Reform of civil procedure – key changes

Act with 4 July 2019 amending the Act – Code of Civil Procedure and some other laws 1 (further: the Amending Act) has made numerous and significant changes to the Act of 17 November 1964 Code of Civil Procedure (Journal of Laws of 2019, item 1460, Further: k.p.c.).

Some of them entered into force 21 August 2019, However, the vast majority will apply from 7 November 2019 Extensive, containing 213 parties justification for the law 2 shall include an explanation of the objectives of the amendments and an assessment of the existing arrangements and institutions.

The main changes are the limitation, or the interruption of the postponement of proceedings, the relief of the courts and the improvement of their actions, the imposition on the parties of a number of responsibilities in the process and their active participation in the preparation of the hearing, the restoration of the amended economic proceedings, the change in the appeal procedure.

With the change of the law. On 28 July 2005 on judicial costs in civil matters 3 , The main reasons for this increase were the economic burden of court fees, which were not increased from 12 years. The article presents the most important changes to this reform.

1. Changes in jurisdiction

Under the new rule Article 34(2) k.p.c., the legislator specified that the place of performance of the contract is considered to be the place of fulfilment of the benefit characteristic of the contract in question, in particular in the case of: 1) the sale of movable goods – the place to which such goods have been or were to be delivered under the contract; 2) the provision of services — the place where the services under the contract were or were to be provided.

In the recipe Article 35 1 k.p.c. has been made easier in cases of protection of personal property, indicating that, in the case of personal property damaged by mass media, proceedings may be brought before the court competent for the place of residence or residence of the claimant. A similar solution was applied to cases arising from banking operations against the bank, including mortgage bank[4].

The purpose of this solution is to relieve courts in large cities, mainly in Warsaw, where banks usually have a seat, as it will no longer be necessary to bring proceedings before the court competent for the seat of the defendant bank. In the case of real estate cases, the legislature in the new provision Article 38(3) k.p.c. enabled the court competent to refer the case to another court at the same time as the parties so requested, and if there were reasons for purpose.

2. Prevention of abuse of procedural rights, sanctions

The Act amending the law of the General Court contains a number of solutions aimed at preventing the parties from abuse of procedural law, which is to take on the basis and within the limits of procedural law a number of actions to delay proceedings in the case, which are not intended to ensure that the disputed claim is properly judged.

The jurisprudence has repeatedly pointed to various procedural situations which were an abuse of procedural law by the party, for example:

• - amendment of the representative established ex officio and request of postponement of the hearing in order to delay the proceedings 5 ,
• - to request a settlement sample for interruption of the limitation period only 6 ,
• - bringing an action against the length of proceedings just before the final termination of the proceedings and in the knowledge of the party with the deadline for the appeal 7 ,
• - use in the cassation complaint deliberately used understatements as to the facts relevant to the outcome of the case, in order to avoid confirmation that they were undisputed from the outset of the proceedings 8 ,

• Initiating a legal dispute in a situation of deliberate misleading as to the basis for the party's actual claim and knowledge of the unfounded action, which not only contradicts the principles of social intercourse, but also constitutes a violation of the legal order, as well as the principles of a fair trial, such conduct, as the source of the infringement of the injured party's personal property, should be considered unlawful[9].

On the other hand, the explanatory memorandum to the Act amending K.p.c. highlighted the following typical situations where there is no doubt that the party's procedural powers are being abused:

• 1) filing as a letter of complaint without a request for judicial review,
• 2) bringing a lawsuit of course not justified,
• 3) requesting a number of requests for exclusion of the judge,
• 4) to raise a number of complaints on the same or similar subject matter,
• 5) to make a number of requests for rectification, addition or interpretation of the judgment,

as well as bringing numerous complaints to almost every action of the court, that is, not only orders, but also orders, sometimes in technical matters. The party concerned with the delay in the proceedings complained about the action of the court, the complaint had to be rushed, which involved further acts and obstructions.

