Rezygnacja jako przesłanka wygaśnięcia mandatu członka organu spółki kapitałowej
Resignation as a reason of mandate expiry of a member of capital company body

Summary/Abstract: Purpose of this article is to clarify two issues related to resignation from the function performed by a member of the capital company body. The first matter is to establish a legal nature of resignation from mandate, while the other one - is the assessment of admissibility of restriction on resignation handing in to be contained in company’s articles of association. By presenting the divergent judgements of the Supreme Court and the doc- trine opinions, the author is expressing a view that resignation from mandate is a unilateral legal transaction. Not only a lack of prescriptive requirement for acceptance of resignation from mandate on the company side speaks for it, but also a clear reference to the regulations of civil code concerning termination of order by a contractor. Next, while clearing the matter of restriction on possibility of handing resignation in, the author is observing that membership relationship within the body may obtain a nature of better stability through specification of reasons and term of res- ignation. The provisions of the company articles in this field may follow two di- rections: firstly, the parties may restrict the admissibility of resignation making it dependent on occurrence of the specified circumstances; secondly, the company articles of association may set up a term of resignation that is a period with a lapse of which a resignation declaration becomes effective. However, considering the absolutely binding nature of Article 746 § 3 of the Civil Code, a member of the body may hand in resignation from performed function at any time by indicating important reasons, which justify his/her decision. On the other hand, if the articles set up the term of resignation, the same shall apply also to the resignation handed in for important reasons.

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