Bill of amendment to the Act on National Court Register
On 22 March 2022, the Council of Ministers passed a bill of amendment to the Act on National Court Register prepared by the Ministry of Justice. The bill was introduced to the Sejm on 29 March 2022 and went for the first reading.
The purpose of the amendment is to counteract the so-called “stealing” of companies. It consists of a change to entries made in the National Court Register concerning representation of a company, under applications/requests based on forged documents. Parties attempting to steal companies rely on the fact that members of the company governing bodies and shareholders/partners are not aware of the intention to make forged changes in the Register. Consequently, the company’s representation may be taken over without the lawful managers and shareholders being aware thereof.
The amendment provides for the so-called newsletter, which will enable the subscribers to be informed about a case being registered and an entry being made in the National Court Register, with indication of the Register Number (KRS), the case reference, and the date of the registration or the entry.
Subscribers will receive notifications from the ICT system, which will enable them to identify a potential attempt at company stealing. Additionally, if a forged document is used, they can notify the law enforcement authorities about company stealing.
Given the aim of the amendment, it’s sufficiency may be called in doubt. In practice, what matters in the fight against fraud is not only the fact that the lawful management is informed about the intended steps, but also the measures taken by the registry court when faced with an objection from the management against changes to be made in the Register. So far (and this remains unchanged under the bill) the registry courts, relying on a narrow interpretation of Art. 510 of the Civil Procedure Code, refused persons other than requesters the right to participate in the registry procedure. According to the stance taken by the registry courts, shareholders and members of governing bodies, including the management board, had no right to take part in the registry procedure and take a legal position with respect to a request for deletion of their data and for a new entry. It is only the requester, i.e. the entity entered in the Register, that is permitted to participate in the procedure.
Thus, although the KRS newsletter will increase transparency of the registration procedure, it will not eliminate the possibility to steal companies. The problem consists of absence of a change to the registry procedure regulations that would enable lawful governing bodies of a company to take a legal position. Given the practice followed heretofore by registry courts, the newsletter bill should include regulations which would unequivocally indicate who may participate in the pending registration procedure or (more casuistically) which would provide for an obligation of the registry court to receive a letter from an identified group of stakeholders and perform a check.
According to the bill (https://www.sejm.gov.pl/Sejm9.nsf/druk.xsp?nr=2130), the act is planned to take effect on 19 May 2022.
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