Capacity of participants of administrative procedure.

Following the example of court capacity, distinguished in the science of civil proceedings, and treated as an attribute of legal capacity, it can be applied to procedure conducted on the basis of the provisions of the Code of Administrative Procedure the term "administrative capacity" to determine the legal possibility of acting as a party in this procedure.

In accordance with Art. 29 of CAP the party of administrative proceedings may be any entity having legal capacity assessed according to Art. 30 of CAP, i.e. natural and legal persons. In accordance with Art. 29 a party may be a state, local government or a social organizational unit, regardless of whether it has legal personality or its intrinsic nature is marked only by organizational separation. A party may be a government administration body, as well as a municipality/borough, poviat (county) or voivodship, but it will be necessary to separate them from each other situations in which they exercise administrative jurisdiction and those in which they are parties to proceedings conducted by another administrative body. Article 29 does not formulate the conditions for access of various entities to the circle of parties to proceedings, which corresponds to the variety of obligations decided by administrative decisions.

The notion of legal capacity mentioned in Art. 30 § 1, according to the reference contained therein, should be understood as defined in Art. 8 of the Polish Civil Code in relation to natural persons, and Art. 33 of the Civil Code as to legal persons.

Pursuant to the Civil Code, a natural person may be a subject of rights and obligations established in material law since birth. The legal entity is the State Treasury pursuant to art. 33 of the CC, other entities pursuant to the provisions of separate acts or upon entry into the relevant register (Art. 37 § 1 of the CC). The legal capacity of organizational units without legal personality must be assessed on the basis of specific provisions, usually giving rise to their creation, although not always. The legal capacity of natural persons ceases upon death, and legal persons and other organizational units - upon their legal existence ceases.

The legal capacity granting a party procedural capacity, i.e. the ability to act independently and effectively in proceedings, was also determined by reference in art. 30 § 1 of the CAP, i.e. it must be assessed in accordance with the provisions of Art. 11-17 of the Civil Code or special provisions. According to the provisions of the Civil Code a natural person may have full legal capacity (adult), limited capacity (minors over thirteen years old, partially incapacitated person or a person for whom a temporary counselor has been appointed under Art. 548-550 of Code of Civil Procedure) and may be deprived of legal capacity (minors under thirteen, a person totally incapacitated). Legal persons have full legal capacity and act through their statutory bodies (representatives) (Art. 38 of the CC). In accordance with Art. 30 § 1 in these matters, special provisions may have priority over the Civil Code.

In art. 30 § 4 of the CAP the situation of procedural succession resulting from two reasons was settled: death of a party or sale of things or rights to which the procedure relates. Unlike in civil proceedings, there is no pure procedural sequence in administrative procedure.

In art. 34 of the CAP there is a provision regarding the procedure in an event when the absent party, i.e. the one away from their place of residence, should participate. In light of the various provisions, it should be understood that this is about the absence of the person in the country. If such a person has not appointed a representative, then in accordance with art. 34 § 1, the administrative body applies to the court, which pursuant to art. 184 of the Family and Guardianship Code will appoint a guardian. The administrative authority, in urgent cases, may appoint a representative for the absent person temporarily, who will act as a party until a court-appointed guardian is appointed (Article 34 § 2 of the CAP). Public administration body, having assessed the party's procedural capacity in accordance with art. 30 § 1, will be required to apply to the court to appoint a guardian for a person who does not have such ability.

Article 29. [Definitions]    Only natural and legal persons may enjoy the status of a party, and with regard to state and self-government organizational units and social organizations – also entities not having the status of a legal person.

Article 30. [Reference] § 1. Legal capacity and the capacity to enter into legal transactions shall be determined according to the provisions of civil law, unless specific provisions provide otherwise.

§ 2. Natural persons with no capacity to enter into legal transactions shall act through their legal representatives.

§ 3. Parties not being natural persons shall act through their legal or statutory representatives.

§ 4. In matters concerning transferable or hereditable rights, in case of a transfer of the right or death of the party during the pendency of the proceedings the legal successors of the party shall join the proceedings in lieu of the party.

§ 5. In case of inheritances which have not been taken over, the persons administering the assets of the inheritance estate shall act as a party, and if there are none – a guardian appointed by court upon an application of a public administration authority.

Article 34. [Appointment of a representative] § 1. A public administration authority shall apply to the court to designate a representative for an absent or incapacitated person, unless such a representative has already been appointed.

§ 2. If an action is to be taken immediately, the public administration authority shall appoint a representative for an absent person, who shall be authorized to act in the proceedings until an appropriate representative has been appointed by the court.