History of the Judiciary

From the end of World War II until the collapse of Communist Party hegemony, the Polish judiciary was largely controlled by the Communist Party. Although the judiciary was formally an independent branch of the government, the Party influenced almost every aspect of the judicial system. Judges were strongly encouraged to become Party members, and their membership was an important factor in promotions and career advancement. Political considerations weighed heavily in everything from case assignments to dismissals. By law, judges could be dismissed for failing to fulfill "judicial" duties in an appropriate manner, in other words, for political reasons.

During this period, interest in the judicial profession was low, ostensibly because of low pay and poor working conditions. Furthermore, the system itself was deficient in size, and judges lacked qualifications, training and adequate office facilities.

Although most of the present laws governing the judiciary date back to the Communist period, many have been amended. The language of the 1992 Constitution states that the judiciary is independent. The Communist concept of "uniform state government," which linked the judiciary to the other branches of government, has been abandoned. Despite these changes, many of the same problems that existed under the Communist regime continue to plague the judiciary

Structure of the Judicial System

Polish Constitution and the Law on the Organization of the Judiciary describe the structure and composition of the judiciary. These laws provide that the administration of justice in Poland is carried out by the Supreme Court, the common courts of justice and special courts

Courts are largely staffed by professional judges, but the Constitution does embrace the principle of public participation in the judicial process. To that end, in most criminal trials of first instance, the court traditionally sits in a panel consisting of one professional judge and two lay assessors, unless otherwise provided by law. A majority of the panel determines both guilt and sentencing in criminal cases. When a case is highly complex, the President of the Court may call for the case to be heard by three professional judges. In less serious criminal cases, at the first and appellate instance levels, a case may be handled by a single judge through summary and expedited proceedings. Even in cases where the participation of lay assessors is authorized, criminal courts have often been waiving the requirement. For most civil cases, changes in the civil procedure law that came into effect in 1996 mandate the use of a single professional judge. The traditional panel of one professional judge and two lay assessors has been retained in labor and social security cases, as well as in family cases (excluding alimony disputes). As with criminal trials, complex civil cases may be heard by three professional judges upon the determination of the President of the Court

Courts

1. District Courts

District Courts are courts of first instance for a wide variety of areas, such as criminal, civil, commercial, labor, family, land and mortgage matters. Each district court has jurisdiction over several counties. These courts traditionally sat in panels consisting of one professional judge and two lay assessors, but, in practice, most cases are now being heard only by a single professional judge. The 1996 changes in the civil procedure codified this common practice of having a single professional judge preside over civil cases.

2. Provincial Courts

The second tier of courts in Poland are the provincial (voivodship) courts. These courts have competency over appeals against judgements of district courts and also serve as courts of first instance for specific cases as defined by law (usually more serious or complicated cases involving serious crimes, complex civil suits, divorce, etc.). Most provincial courts serve a single province.

3. Courts of Appeal

The courts of appeal hear appeals from judgments passed in the first instance by the provincial courts. The Presidents of the courts of appeal exercise administrative supervision over the district and provincial courts within a given region.

4. Commercial Courts

Until 1989, commercial adjudication consisted of a two-pronged system that provided arbitration for disputes between state-owned enterprises, and judicial review, in the common courts, of cases concerning privately owned enterprises. With the rapid growth of the private sector, this system was abolished. At present, common courts of justice have exclusive jurisdiction over commercial matters. To facilitate adjudication of these disputes, specialized divisions (so-called commercial courts) have been set up in the provincial courts, as well as in district courts based in provincial court cities. They are structured as regular common court divisions, and do not operate under any special rules of administration. Their jurisdiction covers all claims related to business enterprises and their operations, as well as some selected categories of other cases (related to areas such as corporate law, environmental law, antitrust law, bankruptcy law and laws involving the management of state-owned enterprises). These specialized divisions are also responsible for court-operated registers of, for example, commercial companies, foundations and trade unions.

According to the principle of specialized career judges, magistrates who adjudicate in commercial divisions do not, as a rule, sit in criminal, civil, labor or family law cases. In this sense, commercial courts are "special."

5. Supreme Court

The Supreme Court is the highest judicial organ in Poland. As such it has final appellate jurisdiction over civil and criminal cases. The Supreme Court also has jurisdiction over other types of cases, such as electoral law, but it generally does not have jurisdiction over constitutional matters. The Supreme Court additionally handles appeals through a cassation procedure modeled on the French system and, to the extent such cases remain in existence, a procedure known as "extraordinary revision". Furthermore, the Supreme Court may pass non-binding resolutions on the interpretation of laws, upon motion in a case in controversy or upon its own initiative. In addition to adjudicating cases that fall under its jurisdiction, the Supreme Court supervises all other courts.

The Supreme Court is led by a First President chosen by the Sejm (the Polish Parliament) from among the judges of the Supreme Court. The First President of the Supreme Court may be recalled on the motion of the President of the Republic by the Sejm. The President of the Republic may appoint and dismiss the other Presidents of the Supreme Court as well as recall them.

6. Supreme Administrative Court

The Supreme Administrative Court is organized as a single court based in Warsaw with branches in ten major cities that deals with the judicial review of administrative acts. Created in 1980, the main function of the Supreme Administrative Court is to review administrative decisions in accordance with the provisions of the Code of Administration Procedure. The Supreme Administrative Court exercises control over the legality of local regulations. The President of the Republic appoints judges to this court.

