Acta Universitatis Lodziensis. Folia Iuridica <div style="text-align: justify;"> <p>At the beginning<em>&nbsp;Acta Universitatis Lodziensis. Folia Iuridica</em> presented articles of academics from Faculty of Law and Administration UŁ only. Since several years the articles are being published by all polish and foreign academics, too. Currently at the initiative of&nbsp;<em>Acta Universitatis Lodziensis. Folia Iuridica </em>Editors the articles have been grouped in the thematic structure and include not only jurisprudence issues from lawyers` point of view, but also philosophers, logicians, sociologists, psychologists, economists and at the same time becoming an interdisciplinary journal.</p> </div> en-US (Karolina Krzeszewska) (Firma Magis) Thu, 29 Dec 2022 15:41:52 +0100 OJS 60 Legal Model of the Protection of Self-Employment – Introduction to the Discussion <p>The main objective of the foregoing study is to introduce the reader to the issues of legal protection of self-employment in Poland, which was the subject of the IV National Scientific Conference from the series “Atypical employment relations” organized in Lodz on December 8–9, 2021 by the Center for Atypical Employment Relations at the Faculty of Law and Administration University of Lodz. This event was part of the promotion of a scientific grant carried out under the direction of Prof. Tomasz Duraj as part of an international project financed by the National Science Centre entitled: “In search of a legal model of self-employment in Poland. Comparative legal analysis”. The author presents his own reflections <em>de lege lata </em>and<em> de lege ferenda</em> on the optimal model of legal protection of self-employment in our country.</p> Tomasz Duraj Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 The European Autonomous Definition of a Worker and its Implications for the Self-Employed in the Sphere of Individual and Collective Labour Law <p>Currently, there is no clear definition valid throughout Europe that makes a clear distinction between genuine self-employed workers who work independently of a contractor and false self-employed workers.</p> <p>The 2006 ILO Recommendation takes a broad approach to the concept of “employment relationship” to enable action to be taken against false self-employment. In determining whether an employment relationship exists, the primary focus should be on the facts of the worker’s activity and remuneration, regardless of how the relationship is characterised in the contract.</p> <p>The EU’s so-called autonomous definition of a worker, as established by the CJEU, contains three main criteria to establish the existence of an employment relationship: whether the person performing the work acts under direction, the nature of the work (e.g. whether it is real, effective and regular) and whether remuneration is received for the work.</p> <p>Recent judgments of the CJEU lead to the conclusion that such a definition should be applied in all Member States in order to guarantee the effectiveness of employment law directives. This line of interpretation is further reinforced by the reference to the autonomous definition of worker in Directive 2019/1152 z on transparent and predictable working conditions in the European Union.</p> <p>The aim of the publication is to reflect on whether the application of this definition would mean that individual and collective labour law rights would also be extended to the ostensibly self-employed.</p> Joanna Unterschütz Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Work or Service on own Account? <p>The author analyses the problem of the nature of employment of entrepreneurs performing registered business activities. From the point of view of the types of employment provided for in Polish law the performance of self-employment by entrepreneurs should be qualified as employment of a civil law nature, because the subject of such activity can only be services, and not subordinate work. An entrepreneur is not allowed to enter into employment contracts in the course of business. On the other hand, services performed in the course of business activity may be qualified as work under the Constitution, which in Art. 24 states that work is under the protection of the state. This provision uses the concept of work in a broad sense. This means that certain constitutional standards of labor protection can, and even should, be applied to entrepreneurs, which, however, cannot lead to the equalization of their status with that of employees.</p> Jakub Stelina Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Self-Employed – Still an Entrepreneur or an Employee? About the Dilemmas of the Conflict of Economic Freedom and Employee Protection <p>Self-employed is not and cannot become a worker. The same reservation applies to an employee who has decided or been forced to run a self-employed sole trader. For this reason, according to the authors, the idea of crossing the border between economic and labour law in the current legal state cannot be implemented.