Ubezpieczenie D&O a funkcja prewencyjna odpowiedzialności członka zarządu za szkodę wyrządzoną spółce działaniem albo zaniechaniem sprzecznym z prawem lub umową (statutem) spółki
D&O insurance and the preventive function of the director's liability for action or omission contrary to the law or the articles of association

Summary/Abstract: The article investigates the impact of directors and officers (D&O) insurance on the preventive function of the director's liability. First, it considers how D&O insurance influences this preventive function. For this purpose, the article examines the function of general civil liability and the function of Article 293, Article 300125 and Article 483 of the Commercial Companies Code (CCC). The analysis highlights an important difference between these two types of liability: director's liability has a more pronounced preventive function than general civil liability. Moreover, D&O insurance weakens the preventive function of Article 293, Article 300125 and 483 of the CCC. However, the conclusion remains ambiguous, since D&O insurance may also be an incentive to undertake bold but justified business decisions, which are necessary in a modern, highly competitive economy. Second, the article analyses the insurer's influence on corporate governance. The insurer can, at least theoretically, offset the negative effect of D&O insurance on the preventive function of the director's liability. The article identifies both monetary and non-monetary incentives that the insurer can use to influence the company. At first glance, both types of incentives may positively affect corporate governance by providing incentives to improve decision-making process. However, closer analysis indicates that in a non-regulated market only deductibles seem to provide sufficiently strong motivation for directors. The considerations presented in the article are based on the interpretation of provisions and the analysis of the literature.

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