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УНИВЕРСИТЕТА
О.Е. Кугафина (МПОА)
Kinga FLAGA-GIERUSZYNSKA,
dr hab,
Professor of University of Szczecin, Department of Civil Procedure, Faculty of Law and Administration, University of Szczecin kingaflaga@gmail.com Ul. Narutowicza 17A, 70-240 Szczecin, Poland
JUDICIAL ENFORCEMENT OF CHATTELS OF HISTORICAL OR ARTISTIC VALUE AND CHATTELS MADE OF GOLD OR PLATINUM
Annotation. The Author discussed the selected separate non-auction modes of sale of chattels with specific characteristics that require particular diligence from the enforcement authority. Examples discussed in the paper are chattels of historical or artistic value and articles made of gold and platinum. The basic assumption of these solutions is to ensure the sale with the participation of specialized entities which are supposed to guarantee not only the protection of the interests of the debtor and creditor in the enforcement proceedings, but also the protection of chattels against any destruction, damage or improper handling, and in the case of chattels made of precious metals — also the role of the warranty associated with the quality of the precious metal.
Keywords: judicial enforcement of chattels, historical or artistic value, articles made of precious metals.
DOI: 10.17803/2311-5998.2017.31.3.124-129
© Кинга Флага-Гиерусзынска, 2017
КИНГА ФЛАГА-ГИЕРУСЗЫНСКА,
др. хаб. (доктор наук), профессор кафедры гражданского процесса факультета права и управления Щецинского университета (Польша)
kingaflaga@gmail.com Ул. Нарутовича, 17А, 70-240, Щецин, Польша
СУДЕБНОЕ ИСПОЛНЕНИЕ В ОТНОШЕНИИ ДВИЖИМОГО ИМУЩЕСТВА, ИМЕЮЩЕГО ИСТОРИЧЕСКУЮ ИЛИ ХУДОЖЕСТВЕННУЮ ЦЕННОСТЬ, А ТАКЖЕ ДВИЖИМОГО ИМУЩЕСТВА ИЗ ЗОЛОТА ИЛИ ПЛАТИНЫ
Аннотация. Автор обсуждает отдельные неаукционные способы продажи движимого имущества с определенными свойствами, которые требуют от органа, осуществляющего судебное исполнение, особой осторожности. В статье обсуждаются такие примеры, как движимое имущество, обладающее исторической или художественной ценностью, а также движимое имущество из золота и платины. По указанным вопросам автор анализирует законодательство Республики Польша.
Ключевые слова: судебное исполнение в отношении движимого имущества, историческая или художественная ценность, движимое имущество из драгоценных металлов.
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ЕСТНИК Flaga-Gieruszynska K.
Judicial enforcement of chattels of historical or artistic value
университета
имени o.e. Кутафина (мгюа) and chattels made of gold or platinum
1. Introduction
Enforcement of pecuniary benefits in the Polish legal system can be carried out in relation to different assets, as well as property rights and claims of the debtor, which makes it necessary to analyze practical problems that arise in relation to individual objects, which are targeted by the enforcement actions . The enforcement authorities (especially bailiffs) face particular interpretative and practical difficulties in relation to objects with specific characteristics, forcing the use of unconventional solutions . An example of such a category of chattels, which could be the subject ofjudicial enforcement of chattels and at the same time, because of their historical or artistic value, require a specific approach both in terms of their protection against damage, unjustified export abroad, and other threats, and in terms of their higher value market because of those additional features Polish legislator in relation to the chattels of historical or artistic value introduces a separate non-auction mode of sale within the judicial enforcement of chattels, taking into account the factors identified above
2. Sale of items of historical or artistic value
A proper application of the provisions relating to the sale of objects of historical or artistic value can cause a lot of interpretative problems, resulting also from the fact that the classification of seized items in this category may require special knowledge, so it may happen that at the initial stage of execution the bailiff will be forced to use a cost— and time-consuming solution, which is the expert opinion as to the value of seized chattels . However, it may happen that the bailiff will be able to properly qualify the chattels to this category due to the fact that they've already undergone such an assessment during other enforcement proceedings, or due to the fact that the bailiff will be in the possession of documents or certificates confirming the unique features of the chattels . There is also no need to appoint an expert for an initial assessment of the chattel if the chattel has been registered in the register of objects of cultural heritage .
