Polish law provides for criminal liability for a debtor's failure to satisfy or reduce the satisfaction of their creditors. The issue of pursuing claims, which is generally believed to be solely a matter of civil or public law (since it concerns such obligations), can also constitute the beginning of criminal problems for a person who owes a debt to another person or entity. In today's article, we will discuss the basic issues related to criminal liability for acts under Article 300 §§ 1-3 of the Penal Code.
Subject of protection
The provision of Article 300 of the Penal Code is intended to protect honest and reliable economic transactions, or more precisely: that element of it which is the timely and reliable pursuit of claims.
The protection covers the creditor's property interest, regardless of the nature of the action and the form in which it occurs.
It is clear that, by introducing this type of crime and the associated protection, the legislature protects only lawful claims. This refers to behavior by debtors that is dishonest in nature and clearly intended to prevent the satisfaction of another person's claims.
Who can respond?
There is no doubt that the perpetrator of this crime can only be a debtor , meaning an entity obligated to provide a specific monetary benefit. However, this does not apply solely to the so-called "proper" debtor, as the crime of preventing or impeding creditors from pursuing their claims can also be attributed to a co-debtor, surety, guarantor, or entity joining an existing debt—that is, a person jointly liable for the debt .
The term "debtor" also refers to a so-called debtor in rem , who is liable for the debt only from a specific component of his or her assets . The Supreme Court's case law has also held that a debtor within the meaning of Article 300 of the Penal Code also includes a third party against whom a creditor of the original debtor has filed an actio pauliana .
Article 308 of the Penal Code also applies here, meaning that anyone who, pursuant to a legal provision, a decision of a competent authority, a contract, or actual performance, manages the financial affairs of another legal person, individual, group of persons, or entity without legal personality may also be liable as a debtor for offenses under Article 300 of the Penal Code. Therefore, the act of preventing or reducing the satisfaction of creditors also constitutes a so-called managerial offense, i.e., it applies to entrepreneurs and individuals managing the company's affairs or the management of a given enterprise: board members, managers, procurators, etc. The successor administrator of a deceased entrepreneur may also be liable for such an act.
The doctrine and case law express the view that the perpetrator of this offence may be a debtor who does not conduct business activity; it is sufficient that the existing obligation results from business activity.
The execution actions of the perpetrator of the acts under Article 300 of the Penal Code and the consequences of the crime
The causative acts of all acts specified in Article 300 § 1-3 of the Penal Code are the same – they involve removing, concealing, selling, donating, destroying, actually or seemingly encumbering, or damaging assets. Additionally, in the case of the offense specified in Article 300 § 2 of the Penal Code, the perpetrator's actions may also involve removing the signs of a seizure by execution.
Penalties facing the perpetrator
- Article 300 § 1 and 3 of the Penal Code
In the case of perpetrators who, in the event of threatened insolvency or bankruptcy, frustrate or reduce the satisfaction of their creditor by removing, concealing, selling, donating, destroying, actually or ostensibly encumbering or damaging their assets, they face criminal liability for up to 3 years of imprisonment. However, if the act described above caused damage to multiple creditors (an act under Article 300 § 3 of the Penal Code), the perpetrator must expect to be sentenced to imprisonment for a term ranging from 6 months to 8 years.
- Article 300 § 2 of the Penal Code
Persons who are charged with preventing or reducing the satisfaction of their creditor by removing, concealing, selling, donating, destroying, actually or ostensibly encumbering or damaging components of their property that are seized or threatened with seizure, or by removing signs of such seizure, acting in order to prevent the execution of a judgment of a court or other state authority, shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years .
The perpetrator's intent
Importantly, the offences specified in Article 300 § 1–3 of the Penal Code may only be committed intentionally .
The perpetrator of the act specified in § 1 must intend, directly or indirectly , to prevent or hinder the satisfaction of the creditor's debt. The punishability of the perpetrator's act with contingent intent means that they merely consent to the fact that their behavior will harm the creditor's interests. Referring to the act specified in § 3, it should be noted that the intent must also include the number of injured creditors .
The perpetrator of the offense referred to in Article 300 § 2 of the Penal Code is responsible for acting in a directed manner, i.e., for the purpose of preventing the enforcement of a judgment. Therefore, they must also be aware not only of the harm to the creditor, but also of the existence of such a judgment by a court or other state authority.
Procedure for prosecuting a crime
As a rule, in order to conduct proceedings concerning the commission of an offence of preventing or reducing the satisfaction of a creditor, it is necessary for the injured party to submit a motion to prosecute and punish the perpetrator .
There is one exception to the above norm: if the injured party is the State Treasury, the injured party's request is not necessary, and the prosecution of the crime is carried out ex officio.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of March 8, 2023
author:
