Pursuant to Article 498 kc defining the deduction of claims erstwhile 2 persons are both debtors and creditors at the same time, each of them may deduct its claim from that of the another organization if the subject substance of both claims is money or the same quality marked only as regards the species and both claims are due and may be brought before a court or another state body.
As a consequence of the deduction, the 2 claims shall be released to each another up to the amount of the lower claim.
The provisions on payment shall apply mutatis mutandis to the deduction.
Purpose of the charge of deduction in civilian proceedings
The charge of deduction shall be directed at demonstrating only the unfounded nature of the claimant’s claim. This follows that the defendant, citing the deduction of claims as an act of material law, claims that the claimant's claim does not be due to the fact that it has been remitted.
Consequently, the assessment of the merits of the action is the consequence of an assessment of the merits of the charge of deduction. For this reason, the court must find whether a claim submitted by the suspect for a charge exists and is justified, but does not do so to regulation on this claim by judicial decision, but only to measure the merits of the claimant’s claim in the action. Only this claim is so the subject of the court's ruling (yes: resolution of the ultimate civilian Chamber of 4 August 2005, ref. III CZP 53/05).
Legal nature of the charge of deduction — impact of the charge of deduction on another proceedings
In accordance with the prevailing case law of the ultimate Court, the charge of deduction is simply a means of defence of the suspect in the trial and is not a form of claim by the defendant. In particular, its enforcement does not have the same effect as an action for action, including counterclaims (such as judgments of the ultimate Court of 6 September 1983, IV CR 260/83, OSNCP 1984, No 4, item 59, of 11 September 1987, I CR 184/87, non-publ., ultimate Court Resolution of 20 November 1987, III CZP 69/87, OSNCP 1989, No 4, item 64 and ultimate Court judgments of 27 February 2004, V CK 190/03, BSN 2004, No 7, p. 10 and of 7 May 2004, I CK 666/03, OSNC 2005, No 5, item 86).
Since the charge of deduction is simply a defence measurement of the defendant, it cannot mean that, in the course of a single procedure, the court shall examine 2 cases. In the event of an alleged set-off, the subject substance of the case is inactive solely a claim made in the action.
The consequence of this is the view that the charge of deduction can be raised in civilian proceedings and dealt with by the court erstwhile the claim submitted for the charge could be recognised in civilian proceedings. It is besides considered that the application of the charge of deduction does not give emergence to any suspension of the claim submitted for recovery, and that the seriousness of the facts of the judgement given in the proceedings in which the charge of deduction was raised does not include an assessment of the merits of the charge of deduction, i.e. the existence or non-existence of the alleged claim (judgment of 6 September 1983, IV CR 260/83, ).
Form of deduction
Pursuant to Article 499 k.c., the deduction shall be made by a declaration made to the another party. The message shall have retroactive effect from the minute erstwhile the deduction of claims became possible.
Indemnification charge made by the party’s lawyer in the trial
The effectiveness of the deduction in material terms should besides be seen through the prism of whether it was made by a individual entitled to represent the deducting creditor, and whether it was lodged with the creditor of the debt deducted with the effect laid down in the first conviction of Article 61(1) (the rule that the declaration of will to be made to another individual is made as shortly as it has been made in specified a way that it could read it).
On that basis, the question arises of the effectiveness of the charge of recovery, where the message of the charge of stay has been made by the procedural typical of the party, and the content of the power of lawyer does not give emergence to his power to execute material acts on his behalf, and as is known to be the statutory scope of the appointment of the procedural deputy associate of specified civilian proceedings (Article 91).
The judicature considers that the scope of the power of lawyer besides includes the submission on behalf of the power of lawyer of a message of deduction, if necessary, aimed at winning the trial (yes: judgments of the ultimate Court of 20 October 2004, I CK 204/04, OSNC 2005, No 10, item 176 and 4 February 2004, I CK 181/03).
