Białostockie Studia Prawnicze Zeszyt 25 nr 1
Artykuły:
Wojciech Radkiewicz
Dopuszczalność zatrudnienia nauczyciela akademickiego na podstawie umowy o dzieło
DOI: 10.15290/bsp.2020.25.01.01
Abstract: The presented study raises the issue of the admissibility of employing academic teachers on a basis other than an employment relationship, in particular based on one of the named civil law contracts, which is a contract for specific work. The author made the determination whether, due to the type of actual activities performed by the academic teacher, including in particular didactic classes, it is permissible to perform these activities on the basis of a result contract characterized by the need to specify the result that should be obtained by the academic teacher. The author’s considerations lead to the conclusion that the legislator allows the possibility of employing academic teachers on the basis of civil law contracts, including contracts for specific work; however, it should be remembered that in each case, before establishing a given legal relationship, the parties should first consider whether the specificity of the contract and the work will correspond to the actual content of the legal relationship between the university and the academic teacher. This is to avoid the situation where the academic teacher later questions that the contracting parties are not actually a work contract but, for example, an employment contract.
Keywords: academic teacher, work contract, didactic activities, achieving a result, basics of employing an academic teacher
Słowa kluczowe: nauczyciel akademicki, umowa o dzieło, zajęcia dydaktyczne, osiągnięcie rezultatu, podstawy zatrudnienia nauczyciela akademickiego
Zakres stron: 11-21
Tomasz Bakalarz
Fikcja prawna uznania wykonywania obowiązków nauczyciela akademickiego za działalność twórczą
DOI: 10.15290/bsp.2020.25.01.02
Abstract: Polish tax law contains favourable regulations on the income obtained from the use of copyrights. An employee, for example, an academic teacher, can also take advantage of these preferential conditions if s/he performs creative activities as part of her/his professional duties.
The preferential settlement of the payroll tax on the employment of an academic teacher raises doubts from the point of view of tax authorities. What is problematic is how to determine the scale of creative work and the amount of remuneration strictly for this type of work. In the new Law on Higher Education and Science, the legislator intends to resolve these doubts by assuming that performing teaching duties is a creative activity. Consequently, all remuneration is due for the work of the creator and is taxed more favourably.
In this text, the author makes a critical analysis of the legal fiction contained in Article 116 section 7 of the Law on Higher Education and Science. The author assesses the effectiveness of legal regulations in achieving the purpose of the Law – resolving doubts concerning preferential taxation of remuneration for the work of an academic teacher.
Keywords: duties of academic teacher, creative work, tax deductible expenses
Słowa kluczowe: obowiązki nauczyciela akademickiego, działalność twórcza, koszty uzyskania przychodu
Zakres stron: 23-31
Aleksandra Bocheńska
Uprawnienia rektora w związku z postępowaniem dyscyplinarnym wobec nauczyciela akademickiego
DOI: 10.15290/bsp.2020.25.01.03
Abstract: The main area of interest of this paper focuses on the rector’s area of competence in disciplinary procedures in the case of academic teachers. This paper is an attempt to characterize and assess the rector’s competence as far as disciplinary responsibility of an academic teacher is concerned. The attempt to evaluate the controlling mechanism of the rector’s legal decisions was also undertaken. The legal range of the rector’s disciplinary competence is relevant from the point of view of the correct and effective decision making with regards to public higher education institution duties.
