In Poland enforcement matters are under the jurisdiction of:
- 1. district courts
- 2. judicial officers operating by these courts (Article 758 of the Code of Civil Proceedings).
Pursuant to this provision it is presumed that judicial officers have jurisdiction over enforcement functions. The powers of the court with regard to judicial enforcement are provided for only in cases strictly specified by law.
It should be noted that the enforcement actions are carried out by judicial officers with the exception of functions which are reserved for the courts (Article 759 § 1 of the Code of Civil Proceedings).
The status of the judicial officer, his or her responsibilities and duties, have been specified in the Act of 29 August 1997 on judicial officers and enforcement (unified version in Journal of Laws of 2006 No. 167, item 1191 as amended).
The Act regulates the following:
- 1. The status, responsibilities and jurisdiction of a judicial officer – Chapter 1 of the Act
- 2. The appointment and dismissal of judicial officers – Chapter 2 of the Act
- 3. The obligations and rights of judicial officers – Chapter 3 of the Act
- 4. Judicial officer trainees and assistants – Chapter 4 of the Act
- 5. The costs of the enforcement actions taken by judicial officers and the rules governing the operation of a judicial officer’s chancery – Chapter 5 of the Act
- 6. Expenditure during enforcement – Chapter 6 of the Act
- 7. Enforcement fees – Chapter 7 of the Act
- 8. Judicial officers’ income – Chapter 8 of the Act
- 9. Supervision of the judicial officer’s function – Chapter 9 of the Act
- 10. Disciplinary responsibility – Chapter 10 of the Act
- 11. Judicial officers’ self-government – Chapter 11 of the Act
1. The status of the judicial officer
The judicial officer is a public officer acting within the territory of a district court (Article 1 of the Act). “Auxilliary bodies of the administration of justice”, the judicial officers perform function of public authority but they are independent professionals, who act under the supervision of different bodies .
The duties of the judicial officer
Enforcement actions in civil matters shall be performed exclusively by a judicial officer, subject to the exceptions provided for in other acts. The judicial officer also carries out other functions provided for under separate provisions (Article 2 clause 1 of the Act).
A judicial officer shall perform his enforcement duties personally, except in cases specified by the provisions of the act (Article 2 clause 2 of the Act).
The judicial officers are tasked in particular with the following: (Article 2 clause 3 of the Act):
- 1. the enforcement of court decisions in cases of pecuniary and non-pecuniary claims and the preservation of a claim;
- 2. the enforcement of other enforcement orders issued on the basis of separate provisions and of execution orders which, pursuant to separate provisions, are enforceable through judicial enforcement without the execution clause attached to them;
- 3. drawing up a protocol of the facts of the case prior to the opening of court proceedings or prior to a decision being issued as to a court order or a prosecutor’s order.
In addition to the tasks specified in Article 2 clause 5 of the Act, the judicial officer has a right to:
- 1. serve court notices, announcements, objections, complaints and other documents against acknowledgment of receipt with the date of delivery being stated;
- 2. exercise official supervision over voluntary public auctions and validating the lowest or the highest bid at the request of an auction organizer ;
- 3. verify the existence and content of the enforcement titles issued in the course of electronic proceedings.
The judicial officer is responsible for taking action to enforce pecuniary and non-pecuniary claims in the course of the procedures listed below.
They are as follows:
- execution against movable property
- execution of compensation for work
- execution against bank accounts
- execution of other claims
- execution against other property rights
- execution against real estate
- execution of the fractional parts of real estate
- execution against a perpetual usufruct
- execution against sea-going vessels entered in the shipping register
- simplified execution against real estate
- execution in order to cancel the joint ownership of real estate
- execution of the release of the movable property
- execution of the release of real estate or ships or vacating premises.
While conducting the execution of real estate, the judicial officer has jurisdiction to undertake enforcement action until the close of a tender.
When taking enforcement action, a judicial officer is subject to the decisions of the court and of the President of the Court by which he or she is established (Article 3 clause 1 of the Act).
