The complaint to suspend payment of instalments during the trial issued at the second instance recognizes 3 judges. This is the crux of the latest legally flawed resolution of the 3 neojudges of the civilian Chamber of SN. If a resolution were issued by a legal ruling, it would be applicable for credit cases, including francs, and another civilian disputes, where temporary safeguards are decided for the duration of the trial. However, given the legal flaw, it does not should be respected by the general courts.
The first issue was to supply collateral to 2 borrowers by the Court of Appeal in Warsaw. As a result, by the time the proceedings were concluded, they ceased to be obliged to pay instalments in accordance with the 2008 credit agreement. The bank filed a complaint, and the appeal court was not certain how to deal with it. This led to a question addressed to the ultimate Court: Should the complaint against the court of the second instance of granting the safety be examined by another composition of that court involving 3 judges (as provided for in Article 394 (2)par. § 1 (3) k.p.c. per analogy), or by 1 judge, in accordance with Article 397(3) k.p.c.?
These doubts arose after the amendment of the civilian Procedure Code of 7 July 2023, which introduced single-person civilian courts in the second instance. However, there was no clear view as to the composition of the complaints against the second instance.
There were 2 main positions in this regard: the first suggested that if these cases were not dealt with collegiately, it could mean that 1 justice should deal with them. On the another hand, given that the horizontal complaint provides little procedural guarantees as it is being dealt with by the judges of the same court, the acceptance that this should be 3 judges strengthens assurance in this process. Finally, as has been stressed many times in the discussions on the composition of appeal courts, exceptions to collegiate composition should be clearly governed by law without the request for far-reaching interpretations.
The defective ruling composition consisting of the neo-judges of SN (Agnieszka Góra-Błaszczykowska, Marcin Krajewski and Maciej Kowalski) supported this position by adopting a resolution: The complaint against the court of the second instance of granting the safety should be examined by another composition of that court involving 3 judges (in accordance with Article 3942 par. 13 of the Code).
We remind you that the resolution issued by the neojudges is subject to repeal by law. In the case of civilian proceedings pursuant to Article 379(4) in fine k.p.c. and criminal proceedings pursuant to Article 439(1)(6) in fine k.p.k.
File reference: III CZP 60/23
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SN neos Judges issue a legally flawed resolution on credit issues