7. Tribunal of State

The Tribunal of State adjudicates cases that deal with political and criminal infringements on the Constitution or other laws by high-ranking state officials. This Tribunal was established in 1982. Members of the Tribunal of State are elected by the Sejm for the term of the Sejm. The First President of the Supreme Court serves as the ex officio chairperson of the Tribunal. Under the Constitution, judges on the Tribunal of State are independent and subject only to the law.

8. Constitutional Tribunal

The Constitutional Tribunal, which was also created in 1982, ensures the compliance of laws with the Constitution and of regulations with the law. This Tribunal is additionally charged with formulating "universally binding interpretations of the laws." Judgments on the nonconformity of regulations or other normative acts with the Constitution or laws are also binding. These judgments are, however, subject to the review of the Sejm, which can overturn the decisions of the Constitutional Tribunal by majority vote.

The Sejm selects the members of the Constitutional Tribunal "from among the persons, who are distinguished in the knowledge of law," to eight-year terms. The Constitution states that members of the Tribunal are independent and subject only to the Constitution. Individuals may not petition this body.

National Council of the Judiciary

Created in 1989, the National Council of the Judiciary is an independent body of experts comprised primarily of judges, but includes representatives from other branches of government. Seventeen of the 26 members of the Council must be judges, with the others being legal professionals from the legislative or executive branches. Its members include the First President of the Supreme Court, the President of the Military Chamber of the Supreme Court, the President of the Supreme Administrative Court, two judges of the Supreme Court, a judge of the Supreme Administrative Court, nine judges of the common courts (elected by local judges), four Members of Parliament, two Senators, a representative of the President of the Republic and the Minister of Justice. The main function of the Council is to decide upon motions to appoint judges and pass them to the President, who officially makes the appointments. The Council determines whether a judge may be transferred from one court to another, sets the number of disciplinary judges, and comments on ethical issues and other matters concerning the judiciary, such as legislation and training.

Court Administration

In Poland, responsibility for court administration is shared by a number of different entities. The Minister of Justice supervises the administration of the courts. In this capacity, the Minister is responsible for establishing courts and providing them with adequate resources. As the pre-eminent judicial body in Poland, the Supreme Court has constitutionally vested authority to supervise the work of all other courts with respect to their adjudications. General court management is the responsibility of the individual court presidents. The presidents of the courts of appeal exercise administrative supervision over the district and provincial courts within a given region. Provincial court presidents are responsible for the administration of the district courts based within their jurisdiction. In their administrative function, individual court presidents report to the Minister of Justice.

Judicial administrators are responsible for the assignment of cases. Although many variations exist, cases are generally assigned by the registration number given to a case upon its filing in court. For example, cases with odd file numbers would go to judge X, those with even numbers would go to judge Y. In the family courts, cases are assigned according to the territorial jurisdiction of the judge within the overall jurisdiction of the court.

Conditions of Service

A. Qualifications

Judicial selection is based on objective criteria and legal requirements as set forth in Article 61 of the Law on the Organization of the Judiciary. In order to qualify for appointment to the bench, judicial candidates must meet the following criteria:

• Minimum age of 26 years

• A legal education

• Completion of a court-sponsored training program

• Successful completion of the state judicial examination

• Polish citizenship

B. Appointment

Judges are generally selected on a competitive basis by the courts. After graduating from law school (University departments), young lawyers may apply for special training within the courts ("aplikacja"). Following two years of theoretical and practical training, which consists of both substantive law and judging skills, the judicial candidates must pass the state judicial examination. The head of the commission which administers the exam is the Minister of Justice or his representative. Based on the examination results, the Minister appoints (for up to two years) a limited number of apprentices/trainees who are entitled to sit in a judicial capacity in lower instance courts. After the interim trial period, these apprentices are examined by collective judicial bodies and the apprentices' files are submitted to the National Council of the Judiciary. Upon motion by the National Council, the selected candidates are appointed by the President of the Republic of Poland to serve for life.

Lay assessors are appointed by local court presidents upon election by local councils (organizations of local administration elected in universal ballots) from among candidates presented by organizations, enterprises, groups of citizens and local court presidents. Although lay assessors are not usually paid by the court, if they hold a regular job, they typically retain their benefits and wages from those positions. Otherwise unemployed lay assessors may be compensated with a per diem that is equal to 2.2 percent of an average monthly remuneration. As a rule, they adjudicate for no more than 12 days per year. Lay assessors serve four year terms and may be reelected. Lay assessors have the same rights as career judges, and their decisions are treated with the same weight as those of professional judges. For example, in criminal matters, lay assessors decide both questions of guilt and the length of sentencing. Consequently, on the traditional court panel of one professional and two lay judges, lay judges may determine the outcome.

C. Training

The Ministry of Justice and the appellate courts provide some training for judges and judicial candidates. The training is provided in 23 selected appellate and provincial courts. A formal academy which provides vocational training for judges does not yet exist in Poland. Instead, most judicial education consists of one-time seminars. Iustitia, the national association of Polish judges, also provides a regular series of training workshops for judges.

After graduating from law school, a graduate may apply for training within the court system. The prospective judicial candidates have to pass written and oral examinations and are selected on a competitive merit basis. Trainees are paid by the court if they are on permanent status, attend lectures once a week, and work for four days a week under the supervision of a judge mentor or in court administration. A "commuter" training is also possible, where trainees attend the same lectures and then practice in the court for another day. In the latter case, they are not paid by the court. Training is free of charge for the trainees.

