Necessary conditions to initiate execution proceedings against the debtor
1. An enforcement title
Unless the law stipulates otherwise, the enforcement title constitutes the basis for enforcement. The enforcement title is a writ of execution with an enforcement clause (Art. 776 of the Code of Civil Proceedings).
The execution authority cannot initiate execution actions without such enforcement title having been submitted by a creditor. The enforcement title is an official document acknowledging the existence and scope of an executable claim of the creditor. The enforcement title should clearly describe a performance which ought to be provided as well as the identity of the creditor and the debtor.
A writ of execution
Pursuant to provisions of Art. 777 of the Code of Civil Proceedings, writs of execution include:
- court judgments which are final or immediately enforceable as well as any settlements before the court;
- judgments of a court referendary which are final or immediately enforceable;
- decisions of the court of arbitration or settlements before such court;
- settlements before the mediator;
- other judgments, settlements and acts which, pursuant to applicable laws, are enforceable through court execution proceedings;
- notarial deeds in which the debtor submits to execution proceedings and which stipulate the obligation to pay a pecuniary amount, or to provide items generically described in quantities specified therein, or the obligation to deliver items individually described, premises, real estate or ship entered in the applicable register if the date of payment, provision or delivery is specified in such deed;
- notarial deeds in which the debtor submits to execution proceedings and which stipulate the obligation to pay a pecuniary amount up to the limit directly specified therein, or described using an indexation clause if such deed lists conditions which entitle the creditor to carry out execution proceedings against the debtor based on such deed for the entire claim or a part thereof as well as the date by which the creditor may apply for appending the enforcement clause to such deed;
- notarial deeds in which the owner of mortgaged real estate or creditor under a mortgage claim, not being a personal debtor, submits to execution against such mortgaged real estate, or claim to discharge claims of the mortgage creditor if the amount of the claim to be discharged is specified directly, or using an indexation clause in such deed, and if the deed lists conditions which entitle the creditor to carry out execution proceedings for the entire claim or a part thereof as well as the date by which the creditor may apply for appending the enforcement clause to such deed;
- notarial deed in which the owner of movables or rights subject to registered pledge or pledge, not being a personal debtor, submits to execution against encumbered assets in order to discharge the claim of the pledgee.
The enforcement clause is a court deed which includes the court statement that the writ entitles to execution and, if necessary, defines its scope. Unless specific regulations stipulate otherwise, writs of execution awarding performances denominated in foreign currencies are appended by the court with enforcement clauses imposing the obligation on judicial officers to translate awarded amounts to the Polish currency based on the average exchange rate of Polish zloty and respective foreign currencies published by the National Bank of Poland on the date preceding the day when amounts due are delivered to the creditor ( Art. 783 sec. 1 of the Code of Civil Proceedings).
2. Initiation of execution proceedings
Execution authorities: Depending on the nature of actions carried out, execution authorities are judicial officers at district courts and district courts. Except actions specifically reserved for the courts, usually execution actions are conducted by judicial officers. ( Art. 759 of the Code of Civil Proceedings) (See note n°2).
3. Initiation of execution proceedings
There are three possible ways to initiate execution proceedings:
- at the request (Art. 796 sec. 1 of the Code of Civil Proceedings).
- ex officio (Art. 796 sec. 2 of the Code of Civil Proceedings).
- on demand of the competent authority (Art. 796 sec. 3 of the Code of Civil Proceedings).
The most common way of initiating execution proceedings is initiation at the request of the creditor. Usually the motion to initiate execution proceedings is submitted by the creditor referred to in the enforcement title. However, it may be also submitted for his/her/its behalf by the prosecutor, by any other authority operating on the same terms as the prosecutor or by a voluntary organisation. The motion to initiate execution proceedings should be delivered by the creditor (depending on competences) to the court or to the judicial officer ( Art. 796 sec. 1 of the Code of Civil Proceedings).
