Proceedings in economic matters 7 November 2019 in the context of the right to a fair trial

In order to speed up proceedings in economic matters and to bring about a situation in which the examination by the courts of economic matters will respond to the current needs of economic turnover, the legislator has distinguished the procedure in the amendment of the Code of Civil Procedure in economic matters. The analysis of the changes introduced gives reflection on whether they actually make matters subject to the judgment of economic departments more quickly, but also without violating the procedural guarantees of the parties.

The purpose of this study is to answer the question whether the procedure for dealing with economic matters introduces a primacy of speed over procedural guarantees of the parties and the reliability of the process.

The author presents the reasons for the re-introduction of a separate economic procedure into civil procedure and discusses the practical aspects of these changes for economic operators who have faced the need to resolve the dispute before an economic court.

In view of the comprehensive nature of the amendments described, and the conduct in economic matters as a separate procedure differs significantly from the ordinary procedural procedure, it is justified to systematise them and to draw attention to the key procedural issues, related to the powers and obligations of the parties specific to the proceedings in economic matters.

I. Legal status prior to amendment of the Civil Procedure Code

Code of Civil Procedure 1 during the period 3 May 2012 to its comprehensive amendment dated 4 July 2019 2 it did not provide for a separate economic procedure, but there was a definition of the economic case in the legal trade and there remained established economic courts with a specific functional competence – concerning economic matters. According to Article 2(1) Act on the recognition of economic affairs by courts 3 cases of civil relations between traders in respect of their business activities and under the Article 2(2) uorssg i.e.:

• • specific cases Under section 1, even if either party has ceased its business activity,
• • 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, item 1037, as amended),
• • against entrepreneurs to refrain from environmental damage and to restore or remedy the damage to the environment and to prohibit or restrict environmental activities,
• • between the authorities of the state undertaking,
• • between a State undertaking or its authorities and its founding authority or supervisory authority,
• • in the field of bankruptcy and resolution law,

• to grant a declaration of enforceability to an enforcement title, which is a judgment of an economic court valid or subject to immediate enforcement or a settlement concluded before that court, as well as another enforcement title, covering claims which, if they were recognised by the court, would fall within the jurisdiction of the economic courts,
• the declaration of enforceability of an enforceable title based on a valid or immediately enforceable judgment of an economic court, or a settlement concluded before that court, as well as another enforceable title involving a claim which, if recognised by the court, falls within the jurisdiction of the economic courts,
• establishing that a decision of a court or another foreign authority issued in an economic matter is or is not subject to recognition,
• other provisions communicated by separate provisions.

According to Article 1. Laws on the recognition by economic courts of economic matters were entrusted to regional courts and district courts in which separate organisational units (economic courts) were created.

The above definition of the economic case, as well as the provision establishing the economic courts and specifying their functionality, has ceased to be valid with the repeal of the Act on the Recognition of Economic Matters by the courts which he has derogationd Article 16 However, it is worth noting that the current definition of economic affairs is similar to its historical definition, which is further explained in the study. Similarly, the norm setting up economic courts and determining their functional competence in the economic affairs part has been anticipated under Article 10a Act dated 27 July 2001 General Courts Law[4]. Returning to the definition of an economic case, it is worth to signal that the Civil Procedure Code by date 2 May 2012 5 It also provided for a definition of the economic case, which was inherently related to the economic proceedings in force at the time. According to Article 4791(1) kpc was a civil relations case between entrepreneurs, in terms of their business activity and in accordance with Article 4791(2) kpc :

• • 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, item 1037, as amended),
• • 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,
• • belonging to the jurisdiction of courts under competition law, energy law, telecommunications law, postal law and rail transport rules,
• • against entrepreneurs to consider the terms of the standard contract not permitted.

For the purpose of legal action two The definition of economic affairs has been highlighted in the literature, and it is therefore worth noting that the regulated under Article 2 The economic courts' recognition laws set the definition of an economic case in a general manner within the competence of an economic court, while the code definition of an economic case was the key to the qualification of economic matters identified in separate proceedings according to the rules Article 4791 and n. KPC[6].

