Podstawy aksjologiczne ograniczenia prawa do głosowania nad układem w postępowaniach restrukturyzacyjnych (The Axiological Background of Restrictions on the Right to Vote on Composition Arrangements in Restructuring Proceedings)


Andrzej Wierciński

SWPS University of Social Sciences and Humanities

Law and Forensic Science, Volume 16 (2018/2), pages 35-40.

Submitted: November 20, 2018

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Abstract:  The article discusses the axiological background and the inherent values lying at the root of the provisions of the Restructuring Law which restrict certain creditors from exercising their right to vote in relation to the approval of composition arrangements in the course of restructuring proceedings. The axiology which leads to the exclusion of creditors who are connected in various ways with a debtor range from family connections to corporate relationships within the group of companies to which the debtor belongs. The potential for emotions to prevail in the case of family members or the unclear financial and business connections stem from the management and ownership corporate relationships are seen as a contradiction to the concept of an ideal creditor, who analyses the pros and cons of the prospective arrangement. A different axiology drives the exclusion of creditors who purchase debts after the initiation of restructuring proceedings. The article concludes that, as opposed to prevailing doctrine, the exclusion of those who purchase debts is driven not by the value of keeping such purchasers out of the restructuring picture, but rather to protect the opening of a market of debt trading in which a fair price can be achieved.

Keywords: restructuring law, creditor’s right to vote Continue reading “Podstawy aksjologiczne ograniczenia prawa do głosowania nad układem w postępowaniach restrukturyzacyjnych (The Axiological Background of Restrictions on the Right to Vote on Composition Arrangements in Restructuring Proceedings)”

Consumer Bankruptcy – the Direction of Legislative Changes


Paweł Wrzaszcz

John Paul II Catholic University in Lublin

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Law and Forensic Science, Volume 16 (2018/2), pages 29-34.

Submitted: October 24, 2018

The author declares there is no conflict of interest.

Abstract:  The proposed changes in relation to consumer bankruptcy may constitute a revolutionary legislative change in relation to debtors. Liberalization of regulations in this area will lead to increased amounts of announced consumer bankruptcies. It seems, however, that the proposed changes disturb the balance between the need to protect the interests of creditors and support the legal protection of the debtor. The key is to determine whether State’s task is to protect creditors against insolvent debtors or to support unreliable debtors. Too loose the introduction of legislative changes can significantly reduce social morale and encourage citizens to take unfair actions. The author undertakes an attempt to critically evaluate the proposed changes, referring both to its positive aspects and negative aspects. At the same time, he points out those legal solutions that may have negative consequences for legal transactions, as well as may be subject to negative public perception.

Keywords: bankruptcy, consumer law, law reform

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Zrzeczenie się prawa do zachowku (Renunciation of the Legitim)


Magdalena Rzewuska

University of Warmia and Mazury in Olsztyn

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Law and Forensic Science, Volume 16 (2018/2), pages 7-14.

Submitted: October 20, 2018

The author declares there is no conflict of interest.

Abstract: The article discusses the problematic issue of renouncing the right of the legitim. In Poland, there are no legal provisions that directly enable legal successors to renounce the legitim. Some legal experts have attempted to derive the above right from the provisions of Article 1048 of the Civil Code, whereas others have completely ruled out this possibility. The Resolution of the Supreme Court No. III CZP 110/16 of March 17, 2017 plays a significant role in this debate. It provides legal successors with the option of drafting a legally binding document renouncing the right of the legitim. The article analyzes the provisions of the above resolution in view of the most problematic issues, including the legal admissibility of a partial renouncement of the legitim, the possibility of evading the legal consequences of renouncing the legitim, and renouncing the right of the legitim on behalf of another party.

Keywords: legitim, succesion, renunciation

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Transaction Costs of Blockchain Smart Contracts


Jakub J. Szczerbowski

SWPS University of Social Sciences and Humanities

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Law and Forensic Science, Volume 16 (2018/2), pages 1-6.

Submitted: July 11, 2018.

The author declares there is no conflict of interest.

