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8.2. DEBT RELIEF THROUGH CREDITORS' REPAYMENT PLAN IN POLAND
Adamus Rafaf, prof. UO dr hab., professor of University of Opole, Department of Commercial and Tax Law.
ORCID: 0000-0003-4968-459X
Work place: University of Opole, Poland
adamus_rafal@wp.pl
Annotation: Consumer bankruptcy is a relatively new institution in Poland. It has been functioning in the Polish legal system since 2008. 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) will certainly have a significant impact on the remarkable increase in the number of bankruptcy cases. The debt relief of an insolvent natural person non conducting business activity is possible by canceling the debtor's obligations by court order in a separate procedure after the repayment plan has been completed. The debt relief mode discussed in this paper can be described as "classic". Other modes of debt relief have the value of modifying the general pattern. The paper discusses grounds for establishing the creditors' repayment plan, detailed prerequisites for the length of exercising of the repayment plan, legal effects of establishing the repayment plan. There are also remarks on proceedings for changing the repayment plan (which refers to the institution of the rebus sic stantibus clause known to civil law and to the change of the arrangement concluded under bankruptcy and restructuring law) and on repeal of the repayment plan resulting in no debt relief. Finally the paper deals with order confirming the implementation of the repayment plan and remitting the liabilities. The study could be useful for comparative law works.
Keywords: bankruptcy, insolvency, consumer, debt relief, repayment plan.
PREFACE
The debtor's (who is a natural person non conducting commercial activity) debts may be removed by decommitment of the bankrupt's obligations by court order after the repayment plan has been completed in separate proceedings, which are described below, (or in ordinary proceedings applicable to entrepreneurs, in the case1 referred to in Article 4911 section 2 B.L.2).
It should be stressed that a repayment plan has a separate legal basis as well as a different legal significance in ordinary and separate proceedings for debt relief.
The stages of the consumer bankruptcy proceedings3 are the following:
1 Consumer bankruptcy in Poland is a separate procedure within the meaning of the Bankruptcy Law Act. The existence of the 'main' procedure and 'separate' procedures is typical for codification of court proceedings. A characteristic feature of separate proceedings is that this procedure undergoes certain modifications to the basic(general)model and has autonomous regulation in some areas. The provisions on separate proceedings are therefore, in principle, special provisions (lex specialis). The legislator has introduced a legal instrument allowing for resignation from the separate mode. In accordance with Article 4911 section 2 B.L. in the order on the declaration of bankruptcy (and pursuant to Article 4915 section 2 B.L. also after the declaration of bankruptcy) the court may decide that the bankruptcy proceedings against a natural person who is entitled to consumer bankruptcy will be conducted in accordance with the provisions of Part One of the Bankruptcy Law Act (in the "ordinary" mode ), if it is justified by the considerable size of the debtor's assets, a significant number of creditors or other justified predictions as to the increased complexity of the proceedings. There are three reasons for resigning from the separate procedure: 'significant size of the debtor's assets', 'significant number of creditors', 'other reasonable predictions as to the increased complexity of the proceedings'. They should be considered as separate premises. In the first two cases, the legislator used the very vague wording 'significant'. The third condition is basically open. It should be postulated that the bankruptcy court should resign from the separate mode (which is significantly simplified) only in extreme cases. The choice of the ordinary procedure may not lead to the exclusion of the debt relief. Therefore, in proceedings against a person having consumer bankruptcy capacity conducted in the ordinary course of procedure, the provisions on separate proceedings - Article4917, Article4918 and Article 49110 B.L. In accordance with Article 4917section B.L. if the assets of the insolvent debtor are not sufficient to cover the costs of the proceedings or if there are no liquid funds to cover them, the costs are temporarily covered by the State Treasury.
