The use of comparative argumentation by the Supreme Court on the example of the Supreme Court judgment of October 3, 2007, IV CSK 160/07

Bibliogr. s. 230-231

The use of comparative arguments by Polish courts is still extremely rare even in the case of the Supreme Court. They can be observed only in the last several years. Perhaps also for this reason, judges do not use this method too skillfully, leaving without justification the selection of specific comparative arguments, their adequacy for comparative purposes of specific institutions or legal systems in the context of adopted decisions. Consequently, the inclusion of comparative arguments in the justification does not always lead to the intended effect, i.e. strengthening of the position expressed in the judgment and/or the authority of the court. Moreover, the doubts rise with the presence in the Supreme Court's justification of its rulings the comparisons to the principles expressed in foreign non-binding model laws (soft law), e.g. to the UNIDROIT or to the PECL Rules. In the case of the judgment of October 3, 2007 (IV CSK 160/07), the Supreme Court indicated only the similarity of, inter alia, the aforementioned Rules, to the provisions of the Civil Code, completely ignoring, at the same time, legal solutions regarding the factoring agreement in the legal systems similar to the Polish ones, like e.g. the French or the German, or even the attainment of the doctrine. The reasons for such an approach to the application of comparative argumentation can only be presumed, e.g. the time-consuming preparation of an in-depth comparative analysis for the purposes of issuing a given judgment, taking into account European or global harmonization tendencies, at least due to the limited time and human resources available to the courts. Therefore, one should not expect the spread of comparative argumentation in Polish courts in general, and in particular that relating to soft law provisions. This is due both to doubts as to the legitimacy or even admissibility of its application in national rulings, as well as potential impact of their use on the legislative actiactivity of judges, which could be questioned by representatives of the legislative authorities.