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Polish Commercial Law in a Nutshell - ebook/pdf
Polish Commercial Law in a Nutshell - ebook/pdf
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Wydawca: Wydawnictwo Uniwersytetu Łódzkiego Język publikacji: polski
ISBN: 978-8-3796-9553-9 Data wydania:
Kategoria: ebooki >> prawo i podatki >> gospodarcze i handlowe
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The aim of the present book is to give an outline of Polish Commercial Law in English language. The book follows the usual sequence of lectures on Commercial Law in Poland dividing the content in two parts. First part is on entrepreneurs mainly partnerships and companies as the most important forms of organization of business and second part is on commercial acts especially contract. The latter part includes also chapters on securities as wall as on prevention of unfair competition and on trademarks. I will be happy if the book serves all those students who learn Polish law in English as well as students who set off to study abroad in English and seek books that could acquaint them with English legal terminology. Hopefully the work can also be of help to foreigners, especially foreign entrepreneurs who want to engage in business activity in Poland and need basic knowledge of Polish Commercial Law, as well as to legal practitioners who have to explain the institutions of Polish Law to their foreign clients. 
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POLISH COMMERCIAL LAW IN A NUTSHELL Bartosz Kucharski Bartosz Kucharski POLISH POLISH COMMERCIAL LAW COMMERCIAL LAW IN A NUTSHELL IN A NUTSHELL Bartosz Kucharski – Uniwersytet Łódzki, Wydział Prawa i Administracji Katedra Prawa Gospodarczego i Handlowego, 90-232 Łódź, ul. Kopcińskiego 8/12 RECENZENT Wojciech Pyzioł REDAKTOR WYDAWNICTWA UŁ Elżbieta Marciszewska-Kowalczyk SKŁAD I ŁAMANIE AGENT PR PROJEKT OKŁADKI Stämpfli Polska Sp. z o.o. Zdjęcie na okładce: © © Copyright by Uniwersytet Łódzki, Łódź 2015 Wydane przez Wydawnictwo Uniwersytetu Łódzkiego Wydanie I. W.06689.14.0.S ISBN 978-83-7969-424-2 ISBN 978-83-7969-553-9 electronic version Wydawnictwo Uniwersytetu Łódzkiego 90-131 Łódź, ul. Lindleya 8 e-mail: tel. (42) 665 58 63, faks (42) 665 58 62 TABLE OF CONTENTS PREFACE PART ONE. ENTERPRENEURS 1. Object and method of regulation Chapter One. NOTION AND SOURCES OF COMMERCIAL LAW 2. Subjective and objective approach 3. Independence within the system of Law 4. Sources of Commercial Law Chapter Two. ECONOMIC ACTIVITY 1. The notion of economic activity 2. Basic principles of undertaking and carrying on economic activity 3. Formal limits to freedom of economic activity 4. Material limit to the freedom of economic activity 4.1. Requirement of professional qualifications 4.2. Police and administrative conditions 4.3. A duty to make payments via bank account 3.1. Registration 3.2. Concessions 3.3. Permits, licenses, permissions 3.4. Regulated activity 1. Notion of entrepreneur Chapter Three. ENTREPRENEUR AND CONSUMER. ENTERPRISE 2. Various kinds of entrepreneurs 2.1. Based on legal personality 2.2. Based on the main purpose of the activity carried out 2.3. Based on size 3. Notion of consumer 4. Notion of enterprise 6. Registration of Entrepreneurs 5. Transfer of an enterprise 15 17 19 19 20 21 22 25 25 26 28 28 29 30 31 31 31 32 32 33 33 34 34 35 36 37 37 38 39 5 7.1. Notion of commercial power of attorney 7.2. The scope of commercial power of attorney 7.3. Differences in comparison to the normal power of attorney 7.4. Grant, revocation and expiration of a commercial power of attorney 7.5. Special kinds of commercial power of attorney 6.1. Register of Entrepreneurs 6.2. Central Economic Record and Information 7. Commercial power of attorney 8. Business name 8.1. Notion of a business name 8.2. General principles of a business name law 8.3. Elements of a business name 8.4. Kinds of a business name 8.5. Legal protection of a business name 1. Introduction 2.4.1. Management of a partnership affairs 2.4.2. Share in profits and losses 2.1. Notion of a civil