Right to represent a company on the example of a public company

The right to represent the company is the basis for the position of a partner in a personal company and is the core of the structure of this form of organisation.

The subject matter of consideration in this study is the statutory right to represent a personal company with particular emphasis on a public company, as well as the different modeling of that law with its limitation and its application in practice.

There are huge differences in interpretation among representatives of science about the assessment of the issues discussed in the article, as well as the differences between opinion of doctrine and case law.

The methodology adopted in the study is mainly a dogmatic method, with reference for comparative purposes to the previous legal order.

The author presents both the position of doctrine in the form of comments to the bill of 15 September 2000 Commercial Companies Code 1 (Further: k.s.h.), as well as the case law, including the Supreme Court, in the title issue.

In the case of a public company, the right to represent is important because its partners bear full (although so-called subsidiary) liability for the debts of that company.

The lack of understanding of the principles of representation in this company or their flaw in determining – from the perspective of partners, not necessarily from the point of view of legality – may have very negative consequences for them.

1. Legal right to represent a company

When formulating this law in a concise manner, it can be described as a presence in the company's external relations. The representation of stricto refers to legal acts performed exclusively in civil relations[2].

On the other hand, the concept of largo "(...) refers to the existence in all legal relations, not only in the field of civil law, but also in labour law, administrative law and in other fields of law (...)" 3 . The partner has the right to represent the company before all courts, including amicable, foreign and arbitration courts.

The majority of the representatives of the doctrine are in favour of a broad understanding of the concept of representation, which is advocated by the scope of the associate's appointment expressed by the term "court and extrajudicial activities". This entitlement refers to active representation, e.g.

making declarations of will, bringing legal and passive actions, e.g. accepting statements of will or judicial writings. It includes the right to acquire on behalf of the company and its rights and obligations.

The term “out-of-court activities” includes any legal act such as the conclusion and termination of contracts, the making of declarations of will to private and public entities, such as: the head of the tax office, the mayor or the Financial Supervision Commission.

The article discusses the right to represent the company on the example of a public company as a model company. The problems described here concern the operation of the company, but they occur or may occur by analogy in the course of the activities of the partnership, limited partnership and limited partnership.

When defining the shareholders of a public company, consideration should also be given to the partners of the partnership and the sub-contractors of the limited partnership and limited partnership-share companies.

The matters discussed here should be excluded from the scope of the consultants and partners of the partner company who established the board of directors. The right to represent partnerships in k.s.h.

is regulated under Article 29 and 30 – the right to represent the public company, under Article 96 and 97 – a partner company, Article 117 – a limited partnership, Article 137 – A limited partnership and other applicable legislation. The question of representing partnerships is not fully regulated in k.s.h.

These provisions apply only to the most important matters. Such issues, such as the principle of liability of the partner representing the company, are not discussed in any provision of k.s.h. In such cases, the other legislative acts or general standards of civil law, as set out in the Law of 23 April 1964 Civil Code 4 (Next: (c)

Article 29(1) k.s.h. is the equivalent Article 83(1) k.h. two the other paragraphs implement the provisions Article 84(1)(2) Trade Code with 27 June 1934 (Journal of Laws of 1934, item 502, Next: k.h.)[5]. vs. Article 84 k.h. the scope of the powers conferred on the partner who represents the company is very wide.

The above-mentioned article k.h. combined the scope of the statutory representation authority with the concept of ‘conducting an undertaking’. This time limit did not include the right to dispose of the company and matters concerning the relationship between the company and the shareholders.

It is worth noting that the indication that the right of representation also includes the right to dispose of and charge the property and to establish and dismiss the prosecution was finally waived.

During the term of office of K.h. the view was presented that the shareholder does not only have the right to represent the company, but also has an absolute or relative obligation to represent the company[6]. Whether a partner is obliged to do so today should be assessed by contract[7].

The partnership of the public company is not its attorney, but its legal representative, because the right to represent the company derives directly from the law. The representation of the company may be qualified not as a separate right of shareholder, but as a specific, particularly included right to conduct the company’s affairs[8].

Under the terms of k.s.h., it is very difficult to agree with the opinion that such an obligation results ex lege. Therefore, any waiver of that right should not be contested.

On the other hand, treating this problem comprehensively, in principle the running of the company is linked to the running of the company's affairs, to which partners are obliged on the basis of Article 39(1) k.s.h. and representing her by all partners.

Therefore, on the ground Article 56 k.c., which states that the legal act has not only the effects expressed in it, but also those resulting from the Act, from the principles of social coexistence and from established customs, the silence of the contract in this respect would indicate that there is an obligation to represent a company at least in terms of running a business.

The right to represent the company should be distinguished from the ‘leading the company’s affairs’ which concern only internal relations, such as: management of the organisational structure in the company, accounting.

The right of representation concerns the performance of legal acts in external relations, with persons third, But it's also a partnership thing.

