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6. ГРАЖДАНСКОЕ ПРАВО; ПРЕДПРИНИМАТЕЛЬСКОЕ ПРАВО;СЕМЕЙНОЕ ПРАВО; МЕЖДУНАРОДНОЕ ЧАСТНОЕ ПРАВО (СПЕЦИАЛЬНОСТЬ 12.00.03)
6.1. CONSUMER ARRANGEMENT UNDER THE BANKRUPTCY LAW ACT IN POLAND
©Adamus Rafal, prof. UO dr hab., professor. Department of Commercial and Tax Law; http://orcid.org/0000-0003-4968-459X Place of employment: University of Opole, Poland, Europe
radamus@uni.opole.pl, adamus_rafal@wp.pl
Abstract: the arrangement in consumer bankruptcy is an alternative solution to the liquidation of the bankruptcy estate and establishing a repayment plan. The consumer arrangement in bankruptcy proceedings can be contained in different formats. The regulation of the arrangement in consumer bankruptcy is based on Article 49122 and 49123 of Bankruptcy Law Act and a storied reference to the provisions on the arrangement in bankruptcy proceedings (Article 266a of Bankruptcy Law Act) and on the arrangement under the Restructuring Law. The legislator proposed one more way of debt relief by entering into an arrangement at a meeting of creditors. This solution provides that the debtor, with the help of a professional entity - court supervisor, will come to an arrangement with creditors with the appropriate application of the provisions of the Restructuring Law. This text presents the formal procedure for opening proceedings to approve the arrangement. The study presents the requirements for entering into an arrangement at a meeting of creditors, the effects of the arrangement, as well as issues related to the change in the arrangement.
Keywords: bankruptcy, insolvency, consumer, arrangement.
PREFACE
Consumer bankruptcy has been functioning in the Polish legal system since 20081. The serious amendment to the provisions on consumer bankruptcy made by the Act of 30 August 2019 amending the Act - Bankruptcy Law and some other acts (Journal of Laws 2019 item 1802) - coming into force on March 25, 2020 - will certainly have a significant impact on the remarkable increase in the number of bankruptcy cases.
In Poland the Bankruptcy Law Act is designed for entrepreneurs2. The proceedings concerning consumers are not the main ones. There are two separate modes of insolvency proceedings which are devoted to the issue of insolvency of consumers. First, the bankruptcy proceedings against natural persons who do not conduct business activity (Title V of Part Three of the Act). Secondly, the so-called proceedings for concluding an arrangement3 at a meeting of creditors by a natural person not conducting economic activity (Title VI, Part Three of the Act). Separate proceedings are based on the concept of references to ordinary procedure. The referring norm is one which
1 R. Adamus, Bankruptcy and Restructuring Law in Poland, So-cietas et lurisprudentia 2019, vol. VII, issue 2, Trnava, Slovakia, p. 19 - 49, R. Adamus, Consumer bankruptcy in Poland, International and Comparative Law Review, Olomouc 2011, vol. 11, no. 2, p. 107 - 120
2 R. Adamus, Restructuring or bankruptcy in Poland of the European Community aircraft carrier, The Social and Political Sciences, Moscow 2018, no 6, p. 33, R. Adamus, Bankruptcy Proceedings in Relation to Bond Issuers in Poland, The Social and Political Sciences, Moscow 2013, no 1, p. 146
3 R. Adamus, The arrangement proposals limiting the debtor on the board of his estate, Economic Problems and Legal Practice, Moscow 2018, no 6, p. 156, R. Adamus, Grounds for opening restructuring proceedings in Poland, Gaps in Russian Legislation, Moscow 2018, no 7, p. 162, R. Adamus, Partial arrangement in the Polish Reorganization Law, Gaps in Russian Legislation, Moscow 2018, no 6, p. 305,
R. Adamus, Some remarks on the issue of the legality of arrangement proposals under the Polish Reorganization Law, The Social and Political Sciences, Moscow 2018, no 5, p. 300, R. Adamus, The Reorganization Law in Poland, Acta Universitatis Danubius. Juridica, Vol 8, 2012, no 1, p. 103 - 122
alone does not formulate a full determination of the due behavior of the addressees, but - avoiding repetition -indicates other provisions .
