civil proceedings

Konstytucyjność zasady jednoosobowego rozpoznawania spraw cywilnych w dobie pandemii Covid-19

Author: Anna Kościółek
Institution: Uniwersytet Rzeszowski
ORCID: https://orcid.org/0000-0003-2656-3453
Year of publication: 2022
Source: Show
Pages: 253-264
DOI Address: https://doi.org/10.15804/ppk.2022.04.20
PDF: ppk/68/ppk6820.pdf

The Constitutionality of Hearing Civil Cases by a Single Judge in the Time of the Covid-19 Pandemic

The subject of this article is the analysis of the constitutionality of the principle of hearing cases by a single judge in civil proceedings. Considerations presented in this study first of all address the issue of whether the principle of hearing cases by a single judge is consistent with minimum requirements set by the legislator of the constitutional system towards the ordinary legislator as regards shaping of the institution of the participation of the social factor in the administration of justice. The second aspect of considerations presented in this article is whether the introduction of the principle of hearing cases by a single judge in civil proceedings may be considered a violation of the right to a fair trial. The analysis of the issue in question is undoubtedly of practical importance due to significant consequences of the potential examination of a civil case in a non-constitutional composition.

Касаційні фільтри в цивільному судочинстві

Author: Світлана Щербак [Svitlana Shcherbak]
Institution: Сумський національний аграрний університет [Sumy National Agrarian University]
ORCID: https://orcid.org/0000-0002-9969-3817
Author: Сергій Мирославський [Serhii Myroslavskyi]
Institution: Сумський державний педагогічний університет імені А. С. Макаренка [Sumy State Pedagogical University named after A. S. Makarenko]
ORCID: https://orcid.org/0000-0003-0802-8203
Year of publication: 2022
Source: Show
Pages: 82-93
DOI Address: https://doi.org/10.15804/CPLS.20223.10
PDF: cpls/3/cpls310.pdf

Cassation Filters in Civil Judiciary

The article is devoted to the study of theoretical aspects of the implementation of the latest cassation filters in civil proceedings, related to the legal opinions of the Supreme Court, as well as the prospects for their further legal regulation. Procedural filters in the court of cassation are considered in the context of conceptual theoretical approaches developed by the judges of the Supreme Court themselves, which are most relevant to the outlined issues, as well as from the point of view of the participants in the process – the subjects of the cassation appeal as it affects a fairly wide range of people, they are judges not only of the Supreme Court but also all instances, including the first and appellate ones, the parties to the case and the lawyers who file cassation appeals,after all, the level of complexity of a civil case permanently determines the increased requirements for the content of the cassation appeal, its structuring,proper substantiation and clear formulation of the grounds for cassation appeal of a court decision. A retrospective analysis of civil procedural legislation on the right of access to the court of cassation was carried out, demonstrating the narrowing of the jurisdiction of the domestic cassation, starting with the granting of the right to appeal in cassation to any court decision with the transition to the definition at the constitutional level of restrictions on obtaining judicial protection in cases specified by law, taking into account public or private interests. The notion of cassation filters is formulated, which defines the restrictions established by law in access to the court of cassation, which make it impossible to file a cassation appeal and the right to cassation review,and the classification of cassation filters in civil proceedings is divided into two groups: \ unconditional cassation filters are mandatory restrictions on access to the court of cassation, which exclude the right to file a cassation appeal(for example, if the case is heard under the rules of summary proceedings) and conditional cassation filters are the restrictions under which a cassation appeal may be admitted under certain conditions. The provision that cassation filters should be fair and justified, effective and, most importantly, should not impede access to justice and should not violate the right to a fair trial. A detailed description of each ground of cassation appeal, laid down in part two of Article 389 of the CPC of Ukraine on the fairness of the new cassation filters that operate in the domestic model of cassation over the past two years, the conditions for the application of paragraph 1 of Part 2 of Article 389 of the CPC of Ukraine, which include the presence of a legal opinion of the Supreme Court (including overcome or selfassigned) and maintaining its legal force in relation to the disputed legal relationship, establishing whether the legal relationship is similar, disregarding the legal opinion of the Supreme Court by the courts of first and second instance. The problematic and controversial issues of modern cassation filters have been specified, which include: ignoring the term “cassation filters” by the current CPC of Ukraine, which is derived at the doctrinal level; lack of clear legislative regulation of the concept and limits of legal conclusions of the Supreme Court; lack of official systematization of legal opinions of the Supreme Court,as well as a certain classifier of cases, which complicates their search by participants in the process; operation by the legislator of a number of evaluative concepts,such as “similar legal relations”, “motivation”, “validity” in determining cassation filters; failure to link cassation filters to the legal conclusions of the Supreme Court,that in judicial practice has not led to a decrease in cassation appeals; lack of a legally formed list of grounds for deviation from the legal conclusions of the Supreme Court and differences in the wording of similarity of legal relations; lack of unity in understanding the correct meaning of the term „taking into account” the legal opinion of the Supreme Court courts of first and second instance in view of the vertical and horizontal effect of legal opinions of the Supreme Court. It is proved that the most dangerous risks are embedded in the cassation filter contained in paragraph 2 of Part 2 of Art. 389 GIC of Ukraine, such as a reasoned justification for the need to deviate from the conclusion on the application of the rule of law in such legal relations. which transferred to lawyers the function of forming judicial practice that is not peculiar to them, which violates the right of participants in the process to access the court of cassation. The concept of cassation filters already covers a wide range of general procedural filters, which relate to the impossibility of cassation appeal of court decisions made in summary proceedings, in minor cases, cases of refusal to open cassation proceedings due to unfounded cassation appeal. It is proposed to revise the scope of the current cassation the prism of the expediency of the latest cassation filters in terms of the effectiveness of legislation given that the binding of cassation filters to the legal conclusions of the Supreme Court does not reflect the impact of new procedural filters on the unloading of the Supreme Court as a higher court.

