Polish law

Polish law

The law on judicial officers and execution
(the 29th of August 1997,
Journal of Law 133,
item 882 as amended)

The law on judicial officers and execution 1997, introduces a new status of judicial officers and changes the rules of financing execution.

A judicial officer's status

According to Article 115 § 13 of the new Penal Code, the following persons are considered to be public officials:
1) the President;
2) a deputy, a senator, an alderman;
2a) a member of European Parliament
3) a judge, a people's lay-judge, a public prosecutor, a public official of the financial preparatory proceedings organ or its superior organ, a notary, a judicial officer, a professional court- appointed curator, bankruptcy trustee, court supervisor or administrator, a person passing judgments in cases prosecuted as petty offence and in disciplinary proceedings according to law;
4) an employee of the state administration, other public organ or municipal institution, if he/she does not perform acts of service only, and a person entitled to make administrative decisions;
5) an employee of the public or municipal control body, if he/she does not perform acts of service only;
6) a person performing a function of a head of any other public institution,
7) an officer of a body responsible for the public safety and an officer of prison administration;
8) a person in active military service.

The aim of Article 115 § 13 of the Penal Code is to provide wider protection enjoyed by public officials upon judicial officers.

From constitutional point of view, a judicial officer is a public authority (sentence of The Constitutional Court from the 5th of December 2003, K 5/02).

A judicial officer is appointed by the Minister of Justice.

The Minister of Justice has the power to dismiss a judicial officer only in cases specified by the law.

Judicial officers` prerogatives:

According to Article 2 of the law a judicial officer carries out an execution in civil cases and performs other acts described by the law.

Judicial officers` prerogatives extend as far as:
1) enforcement of court judgments on payments and execution of non-cash performances and securing the claims;
2) enforcement of other writs of execution;
3) making written accounts of facts of a case before commencing legal proceedings or before making a decision by order of the court or of the public prosecutor.

Besides, a judicial officer is entitled to serve notices, protests and complaints, to supervise voluntary public sales, including knocking down the lowest and the highest offer on the organizers application.

Judicial officer's prerogative of making written accounts of facts of a case is based on the French law. Judicial officers are entitled to make written accounts of facts of a case before commencing legal proceedings or before making a decision by the order of the court or of the public prosecutor.

A judicial officer enforces court judgments and other writs of execution in cases described by the law.

According to Article 777 of the Polish Code of Civil Procedure the following documents are considered to be writs of execution:
1) valid or immediately executable sentences and agreements in court;
2) sentences of arbitration courts and agreements negotiated in front of them;
2a) agreements negotiated in front of mediator;
3) other sentences and acts defined by the law which are enforced in the course of executive proceedings;
4) a notarial act in which the debtor submitted himself to execution comprising his obligation to pay a certain sum of money or handle over interchangeable things or an obligation to handle over things defined as to their identity, if the time of payment or handling over is indicated in the act.
5) a notarial act in which the debtor submitted himself to execution comprising his obligation to pay a certain sum of money defined in act directly or by valorization clause, when act defines conditions, which empower creditor to initiate execution against debtor basing on this act, concerning whole or part of the debt, as well as term, which has to be kept, if creditor wants to establish enforcement clause in this act;
6) a notarial act in which the owner of immovable property or owner of claim secured by mortgage, not being personal debtor, submitted himself to execution comprising mortgage or claim, to satisfy mortgage creditor, if the amount of sum is defined in act directly or by valorization clause, and when the act describes conditions empowering creditor to initiate execution proceedings concerning whole or part of the claim, as well as term defining when creditor is able to establish enforcement clause in this act.

Supervision over judicial officer's act

The President of the District Court and District Court itself exercises administrative supervision over a judicial officer. He controls:
1) judicial officer's efficiency and conscientiousness by the means of checking if there is no unjustified delay in execution proceedings (this control must not interfere in the sphere of judicial supervision);
2) conformity of judicial officer work and accountancy with proper regulations (this control must not interfere in management of finances needed to maintain his office and cover the costs of his executive proceedings);
3) culture at work, including observance of time limits of his proceedings and receiving clients as well as maintenance of the office on the level adequate to his dignity and possibilities.

The President's of the District Court control is obliged to perform an inspection of judicial officer's office at least once in a year (in person or by a designated judge with the help of an accountant) and consideration of clients' complaints.

Article 3 limits the President's of the District Court control to administrative supervision. As it is not a substantive supervision of judicial officer's proceedings, the President of the Court must not control if his acts are taken in conformity with the law but he can only evaluate their effectiveness. The judicial supervisor of these proceedings is exercised by the court.

The President's of the Court supervision must not interfere in the management of finances needed to maintain judicial officer's office and to cover the costs of his executive proceedings.

Supervision of the highest authority over judicial officers and their corporation is exercised by the Minister of Justice through the President of the Court of Appeal and judicial inspectors.

