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
Subject(s): Civil Law
Published by: Wydawnictwa Uniwersytetu Warszawskiego
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.

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