Konstytucyjne uwarunkowania zakresu kognicji komornika sądowego po wejściu w życie ustawy z 4 lipca 2019 r. o zmianie ustawy – Kodeks postępowania cywilnego oraz niektórych innych ustaw (Dz.U. 2019 poz. 1469 ze zm.)

Author: Joanna Derlatka
Institution: Uniwersytet Jana Kochanowskiego w Kielcach
ORCID: https://orcid.org/0000-0002-2633-4151
Year of publication: 2023
Source: Show
Pages: 219-230
DOI Address: https://doi.org/10.15804/ppk.2023.02.16
PDF: ppk/72/ppk7216.pdf

Constitutional Determinants of the Scope of Cognition of a Court Bailiff after the Entry into Force of the Act of 4 July 2019 Amending the Act – Code of Civil Procedure and Certain other Acts (Dz.U. 2019, item 1469, as amended)

The goal of the paper is to present the compliance with the Constitution of the Republic of Poland of the current scope of cognition of a court bailiff in civil proceedings. After the entry into force of the amendment to the Code of Civil Procedure of July 4, 2019, the bailiff is obliged to examine the limitation period for the creditor’s claim. This state of affairs raises important constitutional doubts. The assessment of the title issue would not be possible without taking a stance on the decision of the Constitutional Tribunal of 22.07.2022, P 23/19. The study uses a dogmatic-legal research method.

Dostęp do protokołów z rozpraw sądowych w postępowaniu cywilnym w systemie portalu informacyjnego sądów apelacji warszawskiej

Author: Paulina Kosior
Institution: SWPS Uniwersytet Humanistycznospołeczny w Warszawie
Year of publication: 2018
Source: Show
Pages: 238-249
DOI Address: https://doi.org/10.15804/tpn2018.2.12
PDF: tpn/14/TPN2018212.pdf

Legislator in Poland from 2010 started procedure of computerization civil proceedings. The biggest modification of the Civil Code and Civil Code of Procedure was introduced at 8 September 2016, from when both parties to court proceedings have access to electronic protocols, pleadings and have a possibility to submit pleadings via IT system. This article aims to describe the access to electronic protocols in civil proceedings based on the Information portal of courts of the Warsaw Appeal. The Information portal of courts of the Warsaw Appeal is a system, which can be used by both parties in a court proceeding, by attorneys, judges and prosecutors. This information portal includes courts in/on the area of the Warsaw Appeal Court. The Information portal contains documents„ which the courts have made, current information about court proceedings, dates of cases, electronic protocols and recordings. The considerations elaborated in this article relate mainly to the access of the electronic protocol in civil procedure, how the Information portal works and which effect it have on the momentum of the trials. The aim of the computerization done by the Polish Legislator was to accelerate the civil proceedings, allow to deliver documents made by court or by each party of proceeding, lower the costs of proceeding and simplify the proceeding. In conclusion it should be pointed out that the positive aspects of access to the protocols from hearings prevail over the information portal of the Warsaw appeal.

