Last Updated on November 18, 2020 by LawEuro
It will be about the little-studied institute represented in the modern literature of civil procedural law, which is the main entry.
The legal basis of the institute of the main entry is Art. 75 of the Civil Procedure Code (CCP) of Poland, which specifies: “A person who claims to have a dispute between other persons may declare his / her claims for a dispute against both parties, until the dispute is resolved in the first instance, which considers the case (main entry)” . In accordance with the current GIC of Poland, this institute is regulated in one section with persons who do not declare independent requirements, although these concepts are not identical. In Polish, they are united by the word “introduction”, justified by a long tradition, since a third party in defending his objective right is not included in the civil process of others, but only files an independent, separate lawsuit.
A logical description of this institution would be its presentation in the provisions on complicity in a dispute (Article 72 – 74 of the Polish Code of Civil Procedure), since this is a special form of complicity.
Reflections on the issue of the institute of main intervention quite often emphasize that the purpose of this institution is to prevent conflict of court decisions, facilitate and speed up the justice system and reduce the overall cost of the process.
The advantages in terms of procedural economy are obvious: the accession of individuals to the defendant’s side (change of jurisdiction) and the unification of two civil cases that would otherwise be conducted separately by different courts, and not in a court that is already considering the ongoing dispute between the parties and the intervening person.
It should be recognized that it is this idea of the legislator that justifies the introduction of this institution into the Polish system of civil procedure, since there is no other reasonable basis for it1. An example of the justification for the regulation of the main entry in the context of protecting property can be the following situation.
A.’s face filed a lawsuit against B.’s face for the recovery of the debt, and a third person — face of V. — considers that part of the recovery amount belongs to her and her right was violated. It is obvious that anyone who thinks so can file a lawsuit against the violator. In the above situation, however, you can start on the basic principles of two industries:
1) debt collection – against the person of B., because in his actual possession is contested property;
2) production of a prophylactic nature – in relation to the person A. on the definition of the right of ownership (Article 189 of the Polish Code of Civil Procedure). Undoubtedly, combining the three lawsuits and simultaneously considering them as two separate cases (main and entry) will significantly speed up the settlement of all disputes and reduce the costs of the justice system.
In accordance with Art. 75 of the Polish Code of Civil Procedure, the subject of the claim of the person entering the process should be “the requirement to protect their rights or property”. This division of the concept seems superfluous, since in both cases it is a question of law, since property should be understood as the right of ownership. In other words, in art. 75 of the Polish Code of Civil Procedure refers to “property” as a simplified term.
The admissibility of the claim of the person entering the process is determined by the claimant’s right to dispute as a claimant in the main process. A legitimate interest in resolving a major dispute in favor of one of the parties will not be a sufficient solution. In this case, we should consider the possibility of joining the case as a person who does not declare independent claims (Article 76 of the Polish Code of Civil Procedure). The right of admission must be identical in terms of the content and subject of the claimant’s claim in the first case in question. Otherwise, you can not talk about the main entry.
Due to the fact that the basis for the main introduction should be the protection of rights – as a rule, property or legal rights – the question arises whether the entry is acceptable in matters of protecting property rights. If we assume that possession is only an actual state, then we should agree that the accession of third parties is unacceptable in the process of property protection. The main entry into the process is also contrary to the content of Art. 478 GIC of Poland, because in matters of violation of property the court considers only the last state of possession and the fact of its violation, and not the right or actions with the good intentions of the defendant. Given the possible entry, despite the formal division of cases, the claim process is transformed into a law process, which, in accordance with this article, is prohibited.
The condition for the admissibility of the main entry is the independence of the right of the person entering the process from the fundamental rights of the dispute of the original claimant or the defendant. From this statement follows a meaningful consequence. For example, a person who claims independent claims may enter the current proceedings regarding the ownership of the property, claiming that as a result of the limitation period he is the owner of the property as a whole or of its specific physical part. But this action is not available to the tenant of real estate in defense of his rights, derivative and dependent on the rights of the plaintiff or the defendant. However, the possibility of a major entry is not excluded if the tenant does not have any relationship with the parties to the main process.
The main entry is carried out solely by filing with the court a so-called suit of entry, and not a general procedural document addressed to the court of first instance, which conducts the main process. A third party claiming entry into the process shall file a separate lawsuit, and not join another process. This is the difference between the main entry and aiding.
