The new bill amending the Polish code of civil procedure introduces significant changes to procedure for serving court letters. The bill is controversial because it will abolish the so-called "fiction of delivery", involve bailiffs in the process of deliveries and transfer responsibility for the lack of effective service to the plaintiff.
A delivery will be made in principle by a postal operator or court delivery service. If it is impossible to serve writs in a normal way, a letter sent via a postal operator should be deposited with the post office of that operator, placing a notice at the door of the addressee's flat or in a mailbox with an indication of where and when the letter was left, and instructions that the writ should be collected within seven days from the date of the notice. If the writ is not collected within such period, another notice will be provided (the same steps apply). However, if the second notification turns out to be ineffective, the writ will be considered duly served. This is known as the "fiction of delivery".
Planned changes under novelization
The planned bill will transfer the burden of finding the defendant's address to the plaintiff. The new legislation plans to add a new article - 1391, according to which, if the defendant, despite repeated notification in accordance with the procedure described above, does not collect the writ, the court will notify the plaintiff and oblige him to deliver the writ to the defendant through a bailiff. Continuation of court proceedings will depend on the delivery of the claim by a bailiff within one month. Next, the plaintiff must either provide confirmation that the bailiff has succeeded in service of a writ, indicate a new, correct address for the defendant or provide the court with proof that the defendant actually lives at the address indicated in the letter. The plaintiff must complete everything within two months, otherwise the court will stay the proceeding.
Probable effects of the amendments
First, the proposed legal amendment does not provide court bailiffs with additional instruments enabling effective determination of the defendant's address. There is a risk that this will result in delays to pending proceedings, and furthermore, due to the suspension of proceedings, may make it difficult for creditors to effectively pursue claims in civil proceedings.
The aim of this amendment is to streamline proceedings. Yet, these changes have the potential to extend the duration of proceedings, and moreover, will result in a suspension order in more cases than before. Under this amendment, it may be enough to avoid the postal operators or court bailiffs in order to effectively suspend the proceedings.
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