Reform of civil proceedings concerning complaints – question of the scope of the ruling of court referents acting in court of the second instance and the possibility to challenge their judgments

Act with 4 July 2019 amending the Act – Code of Civil Procedure and some other laws 1 (Further: u.zm.k.p.c.) many significant changes were made to the Act from 17 November 1964 Code of Civil Procedure 2 (Further: k.p.c.).

According to the justification of the amending law (hereinafter: the justification of u.zm.k.p.c.), changes in the scope of the rules on complaints aim at a radical acceleration of proceedings.

After their introduction, most of the complaints against the ruling of the court of First Instance are recognized by another composition of the same court.

Approximately 80% complaints will be dealt with in the court of first instance and only if the composition cannot be appointed in the court of first instance, then it will be the court of second instance.

The institution of the action for the judgment of a judicial referee is to create conditions for the review of such a decision by an independent court.

Otherwise, the ruling of the court of the second instance in the current state of the law, after the amendment of the General Court, would be compatible with the principle of the right to court and the decision of an independent and impartial court, as well as the principle of the duality of the procedure in question under Article 176(1) Constitution of the Republic of Poland.

1. Complaints in the Court of First Instance

Thus, the changes made by the legislature in this matter make the complaint involuntary (Article 3941a(1) (k.p.c.) The cases for 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.

Exceptionally, the complaint will be devolutional (carrying the case to higher instance) and this will apply to the cases indicated 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.
• 2. Complaints in the court of the second instance – the problem of the scope of the ruling by referents in the courts of the second instance

Following the amendment of the complaint in the court of the second instance, they appear to be a much more problematic issue, especially if, in the case in question, the court delivers a ruling on matters other than those indicated under Article 3942(11) k.p.c., for example regarding dismissal from judicial costs.

Under the rule Article 3942 k.p.c.:

„section 1. Complaint to another court second the court has jurisdiction to reject the appeal.

section 11. Complaint to another court second The court shall also have jurisdiction to:

• 1) refusal or revocation of an attorney or legal adviser,
• 2) dismiss the application to exclude the judge,
• 3) reimbursement of the costs of the process, unless a cassation complaint has been lodged,
• 4) reimbursement of costs of unpaid legal aid granted ex officio,
• 5) conviction of the witness, expert, party, attorney and person third for fines,
• 6) order for forced entry and arrest of the witness,
• 7) Refusal to exempt a witness and an expert from a fine and a witness from forced bringing
• – except as a result of a complaint against a court order first instances’.

It follows from the justification of u.zm.k.p.c. that the legislator decided to significantly limit the examination of the conditions of formal appeal by the court of First instance, stating that, at the stage of formal review in the court of First and Second instance, there is duplication of activity and that the courts of First instance should be relieved of the obligations in that regard. The statement of reasons also states that:

„The proposed amendment is intended to accelerate interinstitutional proceedings by:

• 1) concentration of proceedings in court second instances;
• 2) simplification of formal control;
• 3) departure from the volution of complaints against actions of the court taken in the course of the entire interinstitutional procedure (currently, the procedure is involuntary only at the stage of the court second instances);
• 4) limitation of the number of activities and service carried out by the court in the course of interinstitutional proceedings.’

In implementing these assumptions, the legislator, among others, repealed the provision Article 370 k.p.c. as before the amendment 3 , according to which: ‘Court first the instance shall reject an appeal lodged at a secret meeting after the expiry of the prescribed period, not paid or otherwise inadmissible, as well as an appeal which the party has not completed within the prescribed time limit.’

With regard to the departure from the examination of the formal conditions of appeal in the court of first instance, in the statement of reasons of u.zm.k.p.c., the legislator observed that: ‘A problem of the absence of a higher court which may recognise a complaint against the order of the court of appeal ruling on the decision of the referee as a court of first instance shall be resolved by indicating that, if an appeal to a higher court is not possible due to the absence of such a court, the appeal against the decision of the court shall be contested by the same court in another composition’ 4 .

This problem concerns, for example, the ruling of the court referendarer in court II on the exemption from judicial costs at second instance.

Consequently, the provision has been amended Article 39822 k.p.c., in which in particular Under section 5 it was pointed out that: ‘After the loss of power of a judicial referee, the court shall recognise the case as a court first instances.

If it is not possible to challenge the order to a higher court due to the absence of such a court, the remedy shall be recognised by the same court in another composition.’

There are exceptions to the decision of the judicial referee, including the decision on court costs or the costs of the trial, since the decision of the judicial referee is lost[5]. Under the rule Article 39823(3) k.p.c. the court shall examine the action in its composition one judge as court second instances. After the action has been brought, the court shall maintain or amend the contested order by applying, respectively, the provisions of the complaint.