For new trainees, training usually lasts 21 months in duration. It covers criminal, civil, labor, family, administrative and commercial law, as well as other general issues. Practical training includes administrative, clerical and judicial functions. For example, a trainee prepares files or even draft opinions with written motifs for a judge, but of course the trainee alone is not allowed to take any formal action.

After completing their training and passing the state examination, judicial candidates may apply for apprenticeships, which last normally from one up to two years. During this period of time, an apprentice performs judicial duties under the supervision of a senior judge. Specialized training is provided at least once every three months for these apprentice judges.

D. Salary and Promotion

Since 1991, the salaries of judges have been derived from a formula based on the average Polish wage. Under this formula, judges earn a multiple of the average salary in Poland, with the multiple determined by their court level. District court judges earn 2.8 times the average salary, provincial court judges 3 times, court of appeals judges 3.5 times and Supreme Court judges 5.7 times. Salaries are not competitive with those of legal professionals in the private sector, but are an improvement upon the historically low salaries of judges in Poland. Judges are entitled to other benefits such as regular vacation and sick leave. Judges also participate in general pension schemes based on their salary levels.

Procedures for promotion are similar to those for appointments. Assemblies of judges and the National Council of the Judiciary play the leading role in this process.

E. Professional Secrecy and Immunity

Judges enjoy basic immunity. Among other things, this immunity guarantees that judges are not subject to criminal proceedings without the agreement of the disciplinary court. Judges are not liable for damages resulting from improper acts or omissions that occur in the exercise of their judicial functions.

Judges may be compelled to testify, but may refuse to disclose information that is contrary to important state or private interests.

F. Ethics

A written code of judicial ethics per se does not yet exist in Poland. At present, this area is governed by the laws on the judiciary and the criminal code.

These laws contain a number of provisions focused on judicial neutrality and to that end set forth the circumstances under which a judge is disqualified. The judge is disqualified by law if the case concerns him/her directly, he/she is the spouse of any party to the proceedings, or he/she is related to any such person by blood, marriage or legal ties (adoption, custody, etc.). Judges must not have witnessed any acts involved in the case, nor may they have been previously involved in the proceedings as a prosecutor, defense counsel, legal representative or judge. If any of these circumstances exist, judges are required to disqualify themselves by filing a written statement in the record of the case. If a judge fails to follow this procedure, the court will determine whether to disqualify the judge. If a judge's neutrality is suspect and the judge is not disqualified, grounds for reversal exist.

Generally, no fixed limits exist on the freedom of expression of members of the bench. Judges are expected, however, to preserve their neutrality. To this end, active, professional judges are not permitted to join political parties or to participate in political activities.

G. Discipline and Dismissal

Disciplinary procedures are regulated by Articles 80 through 106 of the Law on the Organization of the Judiciary. A special disciplinary court handles proceedings in this area. Judges may be suspended pending a disciplinary proceeding. The disciplinary court hears cases sitting in panels of three. If an infraction is found, the court may discipline a judge by ordering a rebuke, reprimand, disqualification from the administration of justice, removal to another position, or absolute disqualification. Decisions of this court may be appealed to the High Disciplinary Court. The Minister of Justice is responsible for executing decisions of the disciplinary courts.

A judge may be dismissed before retirement only if he or she commits a crime or insults the dignity of the profession. In the first case, the final judgment of a common court is required; in the latter, the decision of a disciplinary court is required in order to dismiss.

The only other circumstances under which a judge may be removed are the dissolution of a judge's court, marriage of one judge to another on the court (or to a lawyer), or if it is necessary to maintain the dignity of the profession. In the two former cases, the Minister of Justice orders the removal. In the last case, a decision of the National Council of the Judiciary is required.

Procedural Due Process

The Polish Constitution and other laws make a number of due process guarantees. Some of these include:

• An equal right to be heard by a court of law.

• All hearings, unless specified by law, are open to the public.

• Defendants have a right to counsel, and are presumed innocent until proven guilty.

• The right to remain silent in the face of criminal accusations. An accused's silence may not be used against him or her at trial.

• As a rule the accused has a right to be present at every action of the evidentiary proceedings at trial, and his/her presence at the main trial is mandatory.

Unlike the American legal system, the Polish legal system remains largely inquisitorial, rather than adversarial. Polish judges remain responsible for calling and questioning witnesses in order to ascertain the facts of the case, although more adversarial procedures have come into practice, such as allowing the parties and their counsel to address questions directly to witnesses at trial.

Principles and Guarantees of Independence

The Polish Constitution supports a broadly accepted principle of constitutional jurisprudence in establishing an independent judiciary. The Constitutional Act of 1992 also upholds provisions of the Polish Constitution of 1952 that establishes the three branches of Polish government.

Assemblies of judges, comprised, for instance, of all the judges on one provincial court plus an equal number of judges of the subordinate district court, decide on crucial matters related to judicial independence. Among other things, these judicial groups elect in secret ballot three candidates for each vacant judicial post. They also elect court administrators (for positions other than court president).

