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Elementy prywatne i publiczne w procesie cywilnym w świetle prac kodyfikacyjnych w Polsce (1918-1964) : studium historycznoprawne
Full text linkThe past century in Poland had witnessed significant regime changes which resulted
in the subsequent codification, decodification and recodification of the law, which, as
far as the civil procedure is concerned – following substantial changes resulting from
the third political transformation in the 20th century – has remained in effect until the
present day. The following monograph is devoted to the history of codification of the
Polish civil procedure, mapped against the backdrop of the evolution of this particular
branch of law in Europe and the subsequent “revolution” in Poland, following the Second
World War, taking into account its patterns as well as its reach in the remaining
countries governed by people’s democracy. The author considers the topic from the
perspective of the private and public aspects of the civil procedure, which have a profound
impact on the shape and content of the Code of Civil Procedure. The monograph
touches upon the works on the codification that were attempted twice in the history of
the Polish civil procedure and discusses the model of civil litigation with the focus on
the aspect of delineating the relationship between the individual and the state.
The two main chapters of the monograph have been preceded by comprehensive
introductions, which provide the legal-historical, comparative, and theoretical background
for the primary argument. In those parts of the monograph, the author discusses
the evolution of the civil procedure in Western Europe in the 19th and 20th century,
the specifics of the peculiar socialist civil procedure, as well as the means of recourse
against judgments in the civil proceedings in the context of the interests of both the
state and the individual.
In the discussion concerning the processes undertaken even before the creation of
the Codification Committee in 1919, the author conducts a comparative legal analysis of
the problem of the principal rules of the civil procedure as well as minute details which
have fundamental bearing on the model of the Code of Civil Procedure. The following
argument focuses on the efforts of the Codification Committee, unprecedented both
in Europe and the entire world. At that time, the primary goal of the government was
integration of the Polish lands, divided by partitions and restoration of the Polish sovereignty.
As a result of the efforts of the Codification Committee of the Second Polish
Republic, the first Polish Code of Civil Procedure was created (1930); this original
work, the fruit of long-term efforts of the most distinguished Polish legal experts, was, in fact, an in-depth comparative study. The interwar codifiers analysed not only the
civil procedures in force in Poland: Russian (1864), German (1877), Austrian (1895) and
Hungarian (1911), but also the most significant civil procedures in Europe, including the
civil procedure of the Swiss cantons of Zurich (1913) and Bern (1918), as well as the
civil procedure of Italy (1865), Greece (1834) and, in part, England (1873–1873), despite
its relative lack of significance due to the fundamental differences between the common
law and the continental law. The first drafts of Code of the Civil Procedure were
distinctive due to their attempts to include a fair number of the public aspects in the
civil proceedings, which was also characteristic of the evolution of the civil procedure
in Europe at that time and was intended as a remedy for the shortcomings of the civil
jurisdiction. However, the final draft of the Code did not include several pioneering,
innovative concepts which concerned preparatory proceedings, abuse of rules of procedure
clause, obligation of truthfulness, the discretional power of the judge, evidence
proceedings, as well as the construction of an obligatory replay to the statement of
claim and default judgment. Several other significant changes, which severely misrepresented
the initial intentions of the codifiers, were implemented at the governmental
stage of development. The omission of the proposed institutions was caused by the
desire to preserve the golden mean, which was modelled after the Austrian civil procedure
to an extent. On the other hand, the governmental changes were characterised by
the urge to make the first Polish Code of Civil Procedure more similar to the Russian
legislation, which resulted from the pressure and protests of the lawyers coming from
the former Congress Poland. The necessity of making the civil procedure more flexible as well as making their
forms more simple and the amount of regulation more reasonable, along with various
other problems discussed within the framework of the civil procedural law by the Codification
Committee of the Second Polish Republic, is discussed until this day, in the
context of numerous changes following the political transformation and the necessity
of drafting a new – third – Code of Civil Procedure. The preservation of formal but at the same time critical and selective legal continuity in the first years of the Polish People’s Republic resulted in the necessity of revision
of the inherited law and restructuring of its tenets to reflect the socialist agenda.