In the opinion of the drafters, the situation in which the party may also abuse the law is the filing of letters which are not lawsuits and do not contain concrete demands, but entail considerable work by the court and the judge. This is the filing of a letter intended to constitute a lawsuit (or another type of application initiating the procedure), but in fact not in the case.

Perhaps the position presented by the project promoter sometimes takes place in practice, but in this respect it should be taken very carefully.

It is important to draw attention to, for example, social security cases in which a very often unsuccessful person actually brings a letter to the court in his case, from which the scope of the request is not entirely apparent.

Such a person does not have a proxy or even an application for an aid right, nor can he adequately draw up an appeal against the decision of the pension authority and state the charges.

This latter act may also make it difficult for professionals who make unreasonable allegations in this case of infringements of the provisions of administrative proceedings. Nevertheless, it is desirable to reduce the possibility for the parties to extend the procedure, in particular in bright situations.

The legislator therefore introduced a general clause in the provision Article 41 k.p.c. as follows: ‘By the power provided for in the rules of procedure, parties and participants in proceedings must not be used contrary to the purpose for which they are established (abuse of procedural law)’.

While the clause is general in nature, the procedural effects of its application and the related sanctions are included in specific provisions. The Court of First Instance will be able to take action in respect of a party who abuses the procedural right:

1) fines,

2) charge an additional part or even the total costs of the process, and at the request of the opposing party also:

• 3) to charge the costs of the process increased in line with the abuse of the opposing party's workload,
• 4) an increase in the rate of interest due on the benefit claimed, corresponding to the abuse of the delay in examining the case, for the time corresponding to that delay,
• 5) leave the letter without giving it a run or omission.

The individual provisions of the Code containing sanctions are:

• Article 1911(1) k.p.c. If from the content of the application and annexes and from the circumstances of the application, as well as the facts in question under Article 228, is manifestly unfounded, the following shall apply.

section 2. If the action which the law requires to be taken following a lawsuit is of course not intended, it can be disregarded. In particular, the claimant may not be called upon to remedy the deficiencies of the application or to pay the fee, nor to check the value of the dispute or to transfer the case.

section 3. The court may dismiss the action at a secret sitting without serving the action on the person designated as the defendant or having examined the applications submitted together with the action.

section 4. The reasons for the judgment shall be written in writing. It should only provide an explanation of why the action was considered manifestly unfounded. A judgment giving reasons shall only be served by the court of its own motion on the claimant with instructions on the manner and time limits for bringing the complaint;

• Article 1861(1) k.p.c. a letter which has been filed as a lawsuit and which does not give rise to a request to settle a civil dispute shall be returned to the appellant without further action, unless exceptional circumstances justify a run;
• Article 2262 . section 1 k.p.c. Whenever the conduct of the party in the light of the circumstances of the case indicates an abuse of its procedural right, the court shall instruct it to apply the measures in question to it. Under section 2.

section 2. Where a court finds an abuse by a party to a procedural law, it may, in a judgment terminating the proceedings:

1) the abusing party to fine;

1. regardless of the outcome of the case, as appropriate to the abuse of the procedural right of delay in its examination, impose on the abusing party the obligation to reimburse costs in part more than would indicate the outcome of the case or even reimbursement of costs in full;
2. at the request of the opposite party:

(a) grant, on the part of the abuser, the increased costs of the process corresponding to the increased workload of the opposing party, but not more than twice;

(b) increase the rate of interest charged to the party whose abuse caused delay in the examination of the case, for the time corresponding to that delay, except that the rate may be increased no more than twice; the provisions with a maximum permitted statutory interest for delay shall not apply;

• Article 3943(1) k.p.c. A complaint lodged only for delay in proceedings shall not be admissible.

section 2. A complaint brought only for the delay in the proceedings shall be considered as:

• 1) second and further complaint from the same party to the same decision,
• 2) a complaint against a decision given as a result of actions caused by an earlier complaint by the same party
• – Unless the circumstances of the case exclude that assessment.
• section 3. Complaint referred to Under section 1, shall be left in the case file without any further action, in particular not submitted to the competent court. The same applies to the writings relating to its transfer.
• section 4. The requesting party shall be informed of leaving the complaint and of the writings related to its submission only once – when filing the complaint.
• section 5. Provision Article 380 apply mutatis mutandis;

• Article 458 12 k.p.c. (in economic matters) – regardless of the outcome of the case, the court may charge the costs of the proceedings in whole or in part to the party who, before bringing the action, has failed to attempt to resolve the dispute voluntarily, has waived his participation in it or has participated in it in bad faith and has thereby contributed to the unnecessary prosecution or defective determination of the subject matter.

