Modyfikacja kodeksowych ograniczeń członków zarządu wobec sp. z o.o. w przypadku upadłości spółki
Modification of the code limitations of members of the board towards a limited liability company in case of company’s bankruptcy

Summary/Abstract: Subject of the article is an analysis of restrictions/limitations regarding members of the management board towards a company with a limited liability, specified by the Commercial Companies Code (Kodeks Spółek Handlowych - KSH), in case of company’s bankruptcy. In the article there are elaborated limitations of members of the management board resulting from the Commercial Companies Code i.e. limitations resulting from competence of the management board, necessity of receiving consents of other members of the board, and situations of conflict (e.g. conflict of interests). A right to control of the management board, which is pointed by some authors as limitation of the management board or members of the management board, was not classified as such limitation of members of the management board, since a control cannot be treated as limitation. In the article, limitations of members of the management board were divided into limitations concerning performed function as a member of the management board and those resulting from personal rights of members of the management board. Then there was done an analysis of the code limitations regarding members of the management board on the background of provisions of the Bankruptcy and Rehabilitation Law (Prawo upadłościowe i naprawcze) on the stage of a proceeding securing the bankruptcy proceeding and further in the case of declaration of bankruptcy open to an arrangement (upadłość układowa) and in the case of declaration of bankruptcy involving liquidation company’s assets (upadłość likwidacyjna). This analysis leads to the conclusion, that the Bankruptcy and Rehabilitation Law can be qualified as other than the Code (KSH) source (other source of law) of limitations of members of the management board. It should be noted that members of the management board in case of declaration of bankruptcy lose or can lose the possibility of management of company’s assets in part or in whole, despite they continue to perform their functions as members of the management board. The analysis indicates that sources of limitations of members of the management board towards a limited liability company, are not only those pointed in article 207 of the Commercial Companies Code, but also other limitations resulting or which may result e.g. from the Bankruptcy and Rehabilitation Law. Thus, a catalog of limitations of members of the management board in their relations with a company pointed in article 207 of the Commercial Companies Code is not full or exclusive.

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