In conclusion, it should therefore be concluded that the rules on the conduct of economic matters introduced in the Civil Code of Conduct did not arise in a legal vacuum, but, on the contrary, constitute a re-establishment of the earlier procedure for the recognition of economic matters in a separate from ordinary procedural procedure, together with an attempt to adapt the rules to the needs of the still evolving economic turnover, particularly as regards the speed of proceedings.

II. Justification of the draft amendment of the mpc to restore business proceedings. Doubts about the proposed changes at the legislative stage

Content of the government's justification for the bill amending the Act - Code of Civil Procedure and some other laws (print 3137) 7 There is no doubt that the impetus for the proposed changes to restore a separate economic procedure was the need to respond to lengthy proceedings in economic courts.

In fact, time to wait for the case to be examined In the first instances in the economic department – according to the statistics of the Ministry of Justice 8 of In 2017 in a district court on average 15.7 of the month and of the district court 14.1 the month – did not meet the requirements of the economic turnover.

A much more controversial view, presented in the explanatory memorandum of the draft, appears to indicate that "because their parties (ed. economic proceedings) are supposed to be professional, more stringent requirements and procedural rigours can be imposed on them".

The view presented by the Ministry of Justice was rightly criticised in the legislative process. As noted in the external opinion dated 12 March 2019 9 , „if the entrepreneur is indeed a professional, he is a professional in the field in which he conducts business, and not necessarily in the field of law.

The argument that every entrepreneur, in connection with its business activity, has the necessary financial resources to provide adequate legal assistance is also not affected – the vast majority of entrepreneurs (both natural persons conducting business activities as well as passenger and capital companies) are small entrepreneurs who cannot always afford such assistance.

Consequently, the view that entrepreneurs as professionals can (and should) be required to be more careful and knowledgeable in the field of law and mandatory judicial procedures is not authorised or at least controversial." A similar doubt – even further – was presented by the National Chamber of Advisors in the opinion of the Centre for Research, Studies and Legislative Affairs of the National Council of Legal Advisers on the draft bill amending the Act – Code of Civil Procedure and some other laws (dated 14 December 2018)[10].

As indicated in the above-mentioned opinion, proceedings in economic matters prior to 3 May 2012 distinguishes itself from the increased rigors associated with the failure of the party to fulfil its obligations to determine the effectiveness of the procedural activities in relation to the examination procedure.

It was rightly pointed out that these rigors were considered disproportionate sanctions constituting infringements Article 45 Constitution[11].

As indicated in the Communication following the judgment of the Constitutional Court dated 15 April 2019, The main objective of the contested regulation was to streamline and speed up the procedure in economic matters by a radical shortening of the intermediate stage separating the claimant from its possible substantive examination of the application.

A similar objective of speeding up economic proceedings is the justification for this revision of the rules on the recognition of economic matters.

However, the Constitutional Tribunal argued that, even with the particular importance of speed and efficiency of economic proceedings, legal proceedings cannot be accelerated at all costs and that it is unacceptable for the speed of examination of the case to devote protection of subject rights.

According to the Constitutional Court, the contested provision clearly differentiates the defence of the rights of both parties to the process. It shall disproportionately limit them in the economic case in order and reprobate proceedings on the defendant at the stage of its bringing first the pleading of the case.

The Constitutional Court further stated that the contested provision had led to a breach of the principle of equality in the differentiation of the parties to the proceedings before the court first instances in prescriptive and reprimandary proceedings in economic matters, and this has been demonstrated by the fact that, on an excessive and unjustified basis, it favours the plaintiff in proceedings where both parties are represented by professional representatives.

From the point of view of the principle of equality, it is impossible to find a rational explanation of the different types of consequences of a formal error of a professional proxy depending on which party it represents.

Certainly, the arguments raised by the Constitutional Court must be regarded as valid and valid also from the perspective of the current rules on economic proceedings, even if the legislator has not returned to such strict rigors as to object to the order for payment in registrar proceedings or charges against the order for payment in order procedure.

It is worth noting that the legislator pays particular attention to the speed of business proceedings, but it is not possible to fail to notice that attempts to speed up proceedings are sometimes correlated with the completely unjustified requirements imposed on the parties to the process, which can also be regarded as a restriction on the right to a fair trial, and that the legislator has a special obligation to prevent infringement of the rights of the parties to the process, in particular given, for example, the judgment of the Constitutional Court and the importance of the arguments cited.