New rules on restrictions to raise the charge of deduction may be considered a solution to prevent abuse of procedural law. Namely, the party will not be able to create any charge of deduction at its own discretion, but will have to comply with the provision in this respect. Article 2031 k.p.c.:

• section 1. The charge of deduction may be based only on the defendant's claim from the same legal relationship as the claimant's claim, unless the defendant's claim is indisputable or materially similar to a document not exclusively from the defendant.
• section 2. The defendant may raise the charge of deduction no later than in the event of a dispute over the substance of the case or within the time limit two weeks from the date his claim became due.
• section 3. The charge of deduction may be raised only in a procedural document. The application shall apply mutatis mutandis to that letter, with the exception of those relating to fees.
• 3. New delivery system

The purpose of the amendments to the legislature in respect of service is to minimise replacement services and thus the fiction of service, so that the party does not find out that he lost the case in the enforcement phase. It was therefore decided to involve the bailiffs in the delivery. The legislator amended the provision Article 139 k.p.c., but the most important change is the content of the new Article 139 1 k.p.c.:

section 1. If the defendant, despite repeated notification in accordance with 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(2-31) or another special provision providing for the effect of service, the President shall inform the claimant thereof by sending him a copy of the letter to the defendant and by requiring the defendant to deliver that letter through the bailiff.

section 2. Reason within time two months from the date of service of the undertaking in question Under section 1, submit to the file an acknowledgement of service of the pleading to the defendant through 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).

According to the amendments adopted, if the defendant fails to collect the consignment with the lawsuit in the post office during the period of its two-time avisation, the post office will return it to the court. However, the court will not consider it served.

The initiative has a responsibility to take over the reason that it can request that the lawsuit be served through a bailiff. The cost of delivery by the bailiff may even be around 120 PLN And a reason will carry him.

In the event of the defendant losing the case, it appears that the plaintiff may legitimately demand a refund from the defendant also of those amounts.

The reasons for this change indicate, inter alia, that: ‘Number of situations where first the letter is returned without service, is significant throughout the judiciary.

This is a consequence of the fact that a large proportion of residents of smaller towns are permanently outside Poland, usually without reporting this to the authorities of the population records." Further, the project promoters point out in the explanatory memorandum: “At least some cases where the document initiating the proceedings was wrongfully regarded as being served despite the actual return can be avoided by enabling the bailiff to deliver such a letter.

Retirement services are generally quick, reliable and relatively cheap, and give more information about the actual whereabouts of the recipient than postal services.’

The above justification cannot be accepted. If a natural person leaves abroad, how would the plaintiff or bailiff seek a defendant abroad to serve the lawsuit?

It can be imagined that a mother is suing for child father alimony, who tries to avoid paying them, may even reside abroad frequently, or may not be “identified” fully with her income.

Not only will the mother as a plaintiff have to bear the costs of the lawsuit, and perhaps also legal aid, the lawsuit will not be served by the postal operator, then she will have to pay for the attempt to deliver via a bailiff, but even such service may not be effective.

Therefore, the possibility to deliver a letter to the defendant through a bailiff may prove to be an ineffective remedy for the current returns of letters sent through a public operator in the event that the defendant fails to receive them, especially if the defendant does not wish to receive them and deliberately avoids it.

The substitute service institution has repeatedly been the subject of consideration by the courts and, in principle, on the basis of current case law, it can be concluded that, if there were doubts as to the correctness of the formal service requirements, or whether the defendant himself and his address were correct, the court again served on the defendant’s application/order of payment and opened the way for his appeal.