Supervision by the President of the District Court by which the judicial officer is established
The President of the District Court by which the judicial officer is established shall exercise supervision over his or her activities, and in particular:
- shall evaluate the speed, efficiency and reliability of the proceedings by examining whether in specific cases there is no unjustified delay in taking action;
- shall oversee the operations and accounting of the judicial officer’s office;
- shall examine the work ethics, including the treatment of clients and the observance of deadlines as well as whether the office is maintained to a standard appropriate to the dignity of the office and the resources available;
- shall notify the court about the need to issue instructions to the judicial officer pursuant to Article 759 § 2 of the Code of Civil Proceedings.
Supervision by the Minister of Justice
The Minister of Justice shall oversee the activities of judicial officers and the judicial officer self-government. Such supervision cannot extend into areas subject to supervision of courts. The Minister of Justice shall exercise supervision over activities of judicial officers through the presidents of the district courts, auditing judges, and in the area of financial control – through authorized persons.
Supervision of the National Council Of Judicial officers
The National Council of Judicial officers exercises supervision over judicial officers independent by the supervision by the Minister of Justice and court presidents.
3. Complaints against the Judicial officer
The action of a judicial officer can be appealed to the district court, unless the Act provides otherwise. This also applies to the judicial officer not taking action. The court within which territory a judicial officer is acting has jurisdiction to examine a complaint against the actions of a judicial officer. (Article 767 § 1 of the Code of Civil Proceedings).
Complaints against the actions of a judicial officer that are not related to enforcement proceedings and are not subject to supervision by the President of the Court shall be resolved by the judicial officers’ self- government (Article 6 of the Act).
4. Judicial officer’s chancery
A judicial officer shall run a chancery (Article 5 of the Act).
5. Official seal
The judicial officer shall use a round official seal with the emblem of the Republic of Poland, showing his or her function, the district court of affiliation, the full name and the seat of his or her office (Article. 4 clause 1 of the Act).
6. Judicial officer’s district
A judicial officer’s district is the area in which the district court has jurisdiction (Article 7 clause 1 of the Act) (in Poland, there are the district courts, the regional courts, the appeal courts (11), and the Supreme court).
The Minister of Justice maintains and regularly updates a list of judicial officers on the Ministry’s website, with information about the judicial officers’ districts located in the area of jurisdiction of courts of appeal, the full names of the judicial officers assigned to them, and the addresses of their offices.
The President of the Court shall maintain and regularly update the list of judicial officers affiliated with the Court on the court’s website, listing their full names, location and addresses of their offices. The list shall also be made available to the public on the information board inside the court building.
The list of judicial officers shall also be posted on the National Council of Judicial officers website: http://komornik.pl/ and on the websites of the individual Councils of the Chambers of Judicial officers.
7. Right to select a judicial officer (Article 8 of the Act)
A judicial officer shall operate within his or her judicial district. More than one judicial officer can operate within a district. A judicial officer may not refuse a request for enforcement or preservation of a claim when he or she has jurisdiction in accordance with the provisions of the Code of Civil Proceedings.
A creditor has the right to select a judicial officer on the territory of the Republic of Poland, with the exception of:
- 1. cases for execution against real estate
- 2. and cases where the provisions regarding execution against real estate apply as appropriate.
When selected the judicial officer may act outside his or her judicial district.
When selecting a judicial officer, a creditor shall file a written statement to attest that he avails himself of the right to select the judicial officer when requesting the initiation of enforcement proceedings.
Two points :
- The judicial officer selected by the creditor may not refuse a request for enforcement or preservation of a claim or to take other action which is within the scope of his or her statutory tasks, if they are carried out under the jurisdiction of the court of appeal in which his district is covered (the appeal court area is much wider than the district court area).
- If they are carried out outside his district court area, the judicial officer selected by the creditor has to refuse a request for enforcement or preservation of a claim or to take other action if there is a backlog of more than six months in the enforcement proceedings being conducted by him or her. The backlog shall be calculated by dividing the number of unsettled cases in the previous six-month period by the average number of new cases monthly in the previous six-month period, with the exception of cases for the enforcement of recurrent claims.
8. The exclusion of a judicial officer (Article 9 of the Act)
A request for the exclusion of a judicial officer shall be submitted in writing to the judicial officer in charge of the proceedings, with an explanation of the reasons for the exclusion. The request for exclusion shall be considered by the court by which the judicial officer is established. The same provisions of the Code of Civil Proceedings shall apply to the exclusion of a judicial officer as to the exclusion of a judge.
