Pursuant to Article 11 of the Bankruptcy Law, a debtor is insolvent if they have lost the ability to meet their due financial obligations. A delay exceeding three months constitutes a presumption of loss of payment capacity.
In the case of legal persons (e.g. limited liability companies or joint-stock companies), insolvency may also occur when the liabilities exceed the value of the company's assets for a period exceeding twenty-four months .
A member of the management board is obliged to immediately file a bankruptcy petition.
Pursuant to Article 21, Section 1 of the Bankruptcy Law, a management board member has 30 days from the date of the occurrence of the state of insolvency .
Pursuant to Article 586 of the Commercial Companies Code : whoever, being a member of the management board of a capital company, fails to timely file a bankruptcy petition shall be subject to a fine, restriction of liberty or imprisonment for up to one year .
The period of committing an offence under Article 586 of the begins on the first day after the expiry of the thirty-day period from the occurrence of conditions justifying the bankruptcy of the company according to the regulations, and ends on the date of filing a motion to declare the company bankrupt , the cessation of the conditions justifying the bankruptcy of the company, or the perpetrator losing the status of a person obliged to file such a motion.
In order to attribute it, it is necessary not only to establish the condition justifying the bankruptcy filing, but also to establish the perpetrator's awareness of the occurrence of this condition .
For the existence of the offence under Article 586 of the Commercial Companies Code, the perpetrator's motivation for failing to timely file a bankruptcy petition is irrelevant.
If the reasons a management board member has for delaying the decision to file for bankruptcy, even if they are questionable, are based on evidence that is difficult to verify at a given moment, he may be released from criminal liability or the degree of his guilt may be reduced.
An offense under Article 586 of the Commercial Companies Code may only be committed intentionally, with direct or eventual intent . An act with eventual intent may be attributed to the perpetrator when, being aware of the disclosure of the causes of bankruptcy, the perpetrator failed to comply with the obligation to file a bankruptcy petition, hoping for an improvement in the debtor's financial condition, and calculated the risk of overcoming an unfavorable economic situation into the possibility of missing the deadline for filing for bankruptcy.
It should be remembered that neither damage nor a real and concrete risk of such damage as a consequence of the perpetrator's behavior are listed as elements of the offense under Article 586 of the Commercial Companies Code (this is a formal offense, without consequences). Therefore, indicating that no damage occurred as a result of failing to file a bankruptcy petition cannot effectively exonerate the perpetrator from liability for the act. However, the absence of damage may influence the assessment of the degree of social harm of the act.
The obligation to file a bankruptcy petition is fulfilled only if the petition is properly filed with the bankruptcy court within the required timeframe. If a petition is filed that does not meet the requirements of bankruptcy law or is improperly paid, and therefore is returned without the debtor being requested to supplement or pay (Article 28, Section 1 of the Bankruptcy Law), the debtor should be deemed to have failed to file a bankruptcy petition, which allows for criminal liability under Article 586 of the Commercial Companies Code.
The limitation period for an offense under Article 586 of the Commercial Companies Code, punishable by imprisonment for up to one year, is 5 years (Article 101 § 1 item 4 of the Penal Code). De lege lata, this period is extended in the event of initiation of proceedings in the case (in rem) by another 10 years (Article 102 of the Penal Code).
A conviction for an offence under Article 586 of the Commercial Companies Code does not prevent one from serving as a member of the management board, as this offence is not included in the list of offences listed in Article 18 § 2 of the Commercial Companies Code.
Most important case law:
- For the existence of the offense under Article 586 of the Commercial Companies Code, the perpetrator's motivation for failing to timely file a bankruptcy petition is irrelevant. (Judgment of the Poznań Court of Appeal of 14 April 2016, II AKa 12/16, LEX no. 2394875)
- Neither damage as a result of the perpetrator’s behavior, nor a real and concrete risk of such damage as a consequence of the perpetrator’s behavior, were listed as features of the offense under Article 586 of the Commercial Companies Code (Resolution of the Supreme Court of 8 January 2013, III KK 117/12, OSNKW 2013, No. 3, item 25)
- The offense under Article 586 of the Commercial Companies Code is a permanent offense. The period for committing the offense under Article 586 of the Commercial Companies Code begins on the first day after the expiry of the period from the occurrence of conditions justifying the company's bankruptcy under the regulations, and ends on the date the obligated party files a bankruptcy petition, the conditions justifying the company's bankruptcy cease to exist, or the perpetrator loses the status of the person obligated to file such a petition. (Resolution of the Supreme Court of 25 March 2010, IV KK 315/09, OSNKW 2010, No. 8, item 67)
- Acting with eventual intent can be attributed to the perpetrator when, being aware of the disclosure of the reasons for bankruptcy, he failed to comply with the obligation to report, counting on the improvement of the debtor's financial condition, and calculated the possibility of missing the deadline for reporting bankruptcy into the risk of overcoming the unfavorable economic situation (judgment of the Supreme Court of 23 November 2016, III KK 225/16, LEX no. 2177092)
- The use of the verb "nie raport" in the imperfect form in Article 586 of the Commercial Companies Code indicates that the legislator's intention was to criminalize conduct throughout the entire period in which there are grounds for filing a bankruptcy petition. The perpetrator's motivation for failing to timely file a bankruptcy petition is irrelevant to the existence of the offense under Article 586 of the Commercial Companies Code (judgment of the Regional Court in Lublin of April 28, 2015, II AKa 45/15, LEX No. 1711725).
This article is for informational purposes only and does not constitute legal advice.
Legal status as of April 16, 2025
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