In practice, the independence of judges remains an issue. The judicial system is funded through the State budget. Judges have experienced difficulty in getting paid and to that end have brought civil actions against the State Treasury. In addition, the parameters of judicial responsibility remain unclear. A tendency exists to vest courts and judges with more and more tasks, not always of a judicial nature (involving, for example, registers, public elections, etc). In addition, a group of relatively less serious misdemeanors called administrative infractions or petty offenses exists in Poland that are not considered crimes. Special administrative boards address these matters in the first instance, with the possibility of appeal to the district courts. An appeal from the judgement of this court is limited only to the cases where the court has elevated the board's decision.

Judicial decisions appear to be made independently. Nevertheless, final and valid judgements may, in limited circumstances, be challenged ex officio or upon motion of a party, by several non-judicial organs, including the First President of the Supreme Court and the Minister of Justice. The Ombudsman, for example, retains the right to intervene at a late stage by lodging a cassation claim against the final decision of the Supreme Court; this right remains limited to times when traditional means of challenging judgments are exhausted. The Supreme Court has exclusive jurisdiction over such cases.

Judges' Associations

Judges may form professional organizations as long as they are not political in nature. Iustitia, the national association of Polish judges, is the only formal association of judges with a membership that reaches beyond traditional geographic, regional or court lines. With 300 to 400 members in ten branches located throughout Poland, the organization has grown dramatically in recent years. Iustitia organizes a regular series of training workshops for sitting judges and has begun to publish a periodic newsletter of its activities.

Current Status and Conclusions

Negative historical perceptions about the Polish judiciary have kept judicial service from being viewed as a prestigious profession. Judicial salaries are not competitive with those of other members of the legal profession (especially in comparison with large law firms or with other private sector employment). Members of the bench also suffer financially because they are prohibited from maintaining other part-time jobs (a common practice in other professions in Poland). Nevertheless, judges do enjoy a certain level of job security not shared by those in other fields.

Some of these opinions of the judiciary derive from the fact that, in accordance with the Polish and civil law tradition, the discretionary powers of the judge have been very limited. The judge is viewed as the passive executor of the law rather than as an active participant in law-making. Generally speaking, as in other civil law countries, judicial decisions have no precedential value, and thus judgments rendered by the Supreme Court are placed in a position equal to the judgments of other courts. However, this equality of judgments does not prejudice the interpretation of the law, which remains the judicial mandate.

Judges are banned from being members of political parties and generally try to maintain their objectiveness. Judges, however, do play an active role in the election process. In fact, by law, judges are frequently appointed to electoral commissions and are responsible for adjudicating related election matters.

Despite efforts to limit political pressure and influence on judges, the reputation of the Polish judiciary remains poor. For example, recent surveys on bribery in the public sector conducted by CBOS (the Public Opinion Research Center in Poland) reveal that a significant percentage of the Polish public believes that the judiciary is among the most corrupt of government departments (the second highest after public administration officials).

Not only does the judiciary lack prestige as a profession and suffer from poor public perception, but noticeable shortages in both human and financial resources continue to persist. Judicial facilities are in substantial need of repair, renovation and new technical equipment. The current circumstances are especially problematic when coupled with the influx of cases resulting from new legislation and economic relations in Poland.

To overcome these problems, judges must improve their skills, through additional training, their court operations, through improved organization, and their public reputation, perhaps through the adoption of a written ethics code. The Polish government must also commit itself to improving the judiciary through greater financial and material assistance.

Generally, the Polish judiciary suffers from a shortage of human and financial resources. The number of judges (including judicial candidates, trainees and apprentices) is approximately 7,000. The average Polish judge handles 600 cases per year. Although the number of judges has increased 25 percent since 1989, the caseload for judges has increased 225 percent over the same time period. The Ministry of Justice planned to appoint 1200 judges in order to handle the backlog of cases. Out of this number, however, only 240 new positions were created by the end of 1995 due to budgetary limitations. The failure of judicial salaries to compete with those in the private sector has resulted in the departure of many well-qualified judges. In 1993, 184 judges left the bench. Most of the judges who leave the bench are young, yet experienced. The physical resources of the judiciary are equally deficient. Funds remain scarce and inadequate for much needed construction and remodeling of courthouses, as well as for technical equipment.

All materials on the Commercial Law Center Foundation site are the sole property of said foundation unless otherwise noted.THE COURTS - SYSTEM AND PROCEDURE.

XII. THE COURT

1. Civil courts.
   
   According to the art. 56 sec. 1 of the Constitution of Poland the jurisdiction in Poland is performed by the Supreme Court, the common courts and special courts. The common courts include: appeal courts, provincial courts and district courts. The district courts are established for one or several communes within the limits of one voievode. The provincial courts are established for one or several voievodes. The voievodeship courts include specific entities for commercial cases (commercial courts). The appeal courts are established for one or several voievods. The voievodeship court in Warsaw include antymonopoly court.
   
   The Supreme Court is the main judicial authority controlling the activity of all the courts.

1. The competence of courts
   
   The competence of the courts means the ability of the court to examine and to determine cases and to accomplish actions in judicial proceedings. Three criteria of the courts competence exists, according to: kind of judicial proceedings, type of cases and the territorial zone.
   
   To the material competence of district courts belong all cases, except those reserved for provincial courts.
   
   The territorial competence is based upon the principle: actor sequitur forum rei. According art. 27 § 1 of the civil procedure code (the code) the action should be instituted to the first instance court, in the district of which the defender is domiciliated. This principle rule has some exceptions determined in the code.
   
