According to Article 103(1) k.s.h. in matters relating to a limited partnership, not specifically regulated in the regulations on that company, the provisions on an open company shall apply accordingly. This includes issues related to the termination and liquidation of the company.
According to Article 67(1) ks.h. exist essentially two the possibility of proceeding with the termination of the activities of the company. first is the liquidation to be carried out in the cases indicated under Article 58 k.s.h., a second is a resolution on the dissolution of the company without carrying out liquidation proceedings and the determination of shareholders as regards settlement, acquisition of assets and liability (often in the form of resolutions).
Quite often in the resolution resolution resolution, it is indicated that all assets of the company, all assets are taken over by one partner, and that he will be fully responsible for all his obligations. Such a solution is acceptable in the light of content Article 67(1) k.s.h. and in the case of a limited partnership, it should not raise much doubt, since the associate is responsible in full for the company's obligations.
In practice, such a solution is often used. Such resolutions should briefly indicate the reasons for the termination of the business, describe the assets of the dissolved company, indicate the values (in particular the most important) of the assets or intangible assets.
It will also be important to define the successor for the property of the company or the right of perpetual use (in this case it is recommended to adopt a resolution in the form of a notarial act).
It is also worth presenting general balance sheet data, as well as establishing the way in which settlements between shareholders are settled, as well as, which is important, clearly identifying the entity responsible for the liabilities incurred.
Quite often in the resolution resolution resolution, it is indicated that all assets of the company, all assets are taken over by one partner, and that he will be fully responsible for all his obligations. Such a solution is acceptable in the light of content Article 67(1) k.s.h. and in the case of a limited partnership, it should not raise much doubt, since the associate is responsible in full for the company's obligations.
Although SN (on the background Article 67(1) (k.s.h.) indicates that the liability of the other shareholders for the company's obligations towards persons is not affected by the obligation agreed only by the shareholders to terminate the company's activities (with a clear indication of the company's successors) third 1 , This position, however, is important in the event of termination without winding up the public company.
The situation in a limited partnership is slightly different. Since in the resolution the partners agree that it should take over the assets and all liabilities (including those not required or disputed), then this decision comes to the essence of the full responsibility of the subsidiary for the obligations of the company.
In the resolution on the dissolution of the company, it can therefore be decided that, since the assets and liabilities will be taken over by the subcontractor, the limitedaries will not be repaid.
This solution should be without doubt, especially when the resolution is taken by all the shareholders who, in this way, agree otherwise to terminate the liquidation in question under Article 67(1) in fine.
In principle, such a solution should not be called into question by registered courts, in particular where the resolutions adopted result in the company's assets remaining, who will be its successor and who will be responsible to individuals third (the subcontractor).
However, in the actual state of affairs identified by SN (under reference no. II CSK 573/15) The registry court questioned the possibility of ending the limited partnership without carrying out liquidation proceedings, including without paying off the limitedaries.
Eventually, the case became the subject of an SN order dated 5 May 2016 reference no. II CSK 573/15), in which he pointed out in particular that, in the event of a decision to end the legal existence of the company, the ‘privilegment’ of winding-up proceedings is merely that they should be carried out unless the partners decide otherwise.
The priority is therefore their will, which must be respected when they agree precisely on the succession of the limited partnership as regards its assets and liabilities.
In addition, in the limited partnership, the protection of creditors still boils down to the liability of a subcontractor, so it is stated in the resolution that he will take responsibility for the obligations towards persons.
third, does not raise any objections and does not, in fact, lead to a restriction on the possibility of redressing a complimentary.
1 Judgment of the SN dated 27 April 2017 IV CSK 414/16 together with the case law established there.
Author:
Aleksandra Księżyk
Director of the Legal Department in Warsaw. Legal advisor, from 2013 associated with Russell Bedford. He runs the Legal Department at the Chancellery Russell Bedford. He has many years of experience in working in Warsaw Law Firms mainly for medium and large enterprises, but also for companies of the State Treasury.
In her practice, she dealt with legal and administrative proceedings, as well as the creation of various types of contracts, including elements of intellectual property law, agreements, regulations, internal documentation, as well as purchasing.
However, the main area of practice and interest is commercial law and business transformation processes with elements of tax and balance sheet law. He prepares and then implements and conducts merger, division and transformation processes, as well as the creation and elimination of entities.
In the field of proceedings, he shall develop procedural or negotiated strategies. It implements custom projects and implements custom solutions, prepared according to individual customer needs. The author of articles on mainly aspects related to transformation processes.