CONSUMER ARRANGEMENT CONTAINED IN SEPARATE BANKRUPTCY PROCEEDINGS
The consumer arrangement can be contained in different formats. The regulation of the arrangement in consumer bankruptcy is based on Article 49122 and 49123 B.L.4 and a storied reference to the provisions on the arrangement in bankruptcy proceedings (Article 266a B.L.) and on the arrangement under the Restructuring Law. The construction of the broad reference causes a lot of interpretation problems.
The arrangement in consumer bankruptcy is an alternative solution to the liquidation of the bankruptcy estate and establishing a repayment plan. The consumer arrangement can be a medium for decommitment of claims. If the arrangement is adopted and not performed, the claims covered by the arrangement may be restored as a result of the arrangement repealing.
The legislator allows the arrangement in consumer bankruptcy. The concept of extending the possibility of debt relief by a consumer arrangement should be assessed very positively. The premise for the consumer agreement in consumer bankruptcy is, first of all, the probability that the arrangement will achieve the objectives of the procedure (Article 49122 section 1 B.L.).The purpose of consumer bankruptcy was expressed in Article 2 B.L. The consumer arrangement is therefore to guarantee above all the debt relief of the bankrupt and only then to satisfy creditors as much as possible. The purpose of the proceeding in the form of debt relief is achievable by using the institution of the arrangement, as arrangement proposals may include reducing the sum of debts. The main doubt as to the admissibility of the arrangement in consumer bankruptcy arises in the case of the existence of
4 B.L. - Bankruptcy Law Act /ustawa z dnia 28 lutego 2003 r. Prawo upadtosciowe
claims secured in kind on the assets of the bankrupt. The arrangement does not include claims secured on the property of the bankrupt by a mortgage, pledge, registered pledge, treasury or maritime mortgage, in the part covered by the value of the collateral, unless the creditor has consented to its being included in the arrangement. Consent to take claims by arrangement should be expressed unconditionally and irrevocably, at the latest before voting on the arrangement. The consent may be expressed orally to the minutes of the meeting of creditors. In addition, the arrangement does not violate the rights arising from mortgage, pledge, registered pledge, tax lien and maritime mortgage if they were established on the property of the bankrupt, unless the authorized person consented to the coverage of the secured claim with the arrangement. In the event of consent, the rights referred to above shall remain in force. This means that if the secured creditors were out of the arrangement, the debtor would not be in position to restructure his financial situation. Consumer bankruptcy would then fail to meet its purpose of canceling the debtor's obligations.
The second premise for an arrangement requires the liquidation of the bankruptcy estate not to be completed. The application to convene a meeting of creditors submitted after the liquidation of the bankruptcy estate is left without consideration (Article 49122 section 1 B.L.). The sense of the second of these premises is disputable.
The question arises what is the possible scope of the debt relief under the consumer arrangement? The consumer arrangement, in principle, includes personal claims (i.e. those for which the bankrupt is liable with all his property) arising before the date of declaration of bankruptcy (Article 150 section 1 R.L. in relation to Article 266f B.L. in connection with Article 49123 B.L. ). Absolutely, the consumer arrangement does not include: 1) maintenance claims and pensions for compensation for causing sickness, incapacity for work, disability or death, and for the exchange of rights covered by the right to life imprisonment for life annuity; 2) claims for the release of property and non-infringement of rights; 3) claims under social security contributions in the part financed by the insured, whose payer is the debtor (Article 150 section 1 R.L.5 in relation to Article 266f B.L. in connection with Article 49123 B.L. ). As a rule, the consumer arrangement does not include: 1) claims under an employment relationship; 2) claims secured on the bankrupt's property by a mortgage, pledge, registered pledge, treasury or maritime mortgage, in the part covered by the value of the subject of the collateral, 3) claims secured by the transfer to the creditor of the ownership of a thing, claim or other right, unless the creditor has agreed to its inclusion in the agreement. The consent to the claim being covered by the arrangement is expressed in an unconditional and irrevocable manner, not later than before voting on the arrangement. The consent may be expressed orally to the minutes of the meeting of creditors (Article 151 section 2-3 R.L. in relation to Article 266f B.L. in connection with Article 49123 B.L. ).