Znaczenie opinii biegłego z zakresu informatyki w postępowaniu cywilnym

Author: Zuzanna Miazga
Institution: Uniwersytet Humanistycznospołeczny SWPS w Warszawie
Year of publication: 2017
Source: Show
Pages: 245-262
DOI Address: https://doi.org/10.15804/tpn2017.1.13
PDF: tpn/12/TPN2017113.pdf

In civil proceedings, experts are appointed representing different scientific areas offering wide-ranging expertise on issues requiring expert opinion. This article aims to describe the role and importance of experts in the informatics area who are appointed in civil proceedings. The contribution of expert opinions in informatics has been defined on the basis of their practical use in judicial proceedings under the rules of civil procedure. The importance of an informatics expert opinion can be seen only through the analysis of case-studies. It is possible to see on the basis of the analysis of selected rulings in which cases the courts considered it necessary to appoint an expert in informatics, and in which situations the court considered it as unjustified. The considerations elaborated upon in this article relate mainly to the type of specific information required from court experts in informatics including the purpose for which the parties requested the appointment of an expert together with the influence of the expert opinion on the content of a court ruling. Despite a limited number of years so far in appointing court experts in informatics, in line with the continued developments in technology, their contribution in civil proceedings has been growing steadily. Judges can use opinions made in this area in many cases which are drawn from a very broad range of legal and factual bases. There are more and more cases which require the involvement of court experts in informatics. The subject matter investigated by a court expert in informatics is constantly evolving and broadening in scope. It may be assumed that over time court experts in informatics will be among the most frequently appointed experts to prepare opinions in court proceedings.

Wszczęcie procesu cywilnego przez prokuratora (kilka uwag de lege ferenda i de lege lata)

Author: Agnieszka Góra-Błaszczykowska
Institution: SWPS
Year of publication: 2014
Source: Show
Pages: 14-26
DOI Address: https://doi.org/10.15804/tpn2014.2.02
PDF: tpn/7/TPN2014202.pdf

The article discusses a prosecutor’s position in the Polish civil proceedings in relation to the form of its participation in civil cases. Prosecutor’s possibilities to participate in the civil procedure depend on whether or not he brought a court action or he joined proceedings already pending. The article focuses on the problem wheather prosecutor’s right to bring the action before the civil court should be considered as proper solution during the amendment processs of the Polish civil procedure code.

Uprzywilejowanie wierzycieli w podziale sumy uzyskanej z egzekucji sądowej – uwagi konstytucyjne i procesowe

Author: Joanna Derlatka
Institution: Uniwersytet Jana Kochanowskiego w Kielcach
ORCID: https://orcid.org/0000-0002-2633-4151
Year of publication: 2024
Source: Show
Pages: 117-130
DOI Address: https://doi.org/10.15804/ppk.2024.02.09
PDF: ppk/78/ppk7809.pdf

Creditors’ Privileges in the Distribution of Amounts Obtained in Judicial Enforcement – Constitutional and Procedural Remarks

The purpose of this study is an interdisciplinary analysis the new regulations, referred to in Art. 1025 § 1 point 21, § 32, § 7–8 of the Code of Civil Procedure, in the context of constitutional norms and values determined by specific institutions the principles of a democratic state of law. This regulation was introduced by the amendment of March 9, 2023 as a security for future alimony claims. The article discusses reservations regarding its compliance with the constitutional principle of protection of acquired rights and also presents the corrective proposals. The goal of the paper is to present the compliance of new regulations with the right to enforcement, derived from the constitutional right to a court. The study uses a dogmatic-legal research method.

Message to:

 

 

© 2017 Adam Marszałek Publishing House. All rights reserved.

Projekt i wykonanie Pollyart