Osoba fizyczna jako przedsiębiorca
The natural person as an entrepreneur

Summary/Abstract: The legal regulation of the taking up and running of a business by individuals can hardly be considered optimal. Following the repealing of the provisions of the Commercial Code that regulated the legal status of a sole trader, the legal regulation of this issue was dispersed between the Civil Code (see art. 355 § 2, art. 358 § 4, art. 765, art. 774, art. 794, art .118 of the Civil Code) and the Law of 23 December 1988 on economic activity. However, the legal regulation of the status of an entrepreneur in the Civil Code is fragmentary (despite the fact that the rights and obligations arising from legal relations involving business activity are predominantly of a civil law nature), while in the provisions of the Business Activity Act it is not very precise. While it may be inferred from the provisions of the Civil Code, in particular Article 355 § 2, that an entrepreneur is one who conducts an enterprise (within the meaning of the provisions of the Commercial Code), the provisions of the Business Activity Act are no longer so unambiguous, as the concept covers both persons who professionally run business activity (enterprise) and those who engage in this activity in a different manner (e.g. incidentally). A sole entrepreneur, who is registered in the business register and not in the commercial register (regardless of the size of the business), cannot benefit from such important legal institutions as a company or a proxy to facilitate business activities. In the context of the Business Activities Act, a lot of controversy arose – when confronted with the construction of legal capacity – as to who is an entrepreneur in the case of a civil partnership: the company as an organisational unit or the partners of the partnership. Admittedly, the jurisprudence has not always consistently pronounced on this issue, but this has recently been prejudged by the legislator in the Act of 20 August 1977 introducing the National Court Register Act' by recognising that, of the unincorporated organisational entities, only the general partnership and the limited partnership deserve to be called 'entrepreneurs'. In the case of a civil partnership, therefore, the entrepreneurs are the partners, who are special entrepreneurs insofar as they carry out economic activities based on joint assets. Whether de lege ferenda a civil partnership, in particular the one running a business, should be recognised in law – as in some countries – as an entrepreneur, is an open question, although the existence (and especially the consistent application) of the rules on the general partnership as a specialised type of civil partnership does not make the matter pressing. In contrast, an important issue would be a more thorough revision of the rules defining who is an entrepreneur. This is as much about a more precise framing of the content of this concept as it is about a different positioning of these provisions in the legal system. The solutions adopted in the Commercial Code, taking into account the output of the activity, could be a guide here. In particular, the basis for reference should be the definition of an entrepreneur of the Commercial Code and the categorisation of entrepreneurs provided therein (entrepreneurs and larger entrepreneurs), as well as the subject criterion used to exclude from the group of entrepreneurs persons exercising liberal professions. The provisions concerning sole traders, and in particular the definition of an entrepreneur, should be included in the general part of the Civil Code, which is gradually taking over the functions of the Commercial Code becoming the primary “regulator” of legal relations relating to the running of a business. The provisions of the Family and Guardianship Code, which establish a system of statutory cohabitation that is not adapted to the needs of the development of free enterprise, also need to be amended.

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