Examen de la legislación de aplicación del Acuerdo sobre los ADPIC - Búsqueda

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En el párrafo 2 del artículo 63 del Acuerdo sobre los ADPIC, se exige a los Miembros que notifiquen al Consejo de los ADPIC las leyes y los reglamentos hechos efectivos por el Miembro en cuestión y referentes a la materia del Acuerdo, con el fin de ayudar al Consejo en su examen de la aplicación del Acuerdo.

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IP/Q4/POL/1 Polonia Estados Unidos de América 2. Please describe briefly the procedure that must be followed by a foreign party to initiate an enforcement procedure in each of the courts and administrative bodies identified in response to question 1 and cite the legal authorities establishing those procedures.
Procedures of a foreign party aimed at initiating an enforcement procedure before Polish courts do not differ from procedures which must be followed by a Polish party and which are described in response to question 1.
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 3. Please identify any requirement that a foreign party must meet to initiate a proceeding in the courts and administrative bodies identified in answer to question 1 that is not required of a national or resident of Poland and cite the legal authorities providing for those differences.
A foreign party does not have to meet any other requirements than the ones required of a national or resident of Poland. The only difference, in case this party resides or has its seat outside Poland, is the necessity to indicate in the statement of claim an agent for delivery in Poland if it has not appointed an attorney ad litem having its seat in Poland (Article 1135 § 1 CCP) . A foreign party is given a due date to pay court fees not shorter than two months (Article 16 § 2 of the Act on Court Fees in Civil Cases). Moreover, a foreign party may be imposed, at the request of the defendant, the obligation to place a deposit to secure the costs of the lawsuit of the opposing party (Article 1119 CCP) . Deposits do not apply to foreign parties in case Polish citizens do not have such an obligation in their countries if they have a sufficient property in Poland to secure the costs or if they have been exempted from incurring court fees (Article 1120 CCP). The plaintiff does not have such an obligation in the following cases (Article 1120 CCP): - if in its country Polish citizens do not have such an obligation; - if it has in Poland a place of residence or a property sufficient to secure the costs; - if it has been granted or is entitled to exemption from paying the costs of the lawsuit; - in cases which have been submitted by the parties to jurisdiction of Polish courts. Obtaining by a foreign party of exemption from paying the costs depends on reciprocity condition. According to the requirements laid down in the Law on Inventive Activity, (Article 32(7)), Law on Trademarks (Article 51) and in the Law on the Protection of Topographies of Integrated Circuits (Article 36), foreign natural and legal persons may act, in proceedings before the Patent Office or the Boards of Appeals, only when represented by an patent agent who is a permanent resident in Poland.
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 4. Articles 41.1 and 48 of the TRIPS Agreement require establishment of safeguards against abuse of judicial and administrative enforcement procedures, including provision for adequate compensation for injury suffered because of such abuse. Please describe the means available under the law of Poland to prevent abuse of judicial and administrative procedures or to remedy damages suffered as a result of such abuse and cite the legal authorities for those means.
Safeguards against abuse of judicial enforcement procedures under the laws of Poland, provided for in Articles 41.1 and 48 of the TRIPS Agreement, are covered by the following institutions: A party against whom the claim has been dismissed (sued unjustly) has the right to be refunded the costs of the lawsuit. The costs of the lawsuit are refunded at the request of the entitled party. The costs of the lawsuit of the party represented by a attorney include remuneration and expenses of one attorney, court fees and costs of the party's appearance in person ordered by the court (Article 98 § 3 CCP). The costs of the lawsuit are adjudicated regardless of the adjudicated compensation. If the party sued unjustly suffered injury as a result of an ungrounded action being instituted against him, it will have the right to vindicate its remedy. The basis for the claim will be Article 415 of the Civil Code. Institution of an ungrounded action shall be treated as an action caused by the plaintiff's fault. The principle of full amount of the injury is used to determine the amount of compensation (Article 361 of the Civil Code), namely: - real losses including diminishment of the property suffered by the injured party, - lost benefits which it could have gained if it had not suffered the injury. This liability covers only standard (i.e. being in a standard causative relation) effects of action or negligence on part of the party causing the injury. If at the plaintiff's request means of securing the claim have been used unjustly, and the court collected a deposit (Article 739 CCP) the defendant shall have the priority to have its claim satisfied from this deposit. The amount of the deposit is determined by the court prior to giving a ruling securing the claim, taking into consideration the amount of any possible injury that may be suffered by the party against whom the safeguard is used. In cases on protection of certain categories of intellectual property will apply also special regulations contained in the Act of 16 April 1993 on counteracting unfair competition (Journal of Laws No. 47, item 211). In accordance with Article 22 § 1 of the above-mentioned Act in case of instituting an obviously ungrounded action concerning unfair competition, the court at the request of the defendant, may order the plaintiff to submit a single or reiterated declaration of appropriate contents and appropriate form.