</p> Sebastian Koczur, Kinga Piwowarska, Andrzej Marian Świątkowski Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 The Employee Model of Self-Employment <p>The author considers the legitimacy of constructing a new concept of employment of self-employed natural persons. It is based on the regulations of the specific status of these people who perform this type of work in some Member States of the European Union introduced into the labour law. He is analyzes the basics and criteria used by the judicature of the Court of Justice of the EU. It focuses on a specific and real sole proprietorship, consisting in the paid provision of services performed for and under the direction of another person – employer/entrepreneur or entity. He comes to the conclusion that there is no need to construct complex, separate legal concepts in which self-employed persons could act as “employees.”</p> Andrzej Marian Świątkowski Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Reflections on the Legal Concept of Self-Employment in the Drafts of Labor Code <p>The article concerns the projects of the labor code in the field of forms of securing the self-employed. In 2006 and 2018 were created two projects of the Labor Code. The authors of them tried to protect self-employed persons in the best possible way. The first Commission, which worked in the years 2002–2006, accepted in principle atypical forms of employment on the labor market. A completely different view in this regard was presented by the Commission from 2016– 2018, which perceived employment outside the employment contract as a way of circumventing the provisions of labor law, a symptom of a pathology of the labor market. However, the forms of securing self-employed workers presented by both Committees are in fact very similar.</p> Monika Gładoch Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Legal Status of Persons Performing Work Through Internet Platforms – In Search of a Model of Protection <p>The COVID-19 pandemic has highlighted numerous problems regarding the legal protection of persons performing work via online platforms, resulting, inter alia, from the formal qualification of these workers as self-employed by the platforms. The lack of job stability, protection in terms of salary, social protection or even safe and healthy working conditions caused a wave of protests in many European countries and resulted in rich jurisprudence defining the criteria of determining the legal status of persons performing work via online platforms. It also prompted the EU legislator to improve the working conditions of this group of workers, as evidenced by the draft of the EU directive on the improvement of working conditions through online platforms published in December 2021. The aim of this study is to present the legal dilemmas related to the determination of the legal status of persons providing work via online platforms with reference to the jurisprudence of selected European countries and the solutions proposed by the European Commission. A critical assessment of the proposed regulations leads to a reflection on the appropriate model of protection for these persons, beyond the dichotomous division into employee and non-employee status.</p> Kamila Naumowicz Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Possible Ways of Regulating Labour Protection of Economically Dependent Self-Employed Workers <p>The necessity to cover economically dependent self-employed persons, i.e. a group of people providing work as part of their economic activity, based on contracts that do not lead to an employment relationship, but in conditions similar to employees, with labour protection regulations should not raise doubts, in particular in the context of Art. 24 of the Polish Constitution. The article aims to briefly present the possible ways of regulating this subject matter, in particular from the system perspective, and to present the approach that is, in the author’s opinion, the optimal one. Proposals in this respect include various concepts of protecting economically dependent self-employed workers, ranging from maintaining the <em>status quo </em>to including economically dependent self-employment in the scope of the employment relationship. However, none of these extreme concepts seems to be correct and it is necessary to look for a golden mean. It seems most desirable to distinguish the self-employment in question as a separate legal category in conjunction with the granting of certain rights to members of this group. Adopting this direction will allow for the delimitation of economically dependent self-employment and the employment relationship connected with providing the required protection to entities providing work in this form, adapted to its specificity.</p> Kinga Moras-Olaś Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Economically Dependent Standard as a Criterion of Employment Rights for Semi-Employed Workers in Poland <p>The current legal status protects only employees within the meaning of Art. 2 of the Labor Code, and in a small part of contractors, it contributes to the deterioration of the situation of semi-dependent/self-employed workers, resulting in effects that are entirely opposite to the intended ones, i.e., the inclusion of the axiology of the protective function into non-employee forms of work. Poland does not have its own scope of protective provisions similar to the labor code provisions that would apply to economically semi-dependent/self-employed workers. In this article, is analyzed the concept of the economically semi-dependent/self-employed as a starting point for granting them certain employment rights. Two main conclusions can be drawn: first, the economically semi-dependent self-employed is not an intermediate category between workers and the self-employed but a subcategory of the self-employed. Secondly, failure to grant them protection by Polish labor law will have a negative impact on the extension of collective rights of the self-employed.