For example, the following positions should be indicated:

„Violation of the requirements of the watch. 139 k.p.c. and in the Regulation of the Minister of Justice of 17 June 1999 concerning a special procedure for the service of judicial documents by post in civil proceedings 10 by the delivery servicer makes service ineffective 11 ”;

„The conditions for the efficiency of service under a substitute procedure shall be to refer a judicial order to a party to its competent address, of which the court, on the basis of data from the case file, has or should have knowledge, even if the address given in the application or in another procedural document is incorrect’ 12 ;

„Replacement service in mode Article 139(1) k.p.c. shall be effective when the place of residence of the addressee 13 no doubt about it’ 14 ;

• „Apartment within the meaning of the recipe Article 139 section 1 k.p.c. is a locality referred to in the regulations Article 25-28 Act on 23 April 1964 Civil Code 15 (hereinafter: k.c.), in which the addressee (relatively the person mentioned under Article 26-27 (k.c.) is with the intention of permanent residence. The defendant shall not be required to prove that he does not live at the address to which the judicial mail is sent to him, but the plaintiff if he refers to the effectiveness of the delivery of the consignment to the address indicated by him and the resulting legal consequences’ 16 ;

„Service as foreseen under Article 139(1) k.p.c. may be deemed to have been carried out when a judicial consignment has been sent to the current address and name of the consignee.’ 17 ;

„The basic condition for the effectiveness of the replacement service is that the addressee resides at the address indicated. Consequently, service as provided for under Article 139(1) k.p.c. may be deemed to have been effected only if the judicial consignment has been sent to the current address and the name of the consignee.’ 18 .

It seems that the application of the so-called service fiction should remain, although it could in fact have been subject to certain obligations or additional statements by the plaintiff required when the consignment containing first The procedural document in the case has indeed not been effectively served on the defendant twice.

The legislator should consider leaving certain exceptions to the amended provisions Article 139(139) 1 k.p.c. in the form of, for example, the possibility for the plaintiff to demonstrate that he had made every effort to deliver the application, but for objective reasons this became impossible and the court would have the opportunity to determine the effect of service.

At present, it is not known what practical dimension the change in the delivery system will have, but it may soon be necessary to modify some of the modifications, especially since it is not possible to resist the impression that the protection of the legislator has been gained in this case by the debtor.

4. Preparatory sitting, plan of the hearing

After serving the application and responding to the application, the court may, in justified cases, in particular in complex or accounting matters, order the parties to exchange preparatory letters.

The court shall then, in principle, set up a preparatory sitting, but if the circumstances of the case indicate that the holding of that sitting will not contribute to a more efficient examination of the case, the President may give it a different appropriate course, in particular to refer it to the hearing, also at the hearing[19].

In the recipe Article 205 5 section 1 It was pointed out that the preparatory procedure was designed to resolve the dispute without the need for further meetings, in particular the hearing. If the dispute cannot be resolved, a plan of the hearing shall be drawn up at the preparatory meeting.

It therefore appears that, where the court considers that the circumstances of the case indicate that the preparatory proceedings will not contribute to a more efficient examination of the case, the plan of the hearing will not be drawn up.

However, if a preliminary sitting is set up by the court, as a general rule, the representatives or the parties must be present and participate actively; if they do not attend, the legislature has provided for the sanctions laid down in the legislation Article 205 5 section 4-7 k.p.c.

In the event of the wrongful failure of the claimant (or the procedural representative required to attend the sitting without the need for the plaintiff) the court discontinued the proceedings, deciding on the costs of withdrawing the application, unless the defendant at that sitting objects to it.

On the other hand, if the reason is within one week of the date of delivery of the order discontinuance of proceedings it will justify its non-statutory, the court will revoke this decision and give the case a proper course, which will set a further date for the preparatory meeting.

At the preparatory sitting, the court should determine the circumstances between the parties. He should also attempt mediation and conduct the preparatory proceedings actively so that the case is not brought to trial.

