NEWSLETTER - March 2013 www.wbwlegal.pl

Dear readers

We would like to present you the March issue of WBW newsletter.

First of all, we wish to recommend you the article on the planned amendments of the code of civil procedure regarding enforcement against bank accounts which aims at reducing the possibility of conducting an enforcement proceeding against bank accounts belonging to people who, in fact, are not the debtor named in the enforcement title, which is the basis for conducting a given enforcement procedure.  

Moreover, we have also published an article on the resolution of the Supreme Court on the possibility to make set-offs against remuneration paid out to the employee in case of termination of work contract due to the fault of the employer. Furthermore we would like to draw you attention to the decision of the Supreme Court on classification of work accidents which take place before the employee actually commences his or her work.

We also point out to the issue regarding court fees on a motion to register an entry of perpetual usufruct of land and the ownership title to buildings located on this land.
 
We wish you a pleasant read,

WBW Team


A case of Ms. Danuta of Sochaczew or changes in the rules of enforcement against bank accounts

A draft of the act which aims at eliminating unfortunate mistakes during enforcement against bank accounts has been prepared. In the justification of the draft regulation, the case of “Ms. Danuta of Sochaczew”, who lost her savings accumulated in two deposits because banks transferred her money to the enforcement officer for repayment of debts of a different person who happened to have the same name and surname.

A parliamentary draft amendment of the code of civil procedure is supposed to eliminate situations in which enforcement against bank account assets is directed towards a person who is not the debtor stated on the enforcement title, which is the basis for conducting a given enforcement procedure.  

Under applicable law, in order to conduct an enforcement procedure against bank account assets, the enforcement officer has to send a notification on the attachment of debtor’s bank account funds (including savings account balance) to a branch (or other organizational unit) of a bank. The notification is effective even if the bank account has not been indicated and, unless otherwise stipulations are made, it includes all debtor’s accounts with a given bank. Upon receiving the notification, the bank is obliged to immediately transfer the attached funds to the enforcement officer (or inform about obstacles which prevent the bank from fulfilling the said obligation, such as no existing bank account or no funds on the bank account).   

Under the draft amendment, before the attached funds are transferred to the enforcement officer, the bank will be obliged to immediately inform the bank account holder of the blocked funds and make it possible for him or her to defend himself or herself. The time limit for defense will be three days following the bank’s notification to the account holder.  

The authors of the draft regulation point out that the 3-day time limit short enough to prevent stalling the enforcement procedure and, at the same time, it should be sufficient for a person who is not a debtor to defend themselves. We shall see in practice whether or not this is true. 

Nastazja Lisek, legal advisor trainee


Is compensation for termination of employment contract due to the fault of the employ protected against set-offs?

In principle, employee’s remuneration for work is protected from set-offs. However, for many years there has been a dispute in the legal doctrine as to whether compensation granted under art. 55 § 11, i.e. for infringement of employer’s basic obligations towards the employee, is also protected under the Labour Code, or whether it is permissible to makes set-offs against such an amount.

It is worth mentioning that the employee is granted the said compensation in the amount which is equal to the remuneration for the notice period, and if the employment contract was concluded for a definite period of time or for the time of performing specific work – in the amount which is equal to the remuneration for the period of 2 weeks, upon employee’s declaration on termination of the contract without remuneration, within one month following the day on which the employee found out about the circumstances justifying the termination of the employment contract.

This way, one could come to a conclusion that, since the compensation is granted in the amount which is equal to the remuneration for the notice period, it should also be protected from set-offs under art. 87 of the Labour Code.  

Owing to the disagreement in the legal doctrine, the issue was resolved by the Supreme Court in its resolution of 17 January 2013 issued with regard to the case no.  II PZP 4/12. The Supreme Court pointed out that the said compensation is not subject to protection against set-offs provided for in art. 87 § 1 of the Labour Court for remuneration owing to the fact that the compensation does not constitute any kind of remuneration. According the Supreme Court, employee benefits which are not remuneration can be protected by the Labour Code only if legal provisions expressly state that a given benefit should be treated in the same way as remuneration for work, which is not the case in this instance.

Since this kind of compensation does not enjoy the code-based protection, it is possible to set-off any amounts due against the total amount of compensation.

