Studia Prawnicze KUL

On the need to guarantee deposits of local government units – a discussion against the resolution of Podkarpacki Bank Spółdzielczy in Sanok

Ewa Kowalewska — 2024-12-20

Local government, as a form of organizing local public life, participates in the exercise of public authority. Local government units (hereinafter LGUs) run their own financial management and use specific financial outlays to carry out their responsibilities. They are also participants in the financial market and keep their free funds in bank accounts. The research conducted for the purposes of this study concerned the effects of excluding local government units from the deposit guarantee system. It attempts to assess the lack of guarantee protection of local government units in the context of compulsory restructuring conducted by the Bank Guarantee Fund (hereinafter BFG). The dogmatic-legal method and the case study method were used. The research results allow us to conclude that the lack of protection of local government deposits is an important problem, and the applicable legislation does not provide due procedures, for example, in the selection of the right bank.

Characteristics of service by a court enforcement officer in Polish civil proceedings in the context of Article 139 (1) of the Code of Civil Procedure

Emil Kowalik — 2024-12-20

The institution of service by a court enforcement officer has significantly impacted the regularity of the service of court letters. The provisions introduced put an end to the so-called fiction of service on individuals, which meant that after two attempts at service, the court could assume that the document had been effectively served. It was recognised that this too often led to prejudice to the rights of defendants, in particular those who had not lived at the addresses indicated by the plaintiffs for a long time, and often, due to the correct (fictitious) service of payment orders, they were obliged to pay the fees resulting from final court decisions. Unfortunately, under the previous legislation, there were cases of claimants giving unverified or even false information. The legislator obligatorily introduced into the Polish legal order, in Article 1391 of the Code of Civil Procedure, the service of letters through a court enforcement officer if a statement of claim or any other writ of summons that gives rise to the need to defend the rights of the defendant has not been effectively served on the defendant under Articles 131–139 of the Code of Civil Procedure. Thus, contrary to the principle of routine service, the legislator imposed the resulting obligations not on the procedural authority but on the initiator of the proceedings in the case. This study aims to present the institution of the court enforcement officer in Polish civil proceedings and discuss its advantages and disadvantages. It is particularly relevant in light of the changes introduced by the amendment of the CCP of 9 March 2023, effective from 1 July 2023, which are designed to improve this type of service.

Environmental protection solutions and real estate tax

Paweł Majka — 2024-12-20

This study analyses real estate tax regulations in the context of taxation of land occupied for photovoltaic farms and taxation of electrostatic precipitators and hydropower plants in the context of ecological solutions. The analysis of the applicable regulations leads to the conclusion that there are solutions in the real estate tax that can be described as, to put it mildly, not encouraging “green” behaviour, an example of which is the highest rate of taxation of land occupied for a photovoltaic power plant, as well as taxation of elements of hydroelectric power plants. Also, the “randomness” of taxation of buildings in real estate tax causes doubts regarding the taxation of electrostatic precipitators, which results in the lack of the expected ecological incentive to install these facilities. The Author uses the method of dogmatic and legal analysis of court decisions.

On the dissonance between the legislature’s actual and declared objectives of shaping the agricultural system

Joanna Mikołajczyk — 2024-12-20

At the root of the restrictive legal regulations that were introduced in the Act of 11 April 2003 on Shaping the Agricultural System is the assumption of the special importance of agricultural real estate in the socio-economic system in Poland.

The objectives of the legislator can be reconstructed primarily based on the preamble to the Act, as well as the content of Article 1 of the UKUR At the same time, these goals should be interpreted as a set of values and substantive requirements for the formation of the agricultural system.

The preamble to the UKUR specifies the goals that the legislature intended the regulation to achieve, in particular: to strengthen the protection and development of family farms that are the basis of the agricultural system of the Republic of Poland, ensuring the proper development of agricultural land in the country, ensuring food security for citizens and supporting diversified agricultural activities conducted in accordance with environmental requirements and conducive to rural development.