Keywords: academic teacher responsibility, disciplinary procedures, rector’s competence
Słowa kluczowe: odpowiedzialność nauczyciela akademickiego, procedura dyscyplinarna, uprawnienia rektora
Zakres stron: 33-47
Izabela Florczak
(Nie)zależność doktoranta w kształtowaniu drogi badawczej na podstawie
ustawy Prawo o szkolnictwie wyższym i nauce
DOI: 10.15290/bsp.2020.25.01.04
Abstract: Pursuant to the Act on higher education and science, PhD students are educated at a doctoral school. The PhD student prepares a dissertation under the supervision of a supervisor (sometimes also an auxiliary supervisor) leading his scientific path based on the training program and individual research plan. The research work of the doctoral student remains independent as it was in the previous legal reality. However, the degree of PhD students` impact on the research path is much greater. A PhD student remains part of the institutionalized system, in which he has to perform certain duties and through which he is evaluated for the progress of his research. The PhD students` dependence is also related to non-legal factors – individual personnel relations. The presented text covers the situation of the doctoral student on all the above mentioned criteria creating a coherent picture of his (in)dependence in shaping the research route.
Keywords: doctoral school, PhD student, promoter, training program, individual research plan
Słowa kluczowe: szkoła doktorska, doktorant, promotor, program kształcenia, indywidualny plan badawczy
Zakres stron: 49-58
Beata Rutkowska
Stosowanie art. 251 Kodeksu pracy w szkolnictwie wyższym
DOI: 10.15290/bsp.2020.25.01.05
Abstract: The Law on Higher Education and Science states that article 251 of the Labour Code which concerns the limitation of employment based on employment agreements for a definite time, on one hand, does not apply to first-time employed university teachers, to teachers for whom universities are not the main place of work nor teachers who are pensioners. On the other hand, the regulations of this article are still in effect with regard to the rest of university teachers and all other employees thereof. This solution cannot be positively evaluated due to its legislative inappropriateness in such aspects as excluding regulations concerning the limitation of employment based on employment agreements for a definite time and the results of exceeding those limits with simultaneous inclusion of regulations establishing exceptions to limits and employer’s obligations to implement them; and due to the legislation’s content such as inapplicability of article 251 of the Labour Code to the teachers for whom universities are not the main place of work and teachers who are pensioners, without adopting any type of mechanism excluding the excessive employment of these employee groups based on renewal of employment agreements for a definite time, as required by directive 99/70/EC. It is advisable to introduce changes in this field. It seems particularly worth noting that the proposal of enumerative determination in the Law on Higher Education and Science of cases in which university teachers could be employed under employment agreements for a definite time.
Keywords: Council Directive 99/70/EC, the Labour Code, employment agreement for definite time, limitation of employment based on employment agreements for definite time, higher education, employees of universities
Słowa kluczowe: dyrektywa Rady 99/70/WE, kodeks pracy, umowa o pracę na czas określony, ograniczenia w zawieraniu umowy/umów o pracę na czas określony, szkolnictwo wyższe, pracownicy uczelni
Zakres stron: 59-70
Anna Dubowik
Nowa regulacja stosunku pracy nauczycieli akademickich – zagadnienia sporne
DOI: 10.15290/bsp.2020.25.01.06
Abstract: The Law on Higher Education and Science of 2018 is the ninth act regulating the employment of academic teachers in Poland. This Act does not introduce a breakthrough in the model of employing academic teachers although it introduces significant changes. They concern the employment contract as the basis of the employment relationship or a new catalogue of academic teacher positions. The new regulations raise a number of doubts regarding e.g. the duties of academic teachers, the impact of public or private status of the university on the situation of employees and intertemporal issues. These issues were analysed in the article.
Keywords: academic teachers, university, employment relationship, employment contract, employees’ duties
Słowa kluczowe: nauczyciele akademiccy, uczelnia, stosunek pracy, umowa o pracę, obowiązki pracowników
Zakres stron: 71-87
Joanna Zaremba
Aksjologia prawa finansowego
DOI: 10.15290/bsp.2020.25.01.07
Abstract: Financial law is a separate, autonomous and interdisciplinary field of law that has evolved from administrative law. The subject of this area of law are primarily public finances based on a number of principles and institutions that have the right to perform public financial operations. The catalogue of public values under financial law is, however, open because the law is constructed in terms of certain values and their protection. It should be emphasized that the law indicates the proper system of values, in which human dignity and freedom are the most important. These values are the source of all rights, including financial law. The subject of axiology is the relationship between these values and the legal normative system. The purpose of this article is to apply broadly understood general and academic financial law, in the theoretical aspect and terms of functions and details. In the case of financial law, axiology focuses mainly on the essence and public values contained in financial law, while it can be considered that the catalogue of public values under financial law is open.