9. The qualifications of the judicial officer (Article 10 of the Act)
A person appointed as a judicial officer shall be one who:
- 1. is a Polish citizen;
- 2. has full legal capacity;
- 3. has an unblemished reputation ;
- 4. has not been convicted of a criminal offence or a tax offence;
- 5. is not suspected of having committed a criminal offense or a fiscal offense;
- 6. has completed a degree in law in the Republic of Poland and obtained a master degree of law or holds a degree in law from a foreign university which is recognised in Poland;
- 7. is in sufficiently good health to discharge the duties of a judicial officer;
- 8. has completed a period as a trainee judicial officer;
- 9. has passed the judicial officer’s examination;
- 10. has worked as an assistant judicial officer for at least 2 years;
- 11. is at least 26 years of age.
Exceptions to the requirements of points 8, 9 and 10 shall be governed by the provisions of the Act on judicial officers and enforcement.
A judicial officer shall be appointed by the Minister of Justice in response to the application of the person concerned (Article. 11 clause 1 of the Act).
11. The judicial officers’ self-government
Judicial officers shall establish a self-government of judicial officers. The self-government shall include the following:
- 1. The National Congress of Judicial officers
- 2. The National Council of Judicial officers
- 3. General Meetings of the Chambers of Judicial officers
- 4. Chambers of Judicial officers
The National Congress of Judicial officers
The supreme authority of the judicial officers’ self-government is the National Congress of the Judicial officers. The National Congress of Judicial officers selects the President of the National Council of Judicial officers, the National Board of Audit and selects the location of the head office. The National Congress of Judicial officers is convened for the consideration of resolutions on important matters relating to judicial officers and the conditions of their work.
The National Council of Judicial officers
The National Council of Judicial officers represents judicial officers. The National Council of Judicial officers is bound by the resolutions of the National Congress of Judicial officers and its activities cannot go beyond the mandate set out in such resolutions and the Act.
In session, the National Council of Judicial officers shall allocate the tasks between its members and sets out the rules of procedure for its activities. Those documents shall be delivered to the Minister of Justice and to councils of all the chambers of judicial officers.
The resolutions adopted by the National Council of Judicial officers shall be implemented by the President or appointed members.
Members of the National Council of Judicial officers shall elect representatives to the general meeting of judicial officers from the chambers, with two officers from each chamber.
The National Council of Judicial officers is represented by the President, who directs its activities and presides over its sessions. In the absence of the President, his duties are carried out by the Vice President.
Chamber of judicial officers
A Chamber of judicial officers is composed of the judicial officers with their offices within the district of a court of appeal. The main office of a chamber of judicial officers shall be located in a city which is the seat of a court of appeal.
Membership of a chamber of judicial officers arises by law on the day the judicial officer acquires the right to carry out the activities referred to in Article 2 of the Act, and shall terminate on the date the judicial officer is dismissed. On the date of dismissal, the judicial officer ceases to perform any functions in the organs of the judicial officers self-government organisation.
The governing bodies of a chamber of judicial officers are:
- 1) the general meeting of the judicial officers belonging to the chamber;
- 2) the council of the chamber of judicial officers;
- 3) the board of audit.
The council of the chamber of judicial officers represents the chamber
The Council of the Chamber of Judicial officers acts in the seat of the chamber of judicial officers and shall comprise:
- 7 persons in chambers comprising up to 100 members;
- 9 persons in chambers comprising over 100 members.
The Council of the Chamber of Judicial officers allocates functions among its members and resolves to adopt by laws for its organisation. The Council shall deliver these documents to all the judicial officers belonging to the chamber and to the National Council of Judicial officers.
The Chairman of the Chamber Council represents it, directs its activities and presides over council sessions.
In Poland, Judicial officers form 11 chambers of judicial officers:
- 1. Chamber of Judicial officers in Bialystok
- 2. Chamber of Judicial officers in Gdansk
- 3. Chamber of Judicial officers in Katowice
- 4. Chamber of Judicial officers in Kraków
- 5. Chamber of Judicial officers in Lublin
- 6. Chamber of Judicial officers in Lódz
- 7. Chamber of Judicial officers in Poznan
- 8. Chamber of Judicial officers in Rzeszów
- 9. Chamber of Judicial officers in Szczecin
- 10. Chamber of Judicial officers in Warsaw
- 11. Chamber of Judicial officers in Wroclaw
12. Enforcement fees
A judicial officer shall charge enforcement fees for carrying out enforcement proceedings and for other functions referred to in the Act:
They are as follows:
- proportional fees
- fixed fees.
