The main objective of my PhD thesis is to analyse the regulations governing the enforcement costs in terms of the practical problems that arise during their application, the rules and the function of the enforcement costs and the constitutional position of the judicial office

Kamińska-Krawczyk, Katarzyna

Repozytorium Uniwersytetu Łódzkiego (University of Lodz Repository)

The costs of enforcement procedure taken by judicial officer The main objective of my PhD thesis is to analyse the regulations governing the enforcement costs in terms of the practical problems that arise during their application, the rules and the function of the enforcement costs and the constitutional position of the judicial officer.  Firstly, the aim of my thesis is to provide such an interpretation of the provisions governing the enforcement costs, which represents the most important objectives of the legislature and call for effective enforcement. Secondly, it is also an attempt to indicate the need for changes to specific provisions, so that the system of enforcement costs would be consistent, and the law more precise.The indicated objective of my thesis results both from the problems emerging in practice of the provisions on enforcement costs and the repeated statements of the Constitutional Court attesting to the fact that these regulations often prove to be inconsistent functionally and axiologically, not meeting the requirements resulting from materially understood principles of better legislation. It should be noted that the lawmakers, in principle, accepted such model that makes the remuneration of the judicial officer dependent on the effectiveness of the enforced debt collection. At the same time the legislature is inconsistent, creating exceptions to this rule. The assumptions stipulated in the law on judicial officers and enforcement proceedings which say, that as a general rule, enforcement cost is closely linked with the effects of the actions undertaken by the judicial officer, whereas the judicial officer, as an entity subject to regulations restricting the freedom of activity and making it impossible to follow the profit-maximizing principle, bears the financial risk of their business, need to be clearly specified by legislators determining the amount of the costs of enforcement. In addition, exceptions to the assumptions adopted by the legislator must comply with the requirements of decent legislation. It is vital that legal norms concerning enforcement costs should not cause any interpretative problems during their application. The case of enforcement costs takes on a particular importance, since the judicial enforcement system is financed by the enforcement fees. The thesis has been divided into chapters and sections. The first chapter covers the historical analysis of the provisions governing the institution of a judicial officer and enforcement costs from the period of the Partitions of Poland until the current law on judicial officers and enforcement proceedings of 29 August 1997. During the foregoing period, the judicial officer was an employee of the District Court, and the choice of the model of judicial enforcement (in particular the constitutional position of the judicial officer) affected the regulation of the enforcement costs. The first chapter presents also the objectives pursued in the process of adoption of the law on judicial officers and enforcement proceedings and introduced by this law different systems of both judicial enforcement and enforcement costs.In addition, demonstration of the impact of the constitutional position of the judicial officer on the adopted model of enforcement costs required historical analysis of these two related issues. The system of enforcement costs differs considerably when the judicial officer is an official receiving remuneration from the State, or when he or she operates on their own. The change of the constitutional position of the judicial officer and a system of judicial enforcement introduced by the law on judicial officers and enforcement failed to implement a compact and uniform system of enforcement costs. The provisions governing this matter were repeatedly analyzed by both the Constitutional Tribunal and the Supreme Court and numerous amendments. The analysis of these changes was needed for better understanding and correct interpretation of the effective regulations.The second chapter was devoted primarily to the effective regulation of the enforcement costs stipulated in the law on judicial officers and enforcement proceedings, taking into account the abundant judicature of the Supreme Court and the Constitutional Tribunal. The third chapter presents the solutions concerning the status of the judicial officer and the enforcement costs in legal systems of Austria, Germany and France.The fourth chapter presents the proportion of function to the objective determined by the legislature and the judicature, which should be carried out by the costs of enforcement. Here, the chapter discusses also the notion of enforcement fee which was specifically invented to provide a source of funding for judicial enforcement proceedings improving the efficiency of collection of cash benefits.The fifth chapter presents the rules for the enforcement cost recovery and other selected rules of law and civil procedure. This chapter discusses the concept of the rule of law, as one of the guiding principles of a democratic country is decent legislation, which has been repeatedly violated the creation of provisions on enforcement costs and other rules of civil procedure that apply to the enforcement costs. The lawmakers’ lack of consistency in drawing up the rules for enforcement costs recovery in particular with regard to the regulation of enforcement fee (relative) has been frequently disapproved of by the Constitutional Tribunal.Chapter six presents the issue of exemption from the enforcement costs, which is not regulated by law and raises a number of practical problems. In addition, chapter six provides a closer look at the difference between the exemption from the enforcement costs in the examination proceedings and the exemption from the enforcement costs in the enforcement proceedings highlighting the difference in nature and rules governing each type of the proceedings. It was therefore essential to present this issue after discussing the rules of enforcement cost recovery and the purpose of the costs of enforcement.The seventh chapter is an analysis of the decisions of the judicial officer and the court both in general and more specific terms. This part of the work is devoted to the most important practical problems associated with the application of the rules governing the costs of enforcement by the judicial officer and the Court. It was important to discuss the structure of the decision regarding the cost of enforcement issued on the basis of article 770 of Civil Law Code, specific issues, which may be included in its scope, the problems associated with appealing against it, and after the law validation- with its execution. Decisions in relation to the cost of execution were divided into those issued by the judicial officer, and the Court as a result of the recognition of a complaint or a request for a reduction in the enforcement fee.The last part of the work includes final conclusions, together with the demands de lege ferenda addressed at the lawmakers. The subject of the research determined the selected research methods. Methods used in the research included historical research, formal-dogmatic analysis and the method of legal-comparative (comparative law) research. For