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The
foreign judgment depending on its nature shall be a subject to different
procedures with a view to its enforcement in Poland. In simple terms those
judgments in general could be divided into three groups: property related,
being a subject to execution by enforcement proceedings, non-property related
(e.g., divorce and other judgments in family affairs ) and inheritance.
The enforceability requirement for judgements issued in
civil matters, by the foreign courts and classified as non-eforceable for
judicial consideration in Poland, is to
be recognised by a Polish court.
Any person concerned can put forward a motion for
recognition of the foreign Court's judgment. Such application should be
accompanied by official copy of the judgment, its certified translation and a
confirmation that judgment is binding.. In case od a default judgement, a
confirmation that defendant was duly informed has to be submitted .
Such a recognition is not required for binding judgments
of a foreign court in the case of the foreign citizens, issued by the Court
having jurisdiction according to their native law, unless such decision is to constitute a legal base for solemnization of marriage or
making entry in Registrar of Civil Status, Real Estate Register or any other
register in Poland.
For the recognition of a judgment being subject to
reciprocity the following conditions, set out in the article 1145 of the Code
of Civil Procedure, are to be met jointly. :
·
the judgment has to considered as binding in the
State, in which it was issued,
·
the case is not a subject of the exclusive jurisdiction of the Polish
courts or the courts of a third country in accordance with the Polish law or an
international agreement,
·
the party has not been deprived of the possibility of
defence or due representation in case of lack of capacity to act in court
proceedings,
·
the case has not been already tried in a Polish Court
or it was not initiated in a the Polish Court, called for its settlement, before the decision of a
foreign court was deemed binding.
·
the judgment is not at variance with the fundamental
principles of the legal order of the Republic of Poland,
·
in cases where Polish law was applicable for the
release of judgment, this law has been applied, unless the foreign law applied in
the case does not differ substantially from the
Polish law.
In case the conditions of section 4, 6 and the
condition of reciprocity are not required to be applied if the decision of the
foreign Court confirms the right to inherit a property located in this foreign
country by the person living in Poland, in accordance with the legislation of
this State concerning jurisdiction of a court and the law of this State.
Compliance with the reciprocity condition is also not
required in cases being under the exclusive jurisdiction of the country of
origin, according to the Polish law.
The above named six conditions do not apply for the recognition of the foreign
court judgments deemed as binding in non-property matters
of the foreign citizens issued by a Court of competent jurisdiction according
to their native law. Such judgment can
only be rejected in case where it is at variance with the fundamental
principles of the legal order of the Republic of Poland.
The foreign judgement recognition is being decided by
the District Court having jurisdiction over the case or by the Court in whose
district the local court having jurisdiction over the case is located, at the
hearing with the participation of a Prosecutor. If there is no such a Court,
the Court of City of Warsaw is considered as competent one. The decision on recognition of
a foreign court judgement can be subject of appeal; the decision of the Court
of Appeal can be subject of cassation appeal. It is possible to resume the
proceedings that ended with a binding judgment.
The binding judgments of the Polish court that
recognize foreign sentences of divorce or annulment of marriage or
non-existence of marriage are subject to Polish regulations concerning
inadmissibility of action for renewal and inadmissibility of action for
deadline reinstatement for appeal. Both these actions, for renewal and the
deadline reinstatement are inadmissible if at least one party has concluded a
new marriage after the judgment was
declared binding
An application for the foreign judgment recognition
must be signed by the applicant or by established legal representative, who
conducts law practice in Poland and is not a barrister. The application should
include:
1. general information:
·
name, surname and address of the applicant,
·
name, surname and address of the established legal
representative for the purpose of a case related correspondence,
·
name, surname and permanent address of the participant
in the proceedings,
-If the current address is unknown one must provide
the last known address or submit an official certificate from the last place of
residence, confirming that the address is not known,
·
the date and place of marriage (if the marriage was
concluded abroad) in cases of recognition of the judgment of divorce
·
nationality of the spouses at the date of filing the
petition for divorce and nationality at the present moment,
·
justification of the recognition of judgment request
unless an applicant is a Polish citizen
(the purpose for which applicant needs the recognition of the judgment),
·
the Court name and the file reference number of the
divorce case if the divorce case was considered in Poland
1. the judgment
of divorce in original language with the confirmation that it entered into
force + 4 photocopies of this judgment,
2. Polish translation of the judgment made by
sworn translator in Poland + 4
photocopies of the translation (if the translation was made abroad, one copy of
translation should be verified by the Consulate of the Republic of Poland)
3. Copy
of the Marriage Certificate from the Civil Status Registration Office - if marriage
was concluded in Poland or was registered in our Registry.
