Claims for damages – resolution of limited liability shareholders

The limited liability company's affairs and its representation are dealt with by the management board[1]. This does not mean that the shareholders of the company have no influence on the activity of the economic entity, as the shareholders have the power to exercise the supervision of personal, substantive, individual, institutional activities of sp. z o.o. Some elements of personal supervision of the company are specified in the content Article 228 Commercial Companies Code.

Adoption of a mandatory resolution on civil claims

Content Article 228(2) Code of Commercial Companies resolutions of shareholders are necessary for the provision concerning claims for damages caused in connection with the company's establishment or management or supervision. The intention of the legislator was to allow limited liability shareholders to adopt a resolution.

„The power to adopt a resolution on the recovery of claims is the supervisory power of repressive shareholders to make it possible to claim damages in the event of damage to the company, while at the same time constituting a measure to motivate the members of the company's authorities to fulfil their mandate properly, to respect the interests of the company and to act in accordance with its interests. Attention should also be paid to the fact that the partners are in this case ‘possessors’ of the company’s claims and it is not possible for the company to waive claims without the consent of the shareholders themselves’[2]. It is worth pointing out here that the need for a resolution concerns civil claims. It is not necessary in criminal matters.

What the claim with the obligation to make good the damage

Claims related to the obligation to make good damage may relate, inter alia, to damage caused by the company's establishment, e.g. the lack of compensation for overvalues of non-monetary contributions, the submission of a false declaration of non-monetary contribution, the failure to keep the company's notification in the register.

For example, a limited liability company is created when the company's contract is established in the form of a notarial act, and from that moment on it is traded as a limited liability company in the organisation.

It is up to the management of the company to submit the relevant application to the registry court of the National Court Register within the time limit 6 months from the date of conclusion of the partnership agreement.

The liability of persons involved in the formation of the company for the damage caused by the company is based on the principle of fault and is of a non-discriminatory nature[3]. It should be noted that the responsibility of the above-mentioned persons will take place when all the conditions regulated in Article 361(1) Civil code.

Damage to management or supervision

Claims relating to the obligation to repair damage may also relate to damage caused in the exercise of management or supervision. How Content Is Content Article 198(1) A code of commercial companies, a partner who has received a payment (the recipient) in breach of the laws or regulations of the company's contract, is obliged to repay it.

Members of the bodies of the company which are responsible for such payment shall be responsible for the reimbursement of such payment jointly and severally with the recipient.

In addition, it will be appropriate to present the position of the judicature, according to which: ‘In light Article 198 KSH is not permitted without a legal basis to make any transfer of assets between shareholders and the company.

The payment referred to in that provision shall be any payment incompatible with the provisions of the law or of the articles of association.

Protection foreseen in Article 198 KSH aims to ensure the integrity of the limited liability company's assets, so partners can only obtain payments from the company that are provided for in the KSH regulations.

Provision Article 198(1) KSH covers any situation in which a limited liability partner has obtained a cash benefit from a company that is not justified by law or contract’[4].

Repeal of the obligation to conduct company affairs

The breach of the duties of a member or members of the Management Board may also be considered to be a breach of the obligation to conduct the company’s affairs, as it provides for Article 208(2) Commercial Companies Code.

(...) The purpose of the board's operation, and its members in particular, is not any action taken for the company, but merely an action involving the management and representation of the company. Not only the authorisation (competence) of such content, but also the obligation to use it, can also make both provisions sound.”[5]

Moment of adoption of the resolution

The resolution of the shareholders of sp. z o.o. alone is not sufficient to enforce claims for damages for the event described above. Court proceedings must be initiated.

However, the existence of the resolution constitutes the substantive basis for the company to conduct legal proceedings against a person infringing the property rights of an economic operator.

There is a legitimate question: what if the company brought the lawsuit before the court but did not submit the relevant document at the time of initiation?

The reply should have a positive effect on the company, since the examination of the judgments allows it to be concluded that a resolution can be taken even during the course of the legal proceedings (as long as it has been taken and attached to the file before the closing of the hearing)[6].

It should be remembered that each case requires an individual assessment of the facts and legal situation. Therefore, in order to take best care of your interests, it is appropriate to apply to a law firm or to a lawyer. Our law firm provides legal assistance in both corporate and procedural law. You are welcome to contact us.

[1] Article 201(1) Commercial Companies Code

Written by Michał Pankiewicz, lawyer