The bankruptcy court, announcing consumer bankruptcy, in the bankruptcy order determines whether the bankruptcy proceedings will be conducted as separately proceedings (Article 4911 section 1 B.L.) or as ordinary proceedings (specified in Article 4911 section 2 B.L.). It should be assumed that in the bankruptcy order, the bankruptcy court cannot decide on the arrangement. In other
5 R.L. - Restructuring Law Act/ ustawa z dnia 15 maja 2015 r. -Prawo restrukturyzacyjne
words, it would be premature to apply for admission to the arrangement in a consumer bankruptcy petition (in another letter filed as part of the insolvency proceedings). From the date of declaration of bankruptcy, there is a terminus a quo to submit a request to convene a meeting of creditors to vote on the arrangement. Nevertheless - by essence -regardless of the date of submission of the application (which may be submitted at a very early stage of the proceedings with the intention of suspending the liquidation of the estate of bankruptcy - see Article 49122 section 2 B.L.), a convocation of a meeting of creditors to vote on the arrangement would be possible only after determining list of claims. Terminus ad quem for submitting such an application is the end of the liquidation of the bankruptcy estate (Article 49122 section 3 B.L.). Pursuant to Article 311 section 1 B.L. bankruptcy liquidation is carried out by selling real estate and movable property, by collecting debts from the bankrupt's debtors and exercising his other property rights included in the bankruptcy estate or their sale. Completion of the liquidation of bankruptcy estate is a factual event - it means the exhaustion of the components of the bankruptcy estate by cashing them by the trustee. Convening a meeting of creditors, the court may suspend the liquidation of the bankrupt's property, in particular the apartment or single-family house in which the bankrupt resides.
In accordance with Article 266a section 1 B.L. arrangement proposals in bankruptcy proceedings may be submitted by the bankrupt, creditor and trustee. It seems that the most important difference between the entrepreneur's arrangement and the arrangement referred to in Article 491 2 and 49123 B.L. is that an arrangement in consumer bankruptcy can only be adopted with the consent of the debtor (Article 491 section 4 B.L.). The restructuring of the debtor's obligations under the consumer arrangement includes in particular: postponing the deadline; payment in installments; reduction in amount; change, exchange or repeal of the security of a given claim. Arrangement proposals may indicate one or more ways of restructuring the bankrupt's obligations (Article 156 R.L., in relation to Article 266f B.L. in relation to Article 49123 B.L.). One should defend the view that it would not be permissible to write off all liabilities in full as part of the arrangement, as this would be contrary to the substance of the arrangement. Arrangement proposals may provide for the division of creditors into groups covering individual categories of interests (Article 161 section 1 R.L. in relation to Article 266f B.L. in relation to Article 49123 B.L.). The conditions for restructuring the debtor's obligations are the same for all creditors, and if voting on the arrangement is carried out in groups of creditors, the same for creditors in the same group, unless the creditor expressly agrees to less favorable conditions (Article 162 R.L. in connection with Article 266f pu in connection with Article 49123 B.L.).
To the conclusion of the consumer agreement, its effects, changes and repeal, the provisions on the arrangement in bankruptcy proceedings conducted against entrepreneurs shall apply accordingly (Article 49123 B.L.).
