: Ms maŁgorzata wiliŃska electronic contracting proceeding in poland (2010)



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09-08-2009, 01:55 AM
MS MAŁGORZATA WILIŃSKA
ELECTRONIC CONTRACTING PROCEEDING IN POLAND (2010)
(http://faculty.ksu.edu.sa/shaimaaatalla/)
1. Introduction.
The hereinafter paper discusses the usage of modern IT in the process of administering law. The aim of this work is to present the designed changes in Polish civil procedure in the scope of contracting procedure. The usage of modern technologies in the area of jurisdiction will have a positive influence on the functioning of justice administration.

2. The advantages of using modern IT in a civil proceeding

The implementation of e-procedure will not only have an effect on the acceleration of civil procedure but will also unburden courts by unburdening judges, who will be able to pay closer attention to more complicated issues. The introduction of e-contracting procedure cannot limit the guaranteed right of the parties to the court[1]. What is more, it will considerably reduce the costs of functioning of courts, as well as the costs of suing for claims by the parties. Moreover, the automatization of civil actions will facilitate and simplify the exchange of documents between courts and the delivery of procedural letters. The unquestionable advantage resulting from the application of IT is the facilitating access to the court thanks to the possibility of submitting all the documents by the internet.

3. Implementation
The first proceeding in which modern IT may be applied is the contracting proceeding that results in issuing the order of payment. E-court will be establish as a civil department of a regional court, which will investigate the case in a separated proceeding.
The legal grounds for establishment the e-court is article 19 of the act of 27th July 2001 (the Journal of Laws No. 98 pos. 1070 with amendments) in which the Minister of Justice by means of order will appoint an e-court as one civil department of a regional court established for the needs of the contracting proceeding which will also examine economic cases and departments of court of appeal for the needs of settling complaints lodged by the defendant.
In spite of the automatization of this process, court referees will constantly participate in it. What is more, the complaints made against their decisions will be examined by appeal departments of the e-court.
The e-court will not assign the case. In case of a need to take evidence during the trial, there will be a possibility to seek help in the court appointed in accordance with article 235 of CCP.

