Representation of a foreign company acting through its branch in Poland

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The Polish legal system allows foreign companies to conduct their business activity in Poland both directly (to a limited extent), as well as through a branch (oddział) and representative office (przedstawicielstwo). A branch is considered to be an organisational structure (without its own legal capacity or personality) providing a framework for doing business in the full range for that company, whereas a representative office can only carry out advertising and promotional activities.

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Posted on by Mateusz Grochowski in Company Law

Reopening civil proceedings as a result of a judgment of the European Court of Human Rights

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The Polish Code of Civil Procedure does not provide for the effects of judgments of the European Court of Human Rights (ECHR) on pending or final cases examined by Polish courts. Therefore, the question whether a judgment of the ECHR stating an infringement of Article 6 sec. 1 of the European Convention on Human Rights should lead to the reopening of civil proceedings is a contentious and hotly debated topic in Polish legal literature. This issue has also been addressed by the Polish Supreme Court on several occasions, most notably by a panel of seven judges in a judgment of 30 November 2010, III CZP 16/10.

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Posted on by Agnieszka Gołąb in Civil Procedure

Act on Consumer Rights Enacted

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A few days ago, on 24 June 2014, the Act on Consumer Rights was finally published. The Act transposes the Consumer Rights Directive and re-transposes the Consumer Sales Directive to Polish law. The Act was adopted on 30 May 2014 and it will come into force six month after its publication, in December 2014.

The vast majority of rules of the Consumer Rights Directive have been transposed outside of the Civil Code (although, during the work on the transposition, there were voices suggesting its inclusion into the Civil Code). Only a few rules of a general contractual character are going to be included into the Civil Code.

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Posted on by Aneta Wiewiórowska-Domagalska in Consumer Law

Law and e-society. The new paradigm of discourse

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Years ago, Jerzy Starościak, a professor of administrative law, opened one of his books with the statement: “thick books on narrow issues are gone.” This was not true then, and is still not true today. Thick, analytical books will always be needed; enabling lawyers to develop their skills. Nonetheless, it is true that “thick books” have lost their monopoly in the legal discourse, as the discourse itself and its participants have changed.

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Posted on by Ewa Łętowska in General Issues

New rules regarding the concentration of procedural material

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By Act of 16 September 2011 (Dz. U. 2011, no 233, item 1381) a vast reform of general and enforcement proceedings was adopted by the Polish Parliament. The Act entered into force on 3rd May 2012. Among many changes introduced by this Act, an emphasis should be put on the new rules of presenting facts and evidence by the parties. The reform of 16 September aims at introducing a general framework which would facilitate a more efficient concentration of the procedural material. The goal of the new regulation consists in introducing a tool which would apply not only to general examination proceedings, but also to the so-called separate (special) procedures and to the non-litigious proceedings.The new regulation endeavors to encourage the parties to provide facts and evidence at an adequate time (i.e. as early as possible) and thus contribute to a smooth and efficient course of the proceedings.

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Posted on by Agnieszka Gołąb in Civil Procedure

Rights to a bus and the beginning of the end of formalised copyright transfer

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Copyright transfer, as regulated in Articles 41-68 of the Polish Act on Copyrights and Related Rights of 9 February 1994 (Polish Journal of Laws 2006.90.631 – hereinafter referred to as “Copyright Act”) is extremely strict and formalised. Current regulations are designed to protect the creator against business and the media industry, which are considered as the stronger party in copyright transfer relations. Any transfer must have specified fields of exploitation or will be declared invalid. Moreover, any inaccuracies have to be resolved in favour of the creator.

There is also an obligation to use a specific expression of intent to transfer copyrights. If not, according to Article 65 of the Copyright Act, there is a presumption that a given agreement is actually a licence agreement signed for a defined period of five years. So far, Polish jurisprudence has maintained that these regulations are unconditional, though a recent Supreme Court judgment of from 15 November 2012 (V CSK 545/11) stated that in some circumstances the strict rules of copyright transfer can be alleviated. Read more

Posted on by Jan Wosiura in IP Law

The 1987 Sino-Polish Treaty on Legal Assistance in Civil and Criminal Matters is Not Applicable to Judgments of Hong Kong

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By an order made on 6 March 2012, the Court of Appeal dismissed the complaint of V. M., filed against the order of the Regional Court in W. declaring the judgment of a District Court of the Special Administrative Region of Hong Kong to be enforceable in Poland. An appeal in cassation was lodged with the Supreme Court against the former order by V. M.

The appeal was based on two major grounds: a violation of Article 16 of the 1987 Treaty between the People’s Republic of Poland and the People’s Republic of China on legal assistance in civil and criminal matters in conjunction with Articles 27 and 29 of the Vienna Convention on the Law of Treaties, and a violation of the relevant provisions of the Polish Code of Civil Procedure relating to the recognition and enforcement of foreign judgments. Read more

Posted on by Szymon Zaręba in International

Liability of Legatees of Specific Bequests for Estate Debts under the Polish Law of Succession

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The Act Amending the Civil Code and Several Other Acts of 18 March 2011 (Dz.U. No 85, item 458) introduced the construction of a specific bequest to Polish law. This institution – based on the Roman law concept of legatum per vindicationem – was not regulated in the Civil Code of the Republic of Poland of 23 April 1964 (the Polish Civil Code, CC) nor in the Decree of 8 October 1946 – the Law of Succession (Dz.U. No 60, item 328 as amended), due to the fact that the Polish Codification Commission decided to give stronger protection to creditors of the deceased than to legatees. The Polish legislator, when deciding to introduce the construction of a specific bequest into the Civil Code, also passed on the opportunity to explicitly regulate deathbed donations (donatio mortis causa) or the testamentary division of the inheritance.

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Posted on by Witold Borysiak in Inheritance

Actio de effusis vel deiectis – the boundaries of flexibility

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Article 433 of the Polish Civil Code embraces the classical construction of liability for damages caused by objects or liquids falling out from a room. Following the classical pattern of the Roman actio de effusis vel deiectis, the Code tightens considerably the liability in comparison to Article 415 CC, setting out a general obligation to compensate for damage caused by an unlawful deed, as long as the culprit remains in the wrong. The peculiar tort in question, on the other hand, awards the right to claim compensation from every person who occupies the room, regardless of their fault (which clearly rates this provision in the Polish doctrine under what is known as “liability upon the risk basis”). Among the relieving circumstances, the statute rates only force majeure, the exclusive fault of the victim or a third party for whose deeds the resident does not bear liability. Read more

Posted on by Mateusz Grochowski in Contract Law

The Regulation of Motherhood in the Polish Family and Guardianship Code

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The regulation introduced to the Polish Family and Guardianship Code by the law of 6 November 2008, which entered into force on 13 June 2009 (the newly added section “Motherhood” encompassing Articles 619 – 6116; Journal of Laws of 2008 No 220 item 1431), is entirely devoted to the hitherto ignored issue of maternal descent. The reform is primarily a somewhat preventive reaction to the expansion of assisted reproductive technology (ART), which enables a woman who is either unwilling or incapable of carrying and giving birth to a child to provide her egg for fertilisation, which is then planted into another woman’s womb. One of the major social effects of the new technique is the possible split of the natural motherly “functions”, hitherto vested in one person, between the genetic mother, who provides the egg for insemination, and the biological, or surrogate mother, who carries and bears the baby.

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Posted on by Jakub Petkiewicz in General Issues