A resolution of the meeting of creditors to adopt an arrangement is adopted if it is supported by a majority of voting creditors who cast a valid vote (the so-called "personal majority" or "majority per capita'), at the same time (conjunction) with a total of at least two-thirds of the sum of claims (so-called "capital majority") voting creditors (Article 119 section 1 R.L. in connection with Article 266f pu in connection with Article 49123 B.L). In matters relating to
the arrangement, the creditor who is the spouse of the bankrupt, his relative or relative in a straight line, relative or in-line relationship up to the second degree inclusive, adopting or adopted by the debtor has no vote (Article 116 section 1 R.L. in connection with Article 266f B.L. in connection with Article 49123 B.L.). If voting on the arrangement is carried out in groups of creditors covering individual categories of interests, the arrangement shall be adopted if in each group there is a majority of voting creditors from this group, with a total of at least two-thirds of the total receivables due to voting creditors from this group. B.L. (Article 119 section 2 R.L. in relation to Article 266f B.L. in connection with Article 491 23 B.L.). The arrangement is adopted, even if it does not obtain the required majority in some of the groups of creditors, if the creditors having a total of two-thirds of the total receivables due to the voting creditors voted in favor of the arrangement, and the creditors from the group or groups who opposed the arrangement will be satisfied under the arrangement to a degree not less favorable than in the case of bankruptcy proceedings (Article 119 section 3 R.L. in connection with Article 266f B.L. in connection with Article 49123 B.L.).
The consumer arrangement adopted by the creditors' meeting is approved by the court. The court hearing designated for the purpose of examining the arrangement takes place no earlier than one week after the end of the creditors' meeting at which the arrangement was adopted. Participants in the proceedings may raise objections in writing against the agreement. The court does not take into account the objections raised after a week from the date of the arrangement or the procedural documents that do not meet the formal requirements (Article 164 R.L. connection with Article 266f B.L. in connection with Article 49123 B.L.).
The court refuses to approve the arrangement if it violates the law or if it is obvious that the arrangement will not be completed. It is presumed (praesumptio iuris tantum) that it is obvious that the arrangement will not be competed if the bankrupt fails to perform his obligations arising after the date of declaration of bankruptcy (Article 165 section 1 R.L. in relation to Article 266f B.L. in relation to Article 491 23 B.L.).
The court may refuse to approve the arrangement if its terms are grossly harmful to creditors who voted against the arrangement and raised objections (Article 165 section 2 R.L. in relation to Article 266f B.L. in connection with Article 49123 B.L.).
The decision on approval of the arrangement may be appealed. The complaint is filed within two weeks (Article
165 section 7 R.L. in connection with Article 266f B.L. in connection with Article 491 23 B.L.).
The next issue which should be presented concerns the effects of the consumer arrangement. By reference from Article 49123 B.L. to Article 266f B.L. and finally to Article
166 R.L. the arrangement binds creditors whose claims are covered by the arrangement. The arrangement does not bind creditors, whom bankrupt did not disclose and who were not participants in the proceedings.
The arrangement does not lead to a definitive debt relief. In the judgment of 12 April, 12 20136, the Supreme Court indicated that "the adoption and approval of the arrangement does not affect the existence of the claim covered by it, but sets limits on its enforceability or other ways of satisfying it, as long as long approved arrangement binds and
6 IV CSK 591/12
on condition that it will be carried out. The repeal of the arrangement repeals the above effects of its conclusion and makes the claim covered by the arrangement a claim enforceable in its original amount or subject to satisfaction in a manner consistent with the content of the debtor's original obligation." This view is also still valid today. It can be assumed that the bankrupt's obligation - in a still unfulfilled arrangement - has been restructured with the possibility of its potential restitution. It is possible to defend the view that the restructured liability, in the scope covered by the restructuring, in the period between the final approval of the arrangement and the implementation of the arrangement is a liability with a status similar to a natural obligation (obligationes naturales). It can be argued that the effect of the conclusion of the arrangement and its final approval by the court is associated with a condition similar to conditional remission of liabilities in bankruptcy proceedings.
