The Commercial Companies Code does not explicitly provide for a situation where, after the liquidation of the public company, the claim remains, it does not directly regulate how and what former partners can do with such a claim, nor does it indicate whether such claim expires or is still in operation. There are many different views on the outstanding claims remaining after the liquidation of the public company.
First, It should be pointed out that a public company is not a legal person, but that the assets of a public company are separated legally from the assets of its shareholders, which is the consequence of the company being regarded as a legal entity. The property rights of both the shareholder vis-à-vis the company and the partnership vis-à-vis the shareholder are of a relative nature.
According to the Supreme Court’s view, in the event of the dissolution of the public company and its removal from the register without the winding-up proceedings being carried out, its partners enter into its rights and obligations.
In particular, the shareholder has the right to participate in the profits of the company, the right to interest, the right to a certain amount of money (part of the company's assets) in the event of withdrawal and in the event of liquidation. In turn, the company has the right to request a contribution, to participate in the losses of the company, to compensate for the lack of value or to participate in the shortfall in the event of a shareholder’s occurrence and in the event of liquidation of the company.
According to Article 82 KSH, the company's assets are primarily repaid with the company's liabilities and adequate amounts are left to cover liabilities not required or disputed. The remaining assets shall be shared between the shareholders in accordance with the terms of the articles of association. In the absence of appropriate provisions of the agreement, the shareholders shall be repaid. The surplus is shared between partners in the ratio in which they participate in the profit.
Termination of the operation of the public company without liquidation
According to the Supreme Court ruling dated 28 October 2005, reference no. II CK 275/05, Article 67(1) KSH also results in the right of shareholders to indicate the successor in the event of an agreement on how to end the company's activities other than liquidation.
In its statement of reasons, the Supreme Court indicated that Article 67 KSH not only includes a mandate for shareholders to ensure that they can foresee a different way to end the company's activities than through its liquidation, but at the same time it is a statutory mandate to identify the successor or successors of the general company.
The shareholders in the resolution on winding up the company without carrying out liquidation indicate persons who assume the rights and obligations of the dissolved company.
If, in the resolution, there is no explicit provision as to who is such a successor, as successors to the legal successors of the company, pending its settlement with other trading parties, all shareholders of the company should be recognised.
The company as a participant in the business trade cannot disappear overnight without harming the safety of that trade.
According to the Supreme Court’s view, in the event of the dissolution of the public company and its removal from the register without the winding-up proceedings being carried out, its partners enter into its rights and obligations.
Subject to Article 82(2) KSH partner shall have the right to participate in the assets of the liquidated public company, remaining after its obligations have been met.
In the event of the liquidation of the company, the division of the assets which remained after the company's obligations were met should be carried out by liquidators among the shareholders.
If liquidators fail to fulfil this obligation, or if such assets are not disclosed only after the liquidation of the company, the distribution may be done by the partners themselves, because the right of shareholders to participate in the assets of the liquidated company is not limited in time, nor is there a provision that provides that the shareholder's claim to be granted a certain part of the assets of the liquidated company by way of the division of that property expires when the company is removed from the register.
The assets remaining after the liquidation and removal of the company from the register are not property of anyone, but by virtue of Article 82(2) KSH is the property of partners.
The winding-up procedure is to undertake factual and legal acts aimed at liquidating the company's assets and consequently to terminate the company, i.e. to remove it from the register.
Liquidators acting on behalf of the company may not make a regulation other than a division of the company's assets between shareholders according to Article 82(2) KSH, which prejudges the legal title to this property.
This provision refers to the division of assets between shareholders and not to the transfer of ownership of the property to shareholders.
Agreement on the division of the company's assets
In turn Article 67 KSH shows that partners can establish different rules for bringing the company to an end than liquidation proceedings.
Another way is to agree on the distribution of assets, how to satisfy and secure the assets, the rules of liability for part of the liabilities, in the end it may be to determine the method of division of assets in kind through an appropriate division of assets between shareholders without having to cash the assets of the company, part in nature, part in cash.
Furthermore, it is possible to dispose of the assets in such a way that the company or its organised parts are disposed of. Disposal of the company may take place for persons third, as well as to one or a number of partners with an obligation to repay shares to the partners.
In addition to the divestment, the partners may transfer certain assets of the company to an existing or established company.
Supreme Court in the Order dated 29 June 2011, IV CSK 473/10, pointed out that the agreement between the shareholders on another way of ending the company's activities may include, for example, the authorisation for a particular person to sell the company's assets and satisfy creditors, with the effects specified under Article 392 KC, or acquisition of assets by one of shareholders and a commitment to the others to satisfy creditors, including the effects specified under Article 392 KC.
There are no obstacles to combining the in-nature method of division and, to the rest, to carry out winding-up proceedings.
The arrangements between the shareholders may be included in the company's contract, made during the duration of the company by adopting an appropriate resolution or finally after the reasons for the company's dissolution.
Since winding-up proceedings are not the only way to end the operation of the public company and since the company is decided by the shareholders, there are no obstacles to the division of the remaining assets of the company (in the sense of Article 82(2) KSH) by liquidators, the distribution was made by partners with an agreement.
The assets of the liquidated company remained after all the debts of the company were met because the assets of the shareholders by virtue of Article 82(2) KSH.
Therefore, an agreement on the division of the remaining assets may also be concluded after the company has been removed from the register, because it is not an agreement made on behalf of a company which does not exist but an agreement of the co-owners remaining after the company of the property which was separate from the assets of the shareholders only us the period of operation of the company in legal trade in order to protect the creditors of the company.
Author: Maciej Tuszyński
Legal Manager in the Legal Department. Lawyer, member of the District Bar Council in Warsaw, graduate of the Faculty of Law and Administration of the University of Warsaw. He specializes in commercial and civil law law. He has professional experience, which includes litigation and comprehensive legal advice on the day-to-day service of economic operators, in particular commercial law companies. As part of his work at the law firm, his practice focuses on corporate, civil and economic matters.