OCHRONA WŁASNOŚCI A NADUŻYCIE PRAWA
PROTECTION OF THE OWNERSHIP AND ABUSE OF LAW

Summary/Abstract: Protection of the ownership in the Polish civil law is established in article 222 of the Polish Civil Code. According to section 1 of this article, the legal owner can demand returning his property from a person who possesses it without legal authorization (rei vindicatio). According to section 2 of this article, the owner has – against the person who violates his ownership in a different way than by depriving him from actual possession over his movables and immovables – claim for restitution and injunction to stop subsequent infringements (actio negatoria). Ownership can be described as the widest right on thing. Because of that some Polish commentators argued that against claims based on article 222 of the Polish Civil Code courts cannot apply article 5 of the Polish Civil Code, which establishes prohibition of abuse of law. One of the arguments, on which they support their opinion, is the regulation of the Constitution of Poland. The Constitution protects ownership in articles 21 and 64. Nevertheless those articles accept the fact that property could be limited in the acts of parliament, if it does not infringe the core of ownership. Application of the construction of abuse of law does not deprive the owner of his rights and does not create any rights in favor of unlawful possessor. Because of that it should not be threatened as a menace of expropriation of the owner and a contradiction with constitutional protection of ownership. The article 320 of the Polish Civil Procedure Code, which gives the court the right to postpone the execution of immovables, also does not block the application of article 5 of the Polish Civil Code. The application of the construction of abuse of law against the owner’s claims should be threatened as ultima ratio. It is a matter of fact that application of art. 5 of Polish Civil Code is exceptional, because norm established in this article is highly exceptional in the whole Polish legal system. Application of this article cannot create permanent situations, but effects of that application should be taken into account by courts, when they decide to ascertain that the owner, who performs his right, abuses it.

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