The motion to initiate execution proceedings may be submitted:
- in writing ( it is the most common method)
- orally to be entered in the records
The motion submitted in writing should satisfy conditions required from statements of claim. Formal requirements for such motion include indicating the creditor and the debtor, and the motion must specify:
- a performance which is to be provided;
- a method of execution.
The motion should be accompanied by the original enforcement title (Art. 797 of the Code of Civil Proceedings). The motion has to be signed by the creditor.
The execution motion so submitted is subject to examination against formal requirements by the execution authority. Failures to provide the foregoing elements of the motion must be remedied right at the beginning, based on the order of the judicial officer furnished with instructions stating that any missing data is to be provided within a week, otherwise the motion will be returned (Art. 130 in conjunction with Art. 13 sec. 2 of the Code of Civil Proceedings).
The performance ought to be clearly specified as to the amount of principal and secondary debts. If the creditor applies for execution of secondary debts, he/she/it must indicate up to what amount they are to be executed. For interest, the date starting from which such interest should be accrued must be always provided. The performance referred to in the motion to initiate execution proceedings should be based on the attached enforcement title. The creditor may request any part of the performance referred to in the enforcement title to be satisfied.
Indicating methods of execution for the execution of pecuniary performances is equivalent to indicating the debtor’s asset against which such execution proceedings should be carried out. Methods of execution are regulated in provisions of the Code of Civil Proceedings.
For the execution of pecuniary performances, execution proceedings may be conducted against:
- movables ( Art. 844-879 of the Code of Civil Proceedings),
- remuneration for work (Art. 880-888 of the Code of Civil Proceedings),
- bank accounts (Art. 889-893 of the Code of Civil Proceedings),
- other claims (Art. 895-908 of the Code of Civil Proceedings),
- other property rights (Art. 909-912 of the Code of Civil Proceedings),
- real estate (Art. 921-1013 of the Code of Civil Proceedings),
- simplified execution against real estate (Art. 10131-10136 of the Code of Civil Proceedings),
- sea vessels (Art. 1014-10224 of the Code of Civil Proceedings),
- by administration order (Art. 10641-106413 of the Code of Civil Proceedings),
- by sale of a business or a farm (Art. 106414-106423 of the Code of Civil Proceedings).
Whereas the execution of non-pecuniary performances includes:
- delivery of movables (Art. 1041-1045 of the Code of Civil Proceedings),
- delivery of a real estate or ship or emptying premises (art. 1046 of the Code of Civil Proceedings),
- conduct of actions which the other party cannot do in his/her/its place (Art. 1050 of the Code of Civil Proceedings),
- refraining from certain actions or not interfering with the creditor’s actions (Art. 1051of the Code of Civil Proceedings).
In a single motion, the creditor is free to indicate a number of methods for execution against the debtor. From among a number of methods for execution, the creditor should choose the one which is the least onerous for the debtor.
Execution proceedings are initiated when the motion to initiate execution proceedings is submitted.
The execution authority is bound by the contents of the motion to initiate execution proceedings, i.e., it cannot conduct execution to the extent wider than indicated in the motion, or carry out execution against assets not listed by the creditor.
Subject to the execution of maintenance obligations and the execution of fines and court fees, the judicial officer does not search for the debtor’s assets. Assets should be enumerated in the motion by the creditor. Provisions of Art. 7971 of the Code of Civil Proceedings establish an exception from the aforementioned rule and constitute the basis for actions of the judicial officers aimed at searching for the debtor’s assets. Such actions are carried out by the judicial officer at the request of a party holding the enforcement title against the debtor acknowledging the obligation to deliver a pecuniary performance. The judicial officer searches for the debtor’s assets against payment.
4. Free choice of the judicial officer
Judicial officers operate within limits of their court enforcement areas.
Pursuant to provisions of Art. 8 sec. 5 of the Act of August 29, 1997 on judicial officers and execution ( consolidated text, Journal of Laws of 2006, No. 167, item 1191, as amended) the creditor shall be free to choose a judicial officer in the territory of the Republic of Poland, except in the cases for execution against real estate and the cases to which regulations on execution against real estate respectively apply. If so appointed, the judicial officer operates outside the limits of his/her court enforcement area.
