PPE 2/2025
Sytuacja prawna dłużnika w sądowym postępowaniu egzekucyjnym: równouprawnienie, uprzywilejowanie czy potrzeba ochrony
dr hab. Andrzej Jarocha, prof. UAM
Zakład Postępowania Cywilnego, Wydział Prawa i Administracji, Uniwersytet im. Adama Mickiewicza w Poznaniu; ORCID: 0000-0002-8053-8892
ABSTRACT
Legal Position of the Debtor in Judicial Enforcement Proceedings: Equality, Preference or Need for Protection
dr hab. Andrzej Jarocha, professor at the Adam Mickiewicz University in Poznań, Department of Civil Procedure, Faculty of Law and Administration, Adam Mickiewicz University in Poznań; ORCID: 0000-0002-8053-8892
The fairness of created law, treated as a criterion for assessing the existence of grounds for its validity or as an interpretative guideline, may be used especially in situations where the legal system raises doubts as to its compliance with the principles of a democratic state of law, or is disorderly and inconsistent to such an extent that it poses a risk of violating the legitimate rights of citizens.
In this context, it is important to note that the Civil Procedure Code has already been amended several hundred times since its inception and today constitutes a set of provisions and the legal institutions created by them, which often lack a precise structural definition, internal consistency and the possibility to harmonise seamlessly with other institutions and provisions that together form the legal system. The provisions on judicial enforcement proceedings suffer from the taint of legislative incoherence and inconsistency to the same extent as those concerning other types of civil proceedings. One of the most frequent objections formulated in the literature with regard to the Civil Procedure Code regulations concerning civil court proceedings is that the currently binding provisions have distorted the distinction between the different purposes of preliminary and enforcement proceedings, have destroyed the proper relationship between the creditor and the debtor, favouring the latter and making it more difficult to enforce claims ascertained by enforcement titles.
Essentially, the discussion in this respect centres around the question of whether, and if so to what extent, the principle of equality of parties to proceedings operates in enforcement proceedings and what its content is in such a case. However, it is worthwhile to analyse the possibility of a different approach to the issue in question and to verify to what extent the fairness of the solutions adopted is a useful criterion in assessing the implementation of the principle of equality in enforcement proceedings. The aim of such an analysis is to try to formulate new arguments in the discussion about whether the debtor in judicial enforcement is on an equal or privileged footing vis-à-vis the creditor and, if so, whether this is within the bounds of fair and legitimate protection of his rights.
In order to achieve the goal of enforcement proceedings, it is not so much the equality of the participants in the proceedings that is needed, but the fair treatment of the parties to the proceedings, and the key to the simultaneous protection of the debtor’s rights and promotion of the creditor’s legitimate interests, i.e. an efficient and fair enforcement in general, is due process and properly functioning enforcement authorities.
We may therefore assume that the currently applicable provisions of the Code of Civil Procedure provide a basis for the theoretical formulation of the principle of debtor protection in enforcement proceedings, while its actual functioning in practice depends on the degree to which the principle of a fair (just) trial is implemented in these proceedings.
Keywords: enforcement, principle of equality, debtor protection, creditor’s rights, fair civil proceedings