However, the explicit wording of Article 91 of the Public Procurement Law indicates that the appointment of a procedural typical does not cover the acceptance on behalf of the powerholder of material statements made in the course of civilian proceedings by the applicant. However, as the ultimate Court stated, the interior ratio of the power of lawyer mostly excludes the failure to inform the power of lawyer of the course of the process, including the content applicable to the conduct of the procedural documents. specified a situation may supply an appropriate basis for accepting that the message of the charge made to the procedural typical of the another organization could have been made to the power of lawyer in specified a way that he could have heard its content (yes: ultimate Court judgement of 13 January 2016 II CSK 862/14, OSNC-ZD 2017, No 1, item 8).
The charge of deduction where the claim covered by the action and the claim under the charge of deduction fall within the different types of procedural procedure
In principle, the legislator did not impose general restrictions on the admissibility of raising the charge of set-off where the claim covered by the action and the claims under the charge of set-off fall within the different types of procedural procedure. There is no general regulation that in a case which is subject to examination in the “ordinary” proceedings, only charges of deduction which include claims which are also—if they were brought under a lawsuit—may be found in the proceedings.
In this respect, there is simply a crucial difference between raising the charge of deduction and even making a counterclaim. The condition for the admissibility of a counterclaim is that the counterclaim should belong not only to the procedural procedure but besides to the same kind of procedural procedure (see Article 201(1) and (2) in conjunction with Article 204(3)). This position is adopted in the case-law (cf. ultimate Court ruling of 13 November 1951, C 1465/52, “New Law” 1953, No. 5, p. 79), as well as in doctrine. specified a general presumption cannot be accepted in relation to the charge of deduction.
It should besides be pointed out that there are no rules applicable in the proceedings ,,ordinary’ exclusion of the admissibility of the court’s uncovering of a charge relating to claims which, by separate action, would belong to 1 of the separate proceedings, may be read in specified a way that specified exclusion does not occur. As a result, this justifies the conclusion that a court examining a civilian case which does not belong to any of the separate proceedings may examine the merits of the charge of deduction resulting from a claim (reliability) which would have been examined by itself in 1 of the separate proceedings (yes: resolution of the ultimate Court of the civilian Chamber of 4 August 2005, ref. III CZP 53/05).
The charge of deducting a claim from an employment relation in a civil-law case
The ultimate Court expressed its view that there was no regulation in the provisions of the Code of civilian Procedure which standardise separate proceedings in matters of labour law, excluding the anticipation in average proceedings or another procedural proceedings of disclosing separate charges involving claims which would be part of a separate proceeding in matters of labour law.
In particular, the above will not invalidate the proceedings on the grounds of the composition of the court (Article 379(4) of the Court of First Instance), since, in fact, in the event of an increase in the ground of appeal, the assessment of the merits of that plea is simply a preliminary question which determines the direction in which the main subject substance of the case is resolved. There should be no uncertainty that the composition of the court should be determined for the case as such, and it does not substance what the composition of the court would be applicable to the question referred for a preliminary ruling in the course of the proceedings, if the question were to be considered as a separate case in separate proceedings (yes: ultimate Court Resolution of 4 August 2005, ref. III CZP 53/05).
No preliminary judgement may be given in respect of a claim under the charge of the charge of the levy
The court before which the charge of the charge of charge is raised may not give judgement on the claim covered by the charge. The position of the ultimate Court in the judgement of 29 October 1997, II CKN 365/97 (OSNC 1998, No 4, item 66) is significant, that it is not possible and acceptable to issue a preliminary judgement in respect of a claim not covered by a lawsuit, but a charge of deduction
Differences between the charge of deduction and the counterclaim
The treatment of the charge of deduction as a form of action for a claim comparable to the action would cover the differences between that plea and the counterclaim, while the legislator consistently distinguishes between the 2 institutions (see, for example, Article 493(3) and (4)).
This would be unacceptable not only due to the fact that both institutions are characterised by a purely formal differentiation resulting from the provisions of the Code of civilian Procedure, but besides because, in the event of a common action, there is no charge of material law. Reciprocity under substantive law is, according to Article 204(1) of the Code, only a condition of admissibility with a counterclaim (yes: resolution of the ultimate civilian Chamber of 4 August 2005, No. III CZP 53/05).
