In the absence of a timely application for bankruptcy, not only financial but also criminal liability can be borne.
The liability provision for failure to apply for bankruptcy should be sought In the Act dated 15 September 2000 Commercial Companies Code (Journal of Laws of 2019, item 505 as amended, hereinafter referred to as ‘k.s.h.’). According to Article 586 kr.h.
who, being a member of the board of directors of a company or liquidator, does not apply for bankruptcy of a commercial company despite the existence of conditions justifying the bankruptcy of the company, is subject to fines, imprisonment or imprisonment for a year.
Grounds for the allegation of criminal liability with 586 k.s.h.
In order to determine the nature of the criminal liability for failure to apply for bankruptcy, the concept of ‘insolvency’ understood in accordance with the rules should be invoked. Act dated 28 February 2003 (Journal of Laws of 2019, item 498 as amended) Bankruptcy law (hereinafter ‘Insolvency law’).
In order to determine the nature of the criminal liability for failure to apply for bankruptcy, the concept of ‘insolvency’ understood in accordance with the rules should be invoked. Act dated 28 February 2003
Grounds for the plea Article 586 k.s.h. can only be the factual and formal basis for declaring bankruptcy (insolvent of the debtor)[1].
The reasons for assessing whether the company is insolvent are set out in the Article 11 Bankruptcy law.
However, the question of whether there were conditions in the company justifying the submission of an application for bankruptcy Article 11 Insolvency laws require special knowledge and therefore, in criminal proceedings, they should be established by an expert appointed for this purpose (in the field of finance and accounting or economic analysis)[2].
It should be stressed at this point that the nature of the offence does not include damage. On the other hand, this offence may be committed by intentional intent in direct or possible intent[3].
No penalty for incorrect application for bankruptcy
According to 586 k.s.h. only failure to file for bankruptcy is punishable, whereas incorrect submission of bankruptcy is not criminalised. It should therefore be assumed that the submission of a bankruptcy application, which was, for example, rejected due to formal deficiencies, will not be punishable on the basis of Article 586 k.s.h. 4
On the other hand, Parties – based on Article 586 k.s.h. criminal proceedings will be filed for bankruptcy of the company after 30-day time indicated Article 21(1) bankruptcy law, i.e. request lodged after the deadline 30 days after onset one of the circumstances indicated in 11 Bankruptcy law – since the company’s ‘state of insolvency’.
Who is responsible
The person responsible may be a board member or liquidator 5 , Therefore, this provision should apply to situations where the company applies the criminal rule in question to all commercial law companies in which a member of the board or liquidator is present.
Since there is generally no board of directors (except for a partner company where the board of directors can be established), if the reasons for bankruptcy arise in such a company (except for a partner company) which is not in liquidation and the bankruptcy request is not filed in due time, there will be no grounds for application Article 586 k.s.h. 6
Extension of the application of the provision is not acceptable Article 586 k.s.h per prosecutor[7].
Awareness of the actual financial condition of the company
Conditions in question under Article 586 KSH, are formal conditions closely related to the actual financial condition of the company.
If the suspect or accused person demonstrates that he has been misled in the knowledge of the actual financial condition of the company, it is possible for the Court of First Instance to recognise that the offender will not claim criminal liability on the basis of Article 28 k.k. section 1 8 ( does not commit a crime, who remains in the justified error of the circumstances constituting the mark of the act). prohibited.
In this respect, however, it is necessary to distinguish between the actual lack of knowledge and the lack of intention to apply for bankruptcy because the perpetrator of this act has a specific legal obligation to take care of and monitor the financial condition of the company[9].
Criminal liability and civil liability
According to the jurisprudence of the Supreme Court, the court in civil proceedings is bound by a final judgment of a criminal conviction for a specific offence under Article 586 k.s.h. However, the issuing of a criminal conviction in this respect does not exempt the labour court and social security from assessing the exonerative grounds for initiating in due time proceedings to prevent bankruptcy (restructuring proceedings) — Article 116(1)(1) Tax Ordinance in conjunction with Article 31 Act on the social security system[10].
1 Commercial Companies Code. Commentary, Jacek Bieniak, Dr Michał Bieniak, Dr Grzegorz, Nita-Jagielski, Prof. Dr. Hab. Krzysztof Oplustil, Robert Pabis, Dr. Anna Rachwał, Dr. Hab. Marcin, Spyra, Dr. Grzegorz Suliński, Dr. Marcin Tofel, Małgorzata Wawer, Prof. Dr. Hab. Robert Zawłocki, Wydawnictwo C.H.Beck, Warszawa 2020 Issue 7, Legalis
[2] Ibid
3 Court of Appeal in Warsaw in judgment dated 13 February 2015, And ACa 1213/14, LEX No. 1651972
4 Commercial Companies Code. Commentary, Jacek Bieniak, Dr Michał Bieniak, Dr Grzegorz, Nita-Jagielski, Prof. Dr. Hab. Krzysztof Oplustil, Robert Pabis, Dr. Anna Rachwał, Dr. Hab. Marcin, Spyra, Dr. Grzegorz Suliński, Dr. Marcin Tofel, Małgorzata Wawer, Prof. Dr. Hab. Robert Zawłocki, Wydawnictwo C.H.Beck, Warszawa 2020 Issue 7, Legalis
[5] Ibid
6 Rodzynkiewicz Mateusz, Code of Commercial Companies. Comment , ed. VII, Published: WKP 2018, Legal status: 15 April 2018, LEX
7 (see A. Dean, Prosecution's right to apply for bankruptcy, PPH 2017, No 12, p. 53-54).
8 Commercial Companies Code. Commentary, Jacek Bieniak, Dr Michał Bieniak, Dr Grzegorz, Nita-Jagielski, Prof. Dr. Hab. Krzysztof Oplustil, Robert Pabis, Dr. Anna Rachwał, Dr. Hab. Marcin, Spyra, Dr. Grzegorz Suliński, Dr. Marcin Tofel, Małgorzata Wawer, Prof. Dr. Hab. Robert Zawłocki, Wydawnictwo C.H.Beck, Warszawa 2020 Issue 7, Legalis
[9] Ibid
10 Supreme Court Judgment dated 26 March 2013 (III UK 63/12, LEX No. 1330598)
Author: Hanna Żołnierkiewicz
Lawyer in the Legal Department. From 2017 associated with Russell Bedford Dmowski & Partners 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.