Pursuant to provisions of Art. 8 sec. 6 of the Act on judicial officers and execution, the creditor, when appointing the judicial officer, together with his/her/its motion to initiate execution proceedings submits a statement about exercising the right to appoint the judicial officer.
5. Statute of limitations for claims acknowledged by the final writ of execution
Pursuant to provisions of Art.125 of the Civil Code of April 23, 1964 (Journal of Laws No. 16, item 93) claims acknowledged by final judgements of the court, or any other authority appointed to examine cases of a given type , decisions of the arbitration court as well as claims acknowledged by settlements before the court or before the arbitration court, or settlements before the mediator and entered by the court are time-barred after expiration of ten years, even if the applicable limitation period for claims of such type is shorter. If the claim so acknowledged includes regular performances, the claim for regular performances due in the future is time-barred after three years.
The course of the limitation period for claims acknowledged by the enforcement title is interrupted when the motion to initiate execution proceedings is filed to the extent covered by such motion ( Art. 123 sec. 1 item 1 of the Civil Code).
Provisional and precautionary proceedings
Proceedings to secure claims are aimed at granting a legal protection of parties and participants of the proceedings. Security interests may be granted in any civil case. Currently pursuant to provisions of Art. 730 sec. 1 of the Code of Civil Proceedings “security interests may be demanded in any civil case.” They are admissible also in the cases closed with a judgment which cannot be enforced by way of execution. Security interests may be granted also in the cases examined under the trial as well as on a non-trial basis.
Regulations excluding, or limiting execution being carried out against persons exempted from domestic jurisdiction ( Art. 1115 of the Code of Civil Proceedings) exclude or limit the possibility to establish a security interest against these persons.
Provisional and precautionary function
It is auxiliary to court examination proceedings. Security interests are granted, as stipulated in provisions of Art. 7301 sec. 2 of the Code of Civil Proceedings to make sure that the objective of the proceedings is reached in the case in question. Proceedings to secure claims are aimed to provide protection to beneficiary before the case is closed with a judgment regulating the essence of the case. That results from the need to assure protection of the beneficiary’s rights which are infringed, or are at risk of being infringed before closing the proceedings in that case.
Parties to provisional and precautionary proceedings
Pursuant to applicable laws, any party or participant of the proceedings may file a motion to secure claims.
Proceedings to secure claims are independent proceedings, so under those proceedings different terms are used. The hitherto existing terms, such as the creditor and the debtor, are replaced respectively by the beneficiary and the obligor.
As security interests may be granted in any civil case, not only in cases for claims, also rights may be encumbered.
Prerequisites to grant a provisional interest
There are two prerequisites to grant a security interest:
- Probability of the claim – the beneficiary should prove that the claim he/she/it will raise, or has raised, is actually vested in him/her/it. To prove factual grounds for the claim is not necessary.
- Legal interest of the beneficiary – the beneficiary should prove that the lack of such security interest will prevent or hinder enforcement of the judgment issued in that case, or otherwise prevent or hinder pursuing the objective of the proceedings. Legal interest prerequisites are not applicable e.g., in maintenance obligations, pension and remuneration for work cases
Types of interim measures
By security objective
Protective security interest – is granted in order to secure the status quo which includes maintaining the legal status or facts of the case until the end of the proceedings in that case. It allows for protection of encumbered assets of the obligor, so that they are not damaged or removed. Example – seizure of movables, seizure of bank account, seizure of remuneration for work or other claims and property rights, establishing an obligatory mortgage on the obligor’s real estate.
Novation security interest – is granted in order to temporarily settle relations between the parties or participants before the case is finally resolved. Example – suspension of execution, entry of a warning to the land and mortgage register or to any other registers (National Court Register, Register of Pledges)
By encumbered asset
Securing pecuniary claims – Art. 747 of the Code of Civil Proceedings
Pecuniary claims are secured by:
- seizure of movables, remuneration for work, bank accounts or other claims or property right;
- establishing an obligatory mortgage on the obligor’s real estate;
- establishing a prohibition to sell, or encumber real estate for which there is no land and mortgage register, or for which the land and mortgage register is lost or damaged;
- establishing a sea mortgage on a vessel or vessel under construction;
- establishing a prohibition to sell the cooperative ownership right to premises;
- issuing an administration order against the obligor’s business, farm or an establishment making up the obligor’s business or its part, or a part of the obligor’s farm.
