Względna dewolutywność zażalenia w postępowaniu cywilnym (zagadnienia wybrane)
Relative Devolutive Effect of Appeals in Civil Pr oceedings (Selected Issues)

Summary/Abstract: The Author presents issues related to the devolutive nature of appeals in civil proceedings, with particular regard to de lege ferenda postulates concerning the amendment of art. 395 § 2 of the Code on Civil Proceedings. According to art. 395 § 2 of the Code, if the complaint alleges the invalidity of the proceedings or is clearly justified, the court which issued the contested decision may, at the closed session, repeal contested decision without sending the documents of the case to the court of the second instance and, if necessary, reconsider the case. De lege ferenda postulates concern the clear indication in art. 395 § 2 of the Code on Civil Proceedings that the court shall be obliged to repeal the decision in such case and not only have an opportunity to do it as it is regulated now. That results, among others, from the negative assessment of judicial practice resulting from the recognition of the application of the institution governed by art. 395 §2 of the Code on Civil Proceedings as a right and not the obligation of a court.

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