New is the obligation of the court to communicate with the parties. So far, the court has not shown its attitude, now it can inform the parties about what possible outcome it sees in the case. The court may inform the parties of the outcome of the case on a legal basis other than that indicated by the party. It is not possible to demand the exclusion of a judge who will state his position on the case.

Under the rule Article 205 9 section 1 The oral hearing plan should contain a decision on all evidence applications by the parties, replacing the evidence order. It will then not be necessary for the court to make provision to allow certain evidence. It is only after the court has dismissed the motion for evidence that it gives a decision.

In addition, according to Article 205 9 section 1 The court plan shall contain in principle:

• 1) the precise identification of the subject matter of the parties' requests, including the size of the benefits involved, together with the incidental claims;
• 2) well-defined allegations, including formal ones;
• 3) establishing which facts and legal assessments remain between the parties in dispute;
• 4) time limits for meetings and other activities;
• 5) the order and date of the evidence and the examination of the outcome of the evidence;
• 6) the closing date of the hearing or the delivery of the judgment;
• 7) to resolve other issues, where necessary for the conduct of proceedings.

The agenda shall be signed by the parties and approved by the Chair. The plan shall then be served on the representatives and possibly the parties and this service shall have the effect of notifying the dates of the meetings and other activities covered by the plan.

one the consequences of the plan are to prevent parties from subsequently submitting evidence or claims and evidence not endorsed in the plan. Further evidence is possible on an exceptional basis and if the party is satisfied that it could not report it earlier.

Attention should be paid to the new provision Article 34a(1) U.k.s.s.c., according to which a fixed fee of the amount 100 PLN any person subject to the application shall be required to request a witness, expert or party to the hearing if the application has been submitted after approval of the plan.

Planning of court meetings will require the entire hearing to be held in a short period. While there is a possibility of handling and resolving cases at a secret sitting, there was a rather skeptical attitude in practice to apply this solution. So far, in most cases decisions have been issued in open court. Modification by adding under Article 148 k.p.c. section 3 The principle of all procedural decisions is to make provisions at a secret sitting.

5. Evidence

First, Note that in the amended provision Article 187 k.p.c., the legislator required that the application should indicate the facts on the basis of 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 project promoters is intended to require more specificity, or whether it is just semantics. At the same time, the requirements for the evidence request have also changed.[20].

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.

This obligation corresponds to the principle of the adversariality of civil proceedings, which prevails in civil proceedings for a long time.

As the Supreme Court pointed out in its judgment of 7 May 2008 21 : „Act with 1 March 1996 amending the Code of Civil Procedure (Journal of Laws, item 189) the provisions are amended: Article 3 k.p.c. (by deleting section 2), Article 232 K.p.c.

and content Article 6 k.p.c., thus predominate the principle of adversariality in civil proceedings; while removing the principle of the court's liability for the outcome of the evidence procedure, while retaining certain powers of the court, its responsibilities have been limited. The parties shall be in possession of this proceeding.

Subject to the provision Article 232 k.p.c., the parties are obliged to provide evidence of the facts from which the legal effects are derived.’

However, according to the case-law, the parties most often have the opportunity to provide adequate evidence in support of their claims, and should not pass this obligation on to the court or expert: ‘The possibility of applying to the State Geodetic and Cartographic Resources for the availability of aerial photographs of the land remaining in the applicant’s possession exists for the average person collecting documentation on the parcels belonging to it, for example, in order to use it in the ongoing judicial proceedings.

Under Article 31(2) Act on 17 May 1989 Geodesic and Cartographic Laws 22 no presumption has been established regarding the use of state documentation resources by administrative authorities. What's more, one from the rules of civil procedure is a counter-dictive (Article 3 k.p.c.

in conjunction with Article 13(2) k.p.c.), according to which the parties are obliged to establish the facts and evidence necessary to resolve the case.