Dominika Kaszynska, lawyer


Insurance coverage for accidents within the premises of the work establishment, also before the commencement of work

Pursuant to art. 3 section 1 of the act of 30 October 2002 (Journal of Laws of 2009 No. 167, item 1322) on social insurance benefits in employment injuries and occupational diseases, a workplace injury/accident is a sudden event brought about by external factors causing injury or death which is connected with employment and takes place: during or in relation to ordinary/regular tasks performer by the employee or orders of his or her superiors; during or in relation to tasks performer by the employee for the employer, also without a separate order; as well as  with the employee being at the disposal of the employer on the way between the employer’s office and the place where his or her duties resulting from employment relationship are to be performer.

On the other hand, in accordance with art. 57b section 1 of the act of 17 December 1998 on old-age and disability pensions from the Social Insurance Fund (Journal of Laws of 2009, No. 153, item 1227), an accident on the way to or from work is a sudden event caused by external factors which takes place on the way to or from the place where employment or other activity covered by disability insurance is performer, provided that it is the shortest possible way and it has not been interrupted.  

The above-mentioned regulations raise doubts about how we should treat accidents which happen within the premises of the work establishment but before the employee commences his or her work. In the case no. III UZP 6/12, the Supreme Court looked into the question whether insurance coverage pertaining to injuries/accidents which happen within the premises of the work establishment but before the actual work is commenced results from the act on social insurance benefits in employment injuries and occupational diseases or rather from art. 57b section 1 of the act on old-age and disability pensions from the Social Insurance Fund. The court recognized that the insurance coverage under the act on social insurance benefits in employment injuries and occupational diseases also includes events which take place within the premises of the work establishment before the employee starts his or her work.  

This ruling of the Supreme Court increases the employee protection as it gives employees the right to a wider scope of benefits under the act on social insurance benefits in employment injuries and occupational diseases, e.g. sickness payment, rehabilitation benefit or single indemnity.

Katarzyna Bor, legal advisor trainee


Two court fees for entry of perpetual usufruct of land and ownership title to buildings situated on this land in the land and mortgage register

In past judicial decisions of land and mortgage courts, the divergence regarding the collection of court fees on motions to register an entry of perpetual usufruct of land and ownership title to buildings located on the land has occurred. In such situations, some land and mortgage courts would charge separate fees in the amount of PLN 200 for an entry of each of the rights, justifying this measure with the provisions of the act on court fees in civil law cases. On the other hand, some courts would only charge a single fee in the amount of PLN 200, based on the fact that the ownership title to buildings situated on the land let for perpetual does not constitute an independent right, cannot be traded independently and shares the fate of the perpetual usufruct.

The above-mentioned discrepancy has become the basis of the resolution the Supreme Court of 12 December 2012 (case no. III CZP 81/12). In the case resolved by the Supreme Court, the land and mortgage division of the district court received a motion to register an entry in the land and mortgage register regarding the right to perpetual usufruct to land together with the ownership title to the building situated on the said land. The motion was the result of a sales contract between two commercial companies. The court fee paid on the motion for the two rights was a single payment in the amount of PLN 200. The motion was returned as the head of the land and mortgage division of the district court was of the opinion that the court fee should be paid in the amount of PLN 400: PLN 200 for the entry of perpetual usufruct and PLN 200 from the entry of ownership title. The applicant disagreed with this point of view and made an appeal against it. In the course of examining the appeal, owing to the discrepancy in past judicial decisions of land and mortgage courts, the regional court passed the legal query matter to the Supreme Court for examination.

The Supreme Court was of the opinion that two payments of the court fee of PLN 200 should be made on the motion to register an entry in the land and mortgage register of perpetual usufruct and the ownership title to the building situated on the land, one for each right.  The court emphasized that “the specific character of the ownership title to buildings situated on the land let for perpetual usufruct, i.e. the fact that they do not constitute an independent right, cannot be traded independently and share the fate of the perpetual usufruct, does not constitute the grounds for challenging this decision.” It also pointed out that, under the provisions of the act on court fees in civil cases, the fee for making an entry into the land and mortgage register is charged independently of the motion to register an entry of ownership title, perpetual usufruct or limited property right, even if an entry of two or more rights was to be made on the same legal basis. A specific relationship between perpetual usufruct right to land and ownership title to a building situated on the land is irrelevant from the point of view of the above-mentioned act on fees.  

In all probability, the said resolution of the Supreme Court will overcome the divergence occurring in past judicial decisions of land and mortgage courts.

Przemysław Jakubowski, legal advisor trainee



This Newsletter is for general informational purposes only. It is not intended and shall not be treated as professional advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.

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