Contract Of Mandate Research Articles

Developing future competencies of people employed in non-standard forms of employment: employers’ and employees’ perspective

PurposeThe aim of this study is to analyze the differences between non-standard forms of employment (FoE) (i.e. dependent self-employment/business-to-business/B2B contract and contract of mandate) in terms of investing in the development of future competencies by employees and employers. This study also examined additional factors which influence these investments.Design/methodology/approachTo collect data, the computer-assisted telephone interview technique was used. 200 employees from different companies located in Poland participated in this study, wherein each of the above-mentioned FoEs (i.e. dependent self-employment and contract of mandate) was represented by 100 people. The Chi-Square test and multivariate logistic regression analysis were used in the statistical analyses.FindingsIn the case of only 2 out of 14 competencies, there were statistically significant differences between the two groups of respondents: the employers financed training courses for B2B employees more frequently than for mandate contract workers. Moreover, in only one case there was a statistically significant difference: the self-employed financed training courses themselves more often than mandate contract workers. This study revealed an important impact of other variables such as respondents’ age, education level, parental status and industry on the training activities undertaken by employers and employees.Originality/valueAlthough the issue of developing future competencies is important, there is little research examining this problem in the context of people who work in non-standard FoE. Moreover, previous research primarily focused on identifying differences between people working under employment contracts and the self-employed. This article fills these research gaps as well as shows that more factors should be considered in the research models to get a deeper insight into the problem of non-standard FoEs.

ФІНАНСОВА БЕЗПЕКА ВІДНОСИН ІНОЗЕМНОГО ІНВЕСТОРА З УПРАВЛІНСЬКОЮ КОМПАНІЄЮ В ПАРАДИГМІ «АСИМЕТРІЇ ІНФОРМАЦІЇ» ТА «МОРАЛЬНОГО РИЗИКУ»

The article is devoted to scientific analysis and characterization of the foreign investor's (the subsidiary owned by such investor) relations with the management company. The high level of information asymmetry and moral risk in relations between foreign investors and management companies was emphasized. The main advantages and disadvantages of transferring the functions of the executive body to the management company were highlighted (more effective management – on the one hand and higher risks of breaching non-compete or non-disclosure rules, higher expenses – on the other hand). The current state of legislative regulation of the status of the management company was analyzed. It was suggested to enshrine recommendations in legal acts regarding: financial indicators (the size and the form of payment of the share capital, the volume of net assets, indicators of financial stability and sustainability), qualification, skills, experience, and education of employees, premises, technical and software indicators, non-compete and non-disclosure rules, which the management company should meet. Institutional analysis of the agreement on transferring the functions of the executive body to the management company was carried out, main distinctions of this kind of agreement from the agency agreement, the mandate contract, the service agreement, and the property management contract were explained. It was proposed to determine the agreement on transferring the functions of the executive body to the management company as the business-law contract, according to which the legal entity-management company undertakes to provide managerial services for the company, to perform the functions of the executive body, stipulated by the corporate legislation and the charter of the company, is empowered to dispose the property and to make transactions on behalf and in the interests of the company, and shall receive payments for such services from the company. Practical recommendations regarding improvement of legal regulation of relations with the management company were given in order to increase the investment attractiveness of Ukraine.

Description of the criteria governing the areas of overlap between the competence of KRUS and ZUS in respect of farmers who are subject to social insurance

The Social Insurance Institution (PL: Zakład Ubezpieczeń Społecznych, ZUS) and the Agricultural Social Insurance Fund (PL: Kasa Rolniczego Ubezpieczenia Społecznego, KRUS) are among the constituent parts of the social security system in Poland. In principle, both institutions function in such a way that there is no overlap between the areas of their competence, but there are certain forms of professional activity which, when carried out by an insured farmer or his/her household member, result in an overlap between the social insurance titles. These include in particular a non-agricultural business activity, an agency contract, a contract of mandate or other contract for the provision of services to which the provisions on the mandate apply and serving on a supervisory board. The main aim of the article is to analyse the ways to deal with and mechanisms which govern cases when the competence of KRUS and ZUS overlaps for certain farmers subject to social insurance and to present the normative acts containing regulations in this area. Keywords: serving on a supervisory board, non-agricultural business activity, social insurance, agency contract, contract of mandate