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IP/Q4/POL/1 Polonia Estados Unidos de América 5. Article 41.2 addresses, among other things, the cost of judicial and administrative enforcement proceedings. Please describe any fees charged by judicial or administrative officials for filing legal actions involving intellectual property or for pursuing such actions once initiated, cite the legal authorities for such fees, and provide copies of the documents used to inform the public of such fees.
The costs of proceedings in cases involving intellectual property are determined in the Act of 13 June 1967 on Court Fees in Civil Cases (Journal of Laws No 24, item 110 with further amendments). Article 31 of the cited Act stipulates that in cases involving non-property rights or in cases involving property rights the value of which cannot be determined upon instituting the legal action a temporary entry is specified. In its ruling ending the legal action in the first instance the court determines the amount of the final entry - in cases involving non-property rights, taking into consideration the property situation of the party burdened with costs, and in cases involving property rights - taking into consideration the value of the object of dispute of the case determined in the course of the proceedings. The same fee (entry) applies to appeal and cessation, thus to means of appeal in the course of the proceedings, whereas their amount is determined according to the value of the object of appeal. Moreover, the parties are obliged to cover, in the form of advance payment, the necessary amounts for experts' opinions if they apply for their execution. Besides, the parties pay insignificant fees to copies of legal documents issued to them, covering the costs of preparing the documents. Judicial procedure does not provide for any forms intended to inform parties of the amount of due court fees. Each time the amount of the fee is determined by the court and in its order to pay the fee determines its amount, date and form of payment.
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 6. Article 41.2 also addresses the timeliness of judicial and administrative enforcement proceedings. Please cite to the legal authorities establishing any time-limits for judicial and administrative proceedings and, if it has not already been done, provide copies of the laws or regulations in question.
Judicial procedure does not provide for explicitly determined time-limits to examine civil cases, including cases involving protection of intellectual property. There is a principle to examine cases in the sequence of their coming in before the court, without unjustified delay. Time-limits which may be relevant for the parties to the lawsuit in cases on violation of intellectual property rights are the following: - time-limit to lodge a complaint is one week and is counted from the day of serving the decision or from the day of announcing the decision taken at the hearing unless the party has not demanded serving of the decision (Article 394 § 2 CCP); One is entitled to lodge a complaint to a court of the second instance about the decision of a court of the first instance ending the case, and also about the decision of a court of the first instance enumerated in Article 394 § 1 CCP; - time-limit to make an appeal against the judgement of a court of the first instance to a court of the second instance is two weeks from the delivery to the party appealing against the judgement with justification (Article 369 § 1 CCP). Appeal is a means of appealing against the judgement pronounced in the first instance to which a party is entitled; - time-limit to submit a demand a written justification of the judgement of the first instance is one week from the day of announcing the conclusion of the judgement (Article 328 § 1 CCP); - time-limit to institute cessation is a month, counted from the day of serving the decision to the claiming party. The party is entitled to cessation from the judgement or decision given by a court of the second instance and ending the proceedings in the case; - time-limit to make a demand for serving of the ruling pronounced in the second instance is one week from the announcement of the conclusion of the judgement (Article 387 § 3 CCP); - motion for securing is examined by the court immediately but not later than within one week from its submittal. If the act provides for examination of the motion at the hearing, it should be examined not later than within one month. However, if the Act on Copyright and Neighbouring Rights provides for examination of the motion for securing the claim within three days from the day of its submittal to the court, it stipulates the same time-limit for examination of the motion to secure the evidence and motion to oblige the defendant to provide information and make available the documentation specified by the court which is relevant for the claims.