In the opinion of the KIRP, arguments were put forward in general to contest the idea of a separate proceeding. It has been pointed out that imposing excessive obligations on entrepreneurs who, contrary to the provisions of the legislature, cannot be regarded as professionals each time – especially in law, is a mistake.

It was recalled that the procedurally separated economic conduct was eliminated as a result of his criticism. As the main arguments in favour of the abolition of separate economic proceedings, Professor Andrzej Jakubecki was cited for his work.

five the main allegations concerning the separation of economic proceedings, namely that the existence of procedural differences in economic proceedings is unique on a global scale (1), its existence may have been justified in the period of transition from the prescriptive to the market economy, but the conditions for its maintenance have become obsolete (2), Economic issues from a legal point of view are not significantly different from other cases, and the only determinant of this proceeding is the status of the parties (3), differentiating the procedure by virtue of the status criterion of the parties is contrary to the principle of equality with the law (4), It is false to assume that “professionalism” of entrepreneurs justifies violating their stricter requirements in the process (5)[12].

The arguments raised in the course of the legislative procedure contesting the appropriateness of restoring the economic procedure did not affect the legislative decisions of the legislator, which consequently at the time 7 November 2019 13 to legal trading after more than 7 the years have returned to a separate economic procedure. It is worth noting that a separate economic procedure, according to the assumption adopted by the legislature, is to be a faster and more stringent procedure than a simple procedural procedure, so there is no doubt that a separate procedure in economic matters, as it stands, gives primacy to the speed of proceedings on procedural guarantees of the parties to proceedings[14].

III. Proceedings in economic matters from the date 7 November 2019

1. Scope of the provisions governing business proceedings

Proceedings in economic matters are governed by the IIA Code of Civil Procedure 15 is one of the separate proceedings contained in Title VII kpc.

First, It should be noted that the provisions of Section IIA kpc regulate the recognition of economic matters in the procedural procedure[16]. This means that economic matters belonging to the non-trial and enforcement proceedings are excluded from the scope of this procedure[17].

It should also be indicated that, in economic matters dealt with under the provisions of Chapter IIA kpc, the provisions on other separate proceedings apply in so far as they do not conflict with the provisions on business proceedings[18].

Except as a rule of priority for the application of the rules of business proceedings, cases identified in the European injunction procedure, the European Small Claims Procedure and the electronic redress procedure[19].

Economic matters are civil relations between entrepreneurs in their business activities. The economic affairs catalogue is as follows: 20 :

• 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, as amended);
• 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.

They are not, on the other hand, economic matters for the division of the assets of the joint shareholders of a civil partnership after it has ceased and for the claim acquired from a non-entrepreneurs, unless that claim derives from a legal relationship in the field of business conducted by all its parties[21].

The current rules have therefore extended the economic affairs catalogue to include cases arising from works contracts and construction contracts relating to the construction process, leasing contracts and against persons responsible for the entrepreneur's debt, whether by mutual or mutual, by law or by law.

Thus, whether disputes arising from the legal events described above occur as parties to the entrepreneur or not, these disputes will be recognised as economic matters with all the rigors resulting from regulations on proceedings in economic matters.

Although lease agreements are rare 22 not included by entrepreneurs as beneficiaries, are contracts for small construction works performed as part of a construction robot 23 or renovations, are often concluded by those who do not have business status.

Certainly for such entities, formal proceedings in economic matters may be difficult and may be dissatisfied with the course of the proceedings.

2. Chile

An important novelty is the obligation to indicate in the application or In the first the defendant’s procedural letter after the party has received a copy of the application for an e-mail address or a statement that he has such an address 24 , and failure to indicate an email address or to make a declaration constitutes a lack of formal letter preventing it from being properly run[25].

Attention should be paid to the fact that a party not succeeded by a professional proxy will be called upon to fill in the formal deficiencies of the letter 26 , and if the trial was brought by a lawyer, legal counsel, patent attorney or Attorney General of the Republic of Poland, the letter will be returned without prior notice to correct or supplement it 27 , remember that within one week from the date of delivery of the order to return the letter, the party may bring it back. If this letter is not affected by deficiencies, it shall have effect from the date of the original submission[28].

3. Evidence Preclusion

According to Article 4585(1). the plaintiff is obliged to establish all the 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.