2 B.L. - Bankruptcy Law Act /ustawa z dnia 28 lutego 2003 r. Prawo
upadtosciowe
3 P. Zimmerman, Prawo upadtosciowe i naprawcze. Komentarz, Warszawa 2015; P. Filipiak, A. Hrycaj, t. Lipowicz, Upadtosc konsumencka po duzej nowel-izacji, Warszawa 2015; R. Adamus, Nowa upadtosc konsumencka. Poradnik prak-tyczny, Warszawa 2015; A. Witosz, Uktad w upadtosci konsumenckiej, Przegl^d Prawa Handlowego 2015, No 2; A.J. Witosz, Przestanki upadtosci konsumenckiej, Przegl^d Prawa Handlowego 2015, no 2; A.J Witosz, Wierzyciel w upadtosci konsumenckiej, in: Tendencje reformatorskie w prawie handlowym - mi^dzy teoriq a praktykq, J. Olszewski (editor), Warszawa 2015, p. 113, R. Adamus, Nowa upadtosc konsumencka, Monitor Prawa Bankowego 2015 No 2; R. Adamus, Zaspokojenie wierzyciela rzeczowego w upadtosci konsumenckiej, Przegl^d Prawa Handlowego 2015, No 2; R. Adamus, Upadtosc osoby fizycznej nieprowadz^cej dziatalnosci gospodarczej, radcaPl Kwartalnik Okr^gowej Izby Radcow Prawnych w Katowicach 2015, No 2, p. 28; M. Pannert, Upadtosc konsumencka po zmianach - problemy w^ztowe, in: Tendencje reformatorskie w prawie handlowym -mi^dzy teoriq a praktykq, J. Olszewski (editor), Warszawa 2015, p. 135; B. Sagan, Zmiany w regulacji upadtosci konsumenckiej, in: Tendencje reformatorskie w prawie handlowym - mi^dzy teoriq a praktykq, J. Olszewski (editor), Warszawa 2015, p. 145, T. Hofman, Upadtosc konsumencka 2015, Monitor Prawniczy 2015, no 16, p. 858, P. Wotowski, Uktad w upadtosci konsumenckiej - wybrane zagadnienia, Rejent 2015, No 8, p. 121., E. Catus, Upadtosc konsumencka -doswiadczenia i perspektywy, Przegl^d Prawa i Administracji 2015, No 101,p. 11 P. Wotowski, Upadtosc konsumencka na podstawie nowelizacji ustawy Prawo upadtosciowe i naprawcze z dnia 29 sierpnia 2014 r. Transformacje Prawa Pry-watnego 2014, No 4, p. 53; P. Szafranski, Uwagi do projektu zmian w prawie upadtosciowym osob fizycznych nieprowadz^cych dziatalnosci gospodarczej, przedstawionego na konferencji Ministerstwa Sprawiedliwosci oraz Ministerstwa Gospodarki w dniu 10 grudnia 2012 roku, Polski Proces Cywilny 2013, No 2, p. 174, P. Kuglarz, Podstawowe standardy upadtosci konsumenckiej w Polsce na tle wybranych regulacji europejskich, Doradca Restrukturyzacyjny 2015, No 1, p. 33; J. Werengowski, Post^powanie upadtosciowe bez udziatu wierzycieli, Doradca Restrukturyzacyjny 2015, No 1, p. 44; K. Tatara, M. Kalinski, W^tpliwosci odnosnie do przestanki ztozenia wniosku o ogtoszenie upadtosci w terminie w przypadku menedzerow lub bytych przedsi^biorcow ubiegaj^cych si^ o upadtosc konsumencka, Doradca Restrukturyzacyjny 2015, No 1, p. 81; P. Janda, Czynnosci syndyka w post^powaniu upadtosciowym prowadzonym wobec osob fizycznych nieprowadz^cych dziatalnosci gospodarczej w uj^ciu praktycznym, Doradca Restrukturyzacyjny 2016, No 1, p. 23.
An indicative flowchart of proceedings aimed at debt relief of a natural person non conducting commercial activity (a consumer) in Poland
(1)
Proceedings on declaration _bankruptcy_
(2)
Consumer bankruptcy proceedings conducted in a separate mode
(3)
Debt relief proceedings through a _repayment plan_
Submission a petition for a
consumer bankruptcy by an authorized person
Declaration of Liquida-
consumer bank- tion of
ruptcy by a bank-
bankruptcy ruptcy
court. Establish- estate (if
ment of a trus- any
tee. exists).
The trustee's a pplication for
establishing a repayment plan which serves as a (a) list of receivables, (b) division plan, (c) separate division plan, (d) repayment plan sensu stricte.
