Nowelizacja KPC 2019 – pierwsze doświadczenia, refleksje i postulaty
The Amendment to the Code of Civil Procedure of 2019 – First Experiences, Reflections and Demands
Contributor(s): Tadeusz Zembrzuski (Editor)
Subject(s): Law, Constitution, Jurisprudence, Civil Law
Published by: Wydawnictwa Uniwersytetu Warszawskiego
Keywords: civil procedure; lawsuit; reform; amendment; legislation; streamlining and expediting of the procedure; procedural rules; fair trial
Summary/Abstract: A collection of texts devoted to the 2019 major amendment to the Code of Civil Procedure, which changed the fundamentals of the civil procedural law. The authors point to numerous loopholes, flaws and inconsistencies resulting from parallel modification of many structures and institutions, seek answers to the questions regarding the character, extent, importance and consequences of the introduced modifications and their influence on litigation. They consider solutions, which could prevent increasing difficulties in implementing the Code and which could be used not only by the parties and participants in judicial proceedings, but also by judges and attorneys.
- E-ISBN-13: 978-83-235-5195-9
- Print-ISBN-13: 978-83-235-5187-4
- Page Count: 288
- Publication Year: 2021
- Language: Polish
Badanie właściwości sądu – obowiązek sądu czy pozwanego?
Badanie właściwości sądu – obowiązek sądu czy pozwanego?
(Investigating the jurisdiction of the court – an obligation of the court or the defendant?)
- Author(s):Paulina Zaborowska
- Contributor(s):Krzysztof Leitgeber (Translator)
- Language:Polish
- Subject(s):Civil Law
- Page Range:13-42
- No. of Pages:30
- Keywords:court’s jurisdiction; ex officio investigation; irremovable lack of jurisdiction; prorogation agreement
- Summary/Abstract:Over the years, the principles of investigating court’s jurisdictions have assumed different shapes. Regardless of time, the premise that the irremovable lack of jurisdiction requires a greater control of the judicial body than the case where the setting of jurisdiction may be reached by means of a prorogation agreement has remained unchanged. Having scrutinized the evolution of solutions adopted by the legislator, one has to conclude that none of the mechanisms employed so far can be deemed perfect. The model restored by virtue of the so-called grand amendment does not square with the classical rules of the civil procedure, whereas the method consisting in leaving the investigation of the court’s jurisdiction to the defendant’s initiative led to many distortions in court practice and, moreover, resulted in plaintiff’s excessive privilege. Introducing the obligation to assess the irremovable lack of jurisdiction "ex officio" before delivering the lawsuit again increased the importance of the general and alternating jurisdiction on the judicial ground, but simultaneously, led to the situation where the territorial jurisdiction is rigid and fulfills the public interest in the first place. A return to the solutions from before 2007 cannot, as a result, be evaluated positively in its entirety.
- Price: 4.50 €
Plan rozprawy: zwiększenie zaangażowania stron czy fikcja ułatwienia przebiegu postępowania?
Plan rozprawy: zwiększenie zaangażowania stron czy fikcja ułatwienia przebiegu postępowania?
(A trial plan: an increased involvement of the parties or a fiction of streamlining of the procedure?)
- Author(s):Anna Lanina
- Contributor(s):Krzysztof Leitgeber (Translator)
- Language:Polish
- Subject(s):Civil Law
- Page Range:43-60
- No. of Pages:18
- Keywords:amendment to the Code of Civil Procedure; trial plan; preparatory meeting; organization of the procedure
- Summary/Abstract:The amendment to the Code of Civil Procedure of 2019 has introduced a number of changes concerning the preparation for the hearing of the case and related procedures of the judge and the parties. The article consists of considerations concerning an analysis of the new lawsuit regulation – a trial plan, the issues related to which constitute an extended institution of the preparatory meeting. The preparatory meeting is a fundamental element of the procedure’s organization and a key institution of examination proceedings in view of the legal framework after passing the amendment. By imposing on the parties the obligation to participate in the preparatory meeting, the legislator strove to accelerate and streamline the procedure, simultaneously aiming at preventing its lengthiness. This article attempts to answer the question not apparently obvious: does the novum consisting in the drawing of the trial plan induce an increased involvement of the parties or, conversely, will introducing a new regulation to the lawsuit result in additional complications? With this end in view, new regulations have been compared to the present legal framework and some elements of the preparatory proceedings and selected problems concerning the concentration of evidence have been analyzed.