The charge of being deducted as a means for the suspect to prosecute his own claim — a number view
It should be pointed out, however, that the ultimate Court’s case-law states that the defendant’s application of the charge of deduction constitutes not only a means of defence of the defendant, but besides a means for the suspect to prosecute his own claim against the plaintiff. It was expressed in the judgement of 4 November 1963, 1 CR 857/59 (“New Law” 1964, No. 12, p. 1218), in which it was accepted that the application of the claim by way of a charge of deduction had the same effect as the application of that claim by a lawsuit, and so the final rejection of specified a plea is tantamount to a final dismission of the action.
Such a position was besides expressed in the judgement of 18 April 2000, III CKN 720/98 (not publ.), in which it was found that the charge of deduction was a form of action for an action which was in line with the action; therefore, it is subject to the requirements of the application for the determination of the application, of the factual circumstances justifying the request and of evidence.
Definition of liability
The anticipation of limitation requires that both claims which are the subject of the institution be due.
Rules do not specify the concept of maturity. In literature and case law, it is assumed that This is the earliest time erstwhile the creditor is given the chance to request satisfaction and the debtor is required to meet the benefit. erstwhile the claim is due, the creditor shall be given the chance to bring a claim without fear of being exposed to an effective plea of prematureity.
From a theoretical point of view, the maturity of the claim may not coincide with the maturity of the benefit (payments), i.e. the time limit by which the debtor should meet the benefit at the latest after which he falls late or late. In practice, for future liabilities, these deadlines usually coincide over time. This is due to the fact that the parties in bond relations focus on determining the payment deadline alternatively than the due date (yes: ultimate Court judgement of 12 March 2002, IV CKN 862/00, not publ.).
The determination of the due date and the due date so always requires an analysis of the circumstantial legal relation from which the work to fulfil the benefit arises. It is besides essential to take into account circumstantial provisions which may be applicable for the determination of the maturity of the claim, e.g. in relation to common agreements — Article 488(1) k.c., unless the parties have otherwise determined the word of the benefit.
For example, in relation to construction works, the claim for payment of the contractor's remuneration is usually dependent not only on the performance of the works itself, but besides on additional events specified as the presentation of the works for collection or the absence of material defects.
However, it should be noted that the declaration of winding-up in accordance with Article 91(1) b.u. renders the cash liabilities of the fallen individual whose word of payment of the benefit has not yet occurred due on the date of the declaration of bankruptcy (yes: ultimate Court judgement of 22 October 2015, act No. IV CSK 749/14).
The anticipation of an investigation in a separate process of part of the claim to be set aside and not taken into account by the court
The ultimate Court, in its judgement of 6 September 1983, Case IV CR 260/83, held that the decision in the judgment, which took into account the charge of deducting both claims, was the consequence of an accounting action resulting in the remission of those claims up to the amount of the lower claim. In another process, therefore, the creditor may claim both the excess over the decommissioned part which he has not reported to be deducted and the part of the claim claimed to be deducted and not taken into account by the court.
This is besides stated in the resolution of the ultimate Court of 20 November 1987, III CZP 69/87, in which it was stated that the failure of the court to take account of the charge of the charge of deduction does not prevent the subsequent investigation of the action under appeal. The ultimate Court has explained that the charge of deduction, which may be considered a reason for dismissing the action, must be regarded as part of the facts of the case and so as an component of the reasoning of the judgment. However, the seriousness of the judgement does not extend to the reasons for the decision, but only to the decision itself. The lawfulness is linked to the sentiment of the judgement and not to its justification and does not alter the fact that the justification can be utilized to find the scope of validity.
In its judgement of 12 March 1998, I CKN 522/97, (OSNC 1998, No 11 item 176), the ultimate Court held that the imposition of the claim by another judicial proceedings does not preclude its effective deduction; the charge of the charge of the charge is subject to the rules governing the fresh facts justifying the charge of the charge of the charge of the charge of the charge of the charge of the charge of the charge of the charge of the charge of the charge of the charge of the charge. This view was maintained in the judgement of 9 October 2003, V CK 319/02 (not publ.).