The legal governance of the carbon market: challenges and application of private law in China

The carbon market has gained widespread consensus as an important means to address the climate change. The legal system of the carbon market is the cornerstone of the stable operation, which currently relies on a top-down model promoted by the government. A question worth considering is, as the carbon trading is based on the market mechanism that depends on the autonomy of will, what kind of role does private law play in the legal system of the carbon market? This study sorts out various risks of the carbon market and point out that they are mainly originated from information asymmetry and the principal-agent problem. These two reasons of market risks indicate the imbalance of rights and obligations among market participants. Precisely, private law is a significant way to achieve equal and fair transactions between private entities. This paper conducts empirical analysis on China’s carbon market and finds that the carbon brokerage is based on the principal-agent relationship, the carbon asset management is belonging to the trust relationship, and the information consulting is according to the contract of mandate. The conclusion shows that information asymmetry and the principal-agent problem can be prevented and mitigated by the rights of intervention and option, fiduciary duty, and fault liability. Private law can rebalance rights and obligations between private entities of the carbon market. In addition, there are also limitations of private law, so the recommendation is to make a diversified mechanism of the legal governance to achieve a robust development of the carbon market.

THE LEGAL CAPACITY OF THE PARTIES, AS A VALIDITY CONDITION FOR THE MANDATE CONTRACT

This article aims to bring attention to the mandate contract, under the aspect of its validity conditions, more precisely the legal capacity required of the parties to be able to conclude such an agreement. First of all, the mandate contract must meet the general requirements for the validity of contracts, stipulated by art. 1179 para. (1) Civil Code. Regarding the form of the power of attorney, art. 1301 Civil Code specifies the fact that it will be effective only if it is given in compliance with the forms required by law ad validitatem for the conclusion of the contract that the representative is to make on behalf of the represented. In addition to these general conditions of contract validity, the conventional representation by mandate, in order to be effective, also requires the fulfillment of certain specific conditions, which essentially relate to the manifestation of the legal will of the participants in this tripartite operation, namely: the will of the representative to represent; the will of the represented to be represented; the will of the representative to perform legal acts through representation; the externalized will of the representative to represent and perform legal acts with the contracting third party and the externalized will of the third party with the value of accepting the contract with the representative (contemplatio domini).Therefore, the requirements for the valid and effective conclusion of the mandate contract must be assessed at the time of the conclusion of the convention, but in order for it to reach its final goal, consisting in the performance by the agent of the business entrusted by the principal, the requirements for the valid and effective conclusion of the targeted act, at the time of its completion, must also be met. Out of all these conditions claimed for the valid conclusion of the mandate, we have chosen to focus our attention in this study on the capacity required of the parties to contract, necessary so that conventional representation, as a tripartite operation, which involves a source act (the mandate agreement) and one/more targeted acts (the act/s concluded by the agent with third parties in the name and on behalf of the principal) will be validly formed.

THE SIGNIFICANCE OF INTEREST FOR ACTIVE LEGITIMATION IN ROMAN CIVIL PROCEDURE

The aim of this article is to examine the importance of interest for an applicant’s right to legal protection in Roman civil procedure. I establish a connection between the interest of the authorized person and his right to sue or apply for an interdict by reviewing the sources of Roman law concerning a claim for theft or on the grounds of a contract of mandate or actio ad exhibendum, as well as interdicts on the protection of posession. This enables me to define the persons with a right to enjoy these forms of procedural protection thanks to having a proven interest. Thus, the contractor who is robbed of the subject of his contract had the right to sue for theft, since he was responsible for the safekeeping of the thing. So, too, was the creditor of a pledge, since he had an interest in owning the subject of the pledge. The applicant for a right to actio ad exhibendum needed to have an interest in the presentation of the thing, regardless of whether he was its owner. The person entitled to bring an action on the grounds of a contract of mandate was the principal, if he had an interest in the execution of the commission. Interest was also the necessary condition for an applicant to claim a right to the quod vi aut clam interdict, which could be granted not only to the owner of the thing, but also to other persons whose interests were infringed.

