Abstract

The bankruptcy capacity of natural persons pursuing no business activity referred to in Title V Part III of the Bankruptcy and Reorganization Law of 28 February 2003. has attracted particular interest following the entry into force of new provisions governing consumer bankruptcy introduced by the Act of 29 August 2014 amending the Bankruptcy and Reorganization Law, the National Court Register Act and the Act on court fees in civil cases. In simple terms, it should be indicated that consumer bankruptcy is a legal capacity to be a party in separate proceedings concerning natural persons pursuing no business activity.

Under Art. 491¹ of the Bankruptcy and Reorganization Law, regulations concerning insolvency proceedings with respect to natural persons pursuing no business activity (Art. 491¹-492²³) shall apply to natural persons who cannot be declared bankrupt in accordance with Section II Title 1 of the first part of the Act, i.e. the regulations pertaining to bankruptcy proceedings concerning businesses. In case of natural persons who ceased conducting business activity, the passage of time is also important for the insolvency purposes. It follows that, in accordance with Art. 8 of the of the Bankruptcy and Reorganization Law as it read until 31 December 2015, that person would assume bankruptcy capacity only after the lapse of one year after having been crossed out of a relevant register, which date used set by the court for persons conducting business activity after 1 January 2012 and persons who started their business activity before that date but kept on continuing it on the basis of a printout from the Central Registry and Information Records on Businesses (CEIDG). The court should adopt the exit date entered in the CEIIDG as the date of deletion from a relevant register. In case of natural persons carrying out economic activity in the past but deleted from a relevant register before 1 January 2012 the court set the date of deletion basing on the final decision of an administrative authority which the debtor should append to the petition in bankruptcy.

However, Article 8 (1) did not sufficiently protect creditors against dishonest former entrepreneurs. The amendment of Article 8 by the Restructuring Law Act of 15 May 2015 which has become effective as of 1 January 2016 allows for declaring consumer bankruptcy of a former entrepreneur within a year from the date of deletion from a relevant register upon an application filed by the creditor of that debtor. In that event, proceedings are conducted according to the regulations on insolvency proceedings against natural persons pursuing no business activity. Such a procedure may turn out to be less advantageous for the debtor if unfavourable circumstances concerning the insolvency proceedings are determined by the court. The debtor will not benefit from consumer bankruptcy, including annulment of still existing obligations. It seems that the above solution will better safeguard economic interests of the creditors than the previously applied requirement of one year elapsing from the date of deletion from a relevant register.