On 6 September 2019 The president signed Act dated 30 August 2019 on the amendment of the Bankruptcy Law (the Act) and certain other laws. The Act contains significant changes that are intended to improve proceedings and relieve bankruptcy courts in the founding of project promoters.
We've been looking at changes in individuals. In the first Part of the article HERE . Today we're describing other news.
Submission of claims to the syndicate
A significant positive change, both in the event of the bankruptcy of natural persons not engaged in economic activity and in the case of entrepreneurs, is that claims will be filed directly to the administrator, who will carry out the formal notification, substantive analysis and on this basis, as so far, will establish a list of claims.
In addition, the obligation to enter a bank account in the claim is new. In order to avoid doubt, since filing a claim to a syndicate is not an act before a court which interrupts the limitation period, according to the new Article 239a it is indicated that the application for a claim interrupts the limitation period.
After the limitation period has been interrupted, it shall run again from the day following the date on which the decision to terminate is finalised, or discontinuance of proceedings bankruptcy.
At the same time, if the submission of a claim to the syndicate does not meet the requirements of the procedural letter specified a Article 239 and Article 240, then the provision shall apply accordingly Article 130 k.p.c.
On the other hand, the order of the administrator to return the claim to the creditor will be requested to the judge-commissioner.
Late registration fee
As regards the submission of claims, the provision deserves attention Article 235, according to which the creditor who filed the claim after the expiry of the time limit set for filing the claim is liable to the flat-rate costs of insolvency proceedings resulting from the application, even if the delay was incurred without fault, of an equivalent amount 15% average monthly remuneration in enterprise sector without payment of prizes from profit In the third the quarter of the previous year, announced by the President of the Central Statistical Office, unless the filing of claims after the expiry of the deadline is the result of a declaration or other such document covering the settlement.
Powers for the referee and appointed judge
In order to relieve the judge-commissioner, under Article 151 The bill provides that a judicial referee may serve as a committee judge. The actions of the judicial referee acting as a judge-commissioner shall be subject to a complaint in cases where there is a complaint against the decision of the judge-commissioner.
The action shall not result in the contested decision of the judicial referenda. In addition, the actions indicated under Article 57(3) and 4, Article 58(1-3), Article 63a, Article 73(2), Article 259(1)(1a), Article 315 and Article 350(1)(2) perform as Judge-commissioner the appointed Judge.
Acquisition of a fallen company
Under Article 316 New Act added section 4, according to which there will be an obligation to announce the sale of the company, which, according to the project promoters, is expected to increase the transparency of insolvency proceedings, which is relevant for the counterparties and customers of the company. This solution will be correlated with the entry into force of the provisions on the National Debt Register.
Changes to the rule were further made Article 317 The law on succession and liability of the buyer of the bankrupt company, so that added section 2a, the following: ‘Provision Article 231 Act dated 26 June 1974 – The Labour Code shall apply mutatis mutandis."
This change has led to doubts from the legal community (see ‘Prepared settlement in the shadow of doubt’), Dziennik Gazeta Prawna on 27 August 2019 No 165 (5067), who saw that recipe Article 23 1 the labour code, in the event of the acquisition of an undertaking which has fallen bankrupt under the pre-pack procedure, may mean the liability of the buyer for all obligations arising from the employment relationship. True, a new recipe Article 317(2a) provides for ‘adequate use’ Article 23 1 the labour code, and therefore the principles resulting from the Act should be taken into account, but it cannot be excluded that in the case of protection of workers' rights in judicial proceedings, workers' rights will be found primacy over the provisions of the Act.
Creditor repayment plan
The legislator also amended the provision Article 369 and subsequent new rules were introduced on the application for a repayment plan for creditors and the waiver of the remaining part of the obligations. Provided three how to obtain the debt:
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establishment of a repayment plan at the request of the bankrupt (current regulation Article 369(1)). According to Article 370a In the event of the finding that the fallen has led to its insolvency or significantly increased its degree intentionally or through gross negligence, the repayment plan of creditors may not be fixed for less than thirty six months and longer than eighty four months,
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redemption of liabilities without establishing a repayment plan for creditors, if the personal situation of the fallen party clearly indicates that it is permanently unable to make any repayments under the repayment plan for creditors (Article 369(1a) Acts);
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conditional write-off of liabilities without establishing a repayment plan for creditors if the inability to make any repayments under the repayment plan of creditors resulting from a personal default situation is not of a lasting nature (Article 369(2) Act).
Designed change Article 370a The Act is justified by the fact that a fallen person who has led to his insolvency or significantly increased his degree intentionally or through gross negligence should for a longer period be required to repay creditors. In turn, the purpose of introducing a write-off institution or conditional write-off without establishing a repayment plan for creditors (Article 369(1a) and the following Act) may raise doubts and allow abuse on the part of the fallen debtor.
Author: Aleksandra Księżyk – Legal advisor, Director of the Legal Department in Warsaw Chancellery Russell Bedford Dmowski and Partners Law Firm sp. k.