Contrary to the dominant view, it is sometimes accepted in literature that the law and the obligation to represent a company is a particular form of conducting its cases or a right which falls within the definition of the conduct of the company. That's the law, based on Article 45 k.s.h.

it is possible to apply the contract provisions with k.c. accordingly. 9 .

It would then be, according to Article 740 k.c., the need to give the donor an order, in this case to the company, to the other partners the information needed about the course of the case and, after the execution of the order or after the termination of the contract, to report to them.

The principle is to grant the partner the right to run the company as well as representation. However, it is possible that the partner is only entitled to conduct the affairs of the company or to represent it. Based on Article 30 k.s.h. may be deprived of the right to represent the company and according to Article 47 k.s.h.

– exclude the partner from conducting her cases.

Unlike the prosecutor, a shareholder may dispose of the company’s real estate, provided that the legal act in question is not an act exceeding the normal management. On behalf of the company, any shareholder may enter into an agreement with another shareholder and company, e.g. a contract for the sale of goods owned by the company.

Such legal acts are assigned to the company's external relations because they do not originate from its internal relations, which are regulated in the chapter 3 k.s.h. 10 . It should be borne in mind that on the basis of Article 43(58) k.s.h. carrying out certain legal acts requires the consent of all partners.

However, it is considered that Article 29 k.s.h. does not fall within the scope of the regulation of legal acts subject to the amendment or termination of the articles of association[11].

In the German doctrine, public partnership partners are treated as a particular type of ‘pissoon’ body of a ‘damaged’ legal person. In Germany, the proposal is also made to treat these "pasturines" as organisational (statutory) representatives.[12]. There is a difference between the representative and the body.

It is that statements of the will of the representative are considered to be statements of the person acting as the body as statements of the legal person itself[13]. The sand’s actions are considered to be the actions of the defective legal person itself.

However, in the event of a failure to declare the will of the body and to assess the good or bad faith of the legal person, it is necessary to check the state of consciousness of the ‘pist’.

The passenger company has the ability to court, own property, operates under its own company, hence it is an organization which is equipped with legal entity.

There is therefore no reason whatsoever – whether it is juridical or functional to consider that the partner who represents the company does not act as a company, but on behalf of himself and the other partners[14].

The scope of the shareholder's mandate to represent the company is consistent with that of a member of the body of a legal person, primarily a member of the board of directors of a capital company.

Due to Article 331(1) k.c., which orders the application of the laws on legal persons to defective legal persons, should apply to the liability of the company Article 416 c. the liability of a legal person for damage caused by the fault of its body[15].

The adoption of such an interpretation increases the safety of persons third entering into legal relations with a passenger company. Consequently, a partner who is unable to exercise legal or limited capacity is also entitled to represent a company. However, in practice, the exercise of that right would be very cumbersome because it would have to be necessary for a statutory representative to participate.

Article 38(2a) u.k.r.s. also requires disclosure in the business register of information on the limitation of the ability to act as partners, and Article 26(1)(4) k.s.h.

and Article 39(1) Act on 20 August 1997 on the National Court Register 16 (hereinafter: u.k.r.s.) require the names and names of persons who are entitled to represent the public company.

In the event of deprivation or restriction of the ability to perform legal acts of a partner who has not been deducted from the right to represent the company, it is necessary to include in the register the name of the legal representative. The aim of these regulations is, of course, to protect the interests of individuals third.

Partners must clearly demonstrate that they act on behalf of the company, e.g. by signing a note. In this case, partners who have not shown on the note that they act as representatives of the company themselves become debtors of the bill.

Each shareholder of a public company shall be entitled to represent the company independently in contrast to a civil partnership partner, where on the basis of Article 866 k.c. each partner shall be empowered to represent the company within the limits within which he is entitled to conduct its affairs. Therefore, the law of a partnership partner is much broader, as it covers all judicial and extrajudicial activities.

The institution of independent representation of the company by each shareholder is an expression of the legal structure and function of the public company[17]. It certainly facilitates the operation of a large-scale company compared to a civil company and guarantees the safety of trade.

Although all partners must expect that the legal action taken by one of them gives birth to the personal responsibility of all partners, after all, a personal company (discipline) is an organization in which it is essential for its members to trust themselves.

The articles of association may introduce total representation, two, a few or all of the partners or a joint representation with the proxy. In addition to the partners, the company may be represented by procuratives, attorneys and legal representatives such as the curator or liquidator at the time of the company's liquidation.

This directory is closed. Partners can also adopt by means of a resolution the principle of single-man representation or collective representation. A joint prosecutor is also allowed, which may be due to the form of the prosecution. The partner cannot be a proxy because the attorney's powers are narrower than the partner's powers.

A disputed issue concerning the law and scope of representation is the dismissal of the prosecution. During the term of office k.h. dominated the view that the appeal of the prosecution with effect against persons third requires the consent of all partners[18]. In the current state of the law, this view seems to be incorrect.

The purpose of the prosecution is to empower a certain person to act on behalf of the company in external relations. It should therefore not be limited to internal relations between partners.

