Numer 5 (73)

The Assignment of Secured Receivables in International Private Law

This article discusses the rules of the determination of the law applicable to receivables and their assignment in the light of the Rome I regulation on the law applicable to contractual obligations. It presents possible relationships between a claim as well as a claim transfer and legal ways of securing it formulating new conclusions. It makes an attempt to define the assignment of receivables and its consequences under international private law. The author mentions the possibility of the choice of law for contractual relationships that give rise to claims which are subject to assignment (assignee – debtor relationship). He also analyses the scope of the application of Article 14 of Rome I as regards a pledge on receivables. He discusses de lege ferenda postulates regarding the law applicable to the assignment of receivables. He indicates the law applicable to individual relationships resulting from the assignment (assignor – assignee, assignee – debtor and assignee – third persons other than a debtor) and the law applicable to the assignment effects in the case of the bankruptcy of the claim seller.

Pobierz plik (Widlo.pdf)Widlo.pdf369 kB

Obtaining Information about the Debtor’s Assets in Polish and German Law against the Background of other Selected Legal Orders

Knowledge of the factual and legal circumstances of the debtor’s property contributes to the effective, quick and effective fulfillment of the creditor’s rights, and is even necessary for enforcement. The article deals with the subject of obtaining information about the debtor’s assets against the background of the regulations contained in the Act of 17.11.1964. The Polish Code of Civil Procedure and The German Code of Civil Procedure (Zivilprozessordnung) against the background of other selected legal orders – Czech, Estonian and Norwegian, because knowledge of the debtor’s assets has a significant impact on the effectiveness of enforcement.

Pobierz plik (Sehn.pdf)Sehn.pdf403 kB

Substitute Liability Clauses in Polish Criminal Law

The basic aim of substitute liability clauses should be the extension of statutory elements of the subject (perpetrator) of the offence, so that it covers a natural person acting for someone else, in particular for an organizational unit. So, there is neither sufficient criminal law basis nor the need to build a separate formula for perpetration under the so-called substitute criminal liability. For this reason, the activity of the legislator, who outside the criminal code, in various acts creates substitute liability clauses in relation to common types of offences, should be assed negatively. As a result of this activity of the legislator, there is a danger of treating these clauses as separate types of offences, and therefore expanding the scope of criminalization, without any criminal policy justification. Such clauses may also without any justification restrict the scope of criminalization leaving actual perpetrator outside the scope of the elements of the offence. The multitude of solutions used by the legislator in relation to the content of substitute liability clauses makes it difficult to inquire into their essence and is a source of interpretational doubts. Nevertheless, in each model of the substitute liability clause, in organizational units, it covers persons who, on the basis of organizational conditions of a given unit (formal or purely factual) are empowered to effectively manage (make decisions) regarding the conduct of a given case. This applies to permanent, general or generic empowerment or even empowerment to a single case. In entities in which the ownership is separated from the management of an organizational unit (e.g. in companies), criminal liability cannot be associated with the exercise of ownership rights.

Pobierz plik (Zawiejski.pdf)Zawiejski.pdf321 kB

Reputation in Criminal Law and Its Protection Boundaries

The article is an attempt to determine the scope of the concept of honor(reputation) and to answer the question what it is, what are the axiological, linguistic and conventional backgrounds of its social acceptance and whether it deserves legal protection, including criminal law, and if so, whether can we determine the moment its creation and cessation. In the existing literature on the subject and in the doctrine, the topic of the existence of the worship of nasciturus and the deceased was not thoroughly studied. Some authors limited themselves to reflecting on the concept of dignity of the abovementioned entities repeatedly analyzed. The main thesis of the article is to take the position of the author on the issues indicated above, such as: indicate the scope of the subject matter of honor(reputation) and determine who is entitled to it. The current legal status does not solve the given issues, it even complicates them, which is also contributed by national and international jurisprudence, creating many inconsistent case-law lines. Therefore, one should be in favor of regulating the legal status of deceased persons and nasciturus at least in the matter of granting them legal rights.

Pobierz plik (Najman.pdf)Najman.pdf273 kB

Some Consequences of Changing the Article 37a of the Penal Code on the Ground of Extraordinary Mitigation of the Penalty

The article concerns the effects of changing Article 37a of the Penal Code based on the amending act of June 2020, in particular on the ground of extraordinary mitigation of the penalty. As of 24th June 2020, Article 37a of the Penal Code undoubtedly has become an institution of the judicial imposition of penalty, which may be applied after analyzing the circumstances of a particular case. Moreover, the scope of application of Article 37a of the Penal Code is narrower. The criminal repression in Article 37a of the Penal Code was increased. This leads to the conclusion that Article 60 § 6 point 4 of the Penal Code is not an empty rule. There is no need for applying of the Article 60 § 8 of the Penal Code. The amendment also led to other problems that are important for application of Article 60 of the Penal Code.

Pobierz plik (Kmak.pdf)Kmak.pdf275 kB

Fundamental Rights and the Decision to Die. Constitutional Discourse on the Example of the Judgment of the Federal Constitutional Court of February 26, 2020

In the judgment dated February 26, 2020, the German Federal Constitutional Court (“FCC”) found the provision of the Criminal Code penalizing “professional” assistance in suicide inconsistent with the German Constitution. This judgment deserves attention, inter alia, due to the theses presented in it about the close relationship between the right to assisted suicide and the protection of human dignity, and about the extremely wide scope of this right. The presented considerations, taking into account the decisions of other constitutional courts in the field of assisted suicide, focus on the structure of the FCC’s arguments, its axiological premises and potential implications for a wider debate on the admissibility of assisted suicide and euthanasia conducted in the context of fundamental rights.

Pobierz plik (Lacki.pdf)Lacki.pdf395 kB

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