The consumer arrangement does not infringe the rights of the creditor against the guarantor and the bankrupt debtor, or rights arising from a mortgage, pledge, tax pledge, registered pledge or maritime mortgage, if they were established on the property of a third party. The same applies to rights arising from the transfer of ownership of things, claims or other rights to the creditor to secure the claim (Article 167 R.L, in relation to Article 266f B.L. in connection with Article 49123 B.L.). The arrangement does not infringe upon the creditor's rights under the mortgage, pledge, registered pledge and maritime mortgage if they were established on the property of a third party. The creditor has the right to choose to pursue claims from the debtor or to seek satisfaction in the form of material security on the property of a third party. The arrangement does not infringe the rights arising from mortgage, pledge, registered pledge, tax lien and maritime mortgage, if they were established on the property belonging to the bankrupt, unless the authorized person has consented to the coverage of the secured claim with the arrangement. In the event of consent to be covered by the arrangement of the secured claim, resulting from mortgage, pledge, registered pledge, tax lien and maritime mortgage, if they were established on the property belonging to the debtor, they remain in force, however, they secure the claim in the amount and on the terms of payment specified in the system (Article 168 R.L. in connection with Article 266f B.L. in connection with Article 49123 B.L.).
After completing the arrangement or enforcing claims covered by the arrangement, the court shall, upon application, issue a decision on the implementation of the arrangement. The decision may be appealed (Article 172 R.L. in connection with Article 266f B.L. in connection with Article 49123 B.L.). After completing the entire arrangement, the debtor will be irrevocably indebted.
If, after the approval of the arrangement, there has been a permanent increase or reduction of the bankrupt's income, the bankrupt, the creditor may apply for a change of arrangement. The decision to open the procedure for changing the arrangement shall be announced. The decision on opening proceedings to change the arrangement is subject to a complaint (Article 172 R.L. in connection with Article 266f B.L. in connection with Article 49123 B.L.).
The maximum limit of change in the arrangement in favor of creditors is determined by the amount of the original claim. A change in the arrangement may not multiply the debtor's obligations beyond their original position. The structure of the change of arrangement is also an argu-
ment in the discussion regarding the status of obligations between the final approval of the arrangement and its implementation, which means that until the complete implementation of the arrangement, the debtor's obligations covered by the arrangement do not expire.
The court revokes the arrangement at the request of the creditor, bankrupt, if the bankrupt does not comply with the provisions of the arrangement or it is obvious that the arrangement will not be implemented. It is presumed that it is obvious that the arrangement will not be performed if the bankrupt fails to perform the obligations arising after the approval of the arrangement. Repeal of the agreement for other reasons is unacceptable (Article 176 R.L. in connection with Article 266f B.L. in relation to Article 491 23 B.L.).
The court repeals the arrangement if the bankrupt fails to comply with the arrangement. Failure to perform the arrangement will also result in improper arrangement performance. Such a situation will take place, e.g. when the bankrupt is in default of payment of installments, he ceases to perform the arrangement at all or the arrangement performs only partially. The basis for repealing the arrangement is thus also the selective satisfaction of creditors, since the bankrupt is obliged to satisfy creditors in a fair manner. An application to repeal the arrangement may be submitted by any of the creditors. It seems that the court should dismiss the application for revocation of the arrangement, if the bankrupt performed the arrangement with slight delays. It should also be noted that the creditor - due to the failure to perform the arrangement - may seek protection of his interests in other ways, e.g. by claiming interest for delay in performing the arrangement.
The court annuls the arrangement if it is obvious that the arrangement will not be implemented. It is presumed that it is obvious that the arrangement will not be performed if the bankrupt fails to perform the obligations arising after the approval of the arrangement. This presumption is rebuttable (praesumptio iuris tantum).
