scholarly journals The Legal Nature of the Judgement Issued Pursuant to Article 425 of the Code of Commercial Companies: Declaratory or Constitutive?

2021 ◽  
Vol 30 (4) ◽  
pp. 209
Author(s):  
Agnieszka Malarewicz-Jakubów ◽  
Damian Gierasimczuk
Keyword(s):  
Supreme Court ◽  
General Meeting ◽  
Civil Procedure ◽  
Civil Code ◽  
Court Decisions ◽  
Commercial Law ◽  
Historical Interpretation ◽  
Legal Nature

<p>For many years there has been a dispute in the field of commercial law concerning the nature of the ruling issued as part of an action for annulment of a resolution of the general meeting under Article 425 of the Code of Commercial Companies (hereinafter: CCC). The multitude of both studies of the representatives of the doctrine and opinions expressed in the court decisions, allows this dispute to be included in two opposing theses, which, together with the arguments for their support, the authors presented in this article. The supporters of the declarative character of the judgement indicate the necessity to carry out a linguistic, systemic and historical interpretation of the norm, as well as to refer to Article 58 of the Civil Code and adopt the indicated model of absolute nullity. Part of the doctrine also indicates that the standard of Article 425 CCC is a special regulation in relation to Article 189 of the Code of Civil Procedure. On the side of the thesis about the constitutive ruling, it is indicated that Article 425 CCC is a special regulation in relation to Article 58 CCC, and therefore it is not of absolute nullity nature. Moreover, arguments are also raised about the concurrence with the sanction contained in Article 422 CCC and about the necessity to secure legal turnover thanks to a constitutive ruling. The article also presents the evolution of the jurisprudence line towards the adoption of a constitutive position and its domination in the jurisprudence of the Polish Supreme Court based on the security of legal transactions. The authors of this article, through the analysis of the Polish jurisprudence as well as the views of the doctrine contained in the comments, scientific articles and monographs, have set themselves the goal of collecting, summarizing and organizing the most popular positions and their arguments.</p>

scholarly journals Czy przebaczenie niweczy skutki uprzedniego wydziedziczenia?

2017 ◽  
Vol 21 ◽  
pp. 143-153
Author(s):  
Anna Moskal
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Dominant Position ◽  
Legal Nature ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Subject ◽  
Made In

Does forgiveness nullify the effects of previous disinheritance? The legal nature of forgiveness is the subject of passionate debates among the representatives of civil law doctrine. According to the dominant position in the literature, forgiveness is an act of affection or its manifested expression of forgiveness of the perpetrator of experienced injustice and related to this grudge. This institution has been applied three times in the Civil Code — once with the donation agreement, twice in regulations of inheritance law. Article 1010 § 1 provides that a testator cannot disinherit eligible for legal portion if he forgave him. The wording of the above article indicates that accomplishment of disinheritance in case if testator eligible for legal portion has previously forgiven. The legislator did not, however, determine the effects of forgiveness in relation to previous disinheritance. In the act of 1971, the Supreme Court accepted that such forgiveness would automatically nullify the effects of disinheritance, and could be made in any form. In recent years, lower courts have begun to question the Supreme Court's position, and judges increasingly refer to the critical statements of numerous doctrines. As it was rightly stated, admitting the possibility of invoking the forgiveness made after disinheritance poses a serious threat to the realization of the testator’s will, who, by forgiving, does not necessarily want to revoke the effects of his previous disinheritance. The postulate of de lege ferenda is, according to the author of the article, giving of freedom of judging the effects of forgiveness to the courts and each examination of the forgiving testator’s will on the possible abatement of the consequences of previous disinheritance.]]>

scholarly journals Charakter prawny uchwał organów spółek kapitałowych na tle problematyki sporów korporacyjnych

Prawo ◽  
2017 ◽  
Vol 322 ◽  
pp. 17-30
Author(s):  
Justyna Glinka ◽  
Łukasz Chyla
Keyword(s):  
Audit Committee ◽  
Supervisory Board ◽  
Civil Procedure ◽  
Civil Code ◽  
Management Board ◽  
Legal Nature