</p> Łucja Kobroń-Gąsiorowska Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Self Employment and OHS Protection <p>The article deals with the topic of self-employment in the context of the guarantees in force in Poland in the field of occupational health and safety. The Author analyzes the current regulations of the Polish Labour Code in this respect from the perspective of the self-employed and indicates their shortcomings. She also formulates <em>de lege ferenda </em>postulates in order to propose a model approach to the right to safe and hygienic working conditions for dependent self-employed workers. She recognizes the legitimacy of differentiating the right to health and safety for the self-employed and the employees in terms of individual benefits.</p> Małgorzata Mędrala Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Self-Employment and Protection from Mobbing and Discrimination <p>Work under civil law contracts has become increasingly popular in recent years. Primarily young people (entering the labour market) are employed based on civil law contracts. A similar phenomenon is a gainful activity within the so-called self-employment under conditions of economic dependence on one’s contractor. Awareness of the dissemination of non-employment forms of employment has led the authors to consider possible forms of protection against mobbing and discrimination in the case of self-employment. These phenomena (mobbing and discrimination) are generally associated with the relationship between employer and employee. However, the mere fact of a different type of employment does not exclude the risk of ‘mobbing’ or discrimination. In such circumstances, it is almost natural to explore possible forms of protection. The authors have analysed the existing legal regulations in search of available solutions that can provide adequate protection for the self-employed.</p> Michał Barański, Błażej Mądrzycki Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Protection of the Self-Employed to the Extent of Non-Discrimination and Equal Treatment – An Overview of the Issue <p>The subject of the foregoing study is the analysis of the legal regulation of the protection of the self-employed to the extent of non-discrimination and equal treatment. The author positively assesses the very fact of adopting the Equality Act, which contributed to raising the standards of protection of self-employed people in this area. Unfortunately, however, a number of detailed regulations included in this act raise justified doubts and deserve criticism. Moreover, some provisions of the Equality Act are inconsistent with international agreements binding Poland, and also violate Art. 32 of the Constitution of the Republic of Poland. This leads to an unjustified lowering of the standards of protection against discrimination and unequal treatment of the self-employed in relation to the legal situation in which employees find themselves. A critical analysis of the Equality Act shows the far-reaching inconsistency of the legislator and the inconsistency of the entire system of protection against discrimination. This, in turn, makes this law ineffective, as shown by statistics in which a very small number of cases are brought to court and end up with a positive outcome for the person discriminated against.</p> Tomasz Duraj Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Right to Rest of the Self-Employed under International and EU Law <p>The main objective of the foregoing article will be to determine whether a self-employed person has the right to rest under international and EU law. According to the research conducted by the OECD, in 2021, the self-employment rate for all countries reached 16.5% of all employed persons. Therefore, bearing in mind that self-employed persons constitute such a large group of all people who provide paid work, it is justified to consider whether they may be entitled to the appropriate protective guarantees, also in the area of the right to rest. Appropriate rest includes not only the right to a holiday, but also a period of daily and weekly rest and the limitation of the maximum working time. The right to rest is also very important in terms of work efficiency and safety in the workplace. Therefore, efforts should be made to ensure that every contractor, including the self-employed, has the right to a proper rest in order to regenerate his strength and exercise the right to health and safety, which every person is entitled to according to international legal regulations.