Deduction of contractual penalties
The position of the ultimate Court on the admissibility of the deduction of contractual penalties is uniform and positive. This is the admissibility of judgement of 23 January 1974, II CR 788/73, OSPIKA 1975, No 2, item 36; judgement of 9 May 2003, V CKN 162/01, non-publ; judgement of 9 October 2003, V CK 319/02, non-publ.; judgement of 10 October 2003, V CKN 1644/00, non-publ.; judgement of 23 March 2006, IV CSK 89/05, OSNC 2007, No 1, item 15.
Deduction of claims between the spouse and the creditor of the second spouse
If the unmarried spouse, and only the debtor of the common assets, is not a co-debtor, it is unacceptable for the creditor of the second spouse to lodge a charge of deduction in accordance with Article 498(1) k.c., where 2 persons are both creditors and debtors. In the case of a creditor of 1 of the spouses and another, specified reciprocity shall not exist.
Allowing a spouse to deduct a claim with a claim serving against another spouse would mean depriving the spouse of the unpaid protection work provided for in Article 41(3). The judicial exclusion or limitation of liability from the common assets would become entirely without object in a situation where, by law, there has already been a common remission of the transferred claims.
It should be noted that the anticipation of taking work for commitment drawn by 1 of the spouses from the common assets (Article 41(1) of the Statute) does not mean that a spouse who does not engage in that work becomes a co-debtor, of course, but for obligations entered into to meet the average needs of the household (cf. Article 30 of the Statute).
Article 41 k.r.o. does not introduce any kind of warrant liability of an unmarried spouse or compensation liability that would be active in the failure of the obliged spouse. It is besides excluded to see in Article 41 of the General Court the origin of the joint and respective liability of spouses for obligations entered into by 1 of them (yes: judgement of the ultimate Court of 9 August 2005, act IV CK 79/05).
Deduction of bank claims vis-à-vis the deposit holder
As regards the anticipation of deducting a debt owed to the bank in respect of the holder of a fixed-term deposit, 2 positions are presented in the doctrine.
According to the first, it is permissible for the bank to make a deduction, both classical (Article 498 k.c.) and ,,bank” (Article 52 Pr.bank, Article 93(2) of the Act of 29 August 1997. – Banking law), besides claims from the bank account agreement – without limitation.
According to the second view, the construction of the bank account agreement and the nature of the obligations imposed on the bank (Articles 7 and 14(1) of the Pr. bank) indicate that it is unacceptable to set off both a classical and a ,,,bank’. This position is presented for the current account.
The usage of fixed-term deposits is different from the usage of overdrafts. Even if it is assumed that the construction of the current account agreement and the obligations resulting therefrom for the bank exclude the anticipation of the bank to deduct, these considerations do not apply to the forward deposit account.
In the case of a fixed-term investment agreement, the work of the bank to reimburse the cash collected in that account shall, in principle, be excluded at the request of the holder. Thus, both the construction of specified a contract and the resulting obligations for the bank disagree from the construction and obligations of the bank under the current account agreement. Therefore, there is no reason to exclude the anticipation for the bank to deduct its claims from the claim due to the holder of the forward deposit account (yes: ultimate Court judgement of 23 February 2001, Ref. Act II CKN 403/00).
Deduction of claims by the bank vis-à-vis the liquidated entity
Pursuant to Article 93(2) of the Banking Law, the bank may deduct from its debt a debt whose maturity has not yet arrived if the debtor has been wound up, and in all those cases where it serves the bank the right to collect its claims before the payment deadline.
Deduction of claims may not be made to the degree that the claim from the bank account has been seized as the subject of enforcement of the taxation debt.
Deduction of a claim ordered by a final decision of the court
They are besides suitable for the deduction of claims on the basis of a final judgement of the court, even though due to the seriousness of the substance re-judged before the court they cannot be brought to justice. The fact that the claim is judged by a final judgement not only does it not preclude it from being set aside, but it strengthens the position of the deduction, due to the fact that it is precisely due to the seriousness of the substance judged that the debtor cannot question either the existence or the amount of his obligation. Due to the quasi-executive nature of the offsetting institution, confirmation of the claim by a final judgement subject to enforcement not only cannot exclude the anticipation of submitting it to the offsetting, but makes it essential to take account of the presentation to the offsetting.