partnership 2.2. Formation of a civil partnership 2.3. Property and contributions 2.4. Internal relations 2.5. External relations 2.6. Withdrawal of a partner 2.7. Dissolution of a partnership Chapter Four. PARTNERSHIPS 1.1. Notion of a partnership 1.2. Various Kinds of a partnerships and companies 1.3. Unity of civil law principle 2. Partnership (Civil Partnership) 3. Common Problems for commercial partnerships 4. Registered partnership 4.1. Notion of registered partnership 4.2. Differences with respect to civil partnership 4.3. Formation 4.4. Property 2.5.1. Representation 2.5.2. Liability for the partnership obligations 3.1. Quasi-legal personality 3.2. Amendment of articles 3.3. Transfer of share(s) 6 39 40 41 41 41 42 43 43 44 44 44 46 46 47 49 49 49 49 52 52 52 53 54 54 54 55 56 56 56 56 57 58 58 59 59 59 59 60 61 61 4.5.1. Management of the partnership’s affairs 4.5.2. Capital share 4.5.3. Participation in profits and losses 4.5.4. Non-competition ban 4.8.1. Reasons for dissolution 4.8.2. Liquidation 4.8.3. Liquidators 4.8.4. Divisions of assets or shortfalls 4.8.5. Deletion from the register 4.6.1. Representation. 4.6.2. Liability 4.5. Internal relations 4.6. External relations 4.7. Withdrawal of a partner 4.8. Dissolution and liquidation 5. Professional partnership 6. Limited partnership partner 5.1. Notion of a professional partnership 5.2. Partners – self-employed professionals 5.3. Liability 5.4. Formation 5.5. Management of affairs and representation. Management board 6.1. Notion of limited partnership 6.2. Formation 6.3. Liability of a limited partner 6.4. Property situation of a limited partner 6.5. Management of affairs, representation and supervision by a limited 7. Limited joint- stock partnership 7.1. Notion of limited joint- stock partnership 7.2. Formation of limited joint-stock partnership 7.3. Property relations in limited joint- stock partnership 7.4. Management of affairs and representation 7.5. Supervision. Supervisory board 7.6. General assembly Chapter Five. CAPITAL COMPANIES. TRANSFORMATIONS 1. Common problems for a capital companies 1.1.1. Notion of a company in organization 1.1.2. Legal status of a company in organisation 1.1. Company in organisation 61 61 62 62 63 63 63 63 64 65 65 65 66 66 67 67 67 68 69 69 70 71 71 71 72 72 73 74 74 75 76 77 78 78 81 81 81 81 81 7 1.1.3. Liability for the obligations of the company in organisation 1.2. Shares and contributions 1.3. Share capital 1.3.1. 1.2.1. Notions of share, contribution, and share capital 1.2.2. Kinds of contributions 1.2.3. Legal ability to constitute an in kind contribution 1.2.4. Time of making contributions Notion of share capital and its relation to a company’s property 1.3.2. Minimum value of share capital 1.3.3. Functions of share capital 1.3.4. Criticism and alternatives to share capital. Prospective re- forms 8 1.4.1. Property rights 1.4.2. Corporate rights 1.4.3. Duties 1.4. Rights and duties of shareholders 1.5. Company governing bodies 1.5.1. Management board 1.5.2. Supervision 1.5.3. General Meeting of Shareholders/General Assembly 1.6. Amendment to the articles of association/statute 1.7. Dissolution and liquidation 1.7.1. Reasons for dissolution 1.7.2. Opening of liquidation 1.7.3. Liquidators and their duties 1.7.4. Distribution of the company’s assets 1.7.5. Termination of liquidation 1.6.1. General rules 1.6.2. Increase of share capital 1.6.3. Decrease of share capital 2. Limited liability company 2.2.1. Conclusion of articles of association 2.2.2. Contributions for the entire share capital 2.2.3. Appointment of the company’s bodies 2.2.4. Registration 2.1. Notion of a limited liability company 2.2. Formation 2.3. Shares in limited liability company 2.3.1. Main characteristics of shares 2.3.2. Transferability of shares 82 82 82 83 83 84 85 85 85 86 86 87 88 90 90 91 91 94 96 100 100 101 102 102 102 103 103 103 104 104 104 105 105 105 106 106 106 106 108 2.3.3. Redemption of shares 2.3.4. Ban on acquiring own shares 2.4. Expulsion of a shareholder 3. Joint- stock company 3.1. Notion of a joint-stock company 3.2. Formation