W ramach Księgi pamiątkowej prof. Loica Cadieta ukazał się artykuł naukowy przygotowany przeze mnie wspólnie z Panem profesorem Tadeuszem Erecińskim, pt. Abuse of procedural rights in the Polish Code of Civil Procedure. Artykuł ma na celu przybliżenie społeczności międzynarodowej nowej polskiej regulacji dotyczącej zwalczania nadużycia praw procesowych oraz wskazania na kontrowersje związane z obowiązującą regulacją.
From Intorduction:
Under the concept of the “abuse of procedural rights” in the European civil law procedure, it is assumed that both the court and the parties to the proceedings need to adhere to the principles of honest and loyal procedure, which transposes the bona fide concept to litigation. However, in normative terms, there are some far-reaching differences, most significantly, when it comes to the scale of the legislation interference to streamline that phenomenon. Apart from a common reflection on the need to improve the effectiveness of the procedures by eliminating cases where the conduct is in line with the letter of law but in conflict with its spirit, the European legal orders differ primarily in terms of the categories of the sources of law used, the role of judicial decisions and legal science. They also differ in their outlook on the subjects of the abuse (parties to the proceedings, the court), its scope (typical examples) and how law should identify the cases of abuse and the types of sanctions.
The “abuse of procedural rights” category may be perceived from two perspectives – a broader one and a narrower one. From a broader perspective, it is an umbrella term covering all behaviours of the parties that are negatively evaluated in view of their purpose, the instrumentalisation of procedural rules and institutions or the manner of performing procedural burdens or duties. It is about naming all dishonest, disloyal or unreliable behaviours in civil proceedings, even though they meet the formal conditions of procedural law defined specifically for those behaviours. The common feature of those behaviours is that, while they are formally in compliance with the relevant procedural regulations, they breach the general order of honeste procedere. The subjective scope of those behaviours is not strictly delineated which is due to the fact that the parties’ influence on the initiation and the course of the proceedings may vary, i.e. it may be manifested by various behaviours and not all of them involve the exercise of procedural rights (privileges). This broader perspective should be separated from a narrower perspective on the abuse of procedural rights which refers to only one type of dishonest-, disloyal- or unreliable behaviours which, technically, involve the exercise of procedural rights (privileges) in a dishonest-, disloyal- or unreliable manner.
