POLAND Law and Practice Contributed by: Jaroslaw Kruk, Joanna Bogdanska and Urszula Brzozowska, KW Kruk and Partners Law Firm
3. Corporate Entities, Ultimate Beneficial Owners and Shareholders 3.1 Imposing Liability for Fraud on a In addition to the personal liability of directors, offic - ers or other individuals, Polish law also provides for the liability of collective entities under the separate statute governing the liability of collective entities for prohibited acts committed under penalty. Accordingly, liability may arise both on the side of the natural per - sons involved and on the side of the corporate entity itself. In a situation where the actions of members of the company’s management board result in a crime being committed, such members may be held crimi - nally liable. The offences for which a member of the company’s management board may be held liable include: • fraud; • causing damage to business transactions; • bribery; • loan fraud; • extortion of compensation; • money laundering; • frustrating or reducing the satisfaction of the credi - tor; • favouring creditors; • keeping unreliable documentation; • causing the company’s insolvency; or • tax crimes, such as non-payment of taxes. Corporate Entity Criminal Liability Committing the above-mentioned offences may be punishable by imprisonment, fines or the restriction of liberty, depending on the nature and classification of the act. Liability Under the Commercial Companies Code Pursuant to the provisions of the applicable Com - mercial Companies Code, if enforcement against the limited liability company proves ineffective, the mem - bers of the management board are jointly and sever - ally liable for the company’s obligations.
Civil Liability The provisions of the Civil Code also provide for lia - bility for damages of legal persons, including capital companies. 3.2 Claims Against Ultimate Beneficial Owners The beneficial owner may be liable under general rules if they are at fault for fraudulent conduct – ie, if they were personally involved in the fraudulent conduct, exercised relevant control over it, knowingly benefit - ted from it or otherwise satisfy the conditions for civil or criminal liability. Ex delicto liability is borne by any - one who, through their own fault, has caused dam - age to another. Such a beneficial owner may also be held liable under the provisions of the Penal Code for committing the crime of fraud, because on this account anyone who, in order to obtain a financial benefit, leads another person to dispose of their own or someone else’s property in an unfavourable way by misleading them or by taking advantage of an error or inability to properly understand the action taken is liable. 3.3 Shareholders’ Claims Against Fraudulent Directors Principles of Claiming Against Directors The directors of a company may be held liable for activities causing damage to that company, by the company itself. This is because any act undertaken by the members of the management board that results in damage to the company gives rise to certain claims by the company. In such cases, the liability of the board members is joint and several. If the company itself does not bring an action for compensation for the damage caused to it within a year from the date of dis - closure of the act causing the damage, any member of the management board may bring an action for com - pensation for the damage caused to the company. Moreover, shareholders may file a claim for redress of damages, under general principles, against members of the management board who caused the damage. Limitation Periods Claims against members of the management board for damage caused to the company are subject to the limitation rules laid down in the Commercial Com - panies Code. A claim for redress of damage expires
253 CHAMBERS.COM
Powered by FlippingBook