A cassation judgment of a court of second instance – between the postulate of speed and the principle of two-instance proceedings

Abstract

The issuance of a cassation judgment by the court of second instance pursuant to Art. 386 § 4 of the Code of Civil Procedure is preceded by three types of assessments: as to the legitimacy of the appeal, as to the occurrence of the premises indicated in the provision of Art. 386 § 4 of the Code of Civil Procedure, i.e. failure to recognize the essence of the case or the need to conduct evidence in its entirety and as to the legitimacy of the choice between issuing a cassation judgment or issuing a reform judgment. In jurisprudence, one may encounter statements distinguishing two independent criteria, which should be followed by the court of second instance when deciding on the content of the judgment in the event that the appeal is considered justified. Giving the prevailing importance to the criterion of speed argues in favor of issuing a reformatory judgment, but raises the question of the legitimacy of maintaining the optionality of a cassation judgment. The choice of deciding on the substance also leads to the fact that the substantive examination of the case takes place only once, in the court of second instance, which in turn calls into question the second separate criterion, which is the consideration of the principle of two-instance proceedings. The conducted analysis shows that the priority is given to maintaining the principle of two-instance proceedings: speed should be inferior to providing a party with access to two-instance proceedings, and thus, the threat to maintaining two-instance proceedings should eliminate the option of issuing a reform judgment. This means that in the circumstances provided for in Art. 386 § 4 of the Code of Civil Procedure, appropriate to the full appeal system deciding on the merits of the case is exceptional in practice. However, due to the fact that these circumstances are narrowly and exhaustively delineated, it does not diminish the indicated general rule and it happens infrequently.