Reconsidering a civil case in the same court composition when the decision making in the case may be problematic
Reconsidering a civil case in the same court composition when the decision making in the case may be problematic

Summary/Abstract: According to art. 386 § 5 of Civil Procedure Code where the judgment is set aside and the case is referred to be re-examined, the court examines it in the same composition, unless it is not possible or it would cause excessive delay in the proceedings. Such a provision is controversial as, in principle, the judge will have to conduct the same civil case again – even if they already gave judgement in the case. The current regulation in which the same judge is to adjudicate in the case for the second time may be seen as inappropriate in view of the content of another legal regulation. According to art. 386 § 6 of Civil Procedure Code a legal assessment expressed in the statement of reasons for a judgment issued by the court of the second instance is binding on the court to which the case was referred and the court of the second instance in the case of re-examining the case. However, this does not apply to a situation when there was a change in facts or the legal situation, or when after the court of the second instance issued a judgment the Supreme Court of the Republic of Poland expressed a different legal assessment in a resolution settling a legal issue. In the paper I pay attention to the regulation from the judges’ perspective. I present some observations on the difficult role of a judge who is to pass the judgment in the case for the second time. I focus on the issue of psychological mechanisms relating to the reconsideration of a decision that has been challenged. The paper is partly based on the interviews with Polish judges.

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