Serwis Komorników Sądowych

Enforcement in Poland

The status of judicial enforcement officers has been determined by the 29th August 1997 Act on Judicial Enforcement Officers and Enforcement.

1. The status of judicial enforcement officers

The status of judicial enforcement officers has been determined by the 29th August 1997 Act on Judicial Enforcement Officers and Enforcement. The enforcement officer is a public functionary, acting by a district court and an employee of this court. The enforcement officer is appointed by the Minister of Justice. An enforcement officer candidate must be at least 25 years old, have graduated from a Faculty of Law, have completed enforcement officer training and have passed the final exam.

Within one month of appointment, the enforcement officer is obliged to create or to take over an enforcement officer office and report this fact to the Minster of Justice. Non fulfillment of this condition makes the appointment invalid.

While accomplishing his functions, the enforcement officer has to comply with the provisions of law and with judicial decisions. The district court as the enforcement court examines complaints against enforcement officers' deeds. Furthermore, the court may issue orders ex officio to the enforcement officer which intend to ensure proper execution of enforcement and removal of noticed irregularities.

Enforcement officers are subject to judicial supervision conducted by courts, superior supervision by the Minister of Justice, and administrative supervision by the President of the District Court, curt and the self-government of enforcement officers. The supervision conducted by the Minister of Justice, Presidents of the District Courts and enforcement officers' self-government cannot interfere with the activities subject to the court's supervision.

Enforcement officers form their self-government which includes the National Assembly of Enforcement Officers, the National Enforcement Officer Council, the general meetings of enforcement officer chambers and the enforcement officer chambers.

The National Enforcement Officer Council, and the enforcement officers chambers have legal personality.

The National Enforcement Officer Council is a representative of enforcement officers. The scope of its activity includes, among other things, the expressing of opinion with reference to appointing and recalling of enforcement officers and enforcement officers assistants, on amendments to the provisions which describe enforcement and enforcement officers' functioning, on matters presented by the Minister of Justice or on enforcement officer self-government bodies, on principles of professional ethics, the cooperation with worldwide enforcement officer organisations, publishing of vocational periodicals and conducting of business activities.

2. Enforcement bodies and their competence

Enforcement matters belong to the competence of district courts and enforcement officers acting thereby. Enforcement deeds are conducted by enforcement officers with the exception of those reserved for courts.

The Code of Civil Procedure determines details of enforcement officers' competence in individual manners of enforcement. In the case of a jointer of enforcements against the same things, claims or rights, further enforcement is conducted by the enforcement officer who started enforcement procedure as first. This provision is not applied to enforcement against immovable estates. In that case, the judicial enforcement officer in whose area the real estate is located is always competent.

The 1997 Act on Judicial Enforcement Officers and Enforcement amendment gave creditors the right to choose any enforcement officer in the area of the State. Thus, for example enforcement against movables belongs to enforcement officers of the court in whose area the movables are located unless the creditor selects another enforcement officer. The right to select was introduced to enable creditors to commission enforcement procedure with the enforcement officer who is deemed to be the most efficient.

3. Enforceable document and enforcement clause

Enforcement may be conducted only on the grounds of enforceable documents, which means the enforcement document provided by the court with the enforcement clause.

Enforcement documents are, among others, valid judicial decisions or those with the immediate enforcement clause, as well as court agreements, awards of conciliatory courts or agreements concluded before such courts, notarial deeds in which the debtor subdues itself /himself to enforcement and which include the duty to make a payment of an amount of money or a duty to deliver a determined thing.

Pursuant to the Bank Law, bank registers or other documents related to executed bank deeds may give title to the bank to issue bank enforcement documents. A bank enforcement document may be the ground for enforcement conducted according to the provisions of the Code of Civil Procedure after the court has appended the enforcement clause exclusively against the person who concluded a direct bank deed and made a written declaration on his subduing to enforcement, and when the claims included in the enforcement document arise direct from this bank deed.

To conduct enforcement against joint property of civil law partners, it is necessary to have an enforcement document issued against all partners.

If the right or duty passed to another person after the enforcement document was issued or when the case was pending before the title was issued, the court appends an enforcement clause for or against this person when this transfer was carried out by an official or private document with the signature certified officially.

The enforcement body has no right to examine the grounds or enforceability of a duty which is included in the enforcement document.

After the enforcement procedure has been completed, the enforcement officer marks the result of the execution on the enforcement document and keeps this document in his files. If the performance included in the document was not completely satisfied, the title is returned to the creditor.

4. Initiating of enforcement procedure

Enforcement procedure is initiated at the request of the creditor who indicates the performance which is to be fulfilled by the debtor and the mode of enforcement. The request must be accompanied by the enforcement document. If various modes of enforcement are possible, the creditor should choose the least burdensome for the debtor.

Enforcement procedure may be conducted even if the place of stay of the debtor is not known. A guardian is appointed for such a person.

At the first enforcement activity the debtor is served the notification on enforcement procedure being initiated with the contents of the enforcement document being stated together with the mode of enforcement.