It cannot be accepted that the only way of ,,compensation’ of the common claims of the parties, judged by final decisions, is to settle them in enforcement proceedings; in order to do so, both parties would gotta initiate it. The usage of the deduction allows both parties to avoid specified a need. Consequently, it must be considered correct that the claim judged by a final judgement of the court is simply a challenge within the meaning of Article 498(1) of the Code and may be set aside (yes: ultimate Court in judgement of 27 September 2005, V CK 183/05 (not publ.), and ultimate Court judgement of 20 October 2005, Case No. II CK 126/05).
Deduction of the debtor’s claim in the event of transfer to a 3rd party
The ultimate Court, in its judgement of 29 November 2001, sygn, Act V CKN 1537/00, held that the admissibility of an effective plea in law against the suspect in the event of the transfer by the claimant of the claim in question must not be of decisive importance to Article 192(3) of the General Court (referring that the disposal in the course of the case of the substance of the substance or of the law covered by the dispute does not affect the further course of the case), but the substantive law on the transfer, which allows for the formulation of the argument that if, in the course of the trial, the plaintiff transfers his claim to a 3rd party, the suspect may effectively study to the claimant the common claim he holds for the plaintiff until the transfer has been notified. In this respect, the transfer rules providing for the protection of the debtor correct the request to be simultaneously debtors and common creditors, which, pursuant to Article 498 k.c., is the basis for the admissibility of the deduction.
If, therefore, the claimant makes a transfer of the claim in question to a 3rd organization in the course of the trial, the suspect may, pending the receipt of the information about the transfer, effectively study to the plaintiff the claim he has owed to the claimant.
Deduction of the claim and the right to apply for a average contractual penalty
Article 484 (2) kc provides that, if a commitment has been made to a large extent, the debtor may request a simplification in the contractual penalty; the same applies to an accident where the contractual punishment is grossly excessive. An crucial issue is so whether, in the event that the creditor has made a message of deduction of contractual penalties from the payment of the service provided to the debtor, the debtor can inactive benefit from the benefit of a contractual penalty.
The case law agrees that, erstwhile examining the function of the deduction, it must be borne in head whether it is the consequence of an act of will of the debtor or of a creditor. The function of payment may be attributed to the deduction only if it is carried out by the debtor who pays his debt from his common debt. If, on the another hand, the deduction is made by the creditor, it imposes unilaterally on the debtor a discharge procedure, enforcing its claim, even if the another organization did not intend to comply with it and the remission of the claim by the charge does not correspond to its will.
The creditor thus enforces his law. It is so not possible to share the view that the deduction by the creditor caused the debtor to pay the penalties, which deprived the debtor of his right to apply for them to measure.
It should besides be noted that the debtor, even erstwhile paying the contractual penalties charged to him, may prevent the failure of the right to average the contractual penalty, making an appropriate reservation as to the amount of the penalty (Article 411(1)(c).
Therefore, if the debtor consistently contests the amount of the punishment calculated by the creditor, the deduction of claims made by the creditor shall not deprive the debtor of the right to apply for a average penalty. Therefore, although the deduction is fundamentally the same as the performance of the work as, for example, payment, the anticipation of applying for a average contractual punishment does not always expire erstwhile the contractual punishment is paid (judgment of the ultimate Court of 21 November 2007, Ref. act I CSK 270/07).
Deduction of claims in insolvency proceedings
In insolvency proceedings, the anticipation of a hit was not excluded. However, the legislator modified the requirements that the deductions must meet and introduced a time limit for exercising the right of deduction.
The amendments to the deductions made in the course of the insolvency proceedings involving the liquidation of the fallen assets are set out in Articles 93 to 96 of the Act of 28 February 2003. Insolvency rights and constitute circumstantial provisions referred to in Article 505(4) (i.e. claims on which the deduction is excluded by circumstantial provisions).
The above means that, in the event of an offsetting against the rules resulting from those provisions, there is no effect in the form of a write-off. On the another hand, the provisions of the Insolvency Law do not introduce any different rules on how to make a deduction. Article 96 of the Bankruptcy Law simply states that a creditor who wishes to exercise his right of set-off shall make a declaration of this no later than erstwhile filing the claim (yes: judgement of the ultimate Court of 22 October 2015, act No. IV CSK 749/14).
