Abstract

A court referendary is undoubtedly a highly qualified court clerk of a special nature and rank, enjoying independence as regards the contents of the decisions issued. Their position allows for considering them as a body performing judicial functions, although nor included in the judiciary and not performing the administration of justice. Neither the purposefulness of introducing referendaries to the legal order, nor the admissibility of relieving judges by referring certain cases (in the technical sense) to be resolved by referendaries arouse any doubts.

However, the need to administer justice constitutes the intransgressible limit for expanding the powers of referendaries. It seems that under the current constitutional order, owing to the fact that a court referendary is not a judicial authority and cannot be awarded such qualification by the ordinary legislator and also because of the fact that it is the court that must supervise bailiffs exercising enforcement on behalf of the State, it is impermissible to entrust a referendary with the function of an enforcement court in order to perform judicial supervision of the enforcement actions of a court bailiff. The striving to guarantee fast and efficient proceedings in civil cases must be accompanied by self-restraint of the legislator as regards entrusting referendaries with judicial powers so as to prevent violation of the constitutional principles that justice is administered exclusively by courts (Art. 175 of the Polish Constitution) by appointing persons that do not enjoy judicial independence and irremovability.