Implementation of the Soviet ideas of difference and protection of property as well as
planned economy resulted in weakening of the civil procedural law and the increased
importance of the administrative law. In this context, the monograph touches upon
the problems of that time, concerning restrictions on the civil procedure (non-litigious
proceedings, state arbitration). The transformation of the political and legal system in
countries governed by people’s democracy resulted in significant and forced unification
of adjective law. This involuntary unification was conducted in a very short time. The
situation was similar in the USSR, where, on the basis of the authority of the Soviet
Union with regard to establishing the foundations of the judicial system and legal proceedings,
as well as the civil and penal law–introduced by the resolution of the Supreme
Soviet of the Soviet Union of February 11th, 1957–the law was unified in all the federal
republics, according to the USSR legislation. The circumstances surrounding the drafting of the Polish Act of July 20th, 1950 and its content, which constituted, in fact, decodification of the civil procedure, have been discussed in comparison with the changes taking place in the civil procedure in
Czechoslovakia, Bulgaria and Hungary at that time. The draft of the new code proposed
by the Department of Justice (1955) further eroded the first Polish Code of Civil Procedure;
however, ultimately, the project was not implemented. Following the establishment of the Codification Committee in 1956, the codification efforts were characterised by relative leniency caused by comparative liberalisation
connected with the change in the political climate (1956), and strictly substantial discussion
based on comparative analysis that transcended the boundaries of the socialist law
and thoroughly discussed the essence of the civil procedure in the light of its development.
The effect of those proceedings was a satisfactory first draft of the new code
(1960), which had hallmarks of evolution. This draft was later subject to changes in the
second draft and later in the governmental and parliamentary stages of the codification
work, until finally the second Polish Code of Civil Procedure (1964) was passed, in
accordance with the political principles of the time. The chapter devoted to the private and public aspects in the system of recourse against judgments, the author discusses the problem of the character of the appeal and
the character of the third instance made by the Codification Committee of the Second
Polish Republic. Next, in the context of the Soviet model and the new legal regulations
in Czechoslovakia, Hungary, Bulgaria and East Germany, the author discusses
the issues of the appeal and the extraordinary appeal against a final judgment as well
as the possibility of challenging judgments in force by the state authority in the Polish
People’s Republic starting with the amendment of July 20th, 1950, through the drafts
of the Code of Civil Procedure, their critique and implemented changes, to the passing
of the Code (1964). The history of codification of the civil procedure in the Second Polish Republic
and Polish People’s Republic, regardless of the motivation, illustrates the phenomenon
in which the final draft of the act differs significantly–usually for the worse–from the
initial premises and conceptions established by the experts who worked on the first
draft for a prolonged period of time
Radziecka procedura cywilna: totalitarna czy nowoczesna?
