Securing an action in court proceedings

Service

The claim was secured in the Polish legal system to protect the rights and interests of the claimant (creditor). This is an extremely advantageous solution, for example due to the fact that the courts are overloaded with workload and a lot of cases to be examined, which in turn is associated with sometimes long waiting for the date of the hearing. During this time, the expected creditor may be exposed to unfavorable effects even if, in the end, after a few years, he wins the dispute.

How to secure a claim?

As a rule, for the court to grant security, the creditor must submit an appropriate application. However, the application for security may be submitted both before the initiation of the proceedings (i.e.before filing a statement of claim) and in the course of pending proceedings against the debtor.

The types of security are exhaustively listed in Art. 747 of the Code of Civil Procedure and in accordance with it, securing pecuniary claims may take place through:

  • attachment of movable property, remuneration for work, receivables from a bank account or other receivables or other property rights;
  • encumbering the obligated property with a compulsory mortgage;
  • prohibiting the sale or encumbrance of real estate that does not have a land and mortgage register or whose land and mortgage register has been lost or destroyed;
  • a ship or a ship under construction is encumbered with a maritime mortgage;
  • the establishment of a ban on the disposal of the cooperative ownership right to the premises;
  • establishment of compulsory administration over an enterprise or a farm of the obligated person or an establishment forming part of the enterprise or part thereof, or a part of the farm of the obligated person.

The above-mentioned application for securing an action does not have to be submitted in the form of a separate letter (although, of course, it can), but the creditor may also include such an application in the statement of claim, using the wording "I am asking for ...". Such an application is of course payable, and the fee is PLN 100 if it is submitted prior to the commencement of the proceedings. In a situation where we submit an application in the course of the proceedings, we do not have to pay a fee.

Formal elements of the application for securing the claim

  1. The application must meet all formal requirements for submitting each pleading, that is: designation of the parties, designation of the court, indication of the type of document, signature and date, and attachments,

  2. The content of the application must obligatorily include circumstances making the claim legitimate, i.e. all circumstances indicating the actual existence of the claim (bills, invoices),

  3. Including in the application substantiation of the existence of the creditor's legal interest in granting security. In other words, it must be shown that the lack of security will prevent or significantly hinder the execution of the judgment (e.g. if the creditor knows that the debtor has already started selling his property),

  4. The method of security should also be indicated (in the case of pecuniary claims - the sum of the security).

Moreover, if the creditor submits such an application before the commencement of the proceedings, he should briefly present the subject matter of the case.

Benefits of securing a claim

  • protection of the claims claimed before the enforcement proceedings have even started. Sometimes it may even induce the debtor to fulfill the obligations spontaneously.

  • this institution turns out to be extremely important in the case of dishonest debtors who try to get rid of all assets during the proceedings

  • The procedure for granting security also has such an advantage that the debtor has no idea about its duration and course (he is not informed), and thus an unaware debtor will probably not take any steps to hide the property.