In cases of the enforcement of pecuniary claims, a judicial officer shall charge the debtor a proportional fee equivalent to 15% of the value of the enforced claim, but not less than 1/10 and not more than thirty times the national average monthly salary. However, in the case of enforcement of claims concerning bank accounts, salaries, social security benefit or payments based on the regulations relating to promotion of employment and labour market institutions, unemployment benefits, incentive pay, scholarships and training allowances, the judicial officer shall charge the debtor a proportional fee equivalent to 8% of the value of the enforced claim, but not less than 1/20 and not more than ten times the national average monthly wage (Article 49 clause 1 of the Act).In the said cases, the judicial officer shall charge the debtor a fee in proportion to the value of the enforced claim (Article 49 clause. 1a of the Act).
For the enforcement of an order to provide preservation of a pecuniary claim, the judicial officer shall be entitled to a fee equivalent to 2% of the value of the claim, which shall be preserved, but not less than 3% of the national average monthly wage and not more than five times that wage. The fee is payable by the creditor on submitting the request for enforcement of the order to provide preservation of a claim, and if it has not been paid along with the request, the judicial officer shall summon the creditor to pay it within 7 days. The judicial officer shall not execute the order to provide preservation of a claim until the fee has been paid (Article 45 clause. 1 of the Act).
The institution of the enforcement proceedings for non-pecuniary claims and execution of the decision to create collateral for non-pecuniary claims is contingent on the payment of a fixed fee by the creditor (Article 49a clause 1 of the Act):
- reclaiming goods: 50% of the national average monthly wage (Article 50 of the Act);
- obtaining possession of real estate and the removal of movable property from it. In the case of commercial and industrial businesses, the fee is collected for each room that the enterprise consists of: 40% of the national average monthly wage (Article 51 clause 1, point 1 of the Act);
- the appointment of an administrator for the real estate or business and for the appointment of a caretaker to supervise the real estate: 40% of the national average monthly wage (Article 51 clause 1 point 2 of the Act);
- removing goods or persons from premises , subject to a separate fee for each room: 40% of the national average monthly wage (Article 51 clause 1 point 3 of the Act);
- for making an inventory or other list of assets a fixed fee shall be charged in the amount of 10% of the national average monthly salary for each hour started (Article 53 of the Act);
- a fixed fee of 2% of the national average monthly wage is collected by the judicial officer from the creditor if the instructions necessitate a search for the debtor’s assets pursuant to Article 797(1) of the Code of Civil Proceedings. If the debtor’s assets are found, the judicial officer shall collect a fixed fee equivalent to 5% of the estimated value of such assets, but not more than 100% of the national average monthly wages. This fee shall be reduced by the value of the advance fee equal to 2% of the national average monthly wage (Article 53a of the Act);
- for allowing the creditor to reclaim possession, in cases other than those referred to in Article 51 of the Act a fixed fee equivalent to 25% of the national average monthly wage shall be collected, and if enforcement is required because of further infringements of possession, the fee shall be increased by 100% for each instance (Article 54 of the Act);
- for applying or removing a seal without simultaneously producing an inventory, a fixed fee equivalent to 4% of the national average monthly wage for each room or other premises sealed (Article 55 of the Act);
- for enforcement other than the reclaiming of goods, regaining possession, the administration, eviction, inventory sealing off and the enforcement of monetary claims, the fixed fee charged shall be the equivalent of 10% of the national average monthly wage for each hour of enforcement activities started (Article 56 of the Act);
- for all action involving the police, military police, military enforcement authorities, border guard and the Agency of Internal Security, the fixed fee shall be 25% of the national average monthly wage (Article 57 of the Act);
- for participation in overcoming the resistance of the debtor and for enforcing an order to place the debtor in a penitentiary, a fee of 25% of the national average monthly wage shall be charged. Enforcement of an order for incarceration is contingent on the payment of a fee by the creditor (Article 58 of the Act).
