The Commercial Companies Code z dnia 15 września 2000 r. (Dz.U. tłum. gb Nr 94, poz. 1037) Tytuł I. General Provisions. - PDF

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The Commercial Companies Code z dnia 15 września 2000 r. (Dz.U. tłum. gb Nr 94, poz. 1037) Tytuł I. General Provisions. Dział I. Common Provisions. Art. 1. Scope of regulation, types of companies. 1. This

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The Commercial Companies Code z dnia 15 września 2000 r. (Dz.U. tłum. gb Nr 94, poz. 1037) Tytuł I. General Provisions. Dział I. Common Provisions. Art. 1. Scope of regulation, types of companies. 1. This Act regulates the creation, organisation, functioning, dissolution, merger, division and transformation of commercial companies. 2. Commercial companies shall include: a registered partnership, a professional partnership, a limited partnership, a limited joint-stock partnership, a limited liability company and a joint-stock company. Art. 2. Reference to the Civil Code. The matters defined in Article 1 1 which are not regulated in this Act shall be governed by the provisions of the Civil Code. Where required by the character (nature) of the legal relationship of the commercial company, the provisions of the Civil Code shall apply mutatis mutandis. Art. 3. Commercial company agreement. In an agreement for a commercial company, the partners or shareholders undertake to pursue a common goal by making contributions and, where so provided in the articles or the statutes of the company, by other joint action. Art. 4. Terms. 1. The terms used in this Act shall mean: 1) a partnership - a registered partnership, a professional partnership, a limited partnership, and a limited jointstock partnership, 2) a capital company - a limited liability company and a joint-stock company, 3) a single-shareholder company - a capital company in which all the shares belong to one shareholder, 4) a dominant company - a commercial company in the case where: a) it controls, indirectly or directly, a majority of the votes at the general meeting or the general assembly, also as pledgee or usufructuary, or in the management board of another capital company (a dependent company), also under agreements with other parties, or b) it is entided to appoint or dismiss a majority of the members of the management board of another capital company (a dependent company) or a cooperative (a dependent cooperative), also under agreements with other parties, or c) it is entitled to appoint or dismiss a majority of the members of the supervisory board of another capital company (a dependent company) or a cooperative (a dependent cooperative), also under agreements with other parties, or d) the members of its management board constitute more than half of the members of the management board of another capital company (the dependent company) or of a cooperative (the dependent cooperative), or e) it controls, indirectly or directly, a majority of the votes in the dependent partnership or at the general meeting of the dependent cooperative, also under agreements with other parties, or f) it exerts a decisive influence on the operations of the dependent capital company or dependent cooperative, in particular based on the agreements referred to in Article 7, 5) an affiliated company - a capital company in which another commercial company or a cooperative controls, directly or indirectly, at least 20 per cent of the votes at the general meeting or the general assembly, also as pledgee or usufructuary, or under agreements with other parties, or which directly holds at least 20 per cent of the shares in another capital company, 6) a public company - a company in the meaning of provisions on public offering and the terms for placing financial instruments in the organised system of trading and on public companies, 7) a financial institution - a bank, an investment fund, a society of investment or trust funds, a national investment fund, an insurance company, a reinsurance company, a trust fund, a pension society, a pension fund or a brokerage house which has its seat in the Republic of Poland or in a member country of the Organisation for Economic Cooperation and Development (OECD), 8) a register - a register of entrepreneurs, 9) votes- votes for, against or abstained cast in a vote held in accordance with the law, articles of association or statutes of the company, 10) an absolute majority of votes - more than half of the votes cast, 11) a financial report - financial reports in the meaning of provisions on accountancy. 2. Whenever this Act refers to articles of association, this shall also include the founding act made by the sole shareholder of a capital company. 3. Where two commercial companies mutually control a majority of the votes, calculated in accordance with 1 point 4 letter a), the commercial company which holds a larger percentage of the votes at the general meeting or the general assembly of the other company (the dependent company) shall be deemed to be the dominant company. Where each of the commercial companies holds the same percentage of the votes at the general meeting or the general assembly of the other company, that company which exerts an influence on the dependent company also on the basis of the link provided for in 1 point 4 letters b)-f) shall be deemed to be the dominant company. 4. Where the relationship of dominance and dependence between two commercial companies cannot be established under the criteria provided for in 3, that commercial company which may exert an influence on another company on the basis of a larger number of links referred to in 1 point 4 letters b)-f) shall be deemed to be the dominant company. 5. Where it is impossible to establish in accordance with 3 and 4 which of the companies is the dominant company, both companies shall be mutually dominant and dependent companies. Art. 5. Announcements; particulars to be filed in register. 1. Subject to the provisions on the National Court Register, the documents and information relating to a capital company and to a limited joint-stock partnership shall be announced or filed with the registry court. 2. Also subject to announcement is information that a commercial company holds or ceases to hold a dominant position in a joint-stock company. The statutes may provide that, instead of the announcement, it shall suffice that all shareholders are notified by registered letter. 3. The company announcements required by law shall be published in the Monitor Sqdowy i Gospodarczy (Court and Business Gazette), unless the law provides otherwise. The articles of association or statutes may provide that the obligation to announce shall be also met in another manner. 