The primary method of discharge by a board member of personal responsibility for the limited liability of a limited liability company in the event of insolvency is – according to Article 299(2) k.s.h. – filing for bankruptcy in due time. What should we remember when completing the formalities?
The statutory deadline for submitting such a request is obviously 30 the days from the date on which the grounds for bankruptcy arose — the insolvency of the company, it being irrelevant whether the application was submitted by a member of the board of directors who was a party to the defendant in the process or by another of the entities entitled to it. It is only important that an effective application for bankruptcy of the company is filed, with a statutory deadline.
The absence of any financial resources on the part of the requested entity shall give rise to the rejection of the application for bankruptcy
At this point, attention should be paid to the fact that, in seeking bankruptcy, the debtor is obliged, together with the submission of the application, to pay the appropriate fees. The court fee on the application for bankruptcy is now equal to 1,000 PLN.
In addition, the applicant shall be obliged to pay an advance on expenditure to be incurred in the course of the procedure.
Amount of this amount, as provided for Article 22a Insolvency Laws equals one-time average monthly remuneration in the enterprise sector, without payment of prizes from profit In the third quarter of the previous year, announced by the President of the Central Statistical Office.
Proof of this payment shall be attached to the application for bankruptcy. The absence of this advance results in a call for it to be settled within a week, under the rigor return of the application.
It should be considered that the application cannot be regarded as effective when it was subsequently returned or rejected by the insolvency court for formal reasons. Therefore, a member of the board whose intention is to be released from liability for the liability of the insolvent company from the o.o.
must submit an appropriate application and pay the legal fees. In the event of failure to pay the fees described above, the application will not be effectively notified and the exonerative condition envisaged will not be met. Under Article 299(2) k.s.h.
It is clear, however, that bankruptcy claims are made by entities whose financial resources are very limited and therefore do not have the resources needed to cover the fees described.
It should be pointed out that the lack of any financial resources on the part of the requested entity is a grounds for dismissing the application for bankruptcy, since according to Article 13(1) Insolvency laws, the court filed for bankruptcy when the debtor's assets were not sufficient to cover the costs of proceedings or only those costs were covered.
However, dismissing the application is a substantive decision following the court's examination of the application and examining the financial situation of the company.
Therefore, in order to dismiss the application for bankruptcy of the company because its assets are not sufficient to cover the costs of the proceedings, it must first be possible to apply for bankruptcy effectively, so that the applicant is obliged to pay the applicable statutory fees described above.
However, the applicant may at the same time apply for an exemption from the obligation to bear judicial costs (both in the field of court fees and advance payments).
The Court's consideration of the debtor's request for exemption from judicial costs is subject to his demonstrating that he is unable to bear them without prejudice to the maintenance of himself and his family (in the case of natural persons) or that he does not have sufficient resources to pay them (in the case of companies).
However, in the case of applications relating to legal persons, such exemptions are very rarely granted, which leads to the conclusion that, in order to be released from liability for the liability of an insolvent company, it is, in principle, necessary to bear the appropriate judicial costs associated with filing for bankruptcy, regardless of whether the company has sufficient resources to carry out insolvency proceedings.
Author: Michał Wasilenko
Lawyer, Senior Associate in the Legal Department, member of the Bar Association in Lublin, graduate of the Faculty of Law and Administration at Maria Curie-Skłodowska University in Lublin. He specializes in commercial and civil law law.