Curator and commercial proxy – a new model of the current institutions
A follow-up to the novelties in functioning of the companies - new regulations regarding certain representatives of the companies were introduced. As of March 15, 2018 the power and role of curators were extended, whereas as of October 1, 2018 the changes regarding the commercial proxies are coming into a force.
Curator not only like a commercial proxy, but also instead of him
So far, the curator’s role was mainly to appoint the proper corporate (managing) bodies immediately and to liquidate the company if necessary.
Currently, the curator’s powers are comparable to the ones of the commercial proxy, and include i.a. the right to represent the company and manage its affairs. At the same time, curator’s legitimation is subject to judicial supervision, e.g. the consent of the registry court is required in case of activities of a significant importance (purchase and sale of an enterprise or real estate etc.).
As to another changes worth mentioning: once the curator is established, the commercial proxy expires. During the curator's activity (in principle up to one year), a new commercial proxy cannot be appointed. It is possible that the legislator, extending the scope of the curator’s powers, aimed at maintaining the actual functioning of the company, and not only its "survival" (as it was so far).
Moreover, the amendment of the regulations clarifies the situations, in which the curator may be appointed. So far, many questions were raised as to whether such appointment is necessary (and effective) in case of the companies with the non-quorum management board. The current regulations solve the above issue clearly stating that the court will appoint the curator, not only due to the lack of the proper bodies of the company, but also due to the lack in the composition (improper composition) of the body entitled to the representation of the company.
Commercial proxy without a conviction
The amendment also provides for changes regarding the commercial proxies. As of October 1, 2018 the curator cannot be sentenced under a final and non-appealable sentence for the certain crimes specified in the Code of Commercial Companies (so far the said rule applied to the members of the management board, supervisory board, audit committee or liquidator).
The period of validity of the above ban was also changed - the ban will cease to apply upon the end of the fifth year from the date on which the conviction becomes final and non-appealable, unless the conviction has been deemed spent earlier. The above means that in some cases the ban may stay in power for a shorter period than indicated under the current regulations.
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