4. Copy of the Birth Record of a child in case of
recognition of the adoption judgements.
5. It is reasonable if the participant in the
proceedings will attach the statement accepting the application's content and
establishing a legal representative for the purpose of correspondence in
Poland, who may be a foreigner; this will allow to avoid time-consuming service
of correspondence for participant abroad and its costly translations. The
statement must be signed by the participant and the signature is to be
certified by notary or at the Consulate.
Recognition of judgments
relating to divorce, legal separation or marriage annulment issued by a court
in a foreign country, the member of European Union
These judgments in accordance with the article 1145 of the Code of Civil
Procedure shall be subject to recognition by law and are recognised in
administrative proceedings by Civil Status Registration Office.
The application for the recognition of the judgment shall be accompanied
by:
- the original of the foreign judgment complete with decree nisi
absolute.
- the certificate referred to in the art. 39 of the Council
Regulation (EC) No 2201/2003,
·
the original of the official translation of the above
named documents made by a sworn translator or by the consul in the case the
person residing outside Poland.
The Civil Status Registration Office shall make the
relevant additional note to the Marriage Certificate on the basis of the
foreign judgment.
1. Judgement in the cases declared in the EU States
(except Denmark) determined in the proceedings instituted and legally ended
after the 1 of May, 2004 shall be
subject to the recognition and execution on the basis of Council Regulation
(EC) No 2201/2003 of 27 November 2003.
2. in case the Court pronouncement of the EU Member
States was determined in the absence of defendant, the applicant shall submit:
a) the original or certified copy of the document
confirming that document instituting the proceedings or its equivalent (court sermon) was served on
the party that did not appear in court;
or
b) the document indicating that the respondent clearly
agrees with the judgment.
In the absence of these documents, the court having
jurisdiction over the case shall be the District Court at the place of
residence.
Please note that Denmark, is the only country of the
European Union that has not ratified the Regulation.
In the case of an application for the recognition of
the decision of the foreign state Court outside European Union the following
documents are required on the basis of the provisions of the Code of Civil
Procedure,
·
APOSTILLED judgment in original
·
a document confirming that the judgmentis binding ,
unless this fact appears from the judgement contents,
·
the original of official translations of the above named
documents made by the Polish consul or by sworn translator in Poland,
·
application for judgment recognition
The registration of the judgment shall be effected by
making a note in the Civil Status Record, for example of divorce, separation,
denial or establishing of paternity. The adding of this note on the basis of
the foreign judgment may occur only if the judgment is recognised in Poland.
A foreign judgment may be recognised under the law:
·
on the basis of Council Regulation (EC) No 2201/2003
of 27 November 2003 concerning the jurisdiction, recognition and enforcement of
the judgments on matrimonial matters as well as matters of parental
responsibility, related to judgments on civil matters of divorce, legal
separation and marriage annulment issued in European Union countries except
Denmark, issued in proceedings initiated after the 1 of May 2004 (see
information card: Registration of divorce pronounced in European Union),
·
on the basis of the provisions of the
Code of Civil Procedure, related to the judgments in civil matters from all the
countries (except the judgments referred to above and the judgments subject to
recognition on the basis of bilateral agreements concluded by Poland), issued on July 1, 2009 or later,
·
on the basis of bilateral agreements
concluded by Poland.
In cases
the party of the proceedings casts any doubts on the authenticity of the
document, the document shall be verified by the Polish consul.