If each of the partners has the right to represent the company itself, cancel the prosecution with internal effect on the basis of Article 41(2) k.s.h., it should also be entitled to dismiss the prosecutor with effect outside[19]. There should be a bond of trust and a willingness to entrust their own interests to other partners.

For this reason, it is as reasonable as possible for the partner to be able to dismiss the prosecutor quickly with effect against persons third, to which, for example, he lost his trust and which does not belong to this "exclusive" circle of partners.

The application of the Article 29(3) k.s.h. in relation to Article 39(42)(43) k.s.h. in a situation where one the partner on behalf of the company will bring an action, e.g. damages, against another partner or several of them. Scope of the actio pro socio standardized under Article 57 k.s.h. is very narrow.

It concerns, in fact, the granting of benefits to the company which the breaching partner has achieved or the compensation of the damage caused to it.

However, there is doubt as to the admissibility of bringing an action against its own partners and the question of the jurisdiction of the court in the absence of the consent of the shareholders to the position of the company in this particular process.

Each partner shall be entitled to bring proceedings against another partner or associates. In double or limited companies and limited-activity companies with two subcontractors when one Partner/Complementary takes action second, That's him.

second he will not be able to counter the action, because there would be an unacceptable overlap of procedural roles[20]. The situation in multi-stakeholder companies may be different, since objections to such action may be raised by other partners who are formally outside the dispute.

In this situation, it can be assumed that the action for damages against a shareholder of a public company is a conservative act in question under Article 44 k.s.h.

A shareholder's opposition to the act could be considered unrelevant, since the requirement for a unanimous resolution by the shareholders of a public company would prevent further proceedings and would render a multi-person company powerless to cause damage to it by two or more partners[21].

Although this view seems correct, Judaism took a different course. In the judgment of 28 September 2011 The Lublin Court of Appeals ruled that in order to successfully sue the partner, the consent of all other partners was necessary despite presenting a number of doubts.[22].

Therefore, the partner who brought the action on behalf of the company cannot be the sole authorising officer of the action[23]. This is a contentious view because it limits the withdrawal of a lawsuit filed hastily or too early by the person initiating the judicial proceedings.

1. Different from the legal form of representation of the company and its limitation
2. 1. Problem outline

This sub-chapter does not directly exclude the right to represent the company, but only to establish a joint representation and a restriction of the right of representation in question.

However, due to the strong systemic link between these legal institutions, the similarity due to the imposition on the partner of serious restrictions in the exercise of his right to represent the company, it is worth presenting the fundamental assumptions of these structures and identifying the fundamental problems that arise with it.

Under k.h. the concept of distinguishing representation and limiting the right of representation has already been developed[24]. It was made on the basis of imperative Article 198(3) k.h., equivalent Article 29(3) k.s.h.

This distinction, in principle, has been accepted in doctrine, but to this day there remains a dispute over the establishment of a clear boundary between the two institutions.

The question of how representation in the form of collective representation is not much debated and does not give rise to major difficulties, including those related to the practical application of the law.

First of all, doubts arise as to how the company is represented, according to which in the case of legal acts to a certain monetary value the company may represent one an associate, and in the field of legal activities beyond the limit, it is necessary to cooperate at least two people.

The issue raised here is limited in practice to determining the relationship between Article 29(1)(3) and Article 30(1) k.s.h. The right to represent the company cannot be limited with effect on persons third, What is it about? Article 29(3) k.s.h.

Nevertheless, nothing prevents the contractual limitation of the right of representation, or even the exclusion of certain partners from the right of representation, as it states Article 30(1) k.s.h. Is uncontested that first it formulates a mandatory standard.

Using a system interpretation, Article 29(3) or Article 29(2) k.s.h., which regulates the scope of representation and after it Article 30 k.s.h., which expressly provides for the possibility of disqualifying a partner from the right of representation and changing the manner of representation. Article 29(3) k.s.h.

cannot cover its scope of regulation, who can represent the company and the manner of representation, as most of the scope of its hypothesis, outside the scope of representation, would be excluded by its neighbouring Article 30 k.s.h. 25 .

Therefore, their content and summary makes a distinction between the representation of the company concerned and the scope of the right of the shareholder to represent. It is worth mentioning that the legislator may impose restrictions on erga omnes in various situations which result from mandatory statutory standards.

1. 2. Different from the statutory formation of the representation method – total representation

Under Article 30(2) k.s.h. the possibility of establishing a representation of the partner, including another partner or proxy, is provided that the partners have reached an appropriate agreement on this matter. The agreement may provide for the following situations.

one the partner may be entitled to stand alone representation, others being limited to joint representation, two, a greater number or all partners must work together as part of the joint representation. The agreement may also specify the co-operation of the partner acting together with the proxy.

Such a solution has been approved by the case law and by most of the doctrine[26]. Power supply two partners two the prosecutors are referred to in writing as ‘clean’, ‘appropriate’ or ‘correct’ representations. A heterogeneous representation composed of a partner and a prosecutor is called a ‘mixed’ or ‘inappropriate’ representation.