   The functional competence is based upon the division of functions and particular proceeding acts in the judicial proceedings between the courts of different levels or of different types. The main importance of this division consists on the division of functions of the courts of first and second instance.

2. The object of the civil process.
   
   The object of the process is this group of facts which is to confirm the reality of the statements and the real being of the right or legal relationship, which is the object of the action.

3. The value of the claim.
   
   The fixation of the value of the claim is important in all pecuniary cases and for other process questions, e.g. the level of the due judicial fees and costs of process as well as the attorney's remuneration. The plaintiff is obliged to fix the value of the claim in each pecuniary case, according to the code regulations. The fixation of this value is performed by indication the required amount. This obligation is not binding when the object of the process is the pecuniary claim, even submitted as exchange of another subject, as the value of the claim constitutes the required amount. The value of the claim does not include interests, costs and profits required with the main demand.

4. The parties and the participants of the process.
   
   The civil process is based upon the rule of two parties. This means that two parties have to participate in each process notwithstanding the number of the persons from each side (according to the Polish law more than one person can participate at each side of the process). In the civil process, third persons can participate under certain conditions and in certain situations and can accomplish process actions . Only the person who has the judicial capacity can act as a party or participant of the proceedings. According to the code, the judicial capacity belongs to the natural persons, legal persons and social organisations allowed to act on the basis of the regulations in force, even if they are not legal persons.

5. Representation of the parties.
   
   The impossibility to act in the process as a party or participant is dependent to the lack of judicial capacity. The lack of judicial capacity the court takes into consideration at every stage of the process. The court can nominate a trustee for the party not having the judicial capacity upon the request of the other party, unless this party has a legal representant. The court can allow the party not having the judicial capacity to act in proceedings temporarily under condition that in a defined period this lack shall be completed, and the actions shall be conformed by the nominated legal representant.

6. Proceedings - procedure
   
   The process begins by instituting the action. Lodging a claim is the first proceedings act of the plaintiff. From the moment of the receipt of the claim by the defendant the case is pending. In that situation the defendant can (i) accept the claim, (ii) not begin the defence, (iii) limit himself to demanding the dismissal the claim and denying the base of the claim, (iv) to rise judicial objections, (v) lodge a mutual claim.
   
   The central point of the process is the trial. In that stage the assembling of the information concerning facts basis of the dispute and controlling its reality. During the trial the explanation and the presentation of the position of parties takes place. The defendant cannot refuse to enter into the dispute even if he rose formal objections. In this stage the court takes the decision concerning the evidence proceedings. When the court considers that the case is sufficiently clear, it pronounces a judgement.

7. Means of review.
   
   Appeal. According to the art. 367 of the code the party has the right to appeal from the judgement of the first instance court to the second instance court. Appeal can that party in whose opinion the judgement is not satisfactory partly or completely. The party is obliged to present her objections, however, without being obliged to explain them. The objections of the appeal can be new facts or evidence not rose in the first instance. The court, however, is entitled to omit the new facts or evidence if the party was able to present them in the court of first instance. The court will allow new evidence if it considers, that the first instance judgement may cause damage to the appellor and when new facts or evidences have a considerable importance for the case. The legal opinion and the instructions concerning the further proceedings expresses in the judgement of the second instance court are binding for the first instance court.
   
   Cassation is the third instance, which is not to examine the case, but which controlles the judgements on the demand of the parties. The cassation proceedings is a judicial proceedings to which apply the general rules of the civil process. The party has the right to cassation from the judgement or decision issued by court of second instance and terminating the proceedings in the case. The cassation is not allowed in several cases, detailed in the code.
   
   Complaint - is a regular mean of review. The complaint is to review the decisive acts of the court concerning the proceeding questions. The right to complaint have not only the parties and participants of the proceedings, but also other persons like witnesses, experts and so on.

2. Specific organisational entities is Polish courts.
   
   In Polish courts the specific departments of common courts examining cases in a different procedure are established by the Minister of Justice. At present there are family courts, labour courts, labour and social insurance courts and commercial courts.
   
   Commercial courts - examines the cases connected with commercial activity conducted by a professional way by economic entities. The commercial courts are also competent for company cases, against economic entities concerning the stop of deteriorating the environment and bringing to the previous condition and repairing the damage connected with, and belonging to the courts upon the regulations concerning the monopolistic practices.
   
   The proceedings in commercial cases are built in a way the lesser antagonizment of the parties, since they often remain in cooperation. For that reason the conciliation proceedings is obligatory. In general the proceedings in commercial cases does not differ from the ordinary proceedings, but it is built in a way to accelerate it.

3. COSTS OF THE CIVIL PROCEEDINGS
   
   The costs of the proceeding are the costs beared with connection to the proceedings. They are divided on (i) judicial fees, (ii) costs connected with the attorney actions (so called attorney fees), (iii) costs connected with the participant actions.
   
   The judicial fees are the costs covered by the participant in favour of the court. They include the fees and the reimbursement of costs. The judicial fees include initial fee and chancellery payment. The initial fee is a payment perceived from the papers to the court. The chancellery payment is perceived for attestations, copies etc. The reimbursement of costs include the expenses effectively payed during the proceedings, so the expenses of witnesses and experts, the costs of announcements. Accomplishment of such an action depends on paying an advance determined by the court. The advance is to be paid by the party who wanted to accomplish an action connected with expenses. The judicial fees are to be paid by the party who issues the letter being object of payment. The court will not accomplish any action without a previous payment.
   
