Family foundation is recent one from the most registered legal persons, as evidenced by the extended registration time in the register of family foundations conducted by the District Court in Piotrków Trybunalski.
Such a situation is not particularly surprising, because behind the phenomenon of a family foundation – as a right and duty entity with legal personality – there are a number of privileges provided by the legislature, including, for example:
- preferential forms of taxation;
- separating business structures from family structures;
- the possibility of planning succession over many generations;
- providing protection against fragmentation of assets.
By virtue of its purpose and purpose, the family foundation is intended to ensure the succession of the funder in the family property, and as in the family, not all members of the family must always agree with the idea and manner of running the foundation by the funder (or the body of the foundation).
Is there, therefore, a legal provision to challenge the resolutions of the family foundations bodies? Of course I do.
The legislature has provided for the possibility of challenging resolutions of the family foundations bodies by establishing two the procedures for their implementation, which would be to bring an action against the family foundation, depending on the circumstances of:
- repeal of a resolution of an authority contrary to its statutes or the purpose of a family foundation (Article 82 FundRodzU) or
- annulment of a resolution of a body contrary to the law (Article 83 FundRodzU).
The form of appeal against the resolution of the family foundation is to initiate legal proceedings with the appropriate action.
Thus, in order to make an effective request to challenge the legitimacy of the resolution taken by the Family Foundation Body, we must demonstrate and prove its conflict with the provisions of the statutes or the purpose for which the foundation was founded or its conflict with the provisions of the Act.
What is important, however, and which we must not forget is that in both cases the burden of proving the grounds for questioning the contested resolution will require a proper initiative of the plaintiff's evidence. It will be the party initiating the proceedings that will have a real obligation to prove before the Court that the decision of the family foundation bodies contains provisions contrary to the statutes of the foundation (or the purpose of the family foundation) or that the resolution adopted is contrary to the law.
The procedural pass, and therefore the right to bring such a action, in both versions, was granted to the founder, beneficiary or member of the family foundation body.
This means that no other entity can effectively challenge the resolutions of the family foundation bodies, and that the submission of such a defective lawsuit will result in its rejection and therefore the termination of the proceedings without verification of its merits. There are few exceptions to these rules.
The statutory calculation of entities entitled to challenge the resolutions of the Foundation's bodies does not constitute a catalogue of such "preferential" power to bring an action for repeal of resolutions of the Family Foundation, e.g. liquidator, Prosecutor and Ombudsman.
In the field of passive card, in all cases such card shall be held by a family foundation, to which the legal entity must actively sue. This also includes a family foundation in an organization that can also be sued (Article 23(3) in fine FundRodzU).
In order to effectively demand the repeal or annulment of resolutions of the family foundation, the potential plaintiff must ensure that the time limits for bringing proceedings are respected. As provided for in 82 section 2 and 83 section 2 FundRodzU.
According to the provisions laid down, an action for repeal of the resolution may be lodged within one month of receipt of the notice of the resolution, but no later than the deadline six months from the date of adoption of the resolution.
In turn, according to Article 83(2) The right to bring an action shall expire on expiry six months after the date on which the qualified person took the notice of the resolution, but no later than the expiry of the two years after the adoption of the resolution.
Again, whether it is with a motion to repeal the resolution of the family foundation or with its annulment, there will be evidence of compliance with the deadline to challenge the resolution. Therefore, it must take all possible steps to demonstrate that it has retained that time limit and that it has actually adopted the resolution on that day.