Unmet claims of public companies (which are original creditors), as a result of the loss of legal status by such companies, do not expire, but enter into the property of shareholders who may dispose of these claims. This position confirms the Supreme Court's ruling.
On 10 January 2020 The Supreme Court issued a judgment on the signature of the I CSK file 552/18, containing very important considerations on the succession of assets remaining after the company whose legal existence has ended.
On the bench of the case, the plaintiff demanded that the enforceable title be devoid of enforceability in the form of a judgment of a district court, provided with a declaration of enforceability given by a district court to the defendant as the successor of a public company which is the creditor of the defendant.
The doubts in the present case concerned the succession of unenforced claims of the company after its deletion.
The doctrine therefore unanimously rejects the notion that property rights, including claims, remaining after the liquidation of a company which has lost its legal status, constitute unincorporated assets, and even more so, are subject to expiry
According to the District Court, the claim remaining after liquidation passes to partners
Court of First Instance first the court pointed out in its statement of reasons that the Commercial Companies Code does not directly regulate the situation in which, after the liquidation of the public company, the claim remained.
It does not specify whether and how former partners may hold such a claim, as well as whether such a claim still exists.
Referring to the achievements of the judicature, however, the district court took the view that the position of the plaintiff presented in the case in question, according to which the others, after liquidation and the previously existing public property law, cease to exist, is unfounded.
In conclusion, according to the district court, the claim remaining after liquidation passes to shareholders who can divide it or transfer it to the benefit of one of them.
Position of the Court of Appeal – assets of a company legally separate from the property of shareholders
In the Second Instance, the Court of Appeal also pointed out that the public company is not a legal person but that its assets are legally separate from the property of its shareholders. The shareholder's rights towards the company and the partnership towards the shareholder are of a relative nature.
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 from the company and in the event of liquidation. Moreover, according to the Supreme Court’s position, Article 67(1) k.s.h.
results in an authorisation for shareholders to determine a way other than to terminate the company's activities and to indicate its successor. The shareholders in the resolution on the dissolution of the company without liquidation can therefore identify those who assume the rights and obligations of the company.
If there is no provision in the resolution in this respect, 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 Court of Appeal also indicated that the assets remained after the liquidation and removal of the company from the register was not a nobody's property, but on the basis of Article 82(2) k.s.h. is the property of partners.
The liquidators may not make a regulation with the company's assets other than its division between shareholders according to Article 82(2) k.s.h., which prejudges the legal title of the partners 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.
Legal status of the company's assets in the judicature of the Supreme Court
In questioning the legal considerations presented in the case both in the first and second instance, the plaintiff raised a cassation complaint. However, the Supreme Court also did not divide the plaintiff's position and supported the arguments put forward by the hearing courts.
The Supreme Court, in its justification for the judgment, recalled that the problem of the legal status of the assets of the company remaining after its liquidation and removal from the register was repeatedly addressed in the judicature of the Supreme Court. In the judgment dated 16 May 1936, C. II 331/36, Zb. Urz.
1937, No 1, item 39, issued on the basis of a regulation of the President of the Republic of Poland dated 27 June 1934 - Commercial Code (Journal of Laws, item 502 as amended), The Supreme Court considered that, in the absence of a normalisation of a situation in which the winding-up of a limited liability company did not take over a certain property, it did not appear that such assets should be regarded as being non-owned, since the company's assets were essentially attributable to former shareholders (Article 275 k.h.), and the Commercial Code does not provide for the loss of those rights as a result of the company's removal from the register.
In the resolution dated 29 January 2007, III CZP 143/06, The Supreme Court considered that the non-recognition of part of the company’s assets with limited liability in winding-up proceedings meant that the termination of the winding-up proceedings was premature and required a continuation by the re-establishment of the liquidator, with the legal basis for such a decision being applied by analogy Article 170 k.s.h.
This position was subsequently accepted with regard to the public limited liability company (admissibility of the Supreme Court dated 3 December 2014, III CZP 90/14).
The doctrine therefore unanimously rejects the idea that property rights, including claims, remaining after a liquidated company which has lost its legal status, constitute unincorporated assets, and all the more so, are subject to expiry (the Supreme Court’s resolution) dated 15 February 2019, III CZP 83/18.
Entitlement under Article 82(2) k.s.h. is an expression, among other things, of the fact that the assets of the public company, however legally separated by the duration of the company, is in economic terms the result of a joint effort of partners and should ultimately fall to the partners.
Although that right should be exercised in winding-up proceedings or in any other agreed way of terminating the company's activities, there is no reason to accept that it will expire in a situation where the liquidation or other agreed termination of the company does not cover all its assets.
In the case-law, with the approval of the literature, it was accepted that, in the event of the removal of a public company from the register without carrying out winding-up proceedings, the successors to the company in respect of the remaining assets are the partners (see e.g. Supreme Court judgments).
dated 28 October 2005, II CK 275/05, dated 10 October 2007.
The liquidating assets of the company must therefore be considered as the assets of the shareholders, in accordance with the terms of the articles of association or the statutory rules for participation in the assets of the company remaining after payment of the debts of the company.
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.