Judgment of Supreme Court, Civil Chamber

9 May 2007

Case No. II CSK 60/07

 

Choice of law

Evidence of foreign law

Adversary principle

Judicial notice of law (jura novit curia)

 

1. Civil Procedure Code Art. 381 concerns new facts and evidence, but improper application of the law is neither an evidentiary fact nor evidence. The plaintiff may assert for the first time on appeal, under International Private Law Art. 27 §1(1), that the court erroneously applied Polish law instead of Spanish law.

 

2. The court may not require the party to indicate the legal basis for its claims, and any basis presented is controlling only insofar as indication of a legal theory supplements the factual allegations (see Judgment of Supreme Court of 23 February, Case No. I CKN 252/98, OSNC 1999 No. 9 item 152).

 

3. The court is required to rule under the applicable substantive law, under the principle that the parties are required to prove the facts but the court is presumed to know the law, whether or not the parties have cited the legal basis for their allegations.

 

4. When alleging on appeal that the court breached substantive law, the appellant is not required to demonstrate whether or how application of the incorrect law affected the result in the case.

 

5. Deciding the case on the basis of the correct law lies within the core activity of the court and is not subject to the control of the parties.

 

6. The adversary nature of a civil proceeding, as provided by Civil Procedure Code Art. 207 §3, 479[4] §1, 495 §3, 503 §1 and 505 §1, insofar as it concerns assertion of defences, does not require a party to take a position on the applicable substantive law.

 

7. A party is not required to prove foreign law.

 

8. In cases with a cross-border element, the issue of the court's knowledge of the law and application thereof on its own motion concerns, firstly, the facts that determine the choice of applicable substantive law, arising under treaty or conflict of law rules. The court must know its own law and must apply the International Private Law whether or not cited by the parties.