Quoted provision Article 4585 kpc introduces evidence to the economic proceedings, which is connected with the implementation of the request for speed of proceedings and concentration of evidence.

The assembly by the court of complete evidence at an early stage of the proceedings is intended to contribute to a smooth examination of the case and to avoid a situation in which proceedings are dragged by the party.

The probative preclusion affects the quicker examination of the case, but it is a controversial institution because the rigors associated with the omission of evidence not reported in the lawsuit and the response to the lawsuit may lead to the court examining the case not establishing the actual facts.

It should be borne in mind that the Court of Justice’s system of discretion is opposed to the procedural preclusion, which is that the time limits for the collection of procedural material are decided by the judge[29].

In writing, attention is also drawn to the existence of a mixed system, which is based on the fact that the Act indicates an event which sets the time limits for the collection of procedural material, but whether that event occurs is decided by the judge (cf. Article 2054(1) (kpc)[30].

Content Article 4585(1)(4) The court instructs the party not succeeded by a lawyer, legal adviser, patent attorney or Attorney General of the Republic of Poland, and this instruction is made immediately after the submission first a procedural document and, if affected by deficiencies, after their removal.

The instruction shall be served in writing and to the e-mail address indicated by the website. The instructions shall also be served on the proxy, unless the attorney, legal counsel or patent attorney is a proxy, or the Attorney General of the Republic of Poland is acting as a party[31].

With the service of the party's instruction, the President is obliged to call on the party not succeeded by a lawyer, legal adviser, patent attorney or Attorney General of the Republic of Poland to establish all claims and evidence within the prescribed time limit, not less than a week.

The rigor bound by the system of evidentiary preclusion is tempered by the regulation, allowing the President, in accordance with the circumstances of the case, to set another time limit for the party to establish claims and evidence.

It should be noted that this provision is addressed to both parties replaced by professional representatives and not replaced by them. And Article 4585(1) kpc does not disable use Article 2053(1)(2) kpc. Where justified, the chairman may order the exchange of preparatory letters between the parties[32].

The parties' obligation to exchange preparatory letters in particularly complex cases often contributes to a fair determination of the facts on the case.

Preclusion system with Article 4585(1) The PSC shall not exclude the possibility of setting up a preparatory meeting[33]. The appointment of a preparatory meeting in proceedings in economic matters does not result in the opening of a deadline for the submission of claims and evidence until the adoption of the court plan.[34].

The result of the probative preclusion is the court's omission of late claims and evidence. However, the result of the omission of the claim and the evidence is to treat it as if it were not established by the party[35].

In order to avoid sanctions in the form of omission by the court of late evidence, the party must demonstrate that the appointment was not possible or that the need for their appointment came 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.

Therefore, a party wishing to establish evidence and claims wrong under regulation a 4585 section 1-3 kpc must first that the need to appoint them came after the submission of the previous pleadings or their appointment was not possible, and secondly, the party is required to maintain a two-week period calculated from the date on which their establishment of claims and evidence became possible or the result was the need to establish them.

In conclusion, therefore, the rules of evidence in economic proceedings should be taken into account that the parties are required to prepare carefully for the process, particularly in evidence.

Mistakes in the preparation of procedural tactics before the plaintiff – especially represented by a professional proxy – is liable to put him at risk of losing the trial, as the court under the law is obliged to disregard late claims and evidence. Evidence in the author's opinion is an institution not desirable in civil procedure.

It should be borne in mind that the court examining the case has been equipped by the legislator with sufficient tools to enable the court to respond appropriately to attempts by the party to the proceedings.

At this point it is worth reminding that according to Article 2352(1)(5) In particular, the court may omit evidence intended only to extend the proceedings.

Moreover, according to Article 2052(2) kpc, the court in the ordinary procedure has the option of requiring the party to state all the claims and evidence under the rigor of losing the right to appoint them in the course of further proceedings.

Finally, the President has the possibility of setting up a preparatory meeting at which, in the event that the dispute cannot be resolved without the need for further appointments and a hearing 36 , a court plan shall be prepared, which shall contain conclusions on the evidence applications and replace the evidence provisions[37].

Nor can you forget about sanctioning under Article 41(1) the abuse of procedural law, i.e. prohibit the exercise of the powers provided for in the provisions of the Code of Civil Procedure in a manner incompatible with the purpose for which they are established.