- Price: 4.50 €
Dowód na specjalnych prawach, czyli o dopuszczeniu dowodu z dokumentu bez odrębnego postanowienia dowodowego
Dowód na specjalnych prawach, czyli o dopuszczeniu dowodu z dokumentu bez odrębnego postanowienia dowodowego
(Evidence above the law – on accepting the document as evidence without an evidentiary court’s order)
- Author(s):Mateusz Winczura
- Contributor(s):Krzysztof Leitgeber (Translator)
- Language:Polish
- Subject(s):Civil Law
- Page Range:61-79
- No. of Pages:19
- Keywords:document in evidence; evidence thesis; evidentiary ruling; principle of the speed of proceedings; CPC amendment of 4 July 2019
- Summary/Abstract:This article concerns the issues connected with introducing art. 243 of CPC to Polish legal order, according to which the documents placed in or attached to the case-file constitute evidence without issuing a separate ruling. This analysis starts out by indicating and analyzing the reasons for implementing such a change, especially in the context of general efforts to increase the presiding judge’s control over the body of evidence in the civil procedure is questioned. In particular, the thesis that the new regulation leads to an increase in the pace of the examination procedure. The next issue consists in carrying out the process aiming at an exhaustive interpretation of art. 243 CPC, taking into consideration existing views of legal scholars and commentators as well as linguistic and purposive interpretation methods. Another issue consists in identifying and analyzing a number of problems with the interpretation of art. 243 based on the legal-dogmatic analysis of the norm it includes. The challenges connected with these problems include: (a) the issue of determining the evidence thesis; (b) the qualification of documents, in the civil law sense, including both text and image; (c) the time limit to place the document on file; and (d) the adversary’s possible reaction to placing the document on file. Moreover, the article, proposes a solution to these challenges, mainly by considering the aims of the examination procedure and staying consistent with the remaining regulations concerning the process of gathering evidence.
- Price: 4.50 €
Nie śpij, bo cię umorzą – o znaczeniu nowego brzmienia art. 182 k.p.c. słów kilka
Nie śpij, bo cię umorzą – o znaczeniu nowego brzmienia art. 182 k.p.c. słów kilka
(Don’t sleep or the case will be dismissed – a few words about the importance of the amended art. 182 CPC)
- Author(s):Julia Cholewka
- Contributor(s):Maja Dziubak (Translator)
- Language:Polish
- Subject(s):Civil Law
- Page Range:81-103
- No. of Pages:23
- Keywords:stay of proceedings; interim provisions; discontinuation of suspended proceedings; suspension of proceedings; discontinuation of proceedings
- Summary/Abstract:The amendment of the Polish civil procedure introduced in July of 2019 has significantly reduced the time limit for issuing a motion to resume suspended proceedings. What has created most difficulties to litigants was not the reduced time limit itself, but the interpretation of the interim provisions, due to the fact that most amended articles were to come into force on 7 November 2019, whereas the regular two-week vacatio legis period was to hold for others. The amended art. 182 CPC belonged to the latter group and therefore was to come into force on 21 August 2019. The interim provisions of the amending act set out, in turn, that to cases instituted and in progress before the date the said act was to come into force, and which remained suspended on this date, new time frames shall be applied starting from the date of the act’s coming into force. It was not entirely clear whether “the date the act comes into force” was to be interpreted as 7 November 2019 (the actual date the act was to come into force) or 21 August 2019 (the date the amendment of art. 182 CPC was to come into force). The doubts were dispelled only by the Supreme Court which ruled that the effects described in art. 182 § 1 point 4 CPC with respect to proceedings initiated and suspended before the date the amendment came into force applied only starting from 7 November 2019. Thus the same conclusion can be applied to art. 182 CPC in its entirety based on analogy.