Failure to exercise the right to deduct within the time limit laid down in Article 96 of the Bankruptcy Law
As mentioned above, Article 96 of the Bankruptcy Law provides that a creditor wishing to exercise his right of set-aside shall make a declaration to that effect no later than erstwhile filing the claim. The time limit provided for in that provision is so final until it is possible to get a privileged way to satisfy, in the form of a deduction, a circumstantial claim declared bankrupt. Failure to make a message of entitlement to set-off within the time limit provided for in Article 96 p.u. shall consequence in the creditor of the unsuccessful being able to satisfy the claim submitted only as part of a participation together with another creditors who have failed in the division of bankruptcy funds, in accordance with the detailed rules laid down in the insolvency law (cf. the ultimate Court order of 8 February 2000, I CKN 398/98, ultimate Court judgments of 29 April 2005, III PK 1/05, OSNP 2005, No 23, item 371, and of 8 December 2005, II CK 295/05).
The deduction shall, in accordance with Article 498 k.c., always apply to 2 circumstantial claims which are the subject of the deduction. For this reason, the exercise of the right of deduction by a fallen creditor referred to in Article 96 B.C., as a privileged form of satisfaction of the creditor in relation to another creditors of the bankruptcy mass, should besides be referred to a circumstantial claim declared to the bankruptcy mass alternatively than to the right to benefit from the deduction in respect of any, even unnotified claims to the bankruptcy mass.
Effect of the charge of set-off filed in insolvency proceedings on the subsequent proceedings of the syndicate
In the ultimate Court case-law, it is uniformly assumed that the list of claims does not take advantage of the seriousness of the judgment. For this reason, it is permissible to file a charge of deduction by a creditor who has fallen in a suit brought against him by a bankruptcy admin in a situation where the claim submitted for deduction has been filed before the action has been brought in insolvency proceedings together with the charge of deduction with the 1 presently pending by the administrator. In specified a situation, the civilian court may examine whether the conditions for the effective deduction of claims have been fulfilled (cf. Resolution of 23 January 2007, III CZP 125/06, OSNC 2007, No 11, item 162, judgments of 13 January 2006, III CK 360/05, of 10 March 2011, V CSK 311/10 and of 22 March 2012, V CSK 95/11 – not published).
This position is based on the presumption that insolvency proceedings are not a “in progress” case within the meaning of Article 192(1) and Article 199(1)(2) of the General Court, since the intent of specified proceedings is not to settle the claim in question, but to satisfy creditors by liquidating the bankruptcy weight and dividing the funds obtained. Any decision on the claim, i.e. its designation or refusal of recognition, shall not have the value of a judgment, since it is given primarily for the purposes of insolvency proceedings and may be challenged in an appropriate manner, as a rule, by way of a trial (resolution of the ultimate Court of 30 March 1992, III CZP 22/92, OSNCP 1992, No 11, item 188, judgement of the ultimate Court of 18 January 2006, V CSK 74/05, not publ.).
Limitation of the application of the charge on the acquisition of claims after the bankruptcy
Another regulation (in relation to the rules of the civilian Code) on the anticipation for the creditor to exercise the right to deduct claims in insolvency proceedings is the wording of Article 94(1) of the Bankruptcy Law. This provision states that a set-off is not admissible if the debtor has acquired a claim by transfer or indos after the bankruptcy has been declared, or has acquired it within the last year before the bankruptcy date, knowing that there is simply a ground for bankruptcy.
However, Article 94(2) contains an exception to the rules provided for in paragraph 1, providing that the deduction of claims is permissible if the purchaser has become a creditor who has fallen due to the repayment of his debt for which he was personally or with certain assets, and if the purchaser, at the time erstwhile he assumed work for the fallen debt, did not know of the existence of a grounds for declaring bankruptcy.
The deduction shall always be admissible if the acceptance of work took place 1 year before the date of the bankruptcy.