It should be pointed out, taking into account the content of the above provisions and the content and purpose of the u.zm.k.p.c., together with its reasons, that, certainly, a judicial referee in an appeal court in the whole case of the court of the second instance, cannot decide as a second instance, as an independent, independent and impartial court from which there is no appeal.

If, therefore, the judicial referee according to the assumption of the legislature concerning s.zm.k.p.c. rulings as a court of first instance, his ruling must be subject to appeal, since the referendars do not exercise justice and the referendares rulings do not constitute decisions of the independent court according to Article 2(1), and section 2 Act on 27 July 2001 Universal Court Law 6 (hereinafter: u.p.u.s.p.) and Article 45(1) Constitution of the Republic of Poland.

Between the recipe Article 39822(5) k.p.c. stating that: “After the loss of power of a judicial referee, the court shall recognise the case as a court first instances.

If it is not possible to challenge the order to a higher court due to the absence of such a court, the appeal shall be held by the same court in another composition’ and by a provision Article 39823(3) k.p.c., according to which: ‘The court shall examine the complaint in its composition one judge as court second instances.

After the action has been brought, the court maintains or amends the contested order, applying the complaint provisions accordingly’ — there is no contradiction or doubt that the referee acting in the court of the second instance has ruled as first instance on a given issue.

Only the scope of certain referenda decisions differs in terms of total loss of power after appeal or not[7].

If, therefore, the referee in the court of the second instance decides as first instance, then according to Article 3941a(1)(1)) k.p.c. an order for refusal of exemption from costs shall be subject to an appeal against the decision of the referee.

If, according to the provision, the court had ruled on the exemption from judicial costs in the second instance, Article 3942(11) The Court of First Instance's ruling on the exemption from costs would not be subject to a complaint. However, the rulings of the referees are different.

The strengthening of this argument is the fact that the rule is repealed. Article 370 n.p.c. and changes under Article 147(1) and Article 150 u.p.u.s.p., as well as the content of the justification u.zm.k.p.c.

Against the background of the novelty of the above regulations, there can only be some doubt as to whether according to the provision Article 39824 in conjunction with Article 3941a k.p.c.

and 39823 section 3 k.p.c., the decision of the referendarer should be challenged by a complaint or a complaint as a direct application of the rules on complaint (i.e. an application acceptable in the light of the term ‘applys accordingly’ meaning application explicitly, with modifications, or with the exception of certain provisions).

The amendment is not clear, as the interesting position presented by first President of the Supreme Court, Judge Margaret Manowska in this matter. Well, the judge 8 against the background of amended regulations Article 39822(39823) k.p.c.

stated: “ Doubts arise when a decision or order was issued by a court reviewer in a court of law second the instance and the court according to Article 39822(5) – recognise the complaint.

Save Article 39822(5) sentence second it seems to indicate that in such cases a complaint against the decision of the court second instances in the same cases as the order of the court first instances.

This is not the case, however, and the record Article 39822(5) sentence second, that, where it is not possible to challenge a decision to a higher court because of the absence of such a court, the appeal shall be considered unnecessary by the same court in another composition.’

The above position is quite controversial, as it seems that its author does not take into account all the changes covered by the U.zm.k.c., in particular:

((i) the obvious content (literal interpretation) and purpose (proprietary interpretation) of the provisions Article 39822(39823) k.p.c. and 3941a k.p.c.,

((ii) Repeal Article 370 k.p.c.

((iii) the content of the justification u.zm.k.p.c.,

((iv) changes in regulations Article 147(1) and Article 150 u.p.u.s.p.,

((v) the content of the provision Article 2(1)(2) u.p.u.s.p.,

((vi) and de facto provisions Articles 45(1) and 175(1) Constitution of the Republic of Poland.

The doctrine also presents ambiguous – in light of the arguments of the judge Margaret Manowska – views, such as the position of another representative of the doctrine, Dr. Prof. Aneta Arkuszewska 9 , which in relation to the regulation Article 39822 K.p.c. points out that: ‘The previous provision provided that the decisions of the judicial referee on the substance of the cases terminating the proceedings, and exhaustively listed under Article 394(1) (points 1 and 2 and 42 and 5-9) a complaint shall be lodged unless otherwise provided for in the special provision. Currently, the complaint is entitled to:

• 1) decisions terminating the proceedings; and
• 2) accident decisions (preliminary, incidental) listed under Article 394 and 3941a
• – because such decisions are subject to a complaint.’

The above - quoted author points out that “content Article 39822(1) suggests that any judgment which the court issues and which is contested by a complaint shall be subject to a complaint if it is issued by a judicial referee’, but, in its opinion, ‘any such action is nevertheless inappropriate, as it must be accepted that the action is only entitled to such rulings by a judicial referee which, under the law, may issue a judicial referee’.

