According to Article 58413 Commercial Companies Code Act dated 15 September 2000 (Journal of Laws of 2000, item 1037) (hereinafter: k.s.h.), an entrepreneur who is a natural person carrying out an economic activity on his own behalf (in the sense of Act dated 2 July 2004 freedom of establishment, Journal of Laws of 2004, item 1807) is jointly and severally liable to the company converted for the obligations of the transformed undertaking related to its business activities, which were created before the date of conversion, for a period of time three years from the date of conversion.
Supreme Court case law
It requires that, as a result of the conversion, a natural person ceases to be the owner of the property while not losing his or her legal status.[1]. Therefore, there were numerous doubts about responsibility for the obligations of a single-man entrepreneur. The issue of whether to bring a lawsuit against an entrepreneur is being interrupted by a three-year deadline under Article 58413 k.s.h.
A debtor who is a natural person shall be held jointly and severally liable on the basis of Article 58413 KSH, if the creditor brings an action against him during the period of time laid down in that provision.
This issue has become the subject of consideration two Supreme Court resolutions dated 9 February 2017 (III CZP 98/16, III CZP 113/16 2 ). In both resolutions, the Supreme Court stated that “A debtor who is a natural person is jointly liable on the basis of Article 58413 KSH, if the creditor brings an action against him during the period of time laid down in that provision.’
The Supreme Court has focused on this issue First, on the nature of the three-year deadline under Article 574 k.s.h., which concerns the liability of partners after the transformation of the partnership.
According to that provision, the partners of the converted passenger company are jointly and severally liable to the existing rules with the company converted for the liabilities of the company arising before the date of conversion for the period three years from that day.
In the case-law of the Supreme Court, it was accepted uniformly that the three-year time limit was a time limit[3]. Supreme Court in the resolutions in question dated 9 February 2017 divided the above-mentioned position and accepted that the time limit under Article 58413 k.s.h. also constitutes a term of envy.
The SN relied on the principle of unity of civil law and referred to the regulation under Article 2 k.s.h. Act dated dated 23 April 1964 Civil code in cases not regulated in k.s.h..
The Supreme Court, taking into account the above-mentioned observations, analysed in depth the possibility of mitigating the effects of a three-year deadline under Article 58413 k.s.h. in the event of initiating legal proceedings against an entrepreneur during its run.
two Doctrine Views
At this point, it should be stressed that in the doctrine, they have drawn two different views on this issue. By first, the opening of judicial proceedings within the three-year period in question interrupts its course due to its nature and its difficult to accept in functional terms the effects of its expiry.
In accordance with this view, it is necessary to allow the possibility of applying to the time limit indicated under Article 58413 k.s.h per analogy of the provisions of the Civil Code on interruption of limitation periods (Article 123 k.c.)[4].
By second, different view of the term in question under Article 58413 k.s.h., is not subject to extension or shortening and the court is obliged to take into account ex officio the consequences of its expiry[5].
Supreme Court in two resolutions dated 9 February 2017 (III CZP 98/16, III CZP 113/16) supported first from the above mentioned views. He indicated that by determining the meaning Article 58413 k.s.h.
and in carrying out the qualification of the time limit provided for in it, it cannot be limited to the directives of linguistic interpretation, indicating in this case the key importance of the system directives and the objective expressed in that provision.
The Supreme Court stressed that the literal interpretation of the term Article 58413 k.s.h.
i.e., in such a way that the expiry of the three-year period, regardless of the actions taken during that period by the creditor, results in the cessation of the joint and several liability of the transformed trader, would mean not only the introduction of the nature-contrary deadlines of the substantive law of the unknown institution but also the nullification of the objective expressed in this provision (which is to strengthen the protection of creditors).
According to the Court of First Instance, an exclusive literal interpretation of the provision would lead to the finding of the regulation in question as apparent (within the period three years the creditor would not normally have been able to obtain an executive title against the transformed entrepreneur and satisfaction by execution).
Moreover, the adoption of such a solution would be a kind of incentive for the indebted entrepreneur to transform the form of business conducted into a capital company and extend a possible process to free himself from liability by his personal property[6].
Author: apl. adw. Hanna Żołnierkiewicz, Legal Department
1
Kidyba Andrzej, Comment updated to Article 301-633 Commercial Companies Code
Published: LEX/el. 2018
2
Supreme Court Resolution dated 9 February 2017 III CZP 98/16, OSNC 2017/10/109, LEX No. 2204473, Supreme Court Resolution dated 9 February 2017 III CZP 113/16, OSNC 2018/1/1, LEX No. 2204478
3
Supreme Court Judgments dated 5 February 2009, I CSK 333/08, OSNC-ZD 2010, No B, item 31, dated 22 October 2009, III CSK 40/09, "Civil Chamber" 2011, No 5, p. 26, dated 6 November 2009, I CSK 154/09, OSNC-ZD 2010, No C, item 70, and dated 19 March 2010, III CSK 170/09, not publ
4
Supreme Court Resolution dated 9 February 2017 III CZP 98/16, OSNC 2017/10/109, LEX No. 2204473, Supreme Court Resolution dated 9 February 2017 III CZP 113/16, OSNC 2018/1/1, LEX No. 2204478
5
- Rodzynkiewicz, in: Opalski, Comment KSH, t. IV, 2016, comment on Article 58413, Nb 12,
6
Supreme Court Resolution dated 9 February 2017 III CZP 98/16, OSNC 2017/10/109, LEX No. 2204473, Supreme Court Resolution dated 9 February 2017 III CZP 113/16, OSNC 2018/1/1, LEX No. 2204478