This prohibition is subject to a number of sanctions 38 ; the court may, in the judgment terminating the proceedings, impose, inter alia, an abuser of a fine, regardless of the outcome of the case, in accordance with the resulting abuse of the procedural right of delay in its examination, an abuser of the obligation to reimburse costs in part more than would indicate the outcome of the case, or even the reimbursement of costs in full, and, at the request of the opposing party, grant the abuser of the costs of the increase in the process corresponding to the excess of the opposing party's workload on the case, but not more than twice, or increase the rate of interest of the defendants of the party whose abuse caused the 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, with provisions with a maximum legal interest for delay not applicable.

4. Failure to comply with the provisions of the economic procedure

The legislator has granted a certain circle of entities the power to request the case to be examined without prejudice to the provisions governing the conduct of economic matters.

Such entitlement shall constitute a novum 39 The application for examination of an economic matter without the provisions of the Code of Civil Procedure on the conduct of economic matters may be submitted by a party who is not an entrepreneur or an entrepreneur who is a natural person.[40].

Such a request may be made by the party concerned within one week of the date on which the written instructions referred to therein were served. Under Article 4584(1), and if the provision of the instruction was not required, in the application either first the defendant's procedural writing.

A request by a party to examine an economic matter without the rules on business proceedings being binding on the court[41].

Continuing the examination of an economic matter without the provisions on economic proceedings (desisting from their application), the court shall issue in this regard a decision which shall not be complained against.

The court does not refer the case to another court (another department, another court) but still pursues the case (the case does not cease to be an economic matter), except in the case of economic proceedings. As a result, the economic court will examine the economic case in accordance with ordinary procedural rules[42].

There must be no doubt that the institution in question will be open to the use of rightholders, for whom the application of the provisions of the economic procedure will entail undue procedural nuisances, provided that the party does not fail to comply with a strict time limit for the submission of the application.

5. Claims pending proceedings

The legislator's desire to speed up economic proceedings appears to be particularly clear in the light of the rules contained under Article 4588 kpc as follows: section 1. In the course of the proceedings, new claims cannot be made instead of or alongside existing ones.

However, in the event of a change in 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. section 2.

Provisions Article 177(1)(5) (to suspend proceedings on the grounds that both parties were not present at the trial and on the grounds that the plaintiff was not present, where the plaintiff did not request an examination of the case in his absence and the defendant did not file a request for an examination of the case - TM), Article 194-196 (call for participation in the TM case, Article 198 (the effects of the court's call for participation in the case - TM) and Article 205 (the transfer of the case by the district court to the district court at the defendant's request, in the case of the defendant against the plaintiff's plaintiff's action affecting the claimant's claim or because he remains in a relationship with him or that the parties' claims are capable of being set off, paragraph TM) shall not apply.

section 3. A counterclaim is inadmissible. section 4. The President and the court shall act to ensure that the case is settled no later than six months from the date of submission of the application.

If this response has been affected by deficiencies, that time limit shall run from the date of removal of those deficiencies and, if not submitted, from the date of expiry of the time limit until its submission.

The legislator therefore excluded the changes in the action in question and the case-by-case action in order to speed up proceedings. Similarly – which is particularly controversial, the legislator has excluded the possibility of a counterclaim.

In economic disputes between entrepreneurs, they often have mutual claims – often from the same legal relationship. There is therefore no reasonable basis for limiting the possibility of bringing a counterclaim in the course of a case under the rules in the economic proceedings.

However, it is not possible to draw attention to the fact that these restrictions are an expression of the desire to shorten proceedings at the expense of the parties having to bring further actions, which will also be recognised by the economic courts, so it must be concluded that the changes described will not help to achieve the objective of adapting the rules of conduct to the requirements of economic trade.

6. Evidence agreement

The evidence agreement is third procedural agreement in Polish civil procedure, alongside prorogation agreement 43 and jurisdiction 44 , and has not yet been known to the Polish civil procedure. According to Article 4589 kpc section 1.

the parties may agree to exclude certain evidence in a case from a particular legal relationship arising from the contract (provisional agreement). section 2. The evidentiary agreement shall be concluded in writing under the terms of annulment or orally before a court.

