[legal status on 27.01.2017]

Securing maintenance claims is a kind of innovative protection of the rightholder, consisting in creating a new provisional situation for the duration of the process, in which the obligated person is obliged to pay a certain sum of money once or periodically (due to the nature of the benefits, the security is in most cases a commitment to pay the indicated periodically receivables, not one-off payment). The purpose of this security is to provide the lender with immediate means of payment, and not, as is the case with most securities, to ensure the execution of the future judgment. The legal basis for granting such security can be found in art. 730 § 1 k.p.c. in connection with art. 753 § 1 k.p.c.

The person entitled must substantiate the existence of the claim, which means that the entity applying for the security is not obliged to prove that its absence will hinder or make it impossible to achieve the purpose of the proceedings or to enforce the decision which will be taken in the case. In addition, art. 753 k.p.c. (an exception to the rule expressed in Article 731 of the Code of Civil Procedure) from which it is clear that, although there is no award of maintenance, the person already receives what may be due to him on the basis of a future judgment (obligation to pay a single or periodically specified sum of money) .

Any party or participant in the proceedings may apply for a security if it makes a substantive claim and a legal interest in granting the security. The decision of the court in this case is given by the enforcement clause ex officio, which results in the fact that from the receipt of the order it is possible to initiate enforcement proceedings (more in ETAP III the enforcement of maintenance)

An application for safeguarding maintenance claims may be filed in writing or orally for the record. The request is submitted to the court of the first instance, in which the case is pending or will take place (it can be together with the statement of claim or separately, even before the initiation of the proceedings).

In addition, the application should contain information such as:

• total collateral,
• the way of fulfilling the service,
• substantiating the circumstances justifying the application,
• concise representation of the subject matter of the case (NOTE applies only to the situation where the application was made before the proceedings were initiated).

An application for safeguarding maintenance claims shall be heard without delay, however not later than one week from the date of its receipt by the court. Importantly, such a request is free from court fees.

The court issues a decision on the granted security at a closed session, with the exception of an application for revoking or limiting the previously granted security (the court is not obliged to hear the opposite party). A final judgment is delivered to both parties to the proceedings. The decision of the court of the first instance may be appealed (NOTE: Filing a complaint against the decision to secure maintenance does not suspend the enforceability of this provision.).

It is also worth mentioning the possibility that I foresee art. 754 k.p.c., allowing for securing maintenance claims of an unborn child.