ZAGADNIENIE OBOWIĄZKU STOSOWANIA PRAWA MATERIALNEGO W POSTĘPOWANIU PRZED SĄDEM POLUBOWNYM

Abstract

The article discusses the grounds on which a court of conciliation adjudicates, focusing upon the question whether this court is obliged to base its sentence upon the current substantive law regulations or whether it can take decisions solely on the basis of the principle o f rightfulness and discretion of decision. Can the arbitrators, not being bound by the norms of the substantive law, be guided only by their sense of equity, or do they have to observe the binding law, i.e. act in accordance with it and on the basis of it. The Author discusses extensively the notion of formal and substantive legality, shedding some light upon the views of doctrine and judicature on the issue of conciliation court’s obligation to observe the substantive law. By analysing articles 705, 711 § 3 and 712 § 1 point 4 of the Polish Code of Civil Proceedings, the Author arrives at the conclusion that in the light o f these provisions the view popular in the doctrine and law interpretation saying that courts of conciliation are not bound by the substantive law, is questionable and should be reconsidered.