dc.description.abstract | The 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. | pl_PL |