of the company’s articles 3.2.1. Signing of the statutes 3.2.2. Subscription of the shares 3.2.3. Making contributions 3.2.4. Consent to the formation of a company and to the content 3.2.5. Appointment of the company bodies 3.2.6. Registration 3.3.1. Share – meanings and features 3.3.2. Kinds of a shares 3.3.3. Transferability of shares 3.3.4. Redemption of shares 3.3.5. Invalidation of a share 3.3.6. Ban on acquiring own shares 3.3. Shares in and other documents in joint-stock company 3.4. Increase of a share capital in joint- stock company 3.4.1. General rules 3.4.2. Subscription of shares 3.4.3. Special ways to increase the share capital in a joint-stock company 3.5. Squeeze out and reverse squeeze out 4.1.1. Possible configurations 4.1.2. Methods of merger 4.1.3. Effects of merger 4.1.4. Protection of creditors 4.1.5. Cross-border merger 4. Merger, division and transformations of companies 4.1. Merger of companies 4.2. Divisions of companies 4.2.1. Possible configurations 4.2.2. Methods of division 4.2.3. Effects of division 4.2.4. Protection of creditors 4.3. Transformations of companies 4.3.1. Possible configurations 4.3.2. Effects of transformation 108 109 110 110 110 111 111 112 112 113 113 114 114 114 115 117 117 118 118 118 118 119 119 121 122 123 123 123 123 124 124 124 124 125 125 126 126 126 127 9 4.3.3. Protection of creditors 4.4. Procedures governing merger, division and transformation 4.4.1. Preparatory acts 4.4.2. Resolutions 4.4.3. Registration and announcements 1. Bankruptcy in general 1.1. Notion and functions of bankruptcy 1.2. Types (stages) of bankruptcy 1.3. Kinds of typical bankruptcy proceedings 2.1. Bankruptcy capacity 2.2. Insolvency 2.3. At least two creditors 2.4. Assets sufficient to cover costs Chapter Six. BANKRUPTCY AND REORGANISATION 2. Prerequisites for Declaring Bankruptcy 3. Proceedings on Declaring Bankruptcy 4. Effects of Declaring Bankruptcy 3.1. Capacity to file the petition 3.2. Preliminary meeting of creditors 3.3. Decision on declaring the bankruptcy 4.1. With respect to the bankrupt’s assets 4.2. With respect to the bankrupt 4.3. With respect to the bankrupt’s obligations 4.4. With respect to a bankrupt’s inheritance and his or her marital property 5. The course of the bankruptcy proceedings after declaration of bankruptcy 5.1. Filling and establishment of claims 5.2. Bankruptcy with the possibility to make an arrangement 5.3. Liquidation of the bankruptcy assets 5.4. Distribution of bankruptcy estate funds 6. Closure and discontinuance of the bankruptcy proceedings 7. Reorganisation proceedings in Cases of a Threat of insolvency 7.1. Aims and legal prerequisites of reorganisation proceedings 7.2. Opening of reorganisation proceedings 7.3. Effects of opening reorganisation proceedings 7.4. Manner of restructuring the enterprise 7.5. Arrangements in reorganisation proceedings 6.1. Closure 6.2. Discontinuance 127 128 128 129 131 131 131 131 131 132 132 132 133 134 134 134 134 135 136 136 136 137 137 139 139 139 140 142 144 144 144 145 145 145 146 146 147 10 PART TWO. COMMERCIAL ACTS 1. The concept of obligation and its sources Chapter One. LIABILITY OF ENTREPRENEURS 2. Torts as a source of obligation on the market 3. Contracts as a source of obligations on the market 4. Prerequisites of liability in contract and tort – a comparison 6. Special features of entrepreneurs’ liability 5. Liquidated damages 1. Offer and acceptance Chapter Two. CONCLUSION OF A CONTRACT 2. Negotiations 3. Auction and tender 4. Preliminary contract 6. Standard forms of contracts (standard form contracts, model con- 5. Letter of Intent tracts, templates) and consumer protection 7. Contracts concluded outside the premises of an enterprise and dis- tance contracts Chapter Three. VARIOUS TYPES OF COMMERCIAL CONTRACTS 1.1. The Concept of Sale 1.2. Obligations of the seller 1.3. Obligations of the buyer 1.4. Warranty against defects 1.4.1. Notion of a defect 1.4.2. Nature of liability 1.4.3. The seller’s remedies on account of warranty against defects Prerequisites of the warranty against defects and its limi- 