2 It should be noted that, in accordance with the consistent position of doctrine and jurisprudence, it is permissible to decide whether the acquisition of property rights as a result of a statute of limitations is a prerequisite for a decision or order relating to another subject. Thus, the interested party may initiate a claim for the issuance of real estate, referring in support of the claim to the fact that this person is the owner as a result of the statute of limitations. That is, it should not receive confirmation of its rights in accordance with procedures outside of production (Art. 609 of the Polish Code of Civil Procedure, etc.). See comment 1.1 in: B. Dobzhansky, M. Lishevsky, Z. Reysikh, V. Sedletsky. Civil Procedure Code. Warsaw, 1975. p. 912.
This means that the trial must meet all the formal and specific requirements (Article 187 of the Polish Code of Civil Procedure). The provisions concerning the collection of fees from claims (paragraph 2, clause 3, article 3, and paragraph 2 of article 18 of the Law of July 28, 2000 “On Court Costs in Civil Cases”) are applicable to the payment of the main introduction.
The action of the interlocutor is filed against both sides of the main dispute. This is an important feature of this lawsuit, since in the event of a lawsuit against one of the parties, this institution of protecting the interests of third parties would not exist.
As already mentioned, the claim of the intervening party cannot be submitted to the court in accordance with the general rules of jurisdiction – only to the court that is considering the case, which is connected with the relationship between the case and the requirements of a third party (forum connexitatis). However, the provisions on courts, jurisdiction and subject matter of jurisdiction should be taken into account.
If the main entry process does not meet the requirements and features mentioned in art. 75 of the Civil Procedure Code of Poland, the court must consider it, like any other lawsuit, namely, to consider it during the process and, if there are no obstacles, to consider it on the merits, and in the case of an inappropriate court to apply § 1 of Art. 200 GIC of Poland on the transfer of this case to the competent court.
The decisions contained in the new edition of March 20, 2007 — Art. 202 of the Polish Code of Civil Procedure, according to which the court’s jurisdiction, determined with the consent of the parties, is taken into account by the court only in the case of protest by the defendant, filed and duly substantiated in respect of the dispute on the merits. The court does not consider jurisdiction until a claim is received.
In the process of joining from the passive side, one can speak about complicity, since at least two persons act as defendants. Nevertheless, only in exceptional cases it is possible to talk about complicity in the understanding of the provisions relating to the institution of complicity in a dispute (Article 72 – 74 of the Polish Code of Civil Procedure).
First, because in this process the content of § 1, Art. 72 of the Polish Code of Civil Procedure does not determine either the essence or the admissibility of the participation of the defendant’s party. The basis of such complicity determines exclusively and exhaustively Art. 75 GIC of Poland. As a rule, it is difficult in this case to even talk about formal complicity (clause 1 § 1 of article 72 of the Polish Code of Civil Procedure), since the opposite sides of the main dispute act as defendants in the accession process. Thus, the condition of formal complicity is not fulfilled – the same claim requirements. The actual and possible, as well as legal circumstances existing in the main process, require the person entering the civil process to file various claims against the defendants. The civil procedural literature indicates the fact that the claims in the main entry claim against the plaintiff will initially be sent to determine the right or legal relationship (Article 189 of the Polish Code of Civil Procedure), and in relation to the second respondent (the defendant in the main process) – to substantiate the penalty.
There are also no grounds for complicity on the side of the defendant in the entry process as a material complicity. Since there is no situation in which, on the passive side, there is a community of rights or obligations of other participants or an identity of factual and legal grounds. This means that in the process does not appear complicity in the understanding of § 2, Art. 72 GIC of Poland.
Thus, it should be assumed that in this case we are dealing with complicity in the understanding of the law, but this complicity has no definition.
Regardless of any doubts about the nature of participation on the side of the defendant, it should be noted that each of the defendants in the main accession process, in spite of one lawsuit, have an independent position and in accordance with § 1, Art. 73 GIC of Poland act on their own behalf.
It should be noted that the question of complicity on the side of the respondent in the main entry process becomes more and more difficult if there are several subjects in the main process on each side, but there is material or formal complicity.