</p> Mateusz Barwaśny Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Work on Your Own Account and Collective Labour Law Protection <p>As a result of the amendment to the Act on Trade Unions, which entered into force on January 1, 2019, self-employed persons meeting the criteria indicated in Art. 1<sup>1</sup> of Trade Union Act were granted the right to associate in trade unions and, consequently, other rights in the field of collective labor law. This is a new legal situation, because under the previous legal status, these persons were deprived of rights in the field of collective labor law. The aim of this article is therefore to analyze the scope of protection of the rights and interests of self-employed workers on three levels: 1) the right to associate in trade unions, 2) their coverage by collective agreements, 3) collective disputes. An attempt will also be made to assess to what extent the model of collective protection of their interests offered to these people is adequate to their needs and the specificity of their work.</p> <p><sup>1</sup> Ustawa z dnia 23 maja 1991 r. o związkach zawodowych (t.j. Dz.U. z 2022 r. poz. 854), dalej: u.z.z.</p> Monika Latos-Miłkowska Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Legal Protection of Employee in Criminal Law in Poland (Art. 220 of the Polish Criminal Code) <p>The text presents the current status of protection provided for employee in the criminal code (Art. 220 of the Polish Criminal Code of 1997) and some verdicts of the Polish Supreme Court in this matter; the author concludes that Polish criminal law is so-called a “closed law” and any “wide interpretations” – including such against suspects or accused persons in criminal trials are clearly unacceptable; and whenever a problem arises in a criminal trial, whether or not we are dealing with a victim of a crime who is or was an “employee” – this specific human exposure to the immediate danger of loss of life or serious damage to his/her health should be qualified under Art. 160 of the Polish Penal Code – and not under Art. 220 of the Polish Penal Code.</p> Jacek Izydorczyk Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Self-Employment in the Light of Pursuit of Activities in Other Member States <p>The purpose of the following study is to analyze the forms of temporary activity in the territory of another Member State. First, the author analyzes the assumptions of the law on the temporary performance of activities in another country (“self-posting”). In addition to that, the author discusses the assumptions of the right to pursue an activity in two or more Member States. In the considerations, the author focuses on the dogmatic and legal analysis of the European Union regulations on the principles of coordination of social security systems, also recalling the case law of Polish courts.</p> Michał Szypniewski Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Economically Dependent Self-Employment – Is it Time io Single out a New Title to Social Security? <p>The foregoing study is an element of research conducted by the author as a part of the research project “In search of a legal model of self-employment in Poland. Comparative legal analysis.” In the article, the author analyses the legal position of the economically dependent self-employed people in Polish social security law. The main part of the considerations is the analysis of preferences granted to people conducting non-agricultural economic activity. The regulation in force in Spain is the author’s starting point for developing the concept of separating the economically dependent self-employed as an intermediate entity between those having a status of an employee and self-employed. In conclusion, the author presents the concept of introducing a separate title into the Act on the Social Insurance System – economically dependent self-employed.</p> Marcin Krajewski Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Current Problems in the Field of Sickness Insurance for People Running a Non-Agricultural Business <p>The assessment of the limits of the freedom to declare the basis for calculating the contribution for sickness insurance by the insured (entrepreneur) constantly raises legal doubts. The social security authority verify, often successfully, the correctness and reliability of the declared contribution even if the insured declares the basis within the limits provided for by law. The action of the authority reduces the basis for declared contributions and, as a result, affects the amount of benefits.</p> <p>Doubts regarding the assessment of the possibility of veryfing the declared basis for contributions revolve around the assessment of whether in this respect we are dealing with a legal gap in social security law or with a comprehensive regulation of the autonomous social security law.</p> <p>In the context of the analyzed issue, it is crucial to establish the relationship between social security law and civil law and to indicate the grounds for separating social security law as an autonomous branch of law.</p> Paulina Matyjas-Łysakowska Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 The Protection of Intellectual Property in Relations Between Entrepreneurs <p>The Deputies’ bill amending the Labor Code and the Entrepreneurs’ Law provides for the extension of the legal definition of an employee to entities performing their duties personally for remuneration, permanently for the same entity, for a period of not less than 6 months. The proposed modification of the aforementioned definition will cause some changes not only in the field of regulations regarding employee rights, but also in the protection of intangible assets, such as intellectual property. In particular, the certain modifications will be visible in the way of copyright protection and fair competition between entrepreneurs. Even the inalienable nature of moral rights will not protect this sphere of the author’s rights from some transformations in the field of protection. The aim of the article is therefore to trace the current legal status, mainly based on the analysis of selected normative acts regarding labor law as well as intellectual property law and to try to answer the question of which legal status – current or postulated after the entry into force of the thematic amendment – would be more favorable in terms of protection of intangible assets that are part of the enterprise.