PPE 8/2022
Dopuszczalność i charakter prawny zażalenia w postępowaniu klauzulowym
Anna Jaroniewska
prawnik w kancelarii adwokackiej; ORCID: 0000-0002-4135-269X
Dowiedz się więcej
ABSTRACT
Admissibility and Legal Nature of a Complaint in Clause Proceedings
In this article, one of the remedies, i.e. the complaint in clause proceedings, is subjected to consideration. The first part of the study focuses on the conditions of admissibility of this legal remedy, paying particular attention to the relatively broad subject matter and the time limit for filing a complaint. Subsequently, the issues related to the legal nature of the institution in question, its essence and features were raised. This required reference to the constitutional principle of two-instance proceedings. This article considers the small but significant changes introduced by the July 4, 2019 amendment to the Code of Civil Procedure regarding enforcement proceedings, the initial stage of which is clause proceedings.
The key objective of the article is to analyse the conditions of admissibility and legal character of the complaint in the clause proceedings. The author of the study, on the basis of the case law, will examine whether, after the amendment of the Code of Civil Procedure on July 4, 2019, this complaint belongs to the so-called horizontal complaints, i.e. those that are examined by the same court that issued the appealed decision, albeit in a different composition, or whether it constitutes a complaint in its classic form, resolved by a higher court.
Complaints in clause proceedings should be classified as horizontal complaints, lacking the feature of devolution. They do not result in transfer of the case to a higher court. However, this does not violate the principle of two-instance proceedings guaranteed by Article 176 of the Polish Constitution.
Keywords: appeal, enforcement proceedings sensu largo, devolutive effect, enforcement clause, enforcement title