On the other hand, the provision of Article 1 of the UKUR specifies expressis verbis the objectives to be achieved with the use of the instrumentality provided by the law, including among them: 1) improving the area structure of farms; 2) counteracting excessive concentration of agricultural real estate; 3) ensuring that agricultural activities are carried out on family farms by qualified persons; 4) promoting the development of rural areas; 5) implementing and applying agricultural support instruments; 6) active state policy.

The tasks expressed in Article 1 of the UKUR are not consistent with the conceptual assumptions expressed by the legislator in the preamble, which are accepted as justification for the legislative activity undertaken. The juxtaposition of the content of the preamble of the UKUR and Article 1 of the UKUR with the political and legal environment in which the law operates, allows one to conclude that there has been a dissonance between the actual and revealed intentions of the legislator’s action.

The normative significance of the valuation report in light of the resolution on disposing of real estate under a “premises in exchange for land” settlement

Szymon Słotwiński — 2024-12-20

With effect from 1 April 2021, the Act of 16 December 2020 on Disposing of Real Estate under a “Premises in exchange for Land” Settlement entered into force. This act introduced a new model of trading in real estate owned by communes and districts, which allows for a non-monetary settlement of part of the transaction. Article 4(1) of the act identifies the first step necessary to manage local government’s real estate, which involves adopting a resolution by the competent constituting body on disposing of real estate under a “premises in exchange for land” settlement. However, crucial for the present study is paragraph 2 of the said article. According to this provision, a draft resolution specifying the rules for disposing of real estate under a “premises in exchange for land” settlement shall include a valuation report determining the value of such real estate, drawn up by a property valuator not earlier than three months before submitting this draft resolution to the council. In the author’s opinion, two research problems are associated with the current content of Article 4(2), pertaining to 1) the impact of the validity period and purpose of the valuation report on the defectiveness of the resolution; 2) the consequences of integrating the valuation report with the content of the draft resolution that lays down rules on disposing of real estate under a “premises in exchange for land” settlement in terms of copyright matters. The dogmatic method was used during the research.

Calculation of tax income of entrepreneurs – possible prospects and main problems of implementation of the book-tax conformity concept in the Polish system

Maria Supera-Markowska — 2024-12-20

According to book-tax conformity (BTC) concept, financial accounts are authoritative for tax purposes. Thisconcept is used in some countries, while in others (including Poland) – it is not. Currently and among other aspects, due to some EU and OECD projects, this situation most probably will have to change, at least to some extent. It is in this regard that the possible prospects and main problems of implementation of the book-tax conformity concept in the Polish system are analysed in this article.

Analysis of the right to live in a clean and healthy environment under Vietnamese law and suggestions on how it could be improved

Tran Cong Thiet — 2024-12-20

In October 2021, in line with previous international treaty obligations, in particular the 1972 Stockholm Declaration, the United Nations Human Rights Council’s Resolution 48/13, granted all people the right to live in a clean and healthy environment. Article 43 of the Vietnam Constitution affirms that a clean, healthy, and sustainable environment is a human right for all, not just a privilege for some. Nevertheless, environmental pollution and its devastating impact on local communities throughout Vietnam still generally continue unabated due to the failure of national and local authorities to adequately monitor polluters, enforce environmental protections, and prosecute offenders. The purpose of this article is to outline some of the reasons why problems exist in the implementation of current Vietnamese environmental law and provide some suggestions on how many of these challenges could be overcome.