Keywords: axiology, financial law, public finances
Słowa kluczowe: aksjologia, prawo finansowe, finanse publiczne
Zakres stron: 89-98
Małgorzata Ofiarska
Pomoc udzielana przez jednostki samorządu terytorialnego jako wartość dopełniająca prawną instytucję współdziałania w samorządzie terytorialnym
DOI: 10.15290/bsp.2020.25.01.08
Abstract: Providing mutual financial aid and aid in kind by entities of the local self-government sector (local self-government units, their unions and associations) are conceptually related to the legal institution of cooperation in the sector. This work includes the analysis and evaluation of legal regulations, doctrine and judicial practice in scope of this least institutionalized form of cooperation. It has been determined that an entity providing such aid freely decides on its form and value, but in case of providing the aid it is obliged to follow the rules and mode defined by legislators. In the resolution the decision making body of the entity providing the aid in general defines the aid value and the task for which the aid is to be dedicated. The decisions shall be specified in the agreement signed between executive organs, the aid granting and the aid receiving entities respectively. The act reserves that the financial aid may only be in a form of a designated subsidy from the budget. The aid in kind may have more universal forms, e.g. transfer of a specific thing, performance of work or services. The provision of aid is a specific form of cooperation in the local self-government sector, and simultaneously it has a crucial impact on the protection and conservation of fundamental values giving base for the concept and functioning of self-government unions, such as: self-reliance, subsidiarity, decentralization, sense of solidarity with other self-government unions, responsibility and the formation of partner relations acting in common interest.
Keywords: local self-government, cooperation, partnership, aid in kind and financial aid, self-government budget
Słowa kluczowe: samorząd terytorialny, współdziałanie, partnerstwo, pomoc rzeczowa i finansowa, budżet samorządowy
Zakres stron: 99-114
Zbigniew Ofiarski
Założenia polityki pieniężnej Rady Polityki Pieniężnej a ochrona ustroju pieniężnego jako wartości publicznej
DOI: 10.15290/bsp.2020.25.01.09
Abstract: The assumptions of the fiscal policy, established and implemented by the organs of the National Bank of Poland, constitute a set of goals of a macroeconomic nature and instruments of their implementation. This work includes an analysis of valid legislation in order to determine the legal nature of the document and its importance for the protection of the constitutional value, which is the monetary regime of the Republic of Poland. The general findings included in the document are supplemented with the issued by the NBP implementing resolutions specifying the rules and mode of applying individual instruments of the fiscal policy. In scope of the formation of the fiscal policy assumptions the legislator assigns the main role to the Monetary Policy Council which is an organ of the NBP. The document is a crucial theme of the cooperation between the organs of the NBP and between the organs and State organs (Sejm, the Council of Ministers and the Minister of Finance). The basic goal of the cooperation is active protection of the public value in the form of the monetary regime and in a broad prospect to obtain financial stability of the State. The assumptions of the fiscal policy integrate the most important organs of the State in their actions for such a monetary regime that should ensure the proper value of money, planning predictability and rationality of decisions in economic matters, protection of real value of savings of the entrepreneurs and households as well as proper operation of the market.