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 7. Please explain any provisions in the enforcement system in Poland that ensure expeditious remedies. In addition, please explain what provisions are available to prevent deliberate delays by the parties to a proceeding and indicate the circumstances in which such provisions will be applied.
The laws of Poland do not provide for expeditious proceedings. However, the party causing protraction of proceedings with the use of possibilities to which it is entitled may be subjected to a sanction imposed by the court in the form of being burdened with the costs of the proceedings, arisen because of this (Article 103 CCP).
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 8. Article 41.3 of the TRIPS Agreement requires that decisions on the merits of a case preferably be in writing, the better to determine the reasoning on which the decision is based. Please state, with regard to each type of court and administrative body identified in question 1, whether judges or administrative officials must render their decisions in writing and cite the legal authorities requiring such written opinions.
All decisions of Polish courts must be prepared in writing. Such obligation is specified in Article 324 § 1 CCP with respect to judgements and Article 361 with respect to decisions. The contents of decisions are specified in Article 325 CCP. Written justification of a judgement is prepared at the party's request, submitted within a week's time from the day of announcing the conclusion of the judgement, and in case of absence at the hearing of the party deprived of liberty - from the day of serving the conclusion of the judgement. The court prepares justification of also in the situation when the judgement was appealed against in the statutory time-limit of three weeks from announcing the judgement (Article 328 § 1 CCP). Judgement with justification is served only to the party who demanded preparation of justification. Decisions pronounced at open sitting are justified by the court only when they are appealed against and only at the party's request submitted within a week's time from the day of pronouncing the decision. These decisions are only served to this party who demanded preparation of justification and serving of the decision with justification. Decisions reached at closed sitting are served ex officio by the court to both parties. In case the party is entitled to means of appeal, the decision should be served with justification. while serving the decision one should instruct the party appearing in the case without a attorney or legal advisor of admissibility, time-limit and form of lodging means of appeal (Article 157 § 1 and 2 CCP). The justification referred to in the preceding paragraphs, should be prepared within a week from pronouncing the decision at closed sitting. If the decision was taken at open sitting, the week's period is counted from the day on which its serving was demanded, and in case there was no such demand - from the day of lodging a complaint. The court of the second instance justifies the judgement and decision ending the proceedings in the case (Article 387 § 1 CCP). Justification should be prepared within two weeks' time from the day of announcing the conclusion of the ruling. If the ruling was not announced, this period is counted from the day of pronouncing the ruling. The ruling with justification is served to the party who within a week's time from announcing the conclusion demanded its serving. If the ruling was not announced, the ruling together with justification is served to the parties ex officio within a week from preparing the justification. If there are no special regulations concerning proceedings before the Supreme Court, to these proceedings apply respectively regulations on appeal, while the time-limit for preparing the justification of the ruling by the Supreme Court is four weeks (Article 393 CCP).
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 9. Article 41.3 also requires that decisions on the merits of a case be based only on evidence in respect of which parties had an opportunity to be heard. Please state, with regard to each type of court and administrative body identified in question 1, what factors may be considered by a judge or administrative official in rendering a decision and cite the legal authorities establishing the basis on which judges and administrative officials may reach decisions.
