Professor, Warsaw University
European Initiatives and Reform of Civil Law in Poland
Poland has a well-established tradition in adopting a comparative law approach to the codification of civil law. This has to a large extent been due to our historical experience.
When Poland lost its independence after it was partitioned by the neighbouring states at the end of the 18th century, Polish law was replaced with the legal systems of those countries. Thus, for over a century, until Poland regained independence in 1918, the Austrian, German, and Russian legal systems applied in various parts of the Polish territory; French law applied on the territory of the former Grand Duchy of Warsaw established by Napoleon Bonaparte. Having regained independence, the reborn Polish state proceeded swiftly to re-establish a uniform Polish system of law1. This task was given to the Codification Commission, composed of the greatest experts in private law - professors and lawyers educated in various foreign legal systems. The comparative law approach toward establishing modern civil law in Poland not only was indispensable for achievement of the best results in that domain but was also quite natural and obvious for members of that commission who were brought in and experienced with various foreign legal systems and legal traditions. It has exercised a great influence on the shape and contents of all legislative acts enacted in various areas of private law.
The most important of these legal codes were the Code of Obligations of 1933 and the Commercial Code of 1934. They created a modern system of law based to a large extent on the achievements of various foreign national legislators. The Code of Obligations, an original modern piece of legislation from the 1930s, was inspired in many respects by the Swiss, French, German, and Austrian civil law codifications, and also the results of the work of the French-Italian commission working on the draft of a new civil code. The Code of Obligations may be recognised as some sort of bridge between various legal traditions. It is worth noting that it has never given rise to a legal nationalism, a trait characteristic of civil law codification in some European countries.
The development of the civil law codification process was stopped by brute force during the Second World War and subsequently by the Communist regime, again imposed by force. The Code of Obligations was repealed. The new Civil Code of the Polish People's Republic, elaborated by a new Codification Commission, entered into force in 1965. Fortunately, this commission included some professors of law who had participated in the pre-war Codification Commission. It was due to their efforts that the Civil Code, although based on the assumption of 'socialist' civil law, could preserve some institutions and provisions of the former Code of Obligations.
Enormous reforms in various areas of civil law were carried out when the Communist regime was gradually dismantled in the 1990s. They were greatly facilitated by the possibility of returning to Poland's pre-war traditions. The Civil Code of 1964 was gradually changed by several consecutive law reforms. The complex task of preparing reform of the whole system of civil law was given to the Commission for Civil Law Reform as established by the Minister of Justice in 1989. The commission decided that this reform had to be carried out on a step-by-step basis in order to complete the task gradually.
The first phase of the reform started immediately in 1990 and aimed at eliminating 'socialist' distortions to the civil law and adjusting it to the emerging market-oriented economy. Fundamental changes were made in property law in order to eliminate the legal regime based on the socialist concept of ownership distinguishing social, personal, and private ownership, each of them being accorded a different level of legal protection. The highest level of legal protection was reserved for 'socialist state property', the lowest for private property as a means of production being treated as a remnant of the past capitalist epoch. This differentiation among various types of ownership, with the associated difference in the scope and intensity of their legal protection, had to be abolished, and the traditional unitary concept of ownership reflecting the equality in law of all owners, be they public or private, was reintroduced.
In the area of the law of obligations, specific institutions and special rules concerning economic relations in the socialised, planned economy between the so-called 'units of socialised economy' were eliminated. The principle of freedom of contract almost totally absent in a socialised...