공인회계사 독립성의 특수성과 공동주택에 대한 회계감사의 관계

The duties of a certified public accountant are divided into an accounting audit that provides information to unidentified third parties, and tax agency, accounting-related appraisal that has a linear structure between a mandator and a mandate. In particular, accounting auditing has the characteristics of a mixed contract centered on a mandate contract, but it is distinctive in that it has an obligation to provide information to a third party. The main conceptual elements of accounting audit are the preparation of financial statements and the existence of generally accepted accounting principles, the existence of an independent third-party certified public accountant, the existence of generally accepted audit standards and professional work performance accordingly, and the expression of opinions on information users. The most significant of these was independence. This is because, through independence, the certified public accountant obtains and retains a trust on objectivity and fairness of auditing not only in terms of mental independence but also in appearance.
 There are various systems that support the independence of accounting audits, including the general provisions of Article 15, Paragraph 1 of the Certified Public Accountant Act, the restriction of functions of Articles 21 and 33, the designation system of the External Audit Act, and the prohibition of preparing financial statements. Furthermore, the Code of Ethics for Certified Public Accountants also functions as a practical disciplinary code, and since it is influenced by International Ethics Standard Board for Accountants, the independence of CPA is becoming a global standard.
 We also reviewed the accounting audit of multi-family housing including apartment houses, which is a representative area of accounting audit other than external audit. Although the purpose of the accounting audit of apartment houses may be somewhat different from that of the company, the basic principle and essence of the audit is the same, and the independence of certified public accountants must be strictly maintained. In particular, it has something in common with Article 21 of the Certified Public Accountant Act in that the simultaneous performance of accounting audit and bookkeeping violates independence.
 The independence of a certified public accountant is a mark derived from accounting audit, which is the exclusive mission of a certified public accountant, and plays a role in enabling third-party information users to use correct information by enabling accounting audits to be performed in an objective and fair position. At the same time, it can be seen that disciplinary procedures and criminal punishment are premised in case of violation of the obligation to maintain independence. Therefore, the independence of certified public accountants, especially in accounting auditing, is a concept with unique characteristics that cannot be found in other field.

LEGAL QUALIFICATION OF LABOR CONTRACT AND CONTRACT OF MANDATE (SERVICE COTRACT) WHEN CHECKING LEGALITY OF DEFAULT JUDGEMENT

Freedom of labor is a constitutional human right. The state protects it by fulfilling positive and negative obligations. Due to the specifics of labor relations, the principle of subordination is one of the basic principles that apply in labor law. Accordingly, the employee is subordinate to the employer and directly obeys the rules and conditions set by him. The parties of the Contract of Mandate (Service Contract) are the mandator who gives an assignment to the mandatary and the mandatary who is obliged to perform mandated actions. It is often difficult to find the difference between the contract of the mandated employment agreement. No. AS-953-2020 decision of the Chamber of Civil Cases of the Supreme Court of Georgia, issued on April 2, 2021, regarding the above-mentioned issue sets precedent, both in the case’s procedural history and in the legal complexity and reasoning, which is undoubtedly distinguished from the previously set practice. What makes this case special is the fact that, from a procedural point of view, the case went through the second and third instances twice. In addition, a repeated default (absentee) judgment was appealed, the legal legitimacy of which is the main focus of the legal proceedings of the courts. Accordingly, this article will assess the factual circumstances related to the legal dispute and the grounds and motivation for the decision made by the relevant court. Also, special attention will be drawn to the decision made by the Supreme Court and the decision will be assessed in the context of whether the judge applied the law he was supposed to apply or the law that he was not supposed to apply and whether or not he misinterpreted the law. It also determines which method of resolving a hard case was used by the judge

Het belang van de ‘dagelijksche practijque’ aan het Hof van Utrecht

In the case Harderwijk vs Hagendoorn (verdict 30 July 1810), Hagendoorn’s suitcase was stolen during its transport by Harderwijk from Austerlitz to Utrecht. The suitcase had been fixed with ropes to the coach. The question was whether the carrier had exercised sufficient care by that. Harderwijk based the level of care of his son, who had transported the suitcase, on the contract of mandate: it required normal care and thus he was not liable for a coincidence in this case. Hagendoorn, on the other hand, pointed to a more severe form of liability, namely that of a carrier in the course of his profession (quasi-delict). That implied that, so Hagendoorn said, that the carrier was liable, even if he was not at fault. He should have used material that would prevent theft. But Harderwijk argued that it was custom, viz. daily practice, that carriers in the city of Utrecht used ropes, not chains. By order of Councillor De Brueys, this practice was proven by representatives of the guild and Harderwijk’s argument was accepted. In this case, customary law set the express regulation of written law aside.