- Price: 4.50 €
Powództwo oczywiście bezzasadne z art. 191 § 1 k.p.c. na tle zasad procesowych
Powództwo oczywiście bezzasadne z art. 191 § 1 k.p.c. na tle zasad procesowych
(Manifestly unfounded claim included in art. 191 § 1 of the Code of Civil Procedure in the context of selected procedural rules)
- Author(s):Jakub Spiechowicz
- Contributor(s):Maja Dziubak (Translator)
- Language:Polish
- Subject(s):Civil Law
- Page Range:105-128
- No. of Pages:24
- Keywords:manifest unfoundedness; procedural rules; amendment of the CPC of 2019
- Summary/Abstract:The article addresses the manifestly unfounded claim included in art. 191 § 1 of the Code of Civil Procedure in the context of selected procedural rules. In the first part of the article, the author attempts to define the meaning of the concept of “manifest unfoundedness”. With this purpose in view, the rich body of the Supreme Court rulings and opinions of legal academics and commentators is employed. The author carries out a logical analysis of the concept of manifest unfoundedness and points to the multiple contexts of its use in Polish legislation. Next, conditions for manifest unfoundedness included in art. 191 § 1 CPC are discussed in detail, as well as the range of cases covered by the Code. In the second part of the article, the author focuses on and examines procedural rules, in particular the following three: the right to a fair trial, the right to due process, and the principle of open justice. The author demonstrates that the manifestly unfounded claim from art. 191 § 1 CPC instituted with the amendment of the Code of Civil Procedure in 2019 blatantly violates the said rules and does not meet the principal purpose guiding the legislator.
- Price: 4.50 €
Opłata od wniosku o doręczenie wyroku z uzasadnieniem w świetle zasady sprawiedliwości proceduralnej
Opłata od wniosku o doręczenie wyroku z uzasadnieniem w świetle zasady sprawiedliwości proceduralnej
(The fee for the request for the delivery of the judgement and the reasons for it against the principle of procedural fairness)
- Author(s):Aleksander Leszczyński
- Contributor(s):Maja Dziubak (Translator)
- Language:Polish
- Subject(s):Civil Law
- Page Range:129-147
- No. of Pages:19
- Keywords:delivery of judgment and the reasons for it; costs; principle of procedural fairness; fair trial
- Summary/Abstract:The article deals with the fee for the request for the delivery of judgment and the reasons for it (art. 25b of the act on civil court fees), introduced with the amendment of the CPC of 2019. Already on its introduction, this legal measure met with reasonable and serious doubt of both legal academics and commentators, as well as practitioners of civil procedure, not only with respect to its soundness but also its compliance with rules ensuing from higher regulations. The article focuses primarily on theoretical problems related to this new institution of civil procedure, pointing to the practical ones as well. The discussion of the subject matter is based mainly on the right to a fair trial included in art. 45 sec 1. of the Polish Constitution, and the ensuing principle of procedural fairness. The author also analyses the history of the fee for the request in question under the basic civil procedural law currently in force. Due to the nature of the problem addressed, attention is drawn to the purpose and functions of reasons for judgment within civil procedure.
- Price: 4.50 €
Zaskarżalność postanowień, których przedmiotem jest odmowa uzasadnienia orzeczenia oraz jego doręczenia
Zaskarżalność postanowień, których przedmiotem jest odmowa uzasadnienia orzeczenia oraz jego doręczenia
(Challenging the decisions of the first and second instance courts concerning the refusal to justify the ruling and its submission)
- Author(s):Paweł Bury
- Contributor(s):Krzysztof Leitgeber (Translator)
- Language:Polish
- Subject(s):Civil Law
- Page Range:149-168
- No. of Pages:20
- Keywords:civil procedure; appeal; final judgments in a legal proceeding; grounding the judgment
- Summary/Abstract:This article’s subject matter are issues connected with CPC-based challengability of the decisions of the first and second instance courts concerning the refusal to justify the ruling and its submission. They have been caused by the changes introduced in the act of 4 July 2019, at the same time raising some doubts in interpretation, so far unresolved. The challengability of the decisions which refuse to justify the ruling and its submission is undoubtedly crucial from the party’s interest viewpoint, as it is connected with the issue of appealing against the very decision, which the court refused to justify and submit. In general, appealing against such a decision will be inadmissible if the party does not successfully submit a prior request for its submission with the justification and does not receive this ruling.