The legal nature of resolutions of the governing bodies of corporate companies against the background of corporate disputesControversies accompanying corporate disputes are detrimental to the confidence of trade and eco­nomic turnover. The legal nature of resolutions of corporate bodies in companies is an issue of cur­rent relevance which is intrinsically linked to many further aspects of corporate disputes, including appealing against resolutions. The said issue requires comprehensive commentary primarily because sometimes the availability of a particular remedy is governed by the prior determination of legal nature of the contested act of will. Statements presented in doctrine and jurisprudence are not consistent in the presented matter. Taking into account the autonomous procedure of appealing only against the shareholders’ resolu­tions art. 249–254 or art. 422–427 of the Code of Commercial Companies, which is independent of legal nature of contested resolution, the burden of the problem, at first glance, focuses on the resolutions of other bodies the management board, the supervisory board and the audit committee. However, when considering, for instance, the concept of non-existent resolutions, it turns out that the problem relates to resolutions of all corporate bodies. Not to mention the issue of defects of will, regulated in art. 82–88 of the Civil Code. To answer whether a flawed resolution is appealable on the background of the general provisions art. 58 of the Civil Code in connection with art. 189 of the Code of Civil Procedure, firstly, it must be determined whether a specific resolution can be qualified as a legal act.The Authors of the article, beside presentation of dominant concepts on the legal nature of resolution, specify the importance of the said issue to the whole matter of corporate disputes and identify the most convincing solutions.

scholarly journals On the issue of violation of the uniformity of judicial practice

2021 ◽  
Vol 39 (3) ◽  
pp. 113-117
Author(s):  
N. Sh. Gadzhialieva ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Legal Status ◽  
Civil Procedure ◽  
Court Decisions ◽  
Judicial Practice ◽  
Procedure Code ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Legislative Changes

The article is devoted to such grounds for the cancellation or amendment of court decisions in the supervisory procedure, as a violation of the uniformity of judicial practice. The author analyzes the provisions of the current civil procedure legislation, the explanations of the Plenum and the Presidium of the Supreme Court of the Russian Federation on the application of paragraph 3 of Article 391.9 of the Civil Procedure Code of the Russian Federation. The article identifies such problems as the lack of normative consolidation of the terms "judicial practice" "unity of judicial practice", the uncertainty of the legal status of acts of the highest judicial instance, the possibility of bringing judges to disciplinary responsibility for violating the unity of judicial practice. Based on the results of the study, the author comes to the conclusion that comprehensive legislative changes are necessary to achieve the unity of judicial practice

scholarly journals Dopuszczalność i charakter prawny instytucji prokury łącznej niewłaściwej w świetle nowelizacji kodeksu cywilnego z dnia 16 grudnia 2016 r.

2017 ◽  
Vol 21 ◽  
pp. 131-141
Author(s):  
Anna Grzywacz
Keyword(s):  
Supreme Court ◽  
Civil Code ◽  
Power Of Attorney ◽  
The Past ◽  
Legal Nature ◽  
The Supreme Court ◽  
A Company ◽  
The Way

Admissibility and the legal nature of inappropriate joint procuration in the light of the amendment of the Civil Code of 16 December 2016This article describes the institution of the power of attorney in a company and the changes in the way of representation of the company introduced by the amendment of the Civil Code of 16 December 2016. In the light of the latest regulations, the construction of the inappropriate joint procuration has become admissible. The author presents the most important rulings of the Supreme Court and analyzes the consequences of this change. Determining how a company should be represented is fundamental to businessman and has arisen lots of controversies in the past years.

Compensation for Infringement of Copyright and Related Rights: Essence and Primary Functions

2020 ◽  
Vol 5 ◽  
pp. 34-40
Author(s):  
N. V. Buzova ◽  
◽  
R. L. Lukyanov ◽  
Keyword(s):  
Russian Federation ◽  
Research Method ◽  
Comparative Law ◽  
Civil Code ◽  
Judicial Practice ◽  
Legal Remedy ◽  
Legal Nature ◽  
The Russian Federation ◽  
Judicial Protection ◽  
Exclusive Right

The Civil Code of the Russian Federation provides an opportunity to the rightholder in case of infringement of his exclusive copyright and related rights to demand in court instead of compensation for damages incurred by him to pay compensation. In most cases, when the rightholder applies for judicial protection of his violated rights, he requires the recovery of compensation. This article discusses the legal nature of compensation as a legal remedy of an exclusive right and its primary functions. When writing an article, a comparative law research method is used. As a result of the analysis of russian and foreign legislation, as well as judicial practice, it was found that compensation, in addition to restorative, also has a preventive function and can be considered an analogue of statutory damages.

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