Decisions taken by courts may be based exclusively on evidence concluded before the court at the hearing (Article 210 § 3 CCP). The object of the evidence before the court are facts relevant for the settlement of the case (Article 227 CCP). The court judges credibility and force of evidence at its own discretion (Article 233 § 2 CCP). The court may also base its decision on facts not requiring any evidence which are publicly known (Article 228 § 1 CCP) and on facts admitted by the other party in the course of the proceedings (Article 229 CCP). The court notifies all parties to the proceedings of the court's sitting in order to hold a hearing (its place and date) (Article 149 § 2 CCP). The summons should be submitted to the parties not later than one week prior to its due date and should contain, among other things, indication of the parties, object of the proceedings, objective of the sitting and effects of failure to appear (Article 150 CCP). Parties' appearance at the hearing is not obligatory. A party has the right at the hearing to put forward motions and express opinions about all the issues being object of the hearing (Article 2110 § 1 CCP). It may also do it in the written statement of claim submitted to the court before due date of the hearing (Articles 209 and 211 CCP).
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 10. Article 41.4 obligates WTO Members to provide for judicial review of certain judicial and administrative decisions in intellectual property enforcement proceedings. Please describe what legal limitations, if any, are placed upon the ability of a party to an intellectual property enforcement proceeding to have both procedural rulings and final decisions reviewed by a separate judicial authority, and cite the legal authorities providing for such reviews.
Polish judicial procedure does not allow the possibility of excluding admissibility of lodging an appeal against the judgement of a court of the first instance to another, separate judicial authority (Article 367 § 1 CCP: One is entitled to appeal against the judgement of a court of the first instance to a court of the second instance. § 2: Appeal against the judgement of a district court is reviewed by a voievodship court, and appeal against the judgement of a voievodship court as the court of the first instance - by a court of appeal).
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 11. Article 42 requires that defendants be notified of judicial and administrative intellectual property enforcement proceedings brought against them. Please describe the procedures followed by each type of court and administrative body identified in question 1 for notifying defending parties regarding proceedings that have been initiated against them, indicate the information provided regarding the proceeding and cite the legal authorities establishing these procedures.
Courts are obliged to notify defendants of each intellectual property enforcement proceedings being brought against them. Performance of this obligation is as follows: (1) after the statement of claim is submitted and duly paid, the court serves the copy of the statement of claim to the defendant by post or by intermediary of an usher (Article 131 CCP) notifying him at the same time of the hearing and instructing about the effects of failure to appear or failure to reply to the statement of claim, in which it may furnish explanations or put forward its motions, including motions as to evidence. (2) the present parties are notified of each date of the next sitting orally at the sitting, and absent parties are notified by being served a notice (Article 149 CCP). The effect of the defendant's failure to appear at the hearing, in case it did not furnish any explanations in writing or orally at the foregoing hearing or it did not put forward a motion to conduct a hearing in its absence, is passing a judgement by default (Article 339 CCP). The court instructs the defendant about the above effects upon notifying of the due date of the hearing. The same procedure is followed in case of other statements of claim, including in particular statements of claim containing means of appeal (appeal and cessation).
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 12. Article 42 also requires that parties to intellectual property enforcement proceedings must be able to be represented by counsel and must not be subject to overly burdensome requirements to appear personally. Please describe any limitations under Poland’s laws on the ability of a party in such a proceeding to be represented by independent legal counsel and any requirements imposed on the party to appear personally in a proceeding. Please cite the legal authorities providing such limitations and imposing such requirements.
The laws of Poland do not limit in any respect the right of parties to be represented by an independent attorney (Article 87 CCP). The obligation to appear personally at the hearing before the court may be imposed only in case: - the court concludes that it is necessary to better explain the state of the case (Article 216 CCP); - the court rules to prove the evidence obtained by hearing the parties, if after exhausting other evidence facts which are relevant for settlement of the case remained unexplained (Article 299 CCP). In both cases the appearance of the party may not be imposed, and failure to appear may not cause adverse effects, apart from omission of evidence from hearing the parties (Articles 302 § 1 and 304 CCP).
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 13. Under Article 42, parties are to be entitled to substantiate claims and present relevant evidence. Please describe any limitations under the law of Poland on a partys ability to substantiate a claim or to present relevant evidence and cite the legal authority providing such limitations.