No full textSOVIET CIVIL PROCEDURE: TOTALITARIAN OR MODERN?Soviet civil procedure was codified twice, in 1923 and 1964. In both cases, the codification of Soviet civil proceedings was caused by the political liberalization occurring during relevant periods. It was therefore a good time for the codification work to adapt, at least to some extent, traditional solutions; simultaneously the desire to politicize the civil procedure resulted in the emergence of new legal institutions. The imposition of far-reaching restrictions on the principle of a free exercise by the parties of their rights was the characteristic and specific element of totalitarian regimes. It is an altogether too common misconception to perceive the confinement of the adversarial principle asan extraordinary and defining component of the Socialist civil procedure because the pursuit of truth in a material sense and the introduction of inquisitorial elements in civil proceedings had already been known in European legal systems. The phenomenon of the socialization of law had changed the perspective concerning the goals of modern civil trial in Europe. In particular, the codes of the Swiss cantons of Bern and Zurich, as well as the Hungarian civil procedure, had significantly widened the scope of the inquisitorial elements in civil proceedings. A novelty of Soviet civil procedure as compared with the then European systems was the emergence of the constructive use of the institution of “abuse of rights” which determines the efficiency of civil proceedings. As a result, the Soviet civil procedure was a particular combination of the socialist rule of law and elements of classic European tradition, with a touch of the old pre-revolutionary Russian legal heritage and a small measure of new solutions compatible with the general direction of the development of the civil procedural law.SOVIET CIVIL PROCEDURE: TOTALITARIAN OR MODERN?Soviet civil procedure was codified twice, in 1923 and 1964. In both cases, the codification of Soviet civil proceedings was caused by the political liberalization occurring during relevant periods. It was therefore a good time for the codification work to adapt, at least to some extent, traditional solutions; simultaneously the desire to politicize the civil procedure resulted in the emergence of new legal institutions. The imposition of far-reaching restrictions on the principle of a free exercise by the parties of their rights was the characteristic and specific element of totalitarian regimes. It is an altogether too common misconception to perceive the confinement of the adversarial principle asan extraordinary and defining component of the Socialist civil procedure because the pursuit of truth in a material sense and the introduction of inquisitorial elements in civil proceedings had already been known in European legal systems. The phenomenon of the socialization of law had changed the perspective concerning the goals of modern civil trial in Europe. In particular, the codes of the Swiss cantons of Bern and Zurich, as well as the Hungarian civil procedure, had significantly widened the scope of the inquisitorial elements in civil proceedings. A novelty of Soviet civil procedure as compared with the then European systems was the emergence of the constructive use of the institution of “abuse of rights” which determines the efficiency of civil proceedings. As a result, the Soviet civil procedure was a particular combination of the socialist rule of law and elements of classic European tradition, with a touch of the old pre-revolutionary Russian legal heritage and a small measure of new solutions compatible with the general direction of the development of the civil procedural law
O „ludowym” prawie karnym w kontekście przeprowadzenia i zabezpieczenia skutków tak zwanej reformy rolnej z pierwszych lat Polski Ludowej
Full text linkDer bisherige Forschungsstand im Bereich des Strafrechts in der ersten Dekade Volkspolens zeugt unumstritten vom schockierenden Ausmaß der Punitivität des Straf- rechts in den Jahren 1944—1955. In Erwartung eines großen sozialen Widerstands während der so genannten Agrarreform, die als das erste und wesentliche Element der Enteignungsaktion aus den ersten Jahren Volkspolens gilt, führten die Volksbehörden die Penalisierung der gegen diese Reform gerichteten Handlungen durch, indem sie sie zu den Verbrechen gegen den Staat, also zu „konterrevolutionären Verbrechen“ zählten. Die merkwürdigste Bestimmung war we-gen des Missverhältnisses zwischen dem Schutzgut und der Strafe Artikel 7 des Dekretes vom 12. Dezember 1944 über die Übernahme von manchen Wäldern als Eigentum der Staatskasse, der die Todesstrafe vorsah, wenn man versuchte, den Übergang von Wäldern und Waldflächen ins staatliche Eigentum zu vereiteln oder zu behindern, oder zu solchen Handlungen anzuregen, die gegen diesen Übergang gerichtet waren, oder zu denjenigen, die darin bestanden, diesen Prozess öffentlich zu