Constitutional Court Judgement of 03/15/2011 (P 7 / 09) , by refusing an official document is at the bank documents to the argument - obviously, as to the scope - and as dangerous to the binding force - doubtful.
first Thesis.
Judgement refers to the Article. 95 of the Banking Law [1]. The verdict says that contrary to the Constitution of the Republic is an understanding of this provision, which gives the bank the documents of an official legal document in all civil matters, not only with the application for entry of a mortgage. And both the linguistic rules, systematic, and functional interpretation of the provisions indicate that that Article. 95 concerns only the use of documents to establish a mortgage bank.
linguistic interpretation indicates that:
a) paragraph. A power of the instrument is said to be in the same sentence with entries to the land register, the two parts of speech that combines the conjunction "and" pointing to the inextricable connection of both parts,
b) paragraph. According to paragraph 3. 1 is expanded to clarify that the bank documents can be used to take out a mortgage on the property of the debtor or the debtor's personal bank rem (the person establishing a mortgage, not to secure its debt),
c) paragraph. 4 shows that the creation of a mortgage after it is a declaration of intent by the property owner.
interpretation system indicates that giving the characteristics of "urzędowości" bank documents in all civil proceedings is in contradiction with the other institutions of civil law.
Article. 485 § 1 of the CPC. given, so that the grounds for issuing the payment order in the writ proceedings, among others official document at the same time in the Article. 485 § 3 of the CPC. additionally provided an injunction on the basis of a bank document, Article. 485 § 3 of the CPC. coincide in this respect to Article. 485 § 1 of the CPC. (And would be redundant) if it were assumed that the bank document is in all civil proceedings be treated as an official document.
functional interpretation indicates that the reduction in the rigors of formal judicial proceedings for the protection of individual rights, after all, can only be with her consent and to the extent of its legitimate interest. Limit such approval and to include such interest in the unit include constitutional principles: equality before the law (Art. 32. 1 sentence. 1), and a fair trial (Article 45 paragraph. 1) and codes of the principle of equality between the parties over civil matters (Article 1 Kc.).
only the literal interpretation of Article. 95 paragraph. 1 in conjunction. Article. Paragraph 95. 3 and 4 of the Banking Law gives the result consistent with the above. interpretation: the bank can contribute to uncontrolled by anyone own statement only in the proceedings for the establishment of a mortgage, when it obtained the consent of his client, who has an interest in the conclusion and implementation of banking agreements, secured by a mortgage.
Treatment bank document as an official document of the process, which involves (art. 244 § 1 CCP.) Shifting the burden of proof to the bank's customer commitment is not incompatible with the above. constitutional principles and kodeksowymi. Since Roman times it is known that much harder to prove that something does not exist, than that something is. Therefore, the fundamental principle of civil law is "ei qui dicit incumbit probatio qui non neg [2]."
wording so obvious appeal by the Court of argument becomes clear only after taking into account the divergent assessments of the literature and case law, or, more broadly - practice law.
second Scope.
extent to which the challenged Article. 95 of the Banking Law will remain in the legal system is not clear. It is the categorical conclusions, of course, wait until the publication of reasons. However, cases in which banks use extracts from the books of banks and official documents, are ongoing and certainly will not be suspended pending the publication of reasons.
Questions about the scope of this appeal are two:
a) whether the conventional bank mortgage is possible without any form of deed?
b) whether the unconstitutionality of "urzędowości" bank document also applies to contracts with the banks' customers-entrepreneurs?
ad.a)
the one hand, the legal question underlying the appeal involved a bank document in civil proceedings (and the procedure for registration of a mortgage is a civil proceeding).
On the other hand:
- asked the district court question to the Court in court proceedings concerning a dispute with a client such as bank the existence of liabilities,
- press release of the Court indicates that the themes relate solely to settle the bank's lawsuit against the client.
Grounds concern the process, so sentence should not affect the possibility of establishing a mortgage without a notary. The Court did not rule means that Article. 95 is unconstitutional in that it provides a bank document as a basis for the establishment of a mortgage.
ad.b)
While the first question relates to important practical issues but limited to a single issue, the second relates to the whole system of civil law.
Judgement of the Court is limited to cases against the banks of one group of customers - consumers. Themes include a universal settlement, the constitutional principle: rule of law, principles of social justice a reality and equality. But the refusal to review the provision for violations of the freedom of establishment (Article 20 of the Constitution) gives rise to arguments about the inapplicability of the bank's appeal to contracts with the client-entrepreneur.
trend in opposition to putting regulations on consumer and professional unity breaks legal system. It causes such as the need for duplication of decisions in the field of standards-General: Constitutional and Codex.
must therefore accept that this sentence, based on the principles of universal, after all, are equally applicable to the processes carried out by the banks against traders.
third Binding force.
Only after hearing the appeal with full reasons will tell you the exact interpretation of Article. 95 of the Banking Law is inconsistent with the Constitution. Some, however, that even after the publication of reasons will not stop doubts about the so-called. "Interpretative" judgments of the Court, whose power is sometimes questioned by the Supreme Court (eg, in a resolution (7) Supreme Court of 17.12.2009, III PZP 2 / 09).
Mariusz Korpalski
counsel
[1] "Article 95
first books of account bank and drawn on the basis of statements and other statements signed by persons authorized to make statements regarding the rights and obligations assets of banks and stamped by the bank, as well as written in this way, the deposit slip claims have legal force of official documents in relation the rights and obligations arising from banking operations and provided to the bank's security and may give rise to make entries in the registers.
second The act or the act protecting bank debt of the bank found a document referred to in paragraph. 1 is a date after the date of this document.
third The documents referred to in paragraph. 1, are the basis for the entry of a mortgage in the Land Register which is property owned by the debtor bank or other person establishing mortgage to the bank to secure debtor bank. If the property does not have a land register, a security may be effected by the deposit of these documents to a set of documents.
4th Take out a mortgage referred to in paragraph. 3, is required to submit a property owner statement on establishing a mortgage to the bank in a written form to be valid.
5th Paragraphs. 1-4 shall apply mutatis mutandis to the disclosure of changes in the land register of mortgages and transfer the contents of a mortgage in connection with the sale of receivables of banking and mortgage on an entry lease, cooperative property ownership and mortgage debt [Unmark. MK] '.
[2] On the evidence of pregnancy, who says, not the one who denies.
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