</p> Hanna Rzęsa Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Will the Polish Deal Contribute to the End of the Uncontrolled Growth of Self-Employment? <p>1 January 2022 marks the date of entering into force provisions of the Polish Order – the biggest reform of the tax system in recent years. Initially, it seemed that the new regulations were aimed at combating the uncontrolled development of self-employment, which has become a popular and misused form of gainful employment in Poland. The main task of this paper will be to answer the question whether the newly introduced regulations may become a solution preventing the so-called bogus self-employment or on the contrary, may promote self-employment among the labour market participants.</p> Rafał Mierkiewicz, Mateusz Gajda Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Self-Employed in the EU VAT System: An Entrepreneur or an Employee? <p>The aim of the study is to indicate, based on the analysis of EU rules on the personal scope of VAT and relevant case law of the CJEU, what circumstances should be taken into account when determining whether a self-employed person is an independent entrepreneur, and therefore a VAT taxpayer providing to his client services subject to VAT, or rather remains with this client in a relationship corresponding to the employment relationship, which places the self-employed and the services provided by him outside the scope of VAT. The study also explains that due to the criterion of economic reality applicable in the EU VAT system, determining the VAT status of a self-employed cannot be based solely on the content of a contract between him and the client, but must take into account the actual course of cooperation. The extensive subject matter of consequences ensuing for the self-employed and his client if tax authorities deny the self-employed the status of an entrepreneur and VAT taxpayer, has been omitted, as it requires a separate study.</p> Małgorzata Sęk Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Self-Employment in the Light of Judicial Enforcement <p>From January 1, 2019. Amendments to the Code of Civil Procedure introduced by the Act of March 22, 2018 on Court Bailiffs apply. The legislator changed, inter alia, legal provision 821<sup>1</sup> of the Code of Civil Procedure. The above amendment is intended to enable the debtor to conduct business while the enforcement proceedings are suspended. Under the current legal status, the debtor, who is, for example, an entrepreneur, despite the suspension of enforcement proceedings, was deprived of access to current funds in bank accounts, which could result in the cessation of business activity. The text is an attempt to discuss the motives of the amendment, as well as its effects. The analysis will cover the amended act and jurisprudence.</p> <p><sup>1</sup> Dz.U. z 2018 r. poz. 771.</p> Lucyna Goles Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Transformation of a Sole Proprietorship Into a Limited Liability Company <p>The introduction of the provisions of the Polish Order (“Polski Ład”) raised numerous doubts among persons conducting business activity. The regulations resulted in many entrepreneurs deciding to cease their business activity or to transform their so-far sole proprietorship into other forms of business in order to avoid unfavourable taxation. Among those who decided to transform their business, the decision to transform into a limited liability company prevailed. In this article I would like to discuss the reasons for and procedure of transforming a sole trader into a limited liability company.</p> Agnieszka Jaworska Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100 Atypical Employment Relations in Brazil After the Labor Reform <p>The purpose of this publication is to provide an overview of labor law changes in Brazil that have significantly affected fundamental employment principles. Laws 13.427/17 and 13,467/17, collectively known as the Labor Reform, introduced atypical forms of employment, heavily modifying individual and collective labor laws. In particular, the changes include: employment in the form of intermittent work, telework, outsourcing or hyper-sufficient workers. The labor law reform, which has been carried out, introduces a number of novelties into the Brazilian legal system and raises many questions and doubts. There are concerns about whether the regulation undermines the existing legal order and thus threatens the dignity of workers, their physical and mental health, as well as negatively affects the working environment.</p> Marta Zbucka-Gargas, Cláudio Iannotti da Rocha Copyright (c) 2022 Thu, 29 Dec 2022 00:00:00 +0100