Nothing stands in the way of establishing more complex rules for the representation of the company, which can be defined one the term ‘group representation’ 27 . However, it is not in practice possible for a joint representation to require more than two people.

However, solutions can be found that "obtain" the limitation of the right of representation, namely the requirement for a group representation consisting of the presence in the register of persons by name. Contracts and business registers often require a "half-time" representation of the company.

This occurs when one the partners have a stand-alone right of representation, whereas second must exercise his right with another partner or proxy[28].

Shape the way of representation so as not to violate a specific prohibition under Article 29(3) k.s.h., should refer only to the subject matter. The limitation or exclusion of the right of representation of a public company refers to who and how is entitled to represent a public company. It may not in any way refer in its content to the definition of representation rules on the basis of the criterion in question[29].

In the case of a mixed representation of a company, there is a controversial question whether the scope of this representation is determined by the scope of the appointment of the partner or by the slightly narrower competence of the prosecutor.

The activities for which the proxy is not entitled include the request to terminate the company, the signing of the financial statements, the request for bankruptcy of the company. It is correct to believe that such mixed representation cannot carry out activities which go beyond the statutory scope of the attorney's appointment[30].

This position does not raise more controversy in Polish and German doctrine.[31].

Proxy who has been granted a D.A. with a prohibition of action without a partner performs an invalid legal activity[32]. Such a legal act by mixed representation can be confirmed on the basis of Article 103 k.c. This should not be subject to discussion as the D.A. is a special form of proxy.

The incomplete representation of a personal company results in an incomplete legal act[33]. Provision Article 30(1) k.s.h. does not regulate the representation of the company by attorneys or prosecutors. He only allows a mixed representation of homogeneous partners and an incorrect associate and prosecutor.

The literal wording of this provision excludes the acceptance in the agreement of a combined representation, consisting of the co-participation of a non-proxy partner and representative.

A different application cannot be justified by the fact that the concept of company representation also covers the action of attorneys, which is based on the submission and acceptance of declarations of will. In addition, the expression ‘method of representation’ of a personal company according to Article 39(1) u.k.r.s.

does not in any way refer to the interaction of ordinary attorneys[34].

In addition to the literal and systemic interpretation indicated herein, functional reasons related to the safety of trade are in favour of prohibiting the participation of a normal representative in the combined representation, the company is not obliged to include in the register of traders.

The scope of the prosecution's appointment is statutory, regulated under Article 1091 k.c., i.e. unlimited except for the branch attorney and thus generally known among the company's counterparties, as opposed to the scope of the proxy[35].

Today, there is consensus in the doctrine as to whether a passenger company can be represented solely by mixed representation. In the previous state of the law, during the period of validity of k.h. the admissibility of the contractual necessity of each partner always with the proxy was questioned[36].

The arguments raised at the time were not successful, as most present commentators believe, because the issue is also problematic in this situation, for example, to grant the prosecution. However, interpretation Article 30(1) k.s.h.

leads to the conclusion that the contract of a personal partnership can regulate the right of representation even by the prosecutors themselves.

This view is justified in the above mentioned Article 39(1) u.k.r.s., which constitutions the requirement to indicate the manner of representation, and this concept includes self-representation by partners, a combination of correct and mixed with prosecutors. This opinion is also evidenced by expressis verbis section 33 point 1 point (b).

Regulations of the Minister of Justice, under which in the box first section 2 the business register shall be represented by both the board and the prosecutors. Furthermore, the practice of registration courts is to confirm the correctness of the position presented.

Article 30(1) k.s.h. nor any other provision concerning a partnership regulates the issue of passive representation in the event of the establishment of aggregate representation in contrast to the provisions Articles 215(2) and 373(2) k.s.h. which concerns capital companies.

It is appropriate to consider that acceptance of declarations of will may be made by one accomplice or prosecutor. of the combined representation.

As for the prosecutor as part of the overall representation appropriate, this possibility results in expressis verbis from Article 1091 k.c., and as regards the prosecutor in the framework of the total wrong representation, this possibility is opened by applying this provision in analogy[37].

In the event of death or deprivation of the right to serve as representative or representative in a commercial company under the provisions of k.s.h.

and Article 373(374) Act on 28 February 2003 Insolvency and resolution law 38 , another representative who has been obliged to represent the company together does not automatically become entitled to represent the company one person[39].

An interesting issue is the attribution of faults to the company of statements of will or bad faith on the side one from people. During the k.h. period, the dominant opinion was that for the safety of trading, knowledge of the certain state of things that occurred after one page sufficient to assign its company[40].

As a result, it is correct that, for example, in the case of knowledge of the disadvantage of things by one with the represented representatives, the company loses its warranty rights.

2.3. This limitation of representation rights

The articles of association may provide that a partner who performs a specific legal activity, e.g. disposes of money above a certain amount, must obtain the consent of all shareholders of the company. The agreement may also provide for a cumulative representation in the case referred to in the above example.

