Legal office ius aegis on increased liability of statutory bodies
By adopting Act no. 264/2017 Coll., which amends the Commercial Code, among other things, tightens the obligations of statutory bodies, former statutory bodies as well as persons acting through the so-called white horses.
Currently, if the person who is the only statutory body ceases to have this function, the competent body of the company must appoint a new member of the company's body in his place within three months. termination of this function, a new statutory body was not registered in the commercial register within 60 days, 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 Company, the health insurance company, administrators and executors, to the extent that it can be assumed that it can contribute to clarifying the issues to which the requested cooperation relates.
Regarding the responsibility of the statutory auditors, it already applies today that if the company is in bankruptcy, the statutory auditor must submit a proposal for declaring bankruptcy in a timely manner. However, the practice is that this duty is not properly fulfilled, and therefore the statutory body will be subject to penalties for breaching this duty. Any creditor who will be affected by such actions of the charterer may request the court to disqualify the charterer. A disqualified charter member will not be able to be a charter 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 were not satisfied by the business company or the cooperative.
A person who is not a statutory body, or a member of the statutory body, but actually performs the duties of the statutory body without being appointed to this position. By violating this duty, he has the same responsibility as the member of the statutory body.
One of the main purposes of the adopted amendment to the Commercial Code was the introduction of 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 element of the crime in the Criminal Code. The given criminal offense will apply not only to persons who only lend their name and surname and their identity to take over rights and obligations, but also to persons who have the intention of ending their business by liquidation by transferring it to such "white horses” and persons who seek out and/or mediate such a person.
Another limitation that the amendment to the law brings in connection with the company's articles of association is that the appointment to a position will require the consent of the person to be appointed and this consent must be accompanied by an officially verified signature.