What are the effects of repealing the consumer arrangement? In the event of the arrangement being repealed, the existing creditors may assert their claims in the original amount. The sums paid on the basis of the arrangement are not to be returned by creditors. A mortgage, pledge, registered pledge, tax pledge or maritime mortgage secure a claim in the amount in which it has not yet been satisfied (Article 179 R.L. in relation to Article 266f B.L. in connection with Article 49123 B.L.). The effects referred to in the commented provision do not arise ex lege as a result of the mere fact that the arrangement has not been performed, but only as a result of the court's decision on the repeal of the arrangement.
It is necessary to defend the view that creditors whose claims have been fully satisfied under the arrangement, should the arrangement be repealed, may also seek satisfaction in their original amount. The arrangement is not the sum of bilateral relationships between the bankrupt and individual creditors. The arrangement is a conglomerate of many legal relations. In connection with the nonperformance of a given obligation restructured by the arrangement, an application is made to repeal the entire arrangement, not a part of it. The arrangement does not have to be the result of the unanimous will of all creditors, but a certain majority of them. The arrangement excludes individual treatment of creditors - the arrangement is an instrument of group restructuring, and creditors share a common fate within the arrangement.
PROCEEDINGS FOR ENTERING INTO AN ARRANGEMENT AT A MEETING OF CREDITORS
"The legislator prefers a way of debt relief by entering into an arrangement at a meeting of creditors (...). This solution provides that the debtor, with the help of a professional entity - court supervisor, will come to an agreement with creditors with the appropriate application of the provisions of the Restructuring Law. The draft also provides that the court will also be able to refer the debtor who filed for bankruptcy to the proceedings and who did not stipulate that he did not want to use the option of entering into an arrangement"7.
What is the essence of this mode? "This solution will allow the debtor to retain his assets (unless, in order to implement the arrangement proposals, he decides to sell his selected assets himself), avoid individual or bankruptcy enforcement and restructure his debts in cooperation with a restructuring advisor. If the conclusion of the arrangement proves impossible, there remains a way of consumer bankruptcy, in which there is also the possibility of concluding an arrangement based on Article 49122 B.L."8
Proceedings for entering into an arrangement at a meeting of creditors are regulated in Article 49125 - 49138 B.L. To the extent not covered by the provisions on consumer bankruptcy, the provisions of the Restructuring Law Act regarding accelerated arrangement proceedings shall apply accordingly to proceedings for the conclusion of an arrangement at a creditors' meeting, including the conclusion, arrangement, its effects, changes and repeal (Article 491 B.L.).
As a consequence, in proceedings for the conclusion of an arrangement at a meeting of creditors, the rules arising from the Restructuring Law Act should be properly applied for determining the list of claims, the list of disputed claims, convening a meeting of creditors to conclude an arrangement, rules for voting creditors, counting the majority necessary to determine that the arrangement has been adopted, approval of the arrangement, its effects and rules for changing and repealing the arrangement.
In accordance with Article 49125 section 1 B.L. a debtor who is a natural person who does not conduct business activity, which has become insolvent within the meaning of Article 10 and 11 section 1 B.L., may apply to the bankruptcy court for opening proceedings to conclude an arrangement at a meeting of creditors. The application for opening proceedings to conclude an arrangement at the meeting of creditors shall be made on a form. It should comply with the formal conditions referred to in Article 4912 section 4 B.L., and include preliminary arrangement proposals (Article 49125 section 4-5 B.L.). The debtor together with the application to open the proceedings for the arrangement at the meeting of creditors pays an advance for the expenses of the procedure (Article 49126 section 1 B.L.).
In addition, the bankruptcy court may direct the debtor who filed for bankruptcy to proceed to an arrangement at the meeting of creditors, unless the debtor in the application for declaration of bankruptcy made a statement that he does not agree to participate in the proceedings at the meeting of creditors (Article 49125 section 2 B.L.).
