In the next An article from the cycle describing the amendment of the Civil Law Code looks at new developments in appeals and complaints, including new court fees.
First, It should be stressed that the condition for bringing an appeal, including an appeal, will now be to submit a request for service of a written statement of reasons. At the same time, a charge on the application for service of a judgment of the amount of 100 PLN (new Article 25b Act dated 28 July 2005 on judicial costs in civil matters).
The applicant must indicate a specific part of the recording of that fact (minutes and seconds).
Under the new rules, formal review of the appeal, i.e. whether the appeal meets the requirements of form, content, time limit and charge (which depends on the effectiveness of the action, i.e. the examination of the case by the court of the second instance) is a matter of appeal and will be carried out by the appeal court. The only action of the Court of First Instance will be to present an appeal file to the appeal court.
As regards cases relating to the transmission of appeals, the judicial referendar (Article 373(2) k.p.c.). The formal review of the appeal is limited to the assessment of strictly specified grounds and, consequently, cannot be considered to be the exercise of justice (which is reserved only for judges). This review is a judicial act and constitutes a form of legal protection and can therefore be carried out by judicial referents.
The appeal shall continue to be lodged with the court which issued the contested judgment within two weeks of service to the applicant. As already indicated above, the submission of an application for reasons of judgment is a necessary condition for bringing an appeal.
In the event of an extension of the time limit for the written justification of the judgment on the basis of Article 329(4) k.p.c., the time limit for appeal is three weeks (Article 369(1) 1 (k.p.c.) That time limit shall be notified by the court to the party in service of its judgment on the grounds that, if that time limit is incorrectly indicated in the notice and the party has complied with it, the appeal shall be deemed to have been lodged within the time limit (Article 369(1) 1 k.p.c.).
Where a party lodges an appeal directly with the court of the second instance within the time limit, the appeal court shall only inform the court of the first instance of that fact and request the file of the case (Article 369(3) k.p.c.).
In the recipe Article 368 k.p.c. on appeal requirements added new section 1 1 - 1 3 . Article 368(1) 1 k.p.c., it follows that if the appellant raises objections concerning the basis for the decision in fact, he must indicate the facts relevant to the decision or established by the court of First Instance contrary to the actual state of affairs. This obligation will also apply to facts not established by the court and, according to the appellant, which are essential for the outcome.
In the light of new facts or evidence, it should be borne in mind that their appointment in the proceedings before the Court of First Instance was not possible or the need for their appointment arose later (Article 368(1) 2 (k.p.c.)
However, the most important change from the point of view of practice appears to be the change referred to in the new provision Article 368(1) 3 k.p.c. The applicant must indicate a specific part of the recording of this fact (minutes and seconds) by reference to the fact shown by evidence established by means of a recording device.
Thus, when the party in the appeal cites evidence in first-instance proceedings, e.g. from hearing the parties, witnesses or experts, or record of the examination, it must indicate part of the record on that fact.
In order to justify the need for such a change, it was rightly pointed out that the absence of this requirement necessitates the need for judges of the second instance to listen to many hours of recordings which are not related to appeals, which means an obvious waste of time, and the party who claims the complaint in this respect knows exactly where the testimony is located.
It should be pointed out that, in principle, the court of the second instance may recognise the case at a secret sitting if the hearing is not necessary. On the other hand, it is unacceptable to hear a case at a secret hearing if a party in an appeal or in response to an appeal has applied for a hearing.
An important change was also introduced in the provision Article 373 1 k.p.c., according to which the appeal is served to the parties and they have the right to reply to the appeal. This amendment means that in proceedings involving multiple parties on the plaintiff's or defendant's side, everyone should receive an appeal and everyone will have the right to reply to the appeal.
New to the decisions of the appeal courts is the possibility for the court to provide written justification or transcription of the statement of reasons
In civil proceedings, a full appeal system is in force, which means that the court of the second instance, within the limits of the appeal, re-examines the case. The appeal court may make its own factual findings, but may also accept as its own findings the Court of First Instance.
As a general rule, a court of the second instance should seek a reform decision (i.e. amending the judgment of the court of first instance) if the appeal is taken into account (i.e. repealing the judgment and transfer for re-examination).
When amending the Code of Civil Procedure, it was pointed out that limiting the repeal of the judgment and the transfer for re-examination in many cases was not the best solution, since the courts of First Instance sometimes imposed on the appeal court the obligation to make factual findings and to conduct evidence in the case.
In extreme situations, in appeal proceedings it was necessary to carry out time-consuming analyses of the facts and to assess evidence in principle again. This resulted in the imposition of work on the part of the appeal court, which should be performed by the court of first instance.
For these reasons, the amended provision Article 386(5) k.p.c., it was decided that, in the event of abrogation of the judgment and transfer of the case for re-trial, the court of First Instance shall examine it in the same composition, unless this is impossible or would cause undue delay in the proceedings.
The purpose of this amendment is to impose on that judge whose decision has been repealed.
The above is intended to serve as an incentive for careful conduct of proceedings at First Instance, but it is rightly argued that the court of First instance, which is to "correct" its shortcomings, may stand in its position, in his right view, that the original decision was correct.
These concerns do not eliminate the rule Article 386(6) k.p.c.
on binding the legal judgment of the appeal court, since it can always be argued that, in the re-examination of the case, there has been a change in the facts, also by supplementing it, which, according to the judge who re-examined the case in First Instance, confirms the validity of the original decision.
A new feature of the appeals court rulings is the possibility for the court to provide written justification or transcription of the statement of reasons.
A fair and beneficial solution for the parties is the possibility to suspend enforcement of the judgment of the court of the second instance from the time of its adoption and before bringing a cassation action (Article 388(1) (k.p.c.)
Should the appeal be rejected, the complaint will be entitled to a different composition of the court of the second instance (Article 3942k.(c)
Complaint
The changes to the rules on complaints aim at a radical acceleration of proceedings. Following the changes, most complaints against the rulings of the court of First Instance will be recognized by another composition of the same court. Approximately 80% complaints will be dealt with in the court of the first instance and only if the composition cannot be appointed in the court of the first instance, then it will be the court of the second instance.
Thus, the changes made by the legislator in this matter make the complaint involuntary (Article 394 1 a section 1 k.p.c.). The cases on which the horizontal (non-devolutionary) complaint rule will apply will be:
- 1) refusal or withdrawal of an exemption from judicial costs and refusal to establish or revoke a lawyer or legal counsel;
- 2) dismissing the opposition against the intervention by side and preventing the intervener from participating in the case as a result of the consideration of the opposition;
- 3) the extent of immediate feasibility;
- 4) withholding the enforcement of the final judgment until a reopening action has been resolved;
- 5) the validity of the judgment;
- 6) conviction of the witness, expert, party, attorney and person third to a fine, to order that the witness be brought in and arrested, and to refuse to release the witness and the expert from the fine and the witness from the forced return;
- 7) the refusal to justify the decision and its service;
- 8) correcting or interpreting the judgment or refusing it;
- reimbursement of the advance, reimbursement of the costs of unpaid legal aid granted ex officio, and the remuneration of the expert, mediator and witness's fees, as well as the costs granted in the order for payment if no appeal against the order has been brought;
- dismiss the application to exclude the judge;
- approval of the settlement concluded before the mediator;
- rejection of the complaint;
- dismiss the action against the decision of the referee.
Attention should also be paid to the new provision Article 767 4 section 1 1 k.p.c., according to which in enforcement proceedings complaints will also be dealt with by the same court but in the composition third Judges.
Exceptionally, therefore, the complaint will be devolved (which means moving the case to a higher instance) and this will apply to cases referred to in the provision Article 394(1) k.p.c., i.e. the provisions of the court of first instance terminating the proceedings and the provisions concerning:
- 1) return of the filing submitted as a statement of claim, from which there is no request to hear the case;
- 2) return of the statement of claim;
- 3) refusal to refuse the application;
- 4) refer the matter to an equivalent court or to a lower court or to another procedure;
- 5) suspension of proceedings and refusal to take suspended proceedings;
- 6) reimbursement of costs, determination of the rules for the parties to bear the costs of the trial, reimbursement of the charge or charge of the costs of the court — if the party does not lodge a complaint as to the substance of the case.
This amendment is intended to put an end to the possibility of delaying the main proceedings, which was to make numerous complaints, e.g. on exemption from costs, exclusion from the judge and others.
It was pointed out that subjecting the court to a horizontal review of the decisions of the court on matters which are essential to the parties, but which nevertheless are incidental to the main decision, would ensure a quicker examination of the case, for example because there is no need to send the file to the appeal court.
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 ), Civil Procedure Reform. Part V — Restoration of business proceedings
Author: Aleksandra Księżyk – Legal advisor, Director of the Legal Department in Warsaw Chancellery Russell Bedford Dmowski and Partners Law Firm sp. k.