1.4.4. tations 1. Contract of Sale 1.4.5. Claims of the seller resulting from defects of the thing sold 1.5. Guarantee of quality 1.6. Special kinds of sale 1.6.1. Instalment sales 1.6.2. Reservation of ownership in the thing/item sold 1.6.3. Sale on approval 1.6.4. Sale with a right of repurchase 1.6.5. Sale with a right of pre-emption 1.6.6. Other specific kinds of sales 149 151 151 152 156 158 159 160 165 165 167 168 170 171 172 174 177 177 177 179 180 181 182 183 184 185 186 187 189 189 189 190 190 190 191 11 1.7. International sale 2. Contracts for a work 2.1. Contracts for a specific work 2.1.1. The concept of a contract for a specific work 2.1.2. Obligations of the acceptor of an order 2.1.3. Obligations of the orderer 2.1.4. Limitation of claims 2.2. Construction work contract 2.2.1. Notion of a construction work contract 2.2.2. The parties and other persons engaged in performance of the contract 2.2.3. Obligations of the investor 2.2.4. Obligations of the contractor 3.1. Origins and notion of a leasing contract 3.2. Obligations of the financing party (lessor) 3.3. Obligations of the leasing party (lessee) 3.4. Liability for defects of the leased thing (object) 3.5. Expiration of the contract 3. Leasing contract as an example of contract to use a thing 4. Intermediation contracts 4.1. Intermediation in general 4.2. Mandate contract 4.3. Agency contract 4.2.1. Notion of a mandate 4.2.2. Formation of a mandate 4.2.3. Duties of the party accepting the mandate (mandatee) 4.2.4. Duties of the principal 4.2.5. Expiration of the mandate 4.2.6. Limitation of claims 4.3.1. Notion of agency, basic kinds and conclusion of an agency contract 191 194 194 194 194 196 197 197 197 198 199 200 201 201 202 202 203 204 206 206 207 207 208 208 209 210 210 211 211 212 213 215 215 216 216 217 218 218 4.3.2. Obligations of the agent 4.3.3. Duties of the principal 4.3.4. Termination of the contract 4.3.5. Special kinds of agents 4.4. Contract of commission 4.4.1. Notion and kinds of contracts of commission (commission contracts) 4.4.2. Obligations of a commission agent 4.4.3. Obligations of the commissioning party 4.4.4. The commission agent’s liability for defect 12 5.1.1. Notion of the contract of carriage and its regulation 5.1.2. Documents of carriage 5.1.3. Obligations of the parties 5.1.4. Liability of the carrier 5.2.1. Notion of a contract of forwarding and its regulation 5.2.2. Obligations of the forwarding agent 5.2.3. Obligations of the principal 5.2.4. Liability of the forwarding agent 4.5. Brokerage contracts 4.5.1. Stock broker 4.5.2. Maritime broker 4.5.3. Insurance broker 5. Contracts in transport 5.1. Contract of carriage 5.2. Forwarding contract 6. Contracts with banks 7. Insurance contract 6.1. Bank account contract 6.2. Loan contract 6.3. Credit contract 6.1.1. Notion of a bank account contract 6.1.2. Obligations of the bank 6.1.3. Obligations of the bank account holder 6.1.4. Termination of the contract and limitation of claims 6.2.1. Notion of a loan contract 6.2.2. Obligations of the lender 6.2.3. Obligations of the borrower 6.3.1. Notion and characteristics 6.3.2. Formation of the credit contract 6.3.3. Obligations of the bank 6.3.4. Obligations of the borrower 6.3.5. Termination of the credit contract 6.3.6. Consumer credit 7.1. The notion and characteristics of an insurance contract 7.2. Parties to the contract 7.3. Sources of insurance contract law 7.4. Types of insurance 7.5. Conclusion of an insurance contract and insurance documents 7.6. Obligations of the insurer 7.7. Obligations of the named insured 7.8. Termination of an insurance contract 219 219 219 220 221 221 221 222 223 224 225 225 226 227 227 228 229 229 229 230 230 231 231 232 232 233 233 234 234 235 237 237 238 238 239 240 241 243 244 245 246 13 Chapter Four. SECURITIES (COMMERCIAL PAPERS) 1. The notion of security and moment of its creation 2. Kinds of securities 3. Abstractness of the obligation and the problem of defences 4. Entitlement documents 5. Redemption of securities Chapter Five. FAIR TRADING AND INTELLECTUAL PROPERTY 1. Prevention