The limited partnership is a synthesis two types of companies: personal and capital. Although S.K.A. combines the characteristics of a limited partnership (clear) and a joint stock company, it does not constitute a variety of any of them and is a stand-alone legal form. one with questions that are important in the practice of managing the company, can a complimentary without the right to represent the company be a member of the supervisory board?
Synthesis in S.K.A. consists of replacing the limitedaries of a typical limited partnership with shareholders whose legal position corresponds to the position of shareholders of the joint stock company. Another element that brings S.K.A. closer to capital companies is the possibility of establishing a supervisory board.
The Supervisory Board of the limited partnership is one of three exceptions to the presence of bodies in personal companies (second except for the general meeting in S.K.A. and third management in a partner company).
According to Article 142(5) KSH is not in any way prevented from being elected by a general meeting of shareholders as a member of the supervisory board by a non-right to conduct or represent the company.
The Supervisory Board is a typical body for capital companies. He is present in the company z o.o. and in the joint stock company. Its task is to control the company's business and finances. This is particularly the case where partners do not conduct and represent the company, either because of the large number of shareholders or because of the large scale of the company's company, it would be difficult to carry out individual checks.
The supervisory board should include persons with appropriate preparation, knowledge and experience. The possession of a supervisory board by S.K.A. allows for the release from control duties of partners who do not have adequate preparation and knowledge or capabilities. The Supervisory Board should be a professional, institutionalized audit body, which, through the powers assigned to it, may carry out permanent supervision of the company, replacing the shareholders of the company.
If, in a limited partnership, the number of shareholders exceeds 25 persons, the appointment of a supervisory board is mandatory. In a company with fewer shareholders, the appointment of a supervisory board depends solely on the will of the shareholders.
The provisions on the limited partnership do not contain provisions on the supervisory board, therefore by way of a reference from Article 126(1)(2) The relevant rules governing these issues are the provisions on the supervisory board of the public limited liability company.
In a limited partnership, a very important aspect of controlling the company's business and finances is the limitation of the active and passive right to elect members of the supervisory board.
According to Article 142(4) KSH, if the associate has acquired or acquired shares in a limited partnership, does not exercise the voting rights of those shares when adopting resolutions on the appointment and dismissal of members of the supervisory board. In terms of passive electoral law, the situation is a little more complicated.
Content Article 142(3) KSH, members of the supervisory board may not be members of the board of directors of the company or its representative and their employees.
This prohibition shall also apply to the attorney, liquidator, head of the branch or establishment and to the company's principal accounting officer, legal adviser or lawyer and persons who are directly subject to the assistants or liquidator.
Regulation Article 142(3) The KSH avoids that the subcontractors or persons directly associated with them control their own activities. This would be incompatible with the nature of the controls in commercial companies. The Supervisory Board is a controlling body for shareholders.
It should consist of shareholders or persons delegated by them. Consequently, the associate, who is also a shareholder, has no right to be a member of the supervisory board. The adoption of the reverse assumption would result in a shareholder-counsel controlling itself, making any control in the company purely illusory.
However, according to Article 142(5) KSH is not in any way prevented from being elected as a member of the Supervisory Board by a general meeting of shareholders without the right to conduct or represent the company. Depriving the associate of the power to conduct matters or represent the company thus opens up a passive electoral right to the Supervisory Board and the right to vote on its appointment shares and to dismiss the members of the control body.