Karol Świtaj

Gloss to the resolution of the Polish Supreme Court of October 6, 2022, case file no. III CZP 112/22

The thesis of the voted resolution reads: An in-court decision is a non-existent decision when the signature has been placed only under the entire document comprising the sentence and the principal reasons for the decision (Article 357 § 5 of the Code of Civil Procedure).

The article is an approving gloss to the Supreme Court resolution of October 6, 2022, case file no. III CZP 112/22, which once again analyses the problem of non-existent judgements (sententia non existens). The discussed resolution, although its sentence is a part of the established and grounded line of rulings of the Supreme Court, in its grounds undertakes consideration of a new issue, so far very rarely discussed in the civil procedural law literature and not analyzed in the jurisprudence. In fact, it focuses on the institution of “fundamental reasons for decision” referred to in Article 357 § 5 of the Polish Code of Civil Procedure, and in particular on the impact of the method of its use on the existence of the issued judgment.

In the grounds for the resolution commented upon, it was correctly pointed out that the abovementioned institution constitutes a separate procedural activity from the drafting of the sentence and grounds for the decision. At the same time, it was noticed that it has not been, in fact, precisely regulated, which, on the one hand, may create difficulties in its practical use by courts, and, on the other hand, it does not allow for applying to it per analogiam regulations regarding the drafting of justifications. The above considerations have led the Polish Supreme Court to two important conclusions.

The first point is that if the principal reasons for a judgment are formulated in writing by the court giving the judgment in question as a separate element of the judgment – linguistically and graphically distinct from the sentence – then the signatures of both the sentence and the principal reasons are required. The absence of both of these signatures, as stated in the resolution, results in the judgment not existing (sententia non existens). This conclusion, as rightly pointed out, follows directly from the language of the regulations of the Polish Code of Civil Procedure which regulates both the drafting of judgments and the performance of litigation actions.

The second important conclusion formulated by the Polish Supreme Court in the commented resolution comes from the conclusion that both the provisions regulating the content of the sentence and the provision of Article 357 § 5 of the Polish Code of Civil Procedure, which refers to the ‘principal reasons for the decision’, do not exclude the possibility of both elements forming a compact whole. Therefore, the Court assumed that if the sentence of the judgment is connected, combined with the fundamental reasons for its issuance into a single complete unit, including linguistically and graphically, these actions, as it were, “unite” in such a way that the judge’s signature at the end of such a document does not render it non-existent. The judgment issued in such a way complies with all the requirements set out in the regulations, it is an existing judgment.

The resolution commented upon deserves full approbation. However, a certain dissatisfaction is left by the fact that the essence of the correct considerations of the Polish Supreme Court contained in its justification was not reflected in the operative part of the resolution, as a result of which its influence on the jurisprudence practice may turn out to be insignificant.