loben. Heutzutage besteht kein Zweifel daran, dass ein charakteristischer Bestandteil der Eigentumsumwandlungen, die im Zusammenhang mit der so genannten Agrarre- form standen, die instrumentelle Ausnutzung des Rechts und die Verletzung des (auch des neuen) Rechts waren. Außer Zweifel steht ebenfalls die Tatsache, dass das Dekret über die Durchfüh- rung der Agrarreform gegen die im europäischen Kreis der Rechtskultur festgelegten elementa- ren Prinzipien des Rechts und der Gerechtigkeit verstieß.The state of current research in the field of criminal law in the first decade of the Polish People’s Republic undoubtedly testifies to the striking scale of punitiveness of the criminal law in the years 1944—1955. Expecting great social resistance during the implementation of the so-called agricultural reform, the first and fundamental element of the expropriatory action in the first years of the Polish People’s Republic, the People’s Government penalised the acts directed against this reform, placing them among crimes against the state, i.e. “counter-revolutionary crimes.” The most bizarre provision due to the disproportionality of the protected interest to the penalty was Article 7 of the Decree of 12 December 1944 on the taking over of certain forests by the State Treasury, which provided for the death penalty for thwarting or hindering the im- plementation of the transition of forests and forest lands to State ownership, or for incitement to acts directed against this transition or acts consisting in public praise for them. Nowadays, there is no doubt that a characteristic element of ownership transformations related to the so-called agricultural reform was the instrumental use of the law, including breaking the law (also the new one). There is also no doubt that the decree on implementing the agricultural reform violated elementary legal and justice principles adopted in the European legal culture.Stan dotychczasowych badań w zakresie prawa karnego pierwszej dekady Polski Ludowej bezspornie świadczy o porażającej skali punitywności prawa karnego w latach 1944-1955. Spodziewając się dużego oporu społecznego w trakcie przeprowadzania tak zwanej reformy rolnej, pierwszego i zasadniczego elementu akcji ekspropriacyjnej z pierwszych lat Polski Ludowej, władza ludowa dokonała penalizacji czynów skierowanych przeciwko tej reformie umieszczając je wśród przestępstw przeciwko państwu, czyli „przestępstw kontrrewolucyjnych”. Najbardziej kuriozalnym przepisem ze względu na nieproporcjonalność dobra chronionego do kary był artykuł 7 dekretu z 12 grudnia 1944 r. o przejęciu niektórych lasów na własność Skarbu Państwa, który przewidywał karę śmierci za udaremnianie lub utrudnianie wprowadzenie w życie przejścia lasów i gruntów leśnych na własność państwa, albo za nawoływanie do czynów skierowanych przeciw temu przejściu lub czynów polegających na publicznym ich pochwalaniu. Współcześnie nie ma już wątpliwości, że charakterystycznym elementem przekształceń własnościowych związanych z tak zwaną reformą rolną było instrumentalne wykorzystywanie prawa włącznie z łamaniem prawa (w tym nowego). Nie ma też wątpliwości, że dekret o przeprowadzeniu reformy rolnej łamał elementarne zasady prawne i sprawiedliwości przyjęte w europejskim kręgu kultury prawne
O rekodyfikacji radzieckiego postępowania cywilnego
Full text linkThe Soviet civil procedure was codified two times. In both cases the codification of the
Soviet civil procedure fell on the times of a political liberalization. In spite of criticism directed
at law deriving from the period of the New Economic Policy, works on a new Soviet civil procedure
began after Stalin’s death. The legislation of a new second Russian Federal Socialistic
Soviet Republic code of civil procedure took place within the scope of a general recodification
of the Soviet law between 1954 and 1964. It was the period characterized by a tendency to
systematize the legal material, as well as liberalization in the field of material law and court
procedures.
All republics legislated new codes of the civil procedure basing on the principles of the civil
procedures of the Soviet Union and union republics between 1964 and 1965. The new Russian
Federal Socialistic Soviet Republic code of the civil procedure was legislated on 11 June 1964. It was in force on 1 October 1964 and lost its power on 1 February 2003. It was being changed
16 times till the end of the system. The very code was a specific combination of some elements
of the European tradition of the civilest and socialist law and order with a bit of the former and
pre-revolutionary Russian tradition. The use of code regulations of the civil procedure in the
Soviet Union in the Soviet legal reality marginalizing a private law in favour of an economic
one was restricted. A state economic arbitration integrally combined with administration played
a key role in the nationalized economy and its judges did not possess an attribute of independence.