BETWEEN WORK AND EMPLOYMENT. SOME CONCEPTUAL COMMENTS

The study presents the understanding of the concept of work and the concept of employment with which we deal in legislation, jurisprudence, science and didactics of labour law. The relationship between these basic categories of concepts is particularly intricate and the subject of serious controversy. The category of work is the most important and superior concept in relation to employment. Historical, axiological, technical-legislative and practical reasons speak for this. The broad understanding of work includes not only labour relations but also other relations related to it., i.e. those that make up the subject of labour law, including so-called non-employee employment relationship (civil, administrative, constitutionaland penal type). In choosing between work and employment, priority should be given to work. This leads to the conclusion that the concept an employment relationship should be understood as broadly as possible. This is achieved by limiting the importance of employee subordination in definition of an employment relationship. This, in turn, leads to a tightening of scope of the concept of a non-employee employment relationship of the civil law type (from the mandate contract, contract for the provision of services).

GRAĐANSKOPRAVNO UREĐENJE DJELATNOSTI LOBIRANJA

The Republic of Croatia does not have a legal framework for regulating lobbying activities. With the adoption of regulations governing lobbying, this informal activity is translated from the “grey zone” into an activity under the “watchful eye” of the competent authorities. Although there is a large amount of professional and scientific literature on the concept and activity of lobbying, it can be noticed that the academic community is much less concerned with the legal institute of lobbying contract, its classification, characteristics and content. The lobbying contract in the wider context of the Croatian science of civil law and legal practice, comprises the features of certain legal transactions, primarily a contract for services / or a mandate contract. The object of performing a lobbying contract is the execution of a lobbying activity, as a rule for a consideration, and in that sense, it represents a specific form of a contract for services. The mandate contract features found in the formation of the lobbying contract will also be emphasized. The paper aims at presenting the basic features of the lobbying contract and emphasizing certain outstanding issues that may arise in any legal regulation of this legal act in the Republic of Croatia. The comparative approach in the paper points to legal solutions applied by legal systems with a long lobbying tradition as a legitimate part of the legislative process. It also points out the plausible solutions that have emerged from the legal systems of predominantly former communist and transition countries, and which are all the more adequate to possible Croatian lobbying contract regulation.

The Issue of Representativeness in the Lights of the Amended Trade Unions Act

The subject of the deliberations are issues regarding the representativeness and size of workplace trade union organisations after the changes introduced in the Trade Unions Act in 2018. According to the obligatory provisions, the “representativeness” of a trade union organisation is traditionally conditional on its size, but not only the employees, but also other categories of the employed are taken into account. It is, inter alia, about persons providing work under a contract of mandate or a specific work contract and sole proprietors. By expanding the full rights of coalition onto persons performing work on the basis other than employment relationship, the legislator increased the percentage limits decisive in the matter of representativeness. At present, the representative trade union organisation above the workplace level is also an organisation uniting at least 15% of all people performing gainful work under the articles of association, not fewer, however, than 10,000 persons performing gainful work. It works similarly at the workplace level. With reference to workplace trade union organisations which belong to organisations above the workplace level which meet the criteria for representativeness as specified in the Social Dialogue Council Act, at least 8% of the staff of the given employer is required. In the case of workplace trade union organisations which do not participate in such structures, the representativeness is conditional on uniting of at least 15% of persons performing gainful work for the given employer (7% and 10%, respectively, were required earlier). Determining the number of the staff, the employees and persons providing gainful work under other bases being employed for at least 6 months before the commencement of negotiations or arrangements must be included. A significant novelty is the necessity to select a joint representation of the representative organisations at the workplace level that belong to the same Trade Union Federation or National Trade Union Confederation in matters regarding collective rights and interests of the persons performing gainful work.

