotentiary established by a resolution of the shareholders, in cases of contracts with a member of the management board there are other legal actions that require this special way of representation. This issue is analysed not only from the perspective of the company as a recipient of the declaration of intent but also from that of the person that submits the declaration of intent.

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Hotel_Tapek.pdf

394 kB

The New Law on Business Activity

The article touches upon the current issue in Poland, namely the debate on the need of a new regulation of business activity. The Polish government issued a draft of Law on Business Activity in 2015. This fact provoked the author to discuss the topic, summing up the current state of the relevant law and presenting his own view on the possible changes. It is claimed that the new law is redundant, and instead there is a need to revise the law currently in force in order to bring it in line with European Law and to better structure specific matters. The fundamental questions which should be clarified contain: the proper structuring of basic concepts like ‘service’, ‘business activity’, ‘service provider’ and ‘undertaking’; the structuring of rules of control on undertakings; the issuing of new regulations on permissions to conduct business activity.

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Szafranski.pdf

334 kB

Freedom of Speech and Hate Speech – Before and Today

In both American and European academic debates on the legal nature of hate speech arguments of historical-legal character are frequently overlooked. In fact, hate speech is not a contemporary “invention”. The content of this term was defined more than 150 years ago in the legal codes of absolutist monarchies, e.g. in the Austrian Criminal Code of 1852. This served as the basis for penal repression aimed in the Austrian constitutional monarchy at opposition media outlets, nationalist as well as socialist. Curbing hate speech in the Habsburg Monarchy had the characteristics of repressive censorship, widely used under what was called the objective criminal procedure that led to limiting the constitutional freedoms of speech and press, authorized by the December Constitution of 1867. The historical example of the Austrian monarchy shows that hate speech as a legal construct is placed in opposition to freedoms of speech and press. Correct construction and accurate application of vague and underdetermined terms employed by legislation penalizing hate speech is contingent upon the „sensitivity” of the judges. Austrian courts were careful in examining allegations of verbal attacks motivated by one’s hostility towards an ethnic, national, religious or political group. Juries, which would often acquit the accused, were motivated by a concern that the authorities may take advantage of the law governing hate speech to contain the spread of opinions disapproved thereby. As a consequence, Austrian prosecution pleaded their case before a court comprised of jurors exceptionally rarely in hate speech cases (so-called subjective procedure). Denouncements of governments’ inadequacy in fighting hate crimes see to overlooked the danger triggered by penal repression founded on laws on hate speech. Troubles induced by construction thereof have been espoused in the judgments of the Federal Constitutional Court of Germany.

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Dziadzio.pdf

382 kB