one from the means of securing the debtor's assets is the establishment of a temporary judicial supervisor (hereinafter referred to as ‘TNS’) which follows the order of the court. It is a matter of substance and, at the same time, quite controversial to challenge the order to establish a temporary judicial overseer. The case law of the common courts within the same district or even department can vary in this area.
According to Article 36 Act of 28 February 2003 Bankruptcy law (Journal of Laws of 2017, item 2344 as amended, hereafter as ‘Insolvency Law’), the court may, upon application for bankruptcy, either at the request of the participant in the proceedings (applicant and debtor) or ex officio, secure the assets of the debtor. It may do so by setting up a temporary judicial overseer.
The matter relating to the possibility of filing a complaint against the decision to establish TNS has not been regulated directly by the Bankruptcy Law
At this point, it should be stressed that the matter relating to the possibility of bringing a complaint against the provision of TNS, in contrast to other issues (e.g. the examination of a request for security in a secret sitting - Article 27(1) Bankruptcy Law), was not regulated directly in the Act Bankruptcy Law.
Therefore, the key issue for the problem of the challenge of the provision establishing the TNS is the interpretation of the provision Article 37 Bankruptcy law.
Under this provision, in cases not governed by the Act, the provisions of the Act of 17 November 1964 Code of Civil Procedure (Journal of Laws of 2018, item 1360 as amended, hereinafter referred to as ‘k.p.c.’) on security proceedings.
The disposition of the above-mentioned provision indicates that we should first make sure that the provisions of the Insolvency Law do not regulate a particular issue separately and, if not, check whether it is regulated by the safeguards provisions of the General Court. 1 .
It is only if it is established that the provisions relating to the safeguard procedure in KPC do not regulate this issue, that reference should be made to the provisions of the book first Code of Civil Procedure.
The argument relating to the view that there is no complaint against the decision to establish TNS refers mainly to the content already repealed Article 42 Bankruptcy law.
Article 42 In fact, the insolvency law provided for the possibility of bringing a complaint against the determination of the manner in which the insolvency proceedings were based.
According to this position, interpretation of the provision Article 42 The insolvency law leads to the conclusion that the parties to the insolvency proceedings could not and cannot contest the mere fact that the collateral was provided, but only the way the collateral was made.
Thus, according to the view presented, the complaint was entitled to “a provision on how to safeguard”. On the other hand, ‘the way in which the security is secured’ means the means by which the court made the security.
The courts representing this position also refer to the fact that Article 38 The insolvency law does not provide for an appeal against a decision to establish TNS. In view of the above, part of the judicature, the complaint should be considered inadmissible and rejected.
As regards the view that the complaint against the provision establishing the TNS is admissible, it should be stressed that the provision Article 37 The insolvency law does not directly indicate that Article 741 k.p.c. does not apply in the case of insolvency proceedings.
A contrario Article 37 Bankruptcy law in section 2 clearly indicates that Article 396 k.p.c. does not apply. Given that Article 37 Bankruptcy law directly excludes the possibility of applying the relevant provision of the act, which should also directly indicate the exclusion of other provisions of the Civil Procedure Code.
Therefore, if we assume that there is no complaint against the decision to establish TNS, Article 37 The Civil Procedure Code should expressis verbis indicate the exclusion of the application of the provision Article 741 k.p.c.
On the other hand, it should be pointed out that the previous Article 42 The insolvency law pointed to the possibility of challenging the provision on the manner in which the security was granted. According to the editorial Article 741 k.p.c.
and with doctrine 2 , Complaint shall be given to any order of the court first the security, including the provision granting the security or refusing to provide the security. Therefore, the scope of the legislation Article 741 k.p.c. and Article 42 The bankruptcy law is not the same.
This conclusion leads to the conclusion that the participants in insolvency proceedings have had and have the opportunity to challenge the provision on the establishment of a security in insolvency proceedings.
Consequently, the repeal of the provision Article 42 On the other hand, the insolvency laws of the participants do not have the possibility to challenge the provision as to the nature of the collateral granted.
In view of the above considerations, it should be stressed that, in the present situation, the possibility of bringing a complaint against the decision to establish a temporary judicial overseer depends largely on the assessment of the court examining the case. Unfortunately, for a professional proxy, this causes a situation in which it is difficult to predict whether the contested measure will be dealt with in substance or rejected because of its inadmissibility.
1 Janda Paul, Bankruptcy Law. Commentary, ed. II, LEX/el. 2018
2 A. Zieliński (ed.), Code of Civil Procedure. Comment. Wyd. 9, Legalis 2017
Written by Hana Żołnierkiewicz
Lawyer in the Legal Department. From 2017 related to Russell Bedford Dmowski and Associates Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He runs the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.