PPE 2/2022
Dopuszczalność wydawania przez komornika sądowego częściowych postanowień w przedmiocie ustalenia kosztów postępowania egzekucyjnego oraz charakter tych postanowień
Joanna Szachta
doktorantka w Instytucie Nauk Prawnych Polskiej Akademii Nauk w Warszawie, ORCID: 0000-0002-8042-8212; prawnik w kancelarii komorniczej
ABSTRACT
Admissibility of Issuing Partial Decisions by a Bailiff on Determining Costs of Enforcement Proceedings and the Nature of Such Decisions
It may become necessary in the course of enforcement proceedings to issue a decision before the end of the proceedings. In practice, such situations usually concern instances where a creditor has filed an application for discontinuing enforcement proceedings within the enforcement of a specific amount or if it is necessary to grant remuneration to a court expert for a prepared opinion and performed work. The problem concerns also instances set forth in art. 21(1), third sentence of the Act on bailiff costs, i.e. the duty of a bailiff to determine collected and due fees at least every year.
There are several problems with regard to the above-mentioned situation, namely: if another decision is issued under art. 21(1), third sentence of the Act on bailiff costs, does a bailiff determine a fee from the beginning of enforcement proceedings or only fees collected in the period from the issue of a previous decision until the issue of a subsequent decision? Is it admissible to determine costs of enforcement proceedings, i.e. not only a collected fee mentioned in art. 21(1), third sentence of the Act on bailiff costs, before closing the enforcement proceedings (understood as closing as a result of payment or discontinuation for reasons provided for in law)? Is it admissible to issue a partial decision on enforcement costs, for example to determine a fee under art. 29(1) of the Act on bailiff costs? What is the nature of such a decision? This implies another question: should all costs be determined in a final decision issued as a result of closing enforcement proceedings, or should costs determined in interim decisions be omitted?
Considerations that concern the determination of enforcement proceedings costs and the determination of fees collected under art. 21(1), third sentence of the Act on bailiff costs lead to the analysis of the most important issue, namely if art. 317 of the Code of Civil Proceedings applies in enforcement proceedings? Can a bailiff issue fragmentary decisions, like a court issuing partial judgements, and do they take an advantage of the authority of res iudicata?
Keywords: partial decisions, costs of enforcement proceedings, res iudicata, enforcement proceedings, bailiff’s costs