a proper understanding of the current system of the costs of judicial enforcement, it was necessary to carry out historical research in relation to the regulations regarding enforcement costs and the role of a judicial officer in the interwar and post-war period. The next step was the examination of the revision of the enforcement cost in the context of the law on judicial officers and enforcement proceedings. It is only the juxtaposition of the past and present regulations that could give a complete picture of the direction of the changes occurring in the subject matter of the law and be helpful in making a proper interpretation of these provisions. The use of a formal-dogmatic method was determined by the need of establishing a mutual relationship between the rules of enforcement costs included in the law on judicial officers and enforcement proceedings and the provisions of the Civil Law Code or the legal norms resulting from of the Constitution of the Republic of Poland. The analysis of the presented issues required considering certain procedural rules. To determine the will of the lawmakers and characteristics of the researched legal norms it was essential to present views of the doctrine and judicature. Additionally, it was also helpful to analyse the justification of the proposed amendment on the legislative stage of the proceedings. The abundant judicature of the Supreme Court and the Constitutional Tribunal played also a very important role in the process of determining the correct interpretation of the relevant rules of law.ConclusionsThe analysis of the enforcement costs allowed for the formulation of conclusions concerning the assessment of both the current regulations concerning the costs on the basis of the law on judicial officers and enforcement proceedings, the interpretation of these norms, as well as the need for changes to specific provisions, so that the system of enforcement costs was more consistent, and the legal norms would not pose problems at the stage of their application.In the first place, it is worth noting that by further amendments the lawmakers are strengthening the market-oriented transition of the organizational structure of the judicial enforcement. The historical analysis of the evolution of the model of judicial enforcement indicates that the system, in which the State was responsible for running enforcement proceedings, whereas the judicial officer remained in the employment relationship and had the  status of the court official resulted in numerous organizational and legal problems associated with the system of remuneration of judicial officers who, at the same time, were employees and employers. Coming back to this solution would on the one had allow to better supervise the work of the judicial officers, but on the other hand it would generate too high costs for the State Treasury due to the need to finance the salaries of the judicial officers and enforcement agencies employees, provide suitable premises and technical resources including the equipment of the enforcement agencies. Therefore, in principle, the direction of the changes should be assessed positively, especially as we can see the market-oriented transition of judicial enforcement across the whole Europe. As already noted in the chapter devoted to other legal systems, the status of the enforcement authority, and in particular the fact whether the judicial officer is a court official financed by the State (Austria, Germany), or carries on his business activity financing the enforcement proceedings from the collected fees (France and Poland) is not a significant factor affecting the efficiency of the enforcement. Efficiency of the enforcement proceedings is affected not so much by the adoption of private or public execution model, but the speed of the internal procedures governing the execution of judgments, and in particular the fact if the judicial officer has access to the information about the debtor's assets.The aim of enforcement is to satisfy the creditor in accordance with the enforcement order, whereas the enforcement function includes all actual and legal action provided for by the law taken by the judicial officer to achieve this objective. To allow these activities to be carried out in an undisturbed way we need to establish a coherent system of judicial enforcement funding. Therefore, due to the fact that the enforcement fees collected by the judicial officers provide the source of funding for the enforcement the significance of fiscal function of the enforcement costs is undeniable.The foregoing function is not secured by the lawmakers in an appropriate way making it possible for the creditors to be completely exempted from the obligation to bear at least part of the relative fees by introducing the institution of enforcement fee reduction drawn up by the Court (article 49 clause 7-10 the law on judicial officers and enforcement proceedings), or the reimbursement of the fees to the debtor even after final completion of enforcement proceedings (article 49clauses 2-2c of the law on judicial officers and enforcement proceedings).It is important to refer also to the provisions in other jurisdictions (Austria, Germany and France), which do not allow to make the judicial officer responsible for the financing of the enforcement. The rule is that the creditor at the time of submitting  an application for enforcement pay the fees stipulated by the law, and then, in principle, is entitled to the reimbursement of those costs by the debtor. Only in the Polish legal system despite the fiscal functions of enforcement costs, the legislature makes the assumption that the judicial officer conducting the enforcement proceedings  may not receive any remuneration for the performed activities.On the other hand, the jurisprudence of the Constitutional Tribunal provide a noticeable tip for the lawmakers suggesting that the enforcement fees should be closely linked not only to the enforced amount, but also depend on the judicial officers’ efforts. The lawmakers should therefore consider withdrawing the minimalist regulation concerning relative charges, for the benefit of more detailed standards defining the relative charges expressed in percentage rates, tailored to the enforcement character, including the efforts of the judicial officer and the enforced benefit.When assessing the current system regulating the costs of enforcement in conjunction with the adopted by the legislator "privatization" model of the judicial officer profession, it should be noted that the system the enforcement costs introduced by the law on judicial officers and enforcement proceedings is not consistent. Numerous amendments providing fragmentary changes in the law on judicial officers and enforcement proceedings show no uniform concept of enforcement costs and have led to a lack of transparency and the correlation of these provisions. The purpose of the introduced changes including the improvement of the efficiency of enforcement and the reduction of enforcement costs deserves full approval. However, it seems that the lawmakers ran out of both determination and diligence in creating the rule of law. In addition, reducing the costs of enforcement should not be excessive, as it does not encourage efficiency of the enforcement, and, in addition, may interfere with the fiscal function of enforcement costs.

The costs of enforcement procedure taken by judicial officer

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The costs of enforcement procedure taken by judicial officer

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