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Legal Mechanisms to Ensure the Activities of Economic Entities: Collective Monograph / ISMA University Legal mechanisms to ensure the activities of economic entities Collective monograph ISMA University Riga (Latvia) 2016 1 2 Saimniekojošo subjektu darbības tiesiskais mehanisms Kolektīva monogrāfija Informācijas sistēmu menedžmenta augstskola Rīga (Latvija) 2016 3 UDK 346.2 Legal mechanisms to ensure the activities of economic entities: collective monograph / ISMA University. – Riga, 2016. – 192 p. Authors of study within the framework of monograph come to conclusion about the need to improve legal mechanisms functioning of economic entities with respect to accounting policies, tax optimization, restructuring accounts payable, use of land resources. Authors identified the most important factors that hinder the implementation of European and international legislation on the protection of consumers' rights, activities of state bodies, implementing decisions of courts, public procurement system. Research results are also considering the problems of right to acquire a nationality, activity of local self-government of territorial units, resolution of international conflicts. Results obtained during the research can be used in criminal justice system with respect in process to protect the interests of economic entities, detention of suspects, investigation of criminal cases in some countries. Results can be used by students and young scientists on legal regulation of activity of business entities, improve the current legal framework, implementation of European and international legislation, effective functioning of judicial system. Reviewer: Marga Zhivitere – Dr. oec., Academician, Professor, Chief Researcher, Centre for Entrepreneurship Innovation and Regional Development, Ventspils University College, Latvia International scientific editoral board: Marcin Szewczak – Doctor Hab. in Law, Chief of Department of European Union Law, Faculty of Law, Canon Law and Administration, The John Paul II Catholic University of Lublin, Legal Counsel, Director of Cross-Border Cooperation Centre Local Government, Poland Polina Nesterenko – PhD in Law, Lawyer, Corporate Administrator, Eurofast, Cyprus The collective monograph is approved for publication at the meeting of the Scientific Council of the Information Systems Management University, Business Institute of 23 May 2016, Minutes No. 2-16. Reproduction or citation reference is mandatory. © ISMA University, 2016 ISSN 1822-8658 (print) 4 Legal mechanisms to Contents ensure the activities of economic entities Chapter 1 CONSTITUTIONAL LAW, MUNICIPAL LAW ………………..... 8 Gołowkin-Hudała M., Wilk A. The right to acquire Polish citizenship by children – selected issues …………………………...………………..………………...……… 8 Mączyński P., Płaszowska R. Legal framework for economic activity of self-government units in Poland ………………………………………………………..…… 28 Chapter 2 INTERNATIONAL PUBLIC AND PRIVATE LAW ……….....… 37 Banchuk-Petrosova O. Uno as a mediator in resolving international conflicts ………....… 37 Chapter 3 LAW OF THE EUROPEAN UNION ………………….…..…….... 50 Bezpartochnyi M. European model of consumer protection ……………………..….. 50 Shelever N. The experience of the EU countries on the activity of state bodies which implement the decision of the courts, and its embodiment in the legislation of the Ukraine ……………………………...……... 66 Chapter 4 ENVIRONMENTAL, LAND, AGRICULTURAL LAW ………... 75 Andryeyeva N., Bulysheva D. Institutional basis of the recreational land use sustainable development in urban agglomerations .………………………..…. 75 5 Berezin A., Berezina L. Formation legal ambushes of land use ………………...……....…. 84 Chapter 5 COMMERCIAL LAW AND PROCEDURE …………….........…. 92 Dzhabrailov R., Malolitneva V. Harmonization of Ukraine’s public procurement system with the eu standards: the concept of special and exclusive rights …….......…. 92 Goicovici J. Remedies for non-performance in business to consumer contracts ……...........................................................................................…. 104 Janik E. Protection of the economic value of an enterprise and the respect of creditors’ rights in restructuring …………...……………........…. 113 Reznikova V., Orlova O. The accounting policy of the enterprise entity: a legal aspect ………………………………………………………………….... 122 Rylski M. Non-competition agreements in the Polish legal system as a way of safeguarding the interests of employers ……………………….... 136 Chapter 6 ADMINISTRATIVE LAW AND PROCESS, FINANCIAL, BANKING, TAX, TRADE, INFORMATION LAW ………...…. 147 Bărbuţă-Mişu N. Tax optimization – a legally way to reduce the fiscal impact in firms activity ………………………………………………...……….... 147 Janik M. Global administrative law – a voice in the discussion ……..….... 156 6 Chapter 7 CRIMINAL TRIAL, CRIMINALISTICS, OPERATIVE-SEARCH ACTIVITY, SHIP EXAMINATION, SHIP AND LAW ENFORCEMENT AGENCIES ………………………………..