Any interested person may apply to the Court to
establish whether the judgment of the foreign State Court can be recognised or
not. The application shall be considered by the local District Court having
jurisdiction over the case on recognition of the sentence of the foreign State
Court, or by the Court in which district the competent jurisdiction District
Court is located, otherwise - the District Court in Warsaw.
In relation to the judgments subject to
recognition on the basis of the Code of Civil Procedure issued prior to the 1
of July 2009, then-effective provisions of the Code shall be applied, which
means that their effectiveness of law in Poland depends on the outcome of legal
proceedings for the recognition of the judgment, instituted on the request of
the person concerned. To make a note in a Civil Status Record on the base of
such a judgment, it is necessary to submit both, a foreign judgment, and binding
decision recognising this judgment of the Polish District Court.
The judgments issued by the foreign countries courts in civil cases, enforceable in enforcement proceedings,
become enforceable titles after their recognition by the Polish court.
Enforceability shall be confirmed if the judgment is enforceable in the State
of origin, and there are no obstacles referred to in article 1146 § of the Code
of Civil Procedure (see above).
Enforceability shall be confirmed on the request of
the creditor by adding the enforcement clause to the judgment of the foreign
state Court.
The enforcement clause to the judgment can be given by
the District Court at the place of residence or the head office of the debtor,
otherwise by a District Court in whose District the execution is to be carried out.
The
debtor is entitled to present his opinion within two weeks from the date of
serving of the application copy. The Court considers the application in the
proceedings in camera.
The
decision on giving of the enforcement clause can be subject of appeal, the
decision of the Court of Appeal can be subject of cassation appeal; one can
also apply for resumption of the proceedings in the case of enforcement clause
that ended with a binding judgment, as well as to apply for finding of
non-compliance with the law of the binding sentence issued in this case.
Execution
on the basis of the foreign court decision can be initiated after the judgment
on giving the enforceability clause has entered into force. Until the appeal
period for filing a complaint against the judgment of a District Court on
giving the enforceability clause is expired - this judgment serves as an
interlocutory injunction until it is considered by the Court of Appeal. The
type of interlocutory injunction is specified by creditor in his injunction
motion. As a condition of interlocutory injunction the District Court is
entitled to force a creditor to post a bond. The debtor has a priority for
payment from the bond posted by the creditor before all other creditors of the
creditor.
The settlement agreements on civil matters concluded by
the courts and other authorities of the
foreign countries or approved by these institutions become enforceable titles after their enforceability
is confirmed, if they are enforceable in the country of origin and if they are
not at variance with the fundamental principles of the legal order of the
Republic of Poland.
However
the above provisions are not applicable to the enforceability of judgments of
the Member States of European Union, the settlement agreements concluded in
such courts or approved by suchcourts as well as to official documents drawn up
in those countries, bearing the European execution order.
The judgments of the Member States Courts of the
European Union, a settlement agreements concluded in such courts or approved by such courts as well as the official documents drawn
up in the Member States of the European Union and provided with the execution
order in those countries constitute the
enforceable titles and are subject to execution
in Poland after the enforceability clause is given. The enforceability
clause is being given by debtor's District Court of general jurisdiction,
otherwise - by the District Court in whose district the execution is to be initiated.
Also European payment orders issued by the courts of
the Member States of the European Union, whose enforcement has been established
in those countries on the basis of the separate regulations, constitute the
enforceable titles and shall be executed in the Republic of Poland after the
enforceability clause is given.
The judgments of the courts of the European Union
Member States issued in the European small claims procedure and provided by
execution order in those states on the basis of the separate provisions also
constitute the enforceable titles and shall be executed in the Republic of
Poland after the enforceability clause is given.
The procedure differs
in the case of inheritance
matters. The national jurisdiction is applicable if the testator was a Polish
citizen at the time of his death, or had a place of residence or habitual
residence in the Republic of Poland. The national jurisdiction is also
applicable in inheritance matters if inheritable property or the substantial
part of thereof is located in the Republic of Poland.
The above stated means that recognition of a foreign
judgment in succession related case it is not possible, the inheritable case
should be initiated from the very beginning in Poland and the Polish Court has
to issue the inheritable judgment.