Only the cases within the family law, labour law and other of a little economic value were
adjudicated during a civil procedure regulated in the Soviet civil law code
The State’s Economic Arbitration in the USSR
No full textThe introduction of planned economy in Russia after the 1917 October Revolution
had a result that the whole economy was treated as one state owned organization. From
1922 the courts’ jurisdiction in cases between state owned enterprises was abolished
and these cases were transferred to arbitration committees. On May 3, 1931 the state’s
economic arbitration was established. It was separated completely from the courts’ system
and was included into administration structures. It had nothing in common with the private
arbitration and with the conciliatory proceedings. The state’s arbitration was an instrument
of central planning and its activity were to strengthen the realization of economic plans. By
doing it, the state’s arbitration performed two functions in the management of economy.
It could pass legal acts on one side and on the other it considered the economic disputes
between state institutions. From 1931 to October 1, 1991 (when arbitration was abolished)
its functions have not been changed. The analysis of legal character of this institution
causes problems and controversies among lawyers. The state’s arbitration was a hybrid.
It was bounded with the administration and the arbitrators, very often not being lawyers,
were not independent. From the other hand, the arbitration proceedings was somehow
connected with the proceedings applied in the courts. Despite that, it should be treated as
a separated proceedings. The state’s arbitration was an administrative, not judicial body.814315
Zakres zasady kontradyktoryjności a znaczenie "onus probandi" w procesie cywilnym : rozważania na tle poglądów doktryny po zmianach w polskiej procedurze cywilnej z 20 lipca 1950 roku
Full text linkThe problem of the proof weight is one of the most intricate and disagreeable issues, because
of the dissonance of opinions as to its nature and non-linearity in the scope of terminology.
Starting from the 1950s, namely from the changes introduced to the Committee of the civil procedure
code from 1930 by means of the legislation from 20 July 1950, there was a claim in the Polish
science built on an ideological ground, negating the value of onus probandi in the civil matters. After
the reform from 20 July 1950, the Polish court law was the law of a specialist type, based on different
ideological assumptions and against the so far existing bourgeoisie law. Following the Russian
doctrine, the legitimacy of differentiating the private from the public law was negated. And,
consequently, different ways of shaping the civil and criminal process. In so doing, the legacy of
the former civilization was put away. At the same time, the importance of the objective truth in
the civil trial as its fundamental rule was emphasized, and the action of the court ex officio was
exposed.
When the influence of ideology on the court law weakened in the 1960s and 1970s, the usefulness
of onus propandi in the civil proceeding was no longer questioned
Rosyjska procedura cywilna w pracach sekcji postępowania cywilnego Komisji Kodyfikacyjnej II RP na przykładzie projektu "Tytułu o dowodach" J. J. Litauera
Full text linkThe Russian legislation on civil proceedings, introduced as a result of jurisdiction reform in
Kingdom of Poland reconstructed by the Congress in Vienna in 1815 realized in the half of 1867,
aimed at Russificating people. It rejected the majority of principles on the evidence included in
French regulations in Napoleon Code and French civil proceeding perceived as their own law.
The French law played an important role in retaining the separateness of Poland with reference
to Russian and, at the same time, with the western legal culture.
Despite this, the regulations of the Russian civil proceeding were analysed purely legally
after Poland regained independence in 1918 in codification works in the Second Republic of Poland
on the Polish code of civil proceedings. The fact that the solutions of the Russian procedure in the draft on evidences prepared by J.J. Litauer were slightly taken into account was due to the
theoretical merits because of the lack of progressive solutions of the Russian civil procedure with
regard to Western-European codes, not the political merits.