In the event of doubt, it is considered that the later agreement shall continue to apply to those provisions of the earlier agreement which can be reconciled with it. section 3. The evidence agreement concluded on condition or subject to the time limit shall be void. section 4.

The allegation of nullity or ineffectiveness of the evidence agreement may be raised at the latest at the meeting at which the agreement was referred to, and if done in a procedural letter, at the latest in the next procedural letter or at the next meeting. section 5.

The conclusion of an evidence agreement before a court of law shall not deprive it of its power of evidence. section 6. The Court of First Instance will not allow evidence excluded from its office by an agreement of evidence. section 7.

The facts to be demonstrated by evidence excluded by the evidence agreement may be established on the basis of claims made by the parties, taking into account the entire circumstances of the case. Where determination requires the size of the benefit due, provision Article 322 shall be applied mutatis mutandis.

Already in the justification of the project 45 The Ministry of Justice pointed to potential complications associated with the inclusion of a new factor affecting it. It must be accepted that there is a high likelihood that the provisions of the evidence agreement will be contested by the parties during the process. It should be borne in mind that the allegations relating to the evidence agreement may form the basis for the appeal, in particular the appeal[46].

The current evidence agreement allows the parties to exclude certain evidence, resulting in the inadmissibility of the party to produce evidence as well as the inadmissibility of the court to carry out excluded evidence.

It should be noted that only by the parties to a particular proof, it does not deprive the court of the possibility of establishing the fact which would be demonstrated by an excluded evidence on the basis of the parties’ claims, taking into account the entire circumstances of the case.

The regulation in question is intended to prevent a court from being able to determine the facts in the case as a result of the exclusion of the evidence agreement.

It is with great interest to see whether and how practitioners will benefit from this institution, as it is now too early to assess the impact of the evidence agreement on economic proceedings.

7. Evidence from witness statements

Evidence from witness statements may be accepted only if, after the exhaustion of other evidence or in their absence, the facts relevant to the outcome of the case remain unexplained.[47].

The legislator therefore considers evidence from the testimony of witnesses solely as subsidiary evidence, the necessity of which is only updated if the evidence so far has not allowed an explanation of the facts relevant to the outcome of the case before the court.

The condition for proof of witness testimony is the exhaustion or lack of other means of evidence 48 , Therefore, the requesting party should demonstrate in this application that there is no other evidence to verify the veracity of a particular fact[49].

It is worth pointing out that second evidence of a subsidiary nature is evidence of the hearing of the parties 50 , who has the same reasons for his release.

Taking into account how common evidence from the hearing of the parties is in civil proceedings, it should be assumed that in economic proceedings, evidence from the hearing of witnesses, it will also be accepted by the court, despite its subsidiary character and primacy of evidence from the document.

Of course, only judicial practice will verify the above.

8. The primacy of proof from the document

The legislator shall give particular importance in the proceedings in economic matters to evidence from the document. According to Article 45811 kpc the act of the party, in particular the statement of intent or knowledge with which the law combines the acquisition, loss or change of the party's power in relation to the legal relationship concerned, may be demonstrated only by the document in question under Article 773 Civil Code, unless the page demonstrates that it cannot present a document for reasons beyond its control.

This regulation is a consequence of the legislator's assumption that, in professional legal trade, a document should be the primary means of proof regarding the content of the legal relationship or of the law which is the subject of an economic dispute.[51]. It should be indicated that, within the meaning of the Civil Code, the document is a storage medium for reading it.[52].

Require the party citing its own actions to display them First, proof from the document in question under Article 773 KC, will not be applicable if the party demonstrates that it is unable to submit such a document for reasons beyond its control. It is then permissible to demonstrate this activity by other evidence[53]. As independent causes, the destruction of the data medium should be indicated above all.

As indicated in the literature, for evidence purposes, the entrepreneur should record by means of a document within the meaning of 773 KC, e.g. by means of a mobile phone equipped with a dictaphone function, any activity undertaken in the course of an economic activity which may be relevant in a later case. This is therefore about any action which may have legal effects.

In the author's opinion, the legislator rightly insists that the court, in order to establish the facts, should use the evidence of the document, although the evidence from the document is often evidence that is easier to carry out and to assess than the evidence from the witness, the court, when assessing the evidence from the document, must often give an appropriate context in which the document was produced, and in order to know this context, it is also worth referring to the testimony of the persons involved in its origin.