A Gloss to the Judgment of the Supreme Court of 17 September 2020 (I CSK 628/18)

The judgment of the Supreme Court of 17 September 2020 (I CSK 628/18) refers to the infringement of personal interests and so-called outsourcing, which is increasingly being applied by insurers during winding-up proceedings and subsequently in the course of activities aimed at determining whether the circumstances justifying the payment of a cash benefit have not changed. In the contentious factual circumstances, which became the basis for the Supreme Court’s deliberations, a detective agency, having concluded a contract of mandate with the insurer, performed verification procedures to confirm the legitimacy and the amount of the compensation annuity received by the victim of a traffic accident. However, the investigation was conducted in an inappropriate way, using psychological coercion, copying medical records, test results and medicines – including recording and taking pictures of the victim, having conversations with neighbours about his daily routine, and finally obtaining the victim’s blank signature on a sheet of paper where detectives later added his consent to conduct verification and an unlawful receipt of a declaration of liability for giving false statements. Their conduct led to an infringement of personal interests, including the right to privacy and the right to security. The courts of different instances interpreted the facts differently and adopted various legal interpretations: from the acceptance of the insurer's liability for infringement of the victim’s personal interests by the outsourced detective company (district court), through ruling on the lack of liability and, above all, the lack of insurer’s capacity to initiate proceedings (court of appeal), to the confirmation of liability under certain conditions. The author of this generally positive gloss presents and evaluates arguments cited by the Supreme Court. She also organizes and verifies disputable issues. In addition to identifying a variety of legal problems and doubts in this respect, she emphasizes the practical importance of this judgment and the question of the insurer's liability for activities or omissions by third parties providing outsourced services.

Authority or obligations of the parties in the chain contracts - with emphasis on the mandate contract’s

Authority or obligations of the parties in the chain contracts - with emphasis on the mandate contract’s

The Impact of Mandate Contract and Self-Employment on Workers' Health-Evidence from Poland.

The purpose of the study is to analyze the correlations between two clearly defined forms of non-standard employment (self-employment and mandate contract) and workers’ health. The study also addressed such variables as gender, age, length of service, and the reason for employment (voluntary vs. non-voluntary). The research was carried out in Poland in 2020 using the CATI method (a telephone interviewing technique), and it covered a sample of 200 workers (100 self-employed and 100 working under a mandate contract). Most of the respondents declared that their form of employment did not affect their health. However, the statistical analysis showed significant differences in health status between the self-employed and those working on a mandate contract. Self-employed respondents experienced mental health impacts more often, whereas those working under a mandate contract more frequently declared that their physical health was affected. The length of service was only important for mental health, having a negative impact on it. The respondents’ age and gender turned out to be statistically insignificant, which is in contradiction to many previous research findings. The inability to choose one’s form of employment resulted in worse physical health. These findings demonstrate the importance of certain variables that were not prioritized in previous studies and emphasize the need to clearly define what non-standard and precarious forms of employment are, as well as revealing new correlations between the studied categories and providing directions for further research.

THE PRINCIPAL'S RELATIONS WITH THIRD PARTY CONTRACTORS

This paper aims to bring attention to a typology of contract that is as old as it is current. Today, more than ever, the mandate contract proves its usefulness, not only as a traditional means of concluding free acts, selfless and friendly service, but especially as a legal mechanism that allows the deployment of numerous professional activities. As trade has gained huge territorial expansion and diversification, business intermediaries have become increasingly important, even vital, and the mandate, in its various manifestations, provides a highly flexible legal framework for achieving business.In this article, we focus on the principal's relations with third party contractors, especially on the exceptional situations in which the agent's excessive acts are opposable to the principal, namely the ratification and the apparent mandate, making a brief review of the doctrine and jurisprudence on the matter and expressing our own opinions regarding the liability of the principal towards third party contractors in such situations.