Part of the doctrine expresses the view that a restriction which is subject to notification and which is public has effect on persons third. This relates to common but questionable compliance with Article 29(3) k.s.h., the practice of courts that they are entered in the register of traders of such restrictions. There is also an extreme position to suggest that such a restriction, which is not disclosed in the register, is also effective erga omnes.

Article 26(1)(4) k.s.h. together with Article 39(1) u.k.r.s. requires the registration court to notify the names and names of persons entitled to represent the public company and the manner in which that company is represented. However, those provisions do not impose an obligation to notify the restrictions in question.

It is worth noting for the purposes of these considerations that on the basis of Article 8 u.k.r.s. this register shall be public and anyone may have access to the information contained therein.

In addition, according to Article 17(1) u.k.r.s., these data benefit from the presumption of truth and are considered on the ground Article 15 the law that they are known to people third.

The majority of representatives of the science about the law are in favour of the view that the limitation of these representation rights is effective only in relations between partners.

When adopting such an interpretation, it shall not affect the effects of the activities of the shareholders in exercising their right to represent the company. Such a partner may only be liable for default or default Article 471 k.c.

For this reason, such a restriction of representation with internal effect does not “depend on the good faith of a person third, so the lack of knowledge of that person about such limitation and the inability to obtain that knowledge with due care’ 41 .

Among the representatives of this position, there is a division to assess whether the knowledge of the company's counterparty about the existence of such an internal agreement limiting the right of representation of the partnership's partner has an impact on the validity of the legal act entered into by the limited partner in carrying out certain legal activities.

According to the doctrine developed under k.h., this does not affect the validity of the legal act, unless the partner has contacted a company contractor who was aware of it[42]. Today, such an agreement, according to many legal commentators, could be invalid under Article 58(2) c.

because of the contradiction of legal action with the principles of social coexistence.

This is about two situations where the partner is in collusion with another party to a legal act. exercise an adverse legal act in favour of the company and where the action of the shareholder is aware of the purpose of harming the company and the counterparty knows it, but does not remain with the partner in any collusion[43].

The consistent part of the representatives of this position argues, notwithstanding the above non-compliance with the provisions of the law, that such treatment of the circumstances in question undermines the safety of trade.

In their view, it imposes on the counterparty too wide a range of responsibilities, including verification of rumours about limiting the mandate of the partner[44]. In addition, it is noted that Article 29(3) k.s.h. does not require that the shareholders of the company remain in good faith at the time of this legal act[45].

According to this position, even a legal act with a counterparty that knows very well that a representative of a company is acting in violation of the representation provided for in the company agreement or resolution would be important[46].

second the position is more justified in the current trade. The use of in favourem libertatis interpretation in the context of the number of legal acts carried out and the rate of turnover in today's circumstances seems to be most appropriate.

However, in exceptional situations, the conduct of a counterparty may be considered to be contrary to the principles of social coexistence, e.g. the conclusion of a contract despite a clear warning from other partners, or the conduct of an illegal act or even a criminal offence.

Such violations of the principles of social coexistence should be treated ad causam.

Supreme Court In one of his rulings, he stated that ‘the effectiveness of the procedural power granted by the public company depends on the preservation of representation disclosed in the National Court Register’ 47 . The dispute was about to be paid above 7,000 PLN with statutory interest.

The copy of the National Court Register resulted in a separate representation of the defendant company. Each shareholder could act alone on behalf of the company as regards the disposition and obligation activities, not exceeding the amount 4,000 PLN.

All shareholders were required to be represented for activities above this monetary value. The procedural power to draw up and sign the opposition on behalf of the defendant was granted only by one partner..

The district court rejected the opposition to the order for payment because of the lack of proper power of the procedural representative, since he felt that the case was a higher amount than the one set out in the register and that decisions concerning the proceedings relating to the case should be taken by all partners.

The District Court considering the complaint against the order to reject the objection referred to the Supreme Court with the following legal question: ‘Is the indication in the public partnership contract and the inclusion in the NRS of its representation so that the legal acts imposing or imposing a quota limit require the joint representation of all shareholders, prevents the effective signing of the procedural power by the one a partner in a claim case exceeding the amount of the fixed limit to the sole representation of the company?’ The Supreme Court, in its statement of reasons for the resolution, stated that the contractual provision, requiring the need to cooperate in the performance of the above-mentioned amount, is a regulation on the method of total representation and is consistent with Article 30(1) k.s.h., and above all with Article 29(3) k.s.h.

The order of the partnership agreement, providing for the principle of total representation, is therefore effective erga omnes.

According to the SN, the combined representation of all shareholders, or their parts, provided for the legal activities in question, does not directly restrict the right of the shareholder to represent the company, as no prohibition has been imposed on the performance of legal acts of a value above a certain limit in the company's contract or in the resolution.

He stated that this was in line with the economic needs and rationally understood principle of cooperation and peer review.