The possibility of amending an interpretative decision issued by ZUS – comments "de lege lata" and "de lege ferenda"

Jacek Wantoch-Rekowski — 2024-12-20

This article discusses amending an interpretative decision issued by the Social Insurance Institution (Zakład Ubezpieczeń Społecznych, ZUS). The study aimed to present proposals for legislative changes in interpreting the contribution rules. This article uses the classic research method for legal sciences, that is, the dogmatic legal method. The provisions that currently allow for the amendment of a decision as a result of the resumption of proceedings are analysed. The authors investigated an analogous institution at the level of tax law and, as a result of their research, proposed an amendment to the regulation that makes it possible to change an interpretative decision of the Social Insurance Institution after it has been found to be incorrect. By enabling faulty interpretative decisions to be eliminated from legal circulation, the protective function of interpretations will be strengthened in relation to payers of social security contributions who have the status of entrepreneurs.

Changes in the rules of taxation of personal income in the light of selected tax principles

Katarzyna Wojewoda-Buraczyńska — 2024-12-20

This study analyses the directions of changes in the rules for taxing personal income introduced in 2021–2022 in the light of selected tax principles. The structure of the personal income tax in force since 1992 has been based on certain assumptions, referred to in the tax law doctrine as tax principles. Over thirty years, the shape of income tax has undergone numerous changes, which have led to a gradual departure from the initially adopted assumptions. The study assesses these changes from the perspective of the principles of equality, certainty, prohibition of retroactive law, protection of fairly acquired rights, statutory basis for taxes, clarity, stability and cheapness. The method used was dogmatic-legal research. As a result of the analysis, it can be stated that the changes introduced in the rules for taxing the income of natural persons, especially those implemented in 2021–2022, significantly violate tax principles, in particular the principle of equality and tax certainty.

Growing impact of third-parties in VAT taxation – insights from digital platforms

Robert Zieliński — 2024-12-20

This article examines the increasing involvement of third parties, particularly digital platforms, in VAT taxation. It discusses the shift from traditional state-centric tax collection to a model where private entities play a crucial role in ensuring tax compliance. It highlights the EU VAT’s “deemed supplier” regimes, which impose increased liability on digital platforms facilitating transactions, and explores the potential advantages and disadvantages of this approach.

A theoretical model for the use of participatory budgeting in implementing an environmental policy and combating climate change

Jakub Baranowski — 2024-12-20

Modern states have a responsibility to run an effective climate policy by adapting solutions that will have a long-term positive impact on the surrounding environment. This also applies to the state of the law, which must respond to the changing reality. An important research problem addressed in this study is whether there is a regulation in Polish legislation that allows the functioning of so-called green participatory budgeting. With this in mind, I present the following research questions: Can participatory budgeting as a public participation tool be a basis for an effective model of engaging residents in the fight against climate change? Does the Polish legal system stipulate the creation of climate-related participatory budgeting? Does the Polish legislation need a new regulation on green participatory budgeting, through which only pro-climate projects will be created? Providing answers to these research questions was possible after conducting an analysis based on the following research methods: interpretation of the law in force and an analysis of the evolution of law in time. This allowed the following conclusions: participatory budgeting (PB) is an appropriate form of public participation, thanks to which pro-climate tasks can be developed. The current legal regulations in Poland relating to participatory budgeting should be described as general, which, based on the analysis carried out here, was found to be insufficient and incompatible with the social reality, which aims to have pro-climate proposals and to implement them. Therefore, the legislator must intervene and allow citizens to submit such projects under a separate procedure for climate participatory budgeting.

Conventions for the avoidance of double taxation as acts of international and domestic law: consequences of applying tax agreements with differences between official language versions. Commentary to the verdict of the Polish Supreme Administrative Court of 18 April 2023, II FSK 400/21

