Nabycie nieruchomości przez licytanta pozostającego wmałżeńskim ustroju wspólności majątkowej

Abstrakt

The purpose of the article is to analyse selected issues relating to the acquisition of property in the course of executive proceedings by the participants of an auction (bidders) who remain in the system of joint matrimonial property, both statutory and contractual. It is assumed that according to functional and systemic interpretation of Article 976 § 1 of Polish Code of Civil Procedure execution does not involve the debtor's child or their child's spouse. It is stipulated that the acquisition of property by way of execution requires that the bidder's spouse give consent, by virtue of Article 37 § 1 of Polish Family and Guardianship Code. The assumed position in the article contradicts the resolution of the Supreme Court of March 22, 2007 (III CZP 13/07).

It is therefore advisable to formulate a de lege ferenda postulate to amend legislation, which would extend the circle of persons (specified by Article 976 § 1 of PCCP) to include the spouses of those excluded from an auction. It seems desirable to introduce a requirement whereby the spouse consents to participate in an auction if the property is to be incorporated in the joint matrimonial property.