The Minister of Justice or the President of the Court of Appeal on his authority can order a judicial inspector to inspect a particular office of the judicial officer. Apart from the control of the Minister of Justice and Presidents of the Court, supervision over judicial officer is exercised by the National Council of the Judicial Officers.

Article 3 of the law states that the judicial officer within his acts is subjected to laws and court decisions as well as President of

Only courts are entitled to consider complaints over judicial officer's proceedings (Article 767 of the Polish Code of Civil Procedure).

Article 759 of the Polish Code of Civil Procedure provides the District Court with the power of giving orders to judicial officers ex officio to warrant the proper course of their proceedings and eliminate noticed errors.

Judicial officer's office

A judicial officer is appointed by the Minister of Justice. The appointment takes effect only if the judicial officer opens an office and notifies the Ministry of Justice about the fact within the period of a month following his nomination.

A judicial officer runs an office. Every judicial officer must run an office. A judicial officer's seat is usually placed in the seat of the District Court and only in exceptional cases in a different town.

Judicial officers` districts

The judicial officers` districts are established and abolished by the President of the Court of Appeal on application of the proper President of the Regional Court with the opinion of the Council of the Chamber of Judicial Officers'. The Minister of Justice registers judicial officers' districts and seats and every year announces the current list in the official gazette called "The Polish Monitor". In Poland (38.500.000) there are about 600 judicial officers and districts.

Creditor's right to choose a judicial officer

According to Article 8, a creditor has the right to choose a judicial officer from the whole State (apart from execution against immovable and alike). Judicial officer, chosen by the creditor, is obliged to deny initiating proceedings if his office has arrears for more than 6 months.

Challenge of a judicial officer

The appropriate regulations of the Polish Code of Civil Procedure concerning the exemption of a judge should be applied to the challenge of a judicial officer.

Nomination and dismissal of a judicial officer

According to Article 10, a candidate for a judicial officer should:
1) have Polish nationality and enjoy all civil rights;
2) have full legal capacity;
3) be of unblemished character;
4) cannot be convicted for revenue offence;
5) cannot be a suspect in case of indictable offence or revenue offence;
4) have an university degree in law;
5) is able to perform judicial officer's duties considering condition of health;
5) have passed two years' period of post-graduate professional training;
6) have passed a final professional exam of the judicial officers;
7) have passed two years period of judicial officer's assistant;
7) be at least 26 years of age.

The last conditions do not apply to a candidate who has completed a different legal training or has a doctor's degree in law.

A judicial officer is appointed by the Minister of Justice on his/her own application with the opinion of the Presidents of Court of Appeal and of the Council of the Chamber of the Judicial Officers.

Minister of Justice turns to proper Police department to gain information about Judicial Officers data, with reference to his unblemished character.

The appointment takes effect only if the person appointed for the seat of a judicial officer opens an office and notifies the Ministry of Justice about the fact within the period of a month following his nomination.

The Minister of Justice has the power to dismiss a judicial officer only in the following cases:
1) if he/her has resigned;
2) if a medical board passing decisions concerning disability and employment has stated that he/she is no longer capable of performing his/her duties or he/she has refused to submit himself/herself to medical examination ignoring junctions of the local chamber without a justified reason;
3) if he/she has become 65 years of age;
4) has been sentenced for premeditated offence or premeditated revenue offence;
5) if he/she has been deprived of public rights or the right to perform his/her profession;
6) if he/she has committed a gross offence against the law which has been stated in judicial decisions passed as a result of a remedy at law, a complaint or other legal measures- on application of the proper President of the Court of Appeal;
7) he did not exercised his obligations considering judicial officers supervision performed by President of the District Court;
6) if he/she has been dismissed from his/her office by a disciplinary judgment;
7) if he/she has not signed a contract concerning his/her civil liability insurance or has lost this insurance through his/her fault.

Minister of Justice may dismiss Judicial Officer if he committed unpremeditated offence or unpremeditated revenue offence.

Judicial officer's liability for damage and an obligatory insurance

Article 23 states that a judicial officer is liable for causing damage at the time of his/her proceedings with violation of the law. The State is liable for the damage caused by judicial officers based on the principle of solidarity.

Article 24 of the statute imposes upon a judicial officer an obligation to sign a contract on civil liability insurance for damage.

Trainees and judicial officer assistants

The access to the judicial officers' profession is similar to the access to other legal professions. The law introduces the institutions of a trainee and a judicial officer assistant.

A trainee should have Polish nationality and enjoy all civil rights, be of unblemished character, have an university degree in law or administration.

A judicial officer is obliged to employ at least one trainee every three years.

The post graduate legal training lasts for two years and ends with an exam organized by the Ministry of Justice and National Council of Judicial Officers.

After a year of training a trainee may perform some of the executive acts on the judicial officers' authority.

A judicial officer assistant must fulfill the same requirements as a judicial officer.

According to Article 2, a judicial officer performs all his acts in person except for the cases listed in Article 33. A judicial officer can authorize a judicial officer assistant to enforce judgments concerning cash performances up to 100 average earnings with the exception of the execution against property.

Financing of execution

The law defines rules of financing execution.

