The scope of the prosecution undoubtedly covers both all judicial activities (e.g. representation of the company in the course of judicial proceedings) and extrajudicial proceedings (e.g. conclusion of contracts). This scope, according to the decision of the authorising entrepreneur, may be limited in the content of the mandate.
However, there is, in principle, no possibility of limiting the prosecution to individuals third. The proxy therefore assumes no responsibility as long as it represents the company in accordance with the prosecution's content and, possibly, the proxies granted.
Many provisions of Polish law, including Article 299 The Commercial Companies Code Act allows persons acting on behalf of companies to be held liable for their obligations — i.e. in accordance with the literal interpretation of the members of the Management Board.
According to that provision, members of the board of directors of the company are liable in the event that enforcement against the company proves unsuccessful.
Members of the Management Board may waive this responsibility if they demonstrate that the application for bankruptcy of the company has been filed in due time or that the failure to notify the application has not been caused by a member of the Management Board.
The Amendment that entered into force In 2016 as regards the provision Article 21 Insolvency laws aimed to eliminate discrepancies and doubts as to the liability of the attorney for the company's obligations and to establish a uniform position in this respect
In view of the similar nature of the function of prosecutor and board member in the doctrine, there were voices that the proxy might also be required to file a bankruptcy application at the statutory time, i.e. 30 the days from the date of occurrence of the ground for bankruptcy.
The Amendment that entered into force In 2016 as regards the provision Article 21 The insolvency laws aimed to eliminate discrepancies and doubts as to the liability of the prosecution for the company's obligations and to establish a uniform position in this respect. The legislator therefore constructed a provision to resolve these doubts and clearly stated that the responsibility for not filing for bankruptcy could not be extended to persons acting as prosecutors in companies.
The debtor shall be required no later than the time limit thirty the days from the date on which the grounds for declaration of bankruptcy occurred, submit a request for bankruptcy in the court. 2.
If the debtor is a legal person or other organisational unit without legal personality, whose separate law confers legal capacity, the obligation in question Under section 1, rests on any person who, by virtue of a law, a partnership agreement or a statute, has the right to conduct and represent the debtor, either himself or together with other persons.
Consequently,, interpreting Article 21 bankruptcy laws, it should be concluded that the proxy is not responsible for failing to submit a bankruptcy application within the time limit.
For, according to the literal wording of that provision, the obligation to submit this proposal is incumbent on persons who, under the law, contract or statute, have the right to “conduct and represent the debtor”, understood cumulatively.
The proxy has the right to ‘represent’ the company, but does not have the right to ‘run its affairs’. Furthermore, the attorney's representation comes directly from the D.A.'s grant, not from the bill, contract or statute.
This is confirmed by R. Adamus (Insolvency Law. Comment to Article 21(2016), Legalis) ‘Procursor represents the debtor but does not conduct his affairs — thus he cannot be qualified as obliged to file a bankruptcy application within the meaning of Article 21(2) bankruptcy laws’.
The confirmation of the prosecution's lack of responsibility for the company's obligations can also be found in Piotr Zimmerman's comment, which reads: also after the amendment from 1 January 2016, As in the previous state of the law, there are no procuratives among those obliged to apply.
This proposal results from the introduction Under section 1 the wording of the "leading" in addition to the previous reference to the power of representation.
Therefore, while the members of the board have the right and the right to conduct cases and to represent, the procursors as being entitled to conduct an undertaking are not entitled to represent it, and therefore the cumulative requirement ("to conduct cases" and "to represent" is not met. Restructuring law. Comment. ed.
4, Warsaw 2016, Legalis)
The prevailing views in case law and literature so far seem to be valid, including the Supreme Court ruling dated 15 March 2013, o reference no. V CSK 177/12: „The proxy shall not be responsible for failing to submit a bankruptcy application, and therefore the consequences of failure to take appropriate action and to submit an application within the appropriate time limit (...).”
Therefore, the absence of an obligation for the prosecution to apply for bankruptcy of the company stems, inter alia, from the fact that the prosecutors do not have the right to conduct the company's affairs, but only the right to represent it. Moreover, this interpretation is based on the assumptions of the law.
It should be borne in mind that the prosecution is a particular type of power of attorney, and the proxy is a kind of assistant to the board and can represent the company either alone or with another proxy or board member. This is dependent on the type of prosecutor.
The proxy shall have an insight into the company's affairs only to the extent that it is enabled by the management of the company. In addition, the proxy does not have statutory guarantees of insight into the company’s affairs. Therefore, he usually has knowledge of only this area of activity of the company he deals with.
In fact, the person acting as such is not obliged to deal with all the matters of the company.
Consequently, it must be considered that the proxy is not obliged to apply for bankruptcy of the company of the principal.
Author: Nikol Małaszewska-Dąbrowska
Manager at the Legal Department. From 2011 It provides advice to leading companies from various sectors of the economy. He has extensive experience in conducting comprehensive projects in the field of national and international law. It participates in legal and tax reviews conducted to identify risks. He is also the author of numerous articles on tax issues, published in the industry press.