The participant of the procedure duly concerned with the safeguarding of his interests should ensure for himself what documents are at the disposal of the State Geodesic and Cartographic Resource.” 23 ;

„1. All facts relevant to the outcome of the case and on the basis of the actual outcome must be based on evidence in the course of the proceedings, unless they fall within the scope of the facts granted by the opposing party, where the award is not in doubt and on facts uncontested. According to the civil process, the burden of collecting evidence rests on the parties. Its substance boils down to the risk of the party having the negative consequences of failing to comply with the obligation to provide evidence. As a result of the party's failure to demonstrate the veracity of claims of facts relevant to the case, it is only that such claims will not, in principle, be the basis for a judicial decision. A page that does not prove the claims in question loses the benefits it would have gained by active action.

1. The expert's role is not to seek and collect evidence for the party, but only to assess the evidence collected on the case using the special information he has." 24 ;

„The matter of the court is not to order investigations to supplement or clarify the parties' claims and to detect evidence enabling them to be proved, nor is the court obliged to carry out ex officio evidence to clarify the circumstances relevant to the outcome of the case, in particular if the party is represented by a professional proxy (Article 232 k.p.c.). The obligation to provide evidence lies with the parties (Article 3 k.p.c.), and the burden of proving the facts relevant for the resolution of the case (Article 227 k.p.c.) rests on the party which of these facts derives legal effects (Article 6 (c)’ 25 .

According to the new provision Article 191 1 k.p.c.

referred to Under point 2 of this study (‘Prevention of abuse of procedural rights, sanctions’), if from the application and annexes and circumstances relating to the case, as well as the facts in question under Article 228 k.p.c., manifestly unfounded of the action, the court will be able to 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 action, it became in a way compulsory, since the absence of a complaint may result in a default judgment[26].

Furthermore, the failure to submit a response to a lawsuit within the time limit prescribed by the court should result in the defendant’s finding that the claims made by the defendant concerning the facts cited in the application have been accepted 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 is clearly indicated that, where necessary for the purpose of deciding on the application or declaration, the party should indicate the facts on which he bases his request or declaration and indicate evidence of the demonstration of each of those facts.

Thus, it will not be possible to add together evidence of a number of circumstances identified in the procedural document, as in the previous practice of civil proceedings, but it will be necessary to systematise and link the fact with concrete evidence. which has a given fact to demonstrate.

On the other hand, in the preparatory letter, which aims to prepare the case for resolution, it is necessary to state a brief state of affairs, to state the facts and facts which have been given and to state the arguments and evidence put forward by the opposing party.[27].

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 2432 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 the case after the court has closed, not only in cases where the judge designated or requested by the court either from a file or from an explanation of the public administration authorities, but also in cases where the document drawn up by the public administration authority or in its file or from a document contained in the judicial or remanding files is carried out.

6. 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 at the designated 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.

As far as evidence from the witness' testimony is concerned, in writing, the arguments against this solution concerning the inability of the other party to verify the credibility of the witness ability to assess his behaviour, to understand certain questions and phrases in a certain way.

It will also not be possible to ask an ad hoc witness 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.

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 waived the prohibition of joining the roles of the witness and the expert. A witness who has special messages 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, including 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 an expert cites a pledge made when he was established in such a capacity.

7. 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 carry out evidence from an opinion drawn up in another case, which may contribute to the improvement and speed of proceedings.

1. 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 the substance of the case, or 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, the procedural and material consequences of the set-off may break out, 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.

9. Restoration of proceedings in economic matters

Designation as competent for the examination of the economic affairs of the courts The legislator has transferred from the law from 24 May 1989 on the recognition by the courts of economic affairs[28] to the Act of 27 July 2001 Universal Court Law 29 (Further: u.p.u.s.p.). Under the new rule Article 10 a u.p.u.s.p.

economic courts shall recognise economic and other economic and civil law matters 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 on 15 September 2000 – Commercial Companies Code 30 ;
• 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 grant a declaration of enforceability to an enforcement title, which is a final decision of an economic court or subject to immediate enforcement or a 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.

section 2. 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.