9. Process costs

Under the rules on economic proceedings, the demand for amicable settlement of disputes is still valid. Its manifestation is regulation with Article 45812 kpc, which states that, irrespective of the outcome of the case, the court may charge the costs of the whole or part of the proceedings to a party who, before bringing proceedings, has abandoned an attempt to resolve the dispute voluntarily, has waived its participation in it or participated in it in bad faith and has thereby contributed to the unnecessary prosecution or defective determination of the subject matter.

An attempt to resolve the dispute voluntarily should be understood broadly as any action aimed at amicably resolving the dispute without involving the court[54]. Thus, even the winning party may be charged with the costs of the process in whole or in part if its conduct or omission has led to undue action or incorrect determination of the subject matter.

IV. Proceedings in civil and economic matters in the light of data from the European Commission

Rules on economic proceedings shall apply from less than one two years and far too early to make firm assessments of the economic proceedings, especially given the specific period associated with the COVID pandemic - 19 55 , However, it is worth mentioning the statistics contained in 2021 EU Justice Scoreboard[56].

The study on the duration of court cases shall cover a year 2012 and years 2017 – 2019, Therefore, only a period third the months of application of the rules on business proceedings, which excludes the drawing of far-reaching statistics.

According to the document cited above, In 2012 time to wait for judgment first instances 57 was 50 days, In 2019 – 111 days.

In civil and economic matters 58 In 2012 was 195 days, a In 2019 270 days. Prolonged waiting period for a hearing In the first the instance is not conducive to economic turnover in any way and this is a problem correctly identified by the legislator.

A positive forecast should be considered to combine the number of cases brought to court with the number of cases concluded[59].

In the case of civil, administrative, economic and other matters in 2012, 2017 This indicator was above 100%, In 2018 was 100%, and In 2019 was 90%, but in the case of civil and economic matters, this rate varies from one year to another 2012 was 90% and in the year 2019 was 100% 60 , It follows that there has been some improvement in the identification of civil and economic matters.

However, the number of civil and economic cases in progress is slightly increasing[61]. In 2012 was theirs. 1.3 to 100 residents In 2019 – 2.5 to 100 residents.

In summary of the selected statistics, it should be pointed out that, regardless of the reforms already implemented, further comprehensive changes are needed, going beyond the procedure itself, which will improve the functioning of justice.

V. Summary

The re-establishment of a separate commercial procedure to the Civil Procedure Code is the result of the legislator's efforts to effectively recognise litigation involving traders.

For this purpose, the legislator has introduced a number of institutions which are designed to prevent lengthy processes in economic matters and to lead to a situation where the time limits for the settlement of judicial matters will correspond to the needs of economic trade.

First of all, the emphasis was placed on speeding up the evidence procedure by ensuring that evidence is concentrated at an early stage, as a result of the application of the probative preclusion, the possibility of concluding an evidence agreement that excludes certain evidence, and by giving particular primacy to evidence from a document that should replace evidence from witnesses' or parties' hearings.

Some of the provisions introduced were controversial even before the entry into force of the amendment of the Civil Procedure Code, in particular those concerning evidence precision and the exclusion of the possibility of a counterclaim.

Indeed, the strict requirements of formalised business proceedings may pose a major challenge for parties who do not benefit from the assistance of professional representatives, and restrictions on the possibility of bringing mutual actions and subject-matter changes and actions in question will lead to an increase in the number of cases brought before economic courts.

It should be pointed out that, as the analysis of the rules governing the conduct of economic matters shows, the relevant institutions of this procedure, such as the evidence agreement, should be introduced to ordinary proceedings.

In the author's opinion, the degree of complexity of the rules on business proceedings will make them readily excluded by the parties who have the right to examine the case without the provisions described.

At the same time, evidence cannot be accepted in the form introduced by the legislator, where the court has sufficient means to discipline the parties extending the process.

A strict probative preclusion violates the party's right to a fair trial that citizens are entitled to under Article 45 Constitution and Article 6 Convention for the Protection of Human Rights and Fundamental Freedoms. The process reliability must be an overriding value, regardless of the value of the dispute.

The advantage of speeding up the proceedings must also give way to the parties' procedural guarantees.

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