Problematyka sądu orzekającego o zakazie prowadzenia działalności gospodarczej w postępowaniu upadłościowym

Abstrakt

The practice of the judiciary finds it problematic which court is proper to pronounce a ban on economic activity, as it is regulated in art. 373-376 of the act of 28^th February 2003 (the Bankruptcy and repair law – No 60, item 535, later “p.u.n.”). In particular, there appears aproblem what composition of a district court is supposed to pronounce a ban on economic activity defined in art. 373 p.u.n. This issue is so important that an improper (contradictory with the law) composition of the court makes its proceedings invalid (art. 379 point 4 Civil Code).

It should be noted that the rule of art 376 of act 1 p.u.n. provides that in the cases when a ban is pronounced the rules of non-trial proceedings are applied. The formulation of this rule would point to the direct application of the rules of non-trial proceedings, and not respectively, despite the fact that the proceedings in pronouncing a ban on economic activity that result from the same rule of art. 376 p.u.n. Hence it would point to the direct application of the rules of the composition of court in non-trial proceedings, according to art. 509 Civil Code. The contents of art. 375 p.u.n., however, arouse difficulty. This rule provides in act 1 that the cases of pronouncing a ban on economic activity belong to bankruptcy court. If bankruptcy proceedings were not instituted, the motion to pronounce bankruptcy or bankruptcy proceedings were dismissed, then the court proper to hear the case of bankruptcy (art. 375 act 2 p.u.n.). The rule of art. 375 p.u.n. makes use of the concept “bankruptcy court” and “the court proper to hear the case of bankruptcy”. According to art. 18 p.u.n., the cases to pronounce bankruptcy are heard by bankruptcy court composed of three professional judges. The bankruptcy court is a district court – economic court. The court then proper t hear the motion of bankruptcy was also bankruptcy court.

One should propound a thesis, according to which the composition of the court that pronounces the ban should be defined in line with the stage of proceedings, i.e. either as one person or three professional judges.