of unfair trading practices (unfair competition) 1.1. The Polish regulation of fair trading 1.2. Notion of unfair trading practices 1.3. The most important acts of unfair trading practices 1.3.1. Misleading designation of an enterprise 1.3.2. Misleading labelling or naming of products or services 1.3.3. Imitating products 1.3.4. Breach of confidential information 1.3.5. Unfair trading practices involving geographical designations 1.3.6. Unfair advertising 1.3.7. Slandering, hindering other entrepreneurs’ access to the market, interfering in contractual relations Promotional sales, excessive sale of the owner’s brands, pyramid sales scheme, or a Ponzi scheme 1.4. Remedies for victims of unfair trading practices 1.3.8. 2. Trademarks 2.3.1. 2.1. Notion and functions of trademark 2.2. Kinds of trademarks 2.3. Registrability of a trademark Capability of a sign to affect the senses and of being repre- sented graphically 2.3.2. Capability of distinguishing (Distinctiveness) 2.3.3. Absolute and relative grounds for refusal of registration 2.4. The content and legal character of the right to a trademark 2.5. The protection from infringement of a trademark 2.6. Revocation and termination of trademark rights 2.5.1. Protection within the specialization rule 2.5.2. Protection outside the scope of the specialization rule 2.5.3. Remedies BIBLIOGRAPHY 14 247 247 248 248 249 250 251 251 251 251 253 253 254 255 256 256 257 258 259 260 261 261 262 262 263 263 264 265 267 267 269 270 270 273 PREFACE The present book developed mainly as a result of my lec- tures on Commercial Law at the Faculty of Management Univer- sity of Łódź and formerly at the Koźminski University in Warsaw. I will be happy if it serves all those students who learn Polish law in English as well as students who set off to study abroad in English and seek books that could acquaint them with English legal termi- nology. Hopefully the work can also be of help to foreigners, espe- cially foreign entrepreneurs who want to engage in business activi- ty in Poland and need basic knowledge of Polish Commercial Law, as well as legal practitioners who have to explain the institutions of Polish Law to their foreign clients. It is difficult to find on the market a comprehensive textbook in English that would correspond the structure of an academic lec- ture on Polish Commercial Law. “Polish Commercial Law: An Intro- duction” by Robert Lewandowski is much wider in the scope than this book and refers also to EU law, but it is rather rudimentary when taking into account Polish Partnerships and Companies. Nor does it cover commercial contracts, apart from some rules concern- ing their conclusion and the contract of sale, nor unfair competition and intellectual property law. I wanted to simplify lecture on Commercial Law and adapt it to the needs of students who do not have general knowledge of law, especially those from Business and Management faculties. Usually lectures on Commercial law in Poland are divided into two basic parts: the first regards entrepreneurs, and the second regards commercial acts, mainly contracts. The present book follows this sequence. The first part deals mainly with partnerships and com- panies as the most important forms of organization of business 15 activity in the modern economy. The second part, apart from con- tracts, includes remarks on commercial papers (securities) as well as on the prevention of unfair competition and trademark law. The scope of the book made it impossible to cover other intellectual property rights and copyright. Preparing this book I made extensive use of translations of Pol- ish legal acts accessible on the market, especially the books: Kod- eks cywilny. Civil Code. Polsko – angielski. Przepisy dwujęzyczne by T. Bil, A. Broniek, A. Cincio, M. Kiełbasa; and Kodeks spółek handlowych. Code of Commercial Companies. Polsko – angielski. Przepisy dwujęzyczne by G. Domański, J. Palinka, K.A. Zakrze- wski, both published by Wolters Kluwer Business in 2011. I have also used the translations of Polish legal Acts accessible via Inter- net. I am