The Impact of the Death of One of the Parties on the Contract of Mandate in the Roman Law

Roma Hukuku’nda vekâlet sözleşmesi, vekile başkasının hesabına hareket etmesi için yetki veren bir sözleşmedir. Vekâlet sözleşmesi, Roma Hukuku sözleşmeler sisteminde dostluğa dayanan ve ücretsiz yapılan bir sözleşme olması nedeniyle özel bir yere sahiptir. Vekâlet sözleşmesinin konusunun bir işin görülmesi olması ve vekâlet sözleşmesinin temelinde güven unsurunun yer alması sebebiyle; vekilin kişisel özellikleri, bilgisi, becerileri ve tecrübesi bu sözleşmede önemli rol oynar. Bu nedenle ele alınması gereken iki sorunsal bulunmaktadır. Bunlar, mandatum morte solvitur ve mandatum post mortem’dir. Mandatum morte solvitur prensibine göre; taraflar arasındaki güven ilişkisine ve dostluğa dayanan bir sözleşme olduğu için taraflardan birinin ölümü vekâlet sözleşmesini sona erdirir. Mandatum post mortem konusu incelendiğinde ise tarafların ölümünden sonra ifa edilecek vekâlet sözleşmelerinin Roma Hukuku’nda geçersiz sayıldığı görülmektedir. Roma Hukuku’na ilişkin kaynaklarda bu konu müvekkil ve vekil açısından ayrı ayrı incelenmiştir. Vekilin ölümü halinde ifa edilecek vekâlet sözleşmesi “mandatum post mortem mandatarius”, müvekkilin ölümü halinde ifa edilecek vekâlet sözleşmesi ise “mandatum post mortem mandator” olarak ifade edilmiştir.

Mandate and representation

The mandate contract, although it bears similarities to other types of conventions and legal institutions, is unequivocally different in its specific features. In our article, we shall try to distinguish the mandate from representation, a legal institution with which it shares similarities that have generated doctrinal discussions. We believe that the usefulness of this approach is justified all the more since representation has received its own legal regulation under the new Romanian Civil Code, for the first time in our civil law. The conclusion of our study is that representation is not the essence of the mandate, but only characterizes its nature, since there is mandate without representation, as well as representation without mandate.

A megbízási szerződés szabályozásának történeti vázlata Romániában

The study constitutes a brief historical overview of the development of the contract of mandate, as regulated in Romanian law. Firstly, the roots of this contract in antiquity and in Roman law are discussed, and the evolution of its major characteristics are revealed. Subsequently, the author presents the regulations applicable to the contract of mandate under the first modern codifications of Romanian civil law in the Calimach and Caragea codes, the Commercial Code of Wallachia of 1840, the Romanian Civil code of 1864, the Commercial Code of 1887, and the Civil Code of 2009, currently in force. The author presents the major historic evolutions of the Romanian regulation pertinent to the nature of the contract, the parties, their remuneration, the effects of the contract inter partes and towards third persons as well as the changes in regulatory logic from the differentiation of commercial and civil mandate to the unification of the two institutions in the Civil Code of 2009.

A részvénytársasági vezető tisztségviselő megbízásának megszűnése egy román jogegységi határozat tükrében

The legal relationship between the joint-stock company and its (chief) executive officer is based on the rules applicable to the contract of mandate, according to the Romanian Act on Companies. For this reason, the rules set forth in the case of contracts of mandate by the Romanian Civil Code (RCC) must be used with regard to the creation, the contents, and the cessation of the authority of the chief executive. Among its provisions pertinent to the cessation of this contract, inter alia, the RCC refers explicitly to the possibility that it may cease not only when the reasons provided for in the norms specifically regulating the contract of mandate subsist but also in the generally provided cases when the effects of contracts (as instruments) cease to exist. Such a general case is, e.g., the expiry of the duration of the contract. Regarding the authority of the executive officer, however, courts have interpreted the effects of the expiry of the duration of the contract divergently, wherefore the High Court of Cassation and Justice has set a unitary direction for interpretation by way of a decision for the unification of jurisprudence. The statements and conclusions contained in this decision are, in my view, subject to debate. In the following study, I provide a critical analysis of the statements and conclusions contained in the decision for the unification of jurisprudence based on the statutory provisions of the law currently in force.