…. 165 Gloviuk I. Provisional seizure and attachment of property in criminal proceedings in context of protection of business entities’ interests ………………………………………………………..……..….... 165 Makarenko E. On the concept of detention of suspects in a criminal process of Ukraine ……..………………………………………………….... 173 Szabó K. Some thoughts about codification proposals regarding the deadline of investigation in Hungary ………………………………...….... 183 7 Chapter 1 CONSTITUTIONAL LAW, MUNICIPAL LAW Gołowkin-Hudała Magdalena PhD, University lecturer, Head of Clinic Law THE RIGHT TO ACQUIRE Wilk Aleksandra POLISH CITIZENSHIP BY PhD, Faculty of Law and CHILDREN – SELECTED Administration ISSUES Opole University Poland Aleksandra P. was born on 17th August 2003 in Poland as an illegitimate child of Natalia P. and Krzysztof T. The minor’s mother is a Ukrainian citizen, whereas her father -– Krzysztof T. is a Polish citizen. On 7th September 2004, Krzysztof T. accepted the minor Aleksandra P. in front of the Head of the Registry Office in Opole. Due to the fact that this fact took place after a year from the Aleksandra’s birth, on the basis of the Act on Polish Citizenship [1], a child is not entitled to Polish citizenship only on the basis of the fact that the child’s father is Polish. The competent voivode with reference to Article 7 (1) of the Act which was binding at that time (which is currently Article 6 (1)) [2] and judgments of the Province Administrative Court in similar cases, refused to issue a document confirming that the minor Aleksandra P. had Polish citizenship.[3] Similarly, Kinga D., born on 17th July 1991 in Poland, was not granted the right to be a Polish citizen [4]. The minor’s mother is Oleksandra V., a Ukrainian citizen. Wiktor P., her mother’s husband, also a Ukrainian citizen, was entered into her birth certificate as her father. By the judgement of the District Court as of 2nd July 1997 in Ukraine, it was acknowledged that Wiktor P., the mother’s husband, is not the child’s father. The matter of paternity was finally settled by the judgment of the District Court as of 5th February 2001, according to which the Court stated that Artur D., a Polish citizen, is the child’s father. The determination of the father in this case also took place after 8 a year from the child’s birth and it was the basis for the refusal to issue a document confirming the acquisition of Polish citizenship by the minor. Finally, by judgement as of 27th October 2005the Supreme Administrative Court refused to grant Kinga D. the right to Polish citizenship. The legal basis to settle the legal situation of children born outside marriage is currently Article 6 of the Act on Polish Citizenship, pursuant to which: 1. “While deciding on the citizenship of a child, changes in the determination of the child’s parent(s) and of the parent(s) citizenship shall be considered provided they occurred within one year from the day of the child’s birth. 2. Changes to paternity establishment arising from a court ruling following an action for the determination of paternity or an action for the annulment of an acknowledgment of paternity shall be considered when determining the child’s citizenship unless the child has already came of age or with the child’s consent when the child reaches the age of 16” [5]. It is necessary to pay attention to the fact that in spite of the recent amendment of the Act, the wording of this provision was not changed [6]. However, it is worth highlighting the fact that this provision differentiates the legal situation of children in the scope of acquiring the Polish citizenship depending on the way in which their origins were determined. This differentiation is based on privileging children born in marriage, covered by the legal presumption of paternity with respect to the husband, in relation to children of undetermined paternity, in case of whom such a paternity establishment can take place not later than before the lapse of one year from the day of their birth. The aforementioned regulation limits children’s rights to acquire Polish citizenship in a considerable scope, even if at least one of parents is a Polish citizen, which was guaranteed by the legislator in Article 14 (1) of the Act on Polish Citizenship, and should be consistent with Article 34 of the Polish Constitution guaranteeing the acquisition of Polish citizenship by birth to parents who are Polish citizens (…).[7] Such an inequality is reflected by the fact that children of determined paternity at the moment of their birth will be able to acquire Polish citizenship, unlike children (also those coming from both Polish parents), in case of whom the paternity was determined after the lapse of 9 one year from the day of their birth. Pursuant to Act on Polish Citizenship, there
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