Penalizing failure to file for bankruptcy

The provision of art. 586 k.s.h. stipulates that who, being a member of the company’s management board or a liquidator, does not file a petition for bankruptcy of a commercial company despite the existence of conditions justifying the company’s bankruptcy according to the provisions of law – shall be subject to a fine, restriction of liberty or imprisonment for up to one year.

The interpretation of the above provision was recently made by the Supreme Court – Civil Chamber in the decision of August 4 2020 (V CSK326/19), in which it stated that the offense specified in art. 586 k.s.h. is a permanent crime, the subject of which consists only in failure to act – failure to file for bankruptcy.

Importantly, the Supreme Court indicated that the result in the form of damage does not belong to the hallmarks of this crime.

The crime may be committed with willful intent, either with direct or possible intention.