Resolution SN (7) of 3.7.2024, III CZP 61/23
Under the present case, the D.M. against Bank a joint stock company in G., concerning a debt denominated in Swiss francs, the SN submitted the following legal question to the civilian Chamber: ‘Should the court of the second instance, having examined an appeal against a judgement which takes into account the chief request, based on the non-existence of a legal relation arising from the contract (especially the uncovering of nullity of the contract), and having respect to the main request as unfounded, consider a request based on the presumption that certain provisions of the contract would be acceptable, without, however, having respect to the non-existence of a legal relation resulting from that contract, which the court of first instance had not ruled whether it should revoke the judgement under appeal and mention the case back to it (Article 386(4) KPC)?’.
In the resolution of the ultimate Court of Justice, the Court of First Instance stated that: ‘If, as a consequence of an appeal against a main action, the Court of First Instance considers the application to be unfounded, it must amend the judgement under appeal, dismissing the main action and marking the amended judgement as partial, and repealing the decision on the costs of the trial. In that case, the second instance court shall leave the request to the first instance, if any.’
The ultimate Court pointed out that, in relation to the legal question put forward, the issue of settling claims possible in the ultimate Court case-law had so far been resolved divergently.
The NS, referring to the case law of that court, pointed out that there had so far been 2 positions concerning the settlement of possible claims:
According to the first position, erstwhile the Court of First Instance amends the judgement of the Court of First Instance and dismisses the main request, it should regulation in substance on the merits of a possible request (yes: the judgement of the ultimate Court of 3.7.2019, II CSK 306/18; Decision of the SN of 23.11.2022, III CZ 307/22; Resolution of the SN of 13.12.2022, III CZ 370/22; Resolution of the SN of 8.2.2023, III CZ 470/22). In specified a situation, the appeal courts, considering that the main request was not worthy of being taken into account, issued a ruling on the substance of the case. The current model of full appeal is in favour of this view, and the supporters of this view are of the opinion that the adoption of specified a solution is not contrary to the pro-constitutional explanation of the rules on the dual-instance of judicial proceedings. Therefore, it follows from the first position that if the court of first instance takes account of the main request and the defendant’s appeal is well founded, the court of second instance should amend the contested judgment, dismiss the main request and regulation on the possible request.
On the another hand, according to the second opposition view, the court of the second instance cannot regulation on a possible request where it considers that the main request, taken into account by the court of first instance, is unjustified. In specified a situation, the court of the second instance, which considers that the substance of the case has not been examined, should revoke the judgement under appeal and mention the case to re-examination (yes: judgement of the ultimate Court of 25.2.2021, V CSKP 16/21; Resolution of the SN of 25.3.2022, III CZ 123/22; the resolution of the SN of 10.8.2022, III CZ 209/22; Resolution of the SN of 27.10.2022, III CZ 212/22; Resolution of the SN of 16.11.2022, III CZ 284/22; Resolution of the SN of 16.11.2022, III CZ 306/22; order of the SN of 8.12.2022, III CZ 302/22; order of the SN of 8.12.2022, III CZ 319/22; order of the SN of 8.12.2022, III CZ 327/22; order of the SN of 14.12.2022, III CZ 318/22). It follows from the second position, therefore, that, if the court of first instance finds it justified to make a request as chief and so fails to comment on a claim as possible, the court of second instance, having respect to the appeal against the main request as valid, should not be the first court to decide on the request as possible, since its ruling on that request would be the only 1 in the case.
On the basis of this resolution, the ultimate Court considered that the existing provisions of the NPC and the Constitution of the Republic of Poland do not let to consider as full correct any of these 2 legal positions.
In the justification of his ruling, the SN stressed that it was essential to leave the request to a possible court And the institution follows the pro-constitutional explanation of the provisions of civilian procedure.
SN explained that Article 176(1) The Constitution of the Republic of Poland provides that judicial proceedings must be at least two-instance, which means that the decision by the appeal court to request a possible request would deprive both parties of the right to hear a case in a two-instance trial. According to SN, a dissatisfied organization would be deprived of the chance to challenge the decision by simple means of appeal. In specified a situation, the court of the second instance should not, for the first time, decide on a request made as a possible, since its ruling on specified a request would be the only 1 in the case.
As a consequence, the SN considered that:
- Whereas, in the present situation, it is for the court of first instance to recognise a request, if any, and to issue a judgement in that regard;
- if the court of the second instance, following the examination of an appeal against a judgement having respect to the main application, finds that the application is unfounded, it should amend the judgement under appeal, dismiss the main application and designate the amended judgement as partial and repeal the decision on the costs of the proceedings;
- Whereas the court of the second instance shall examine a case within the limits of an appeal in which no more than it has been ordered in a judgement cannot therefore, or may not, alter or revoke a decision in respect of a possible request, since specified a decision cannot be relied upon in the judgement under appeal and could not be challenged;
- even the applicable full appeal model should not lead to the fact that it is only at the phase of the appeal procedure that the scope of the substantive examination of the request, if any, will be limited to the examination of the request and its validity.
Comment
The institution of a possible request is not regulated by law, but the case law allows specified a method of formulation of the action. The plaintiff may submit a request, if any, in a suit next to the principal’s request, in case it is not taken into account.
The settlement set out in the SN's resolution commented on concerns the situation of the actual notification on both the main request and the possible one. In specified a situation, there is no question of a possible request erstwhile the same request is based on respective legal bases, 1 of which is the main 1 and the another are accessionary.
In his message of reasons, the ultimate Court clarified that the court of the second instance should not, first in the case, decide on a request which was made as a possible, since specified a decision would deprive the parties of the proceedings of the right to examine the case in a two-point procedure and, above all, the dissatisfied organization would be deprived of the chance to challenge the decision by average means of appeal (the appeal).
The position of the SN should be respected and it should be considered that this concept should not be effectively undermined, even if the rule of velocity of conduct, as the primacy should have a constitutional standard of dual-instance of judicial proceedings.
