Expiration of seizure in form of a compulsory mortgage pursuant to Article 754 par. 1 Civil Code Procedure act of 17 November 1964

Bibliogr. s. 55-57

History of Article 7541 par. 1 of the Polish Code of Civil Procedure (further: PCCP) perfectly illustrates where literal interpretation in private law leads to. According to this provision (in the wording in force before 9 June 2018) - as a general rule - security (in form of a compulsory mortgage) granted by a court in accordance with the provisions of Title II on Securing Pecuniary Claims (of Part Two of PCCP) expired in the period specified in this provision irrespective of any action taken by an entitled person (a creditor/a plaintiff), even if he filed a motion to initiate enforcement proceedings (concerning the subject of the security). Failure to refer to a functional, systemic and historical method of interpretation led the courts - applying the provision in question - to interpret it contrary to the Polish Constitution. Although from the beginning the provision could have been interpreted consistently with the Polish Constitution, the intervention of the Constitutional Tribunal was indispensable due to its false interpretation by the courts. Since 25 October 2016 (i.e. since the day when the Constitutional Tribunal issued its ruling - already then the provision has lost the presumption of its constitutionality - regardless of its unlawfully delayed publication), courts should have interpreted Article 7541 par. 1 PCCP (in the wording in force before 9 June 2018) in this way, that a security of a claim (compulsory mortgage) expired only when an entitled person did not initiate the enforcement proceedings within the period specified in this provision. Article 7541 par. 1 PCCP was eventually amended and since 9 June 2018 it expresses explicitly that the action of a creditor in due period of time is refraining the security to expire. Nevertheless, the Tribunal's ruling is still relevant from the perspective of the period before 9 June 2018. If the court were to determine the expiration of security between 25 October 2016 and 8 June 2018, it should apply - due to the intertemporal provision - Article 7541 par. 1 PCCP in the wording which was in force in that period of time, so in the wording reflecting the Constitutional Tribunal's judgment of 25 October 2016. Therefore, this judgment has still an interpretive character in this respect (even though the legislator has eventually amended the provisions consistently with the Constitution).