The issue of individual rights at the borderline between private and public law. Considerations de lege ferenda on the example of the fees payable to the bailiff

Abstract

The author analyses the issue of admissibility of the application in the public sector of some legal institutions and principles developed in civil law. He focuses his considerations on the example of the fees charged by bailiffs collecting debt in the course of the enforcement of a court judgment. In Poland the impossibility of adjusting the charges levied by the bailiff from the debtor in connection with the enforcement of non-monetary obligations is widely criticised. The author expresses a view that such adjustment is not possible de lege lata even if the use of the principle prohibiting the abuse of rights with regard to these charges has been allowed. Neither a difficult financial situation nor a difficult family situation of the debtor allows to adjust such charges under current binding law. The inadmissibility of such measures is derived from the express provisions governing the procedure for levying the fee (i.e. it is charged in advance). If not for these rules, the author believes, it would be possible to adjust the fees based on the principle prohibiting the abuse of individual rights. The author believes that the division into public and private law itself is not an autonomous value. The bottom line is that the legal system allows to eliminate a collision between so-called the letter of the law and a common perception of what is fair.