The revision of the procedural documents procedure will make it easier for debtors to paralyze the proceedings by avoiding receiving correspondence.
On 11 April 2019 Permanent Subcommittee on the Amendment of Civil Law after consideration of a government bill amending the Act – The Code of Civil Procedure and some other laws has submitted a report on a project providing, inter alia, for substantial changes in the service of procedural documents under civil procedure.
Controversy raises the intention to abolish the so-called fictions of service of procedural documents, i.e. an institution that assumes that where the consignment has been re-advised and after the expiry of the 7 the date has not been taken by the addressee, such consignment shall be deemed to have been properly served.
Current legal status – what effects do delivery fiction have?
On the ground Act dated 17 November 1964 – Code of Civil Procedure (i.e. Journal of Laws of 2018, item 1360, hereinafter referred to as ‘KPC’) as follows: Article 131(1) The NPCs shall, in principle, be served by the postal operator, by persons employed in a court, bailiff or judicial service.
The proposed amendment will contribute to the extension of pending proceedings and, moreover, due to the urgency of the suspension of proceedings on an ex officio basis Article 177(1)(6) The NPC will prevent creditors from making effective claims in civil proceedings
Based on Article 131 1 section 1 The NPC shall also be allowed to provide electronic service (via the IT system) if the addressee has submitted a letter through that system or has chosen to submit letters through the IT system.
However, what is important for this issue, in its current state of the law, according to Article 139(1) The KPC, in the event that service is not possible in the manner provided for in the procedure, must submit a letter sent through the postal operator to the postal office of that operator and, if otherwise served, to the office of the competent gmina, placing a notice of this at the door of the addressee’s flat or in the mail box, indicating where and when the letter was left, and instructing them to be received within the time limit seven days from the date of the notification (popular ‘aviso’).
In the event of an unsuccessful expiry of that period, the notification shall be repeated and the consignment may be received within the time limit. seven the date of the re-notification.
However, according to Article 139(3) KPC, where the second notification proves to be ineffective and the consignment remains ineffective, the so-called service fiction will be applied. The referenced provision provides that letters for legal persons, organisations, natural persons subject to registration or registration on the basis of separate provisions - in the event of failure to provide service by reason of non-disclosure in the register or in the register of change of address, and in the case of natural persons of residence and address - shall be left in the case file with the effect of service, unless the new place of residence and address are known to the court.
The proposed legal status carries the burden of finding the defendant's address on the plaintiff's website
First, it should be indicated that the new wording proposed by the projector Article 139(3) The NPC de facto provides for the abolition of service fiction. According to the revised Article 139(3) Where a party subject to registration in a judicial register cannot deliver the letter as provided for in the preceding Articles due to non-disclosure in that register of a change of address, that letter shall be left in the file with effect of service, unless the new address is known to the court.
The designer also carries the burden of finding an address for the defendant's service on the plaintiff's side, as he proposed adding a new Article 139 1 KPC, according to which if the defendant despite repeated notification according Article 139(1) sentence second, did not take the action or any other pleading which called for the defence of his rights, and no letter was previously served on him in the manner provided for in the preceding Articles and shall not apply Article 139(2-3) 1 or another specific provision providing for the effect of service, the President shall inform the plaintiff thereof by sending him a copy to the defendant and shall be obliged to deliver this letter to the defendant through the bailiff.
In addition to this obligation, the draft constitutes the proposed wording Article 139 1 KPC section 2, that the reason in time two months from the date of service of the undertaking in question Under section 1, submit to the file a confirmation of service to the defendant via the bailiff or return the letter and indicate the current address of the defendant or proof that the defendant is at the address indicated in the application. After the deadline has expired, the provision shall apply. Article 177(1)(6) KPC.
Article 177(1)(6) The NPC provides that if, due to the absence or indication of the wrong address of the plaintiff or the failure by the claimant within the prescribed time limit of the defendant's address or failure by the plaintiff of other orders, no further running is possible.
Amendment full of defects - defects of the project
The current amendment raises numerous concerns. First, It should be stressed that the proposed legal arrangements do not provide for additional instruments for the provision of judicial bailiffs for the effective identification of the defendant's hypothetical address than those available to the postal operator. Thus, the court bailiff will serve as a service provider in the ‘substitution’ of the postal operator, and the consignment will be returned to the plaintiff.
At this point we are approaching the unfortunate clue of the proposed amendment, which is a two-month time limit for the claimant to file a confirmation of service to the defendant via the bailiff of the letter or return the letter and indicate the defendant's current address or proof that the defendant is at the address indicated in the application.
If the plaintiff had known the defendant's current address, she would have pointed out him in the lawsuit with considerable probability. Practical doubts are also raised by the obligation to provide evidence of the defendant’s presence at the address indicated.
The discovery and appointment of witnesses will take up valuable time (assuming that they are effectively notified of proper service).
Furthermore, the plaintiff practically does not have legal instruments to identify the defendant's current address, in addition to the request to provide data from the PESEL register (although often the PESEL register only contains a check-in address, already known to the plaintiff and in the course of a case which appears out of date).
Any other non-orthodox form of setting the defendant's address will produce additional costs, and it is difficult to expect that it will produce fruit within a short time limit outlined by the legislature (the title of the revised example can be indicated by the order to establish the defendant's address of the detective agency).
For these reasons, the proposed revision of the provisions of civil procedure in the current form should be assessed critically.
It is highly likely that it will contribute to the extension of pending proceedings and, moreover, due to the severity of the suspension of proceedings on an ex officio basis Article 177(1)(6) The NPC will prevent creditors from making effective claims in civil proceedings.
It is sufficient, albeit not necessarily sophisticated, to avoid mailman, receiving correspondence and attempts to serve by a court bailiff in order to lead to suspension of proceedings. And as the experience of life suggests – in this respect, for the imagination and creativity of debtors, heaven is not a boundary.
Author:
Michał Skwarek - Council applicant in the legal department Russell Bedford Poland. Graduated from the Faculty of Law and Administration of the University of Warsaw.