Movable antiques or artefacts are a special category of objects of historical or artistic value . Such object is a chattel, its part or a set of movable items, which are manmade or related to the work of men and forming a testimony of a bygone era or an event, preservation of which is in the public interest due to their historical, artistic or scientific value . In accordance with Art . 6 paragraph 1 point 2 of the Act on the protection and care of objects of cultural heritage1, the following chattels of historical or artistic value, regardless of their state of preservation, are subjects to special protection and care: a) works of fine arts, crafts and applied arts, b) collections, which form sets of objects collected and organized according to the concept of people who created these collections, c) numismatics and historical souvenirs, especially military accessories, flags, seals, badges, medals and decorations d) products of technology, especially devices, means of transport and machinery and tools, which are a statement of material culture, characteristic for old and new forms of economy, documenting the level of science and
1 Act of 23 July 2003 on the protection and care of objects of cultural heritage (Journal of Laws 2014, item 1446) .
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civilization development, e) library materials referred to in Art . 5 of the Act on libraries2, f) musical instruments, g) products of folk arts and crafts and other ethnographic objects, h) objects commemorating historical events or activities of prominent personalities or institutions
In relation to this kind of chattels, the bailiff must be aware that the age of an item is not a sufficient indicator of the fact that the chattel is of a historical value . Recognition of historical value cannot be reduced to «the antiquity» . The concept of testimony of a bygone era or an event may also concern items that do not come from ancient times . Such an assessment applies in particular to objects of technology, due to the substantial growth and volatility in this area The antique value may not be the result of material or artistic value, but of a historical importance3 . As a result, the bailiff must pay attention not only to the material value of the objects, but also to the possible historical or artistic value
For judicial enforcement of a chattel a protection measure provided for in Art . 50 of the Act on the protection and care of objects of cultural heritage can also be applied . In the event of a threat involving the possibility of destruction, damage, theft, loss or illegal export abroad of a movable antique or artefact registered in the register of objects of cultural heritage or on the List of Heritage Treasures, respectively, provincial conservation officer may issue, and the minister responsible for culture and national heritage protection issues the decision to secure this object of cultural heritage in the form of the establishment of a temporary seizure until the threat is removed . A temporary seizure of a movable antique or artefact means that it is passed, depending on the type of the object, to a museum, archive or library. If it is not possible to remove the threat:
1) the object may be taken over by the provincial conservation officer, by a decision, and become the property of the State, for purposes of culture, education or tourism, with a compensation corresponding to the market value of the item;
2) the object registered on the List of Heritage Treasures is taken over by the minister responsible for culture and national heritage protection in the form of a decision and becomes the property of the State, for purposes of culture, with a compensation corresponding to the market value of the item .
In the event of such situation the creditor may demand satisfying the claims within the enforcement from the debt, including compensation, which the debtor may claim form the State
3. Individualities of judicial enforcement of chattels of historical or artistic value
As stated in Art . 8662 § 1 sentence 2 of the Code of Civil Procedure (hereinafter referred to as CCP) these items can be sold via a company dealing with such trade to a state-museum, library, archive or to a research and documentation facility. This provision indicates that the entrepreneur engaged in trade of chattels may be an intermediary in the sale of those chattels (this refers to galleries, antique shops, etc . ) .
2 Act of 27 June 1997 on libraries (Journal of Laws 2012, item 642, as amended) .
3 Judgment of Voivodship Administrative Court in Gdansk of 1 October 2014, II SA/Gd 397/14, Legalis no . 1117302.
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Judicial enforcement of chattels of historical or artistic value
университета
имени о.е. кутафина (мгюа) and chattels made of gold or platinum
While buyers can be individuals specialized in the care of chattels of historical or artistic value . A museum is a non-profit organizational unit, which purpose is to collect and durably protect the natural and cultural heritage of humanity of a tangible and intangible nature, inform about values and contents of gathered collections, promote the basic values of history, science and culture of Poland and the whole world, shape cognitive and aesthetic sensitivity, and enable the use of gathered collections (Art . 1 of the Act on museums4) . When it comes to libraries, those are organizational units, which basic tasks include collecting, preparing, storing and protecting library materials, as well as customer service involving mainly sharing the collections and information, especially information about collections: their own, other libraries', museums' and scientific facilities' as well as cooperating with the archives in this regard; libraries' tasks may also include bibliographical, documentary, scientific-research, publishing, education, popularization and methodical activities (Art . 4 of the Act on libraries) . An archive is an institution established for the collection, maintenance and sharing of archives for official purposes, scientific research, and private purposes State archive serves as the office of public trust and for this reason it is authorized to issue certified copies and extracts of the stored archival materials . The operating principles of archives are laid down in the Act on national archive resources and archives5 . Research and documentation facilities usually take the organizational form of cultural institutions, which principal task is to popularize the idea of protection of objects of cultural heritage and their promotion
In this case, the provision of art . 8641 apply accordingly. According to this provision, the bailiff can perform an off-hand sale of the chattels not mentioned in Art . 864 § 2 of CCP, if the debtor has consented to this and established the minimum selling price . The sale cannot take place earlier than two weeks from the date of the assessment, if none of the creditors conducting the execution object to it within one week from the date of being notified by the bailiff of the intention to carry it out . If the sale of objects of historical or artistic value is not possible by off-hand sale, the bailiff sells them by public auction (Art . 867 § 1 of CCP) or at a request of a creditor, the bailiff forwards them to the commission sale (Art 867 § 4 of CCP)
It is worth noting that in order to assess the seized objects of historical or artistic value the bailiff calls for an expert . According to the Art . 813 § 1 of CCP in cases that require an expert's opinion, the bailiff will ask for an opinion of one or more permanent court experts . If among the permanent court experts there is no expert with the required specialization, the bailiff will ask the court to appoint an expert and receive a vow from him or her This also refers to a situation when a permanent court expert called upon by the bailiff has been excluded or did not accept the obligation imposed on him or her for the reasons set out in Art . 280 of CCP, and there is no other expert in this specialization among the permanent court experts . In any case, the bailiff is not bound by the opinion of an expert, and therefore should assess it on the principle of free assessment of evidence (Art . 233 of CCP) . Due to the correct application of the general provisions on an expert opinion the enforcement authority may also request an oral explanation of the opinion submitted in writing, and if necessary — a presentation of an additional opinion from the same or other experts (Art . 286 of CCP) . ^
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4 Act of 21 November 1996 on museums (Journal of Laws 2012, item 987 as amended) .