Keywords: money, monetary regime, constitutional values, fiscal policy, state central bank
Słowa kluczowe: pieniądz, ustrój pieniężny, wartości konstytucyjne, polityka pieniężna, bank centralny państwa
Zakres stron: 115-128
Radosław Niwiński
Finansowanie publiczne infrastruktury sportowej a pomoc publiczna
DOI: 10.15290/bsp.2020.25.01.10
Abstract: The main objective of this article is to present an overall insight into the legal aspects related to public financing of a sport infrastructure in Poland. The research strives to draw attention to the importance of public financing in the sports sector and also to ensure a small breakthrough in the administrative process of granting and applying for state aid funds. The author highlights the possible negative implications of mistakes in the state aid scheme, in particular connected with the potential recovery of incompatible aid. The article includes theoretical and practical issues related to the rules of state aid in sports sector. The research is intended to propose an interpretation and application of the current state aid law in light with CJEU jurisdiction and the Commission’s decision-making practices. In the opinion of the researcher the final implications contribute to the better protection of the joint interest of Polish sports clubs and public authorities and to minimalization of the potential risk of EU sanctions.
Keywords: state aid, sport infrastructure, sports club, local authority
Słowa kluczowe: pomoc publiczna, infrastruktura sportowa, klub sportowy, samorząd terytorialny
Zakres stron: 129-140
DOI: 10.15290/bsp.2020.25.01.11
Abstract: The paper indicates the need to change and modify the definition of „administrative agreement” as a legal form of administration’s activity, constructed still in the legal system of the People’s Republic of Poland and limited by its political conditions and the then organizational structure of public authority. This definition has been functioning until now in administration science textbooks, despite the system changes and new challenges facing public administration connected, among others, with the implementation of EU funds, where this legal form of administration activity plays a particularly important role in the system of distribution of structural and cohesion funds on the territory of the Republic of Poland. This change in the doctrinal definition of an administrative agreement would consist in the fact that, while retaining its other elements, the change would concern the status of entities concluding agreements in regards to their „independence”. The current definition allows for the possibility of concluding such an agreement only with entities independent of each other, not being in the administrative subordination structure. On the other hand, the current legal regulations allow for the possibility of concluding such an agreement between entities that are dependent on each other, whether structurally, functionally or politically, though, for example, the possibility of filling managerial positions by a superior entity in an entity that is a party to such an administrative agreement.
Keywords: administrative agreement, structural Funds, Cohesion Fund, doctrinal definition
Słowa kluczowe: porozumienie administracyjne, Fundusz Spójności, fundusze strukturalne, definicja doktrynalna
Zakres stron: 141-160
Tinatin Zhorzholiani
Assessment of Corruption’s Impact on the Inflow of Foreign Direct Investment (in the Case of Georgia, Armenia and Azerbaijan)
DOI: 10.15290/bsp.2020.25.01.12
Abstract: The aim of this paper is to investigate the impact of corruption on the inflow of foreign direct investment (FDI) in Georgia, Armenia and Azerbaijan, from 2012 to 2018. The study attempts to answer the question: “What effect does corruption have upon the level of foreign direct investment inflow to a country?” Using the data from UNCTAD for foreign direct investment and Corruption Perception Index from Transparency International, for a period of 7 years, 2012-2018, we evaluated the specific impact of corruptions on FDI using GDP as control variable. A regression model was developed to establish the relationship between FDI and Corruption Perception Index. Co-integrating Regression analysis was carried out using relevant econometric techniques. The model is based on a theoretical approach found in academic literature This exploratory paper results confirm the majority of literature and show a negative significant relation between the variables analysed but at a lower intensity than expected.
Keywords: Foreign Direct Investment (FDI), Corruption Perception Index (CPI), Gross domestic product (GDP), Corruption
Zakres stron: 161-174
Recenzje:
Monika Latos – Miłkowska
Piotr Grzebyk, Od rządów siły do rządów prawa. Polski model prawa do strajku na tle standardów unijnego i międzynarodowego prawa pracy, Wydawnictwo Naukowe SCHOLAR, Warszawa 2019, ss. 272
DOI: 10.15290/bsp.2020.25.01.13
Zakres stron: 177-181
DOI:10.15290/bsp.2020.25.01.14
Zakres stron: 183-187