indebted to those who professionally translated Polish Law into English. Such translation is difficult for obvious reasons: English speaking countries have a common law legal system, which is quite different from the civil law system of continental Europe. Hence Polish concepts often do not have counterparts in common law countries, and vice versa. Proposing a completely new transla- tion seemed not only difficult, but rather pointless as it would only lead to more chaos. I would like to thank to Professor Wojciech Jan Katner for help in publishing this book and Dr. James Hartzell for checking the Eng- lish text. 16 PART ONE ENTREPRENEURS Chapter One NOTION AND SOURCES OF COMMERCIAL LAW 1. OBJECT AND METHOD OF REGULATION Commercial Law regulates commercial turnover/transactions1 in general. Commercial turnover/transactions may be defined from both the economic and legal point of view. From the economic point of view commercial turnover is understood as the exchange of the goods and services using the transfer of money or in-kind goods (goods which can be calculated in monetary terms). From the legal point of view commercial turnover encompass the activity of an en- trepreneur rendering performance (selling goods or servic- es) to another person within the scope of his enterprise’s activity. In other words it may be said that commercial law regulates legal relations between participants of the market. Commercial turnover include business to business relations (B2B), where both parties to a transaction are entrepreneurs acting within the scope of their professional activity. and business to con- sumer relations (B2C), where one party is an entrepreneur acting 1 It should be noted that the terms ‘turnover’ and ‘transactions’ are basical- ly interchangeable. A transaction, by definition, produces a turnover, and a turn- over is based on a transaction. In Polish law the term ‘turnover’ is used, while in Anglo-Saxon legal systems the term ‘transaction’ is usually used. In this book the terms are used either simultaneously or separately, but unless otherwise noted they have the same meaning. 19 within the scope of his enterprise and another is a consumer accept- ing performance of the entrepreneur for his or her private use. The method of regulation of commercial law is civil in na- ture, which means both parties to a transaction are equal from the legal point of view. This principle however is often inca- pable of being put into practice, due to the natural economical im- balances between the parties to a transaction. For this reason con- sumers are usually offered legal protections with respect to their relations with entrepreneurs. The basic source of the legal relations in commercial law is a contract, i.e. an agreement between the par- ties based on consensual manifestations of intent. In some instanc- es, legal relations between entrepreneurs and/or between entrepre- neurs and consumers may also arise from the legal spheres of torts and unjust enrichment. 2. SUBJECTIVE AND OBJECTIVE APPROACH There are two general approaches to commercial law in the con- tinental countries of Western Europe. The first is the subjective approach adopted in the German Commercial Code from 1897 (Handelgesetzbuch). The basic notion underlying this approach is the notion of a ‘merchant’ (in modern legal language – entrepre- neur), i.e. a person conducting acts aimed at making profits on his/ her own behalf. The second approach is that of the Romanesque countries, above all that adopted by the French Commercial Code of Napoleon from 1807. The basic notion underlying this approach is the notion of a commercial act (usually a contract) entered into by a profes- sional merchant. The focus is on the act, however, not the person of the merchant. The Polish approach is probably more close to the German one, but may be also viewed as mixed. The first modern Polish legal act regulating commercial law was Commercial Code of 1934 (the Decree of the President of 27 June 1934), which was divided into 20
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