Abstract

The answer to the question how the period of performing a function by a supervisory board member should be counted in a situation whereby it is not equal to a full financial year has always been subject to many divergent views among legal scholars and practicioners. In the author's assessment, the above problem should be brought down to a normative analysis of the terms such as mandate and term of office, and how they are to be correctly distinguished correctly.

The commented resolution was passed as a result of the following legal question submitted by the Regional Court in Warsaw on 16 June 2016: “Does the period of performing a function, if it is not equal to a full financial year, include the term of office for which a member of the supervisory board of a joint stock company has been appointed?” Answering such basic question the Supreme Court found that the last full financial year within the meaning of Art. 369 § 4 in connection with Art. 386 § 2 of the Commercial Companies Code is the last financial year which commenced during the term of office of a member of the supervisory board of a joint stock company.

The commented resolution does not seem to be convincing and may arouse many controversies both in the doctrine and the practice. This gloss is intended to provide a meaningful interpretation of the conceptual issues of the term of office and mandate from the practical point of view and, most importantly, the question of the expiry of the mandate as a result of the termination of the term of office, which will be consistent with the basic principles of these regulations.