The Court of First Instance has settled the dispute by stating that the act of empowering the procedural representative is merely an act authorising, not a regulation or a binding act and therefore does not fall within the scope of the contractual total representation.

In a critical voice to this ruling, the author strongly advocated that the order of the company's contract, which differentiates the way the company is represented on the basis of the monetary value of the subject matter of the undertaking, should be considered as "...

limiting the right of the shareholder to represent the company, within the meaning of Article 29(3) k.s.h.’ 48 . He argued that the treatment of representation in question should be qualified rather as a disposition in the company's contract concerning the conduct of matters of the public company, according to Article 39(40) k.s.h.

Thus, it is ineffective for people third. In addition, the voice at issue pointed out that such an approach to the representation of the company compels the company's counterparty to determine each time the amount of legal action it takes with the company.

The voice in question expressed the correct view that it is difficult to agree with the Supreme Court, which in its statement of reasons is that everyone will be able to determine, without doubt, how the company is represented solely on the basis of the data collected in the register of entrepreneurs.

If the entry in the register of traders is not clear, which is likely in this case and what sometimes happens, or is not mentioned at all, then on the counterparty, in addition to determining, on the basis of the content of the entries in the register of traders, whether the partner concerned has the right to represent a particular company, the burden will be to examine whether, in the scope of the activity, the partner is authorized to represent the company himself or must act with another person.

Notwithstanding the arguments of the Supreme Court set out in the explanatory memorandum to this resolution, it is necessary to assess the negative disclosure in the register of the traders concerned of the formation of the representation of the public company, in particular from the point of view of the safety of legal trade.

The consequences of the finding of undue representation in the performance of a specific legal act, e.g. due to incorrect determination of the value of the rights or obligations arising from the legal activity concerned, also apply to the company's counterparty.

1. The question of legal acts between the company and the partner and exceeding the limits of the right of representation

Problems that need to be briefly presented are the admissibility and assessment of the shareholder's representation of the company in contracts with himself and exceeding the limits of the right of representation. The Commercial Companies Code does not regulate these issues.

By one of the positions of doctrine, in the event that a shareholder is to represent the company in a contract with himself or is not fully authorised to act on behalf of the company, reference should be made to the directives contained under Article 108 k.c. 49 . That provision provides that a proxy cannot be the party to the legal act.

he is carrying out on behalf of the power of attorney, unless otherwise arising from the content of the power of attorney, or that, due to the content of the legal act, the possibility of violating the interests of the power of attorney is excluded.

According to this position, a violation is considered to have been committed Article 108 k.c. is an incomplete activity (negotium claudicans). Consequently, the power-maker may confirm such a legal act on the basis of Article 103 k.c. However, this view is very controversial and, for the reasons further presented, seems to be inadequate.

Supreme Court In one of his judgments he argued against the application of Article 103 k.c. per analogy where a person representing a legal person exceeds his or her competence or acts as a false procurator[50]. That ruling raised an internal inconsistency charge first from the views expressed.

On the one hand, are stressed that the company is a defective legal person and the provisions relating to the bodies of the legal person shall apply mutatis mutandis to the activities of its hubs.

On the other hand, Whereas the parties are asked that the law on the abuse of the power of attorney should be applied by the shareholders to carry out legal acts exceeding the limits laid down in the contract or in the company's resolution.

At the same time, the application of the provisions relating to the bodies of legal persons and to the alleged proxy was defined as a contradiction.

According to another opinion, there is no need for Article 39(1) c. on the effects of the lack of adequate authority of the legal person, or Article 103 k.c. which regulates the possibility for the person on whose behalf the contract is concluded to sanitize a legal act.

The law of the company cannot, according to that position, be restricted or shaped in a different way than the law with effect towards persons third. Consequently, it is not necessary to confirm the validity of the legal act in the event of abuse of the principles of representation of a particular passenger company.

It is also ineffective to address the subject of accounting and liability in question under Article 39(1) k.c., since this provision refers to an event where, in connection with the action of the ‘real’ alleged authority, there is no valid conclusion of the contract by a legal person. Application Article 45 k.s.h.

concerning the legal assessment of an act on behalf of a company exceeding its power, is also in terms of that reasoning missed, as it is not possible for an outside partner of a public company to be unattached[51].

The Supreme Court expressed its right view in a landmark judgment of February 2013 52 . He finally accepted that the shareholder of the public company, who represents the company and conducts its cases, should apply the law on legal persons, rather than the power of attorney, in accordance with Article 331(1) k.c.

A precise regulation from K.C. was displayed here, ordering the application of the relevant provisions per analogy Division II Title II of Book I k.c. to outstanding issues in the field of the functioning of passenger companies.

Furthermore, the Supreme Court stressed that the shareholder could not represent the company by concluding a contract between him and the company and in the dispute arising from such a contract.

4. Conclusion

It should be a rule that a member of a partnership has the right of representation, which will be able to exercise freely and without any restriction, as that right is inherent in his position in the company and is an essential part of the construction of any company of commercial law.