It is confirmed by professionalism of the works of the members of the Codification Committee
of the Second Republic of Poland widely underlined in the literature. They used in their
codification works the comparative method, which, on the one hand, was an objective necessity,
resulting from the fact that different legal systems were in force in the territory of the Second
Republic of Poland, and, on the other hand, allowed for drawing on the examples of modern legal
solutions of European codes. The attention was paid to the practice of the jurisdiction system in
civil cases in particular districts, aiming at choosing the most common regulations in Poland,
and, at the same time, the most justified in a practical way
Public elements in the civil procedural law. Evolution and revolution
No full textThe demands to simplify formalities and prevent the delay of procedure and reduce litigation costs accompany all reformist ideas about civil procedure, from the Napoleonic Code to the present.The movement of socialization of the private law, mitigating the conflict between capital and labor resulted in the recognition that civil litigation should not be treated merely as a means of resolvingprivate disputes between the parties but as a phenomenon that affects society as a whole. As a result, it was concluded that public interest in civil proceedings is also important. Starting from Austria,where the ideas of Franz Klein started a new stage in the evolution of civil procedure, and then in Germany, Hungary, Poland, the Netherlands, and the Scandinavian countries, Liechtenstein, Switzerland and Italy, began to leave the so-called formal truth in civil proceedings. A broad consideration of a public element in civil litigation characterized the extending of the powers of the court, toimproving the impact on the course of the proceeding and the gathering of evidence, but not eliminating principles which express the essence of civil procedure, so as to safeguard the interests of the private in accordance with the principles ne procedat iudex ex officio and ne eat iudex ultra petita partium. Unlike in totalitarian states where private rights were only relatively private. Eliminationof those principles meant a greater change to extend private law than private procedural law.Brak abstraktu w języku polski
Problem kodyfikacji prawa prywatnego w państwach Europy Środkowo-Wschodniej z perspektywy stulecia
No full textThe past century for the countries of Central and Eastern Europe is not only the age of systemic transformation, but also the age of codification. The aim of the article is to show similar problems regarding the national codification of private law in the Kingdom of Serbs, Croats and Slovenes and later Yugoslavia (then after the break up of Croatia, Slovenia, Bosnia and Herzegovina, Macedonia, Serbia, Montenegro), Czechoslovakia (Czech Republic and Slovakia), Hungary and Poland, and Lithuania, Latvia and Estonia.Minione stulecie dla państw Europy Środkowo-Wschodniej to nie tylko wiek ustrojowych transformacji, lecz także wiek kodyfikacji. Celem artykułu jest ukazanie podobnych problemów dotyczących narodowej kodyfikacji prawa prywatnego w Królestwie Serbów, Chorwatów i Słoweńców oraz późniejszej Jugosławii (następnie po jej rozpadzie Chorwacji, Słowenii, Bośni i Hercegowiny, Macedonii, Serbii, Czarnogóry), w Czechosłowacji (Czechach i Słowacji), na Węgrzech i w Polsce, oraz na Litwie, Łotwie i w Estonii
O przeszkodach do zawarcia małżeństwa w międzywojennej Polsce na przykładzie prawa węgierskiego obowiązującego na Spiszu i Orawie
Full text linkThe clash of ideas regarding the nature of marriage took a specific form in the Polish
lands during the partitions and after Poland regained independence (1918). The variety of laws in
force at that time (German Burgeliches Gesetzbuch of 1896, Hungarian Act no. XXXI on marriage
of 1894, Russian ukase on marriage of 1863, the first part of Volume X and partly the first
part of Volume XI of the Digest of laws of the Russian Empire of 1832, and Austrian civil code
of 1811) posed a challenge to the interwar codifiers and legal practitioners. The premises for the
validity of marriage in civil law in the 19th century and in the first half of the 20th century were
still of a mixed nature — they partly derived from religious principles (e.g. the impediment of
differences of faith or priestly ordination), and partly from secular principles of Roman law (the
impediment of age, kinship, affinity, adoption, bigamy and defects in the declaration of will).
Against this background, the Hungarian Marriage Law must be assessed as modern
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