In the next An article from the cycle describing the amendment of the Civil Law Code looks at changes in the work of courts that will resolve economic matters separately.
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 So far we have described selected changes in the subsequent editions of the cycle – we invite you to read: Part I, Reform of civil procedure - the most important changes. Part II.
New delivery system, Reform of Civil Procedure Part III - Amendments to the Preparatory Meeting and the Judicial Plan, Reform of Civil Procedure. Part IV - evidence procedure ).
Extended economic affairs directory
Designation as competent for the examination of economic matters of economic courts The legislator has transferred from the law 24 May 1989 on the recognition by the courts of economic affairs to the Act of 27 July 2001 Law on the system of common courts.
Under the new rule Article 10 a Laws on the system of ordinary courts, economic courts shall recognise economic and other matters of economic and civil law which fall within their jurisdiction under separate provisions. The economic courts are appointed to do so by the departments of the general courts.
Rule Article 458 2 section 1 k.p.c. defines that economic matters are:
- 1) from civil relations between entrepreneurs for their business activities;
- 2) specified Under point 1, even either party has ceased its business;
- 3) the relationship of the company and the claims in question under Article 291-300 and Article 479-490 Act dated 15 September 2000 – Commercial Companies Code (Journal of Laws of 2019, item 505);
- 4) against entrepreneurs to refrain from violating the environment and to restore or remedy the damage to the environment and to prohibit or restrict environmental activities;
- 5) works contracts and construction contracts relating to the construction process;
- 6) lease agreements;
- 7) against persons in charge of the undertaking's debt, whether by mutual or mutual agreement, by law or by law;
- 8) between the authorities of the State undertaking;
- 9) between a State undertaking or its authorities and its founding authority or supervisory authority;
- 10) in the field of bankruptcy and restructuring law;
- 11) to give a declaration of enforceability to the instrument of enforcement, which is the judgment of the economic court, whether legally or immediately enforceable or the settlement concluded before that court;
- 12) that the enforceable title based on a final or immediate enforcement of a judgment of an economic court or a settlement concluded before that court be deprived of enforceability.
They are not economic matters of:
- 1) the division of the assets of the joint shareholders of a civil partnership after it has ceased;
- 2) a claim acquired from a non-entrepreneur, unless that claim derives from a legal relationship in the field of business conducted by all its parties.
As is apparent from the above catalogue, all works contracts, leasing contracts, as well as those responsible for the entrepreneur's debt, including by way of mutual or mutual consent, were treated as economic matters by law or legal action.
In evidence proceedings, evidence from witnesses has also been limited, in such a way that the court can allow such evidence only if, after the other means of evidence have been exhausted or in their absence, the facts relevant to the outcome of the case remain unexplained.
Institutions excluded in economic proceedings
According to the above-mentioned catalogue of economic affairs, non-business partners may also be present, and a large group of entrepreneurs will probably be individuals who usually operate on a smaller scale. Therefore, such persons may request that the case be examined without the rules on economic proceedings.
Such a request will be binding on the court and will result in an economic court hearing the case, but without applying the rules on economic proceedings, i.e. in a "normal" process ( Article 458 6 section 1 (k.p.c.)
The objective of returning to a separate economic procedure is to streamline and speed up the examination of such cases. For these reasons, the following institutions may not be used in economic proceedings:
•
a change of action involving a new claim instead of or alongside the previous one, except that, in the event of a change of circumstances, the claimant may demand, instead of the original subject matter of the dispute, its equivalence or other subject matter, and in cases of repeated benefit, may extend the claim to benefits for subsequent periods,
•
subject changes in the process on a general basis Article 194-196 k.p.c. and Article 198 k.p.c. (only main or lateral intervention from Article 75-83 and a lawsuit with Article 84-85)
•
transfer to the district court of a case pending in connection with a case pending by that court on the basis of Article 205 k.p.c.
•
the suspension of proceedings due to the non-contribution of the parties to the hearing on a general basis Article 177(1)(5) k.p.c.
•
counterclaim Article 204 k.p.c.
Return to Evidence Preclusion Principles
In the course of the economic proceedings, the principles of evidence in force in the economic proceedings were recalled before 3 May 2012 Under the new rule Article 458 5 section 1 k.p.c. the plaintiff is obliged to establish all claims and evidence in the lawsuit, and the defendant – in response to the suit. According to section 2.
by providing the instruction in question under Article 458 4 section 1, The chairman shall invite the party to establish all the claims and evidence within the prescribed period, not less than a week.
Under section 3 It is noted that, under the circumstances of the case, the chairman may specify another time limit for the party to establish claims and evidence.
On the other hand, section 4 says claims and evidence established in violation section 1-3 are excluded, unless a party similar to that party has not been able to appoint them, or the need for their appointment has come later.
In that case, further claims and evidence to support them should be established within the time limit two weeks from the date on which their appointment became possible or the need for their appointment arose.
If you look at the economic proceedings before 3 May 2012, This can be seen in how extensive the justifications for the pleadings have been formulated, including further, "new" evidence applications, which the need to establish could always have arisen later. Therefore, there can be doubts as to whether the restoration of these principles of evidence will actually improve the procedure.
Conclusion of the evidence agreement
A new feature in the economic procedure is the possibility for the parties to conclude an evidence agreement. According to Article 458 9 section 1 k.p.c. The Parties may agree to exclude specific evidence in the case from a particular legal relationship arising from the contract.
The contract must be concluded in writing under the terms of annulment or orally before a court. Contracts may not be concluded subject to or subject to a time limit.
On the other hand, the plea of annulment of the evidence agreement may be raised at the latest at the sitting at which it was referred to, or in the following procedural letter, in response to the letter in which the evidence agreement was referred to.
The court of its own motion will therefore not be able to allow evidence excluded from the evidence agreement, unless there is a position to declare such evidence agreement invalid. On the other hand, if it turns out that, as a result of an agreement of evidence, it will not be possible to determine the circumstances of the case, because there will be no evidence – then it is possible to extend the discretion of the judge as to the circumstances of the case (Article 458 9 section 7 k.p.c.).
It appears from the provisions on the evidence agreement that there are no obstacles to the agreement being concluded already at the stage of the conclusion of the relevant agreement by the parties or even to the agreement being part of the relevant agreement concluded by the parties.
In extreme cases, it is also possible to imagine an evidence agreement which will exclude all other evidence in the evidence procedure, except for evidence from the contract itself and documents attesting the performance of the contract, which may significantly limit the possibility of showing any additional circumstances relevant to the examination of the case in court proceedings and lead to an even greater complexity of complex works contracts, syndicated contracts or investment contracts.
On the other hand, you should remember that Article 458 provides the possibility for weaker, less experienced entities such as non-traders and traders who are natural persons, as if they were to deviate from the effects of an evidence agreement on them as a result of their submission of an application for examination of a case in a ‘ordinary’ procedure rather than in an economic procedure.
The evidence was also limited in the evidence of witnesses, in such a way that the court could allow such evidence only if, after the other means of evidence have been exhausted or in their absence, there were still unexplained facts relevant to the outcome of the case.
It should also be noted that the economic judgment will constitute the title of the security.
Author: Aleksandra Księżyk – Legal advisor, Director of the Legal Department in Warsaw Chancellery Russell Bedford Dmowski and Partners Law Firm sp. k.