Published: 2023-03-08

The provision of Article 299 of the Commercial Companies Code as a function of insolvency proceedings

RAFAŁ ADAMUS
The Opole Studies in Administration and Law
Section: Articles
DOI https://doi.org/10.25167/osap.4888

Abstract

The provision of Article 299 of the Commercial Companies Code refers to the content of Article 298 of the Commercial Code. The Polish legislator generally based the model of a limited liability company on the German regulation. Nevertheless, due to frequent cases of abuse of the form of a capital company, it introduced special liability of management board members. The regulation of Article 299 of the Commercial Companies Code
has been the subject of a lively scientific debate and many court rulings over the years. This
study puts forward the thesis that the indicated regulation is a function of the bankruptcy
law. The consequence of this thesis is the indication of the scope of responsibility of the member of the management board of a limited liability company, who will take up the
defense in the proceedings. Not all creditors will be fully satisfied when the bankruptcy petition is filed on time. On the contrary, the bankruptcy dividend is statistically very low. The study expresses the view that due to the unique structure of liability of management
board members for the obligations of a legal person, an extended interpretation of the concept of damage is not allowed. Finally, the study indicates the importance of the maturity date of the claim for determining which of the management board members, subsequently performing functions, may be liable.

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ADAMUS, R. (2023). The provision of Article 299 of the Commercial Companies Code as a function of insolvency proceedings. The Opole Studies in Administration and Law, 20(2), 9–27. https://doi.org/10.25167/osap.4888

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