   The evaluation of the necessity of costs to the reasonable defence of rights is done by the court. It depends on the circumstances of each case.
   
   As far as the bearing of the proceedings` costs is concerned, the general rule is the responsibility for the result of the process. The court judges the costs of process depending on its result. In a situation when one party won the process, the court judges for its favour the costs of the process. If in a case each party partly lost the process, the costs are judged respectively.

XIII. EVIDENCES

Under Polish law the evidences are only those ones which are provided in the Civil proceedings code and their are as follows: document evidence, testimonies of witness, expert opinion, inspection, hearing of parties, and other: blood test, film and TV evidences, photograph, plans, drawings, records and the other, so called innominate evidences. The hierarchy of importance of the evidences depends on the case. There are however some exceptions, namely: the Civil proceedings code provides that the document evidence is prior to the witness evidence or hearing of parties. Also the subsidiary character of the hearing of parties is stated in the code.

The evidence makes possible proving and allows to certain about existence or non-existence of the particular fact. The evidences are divided onto: direct and indirect as well as related to things and personal. The direct evidence is when the judge is in a position to verify some statement personally, and the indirect evidence is when the fact being the object of proving is not verified directly but indirectly on basis of other facts. The power of the indirect evidence is dependent on the indirect elements existing between the judge and the fact being the object of proving. The related to things evidences are those which are inspected by the judge. These might be also persons and documents. The personal evidences are those which are done by the testimonies.

Witness testimonies- Witness testimony evidence is the most frequent evidence in the court practice. According to Civil proceedings code the witness cannot be: (i) persons unable to observe or communicate their observations (ii) militarities and officials not released from keeping the official secret (iii) statutory representatives of the parties as well as the persons who may by heard as a party being the bodies of the legal person or other organisation having the capacity to be a party in civil cases (iv) uniform joint participants. Under Polish law there exist also the institution of right to refuse to testify and of right to refuse the answer to a question. The right to refuse to testify vests to spouses of the parties, their ascendants and descendants and the siblings as well as to the related in direct line, and also to the persons being in the relation of adoption. The right to refuse the answer to the question vests to the witness if his testimony could expose him or his relatives to the penal responsibility, ignomy or direct proprietary loss or if it could infringer the professional secret. Also the priest has the right to refuse to testify as to the facts heard on the confession.

Before the witness is heard he has to be informed about the right to refuse to testify and about the penal responsibility for making false testimonies.

XIV. GARNISHMENT

In the civil proceedings participate two parties - the plaintiff and the defendant and the result of the proceedings effects onto their rights and obligations as well as to their legal situation. The result of the proceedings does not effect onto the situation of the third person - as to the rule. However, the situation in which the result of the proceedings may affect the situation of the third person is possible. Therefore, Polish civil proceedings law enables the third person in some circumstances to take part in the proceedings running between two parties. Thus in Polish law exists the institution of secondary intervention. Secondary intervention means accession of the third person to the proceedings at the side of plaintiff or defendant and participation in it together with the party to which the third person accesses. The secondary intervenient does not assert in this proceedings his own rights, but he cooperates with the party to whom he accessed to defend this party`s rights. Thus he defend also his legal situation on which he can influence.

The secondary intervention is initialled mostly by the intervenient, who notifies his accession to the case. However the secondary intervention may come into effect also by initiative of the party, who may be interested in that the third party takes part in the proceedings because of the legal relation linking this party with the third person. This initiative aiming at third party`s accession to the proceedings on demand of the party is called garnishment. In this case the third party should access the proceedings otherwise he could not raise the objection in the future regress proceedings between him and the party, concerning wrongly judged case or defective providing of the proceedings.

XV. WRITS OF EXECUTION

Starting the execution proceedings depends on fulfilling some conditions. The court execution is admissible when:

1. exists the valid writ of execution,

2. writ of execution is provided with the enforcement clause,

3. the motion for starting the execution has been lodged to the proper execution body.

In the motion for starting the execution proceedings the consideration to be performed has to be precisely specified and the way of execution should be specified also. The creditor is allowed to point out in one motion few ways of execution against the same debtor. The debtor is entitled to demand that the execution from the whole property should be stopped if the part of it will satisfy the creditors claims.

The writ of execution is the first condition of execution. Without satisfying this condition the execution cannot be provided. There are the following writs of execution:

5. valid court decision or being subject to immediate enforcement and agreements concluded before the court,

6. the court of conciliation`s decisions or the agreements concluded before those courts,

1. other decisions, agreements and acts, which are subject to court execution according to the law, for example: the extracts from the list of claims stated during the bankruptcy proceedings after this proceedings are finished, bank agreements, valid court enforcement officer decisions concerning the fine penalty,

2. notarial deed in which the debtor submitted himself to the execution and which includes the obligation to settle the amount of money or submit other things provided in that deed or the obligation to deliver the thing individually stated when the term of settlement, or delivering is provided in that deed.

3. notarial deed in which the debtor submitted himself to the execution and which includes the obligation to settle the amount of money up to the amount provided in the deed, when the act indicates the conditions which entitle the creditor to provide the execution against the debtor in virtue of this deed as well as the term which limits the creditor`s right to require granting the enforcement formula.