The laws of Poland do not limit the parties in supporting their claims and putting forward motions as to evidence (Article 217 CCP). However, the court will omit the evidence, if controversial circumstances have already been substantiated or if a party brings forward evidence only to cause delay (Article 217 § 2 CCP) and besides the court is not obliged to conclude evidence in the appeal proceedings (of the second instance) if a party does not prove that it could not use it in the proceedings before a court of the first instance or if the need to conclude it appeared later (Article 381 CCP: "A court of the second instance may omit new facts and evidence, if a part could bring it forward in the proceedings before a court of the first instance, unless the need to base on it arose later."). Parties may also in the course of the proceedings present to the court legal bases for their demands and motions (Article 210 § 1 CCP).
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 14. Article 42 requires, with one narrow exception, that there be a means to identify and protect confidential information during judicial and administrative intellectual property enforcement proceedings. Please describe the means provided under the law of Poland for parties to identify and have protected confidential information required to be presented in order to prove their claims and cite the legal authorities providing for such identification and protection.
Judicial procedure provides for appropriate means of protecting confidential information in the following form: A judicial hearing during which materials (evidence) containing confidential information are supposed to be disclosed, is conducted at the request of each party in camera i.e. with no members of the public permitted to be present (Articles 153 and 154 CCP). Files of judicial proceedings are available only to the parties taking part in the proceedings (Article 9 CCP). In cases examined with exclusion of openness nobody apart from the parties and persons discharging supervision functions of the judicial proceeding may have access to the files. Officials (judges, court officials, attorneys) who take part in examination of cases are obliged to keep secret the information disclosed to them in connection with the proceedings.
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 15. Article 43.1 of the TRIPS Agreement requires that judicial and administrative officials be able to order a party to an intellectual property enforcement proceeding to produce relevant evidence in that partys control identified by the opposing party when the latter party has presented reasonably available evidence in support of its claims. Please describe how and in what circumstances judges and administrative officials may order production of relevant evidence in intellectual property enforcement proceedings and cite the legal authorities providing for such orders.
In accordance with Article 208 § 1 CCP, the court may demand the opposing party to produce for the hearing the evidence in that party's control if that party is a state or self-government entity and each party to produce at the hearing documents, books, plans etc. The basis for proving such evidence is the court's decision not being subject to separate appeal (Articles 236 and 233 § 2 CCP) The defendant in the proceedings involving infringement of copyright or related rights may be obliged by the court to provide information and make available specific documentation relevant for the claims of the qualified author (Article 80 § 1 point 1 of the Act on Copyright and Neighbouring Rights). Failure to comply with this obligation may lead to the use of coercive measures. However, in its ruling the court judges the importance of the party's refusal to produce ordered evidence or causing the impediments in proving thereof, and may consider the circumstance which was to be substantiated with this evidence to be proved (Article 233 § 2 CCP).
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 16. Information ordered to be produced, referred to in question 15, must be protected if it is confidential. Please describe the means provided under the law of Poland for protecting such information and cite the legal authority providing for such protection, if those means differ from those described in answer to question 14.
The method and scope of protection of confidential information ordered by the judicial or administrative officials, obtained from the opposing party (as in the answer to question 15) does not differ from the protection mentioned in the answer to question 14.
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 17. Article 43.2 provides that, in the event a party refuses to provide information ordered by the judicial or administrative officials, those officials may be authorized to make preliminary and final determinations adverse to that party. Please describe what sanctions may be imposed on a party that refused to provide ordered information and under what circumstances those sanctions are imposed, citing the legal authority for those sanctions.
The answer to question 17 is contained in the answer to question 15.
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 18. Article 44.1 requires that judicial and administrative officials be able to enjoin or otherwise prevent infringing activity by a party, including by preventing the entry of infringing goods into the channels of commerce in their jurisdiction. Please describe authority of the judges and administrative officials identified in question 1 to order parties to stop infringements and to prevent infringing goods from entering the channels of commerce in their jurisdiction immediately after clearance of such goods through customs. In addition, please cite the legal authorities authorizing such actions.