The question arises about the impact of the entry on the course of the main process. The current situation can be viewed from three sides, depending on the circumstances:
1) the court after the merger of cases will decide on two lawsuits at the same time (general ruling, article 219 of the Polish Code of Civil Procedure);
2) the court will consider two cases separately (which is not agreed) with a view to the institution of the main accession;
3) the court will suspend the proceedings in the main case until the decision on the right of the third party is made, if the result of the entry may affect the consideration of the main case (clause 2 of § 1 of Art. 177 of the Polish Code of Civil Procedure). Developing the topic related to the possibility of suspending the proceedings in the main case, it should be noted that in this case it is not a basis for making a decision based on it, since the decision to suspend the proceedings in a civil case is made in accordance with paragraph 1, § 1, Art. 177 GIC of Poland. The basis for making a decision on the basis of another decision within the meaning of this provision is applied in a situation where the decision of another civil case will be binding for the settlement of a case that has been suspended. In the case of a similar nature of the consideration of the case in relation to the main accession, the decision provided for in paragraph 1 of § 1 of Art. 177 of the CPC of Poland, it would be superfluous, since it would be sufficient to apply paragraph 1 of § 1 of Art. 177 GIC of Poland. The connection of the main case with the claim for entry has a specific meaning, since the decision taken in the main case does not depend on the decision on the suit of the main entry. Undoubtedly, this connection exists both on a material and procedural basis. At the same time, B. Dobzhansky, who confirms his observation with the following example, draws attention to the specifics of the basis for making a decision in the case of the main entry.
A. filed a lawsuit against B. for the issuance of real estate. V. makes a claim on the main entry against A. and B. for the issuance of the same property. If in the case of the main accession a decision is made to refuse to satisfy the claim of V., then for A. and B. nothing will change at all. If the claim of the main entry is recognized, such a decision will affect the outcome of the consideration of the dispute between A. and B., since these parties become interconnected (Art. 366 of the Polish Code of Civil Procedure), but not as accomplices on the same side of the process (the defendants in the lawsuit entry). Although in this case the concept of definition of ownership is not applicable and the main process does not become pointless in the understanding of the civil process. As a rule, the adoption of a third party claim will cause a kind of irrelevance of the main process, which may persuade the claimant to withdraw the claim.
As we see, the situation with the interdependence of solutions is very fragile. However, material collected in the main entry process is important, as it can be used in the main civil process. Such a relationship is determined by the existence of paragraph 2 of § 1 of Art. 177 GIC of Poland. Suspension of the proceedings, however, is not mandatory, and the court must take into account the specific circumstances of the case, in particular the degree of their consideration.
It should be emphasized that the fate of the process in the case of the main entry does not depend on the degree of consideration of the main civil process. It does not matter that, in the case of the main process, the lawsuit was withdrawn, the settlement was accepted, or the lawsuit was rejected. The consideration of the main entry claim may be affected by circumstances and events occurring in the main process, if they also play an important role in the main entry process (for example, the death of one of the parties or the loss of legal capacity of the claimant of the main process).
A person claiming independent claims may initiate an appeal procedure only during the main accession process, but cannot appeal against a court ruling on the main process.
provisions of the Civil Procedure Code of the Republic of Poland governing the institution of third parties
Dziat III. Interwencja gtowna i uboczna
Art. 75. Kto wyst ^ puje z roszczeniem d, w ktorym toczy si§ sprawa (interwencja glowna).
Art. 77. § 1. Wst p pienie sweeter sprawy inter- wenient uboczny powinien zglosic w pismie, w ktorym poda, jaki ma prawny we wst pieniu i do ktorej ze stron przyst ^ puje. Pismo to nalezy dor ^ czyc obu stronom.
§ 2. Interwenient uboczny moze ze wst ^ pieniem do sprawy pol ^ czyc dokonanie innej czynnosci pro- cesowej.
Art. 78. § 1. Kazda ze stron moze zglosic opozycji przeciwko wst pieniu interwenienta ubocznego, jednakze nie pozniej niz przy rozpocz ^ ciu najblizszej rozprawy.
§ 2. S ^ d oddali opozyj po przeprowadzeniu co niej rozprawy, jezeli interwenient uprawdo-podobni, ze ma prawny we wst ^ pieniu do sprawy.
