Problem braku substratu zaskarżenia w postępowaniu nieprocesowym
The absence of mandatory grounds for appeal in non-adversarial proceedings

Summary/Abstract: According to Polish Civil Procedure Code, the absence of mandatory grounds for appeal in non-adversarial proceedings may result from non-publication of a judgment or the judges not signing a judgment. In such cases it is clear that the judgment does not exist (Lat. sententia non existens) and therefore cannot be challenged. Yet in practice more complex situation arise, making it difficult to decide whether sufficient grounds for appeal exist. For instance, the court might fail to adjudicate on one of the claims, neither allowing nor dismissing the claim. This raises the question as to what the plaintiff (applicant) should do. Should the plaintiff lodge an appeal, or first apply for a judgment on the claim that was not decided? In adversarial proceedings, in principle the plaintiff may not lodge an appeal in the absence of mandatory grounds for an appeal. Therefore, the plaintiff has to apply to the Court to supplement the judgment by issuing the missing ruling. Nevertheless, the issue becomes more complex in non-adversarial proceedings. In some cases the court’s failure to decide on one of the claims does not preclude the plaintiff (applicant) from lodging an appeal without having the judgment supplemented. Establishing the general rules to govern when an appeal may be lodged and when the motion for supplementing the judgment has to be filed beforehand, is not an easy task. This articles examines judicial decisions and the legal literature concerning the absence of mandatory grounds for appeal. In addition, the author presents his own view on the issue and offers several solutions de lege lata and de lege ferenda, which could improve the current situation.

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