Skarga kasacyjna wniesiona z naruszeniem przepisów o przymusie adwokacko-radcowskim – odrzucenie czy zwrot?
Cassation appeals lodged in violation of compulsory legal representation – dismissal or return?

Summary/Abstract: Article 871 of the Code of Civil Procedure lays down the principle of mandatory assistance by a lawyer in proceedings before the Supreme Court. Pursuant to article 130(5) of the Code of Civil Procedure any procedural writ that is lodged with the court in violation of compulsory legal representation (article 871 of the Code of Civil Procedure) should be returned. The return should be ordered by the president of the division in a higher court. His decision is not actionable. The Polish judiciary presents the viewpoint that a cassation appeal lodged in violation of compulsory legal representation should be dismissed rather than returned. The arguments in support of this viewpoint are based on the assumption that there exists lex specialis in relation to article 130(5) of the Code of Civil Procedure. The judiciary regards article 3986 (2) of the Code of Civil Procedure – which orders the dismissal of a cassation appeal if it is inadmissible – as lex specialis. The author analyses the relationship between both provisions and points out arguments that undermine the viewpoint of the judiciary. One of them (and most important) is that the lawmaker has clearly pointed out in article 4246 (3) of the Code of Civil Procedure that it creates lex specialis in relation to article 130(5) of the Code of Civil Procedure.

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