14. The value of the enforced claim
The value of the enforced claim or preservation of a claim constituting the basis for the calculation of the fees includes interest, costs and other charges which can be enforced or preserved in addition to the value of the primary claim on the request filing date or the date on which the scope of the enforcement was expanded. The value does not include the costs of the enforcement proceedings under way or enforcement of the order to provide preservation nor the cost of the representation by a solicitor or legal counsel in the current proceedings. When calculating the value of the enforced claim, the sum shall be rounded up to the nearest PLN 10(Article 46 of the Act).
15. Expenditures during enforcement
A judicial officer shall be entitled to the reimbursement of his or her cash expenses incurred in the course of the enforcement, but only within the limits prescribed by the Act (Article 39 clause 1 of the Act).
Cash expenditures specified in Article 39 clause 1 of the Act are:
- 1) compensation for expert opinions;
- 2) the cost of announcements in periodicals;
- 3) the costs of specialist transportation services outside the city in which the judicial officer is based and storing and insuring the seized movable property;
- 4) compensation for persons appointed on the basis of separate provisions to participate in the enforcement activities;
- 5) the costs of the actions taken by the judicial officer which are referred to in Article 8 clause 11 of the Act, outside his or her judicial district;
- 6) the costs of the delivery of funds by mail or through a bank transfer;
- 7) the costs of obtaining the information necessary for conducting enforcement proceedings or the execution of an order to provide preservation of a claim;
- 8) the costs of delivering correspondence, excluding the cost of serving the parties with a notice of the institution of the enforcement proceedings or of proceedings to provide preservation of a claim.
16. An advance for expenses
To cover the expenses referred to in Article 39 of the Act, a judicial officer may request an advance payment from a party or other participant to the proceedings who requested the enforcement, such action being conditional on the payment of the advance (Article 40 clause 1 of the Act).
A district court by which the judicial officer is established shall provide him or her with the necessary funds to cover expenses with respect to cases of persons exempted in this regard from court costs (Article 40 clause 3 of the Act).
Where enforcement is found to be wholly or partly ineffective, the expenditure incurred by the judicial officer which has not been covered by the executed portion of the claim shall be borne by the creditor (Article 42 clause 2 of the Act).
17. The debtor’s liability for the costs of enforcement
The debtor shall pay the creditor the costs of carrying out the enforcement. The costs are recovered along with the enforced claim. The cost of the enforcement shall be determined by the decision of the judicial officer if he or she is charged with conducting the enforcement. There is a right to complaint against the decision issued by the judicial officer to the district court by which the judicial officer is acting. The court decision may be appealed by both parties or the judicial officer.
18. A valid determination of the judicial officer regarding the costs
A valid determination of the judicial officer concerning the costs is enforceable after coming into force without the need to attach an execution clause to it (Article 770(1) of the Code of Civil Proceeding).
19. Exemption from enforcement costs
Exemption from court costs awarded by the court to a party in the examination of a civil law case, or to which a party has statutory eligibility, extends also to enforcement proceedings (Article 771 of the Code of Civil Proceedings).
20. Costs of the enforcement activity by the judicial officer and the rules for running a chancery
The costs of enforcement activity of a judicial officer (Article 34 of the Act) include:
- 1) the personnel and material costs incurred in connection with an enforcement operation;
- 2) cost of protecting the seized assets and the necessary personal protection as well as the cost of insurance for the office and personal liability insurance;
- 3) travel costs within the city where the judicial officer has his or her office and of correspondence (does not apply to the cost of the correspondence referred to in Article 39 clause 2 point 8 of the Act, which belongs to the cash expenditure incurred in the course of enforcement activities and is reimbursable), cash disbursements (does not apply to the cost of postal money delivery or the bank transfers referred to in Article 39 clause 2 point 6 of the Act, which represents cash expenditures incurred in the course of enforcement and is reimbursable), transportation of small movables not requiring specialist transport;
- 4) subscriptions to the judicial officers’ self-government incurred in accordance with the provisions of the Act;
- 5) other expenses necessary for carrying out enforcement and the activities provided for by the Act, if they are not covered pursuant to Article 39 of the Act (cash reimbursement of expenditure).
The above costs shall be borne by the judicial officer from the proceeds of enforcement fees (Article. 3 of the Act).
