Marek Szymanowski

Depriving a party of the right of defense may also provide grounds for reopening of legally finished proceedings. The court of second instance can take the invalidity of proceedings within the scope of the appeal even ex officio, and thus regardless of the pleas of the parties. It is not possible to create a register of factual situations in which a party was deprived of the right of defense because a completely new situation leading to the nullity may always arise. A broad register of possibilities causing the deprivation of the right of defense causes the fact that the charge of nullity on this ground is often raised in appeals, which is also reflected in the rich jurisprudence of the Polish Supreme Court on this issue. This article is an attempt to review, analyze and summarize important decisions of that Court referring to nullity of proceedings due to depriving a party of the right of defense.

The article focuses on the regulation of the article 8(2a) of the social insurance system of October 13, 1998, which is one of the most controversial provisions in the social insurance law. Under this provision a person who performs work under a civil law contract is also regarded as an employee if that person has concluded such a contract with an employer with whom he has an employment relationship or if under such a contract he performs work for an employer with whom he has an employment relationship. It has been accepted in the judicature that the effect of this regulation is that the employer is also the social security contributor on the employee’s income earned on the basis of the civil law contract concluded with a third party. The doctrine opposes this approach, recognizing the entity employing the employee under the civil law contract as the contributor in this situation. The difference between the doctrine and judicature is also observed in the understanding of the performance of work for the employer. In author of the article supports the stance of judicature which, in fact, protects the rights of an employee (an insured party); however, the author also recognizes and evaluates the opposing arguments raised by doctrine.