The court shall accept the debtor's request to open proceedings for the arrangement of creditors' meeting or may refer him to such proceedings, if the debtor's earning potential and his job situation indicate his capacity to cover the costs of the arrangement proceedings and there is the
7 Print No. 3480 of the Sejm of the Republic of Poland of the 8th term
8 Print No. 3480 of the Sejm of the Republic of Poland of the 8th term
possibility of concluding and fulfilling the arrangement with creditors (Article 4912 section 3 B.L.). The premise for conducting proceedings in this mode is the debtor's appropriate property census.
Having regard to the application for opening an arrangement to conclude an arrangement at a meeting of creditors or directing the debtor to that proceeding, the court shall issue a ruling to open proceedings to conclude an arrangement at a meeting of creditors (Article 49127 B.L.).
The effect of opening the proceedings will be a moratorium (for the duration of the proceedings) on the performance of obligations covered by the arrangement, suspension of enforcement forced proceedings regarding claims covered by the arrangement and the possibility to suspend enforcement proceedings regarding secured claims for a maximum period of 3 months.
The court supervisor, within thirty days of the date of issuing of the ruling to open proceedings for the conclusion of an arrangement at the meeting of creditors: 1) prepares arrangement proposals in consultation with the debtor; 2) draws up a list of claims; 3) draws up a list of disputed claims; 4) convenes a meeting of creditors to vote on the arrangement (Article 49130 B.L.).
The date of the meeting of creditors is set by the court supervisor in consultation with the debtor. The creditors 'meeting may not take place later than three months from the day of opening the proceedings for concluding an arrangement at the creditors' meeting, and in the case referred to in Article 49125 section 2 B.L. - four months from the date of opening this procedure (Article 49131 section 1, 2 B.L.). The court supervisor presents the court with a request either for approval of the arrangement or for discontinuation of the proceedings within twenty-one days from the date of the meeting of creditors (Article 49132 section 3 B.L.).
The arrangement is concluded for a period not exceeding five years (Article 49133 section 1 B.L.). If the arrangement includes the claims referred to in Article 151 section 2 R.L, arrangement, in part, regarding these claims may be concluded for a period exceeding five years (Article 49133 section 2 B.L.). The debtor performs the arrangement through the arrangement supervisor (Article 49134 B.L.).
The provision of Article 49133 section 1 B.L. does not waive the rule that the arrangement does not cover claims secured on the debtor's property by a mortgage, pledge, registered pledge, tax lien or marine mortgage, in the part covered by the value of the subject of the collateral, unless the creditor has consented. The debtor's consent to the claim being covered by the arrangement is expressed in an unconditional and irrevocable manner, not later than before voting on the arrangement.
The court discontinues the proceedings for concluding an arrangement at the meeting of creditors, if the debtor does not fulfill his obligations. The basis for discontinuing the proceedings is the fact that the debtor's current earning potential and his job situation do not justify the ability to cover the costs of proceedings for concluding an arrangement at a meeting of creditors and the possibility of concluding and executing an arrangement with creditors. The court discontinues the procedure for concluding an arrangement at a meeting of creditors if, within six months from the date of the decision to open the procedure for concluding an arrangement at a meeting of creditors, the court supervisor does not submit an application for approval of the arrangement (Article 49136 section 1 B.L.).
In the case referred to in Article 49125 section 2 B.L., af-
ter the final discontinuation of proceedings, the court examines the debtor's petition for bankruptcy (Article 49136 section 2 B.L.).
In the event of acceptance of the arrangement at the meeting of creditors, it requires approval by the court. The approved arrangement may be changed or repealed. Debt relief is final only when the entire arrangement is completed.
However, one should defend the statement that in the proceedings on the conclusion of the arrangement at the meeting of creditors, a partial arrangement within the meaning of Article 180 R.L. could be concluded. Several arguments support this statement. In accordance with Article 49138 B.L. in matters not covered by the Bankruptcy Law Act, the provisions of the Restructuring Law Act regarding accelerated arrangement proceedings shall apply accordingly, including the conclusion, arrangement, its effects, changes and repeal. A partial arrangement may be adopted and approved only in two types of restructuring proceedings (a) in proceedings for approval of the arrangement or (b) in accelerated arrangement proceedings (Article 182 section 1 R.L.). The partial arrangement instrument significantly extends the possibility of restructuring an insolvent natural person not conducting business activity. Application of the provisions on the partial arrangement has not been excluded.