5 Act of 14 July 1983 on national archive resources and archives (Journal of Laws 216, item 1506) .
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To sum up, this type of chattel requires a specific approach of the bailiff, if it comes to the use of the specified mode of sale, which seems to be optimal in the context of ensuring adequate protection of goods of historical or artistic value (especially if they have the status of movable antiques or artefacts)
4. Sales of products made of gold or platinum
In accordance with Art . 8662 § 2 of CCP products made of gold or platinum, with the exception of objects of utility, and objects made of gold or platinum, which are unusable, are being sold by the bailiff to a jeweler or other company working in trade or processing of precious metals . The provision of Art . 865 apply accordingly. The latter provision refers to a non-auction mode of sale of unused chattels, which are subjects of trade . The difference is that the bailiff performs the sale ex officio, and so the request of a party referred to in Art . 865 § 1 of CCP is not required .
While discussing the objects of gold and platinum, it is important to mention the notion of gold and platinum within the meaning of the Foreign Exchange Act6, which is a kind of foreign exchange values . Foreign exchange gold and foreign exchange platinum are gold and platinum in its raw state and in the form of bars, coins minted after 1850, as well as semi-finished products, except for those designed to use in dental technology; foreign exchange gold and foreign exchange platinum are also objects made of gold and platinum usually not produced from those materials (Art . 2 paragraph 1 point 13 of the Foreign Exchange Law) .
In case of assessment of products made of gold and platinum the bailiff appoints an expert . Same as in the previous case, applicable will be Art . 813 § 1 of CCP, which provides that in cases that require an expert opinion, the bailiff will ask for an opinion of one or more permanent court experts . If among the permanent court experts there is no expert with the required specialization, the bailiff will ask the court to appoint an expert and receive a vow from him or her This also refers to a situation when a permanent court expert called upon by the bailiff has been excluded or did not accept the obligation imposed on him or her for the reasons set out in Art . 280 of CCP, and there is no other expert in this specialization among the permanent court experts .
It is underlined in the doctrine that the lack of explicit reference to Art . 8641 of CCP is a prerequisite for finding that the sale of gold and platinum by off-hand sale is not allowed7 . This is certainly also proved by the wording of this provision itself, which has a categorical («sell»), rather than optional character. If the bailiff does not manage to sell these chattels in accordance with Art . 865 § 2 of CCP, he or she has the opportunity — after receiving an appropriate request from the creditor — to use commission or bidding sale . As for items made of gold or platinum, which are objects of utility, the general principles of the enforcement of chattels apply (Art . 865 § 1, Art . 8641 and 867 of CCP) .
6 Act of 27 July 2002 — Foreign Exchange Act (Journal of Laws 2012, item 826 as amended) .
7 Inter alia: Marcewicz O. Komentarz do art. 8662 k. p . c. // Jakubecki A . (ed . ) Komentarz aktualizowany do Kodeksu post^powania cywilnaego . Lex . 2016 .
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5. Conclusions
As part of the judicial enforcement of chattels of historical or artistic value it is important to balance two—sometimes contradictory — issues: effective obtaining of funds to meet the claims of creditors and ensuring adequate protection of chattels of particular intangible (historical, artistic) value . For this reason the legislator has introduced in this respect the instruments which are supposed to reconcile these two problems, while using in this regard not only the discussed instruments defined in the acts, but also the provisions relating to the protection of movable objects of historical or artistic value and cultural goods . This circumstance makes this mode of judicial enforcement particularly difficult to implement by the bailiff, which increases the substantive importance of an expert opinion, which in some cases at the very beginning has to decide about the need to apply this procedure for the seized chattels . In other cases, the auxiliary nature of the expert opinion focuses on estimating the real value of the chattel, which is important especially in those cases where the material value of the chattel (e g due to the type of material from which the chattel was made) differs significantly from the market value, which takes account of its historical or artistic value These circumstances cause that in regard to those chattels the judicial enforcement is more time and cost consuming than in relation to other chattels that do not possess such qualities
1. Marcewicz O. Komentarz do art . 8662 k . p . c . // Jakubecki A. (ed . ) Komentarz aktu-alizowany do Kodeksu post^powania cywilnaego . Lex . 2016 .
BIBLIOGRAPHY
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