PPE 4/2025
Charakter prawny dozoru nad ruchomościami
Krzysztof Góra
doktorant w Szkole Doktorskiej Nauk Społecznych Uniwersytetu im. Adama Mickiewicza w Poznaniu; ORCID: 0009-0000-2236-9229
ABSTRACT
The Legal Nature of Custody over Movable Property
Krzysztof Góra, PhD student at the Doctoral School of Social Sciences, Adam Mickiewicz University in Poznań; ORCID: 0009-0000-2236-9229
The paper presents an analysis of the legal nature of the act of appointing a custodian and of the institution of custody over seized movable property within judicial enforcement proceedings. It offers a critical examination of the positions found in legal doctrine and case law which classify the act of establishing custody as a quasi-contract or as an act of authority performed by the court enforcement officer (bailiff).Attention is drawn to the internal inconsistencies of these concepts, which result from the simultaneous reference to both consensual elements (the requirement of the custodian’s consent) and imperative elements (the unilateral nature of the bailiff’s act). The paper also attempts to define the legal nature of custody, proposing its recognition as a specific procedural relationship under civil procedure law, arising from a procedural act of the bailiff, which requires the custodian’s prior consent and the actual transfer of the seized movable property to them. The paper further discusses the significant legal consequences of adopting such a classification – particularly the exclusion of the possibility of applying, either directly or by analogy, the provisions of the Civil Code concerning contracts of mandate or deposit. (Articles 835 et seq. of the Civil Code). It is also argued that the custodian’s liability for improper performance of duties should be regarded as tortious rather than contractual. The author formulates several de lege ferenda postulates, emphasizing the need for a clear statutory regulation of the form in which custody is established and the requirement of obtaining the custodian’s consent. Such clarification would contribute to greater transparency and coherence of the statutory framework governing judicial enforcement proceedings.
Keywords: custody, legal nature, contract, act of authority, civil-procedural relationship, contract of deposit