5. Limits to enforcement procedure

Things, money amounts and claims specified in detail in the Code of Civil Procedure are not subject to enforcement. Pursuant to the Labour Code, in case of maintenance performance enforcement it is possible to deduct against remuneration up to three fifths of its amount and in the case of enforcement of other dues up to one half of remuneration.

6. Enforcement of money claims

Judicial decisions refer most frequently to the payment of a given amount of money, and these are the decisions most frequently dealt with by enforcement officers. Enforcement of money claims is directed against movables, remuneration for employment, bank accounts, other claims and other rights in property. Each mode of enforcement is described in detail in the Code of Civil Procedure.

7. Enforcement against movables

The enforcement officer conducts enforcement of money claims against movables seizing them and selling them. The seizure is effected by entering movable assets into the protocol of seizure. The enforcement officer provides each item of seized chattels with a sign of attachment. If the debtor continues not to pay his debts in spite of the seizure, the enforcement officer sells the chattels seized.

The starting price at the public auction is three quarters of the estimated value at the first auction. At the second auction, the starting price is a half of the evaluated value. If the public auction does not take place, the creditor make take over the ownership of the chattel put up for sale for a price not lower than the starting price.

8. Enforcement against remuneration for work

Proceeds for work are seized through a notification sent to the debtor that until total repayment of the debt he is not allowed to collect his remuneration for work with the exception of the part exempt from seizure. At the same time, the enforcement officer summons the employer not to pay to the debtor his remuneration for work with the exception of the part exempt from the seizure, and to transfer the seized remuneration to the creditor or to the enforcement officer.

The seizure is in force even if a new employment contract is concluded with the debtor after the seizure or even if the employer's plant is transferred to another person if the latter has been aware of the seizure.

In the case when the employment contract with the debtor is terminated, the employer makes a note on the certificate of employment mentioning the seizure against the proceeds from work. The new employer to whom the debtor produces the certificate of employment with the note on the seizure of remuneration for work is under an obligation to notify the employer who issued the certificate of employment and the enforcement officer mentioned in this certificate about the new employment. An employer who infringes the law arising from the seizure, or who makes a contradictory declaration or pays to the debtor the seized remuneration for work bears the responsibility for the damages which arise from this deed.

9. Enforcement against bank deposits

Enforcement against bank deposits is conducted when money deposits of a debtor are seized on a bank account. The seizure takes place at the moment when a bank is served a notification on the ban on disbursement from the bank account. The seizure also includes amounts which are not on the bank account but which are transferred thereto later.

A bank which infringes provisions on enforcement from bank deposits is liable for damages caused to the debtor. Besides, the enforcement officer may impose a fine on bank employees who made a disbursement from the account contrary to the law.

10. Enforcement against immovable assets

If a creditor requests enforcement against immovable assets, his debtor is asked to pay the debt within two weeks under pain of starting the description and assessment of the assets. A note on initiated enforcement is made in the Mortgage and Land Register. Making dispositions (for instance sales) of the immovable assets after their attachment has no impact on further proceedings. Enforcement deeds are valid both in relation to the debtor and to the purchaser of the immovable assets.

After the deadline which was given to the debtor in the summons for payments, the enforcement officer starts making the description and assessment with the participation of an expert.

The attached immovable assets are sold at a public auction. The lowest amount for which the immovable assets may be purchased at the first auction (starting price) amounts to three quarters of the assessed amount. The auction is carried out publicly, under a judge's supervision. If nobody puts forward a motion for the immovable assets to be taken over, or the subject of the enforcement is not an agricultural farm, the enforcement officer at the request of the creditor determines the term of the second auction during which the starting price is two thirds of the assessed value. This is the lowest price for which the immovable assets may be purchased.

If at the second auction nobody participates in the bid, the ownership of the immovable assets may be taken over at a price not lower than two thirds of the assessed value.

The enforcing creditor, mortgage creditor and coproprietor have the right to take over the assets.

After the auction, the enforcement court issues a decision on its adjudication for the sake of the bidder who offered the highest sum. After this decision comes into force, and the purchaser has met all the conditions of the auction, a court decision is issued on adjudging the property of the immovable assets.

11. Division of sums obtained from enforcement

If the sum obtained from enforcement is not sufficient to satisfy all creditors, a plan of division is drawn up. The dues from the debtor are satisfied in the following sequence: the costs of enforcement, maintenance, remuneration for work and annuities, taxes, dues for perpetual usufruct of areas and fees for the use of buildings which are the property of the Treasury of State or the commune, dues which were secured by mortgage, dues of creditors who conducted the enforcement, other dues.

12. Enforcement of non-monetary performances

If the enforcement document foresees another duty of the debtor than the payment of a defined amount of money, for instance the duty to deliver a thing, the enforcement officer collects this thing from the debtor and gives it to the creditor. If the debtor is to deliver the immovable assets or to empty the premises, the enforcement officer summons the debtor to fulfil the performance voluntarily in the determined term, and undertakes any other deeds to ensure the creditor's possessions, and in particular he removes the chattels which belong to the debtor.

