Legal Aspects related to Assets of
Mandatory Open Pension Funds in Poland

As a part of Polish pension reform open pension funds were created as a part of
mandatory pension system in late nineties of previous century. However there
are still different opinions related to the legal aspects related to ownership of the
assets of open pension funds. Sometime those issues are also mixed with private
or public statistical classification of open pension funds and their assets as well
as contributions to them, even by courts, however those issues shall be treated
separately. The author considers legal character of contribution to open pension
fund claiming that since there is no regulation which can allow to treat assets of
the pension fund as co-ownership of the members of the pension fund, the assets
of the pension funds shall, in the lack of such rules be treated only as ownership
of the pension fund. Members of the fund only might have claims of obligatory
nature to the pension funds, and such claims can be implemented only in cases
clearly stipulated clearly by law.

Pobierz plik (17-2013 Pelc.pdf)17-2013 Pelc.pdf316 kB

Did the Polish Constitutional Tribunal Call
into Question the Principle of Primacy
of the EU Law over the Polish Law?

In the judgment as of 13th October 2010 in the case ref. No. Kp 1/09 the Tribunal
ruled whether a provision of the Polish Law on Organization of Fishery Market
empowering the Polish government to issue the regulation was consistent with
the Constitution. The regulation issued by the government was in fact an act of
implementation of the European Regulation No. 1224/09 which minutely regulated
the fishery market. Therefore questioning the Polish law could mean calling
into question the European law. The author claims the Tribunal ruling on the
non-consistency of the above mentioned regulation with the Polish Constitution
in fact has not changed anything in the up to now elaborated principle. It says, the
last word about the conformity of the European law with the Polish Constitution
belongs to the Polish Constitutional Tribunal. Apart from it the author claims,
unlike the Tribunal, that issuing the regulation by the government referring to
the European Regulation is acceptable.

Pobierz plik (17-2013 Czapliński.pdf)17-2013 Czapliński.pdf155 kB

The Cognitive Biases in the Yearning for
the Utility of the Study of Roman law

The vitality of the Roman law is a consequence of its utility for the development
of the legal science since the Middle Ages. The 19th century brought about two significant
distinctions. First of all, the application of the Roman legal texts building
a new private law system (the German Pandectist school) became the opposition to
the science of the applied Roman law (ius commune). Second of all, the opposition
between the ahistorical, although practical, application of the Roman law and
the historical charm embedded in the ancient legal texts was clearly noticed. As
a consequence of replacing the received Roman law with the civil law codes, the
question whether, and how, to study Roman law usefully and how to teach it remains
topical. Psychology suggests that, as a result of cognitive biases, the 19th century
understanding of the utility of the Roman law exists even today. The author believes
these errors are worth overcoming. The combination of studies of the ancient Roman
law and the European legal science based thereon shows why one should recognise
the rationality of existence of a certain uncertainty in the private law. It teaches us
what is of fundamental importance for coping when faced with such an uncertainty.

Pobierz plik (17-2013 Dajczak.pdf)17-2013 Dajczak.pdf382 kB

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