- Price: 4.50 €
Zażalenia poziome – problemy i wątpliwości w praktyce sądów powszechnych
Zażalenia poziome – problemy i wątpliwości w praktyce sądów powszechnych
(Horizontal appeals – problems and doubts in the practice of common courts)
- Author(s):Jan Wojciechowski
- Contributor(s):Krzysztof Leitgeber (Translator)
- Language:Polish
- Subject(s):Civil Law
- Page Range:169-189
- No. of Pages:21
- Keywords:appeals; challengability; devolutive effect; suspensory effect; impartiality
- Summary/Abstract:In this article, the author analyzes the newly implemented institution of horizontal appeals, which are examined by another composition of the court of first instance. He also presents the history of workings of horizontal appeals in Polish civil procedure, especially in the Constitutional Tribunal’s body of rulings, as a result of which the discussed institution was introduced into Polish civil procedure. The advantages of introducing this solution are analyzed, such as the avoidance of forwarding the file to another court. Next, the drawbacks connected with introducing the solution under discussion are pointed out. The author highlights the psychological aspect of the administration of justice and a threat connected with leaving the cases which which are of key importance to the party’s rights in the same department. Apart from that, the remaining dangers occasioned by the amendment are indicated, such as the possibility that the regionalization of judicial decisions or the domestic forum shopping will emerge. The concerns are raised as to the introduced decisions’ compliance with the regulations of the Polish Constitution, which ensure the right to adjudicate before an impartial court. Next, the problem of the so-called “orphaned appeals”, i.e. appeals which do not figure in the catalogue of those appealed vertically (art. 394 § 1 CPC) or horizontally (art. 3941a § 1 CPC) is considered. The arguments are presented in favour of the decision to appeal against the aforementioned rulings both vertically and horizontally. The author adopts the position that those rulings should be appealed against vertically.
- Price: 4.50 €
Zażalenie w postępowaniu zabezpieczającym – zmiany (i ich brak) po nowelizacji z 4 lipca 2019 r.
Zażalenie w postępowaniu zabezpieczającym – zmiany (i ich brak) po nowelizacji z 4 lipca 2019 r.
(Complaint in proceedings for a protective measure – amendments (and lack thereof) following the 4th of July 2019 amendment)
- Author(s):Magdalena Hilt
- Contributor(s):Maja Dziubak (Translator)
- Language:Polish
- Subject(s):Civil Law
- Page Range:191-215
- No. of Pages:15
- Keywords:proceedings for a protective measure; complaint; horizontal complaint; amendment of 2019
- Summary/Abstract:The article aims to discuss the changes introduced by the 2019 amendment of the Code of Civil Procedure regarding complaint in proceedings for a protective measure. The main intent behind the amendment was to improve and accelerate civil procedure, including proceedings for a protective measure. Alterations concerning complaints appear particularly significant with respect to proceedings for a protective measure, whose purpose is to ensure the efficiency of civil proceedings. The changes in proceedings for a protective measure include, for example, the introduction of horizontal complaints against decisions on protective measures. The scope of cases to which horizontal complaints pertain has been consistently extended by the legislator, despite numerous controversies and shortcomings pointed out by legal authors. For unclear reasons, the introduction of horizontal complaints into proceedings for a protective measure has not been straightforwardly bound to the inclusion of suability of decisions on protective measures first issued during second-instance proceedings. Other changes to the procedure, including the lack of possibility to lodge a complaint before a prior request for drawing up and delivering reasoning for the decision, have made the complaint procedure far more complicated, at the same time extending the duration of proceedings contrary to the idea behind the amendment.
- Price: 4.50 €
Skład sądu pierwszej instancji w przypadku uchylenia wyroku i przekazania sprawy do ponownego rozpoznania (art. 386 § 5 k.p.c.)
Skład sądu pierwszej instancji w przypadku uchylenia wyroku i przekazania sprawy do ponownego rozpoznania (art. 386 § 5 k.p.c.)