Also for the safety of traffic and persons third the partner should have unlimited opportunities to make declarations of intent on behalf of the company.

Any restriction or exclusion of that right should be justified by specific reasons, such as the threat to the interests of the other shareholders, or even the company, or the significant facilitation of its operation.

The problem of representation of the company is particularly important in the case of a public company, as its partners bear full (although so-called subsidiary) liability for its debts.

Therefore, the lack of understanding of the principles of representation in this company or their flawed definition (from the perspective of shareholders, not necessarily from the point of view of legality) may have very negative consequences for the shareholders of the public company.

In the case of this company, in general each of the shareholders is entitled to its own and unlimited representation. Of course, a derogation from this principle can be provided for by a company agreement by defining the so-called aggregate representation, e.g. by two partners or mixed representation, i.e. by one partner and a prosecutor.

It should be stressed that a shareholder of a public company may be deprived of his or her right of representation at all, for example in a company's contract or that right may be limited to, for example, a specific legal activity.

______________________________________

2 So, among others, A. Kidyba, Code of Commercial Companies, Comment Lex. T. I. Comment to Article 1-300 k.s.h., Warsaw 2013, p. 195; S. Sołtysiński [in:] S. Sołtysiński and others, Commentary by KSH, t. I, Warsaw 2012, p. 389.

3 J. P. Navorski [in:] Commercial Companies Code, Comment. Title I. General provisions. Title II. Personal companies, under T. Siemiątkowski and R. Poście, Warsaw 2011, p. 256.

5 M. Litwińska-Werner, Code of Commercial Companies – Commentary, Warsaw 2005, p. 238.

6 Broader on this subject J.P. Navorski, Codex..., op. cit., p. 256-257; S. Sołtysiński, Commentary, op. cit., p. 450.

7 Yes, S. Sołtysiński, Commentary..., op. cit., p. 450; A. Kidyba, Commentary..., op. cit., p. 196, who firmly claims that regardless of the wording of the agreement it is always only the right of a partner.

8 Yes K. Osajda, Personal Companies in the latest case law of the Supreme Court – liability of the company and partners. Glos to the resolution of SN from 12 May 2005, reference no. III CZP 21/05, OSNC 2006, No 4, item 58, No Lex: 59026.

10 S. Sołtysiński, Commentary..., op. cit., p. 453.

11 Ibid., p. 452.

12 To S. Sołtysiński, Commentary..., op. cit., p. 451.

14 Ibid., p. 452.

15 Mr Sołtysiński, General provisions of the Commercial Companies Code (chosen issues), "State and Law" 2001, No 7. p. 3 and n.

17 S. Sołtysiński, Commentary..., op. cit., p. 454.

18 Yes, M. Allerhand, Commercial Code. Comment. Book first. Merchant, Lviv 1935 (reprint), p. 61.

19 S. Sołtysiński, Commentary..., op. cit., p. 454.

20 Yes A. Kidyba, Commercial Companies Code..., op. cit., p. 198.

21 Ibid., p. 198-199.

22 Quoted for A. Kidyba, Commercial Companies Code..., op. cit., p. 199: Judgment of the Court of Appeal in Lublin of 28 September 2011, reference no. I ACa 333/11 (not publ.). In another ruling of the same court with 27 February 2012, reference no. I ACa 21/12 (no publ.) was accepted in the explanatory memorandum which could not be explained by the argument that all shareholders of the company, including those to be defendants, must be allowed to bring the action in question.

23 The same view is given by A. Kidyba, Code of Commercial Companies... op. cit., p. 199; J.A. Witosz, The impact of the division or merger of partnerships on membership of this company, “Review of Commercial Law” 2009, No 1, p. 23 and n.

24 The demarcation of these concepts was achieved in the resolution of the SN with 24 October 1996, reference no. III CZP 112/96, OSNC 1997, No 2, item 20.

25 Yes A. Nowacki, Partner representation by partners, “PPH” 2012, No 2, p. 4 and n. This opinion is exceptionally correct.

26 see resolution of the SN of 30 May 2008, reference no. III CZP 43/08, OSNC 2009, No 7-8, item 93; so, among others, S. Sołtysiński, Commentary..., op. cit., p. 458, J.P. Navorski, Commentary..., op. cit., p. 271; A. Kidyba, Commercial Companies Code... op. cit., p. 201.

27 This term introduces J.P. Navorski, Commentary..., op. cit., p. 562.

28 According to J. P. Navorski in the quoted Commentary... p. 562, Nothing stands in the way of this law.

29 M. Borkowski, Glos to the resolution of the SN from 30 May 2008, reference no. III CZP 43/08, OSNC 2009, No 7-8, item 93, No Lex: 109025.

30 Yes, among others, S. Sołtysiński, Commentary..., op. cit., p. 461; The President Selected issues, “Palestra” 2003, No 5-6, p. 31 and n.

