In the next An article from the series describing the amendment of the Civil Law Code looks at changes in the evidence procedure.
Act dated 4 July 2019 amending the Act – Code of Civil Procedure and some other laws (Journal of Laws of 2019, item 1469) numerous and significant changes to the Code of Civil Procedure (hereinafter: ‘k.p.c.’). Some changes came into force 21 August 2019, However, the vast majority of them will apply from 7 November 2019
Evidence
First, indicate that in the amended provision Article 187 k.p.c., the legislator has made a requirement that the application should indicate the facts on which the plaintiff bases his request. At the same time, the obligation to specify the exact request remains. It is not known whether the change of “actual circumstances” to “facts” in the design of the designers is intended to require more specificity, or whether it is just semantics.
In the recipe Article 187(2) k.p.c. also added a new point 4), according to which where evidence is requested in courts, offices or persons third, the reason should be similar to why it cannot obtain them itself
At the same time, the requirements for the evidence proposal have also changed (Article 235 1 k.p.c.). The evidentiary conclusion is to indicate the facts which the party wishes to demonstrate with the evidence in question and not so far ‘circumstances’. The procedural representative should therefore bear in mind that the application for evidence should exhaustive list all facts to be proved by the evidence requested.
In the recipe Article 187(2) k.p.c. also added a new point 4), according to which where evidence is requested in courts, offices or persons third, the reason should be similar to why it cannot obtain it itself.
According to the new provision Article 191 1 k.p.c. referred to In the first part of the cycle (Chapter Prevention of abuse of procedural rights. Penalties), if from the application and annexes and the circumstances relating to the case and the facts in question under Article 228 k.p.c., it is evident that the action is manifestly unfounded, that the court may dismiss the action or dismiss the action at a secret sitting. In the margins, it should be pointed out that there is no cassation complaint in such a case.
On the other hand, as regards the response to the suit, it has become in a way compulsory, since the absence of its submission may result in a default judgment (Article 339(1) (k.p.c.) Furthermore, failure to submit a response to a lawsuit within the time limit prescribed by the court should result in recognition of the claims made by the defendant regarding the facts cited in the application in accordance with the applicable provision. Article 230 in relation to Article 229 k.p.c.
In the recipe Article 126 k.p.c. concerning procedural documents Under section 1 point 5.
it has been clearly indicated that, where necessary in order to determine the application or declaration, the party should indicate the facts on which he bases his application or declaration and indicate evidence of the demonstration of each of those facts.
Thus, it will not be possible to provide, as in previous civil practice, a summary of the evidence of a number of circumstances identified in the procedural document only necessary to systematise and link a given fact with the concrete evidence to be demonstrated.
The preparatory letter, which aims to prepare the case for resolution, should, on the other hand, state the brief state of the case, specify the facts granted and the facts denied and state the arguments and evidence put forward by the opposing party (Article 127(1) (k.p.c.) This means that in the preparatory letter it will be necessary to make a clear statement on each individual fact, in particular as regards the denial of individual facts.
It will therefore not be acceptable to make a template statement that the party contradicts all claims made by the opposing party, in addition to those explicitly acknowledged. Such a formula sometimes used by attorneys does not meet the requirements of the regulation Article 127(1) k.p.c.
These requirements correspond to the new wording of the provision Article 210(2) k.p.c., according to which each party is required to make a statement as to the contrary party's claims regarding the facts and to clearly state the facts to be denied.
The correct new solution is to adopt the recipe Article 243 2 k.p.c. that the documents on or attached to the case file constitute evidence without a separate provision. It is not until the evidence from such a document is passed by the court.
It is also possible for the court to carry out evidence in a case already after the court has closed, not only in cases where evidence is carried out either by a judge designated or by a court summoned either from a file or from an explanation of the public administration bodies, but also in cases where evidence is made from a document drawn up by a public administration authority or in its file or from a document contained in a court or chamber file.
Witness statements
According to the new Article 242 1 k.p.c., the party who requested a request for a witness, expert or other person to appear in the prescribed time and place, in particular to notify him of the obligation, time and place of appointment.
In addition, a novelty in civil procedure is the possibility for the witness to give written testimony. According to Article 271 1 If the court so decides, the witness may give written statements. Then he signs the promise text.
With regard to evidence from the witness' testimony in writing, the arguments against this solution concerning the inability of the other party to verify the credibility of the witness and the ability to assess his behaviour, to understand certain questions and phrases in a certain way.
