Enforced collection orders; the terms of issuing enforcement clauses SK 31/15
Ref. No. <link s sk-3115 _blank>SK 31/15
JUDGMENT
IN THE NAME OF THE REPUBLIC OF POLAND
Warsaw, 3 October 2017
The Constitutional Tribunal, in a bench composed of:
Zbigniew Jędrzejewski – Presiding Judge
Małgorzata Pyziak-Szafnicka
Stanisław Rymar
Piotr Tuleja – Judge Rapporteur
Sławomira Wronkowska-Jaśkiewicz,
having considered, at a sitting in camera on 3 October 2017 – in accordance with Article 92(1)(1) of the Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal (Journal of Laws – Dz. U. item 2072) – a constitutional complaint lodged with the Tribunal by Ms A. Z.-Z. to review the conformity of:
Article 7781 of the Act of 17 November 1964 – the Civil Procedure Code (Journal of Laws – Dz. U. of 2014 item 101, as amended):
– insofar as it enables a competent court to issue – with regard to an enforced collection order issued against a partnership – an enforcement clause against a former business partner of that partnership who is liable for the obligations of that partnership without limitation with all his/her assets, and also against a person who was eligible for the status of a former business partner already when the case concerning the enforced collection order was pending, to Article 45(1) and Article 77(2) of the Constitution.
– insofar as it does not provide for a procedure in accordance with which a former business partner could raise allegations as to a claim covered by an enforced collection order, to Article 77(2) of the Constitution,
adjudicates as follows:
Article 7781 of the Act of 17 November 1964 – the Civil Procedure Code (Journal of Laws – Dz. U. of 2016 item 1822, as amended) – insofar as it allows a competent court to issue – with regard to an enforced collection order issued against a partnership – an enforcement clause against a former business partner of that partnership who was no longer a partner at the moment of the institution of proceedings in the case that led to the issuance of the enforced collection order against the said registered partnership, is inconsistent with Article 45(1) and Article 77(2) of the Constitution of the Republic of Poland
Moreover, the Tribunal decides:
Pursuant to Article 59(1)(2) of the Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal (Journal of Laws – Dz. U., item 2072), to discontinue the proceedings as to the remainder.
The ruling was unanimous.
Zbigniew Jędrzejewski
Małgorzata Pyziak-Szafnicka
Stanisław Rymar
Piotr Tuleja
Sławomira Wronkowska-Jaśkiewicz