Securing non-pecuniary claims – Art. 755 sec. 1 of the Code of Civil Proceedings
If non-pecuniary claims are to be secured, the court grants a security interest as it deems appropriate considering the circumstances, not excluding any methods applicable to securing pecuniary claims. In particular the court may:
- settle rights and obligations of the parties or participants of the proceedings for the entire period when proceedings are carried out;
- order a prohibition to sell objects or rights covered by the proceedings;
- suspend execution or enforcement proceedings;
- settle the manner, in which custody over minor children is exercised;
- order to enter an applicable warning to the land and mortgage register or to any other register.
Initiation of provisional and precautionary proceedings
Security interests are granted at the request of the beneficiary, or any other person exercising rights of the beneficiary ( prosecutor, voluntary organization), and in the cases where proceedings may be initiated ex officio – also ex officio.
The motion to grant a security interest may be submitted:
- Before commencement of the examination proceedings – in such case, if the court accepts the motion and grants the security interest, it will indicate the date by which the beneficiary has to initiate examination proceedings, otherwise the security interest will expire. Such period cannot exceed two weeks. ( Art. 733 of the Code of Civil Proceedings).
- In the course of the examination proceedings – i.e., under a lawsuit, in a motion to initiate non-trial proceedings. The critical moment is when the enforcement title is issued. Art. 730 of the Code of Civil Proceedings).
- After the enforcement title is issued – if it aims to secure a claim for performance whose due date has not yet expired. (Art. 730 of the Code of Civil Proceedings).
Closing of provisional and precautionary proceedings
By expiration of the security interest
Through actions of the beneficiary or the obligor
Actions of the beneficiary:
- If following the motion submitted, a security interest is granted before proceedings are initiated and the beneficiary fails to bring an action, or brings an action but under the proceedings so initiated fails to raise the entirety of claims, or raises claims other than the ones covered by the security interest ( Art. 744 sec. 2 of the Code of Civil Proceedings).
- If the beneficiary, after the judgment on accepting the secured claim becomes final, fails to submit the motion to initiate execution proceedings. Pursuant to provisions of Art. 7541. 1 of the Code of Civil Proceedings , unless specific provisions stipulate otherwise, or unless the court decides otherwise, any security interests granted pursuant to provisions of this title expire after one month from when the judgment accepting the secured claim becomes final.
- If the beneficiary’s claim is secured through seizure of movables, remuneration for work, bank accounts, claims or other rights or through administration order against the obligor’s business or farm or establishment making part of such business, and the beneficiary within 2 weeks from when the judgment accepting the claim becomes final fails to demand further execution actions
Actions of the obligor:
If the obligor transfers to the security deposit account of the court the amount of security interest demanded by the beneficiary in a motion to grant security interest ( Art. 742 sec. 1 sentence 2 of the Code of Civil Proceedings)
By operations of law
If the claim or motion is finally returned, claim or motion is rejected, action is dismissed, or proceedings are discontinued ( Art. 744 sec. 1 of the Code of Civil Proceedings).
By revoking the judgment on granting security interest
On establishing of the security interest
Security interests may not be established on items, claims or rights against which the execution is excluded. ( Art. 750 of the Code of Civil Proceedings).
Inadmissibility of interim measures
It is inadmissible to secure pecuniary claims against the State Treasury.
Securing of maintenance obligations
In maintenance obligations cases, security interests may be established by imposing the obligation on the obligor to pay to the beneficiary under one payment or a series of regular payments of a certain pecuniary amount. In such cases, the security interests granted are based solely upon substantiation of existence of the claim (there is no requirement to prove a legal interest in granting such security interest).