(The composition of court of first instance in the event of the judgment being set aside and remanded for reconsideration (Article 386 § of the Code of Civil Procedure))
- Author(s):Barbara Cis
- Language:Polish
- Subject(s):Civil Law
- Page Range:217-243
- No. of Pages:27
- Keywords:judicial impartiality; exception of a judge; independence of the court; composition of the court; iudex inhabilis
- Summary/Abstract:The amendment to the Code of Civil Procedure made by the Act of 4.07.2019, has changed the content of Art. 386 § 5 of the Code of Civil Procedure, concerning the composition of the court of first instance if an appellate court issues a cassation judgment in merito, i.e. if the judgement is set aside and the case is remanded for reconsideration. Before the aforementioned amendment, if the case was remanded for reconsideration to the court of first instance, the court heard it in a different panel (other than the original one). Currently, the legislator assumed that if the judgment is set aside and the case is remanded to the court of the first instance for reconsideration, the court hears it in the same composition as originally, unless it is impossible or would cause excessive delay in the proceedings. The change is another departure by the legislator from the principle of changing the court panel of first instance in the event of reconsideration by this court of a case referred to it by the appellate court, which was intended to constitute the implementation of the constitutional guarantees concerning the independence and impartiality of the court. For the above reasons, this change, both in the doctrine and in the jurisprudence, raises significant objections, especially considering the ratio legis of the amendment, expressed by the legislator in the justification of the draft amendment to the act.
- Price: 4.50 €
Nowelizacja postępowania odrębnego w sprawach z zakresu ubezpieczeń społecznych
Nowelizacja postępowania odrębnego w sprawach z zakresu ubezpieczeń społecznych
(Amendment to the regulations of separate proceedings in social insurance cases)
- Author(s):Michał Szulczewski
- Contributor(s):Krzysztof Leitgeber (Translator)
- Language:Polish
- Subject(s):Civil Law
- Page Range:245-266
- No. of Pages:22
- Keywords:civil procedure; social insurance law; amendment to the Code of Civil Procedure; simplified procedure
- Summary/Abstract:This article’s subject matter is an analysis of the amendment to the regulations of the Code of Civil Procedure with effect from 7 November 2019, which regulates separate proceedings in social insurance cases, as well as a critical assessment of these regulations from the viewpoint of actual court practice, and an attempt to formulate de lege ferenda postulates. The implemented legislative changes have been divided into three separate categories, according to their character and importance to the course of procedure. First, the discussion addresses the changes with an ordering intent, connected with the modification of general provisions regulating the civil procedure, in particular those which introduce the right to issue rulings in chambers and the institution of preparatory meeting. The second group comprises the changes relating closely to the cases concerning social insurance and consisting in clarifying the institution of referring the case back to the social security organ from art. 467 § 4 CPC, amending the regulations concerning court’s jurisdiction, and introducing the possibility of revoking the decision of the social security organ in cases of reviewing decisions which impose a duty on the insured, determine its extent, or lower the benefits. Finally, the issue stirring most controversy has been raised, i.e. one concerning the modification of the catalogue of cases subject to resolution in the simplified procedure by expanding it to cover the cases listed in art. 4778§ 2 CPC and pension cases.
- Price: 4.50 €
Postępowanie odrębne w sprawach własności intelektualnej
Postępowanie odrębne w sprawach własności intelektualnej
(New legal proceedings in intellectual property matters)
- Author(s):Katarzyna Małgorzata Duda
- Contributor(s):Maja Dziubak (Translator)
- Language:Polish
- Subject(s):Civil Law
- Page Range:267-283
- No. of Pages:17
- Keywords:intellectual property proceedings; separate proceedings; intellectual property courts
- Summary/Abstract:The article describes a new type of proceedings introduced into the Polish legal framework by the 2020 amendment of the Code of Civil Procedure. Intellectual property proceedings are the result of the implementation of EU legislation on the one hand, and on the other, a response to practitioners, who have been indicating for years existing procedural provisions are insufficient for effective enforcement of intellectual property rights. The article’s focuses is primarily on the structure of the new separate proceedings and the new procedural institutions created solely for the purposes thereof. The changes closely correlated with the introduction of the new proceedings also are indicated, such as the newly created specialized divisions of common courts in which only intellectual property proceedings shall be conducted. Attention is drawn to certain derogations from general rules and to changes in existing institutions regulated by the Code, such as the obligation to appoint a professional attorney, legal adviser or patent counsel. Moreover, the article cites latest opinions of legal academics and commentators on the new type of proceedings, draws conclusions and points to problems that may arise in the future. As the subject matter discussed is quite recent, the article is for the most part theoretical in nature.
- Price: 4.50 €
