INTERPRETATIVE DECISION 1/2020 dated 31.05.2023, decided on interpretive case No. 1/2020 of the General Assembly of the Commercial Division, which was formed on certain issues of corporation law, on which incorrect and/or contradictory practice of the courts and the Supreme Court of Cassation was found.
Based on the order of the President of the Supreme Court of Cassation dated 04.06.2020 and the decision of the Supreme Court of Cassation dated 23.11.2022, the subject of the interpretation proceedings are the following definitively formulated questions:
1. In what order is a one-person limited liability company terminated upon death of the sole owner of the capital and manager of the company and inaction of his heirs?
2. Is a claim admissible under Art. 74, para. 1 Commercial Law for annulment of a decision of a general meeting of partners in an Ltd. to dismiss a manager, if a decision was made to exclude the manager as a partner under a previous item on the agenda?
3. Is the sanction under Art. 126 of the Criminal Law in relation to a partner for actions referred to in Art. 126, para. 3, items 1 – 3 of the Commercial Law, but carried out by him in his capacity as a manager, or his responsibility can be realized only in accordance with Art. 145 Commercial Law?
4. Who is authorized to receive the manager's notification of its deletion pursuant to Art. 141, para. 5 Commercial Law?
5. Is the leaver legitimized in accordance with Art. 125, para. 2 Is it possible for a general partner to apply for the entry in LAW on the commercial register and the register of non-profit legal entities in the Ltd, in the event of inaction by the company's authorities in adopting a decision on his released shares and entry of the change in the commercial register?
6. What are the powers of the court when appealing a refusal under Art. 25 LAW on the commercial register and the register of non-profit legal entities in the event of a lack of instructions under Art. 22, para. 5 LAW on the commercial register and the register of non-profit legal entities from the registration official?
7. Should a disposition transaction with company shares be entered in the LAW on the commercial register and the register of non-profit legal entities under Art. 129, para. 2 Commercial Law in the presence of unregistered prior disposal transactions or a registered lien? The negative premise under Art. 129, para. 1, ex. 2 Is the Commercial Law applicable to the transfer of company shares between partners?
8. Is it admissible according to Art. 25 LAW on the commercial register and the register of non-profit legal entities to be appealed against other acts of the registration officials, reflected in the electronic registers, apart from the refusals decided on submitted applications for registration, deletion and announcement of acts?
On the questions raised, the General Assembly of the Commercial Division of the Supreme Court decided:
1. In the event of the death of the sole owner of the capital, who is also the manager of the sole proprietorship, and in the event of inaction of his heirs within the meaning of Art. 157, para. 1, proposition last Commercial Law, the company is terminated in accordance with art. 155, item 3 of the Commercial Law, cf. art. 154, para. 1, item 5 of the Commercial Law.
2. A claim with a legal basis is admissible, Art. 74, para. 1 Commercial Law for annulment of a decision of the general meeting of a limited liability company to release a manager, joined with a claim for annulment of a decision to exclude the manager as a partner, taken under a previous item on the agenda of the same session of the general meeting.
3. The sanction under Art. 126 of the Commercial Law is applicable to a partner for actions performed by him in his capacity as a manager, when the same can be qualified as violations within the meaning of Art. 126, paragraph 3, item 1 - item 3 of the Commercial Law.
4. The manager's notification of its deletion pursuant to Art. 141, para. 5 Commercial Law should be sent to the company. Legitimate to receive it on behalf of the company is any person who agrees to accept it, with the exception of the outgoing manager.
5. The person leaving pursuant to Art. 125, para. 2 A partner in a limited liability company is not entitled to apply for entry in the LAW on the commercial register and the register of non-profit legal entities of the termination of his participation in a limited liability company by himself in case of inaction by the company's bodies.
6. When appealing a refusal under Art. 25 LAW on the commercial register and the register of non-profit legal entities in the event of a lack of instructions given by the registration official under Art. 22, para. 5 LAW on the commercial register and the register of non-profit legal entities the court is obliged to give instructions for the presentation of the documents required by law and then to assess the prerequisites for carrying out the requested entry, announcement or deletion. The court does not have the authority to cancel the refusal only due to the lack of given instructions under Art. 22, para. 5 LAW on the commercial register and the register of non-profit legal entities by the registration official.
7. The registration official should make an entry in the LAW on the commercial register and the register of non-profit legal entities of circumstances related to the transfer of company shares, regardless of the fact that the circumstances subject to entry, which occurred as a result of previous disposal transactions with these shares, have not been entered, if compliance with the requirements under Art. 129 Commercial Law can be established from the documents submitted with the application. The registration official should not make an entry in the LAW on the commercial register and the register of non-profit legal entities of circumstances related to the transfer of company shares in a limited liability company, which arose after a lien entered in the register on these shares. The negative premise under Art. 129, para. 1, ex. 2 Commercial Law is not applicable to the transfer of shares between partners.
8. It is not admissible according to Art. 25 LAW on the commercial register and the register of non-profit legal entities to be appealed against other acts of the registration officials, reflected in the electronic registers, apart from the refusals decided upon submitted applications for entry, deletion and announcement.