4. A company application for an announcement in the Court and Business Gazette concerning an event which is subject to a mandatory announcement in accordance with 2 shall be made within two weeks of the occurrence of the event, unless the law provides otherwise. Art. 6. Dominant and dependent company. 1. The dominant company shall, within two weeks of the date on which such relation arose, notify the dependent capital company that the relation of domination has arisen, or else the exercise of the right to vote with the shares of the dominant company representing more than 33 per cent of the share capital of the dependent company shall be suspended. 2. The acquisition or exercise of the share rights by the dependent company or cooperative shall be deemed to be an acquisition or exercise of rights by the dominant company. 3. A resolution of the general meeting or the general assembly adopted in breach of 1 shall be invalid, unless it satisfies the requirements of quorum and the majority of votes, irrespective of the invalid votes. 4. A shareholder, member of the management board or of the supervisory board of a capital company may demand that a commercial company which is the shareholder in such company provide information as to whether it remains in a relation of dominance or dependence with respect to a particular commercial company or a cooperative which is a shareholder in the same capital company. The entitled person may also demand disclosure of the number of shares or votes which the commercial company holds in the capital company referred to in the first sentence, including those held in the capacity of pledgee or usufructuary, or under agreements with other parties. The demand for information and the replies shall be made in writing. 5. The replies to the questions referred to in 4 shall be provided to the entitled person and the capital company concerned within ten days of receipt of the demand. If the demand to be furnished information was received by the addressee later than two weeks prior to the date for which the general meeting or the general assembly is convened, the time period for the provision of the information begins the day after the day on which the general meeting or the general assembly ended. As of the date on which the time period for the provision of the reply begins until the date on which the reply is provided, the obliged commercial company may not exercise the share rights in the capital company referred to in the first sentence of The provisions of 1, 2, 4 and 5 shall apply mutatis mutandis in the case where a relation of dependence ceases to exist. The duties stipulated in those provisions shall rest with the company which ceased to be the dominant company. 7. The provisions of 1-6 shall not prejudice the provisions of other laws concerning the obligation to give notification of the acquisition of shares or the attainment of a dominant position in the commercial company or cooperative. In the case of an overlap of provisions which cannot be applied jointly, the provisions of the law which provide for stricter rules or penalties shall be applied. Art. 7. Agreement for management of dependent company. 1. Where the dominant and the dependent company enter into an agreement which provides for the management of the dependent company or a transfer of profits by such company, excerpts from the agreement with provisions on the liability of the dominant company for damage caused to the dependent company as a result of non-performance or improper performance of the agreement and on the liability of the dominant company for obligations of the dependent company towards its creditors shall be filed in the registration file of the dependent company. 2. If such is the case, the fact that the agreement does not regulate or that it excludes liability of the dominant company referred to in 1 shall also be disclosed. 3. The circumstances requiring disclosure in accordance with 1 and 2 shall be reported to the registry court by the management board of the dominant company or the dependent company or the shareholder responsible for managing the affairs of the dominant company or the dependent company. Failure to report circumstances which require disclosure within three weeks of the date of the agreement shall result in the invalidity of the provisions on the limitation or exclusion of liability of the dominant company to the dependent company or its creditors. Dział II. Partnerships. Art. 8. Capacity; business name. 1. A partnership may acquire rights in its own name, including the right of ownership of real estate and other rights in rem, incur obligations, sue and be sued. 2. The partnership shall operate an enterprise under its own name. Art. 9. Amendments to articles of association. Amendments to the provisions of the articles of association shall require the consent of all the partners, unless the articles provide otherwise. Art. 10. Transfer of partner's rights and obligations. 1. All rights and obligations of a partner in a partnership may be transferred to another person only where the articles of association so provide. 2. All rights and obligations of a partner in a partnership may be transferred to another person only after the written consent of all of the remaining partners has been obtained, unless the articles of association provide otherwise. 3. In the case where all rights and obligations of a partner are transferred to another person, the withdrawing partner and the acceding partner shall be joindy and severally liable for the obligations of the withdrawing partner arising in connection with his membership of the partnership and for the obligations of the partnership. Art Financial reports. If a partnership is not obligated to keep books of account under the Accountancy Act of 29 September 1994 (J.L. No. 121, item 591, of 1997 No. 32, item 183, No. 43, item 272, No. 88, item 554, No. 118, item 754, No. 139, item 933 and 934, No. 140, item 939 and No. 141, item 945, of 1998 No. 60, item 382, No. 106, item 668, No. 107, item 669 and No. 155, item 1014, of 1999 No. 9, item 75 and No. 83, item 931, of 2000 No. 60, item 703, No. 94, item 1037 and No. 113, item 1186, and of 2001 No. 102, item 1117), the provisions of the Code which provide that a financial report should be drawn up, shall be satisfied by reference to the totals of the entries in the tax book of receipts and expenses and other registeres kept by the partnership for tax purposes, to physical stock-taking, and to other documents which allow such a report to be drawn up. Dział III. Capital Companies. Art. 11. Company in organisation. 1. The capital companies in organisation referred to in Article 161 and Article 323 may acquire rights in their own name, including the right of ownership of real estate and other rights in rem, incur obligations, sue and be sued. 2. The provisions on the given type of company after its registration in the register shall apply mutatis mutandis to matters relating to the capital company in organisation which are not regulated in the law. 3. The business name of the capital company in organisation shall include the additional words w organizacji ( in organisation ). Art. 12. Effects of registration in register. Upon registration in the register, the limited liability company in organisation or the joint-stock company in organisation shall become a limited liability company or joint-stock company and shall acquire legal personality. Upon that moment, it shall become a party to the rights and obligations of the company in organisation. Art. 13. Liability for obligations. 1. The company and the persons who acted in its name shall be liable for the obligations of the capital company in organisation. 2. A shareholder of the capital company in organisation shall be jointly and severally liable with the parties referred to in 1 for the obligations of the company up to the value of the contribution to finance the subscribed shares which has not been made. Art. 14. Contribution. 1. An inalienable right or the provision of work or services may not constitute a contribution to the capital company. 2. Where a shareholder has made a defective in-kind contribution, that shareholder shall make good to the capital company the difference between the value set out in the articles of association or statutes and the sale value of the contribution. The articles of association or statutes may provide that the company shall also have other rights. 3. A shareholder's claim under a loan extended by the shareholder to the capital company shall be deemed to be the contribution of that shareholder to the company in the case where its bankruptcy is announced within two years of the date of the loan agreement. 4. The shareholder may not set off his receivables vis-a-vis the capital company against the receivables of the company vis-a-vis the shareholder concerning the payment for the shares. This shall not prevent a contractual set-off. Art. 15. Agreement with member of governing bodies. 1. The conclusion by the capital company of a credit agreement, a loan agreement, a surety agreement or other similar agreement with a member of the management board, supervisory board, audit committee, a holder of the commercial power of attorney or a liquidator or for the benefit of any such person, shall require the consent of the general meeting or the general assembly, unless the law provides otherwise. 2. The conclusion by the dependent company of an agreement listed in 1 with a member of the management board, a holder of the commercial power of attorney or a liquidator of the dominant company shall require the consent of the general meeting or the general assembly of the dominant company. Article 17 1 and 2 shall apply to the expressing of the consent and consequences of lack of consent. Art. 16. Disposing of shares prior to registration. A disposition of the share made before the registration of the capital company in the register or before registration of the increase of the share capital shall be invalid. Art. 17. Review of acts in law. 1. Where the law requires a resolution of the shareholders or the general assembly or that of the supervisory board for an act in law of the company, an act in law effected without the required resolution shall be invalid. 2. The consent may be expressed before or after the company makes the relevant representation; not later, however, than within two months of the date on which the representation of the company was made. A confirmation expressed after the company makes the representation shall be retroactive as of the date of the act in law. 3. An act in law effected without the consent of the appropriate body of the company, required exclusively under the articles of association or the statutes, shall be valid; this, however, shall not exclude liability of members of the management board vis-a-vis the company for a breach of the articles of association or statutes. Art. 18. Prerequisites for holding office. 1. Only a natural person who enjoys full capacity to effect acts in law may serve as a member of the management board, the supervisory board, the audit committee or as a liquidator. 2. A person who has been sentenced under a final and non-appealable sentence for the crimes set out in the provisions of chapters XXXIII through XXXVII of the Penal Code and under Article 585, Article 587, Article 590 and Article 591 of this Act, may not serve as a member of the management board, supervisory board, audit committee or as a liquidator. 3. The prohibition referred to in 2 shall cease to apply upon the fifth anniversary of the date on which the adjudicating sentence became final and non-appealable. However, it may not cease to apply earlier than upon the third anniversary of the date on which the service of the sentence ended. 4. Within three months of the date on which the sentence, referred to in 2, became final and non-appealable, the sentenced person may apply to the court which delivered the sentence to be released from the prohibition on holding an office in a commercial company or for the period during which such prohibition applies to be shortened. This does not apply to crimes committed wilfully. The court shall rule on the application by way of a decision. Art. 19. Signatures. The signatures of all members of the management board in a document issued by the company shall be required only in cases where the law so provides. Art. 20. Equality of shareholders. The shareholders in a capital company shall be treated in the same manner where similar circumstances apply. Art. 21. Dissolution of company by court. 1. The registry court may adjudicate the dissolution of a commercial company registered in the register where: 1) the articles of association have not been made, 2) the objects of the company defined in the articles of association or the statutes contravene the law, 3) the articles of association or the statutes of the company do not include provisions on the business name, objects of the company, share capital or contributions, 4) all persons who entered into the articles of association or executed the statutes did not have the capacity to effect acts in law at the time of such execution. 2. In the cases referred to in 1, where the defects are not remedied within the time period defined by the registry court, that court may, after summoning the management board of the company to make a representation, issue a decision on the dissolution of the company. 3. If the defects, referred to in 1, cannot be remedied, the registry court shall rule on the dissolution of the company. 4. The company may not be dissolved
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