A judicial officer shall employ the staff needed to operate the office and to provide security and assistance in the performance of his or her function .
The judicial officer shall hire trainees and assistants.
The court as the enforcement authority
1. The court’s powers as an enforcement authority
The court as an enforcement authority undertakes the following:
- 1. Issues decisions concerning the overlap of judicial and administrative enforcement (Article 773 of the Code of Civil Proceedings);
- 2. Examines requests for affidavit of assets (Article 915 § 1 of the Code of Civil Proceedings), issues decisions concerning the affidavit of assets (Article 915 § 3 of the Code of Civil Proceedings);
- 3. Issues decisions on the appointment of an administrator of real estate (Article 931 § 2 of the Code of Civil Proceedings);
- 4. Supervises the administration of real estate (Article 935 of the Code of Civil Proceedings – Article 941 of the Code of Civil Proceedings);
- 5. Issues decisions on the consequences of failure by the purchaser to satisfy the conditions of payment in the auction in a timely manner (Article 969 § 1 of the Code of Civil Proceedings);
- 6. Exercises supervision over real estate auctions (Article 972 Code of Civil Proceedings);
- 7. Upon the closure of a tender, it shall issue a decision as to the approval of the winning bid by the highest bidder and shall also issue a decision approving the acquirer of the real estate (Article 989 of the Code of Civil Proceedings);
- 8. Issues a decision adjudicating the property of real estate (Article 998 of the Code of Civil Proceedings);
- 9. Draws up a distribution plan of the sum obtained from the sale of the real estate among the creditors (Article 1023 § 1 of the Code of Civil Proceedings);
It should be pointed out that during an enforcement involving real estate the court conducts the enforcement process after the tender has been closed by the judicial officer.
- 10. it shall conduct the enforcement through substitution (Article 1049 of the Code of Civil Proceedings);
- 11. it shall conduct the enforcement with regards to acts where substitution is not possible (Article 1050 of the Code of Civil Proceedings);
- 12. it shall conduct enforcement with regards to the obligation to refrain from certain actions or non-interference with the activities of the creditor (Article 1051 the Code of Civil Proceedings);
- 13. it performs enforcement through receivership (Articles 1064(1) to 1064(13) of the Code of Civil Proceedings);
- 14. it performs enforcement through the sale of a business or farm (Articles 1064 (14) to1064 (23) of the Code of Civil Proceedings).
In addition, the Court:
- 15. shall appoint a pro tempore guardian to appoint a statutory representative for a debtor without the legal capacity to be a party in a civil case (Article 818 § 1 of the Code of Civil Proceedings);
- 16. shall appoint a trustee at the request of the creditor if the heirs of the debtor have not taken possession of the estate or they are not known, and the estate has no trustee, (Article 819 § 2 of the Code of Civil Proceedings);
- 17. shall appoint a guardian or a trustee, or shall order the sale of rights, if after the seizure of the debt that is required to exercise the rights of the debtor or creditor (Article 908 § 1 of the Code of Civil Proceedings);
- 18. shall appoint a trustee to replace a person who is absent (Article 928 of the Code of Civil Proceedings);
- 19. shall issue a decision regarding the preservation (Article 807 of the Code of Civil Proceedings).
The above activities belong to the jurisdiction of the district court.
Enforcement activities are carried out by the regional court only under exceptional circumstances strictly provided for by law.
In addition to enforcement actions specified in provisions of the Code of Civil Proceedings, the court shall supervise the activities of the judicial officer by:
- 1. issuing ex officio instructions to judicial officers which are intended to ensure the proper performance of enforcement proceedings (Article 759 § 2 of the Code of Civil Proceedings);
- 2. removing noticeable irregularities (Article 759 § 2 of the Code of Civil Proceedings);
- 3. issuing decisions on complaints against the actions of judicial officers (Article 767 of the Code of Civil Proceedings).
2. The costs of the actions taken by the court
The costs of the actions taken by the court are regulated in:
- 1. The Act of 28 July 2005 on court costs in civil cases. (Journal of Laws No. 167, item 1398) unified text of 27 April 2010 (Journal of Laws No. 90, item 594).
- 2. The Regulation issued by the Minister of Justice on 31 January 2006 concerning the method of payment of court costs in civil cases (Journal of Laws No. 27. item 199).