The costs of executive activity of the judicial officers comprise:
1) capital and personal costs of opening and maintaining an office, in particular related to employment, rents, acquisition of necessary equipment;
2) costs needed to secure the seized property and related to the insurance of judicial officers office and his civil liability;
3) fares, costs of correspondence, transactions in cash, transport of small movables;
4) obligatory fees collected by the corporation (self-government);
5) other necessary costs of executive proceedings.

The judicial officer collects fees for executive proceedings and other acts. This is the only source of financing the whole state execution system. The State budget pays nothing for execution. From the 10th of March 2003, all the creditors are free of obligation to pay an execution fee while introducing execution's proceedings. (sentence of the Constitutional Court from the 23rd of February 2003, K 28/02) .

According to Article 39 of the law, the judicial officer should receive reimbursement only of the costs expressly specified in the law.

The costs comprise:
1) experts remuneration;
2) costs of announcements in the press;
3) costs of specialist transport, fees, costs of maintenance and insurance of the properties;
4) fees of persons summoned to take part in the proceedings;
5) costs of judicial officer's proceedings beyond his district (according to creditor's right of choice judicial officers from another district);
6) costs of delivery of financial sums by post or bank;
7) costs of acquiring necessary information in order to perform execution proceedings or securing claims;
8) cost of service of writs and other correspondence apart from costs of delivery document initiating execution or securing claims.

A judicial officer is entitled to ask creditor for an advance to cover the costs listed in Article 39 in all cases, with an exception of those commenced by the State Treasury, and by order of the court or public prosecutor. The District Court is obliged to transfer sums needed to cover expenses in cases exempted from court costs by the court or ex lege.

Executive fees

For executive proceedings and other acts listed in the law, a judicial officer charges constant or proportional fees.

In execution of non-cash performances and other cases determined by the law the fee is constant.

From the 10th of March 2001 (sentence of the Constitutional Court, K 28/02), the creditor is free of the proportional fees while introducing execution proceedings in pecuniary cases.

The whole proportional fee of effective execution is equal to 15 percent of the value of the sum gained and it cannot be lower than 1/10 part and higher than thirty predicted average monthly earnings.

In effective execution all fees and costs are covered by debtor.

A judicial officer's earning

From the 1st of January 2002, a judicial officer does not get any salary from the State. After each month of activity a judicial officer calculates his/her earning. The earning consists of execution fees charged and executed in the period of a month diminished in value by the costs of his executive activity.

Judicial officers` disciplinary responsibility

A judicial officer bears disciplinary responsibility for:
1) an offence against the seriousness and dignity of his/her office;
2) a severe infringement of the law;
3) negligence of the inspectors' injunctions;
4) spending financial resources on activities in flagrant unconformity with their assignment;
5) initiating proceedings with no justified delay;
8) violation of the jurisdiction art. 8.

The statute introduces the following disciplinary punishments:
1) admonition;
2) reprimand;
3) pecuniary penalty amounting to the predicted average earning;
4) dismissal from the service.

The disciplinary proceedings may be initiated by the Minister of Justice, the Presidents of the courts, judicial inspectors, authorities of the self-government of the judicial officers and judicial officer inspectors.

Disciplinary cases are heard by a disciplinary commission consisting of three members appointed by the National Council of the Judicial Officers.

An appeal from this decision may be rendered to the Court which considers the case on the grounds of appropriate provisions of the Polish Code of Civil Procedure.

From this decision there is no cassation.

Judicial officers` self government

The law of 1997 gives birth to the self-government of judicial officers consisting of:
1) the National Congress of Judicial Officers;
2) the National Council of Judicial Officers;
3) the General Assembly of Representatives of Chambers of Judicial Officers;
4) the Chambers of Judicial Officers;
5) the Council of the Chamber of the Judicial Officers.

The highest authority is the National Congress of Judicial Officers which appoints the President of the National Council of Judicial Officers, The National Audit Board and designates the seats of the authorities.

The President of the National Council of Judicial Officers is elected by the National Congress of Judicial Officers. General Assembly of each Chamber of Judicial Officers elects two members of the National Council of Judicial Officers.

The National Congress of Judicial Officers is held every four years. The National Council of Judicial Officers represents the interests of all judicial officers.

The statute defines the prerogatives of each body in a detailed way.

Judicial officers running offices in the circuit of the Court of Appeal (11) form ex lege the Chamber of the Judicial Officers.

The membership in the chamber begins ex lege in the day of opening an office and ends with dismissal of a judicial officer.

The authorities of the Chamber (there are 11 chamber in Poland in each circuit of Court of Appeal) are:
1) the General Assembly of the Chambers;
2) The Council of the Chamber;
3) The Audit Board.

The Council of the Chamber consists of:
1) 7 members- in chambers numbering no more then 100 judicial officers;
2) 9 members- in chambers numbering more than 100 judicial officers.

The installation of the professional self-government is a manifestation of the will of the State to support and spread spheres of self-government and autonomy.

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