4. The structure
In order to submit a suit, one should use a legible form published in the Internet. This will help in entering data that, in turn, will be saved on the courts server. As a result of it, data will be automatically transferred to the electronic courts register. The project of the order of payment will be automatically generated on the basis of information included in the suit, however, it should be accepted by the courts referee who will record it to the electronic records of the case. In the face of the e-court, an auxiliary unit of a call center will be appointed, which will provide technical service while using the system, with an exclusion of the possibility to give legal advice by this unit. In order to identify the users, a four-step mechanism will be implemented. The plaintiffs login will be his/her Personal Identification Number the unique symbol which unequivocally identifies the natural person. The defendants achieve a confidential private code, delivered together with an order of payment. In case of professional plenipotentiaries and users in courts different than the e-court, a password needed to log will be allotted by the administrator on application, with the possibility to change it in the system. Personal Identification Number will be the login. The strictest requirements concerning identification will be put on the users inside the e-court, as well as on bailiffs. As far as this group is concerned, it will be essential to use additional mechanisms of identification.
The usage of Personal Identification Number provides broader confidentiality of the identification process than the solution in which the persons user name would be his/her first name and surname. Moreover, it makes it possible to cross-identify data in the courts system thanks to the cooperation of the main systems of the country. In the e-contracting proceeding, the plaintiffs who are not natural persons, could submit suits and other procedural letters only by hand of a plenipotentiary, e.g. their lawyer. The forms of procedural letters will be constructed in such a way that the possibility of procedural deficiencies will be limited to a minimum. What is more, there will be a possibility to summon the person to complete formal deficiencies, if they occur. Such a summon will be delivered to the plaintiff, as well as the defendant (if he/she will choose the electronic mode of communicating with the court) by the internet through revealing it in electronic records. The network itself will count the amount of court fee. The form of the suit will be the most important form of the procedural letter. There will be two possibilities of lodging a suit: 1) using an on-line mode 2) using an off-line mode. In the e-contracting procedure, the evidence will not be taken, as it would lessen the functionality of the system by its overloading.
The plaintiff will be the holder of the substantial verification of the claim, as he/she will be able to raise an objection to the order of payment by clicking one of the blanks in the form on the internet or using a traditional way. Apart from that, the issuing of the order of payment will take place, as it is today, under condition that there will be no negative premise from art. 499 (2) of the CCP, i.e. the lack of any doubts concerning the mentioned circumstances.
In order to avoid taking inconsiderate actions by the plaintiff, he/she will be informed that the system stores the addresses of the final facilities, from which the suits are lodged, as well as the wording of art. 272 of the Penal Code (who wheedles certification of untruth by deceitful misleading the public officer or any person entitled to issue the document, is subjected to the penalty of deprivation of liberty for up to 3 years).
The costs of the proceeding will be fixed in such a way that it will encourage people to use e-contracting procedure. Settling the payment will be the element of the technical procedure of lodging a suit, i.e. it will condition its efficacy. Since the possibility of lodging a suit will depend on the settlement of payment, the risk of fictional suits will be reduced. Thus, the observance of provisions concerning the exemption from court fees and appointing a lawyer ex officio will be excluded, as the plaintiff will have the alternative of traditional proceeding, in which these provisions will be still applied.
Courts records in the e-court will be only in an electronic form, which will result from the fact that the suit will be lodged electronically and then saved on the courts server. The delivery of the letters to the plaintiff will take place through their revealing in available on-line records of the case. The order of payment will be delivered to the plaintiff in the same way, after its implementation and granting an executory formula ex officio. The defendant will receive the order of payment by a traditional way. It should be underlined, that the defendant will be able to choose a traditional way of communicating with the e-court. The order of payment will include the instruction in this matter.
In this recent solution, in accordance with art. 503 sec. 1 sent. 1 of CCP, the defendant should indicate in the objection to the order of payment whether he/she appeals against the order partially or as a whole, present charges which under the clause of their loss have to be reported before the dispute is intervened. The defendant should also present all further charges against the demand of the suit and all the factual circumstances and evidence to confirm them. In the e-contracting proceeding, the objection will be reduced only to a statement and this will result in the loss of power by the order of payment. When the defendant does not submit objection, then the order of payment will be implemented and the plaintiff ex officio will receive an executor document with a writ of execution. The plaintiffs main advantage stemming from the e-procedure results in the fact that the efficient lodging a suit to the e-court will interrupt the period of prescription. Whereas, the court will benefit from the fact that the costs of the proceeding are much lower in comparison with the traditional proceeding.
The e-contracting proceeding, the executor document with a writ of execution is delivered to the plaintiff only via internet. The plaintiff will have the possibility to print the order of payment and the executor document, both marked with a public code, which will make it possible to familiarize with the content of the original from any computer with an access to the internet. That in turn, will make simple the verification of authenticity of a paper copy made in this way. The plaintiff will have the possibility to submit by hand of e-court system a motion for levying the execution of a judgment on a separate on-line form, in which he/she will indicate the appropriate bailiff. The e-court will not investigate the competence of the bailiff but while the motion will be submitted the system will only generate an automatic notification sent to the earlier defined e-mail address of the bailiff. The link to the records of a particular case in the e-court will be enclosed in the sent e-mail. After having clicked a link for authorization of access, the bailiff will have to log in the system. The bailiff will be the appropriate body in the matters concerning the charge for the motion for levying the execution of a judgment and he will be the one to verify whether the payment has already been settled. The motion for levying the execution of a judgment will not be sent to the bailiff, but will be directly placed in the records of a particular case. During the first execution activity, the bailiff will present an electronic printout of the executor document with a writ of execution to the debtor. This printout will include an identification number needed to verify its authenticity.
After having finished the proceeding the bailiff will insert to the cases records an annotation similar to the one which is presently placed in a traditional executor document with a writ of execution (concerning the enforcement of payments, ineffectiveness of execution).

5. Summary
E-contracting procedure in Poland will be activated at the latest in 2010. It should be indicated that the present contracting procedure mainly concerns those who are in arrears with payments for electricity or telephone. Power or telecommunications companies call on such persons to settle the payments, and if such does not occur, they send a suit to the court, which usually ends in courts order of payment. The objections, according to the Ministry of Justice, are raised only in approximately 10 percent of such cases. As the introduction of e-contracting procedure will unburden courts, it will have a positive influence on the whole justice administration.



[1] Art. 77, 2 act of the Constitution of the Republic of Poland