Joanna Homańczyk — 2024-12-20

The author discusses the verdict of 18 April 2023 issued by the Polish Supreme Administrative Court in case II FSK 400/21 concerning the obligations of a Polish entity (tax remitter) in the area of uncollected flatrate corporate income tax – also referred to as withholding tax or WHT – on payments made from Poland to a Swedish entity. The author aims to express approval for the standpoint taken by the Court by underlining the dogmatic correctness and axiological value of the commented verdict, as well as recognising it as a notable example of the voice of reason amongst rather inconsistent rulings in similar cases. The main issue the Court considered was the interpretation of Article 11 section 1 of the Convention of 19 November 2004 between the Government of the Republic of Poland and the Government of the Kingdom of Sweden for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income. At the time when the events of the case took place, three language versions of Article 11 section 1 of the Convention existed, and the Polish version – contrary to Swedish and English – did not contain the “beneficial owner” clause. The consequence of the Polish tax remitter assuming that there were no grounds to examine the fulfilment of this condition was, in principle, that no tax was collected on payments made to Sweden, irrespective of whether or not the recipients were the beneficial owners of the receivables. This approach was challenged by Polish tax authorities, according to whom the comparison of different language versions of the disputed provision should effectively lead the tax remitters to notice and apply the beneficial owner condition. In the verdict, the Supreme Administrative Court mostly focuses on the results of discrepancies between the linguistic versions of the Convention, nevertheless, the judgment itself is also a valuable voice in the discussion on withholding tax, in particular the position and function of the tax remitter in the tax system, as well as the scope of the obligations that can reasonably be imposed on it within a democratic state under the rule of law.

Understanding the requirement to document the receipt of a donation from close relatives in order to benefit from inheritance and gift tax exemption (Article 4a (1) (2) of the Act on Inheritance and Gift Tax). An approving commentary on the resolution of the Supreme Administrative Court of 20 March 2023, III FPS 3/22

Paweł Mańczyk — 2024-12-20

The study approvingly refers to the resolution of the Supreme Administrative Court of 20 March 2023, III FPS 3/22, adopted at the request of the Commissioner for Human Rights, on the formal and technical requirements that a taxpayer must meet to obtain an inheritance and gift tax exemption on account of receiving a donation of funds from close relatives. Contrary to the prevailing line of jurisprudence, the Supreme Administrative Court stated in the above-mentioned resolution that it is not sufficient for the donee to deposit the donation to a bank account on behalf of the donor in order to prove entitlement to a tax exemption. According to the Supreme Administrative Court, this does not make it possible to identify the parties to the donation agreement and does not achieve the purpose of the obligation to document cash donations, i.e. to tighten the tax system and prevent activities aimed at introducing cash of undetermined origin into circulation. The above-mentioned resolution indicates that the condition of documenting the acquisition of a donation is fulfilled only when the donor makes a transfer to the recipient’s bank account (or uses a postal order). This study examines the normative content of the obligation to document the acquisition of a donation of funds, aiming to dispel doubts raised by the linguistic interpretation of Article 4a (1) (2) of the Act of 28 July 1983 on inheritance and gift tax, which establishes this obligation. A dogmatic-legal research method is used in the study. The result is the claim that a recipient’s payment to their own bank account does not meet the conditions of the exemption regulated in Article 4a of the above-mentioned Act, which prompts the author to positively assess the commented resolution of the Supreme Administrative Court.

Diary. Calendar of major scientific events with the participation of academic staff of the Faculty of Law, Canon Law and Administration of the John Paul II Catholic University of Lublin January – March 2024

Paweł Bucoń — 2024-12-20

Bibliography of academic staff of the Institute of Law of the Faculty of Law, Canon Law and Administration of the John Paul II Catholic University of Lublin for 2020

Damian Bara — 2024-12-20

Bibliography of academic staff of the Institute of Canon Law of the Faculty of Law, Canon Law and Administration of the John Paul II Catholic University of Lublin for 2020

Kinga Dróżdż-Chmiel — 2024-12-20

10th Polish-Italian Law Colloquium: “Security and Democracy,” Bari, 19–20 October 2023

Ilona Grądzka — 2024-12-20

12th Scientific Seminar of the Department of Civil Procedure of the John Paul II Catholic University of Lublin, Milan, 22 June 2024

Dominika Wójcik — 2024-12-20