3. Mimo wniesienia opozycji interwenient uboczny bierze udzial w sprawie, dopoki orzeczenie uwzgl ^ dniaj ^ ce opozycji nie stanie si§ prawomocne. W razie prawomocnego uwzgl ^ dnienia opozycji czynnosci interwenienta ubocznego uwazane b ^ d ^. za niebyle.
Art. 79. Interwenient uboczny jest uprawnio do wszelkich czynnosci procesowych dopusz czalnych wedlug stanu sprawy. Nie mog ^ one jednak pozostawac w sprzecznosci z czynnosciami i oswiadczeniami strony, do ktorej przyst ^ pil.
Art. 80. Interwenientowi ubocznemu nalezy od chwili jego wst ^ pienia do sprawy dor ^ czac, tak jak stronie, zawiadomienia o terminach i posiedzeniach s ^ dowych, jako tez orzeczenia s ^ du.
Art. 81. Jezeli z istoty spornego stosunku praw- nego lub z przepisu ustawy wynika, ze wyrok w sprawie ma odniesc bezposredni skutek prawny w stosunku mi ^ dzy interwenientem a przeciwnikiem strony, do ktorejn jyo jyo jyyyyyyyyyyi si§ odpo- wiednio przepisy o wspoluczestnictwie jednolitym.
Art. 82. Interwenient uboczny nie moze w stosunku do strony, do ktorej przyst ^ pil, podniesc za- rzutu, ze sprawa zostala rozstrzygni ^ ta bl ^ dnie albo ze strona ta prowadzila proces wadliwie, chyba zebebe and tee za ro hr tee za ro zutu, zy-rzutu mu korzystanie ze srodkow obrony albo ze strona umyslnie lub przez niedbalstwo nie skorzystala ze srodkow, ktore nie byly interweienientowi znane.
Art. 83. Za zgoda. stron interwenient uboczny moze wejsc na miejsce strony, do ktorej przyst ^ pil.
Chapter III Main entry and aiding
Art. 75. A person filing claims for a dispute between other persons may file his claims for a dispute against both parties, before resolving a dispute in the first instance that deals with the case (main entry).
Art. 76. A person who does not declare independent claims regarding the consideration of the subject of the dispute in favor of one of the parties may enter the case against the party before the court of second instance adopts a court decision on the case (aiding).
Art. 77. §1. A person who does not declare independent claims regarding the consideration of the subject of the dispute shall declare his case, in writing, indicating the legitimate interests and the party to which he joins. The specified application is delivered to two parties.
§ 2. A person who does not declare independent requirements regarding the consideration of the subject of the dispute may join the case with another procedural action.
Art. 78. §1. Each of the parties may submit a protest against the accession of a person who does not declare independent demands regarding the consideration of the subject of the dispute, no later than the closest consideration of the case.
§ 2. The court rejects the protest after its consideration of the case, if the person entering the case proves his legitimate interest in taking the case.
§ 3. Despite the lodging of a protest, a person who does not declare independent demands regarding the consideration of the subject of the dispute takes part in the case before the resolution on the satisfaction of the protest takes effect. In the case of the entry into force of the decision on the satisfaction of the protest, the actions of the incoming person are considered non-existent.
Art. 79. A person who does not declare independent requirements regarding the consideration of the subject of the dispute has the procedural rights provided for this case. These rights may not contradict the actions and statements of the party to which the person has joined.
Art. 80. A person who does not declare independent claims regarding the consideration of the subject of the dispute shall, from the moment of taking the case, be given, as well as to the party of the process, notices of time limits and judicial proceedings, as well as court decisions.
Art. 81. If from the legal relationship or the provisions of the law it follows that the decision will directly affect the legal relationship between the intervening person and the opposite party, from the party to which the person joined, the party, in the proceedings apply the decisions on complicity.
Art. 82. A person who does not declare independent claims regarding the consideration of the subject of the dispute does not have the right to bring charges against the party to which he joined to erroneously consider the case or conduct the process incorrectly, unless the state of affairs at the time of entry of the person prevents him from using the defense or the party intentionally or for negligence will not use means that were not known to the intervener.
Art. 83. With the consent of the parties, a person who does not declare independent requirements regarding the consideration of the subject of the dispute may replace the party to which it has joined.