The summary of paragraph 2 with the content of Article 94 p.u. 1 leads to the conclusion that the deduction is admissible erstwhile the purchaser becomes a creditor who has fallen bankrupt as a consequence of the repayment of his debt for which he was liable in individual or for certain assets, besides after the date of the bankruptcy.
Deduction of claims and provisions of the Public Finance Act
The provisions of the Public Finance Act lay down formal requirements for entities that are entities of the State Treasury or local government, in the event that the competent authorities of those bodies make a declaration of the deduction of liabilities to those public entities vis-à-vis the private business entities that are their counterparties in the framework of ongoing cooperation on the nature of public-private partnerships, as determined in the procedures governed by the Public Procurement Law.
The abovementioned provisions supply for circumstantial formal conditions for the deduction of the claims referred to therein. In accordance with Article 62(4) of that Law, if a deduction is made of an ex officio (and not upon request), the deduction shall take place on the date of its ex officio decision to deduct. The deduction shall be made by means of a provision for which the complaint is made.
With respect to the way creditors implement, including those mentioned in Article 63(1) of the Public Finance Act, the right to deduct claims into default with claims of a failed law Insolvency law contains peculiar provisions which exclude the application of the deduction provisions contained in the Public Finances Act concerning the enforcement of the right of deduction (yes: ultimate Court judgement of 22 October 2015, act No. IV CSK 749/14).
Legal limits to the charge of deduction contained in the civilian Procedure Code
The Code of civilian Procedure contains provisions which, in certain separate proceedings, limit the admissibility of the charge of deduction.
Thus, in accordance with Article 493(3) of the General Court, only claims may be presented in order to be set aside by means of the papers referred to in Article 485 of the General Court, whereas Article 5054(2) of the Rules of Procedure provides that a charge of deduction may be admissible if the claim covered by that plea can be examined in the simplified procedure. In 2 cases, therefore, the legislator explicitly excluded the admissibility of the charge of deducting claims which could not be heard in the separate proceedings in question if they had been brought against them alone.
However, the request laid down in Article 493(3) of the General Court to prove the claim submitted for deduction by the papers referred to in Article 485 of the General Court does not concern the situation in which the charge occurred before the suspect was served the order for payment and the action (yes: resolution of the ultimate Court of 13 October 2005, Signature: III CZP 56/05).
The ultimate Court in its judgement of 7 May 2004, Ref. Act I CK 666/03, however, stated that the evidence restrictions reserved by Article 493(3) of the Code apply regardless of whether the message of the charge was made before the order for payment was brought or only in that measurement of appeal.
Exemptions for offsetting
Pursuant to Article 505 k.c., they may not be decommissioned by offsetting:
1. non-occupational claims;
2. claims for maintenance;
(3) claims arising from unlawful acts;
(4) claims on which the deduction is excluded by peculiar provisions.
Deduction of common claims against the State Treasury
The debtor may not submit to the State Treasury, represented by the Minister of the Treasury, any common claims he has against another state organizational units.
The ultimate Court, in its judgement of 23 October 2003, ref. Act V CK 387/02, held that it was impossible to agree with the view that certain representatives of the doctrine of admissibility of the presentation by the debtor of the State Treasury to deduct his claim, irrespective of whether that claim is linked to the activity of the same stationis fisci which comes from the debtor of his own debt.
The ultimate Court besides opposed this position in its resolution of 1 June 1994, II UZP 32/93 (OSNCP 1994, No. 7-8, item 150) and in its judgement of 12 October 2000, IV CKN 144/00 (OSNC 2001, No. 4, item 60), stating that due to the multiplicity of state organisational units the rule that the condition of reciprocity with Article 498 § 1 k.c. is fulfilled erstwhile both claims, i.e. the credibility of the State Treasury and the credibility of the State Treasury, are linked to the same state organisational unit.
Deduction in global trade — Community
Pursuant to Article 17 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) of the deduction which was not agreed by agreement of the parties is governed by the law applicable to the claim from which the deduction is made.
This means that the law applicable to that conflict-of-law — the law applicable to a liability — is subject to admissibility, conditions, performance and legal effects of the charge (yes: judgement of the territory Court of Katowice of 5 March 2019, Ref. act XIX Ga 734/18).