In judicial enforcement, the debtor may be forced by the court to do a determined deed or to abandon it. A monetary penalty which in case of irrecoverability may be changed into detention serves as a coercive measure.

Decisions with reference to removal of a child are executed in a particular manner.

13. Ways to ensure efficiency of enforcement

Enforcement body may require from participants of proceedings various explanations and it may request information necessary to carry out enforcement from municipal bodies, institutions and third parties which do not participate in proceedings. A person who groundlessly refused to give the enforcement officer information or clarifications or gave him a consciously false piece of information or explanation may be fined by the enforcement officer. Such a fine may be also imposed on a debtor who has neglected his duty to notify the enforcement officer about a change of his residence.

The enforcement officer may admonish a person who behaves improperly or interferes with his deeds, or even have this person expulsed. If this person does not comply with the enforcement officer's second request the enforcement officer may impose a fine on this person.

In case of resistance, the enforcement officer may summon police assistance.

If the purpose of enforcement requires it, the enforcement officer is authorised to open and search the flat and safes of the debtor. Besides, the enforcement officer may search the clothes, which the debtor has on him.

Provisions related to the efficiency of chattel and immovable asset seizure in case of making disposition of them serve to contribute to enforcement efficiency. The seizure has such an effect that any dispositions of chattels made after the seizure have no impact on further course of proceedings and the enforcement proceedings may be conducted against seized movables, and also against the acquirer.

The creditor who proves that his claim has not been completely satisfied as a result of the enforcement, may request obliging the debtor to submit a list of assets with their location where they are mentioned, claims and other property rights due to him and to make an oath. The court issues a decision ordering the debtor to submit a list of assets and to make an oath.

14. Counter-enforcement claims and complaints against enforcement officers' deeds

According to the provisions of the Code of Civil Procedure, both the debtor and a third party may defend themselves facing enforcement proceedings. In judicial proceedings, the debtor may request a total or partial enforcement document deprivation of enforceability if, among other things an event occurred whose effect caused the extinction of the obligation (e.g. its payment) or the obligation cannot be enforced after the document was drawn up.

A third party may request in a statement of claims that an object is exempted from enforcement if enforcement against this thing infringes the former's rights.

Both parties, the creditor as well as the debtor may file complaints against the enforcement officer in the court if they claim that the latter's deeds infringe the law. They have the right to file a complaint also when the enforcement officer abandoned fulfilling of a deed.

15. Responsibility of the enforcement officer

The enforcement officer may bear disciplinary, penal and civil responsibility.

The enforcement officer responds disciplinarily, among other things, for the infringement of dignity and prestige of his office and for serious infringement of legal provisions.

Pursuant to art. 23 of the Act on Judicial Enforcement Officers and Enforcement of 1997, the enforcement officer bears responsibility for damage inflicted while carrying out his deeds.

Pursuant to art. 769 of the Code of Civil Procedure, the enforcement officer is committed to redress damage caused intentionally or through negligence if the person harmed could not prevent the damage in the course of proceedings with the use of measures provided for in the code.

The Treasury of State is responsible for damages jointly and severally with the enforcement officer. The claim for redress of damages prescribes at the expiry of two years since the person harmed learnt about the deed or omission of acting of the enforcement officer of which the damage arose.

The enforcement officer is under an obligation to conclude a contract of civil liability insurance against damage which could arise in relation to his enforcement activities, and if he employs workers also to conclude an insurance contract against his liability for damages which could arise from the activities of his employees with regard to enforcement proceedings.

He may be penally responsible if he exceeds his powers or neglects his duties, and acts to the detriment of public or private interest.

16. Costs of enforcement

The debtor is committed to reimburse the creditor his costs necessary to carry out enforcement. The costs are imposed together with the claim.

The enforcement officer collects enforcement fees for carrying out of enforcement. In matters with reference to monetary performances, the enforcement officer collects proportional fees depending on the value of the enforced performance. In matters of non-monetary performances, the fee is fixed.

Initiation of the enforcement of monetary performances depends upon the payment of a part of proportional fee of 7% of the value of performance enforced. If the enforcement turns out to be effectless, the enforcement officers returns a half of the collected proportional fee (3,5%).

The total proportional fee amounts to 21% of the value of performance being enforced. A part of the fee which does not burden the creditor is collected from the debtor pro rata to the amounts enforced.

The enforcement officers cover their enforcement costs from obtained enforcement fees. Furthermore, the enforcement officer has the right to the reimbursement of cash expenses incurred during the enforcement but limited to the scope defined in the law.

17. Enforcement officer's remuneration

The enforcement officer is an employee of the district court and he is paid remuneration therefore. Apart from that remuneration, the enforcement officer collects a commission from the obtained enforcement fees. The commission of the enforcement officer comes from the enforcement fees collected and obtained in a given month, decreased by the costs of enforcement activity, and the income of the Treasury of State which is 20% of the remaining part of enforcement fees enforced from the debtor.

Exchange rates of 2010-07-29

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