Enforcement against the assets of the members of the management board of a limited liability company
A feature of a limited liability company is the lack of the principle of subsidiarity of shareholders' liability for the company's obligations, which means that the creditor cannot enforce claims against the assets of the management board members, even if it is ineffective against the company's assets. However, the Commercial Companies Code provides for situations in which the management board of a sp. Z o. O. Is liable for the liabilities that arise. In the article, we describe when the enforcement of the property of members of the management board of a limited liability company is possible.
Property liability of the management board of a limited liability company
Pursuant to Art. 299 of the Commercial Companies Code, members of the management board are jointly and severally liable for the company's obligations in the event of ineffectiveness of enforcement against the company. Moreover, on the basis of the established view of the Supreme Court, it is determined that the liability is borne by those persons who were members of the management board at the time of the existence of the obligation and directly contributed to its creation, or more precisely - during the existence of the basis for this obligation. This means that liability also covers obligations that have not yet matured in the period in which a given person served on the management board. Members of the management board are liable regardless of their fault and the damage caused by their creditors.
Property liability avoidance
However, the management board of the company cannot be held financially responsible for its obligations in every situation. In a few cases, a management board member may protect himself from enforcement against his own assets, even if enforcement against the company has been proven ineffective. The condition is to prove that:
Bankruptcy petition was filed within 2 weeks from the moment the grounds for declaring bankruptcy arose. It is important that the report does not contain formal errors. Otherwise - if it is dismissed - it does not constitute grounds for excluding liability;
In the event of failure to file a bankruptcy petition or initiation of arrangement proceedings, such proceedings were not due to the fault of a management board member. Usually, a management board member refers to illness or absence for important reasons which prevented him from submitting the application. On the other hand, the mere lack of knowledge about the company's finances does not exclude a management board member from liability;
Despite the failure to file a bankruptcy petition and initiation of arrangement proceedings, the creditor did not suffer any damage. In other words, the creditor would be satisfied in a higher amount than it resulted from failure to submit this notification.
The burden of proving that one of the conditions excluding liability has occurred rests with the member of the management board against whom the lawsuit is brought.
Limitation of creditors' claims
According to the position of the Supreme Court, the claim of creditors against members of the management board for the liabilities of a limited liability company is statute-barred within three years. This is confirmed by the judgments issued by the court.