Changes in court clerking
As a result of the December 2021 reform, which introduced a system for handling bankruptcy and restructuring cases, court secretariats have gained new responsibilities.
With the implementation of the system for handling bankruptcy and restructuring cases, the reality of court clerking has changed. Case files are in electronic form. Paper documents, on the other hand, are collected in a document collection. A major challenge in this situation is combining electronic circulation with traditional circulation, which is still allowed.
Electronic case files
Pursuant to § 216a(1) of the Rules of Procedure of Common Courts, bankruptcy and restructuring case files are to be maintained exclusively in a teleinformatics system (hereinafter: the system). In these files, as in paper files, all procedural actions of adjudicators and court clerks (including service of process) are posted. The procedural actions of the parties, especially pleadings with attachments, are also posted there. They do not maintain page numbering or division into volumes.
All procedural actions performed with the participation of the court, except those expressly excluded, are carried out in the system. This applies not only to judgments, but also, for example, orders, or minutes, as well as the executive actions of court clerks (e.g., notices of rectification by the head of the registry). Orders of a technical nature, related to the operation of the system, are also recorded in the case file. These include, for example, the assignment of an employee to a case. Another example is to ask the administrator to make changes to the case, in the absence of adequate functionality.
The case file should be annotated with the execution of the order only when it is not automatically recorded by the employee using the functionality of this system.
Delivery of court correspondence and provision of case files
If electronic letters are sent, the acknowledgment of receipt form is attached to the file maintained in the system. If the acknowledgment of receipt is in paper form, an electronic copy must be made and attached to the case file. The paper acknowledgment of receipt goes into the document collection. If the receipt of traditional mail is in electronic form, you do not need to print it. In this case, it is sufficient to attach it electronically to the file.
Case files are made available to the receiver, court supervisor and administrator. They are also made available to the bodies to which the provisions on the receiver, court supervisor and administrator apply respectively, as well as to the participants in the proceedings, their representatives and persons authorized by them. This is done through publicly accessible ICT networks via an account in the ICT system. Participants and persons authorized by them have access to these files through the system.
The court secretariat, through the system, provides access to court files to participants in the proceedings. It can also make them available to anyone who sufficiently justifies the need to view them. This applies to pending restructuring and bankruptcy proceedings (Articles 228(1) p.u., 206(1) p.r.), as well as bankruptcy proceedings (Article 35 in conjunction with Article 228(1) p.u.) and those that have been terminated by a final decision dismissing a bankruptcy petition pursuant to Article 13(1) or (2) p.u. (Article 13(7) p.u.). Case files are made available at the seat of the court hearing the case and at the seats of the district courts. This happens through the system, upon proof of identity, and if required by law, upon sufficient justification of the need to consult them. Unless otherwise provided by separate regulations.
Maintaining a collection of documents
In addition to electronic files, a collection of documents should also be established for the case. In this case, the provisions for paper case files apply accordingly. The collection should include:
- letters and documents of digitally excluded creditors,
- documents submitted as originals of electronic copies referred to in Article 216a (1c) (2) p.u. and Article 196a (4) (2) p.r.
- documents submitted by digitally excluded creditors as attachments to applications or declarations made orally at the registry office of each district court,
- signed copies of letters sent by the court (§ 23(1) of the Manual),
- paper receipts.
When a case is presented to the appellate court or the Supreme Court, the collection of documents shall be sent along with the granting of access to the case file (§ 216d (1) and (5) RUSP). In such a case, a special card shall be included, on which the head of the secretariat shall note the number of cards contained in the collection. On this card, the reason for presenting the file to the court of second instance is indicated. Then the date on which the file was received by this court is noted (§ 55 (1) of the Instructions).
The discussed changes form a complex web of regulations. They represent an attempt to regulate court clerking in the new realities of bankruptcy and restructuring proceedings. Their interpretation is not facilitated by the fact that they have been scattered in legal acts of various ranks – from a law to regulations to an order of the Minister of Justice. In addition, the application of many of these provisions depends on certain functionalities of the system, which have not been codified and are still being developed. This means that detailed solutions in the area of court clerking, will undoubtedly be a challenge in the near future.
This text is an excerpt from a practical commentary prepared by the author for Wolters Kluwer Publishing House. The full version of the commentary is available to users of the LEX system at: