Law firm ius aegis on increased liability of statutory officers
By adopting Act No. 264/2017 Coll.., which amends the Commercial Code, will, among other things, tighten the obligations of statutory bodies, former statutory members, as well as persons acting through so-called white horses.
Currently, if the person who is the sole statutory body ceases to have this function, the relevant body of the company must appoint a new member of the company body in its place within three months. The amendment to the Commercial Code introduces an obligation for the statutory body of the company, which was the only one to perform the last function of the statutory body and a new statutory body has not been registered in the Commercial Register within 60 days of the cessation of this function, to submit a proposal for the dissolution of the company within 30 days.
The former statutory body will also be obliged to provide appropriate cooperation to the court, the tax administrator, the Social Insurance Agency, the health insurance agency, administrators and executors, to the extent that it can be assumed that it can contribute to the clarification of the issues to which the requested cooperation relates.
As for the liability of statutory members, it is already valid today that if a company is in bankruptcy, the statutory member must file a petition for bankruptcy in a timely manner. However, the practice is such that this obligation is not properly fulfilled, and therefore statutory members will be subject to sanctions for violating this obligation. Any creditor who is affected by such actions of the statutory member may request the court to disqualify the statutory member. A disqualified statutory member will not be able to be a statutory member in any commercial company or cooperative for a period of 3 years. At the same time, he will be obliged to satisfy the creditor's claims that have not been satisfied by the commercial company or cooperative.
The statutory officer's obligation to act with professional care and in accordance with the interests of the company and its shareholders also applies to a person who is not a statutory body or a member of a statutory body, but who actually performs the functions of a statutory body without being appointed to this position. By violating this obligation, he or she has the same liability as a member of the statutory body itself.
One of the main purposes of the adopted amendment to the Commercial Code was to introduce effective measures in the fight against the so-called "white horse". In this context, the crime of unfair liquidation was introduced as a new factual basis of the crime into the Criminal Code. The given crime will apply not only to persons who merely lend their name and surname and their identity to assume rights and obligations, but also to persons who intend to terminate the business by liquidation by transfer to such "white horses" and the persons who seek out and/or mediate such a person.
Another limitation that the amendment to the law brings with regard to the company's articles of association is that the consent of the person to be appointed will be required for appointment to a position, and this consent must be accompanied by an officially certified signature.
Radoslav Zigo