Therefore, in general, all works contracts, lease contracts, and also against persons in charge of the entrepreneur's debt, whether by mutual or mutual, by law or by law, were treated as economic matters.

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, those 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 the application of the rules on economic proceedings, i.e. in a "normal" process[31].

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 the main intervention or side intervention is allowed. 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.
• suspension of proceedings due to the non-appealing of the parties to the hearing on the basis of Article 177(1)(5) k.p.c.
• counterclaim Article 204 k.p.c.

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.

section 2. By providing the instruction in question under Article 4584(1), The chairman shall invite the party to establish all the claims and evidence within the prescribed period, not less than a week.

section 3. Under the circumstances of the case, the President may set a different time limit for the party to establish claims and evidence.

section 4. Claims and evidence in breach 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.

Will the restoration of these principles of evidence really improve the procedure? There may be doubt in this regard if they remember the economic proceedings before 3 May 2012 and how extensive the justifications for the pleadings containing subsequent, "new" evidence applications, which the need to establish, could always have arisen later, were formulated.

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 certain 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 they are of a position to declare such evidence agreement invalid.

On the other hand, if it turns out that, as a result of the evidence agreement, it will not be possible to determine the circumstances of the case by means of evidence, because there will be no evidence – then the possibility of extending the recognition of the judge as to the circumstances of the case is envisaged[32].

It appears, on the basis of the provisions on the evidence agreement, that there are no obstacles to the agreement of proof being concluded already at the stage of the conclusion of the relevant agreement by the parties or even that the evidence agreement is 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-entrepreneurs and natural persons, to deviate from the effects of an evidence agreement on them, as a result of their submission of an application for an examination of a case in a ‘ordinary’ procedure rather than in an economic procedure.

Evidence has also limited evidence from witnesses' testimony in such a way that the court may allow such evidence only if, after the other evidence has been exhausted or in their absence, the facts relevant to the outcome of the case remain unexplained. It should also be noted that the economic judgment will constitute the title of the security.

10. Amendments to the appeal procedure

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 33. 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. For cases relating to the transmission of appeals, the judicial referenda may carry out the proceedings[34].

The formal review of the appeal is limited to the assessment of strict conditions and cannot therefore 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[35].

That time limit shall be communicated by the court to the party serving its judgment with justification, except 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[36].

Where a party makes an appeal directly to 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 require the file to be presented[37].

In the recipe Article 368 k.p.c. on appeal requirements added new section 11-13 . Article 368(11) k.p.c., it follows that if the appellant raises objections concerning the basis of the actual decision, he must indicate the facts relevant to the decision or determined 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 establishing new facts or evidence, it must be borne in mind that their appointment in the proceedings before the Court of First Instance was not possible or that the need for their appointment arose later[38].

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(13) 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.

If the party in the appeal cites evidence, e.g. from the hearing of the parties, witnesses or experts or the record of the examination, it must indicate part of the record relating to that fact.

In order to justify the need for such a change, it has rightly been pointed out that the absence of this requirement makes it necessary for the judges of the second instance to listen to a number of hours of recordings which are not related to appeals, which means an obvious waste of time, and the party who claims the charge 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 means that in proceedings where there are multiple parties on the plaintiff's or defendant's side, each should receive an appeal and everyone will have the right to respond to the appeal.

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, the 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 than a cassatory judgment (i.e. repealing the judgment and transfer for review).

In making the changes to the judgment, 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 because 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 be an incentive for careful conduct of proceedings in First Instance, but it is rightly argued that the court of First Instance, which is supposed 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[39]. In the event of rejection of the appeal, the complaint shall be entitled to a different composition of the court of the second instance[40].

11. Complaint

The changes to the rules on complaints aim at a radical acceleration of proceedings. After the changes, most of the 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 legislature in this matter make the complaint involuntary[41]. 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;

1. 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;
2. dismiss the application to exclude the judge;
3. approval of the settlement concluded before the mediator;
4. rejection of the complaint;
5. dismiss the action against the judgment of the referee.

Attention should also be paid to the new provision Article 767 4 section 11 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.

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