Taking into consideration the character of executed consideration there are to types of execution:

4. pecuniary consideration execution and

5. non-pecuniary consideration execution.

The pecuniary consideration execution may be from:

6. movables,

7. employment remuneration,

8. bank accounts,

9. other claims and property law,

10. real-estates,

11. fractional part of the real-estate,

12. perpetual usufruct,

13. sea-going ships.

There are following kinds of non-pecuniary consideration execution :

14. delivering a movable thing,

15. giving out the real-estate, ship or vacation of the premise,

16. performing an act which may be done by the other than the debtor person,

17. performing an act which may not be done by other person than a debtor and which performance is dependent from his will,

18. omission of the act,

19. cancelation of the real -property co-ownership in the way of public sale.

Execution limits- Execution limits are objective and subjective. The subjective limits concern the subjects released from state jurisdiction as far as execution is concerned, State Treasure and the economic entity.

The objective limits mean that the execution from the stated property is inadmissible. These limits may arise out of the law provisions as well as from the social, economic and humane reasons.

The objective limits of execution may also arise out from the writ of execution.

XVI. ATTACHMENTS

The property attachment is the effect of the executional proceedings before the civil court, and its aim is to bring to the compulsory realization of the obligations arising out of the court decision.

Types of the pecuniary considerations being the subject to attachments:

- movables - attachment of the movable thing results in this that the disposal of the movable thing after the attachment, particularly its transfer, does not effects on the further course of the proceedings, and the executional proceedings may be provided also against the transferee of this movable thing.

- employment remuneration - execution from the employment remuneration is directed to the claim which the debtor as an employee has towards the workplace and the subject of which are any pecuniary transfers connected with the employmentship or the mandatory relations. Attachment of the remuneration is carried out by the court executive officer by notifying the debtor about this fact and by informing the workplace of the debtor that the debtor should not have the remuneration payed out within the limits of the attachment and that it should be payed to the creditor or the court executive officer.

- resources at the bank accounts - if the debtor has the ordinary bank account, the court executive officer carries out the attachment by informing the bank about the attachment and calling the bank to not to execute the payments without the permission of the court executive officer but to transfer the attached sum to cover the dues or to inform the court executive officer about the obstacle.

- other claims and property rights

- real estates, fractional parts of the real estates, perpetual usufruct - the attachment is carried out by the court executive officer by calling the debtor to settle the debts within 2 weeks under pain of starting further execution steps.

- seagoing ships entered into the ships register - the provisions concerning the attachment of the real estate are applicable.

XVII. RECOGNITION OF FOREIGN JUDGEMENTS

According to the provisions of Civil proceedings code the effectivity in Poland inexecutable foreign courts decisions in civil cases is dependent from their recognition by the Polish court. However, the foreign court decisions concerning the cases unrelated to the property of the foreigners issued by the proper for their country law court are released from the above mentioned recognition unless this decisions are not subject to contracting marriage in Poland or entry into the Polish public registers.

The foreign court decision can be recognized under the condition of reciprocity and if:

- the decision is valid in the country in which it was issued,

- the case does not belong, according to the Polish law or international agreement, exclusively to the Polish or third court`s jurisdiction,

- the party has not been deprived of the defence,

- the case has not been judged before Polish court or it has not been instituted before the Polish court before the foreign court decision become valid ,

- the decision is not contrary to the basic rules of Polish law,

- the decision in case has been issued with the Polish law applied if it was necessary unless the applied foreign law does not differ from the Polish law.

Every one who has the legal interest may apply for recognition of the decision. About recognition decides the provintional court after the trial with the public prosecutor presence.

The foreign court decisions in civil cases being subject to execution are the writs of execution and may be performed in Poland under the condition of reciprocity and if:

- the decision is to be executed in the country in which it has been issued,

-the above mentioned conditions has been fulfilled.

The agreement concluded before the foreign court constitutes the writ of execution (under the condition or reciprocity) if it is enforceable in the country of its conclusion and is not contrary to the basic rules of Polish law.

XVIII. ARBITRATION

In Poland exist two types of arbitration courts: permanent courts of arbitration and courts of arbitration appointed ad hoc, to examine particular cases. The regulations of the Civil code apply to the permanent courts of arbitration as well as to the courts of arbitration appointed ad hoc.

The courts of arbitration act upon the base of the clause for courts of arbitration, that is an agreement between the parties transmitting the dispute between them to be examined by the court of arbitration. The parties can transmit all disputes between them to the court of arbitration except the disputes concerning maintenance and the labour law disputes.

The necessary elements of the clause for arbitration are: the precise definition of the object of the dispute or the legal relation the dispute arose or may arise of. The parties may therefore transmit to the courts of arbitration either the disputes that have already arose (the strict clause for arbitration court) or that which may only arise in future, but only from a defined legal relation (so called compromissory clause) . Therefore, the clause cannot include all eventual future disputes without precising the legal relation of which they might arise.

As far as the clause for arbitration court remains in force, neither party is entitled to demand the dispute be examined by the common court. In case of initiating an action in front the common court, in spite of the existence of the clause, the action is rejected but only upon the objection of the defendant risen and properly motivated before entering into the dispute.

There is no appeal form the judgement of the court of arbitration. The judgement of the court of arbitration as well as the agreement have the legal force as the judgement of the common court or an agreement concluded in front of such a court , after however considering its executiveness by way of a decision. The court is to refuse considering executiveness if from the files of the court of arbitration results, that the judgement or the agreement is contradictory to

the legality or the principles of conduct in community. The decision in this matter can be subject of complaint.

