Sprostowanie orzeczenia jako jedyny przysługujący powodowi środek modyfikacji nakazu zapłaty w postępowaniu upominawczym
Rectification of a Court Ruling as the Plaintiff’s Sole Measure of Modification of the Order for Payment in Writ-of-Payment Proceedings

Author(s): Karina Kunc‑Urbańczyk
Subject(s): Law, Constitution, Jurisprudence
Published by: Wydawnictwo Uniwersytetu Śląskiego
Summary/Abstract: The article is devoted to the issue of implementation of the constitutional right of court control in writ-of-payment proceedings. Nonetheless, the author limits her scope to the plaintiff’s side, analyzing the possible methods for verification of an order for payment issued in this procedure.The author points to a lack of specific regulations in the chapter devoted to such proceedings and analyzes the boundaries of proper application of general regulations concerning rulings to this type of a ruling, according to Article 353 of the Civil Code. At the same time, the author questions the claim that it is impossible to obtain an order for payment which would be unsatisfactory for the plaintiff, thus rejecting the fundamental argument of those scholars who deny the plaintiff the gravamen to initiate any kind of complaint proceedings. In her analysis, the author points to the most fundamental problem which makes it impossible to file any sort of complaint in the allotted time, i.e. the lack of a general rule regarding the necessity for a copy of the order for payment to be delivered to the plaintiff as well as the selective possibility to apply regulations pertaining to the delivery of decisions regarding the orders for payment. Moreover, the author engages in a discussion with those opinions within the doctrine which mandate the obligatory delivery of any kind of a court ruling issued in closed court sessions; she remains critical of the rulings and scholarly articles cited to justify their opinion, arguing that opinions dating to the beginning of the 20th century have become obsolete in relation to the current legislation.Eventually, the author comes to the conclusion that the plaintiff’s only measure of modification of the order for payment is a motion for a rectification of a court ruling. At the same time, she delineates the boundaries of such use of this method in a very broad manner, allowing for the correction of factual errors, including first and foremost those pertaining to the precise sum awarded to the plaintiff by the court. The author also considers the negative consequences for the interests of the defendant and demonstrates that the remaining proceeding measures which exist in writ-of-payment proceedings adequately protect those interests. The validity of those statements is substantiated with the use of appropriate case law. The author concludes with a statement that only the broad interpretation of Article 350 (1) of the Civil Code, in relation to Article 353 of the Civil Code, guarantees the preservation of the constitutional right of the plaintiff to initiate appropriate control over the ruling and to be granted a satisfactory ruling, while remaining respectful of the rights of the defendant.

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