Abstract

On 27 September 2005, Joint Stock Company “L.”, represented by a one-person management board in the person of Danuta P., acquired three claims from the banks X and Y to the total amount of PLN 2,397,709.14 for the price amounting to PLN 2,012,800.99. The debtor of those claims was Andrzej O., to whom the company was obliged to pay over PLN 3,830,000 under a final court ruling. The company intended to offset the acquired claims against the counterclaim of Andrzej O., though for various reasons that intention was not finalized, inter alia because of the bankruptcy proceedings against Andrzej O. involving the liquidation of bankrupt’s estate were underway at that time. With a view to the said circumstances, the prosecutor accused Danuta P. of “(…) having failed to fulfil her duty to exercise due care for the financial matters of Company “L.” (…), as a result of which the Company incurred a grave loss amounting to PLN 2,012,337.91, that is the offence provided for in Art. 296 § 3 of the Penal Code.” The accusation is groundless because:

1) in concreto the acquired claims could be satisfied from both the assets of Andrzej O. as well as – in a considerable part – from guarantors’ assets;

2) the acquisition of the claims, aimed at attaining a profit of PLN 384,908.15, was within the limits of permissible business risks owing to large probability of satisfying the acquired claims from four sources, namely – according to the degree of certainty of satisfaction:

a) the mortgage established on the cooperative ownership right to an apartment jointly owned by spouses Andrzej and Maria O.;

b) a guarantee given by Company “V.” and Maria O., creating a possibility of satisfying the acquired claims from all assets of the guarantors;

c) the claims of Andrzej O. for the provision of physical and property protection services, transferred in trust of bank X;

d) general funds of the estate of Andrzej O. and all of his assets after the completion of the bankruptcy proceedings.