The party is entitled to submit to the court a demand of reversal the judgement of the court of arbitration within one month from the date of delivering the judgement, if:

- the clause for the court of arbitration did not exist, or the clause was void or ceased to be in force,

- the party was deprivet from the possibility of defence her rights before the court of arbitration,

- the rules of proceedings before the court of arbitration established by the parties were not observing the regulations of law, especially the rules relating to the composition of the court, voting, exception of the judge or judgement,

- the decision of the court is uncomprehensive, is contradictory or infringes the legality or the principles of conduct in community in Poland,

- occured reasons which can be base of the demand of the renewal of the proceeding according to the code.

There is no possibility of appeal from the judgement of the court of arbitration. However there is a possibility of renewing the proceedings. According to the code the bases of renewing of the proceedings are divided into two groups: first one is the nullity of the proceedings, the second - the appropriate reasons of renewal.

It is possible to demand the renewal because of the nullity, if:

- a person unauthorised participated in the composition of the court or if a judge excluded by the force of law judged, and the party could not demand the exception of the judge before the judgement entered into force,

- the party didn't posses the court ability or the process ability or was not represented properly, or was privet the possibility to act because the infringement of rules, however it is not possible to demand the renewal if before the judgement came into force, the impossibility of act ceased or the lack of representation was risen as an objection or the party confirmed the accomplished process acts.

The appropriate reasons of renewal are the following:

- the judgement was based upon a false document or a condemning judgement, afterwards revocated,

- the judgement was obtained by way of a crime.

It is possible to demand a renewal because of the crime only when the crime was considered by a judgement, unless the criminal proceedings cannot start or was discontinued for other reasons than the lack of evidence.

It is possible to demand renewal in case of a further disclosure of such circumstances or evidence which could have effect for the result of the case, and which the party could not make use in a previous proceedings.

It is possible to demand renewal in case of a further disclosure of a judgement concerning the same legal relation; in that situation the court examines not only the judgement - object of appeal, but also other judgements concerning the same legal relation.

The court is bound by the basis of the demand of revocation of the judgement of the court of arbitration, however it takes under consideration if the judgement does not infringe the legality or the principles of conduct in community.

International Arbitration

The International Commercial Arbitration is regulated by multiple conventions, of which the following are of major importance:

- about the recognition and the execution of the foreign arbitration awards, established in New York the 10 June 1958,

- about the international commercial arbitration, established in Geneva the 21 April 1961.

In Poland there is a draft about the international commercial arbitration. According to the draft the act would apply to the international commercial arbitration relating to the disputes resulting to the contractual or non-contractual legal relation connected with the economic activity.

The motion "international commercial arbitration" are defined the objective and subjective criteria. The subjective criteria relate to the parties of the arbitration agreement. The relation with the foreign zone is adopted by way of "the place of conducting the economic activity" (place of business), that is the seat of the enterprise each of the party. The arbitration has an international character, when the parties in the moment of signing the arbitration agreement have seats in different countries.

It was also adopted, that the parties can upon the agreement submit to the regulations of the law the arbitration not having the international character. Moreover, the parties are not only free to chose the law in conformity of which the dispute shall be examined, but also to empower the arbitration court to examine the dispute upon the general rules of law. The parties are also entitled to empower the court to examine the dispute by way of equity. The arbitration court examines the case upon the stipulations of the contract and the commercial customs applying to the legal relation. The act applies only to the arbitration within the territory of Poland. This rule has some exceptions concerning the question of competence of the common courts as well as the recognition and execution of the arbitration courts judgments. These regulations apply notwithstanding the country in which the arbitration took place, takes place or will take place.

The acts guaranties a lot of freedom to the parties. This is expressed by:

- free choice of way of constitution of the arbitration court,

- free regulation of the principles of arbitration proceedings,

- free choice of law for the examination of the dispute.

The parties are free to establish the rules of proceedings before the court of arbitration, especially the place of arbitration, the language of proceedings, terms of proceedings and the form of proceedings. The limits of this freedom are defined by the principle of an equal treatment of the parties. The autonomy and the efficacity of the international commercial council is guaranteed by a precise definition of competence of the arbitration and common court. The judicial way is impossible in case concerned by the clause of arbitration. The act also regulates the questions connected with the appraisal by the parties of the objection of the lack of competence, in order to avoid the prolongment of the proceedings.

The common court cannot react during the arbitration proceedings. Only the conclusion of the arbitration agreement or even the initiation of the arbitration proceedings are not an obstacle for a common court to issue a temporary decision in order to protect the claim.

There is no appeal from the arbitration court judgment. The party is however authorised to demand its abolition upon the conditions defined in the act.

The arbitration court judgment, notwithstanding the country in which it was issued, is upon a written motion, object of recognition and execution upon the principles defined by law.

The abolition of the arbitration court judgment or the refusal of its recognition or execution may take place upon the principles defined in law.

The abolition of the arbitration court judgment as well as the refusal of its recognition or execution may also take place ex officio, in the court states that:

- according to the law the dispute cannot be examined by way of arbitration, or

- the arbitration court judgment is contrary with the basic rules of the legal order in Poland.

All materials on the Commercial Law Center Foundation site are the sole property of said foundation unless otherwise noted.

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