Poland
| Published date | 01 March 2009 |
| Author | Magdalena Tulibacka |
| Date | 01 March 2009 |
| DOI | 10.1177/0002716208328419 |
| Subject Matter | Articles |
market economy and democratic civil society. The
socialist legacy includes mistrust of judicial control and
strong reliance on public prosecutors, and some social
organizations, in representative litigation. A new draft
Act on group litigation adopts a careful but informed
approach to modern problems, based on opt in, with
strong judicial management and a number of antiabuse
mechanisms.
Keywords: transition-style civil procedure; legal cul-
Poland
ture; representative litigation; draft group
litigation act
By
Since the collapse of socialism in the late 1980s,
Poland has experienced an unprecedented
MAGDALENA TULIBACKA
legalization of economic and social life, which
entails on one hand the need for public regulation
and public enforcement, and on the other the
increased emphasis on litigation and access to jus-
tice. No collective redress system exists in Poland
at present. Representative actions, on the other
hand, have had quite a long tradition. By analyz-
ing them, as well as assessing the main features of
the Polish civil procedure and judicial system, this
chapter assesses the potential for an introduction
of a collective redress mechanism. While some
elements of the Polish legal system and legal cul-
ture may challenge effective operation of such a
mechanism, the political climate seems ripe for its
introduction. In April 2008, the Polish Civil Law
Codification Commission finalized the draft act
on group litigation.1
1. The Sociolegal and Historical
Background: A Legal
System in Transition
Law enforcement—on both the public and
private side—has been relatively ineffective
Magdalena Tulibacka is a research officer in civil justice
systems at the Centre for Socio-Legal Studies of the
University of Oxford.
DOI: 10.1177/0002716208328419
190
ANNALS, AAPSS, 622, March 2009
POLAND
191
until recently. Traditionally, socialism entailed emphasis on public regulation and
public legal enforcement. The institutional structure was weak, however, and
public enforcement was ineffective. Private litigation was not encouraged for
political and ideological reasons, and there were further problems: lack of cheap,
good quality legal advice; high costs; complexity and length of court proceedings;
and a poor record in enforcing court judgments. At present, the emphasis on
effective and efficient law enforcement entails on one hand the creation of a new
institutional framework of public enforcement bodies2 and on the other hand the
renewed focus on private enforcement. The importance of private litigation is
growing together with the importance of private law in general. Rapid political
changes, democratization, market transformations, and the accession to the
European Union radically transformed the law and its practice.3 There is also an
increasing realization that the individualistic approach to access to courts and
access to justice is no longer the only option. Representative actions are being
brought more often, and a collective redress mechanism is being contemplated.
Access to justice and the performance of the justice system as a whole are still
unsatisfactory, both in delivering compensation to those who suffered grievances
and in providing incentives and changing behavior. The costs, complexity, and
delays of litigation continue to be a problem to some extent.
The country is in the process of introducing amendments to the Code of Civil
Procedure of 1964,4 new rules concerning costs of litigation and methods of fund-
ing it, and new rules on the organization of legal profession.5 The most significant
amendment of the Code of Civil Procedure took place in 1996,6 when greater
independence and clearly specified duties of judges, the principle of equality of
arms between the parties, and a generally more adversarial model of proceedings
were introduced. Further amendments followed, the main aim being improve-
ment of the efficiency of the justice system in general. Reforms included decreas-
ing the costs of litigation, greater use of mechanisms of alternative dispute
resolution, introduction of court clerks, changes in the organization, recruitment
and training of judges and other members of the legal profession, and decreasing
the complexity of the appeal and cassation procedures.
2. The Conceptual and Systemic Framework
of Civil Procedure—Is It Ready for a
Collective Redress Mechanism?
2.1. Main features
The key systemic principle is one of open and oral civil proceedings. The pro-
cedure is judge-driven, although the parties are responsible for the outcome of
the case. There is no discovery, apart from cases involving two commercial par-
ties where some discovery rules were adopted recently. The Polish civil proce-
dure has three stages: in the first two instances, courts consider both the factual
192
THE ANNALS OF THE AMERICAN ACADEMY
and the legal elements of the case and the third stage, cassation, focuses on legal
aspects. Cassations are considered by the Supreme Court and have a public policy,
law-shaping role. Litigation involving a number of persons on the claimant or the
defendant side is not entirely foreign to the Polish civil procedure.
2.2. The legislative framework of civil procedure and the court structure
Civil procedure (including the ordinary procedure and a number of distinct,
specialized mechanisms), the structure of the court system, the costs and fund-
ing of litigation, and the organization of the legal profession are regulated by the
Code of Civil Procedure of 1964 and a large number of other acts and regula-
tions.7 Justice is administered by the Supreme Court, ordinary courts, adminis-
trative courts, and military courts. Compliance of legislation with the
Constitution is examined by the Constitutional Tribunal.8
2.3. The model of civil procedure and its confrontation
with judicial practice
As mentioned above, immediately after 1989, the Polish government began
reforms of civil procedure, with a more adversarial approach, the principle of
“equality of arms” between the parties, and a less active (although, for reasons of
legal certainty and clarity, more clearly defined) role of the court.9 On one hand,
civil procedure is more adversarial now than it was during the socialist period.
Parties have the main responsibility for the result of the process, and according
to the “principle of truth,” they are obliged to provide complete and truthful
statements of facts of the case and to present evidence.10 On the other hand, the
powers and obligations of judges are described with greater precision: they may
provide the necessary advice to parties who are not represented by a lawyer; they
ought to prevent delays in litigation and aim at concluding the case during the
first trial day as long as this is possible without detriment to the case; and they
should aim at concluding each case with a settlement. A judge may also decide to
join a number of cases to consider them together11 or to...
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