In view of the above, it is de facto only if it is considered that referendars may rule in court of the second instance, in principle only in third types of cases:

• 1. Right to give a ruling on the refusal to establish a lawyer or legal counsel (but no longer to appeal them), Article 123(2);
• 2. Convicting a party to a fine following the withdrawal of the exemption from judicial costs (Article 118 Act on 28 July 2005 on judicial costs in civil matters 10 , Further: u.k.s.c.),
• 3. The detailed calculation of the costs of the appeal procedure (Article 3942(11)(3) in conjunction with Article 108(1) sentence second),
• – A complaint against the judgment of the second instance could be limited only to those cases.

The above, however, ignores the literal wording of the provision Article 39823(3) k.p.c., from which it is clear explicitly that in the case of an action against the decision of the referee, the court shall rule as the court of the second instance – ergo referee cannot rule as the second instance, because it shall rule as the first instance and consequently on the basis of Article 3941a k.p.c. a complaint (a complaint) against refusal of exemption from costs is undoubtedly granted.

However, one cannot fail to notice that the above-mentioned position of judge Margaret Manowska and in a way Dr. Aneta Arkuszewska would be correct only if the referendars of the court in the second instance ruled only in the cases referred to in the provision Article 3942(2) k.p.c. and only those in which, in accordance with other regulations, the referee may act.

This remark follows from the content of Judge Margaret Manowska's comment 11 : „On the other hand, the situation is different when the referee issues a decision (order) in the court second instances. Of the court’s orders second listed instances under Article 3942, the appellant has the right to give a ruling on the refusal to establish a lawyer or legal counsel (but no longer to appeal them) (Article 123(2)) and conviction of the party to the fine following the withdrawal of the exemption from judicial costs (Article 118 u.k.s.c.), as well as the detailed calculation of the costs of the appeal procedure (Article 3942(11)(3) in conjunction with Article 108(1) sentence second)”.

Judge 12 in the thesis 5 The comment clearly indicates what actions can be carried out by the Judicial Referendary in general (does not say ‘the decree’): ‘The Judicial Referendary may also perform many activities under the Civil Costs Act.

These include: order on judicial costs (Article 8(2) u.k.s.c.), reimbursement of fees within the defined limits under Article 82 of this law, the determination and award of claims by witnesses, experts, translators and parties (Article 93(1) u.k.s.c.), judicial relief (Article 118 u.k.s.c.), acts in cases of postponement or payment of court fees on the basis of Article 125 U.k.s.c.

The judicial referee also carries out the actions of the court in the field of the keeping of perpetual books (Article 23 sentence second Act on 6 July 1982 on perpetual books and mortgages 13 , Further u.k.w.h.)’.

Consequently, according to the position of Judge Margaret Manowska, it should be considered that such an interpretation of the revised provisions of the General Court, according to which referendars may rule in the court of the second instance only on the following matters: Under Article 3942, who are entitled to a complaint (i.e. the opportunity to challenge the referee’s decision accordingly):

• 1. The referee shall have the right to give a ruling on the refusal to establish a lawyer or legal counsel (but no longer to revoke them) (Article 123(2));
• 2. Convicting a party to a fine following the withdrawal of the exemption from judicial costs (Article 118 U.k.s.c.),
• 3. As well as the detailed calculation of the costs of the appeal procedure (Article 3942(11)(3) in conjunction with Article 108(1) sentence second).

Therefore, if the above position were accepted, the referendars in the courts of the second instance should not be allowed to rule on matters other than those mentioned Under point 1-3 above, since their rulings in these other cases would be unappealable, and since the referendars of the court do not exercise justice and cannot ultimately rule, in particular, on the dismissal of the party from the costs of proceedings—which could close the party's way to the court, their powers in the courts of the second instance would be significantly limited and the role to which they are intended to be significantly reduced.

However, the above issue is not conclusive, but so controversial that in the case of the signature of the act III CZP 80/20 The Court of Appeal in Warsaw asked a legal question to the Supreme Court: “Is it to the court’s decision to refuse immunity from the appeal fee given in the court second the instance is based on Article 398 [22] section 1 k.p.c. complaint?’.

However, we still have to wait for the Supreme Court to respond.

3. Summary

According to Article 45(1) Constitution of the Polish Republic: “Everyone has the right to a fair and open trial without undue delay by a competent, independent, impartial and independent court.” Thus, the institution of the complaint against the judgment of the judicial referee is to, according to the Constitution of the Republic of Poland, create conditions for the review of the judgments of the referee by an independent court.

Otherwise, the ruling of the referee in the court of the second instance in the current state of the law following the amendment of the u.zm.k.p.c.

would be in line with the principle of the right to court and the decision of an independent, independent and impartial court (Article 45(1)), and the principle of duality of the procedure in question under Article 176(1) Constitution of the Republic of Poland.

In addition, importantly, referendars and senior referendars perform legal protection tasks but do not exercise justice which is reserved for judges Article 2(1)(2) U.P.U.s.p. and Article 175(1) Constitution of the Republic of Poland.

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