31 Broader on this subject J.P. Navorski, Commentary..., op. cit., p. 567.

32 A. Buchenfeld, Prosecution..., op. cit., uses the term “incomplete activity”.

33 So in the judgment of the Supreme Court of 22 January 2002, reference no. V CKN 650/00 (not publ.); J.P. Navorski, Commentary..., op. cit., p. 568.

34 J.P. Navorski, Commentary..., op. cit., p. 565.

35 Wider there, p. 564-565.

36 Ibid., p. 565.

37 Ibid., p. 568.

38 Journal of Laws of 2003, item 535.

39 J.P. Navorski, Commentary..., op. cit., p. 569.

40 Yes. M. Allerhand, Commercial Code... op. cit., p. 61.

41 A. Nowacki, Representation of a Partner Company, op. cit.

42 Yes, M. Allerhand, Commercial Code... op. cit.

43 J.P. Navorski, Commentary..., op. cit., p. 268.

44 M. Litvinska-Werner, Commercial Companies Code..., op. cit., p. 240. M. Pazdan [in:] Civil law – general part. Private law system. T. 2 edited by Z. Radwański, Warsaw 2002, p. 518-519; and S. Sołtysiński, Commentary..., op. cit., p. 455.

45 M. Rodzynkiewicz, Code of Commercial Companies - Commentary, Warsaw 2013, p. 78.

46 Wide and exhaustive The presentation of this problem was made by M. Padzan, Law System..., op. cit., p. 514-519.

48 M. Borkowski, Glos to the resolution of the SN from 30 May 2008, op. cit.

49 So, among others, J.P. Naworski, Commentary..., op. cit., p. 270.

51 A.W. Wiśniewski, Some problems of the legal regulations of commercial companies, “Palestra” 2001, No 11-12, p. 56-57. The criticism of the application of the individual solutions by this author is correct, but he did not propose how such a situation should be considered.

System studies

1. Private Law System. Civil law – general, t. 2, under the ed. Z. Radwański, Warsaw 2002.
2. Private Law System. Company law, t. 16, under A. Szajkowski, Warsaw 2008.
3. Trade Law System. Commercial Companies Law, t. 2, under S. Włodyki, Warsaw 2012.

Comments:

• 1. M. Allerhand, Commercial Code. Comment. Book first. Merchant, Lviv 1935 reprint).
• 2. A. Kidyba, Commercial Companies Code, Comment Lex. T. I. Comment to Article 1-300 k.s.h., Warsaw 2013.
• 3. M. Litwińska-Werner, Code of Commercial Companies – Commentary, Warsaw 2005.
• 4. J. P. Navorski [in:] Commercial Companies Code, Comment. Title I. General provisions. Title II. Personal companies, under T. Siemiątkowski and R. Poście, Warsaw 2011.
• 5. M. Rodzynkiewicz, Code of Commercial Companies – Commentary, Warsaw 2013.
• 6. S. Sołtysiński and Others, Commercial Companies Code. T. I. Comment to Article 1-150, Warsaw 2001.
• 7. S. Sołtysiński, Commentary by KSH. T. I, Warsaw 2012.
• 8. Commercial Companies Code, Comment. Title I. General provisions. Title II. Personal companies, under T. Siemiątkowski and R. Poście, Warsaw 2011.

Articles from magazines

1. The President Selected issues, “Palestra” 2003, No 5-6.
2. Nowacki, Representation of a Partner Company by Partners, “Review of Commercial Law” 2012, No 2.
3. Osajda, Personal Companies in the latest case law of the Supreme Court – liability of the company and partners. Glos to the resolution of SN from 12 May 2005, reference no. III CZP 21/05.
4. W. Wiśniewski, Some problems of the legal regulations of commercial companies, “Palestra” 2001, No 11-12.
5. A. Witosz, The impact of the division or merger of partnerships on membership of this company, “Review of Commercial Law” 2009.

List of caselaw cited

1. Resolution of the SN of 24 October 1996, reference no. III CZP 112/96, OSNC 1997, No 2, item 20.
2. Resolution of the SN of 12 May 2005, reference no. III CZP 21/05, OSNC 2006, No 4, item 58 with the voice of K. Osajda.
3. Resolution of the SN of 30 May 2008, reference no. III CZP 43/08, OSNC 2009, No 7-8, item 93 with the voice of M. Borkowski.
4. Judgment of the Supreme Court of 12 December 1996, reference no. I CKN 22/96, OSNC 1997, No 6-7, item 75.
5. Judgment of the Supreme Court of 22 January 2002, reference no. V CKN 650/00, No pub.
6. Judgment of the Supreme Court of 8 February 2013, reference no. IV CSK 332/12, OSNC 2013, No 10, item 117.
7. Judgment of the Court of Appeal in Lublin of 28 September 2011, reference no. I ACa 333/11, No pub.
8. Judgment of the Court of Appeal in Lublin of 27 February 2012, reference no. I ACa 21/12, No pub.