Under the laws of Poland courts may prohibit any activity infringing copyright the moment there is a danger of such infringement (Article 78 § 1 of the Act on Copyright and Neighbouring Rights) and after their infringement (Article 79 § 1 of the Act) abandonment of rights resulting from the registration of trademark (Article 20 § 1 of the Law on Trademarks of 30 January 1985) (Journal of Laws No 5, item 17). This law includes also preventing the entry of goods infringing intellectual property rights subject to customs clearance, immediately after the end of these proceedings.
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 19. Article 44.2 provides an exception to the requirement in paragraph 1 for government use or use by third parties authorized by the government, limiting the remedy for infringement to payment of adequate remuneration as provided in Article 31(h). Please describe any such limitations on remedies in the laws of Poland and cite the legal authorities providing for those limitations.
The laws of Poland do not provide for the limitations specified in Article 44.2 of the TRIPS Agreement to payment of adequate remuneration as provided in Article 31(h) of the TRIPS Agreement.
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 20. Article 45.1 requires that judicial and administrative officials be able to order an infringer to pay the right holder damages adequate to compensate for the injury caused by the infringement. Please describe the authority of the judges and administrative officials identified in question 1 to order a party found to be infringing to pay the right holder damages adequate to compensate for the injury caused by the infringement. Please explain the factors considered in establishing the amount of the compensation and cite the legal authorities authorizing such compensation orders.
In order to establish the amount of damages to compensate for the infringement of intellectual property rights the principle of full amount of the injury is used, namely: - real losses including diminishment of the property suffered by the injured party as a result of infringement of its right, including purposeful expenses incurred in order to establish the infringer, e.g. remuneration for a detective searching for the infringer; - lost benefits which it could have gained if it had not suffered the injury. This liability covers only standard (i.e. being in a standard causative relation) effects of action or negligence on the part of the party causing the injury. The legal basis are the provisions of Articles 361 and 415 of the Civil Code and Article 79 of the Act on Copyright and Neighbouring Rights, and also Article 20 § 2 of the Law on Trademarks.
21/09/1998
IP/Q4/POL/1 Polonia Estados Unidos de América 21. Article 45.2 requires that judges and administrative officials be authorized to order payment of a right holder's expenses, including legal fees. Please describe the authority of the judges and administrative officials identified in question 1 to order payment of right holders' expenses, the circumstances under which such an order will be given, the factors considered in establishing the expenses, and cite the legal authorities authorizing such payments.
The right holder expenses subject to refund by the infringer of the right (Article 45.2 of the TRIPS Agreement) are, according to the laws of Poland, costs necessary for the purposeful vindication of rights (Article 98 CCP) and include the following: incurred legal costs (legal fees, costs of court experts, costs of appearance of witnesses), the plaintiff's and its attorney's travel costs to the court, salaries lost by the plaintiff as a result of its appearance in court if the plaintiff is not represented by its attorney (Article 98 § 1 and 2 CCP). If the plaintiff (party vindicating its claim) is represented by a attorney, to the costs subject to refund is also added the attomey's remuneration and his expenses, and also all expenses for the paid legal costs (Article 98 § 3 CCP). The attorney's costs are determined in the amount resulting from the invoice issued by the attorney for the whole legal representation. The amount of the attorney's remuneration may not exceed the rates specified in the decree of the Ministry of Justice. If the attorney does not submit the specification of costs (invoice), their amount is determined by the court within the rates' limit specified in the decree, taking into consideration labour consumption of the case. This formula is used exceptionally since attorneys usually submit invoices. The court cannot then reduce its due remuneration if it within the rates' limit. At present, due to amendments in the law, the amount of the attorney's remuneration is determined freely in the agreement concluded with the attorney. However, in order to protect the rights of the party losing the lawsuit, there is a rule that the adjudicated refund of the attorney's costs may not exceed maximum rates specified in the decree of the Minister of Justice. These rates are determined according to the value of the object of the judicial proceedings (of the vindicated claim). The court passing its judgement, is obliged, at the request of the parties, to decree the costs of the proceedings and the adjudicated costs are the total of the above-mentioned expenses of the party (Article 108 CCP).
21/09/1998

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