Nor will it be possible to ask the witness "ad hoc" about certain issues that arise during the hearing. At times, witnesses remember certain circumstances concerning which the party may not have knowledge or memory, and it is necessary to explain the matter by asking the witness about the fact.
New to the civil procedure is the possibility of the witness giving written testimony
This point seems to be correct in the light of a new provision Article 272 1 k.p.c., which states that if the court raises doubts as to the witness' ability to observe or communicate observations, may order a hearing with an expert doctor or psychologist and the witness may not object.
It should be stressed that, when the witness gives written testimony, the court will not be able to assess the ability of the witness to perceive and react to such a situation. The institution of written testimony should therefore be used with a high degree of caution and rather in exceptional cases.
With regard to evidence from the testimony of the witness in simplified proceedings, the legislator has waived the prohibition of combining the roles of the witness and the expert. A witness who has special information relating to the facts which he is testifying to — ‘expert witness’ — may also provide an opinion assessing those facts.
It should also be noted that this does not prevent the same person from drawing up an earlier opinion on behalf of an entity other than a court (most often the parties).
This is reflected in the provision Article 505 7 section 3 k.p.c.: The witness's submission does not prevent him from consulting him as an expert, also as to the facts of which he testified (witness-expert), even if he had previously drawn up an opinion on behalf of an entity other than a court.
Attention should also be paid to changes in Article 282 k.p.c. as regards the oath made by the expert, namely, if the expert has been commissioned to draw up a written opinion, he may make a promise by signing the text of the oath which accompanies the opinion. In turn, an expert on the list of experts does not take a vow. Such expert shall invoke the oath made when he was established in such a capacity.
Obtaining a document from another authority
As already indicated above in the recipe Article 187 k.p.c. concerning the lawsuit, legislator in paragraph second added new point 4, according to which, when establishing evidence from a document in the court, office or person third, the applicant is required to indicate that he cannot obtain such a document himself.
The party cannot therefore simply bring to the attention of the court to a particular body or person third the document in question, but must indicate why it cannot itself obtain and present the documents requested. This change corresponds to the change Article 208(1)(2)) k.p.c.
It is therefore possible to produce evidence from an opinion drawn up in another case, which could contribute to the improvement and speed of proceedings.
The charge of being hit.
Legislator in new provision Article 203 1 section 1 k.p.c. has limited the possibility of raising a charge of deduction in the process, namely, the basis of the charge of deduction may be only the defendant's claim from the same legal relationship as the claimant's claim, unless the defendant's claim is undisputed or proved by a document not derived from the defendant.
It is possible that the legislator was guided by the fact that the procedural charge of the deduction is usually a means of defence of the defendant, rather than a way of seeking redress from the plaintiff for each other.
The application of the charge of deduction shall not give rise to the suspension of the case with regard to the claim submitted for the charge.
A legitimate judgment given in a case in which such a plea was raised does not, however, have the seriousness of the judgment (res judicata) in so far as it determines the existence or non-existence of a claim to be set aside.
In the case in which the charge of the charge of charge is raised, the court does not decide in the operative part whether or not the defendant’s claim is taken. The decision on the merits of the ground of appeal is directly reflected only in the statement of reasons.
In the recipe Article 203 1 section 2 k.p.c., the legislator introduced a time limit for filing a procedural charge of deduction – no later than when entering a dispute over a material matter, either within the time limit two weeks from the day his claim became due.
It should be noted that in the event of failure to establish in due time and failure to take account of the charge of set-off, there may be a break in the procedural and substantive consequences of the set-off, which may result in complications.
After all, the material deduction will have its effect in the form of an expiry of the claim, but if the charge of the deduction is not taken into account, e.g. due to its application too late, then the court will file a claim without considering the charge.
In such a situation, it remains necessary to defend its rights by the person making the deduction in the framework of an anti-executive action.
Read more about the revision of the Civil Procedure Code in the rest of the cycle:
Reform of civil procedure - the most important changes. Part I
Reform of civil procedure - the most important changes. Part II. New delivery system
Civil procedure reform. Part III - Amendments to the preparatory sitting and the agenda
Author: Aleksandra Księżyk – Legal advisor, Director of the Legal Department in Warsaw Chancellery Russell Bedford Dmowski and Partners Law Firm sp. k.