The essence of the partial arrangement consists in restructuring only certain arrangement obligations determined in accordance with the norms of Article 150 - 152 R.L. From a practical point of view, the debtor may exclude, for example, small creditors and thus significantly facilitate the proceedings.
In partial arrangement creditors secured on the debtor's assets can be compulsorily covered by the arrangement without their consent (Article 181 R.L.). It is possible if the debtor offers arrangement proposals providing for full satisfaction of a secured creditor, within the period specified in the arrangement or proposals providing for satisfaction of the creditor to an extent not lower than what may be expected in the case of forced recovery of claims from the subject of security.
SUMMARY
The above text was intended to present the latest reform of Polish bankruptcy law in relation to consumer bankruptcy. Broadening the possibilities of concluding an arrangement is undoubtedly a step in the right direction. However, it should be anticipated that this complicated mode will not be often used in day - to - day practice.
Reference list:
1. R. Adamus, Bankruptcy and Restructuring Law in Poland, Societas et Iurisprudentia 2019, vol. VII, issue 2, Trnava, Slovakia
2. R. Adamus, Consumer bankruptcy in Poland, International and Comparative Law Review, Olomouc 2011, vol. 11, no. 2
3. R. Adamus, Restructuring or bankruptcy in Poland of the European Community aircraft carrier, The Social and Political Sciences, Moscow 2018, no 6
4. R. Adamus, Bankruptcy Proceedings in Relation to Bond Issuers in Poland, The Social and Political Sciences, Moscow 2013, no 1
5. R. Adamus, The arrangement proposals limiting the debtor on the board of his estate, Economic Problems and Legal Practice, Moscow 2018, no 6
6. R. Adamus, Grounds for opening restructuring proceedings in Poland, Gaps in Russian Legislation, Moscow 2018, no 7,
7. R. Adamus, Partial arrangement in the Polish Reorganization Law, Gaps in Russian Legislation, Moscow 2018, no 6, p. 305
8. R. Adamus, Some remarks on the issue of the legality of
arrangement proposals under the Polish Reorganization Law, The Social and Political Sciences, Moscow 2018, no 5
9. R. Adamus, The Reorganization Law in Poland, Acta Universitatis Danubius. Juridica, Vol 8, 2012, no 1
СОГЛАШЕНИЕ В ПОТРЕБИТЕЛЬСКОМ БАНКРОТСТВЕ ПО ПОЛЬСКОМУ ЗАКОНОДАТЕЛЬСТВУ
©Адамус Рафаль, доктор наук, профессор, кафедра коммерческого и налогового права Место работы: Опольский университет, Польша, Европа
radamus@uni.opole.pl, adamus_rafal@wp.pl
Аннотация: организация потребительского банкротства является альтернативным решением ликвидации должника и установления плана погашения задолженности. Соглашения в процедуре потребительского банкротства может содержаться в различных форматах. Регулирование механизма банкротства потребителей основывается на статьях 49122 и 49123 закона О банкротстве и на легендарной ссылке на положения о механизме производства по делу о банкротстве (статья 266а закона О банкротстве), на механизме, предусмотренном Законом О реструктуризации. Законодатель предложил еще один способ облегчения долгового бремени путем заключения соглашения на собрании кредиторов. Это решение предусматривает, что должник с помощью профессионального субъекта - судебного надзорного органа придет к соглашению с кредиторами с соответствующим применением положений Закона О реструктуризации. В настоящей статье представлена официальная процедура открытия производства по утверждению соглашения. В исследовании представлены требования для заключения соглашения на собрании кредиторов, последствия соглашения, а также вопросы, связанные с изменением соглашения.
Ключевые слова: несостоятельность, банкротство, потребитель, урегулирование