Abstract: Smart contracts are computer programs executed on virtual machines, which are used to regulate relationships between the subjects of law. They allow parties to foresee, with a high degree of certainty, how will the contractual relationship develop and by the use of blockchain technology they provide a high degree of certainty. It has been conjured that smart contracts will offer significantly lower transaction costs in relation to traditional contracts. The paper analyzes this proposition and finds that not only are the gains doubtful, but also that in some cases transaction costs may be significantly higher.

Keywords: smart contract, transaction costs, blockchain

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A próposito de la iustae causae del divorcio: protección de la mujer frente al maltrato (About the iustae causae of Divorce: Protecting the Woman Against Maltreatment)


Yeray Del Pino Álamo González

 

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Law and Forensic Science, Volume 15 (2018/1), pages 81-92.

Submitted: June 21, 2018.

The author declares there is no conflict of interest.

Abstract: The title deduces a problem of current news, violence against women and the possibility that women had to dissolve the marriage bond, as a way to avoid abuse. In this regard, we thought it appropriate to present a series of reflections on domestic violence. In this sense, it should be noted that Rome was not far from this social problem of married women who, given their social categorization, based on honesty or pity, as good midwives, suffered violence in a submissive attitude against the husband, in a system in which invisibility and silence predominate in the face of certain types of aggression. Well, in this way, in the present lines, we will refer to fragments such as Papiniano, 15 resp. D.48.5.40. (39). pr. and also sources such as P. Oxyrinco VI 903, who analyze a problem that is so close in our current society and that resulted in the need to implant in the past the option of sending the husband the repudiation, thus dissolving the marriage, as a guarantee in those cases where the woman could suffer a humiliation under the mistreatment.

Keywords: Law, domestic aggression, puditicia, repudium, iustae causae

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Apoderamiento preventivo y autodelación de la tutela en la Ley 41/2003, de 18 de noviembre, de protección patrimonial de la personas con discapacidad (Preventive empowerment and self-disclosure of the guardianship in the Law 41/2003, of November 18, of patrimonial protection of the persons with disability)


Mª del Carmen Colmenar Mallén

 

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Law and Forensic Science, Volume 15 (2018/1), pages 69-80.

Submitted: June 8, 2018.

The author declares there is no conflict of interest.

Abstract: The present work focuses on the regulation of preventive seizure and self-protection or self-demarcation of the guardianship, figures both introduced in our common Civil Law by means of Law 41/2003, of November 18, on patrimonial protection of persons with disabilities. Mention has been made of the regulation of these figures in some of our statutory rights, such as Catalan, precedent of our current legislation, Galician and Aragonese. The differences between both figures have been analyzed, as well as the different modalities, formalization requirements of their constitution, persons entitled to grant it, etc.

Keywords: Law, self-defense, preventive empowerment, guardianship, disability

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Harm, Culpability and Criminal Liability: A Study of Justification and Excuse in Common Law Jurisprudence


George Mousourakis
  

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Law and Forensic Science, Volume 15 (2018/1), pages 45-59.

Submitted: April 18, 2018. Published: June 16, 2018.

The author declares there is no conflict of interest.


Abstract: This article examines the issue of criminal liability in terms of the theoretical distinction between justification and excuse. By contrast with German and other Continental criminal law systems, the distinction has not played a significant part in the development of criminal law doctrine in common law jurisdictions. Over the past few decades, however, there has been a growing interest in the benefits of this approach to conceptualising criminal liability, as manifested by the considerable literature on justification and excuse and the frequent references to the distinction in judicial decisions, legislative enactments and scholarly works. Although the distinction has been given a great deal of attention in common law countries in recent years, attempts at a systematic classification of criminal law defences on this basis run up against serious difficulties. These difficulties have much to do with the fact that elements of both justification and excuse often appear to overlap in the moral and conceptual basis of a legal defence. It is argued that, notwithstanding these difficulties, the theory of justification and excuse offers a viable model, which can achieve and maintain a measure of coherence among criminal law defences and facilitate understanding and acceptance of the criminal law system and its presuppositions. The references to German criminal law theory add a useful comparative perspective to the discussion of the issues.

Keywords: harm, culpability, criminal liability, justification, excuse, defences Continue reading “Harm, Culpability and Criminal Liability: A Study of Justification and Excuse in Common Law Jurisprudence”