Establishing a repayment plan by a bankruptcy court. Examination of the payment morality of the bankrupt.
Distribution of ba nkrupt-cy estate funds based on a repayment plan (if any accumulated). Implementation of the so-called rights of separate-ness (if material assets are encumbered).
Performing repayments under the repayment plan sensu stricte
Statement of implementation of repayment
plan sensu stricte. Decom-mitment of uncovered liabilities by a court order.
COURT RULING IN A SEPARATE PROCEDURE ESTABLISHING THE CREDITORS' REPAYMENT PLAN
The debt relief is possible by canceling the debtor's obligations by court order in a separate procedure after the repayment plan has been completed. The debt relief mode discussed here can be described as "classic". Other modes of debt relief have the value of modifying the general pattern. The explanatory memorandum to the draft amendment act of August, 30 2019 indicated that "a significant simplification of the procedure currently in force for persons not conducting economic activity is provided, unless the circumstances of a given case indicate the need to conduct a given procedure in the ordinary manner. No judge-commissioner will be appointed in these proceedings, and any objections to the trustee's operation will be considered in the course of a complaint to the bankruptcy court, similarly to enforcement proceedings and complaints about bailiff's actions. The bankruptcy proceedings will be limited to the liquidation of assets by the trustee and preparation of a draft plan for the repayment of creditors"4 Liquidation of the bankrupt's assets is simplified.
As a result of the amendment made by the Act of August, 30 2019. the position of a trustee, who is to be the spiritus movens of insolvency proceedings, has increased significantly. In accordance with Article 49114 section 1 B.L. after the deadline for submitting claims and the liquidation of assets belonging to the bankruptcy estate, the trustee submits to the court a draft plan for repayment of creditors with justification or information that - in the trustee's assessment - there are premises to:
a) refusing to set up a creditors' repayment plan
b) refusal to writ - off the debtor's obligations without setting a creditors repayment plan or conditional cancellation of the bankrupt's obligations without setting a creditors repayment plan
c) cancellation of the debtor's obligations without a credit repayment plan being set
d) conditional cancellation of the debtor's obligations without establishing a repayment plan for creditors.
The burden of initiative in proceedings is on the trustee. However, a competitive position should be allowed by the bankrupt and by the creditors. The court is not bound by the position of the trustee as to the content of the draft repayment plan. The fact that a draft repayment plan has been submitted does not mean that the bankruptcy court will determine the repayment plan at all or that it will determine it as proposed by the trustee. The draft of repayment plan should contain all elements of the repayment plan content.
In the justification of the bill from August 30, 2019. it was argued that the draft repayment plan in consumer bankruptcy "would contain data that is currently contained in three documents - a list
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of claims, a division plan and a repayment plan for creditors. The creditors' repayment plan, as it is currently the case, will be subject to appeal by way of complaint, with the complaint also fulfilling the function of objection and objection to the division plan. The change requires an appropriate rewording of Article 4912 section 2 of the Act, which indicates the provisions applicable respectively and those whose application is excluded, so that there is no doubt that without preparing a list of claims, a supplementary list of claims and distribution plans (including a separate distribution plan for sums obtained from the liquidation of property and rights encumbered in material), the trustee is obliged to take into account the principles of creating these documents when creating a repayment plan for creditors"5.
In the ruling establishing the repayment plan for creditors, the bankruptcy court therefore identifies four key issues (Article 49115 section 1 B.L.). First, in the content of the repayment plan, the court mentions the creditors participating in the repayment plan. Secondly, in the content of the repayment plan, the court distributes the bankruptcy estate funds to the creditors participating in the repayment plan, if the bankruptcy estate funds have been accumulated in the proceedings. And according to Article 336 section 1 B.L. in connection from Article 49115 section 7 B.L. sums obtained from the liquidation of things, claims and rights encumbered with a mortgage, pledge, registered pledge, tax or maritime mortgage, as well as rights and personal rights and claims disclosed by an entry in the land and mortgage register or not disclosed in this way, but reported within the time limit specified in Article . 4915 section 1 point 4 B.L. shall be allocated to satisfy creditors whose claims were secured on these goods or rights, subject to the provisions of the Act. The amounts remaining after these claims have been paid into the bankruptcy estate. The repayment plan should therefore include the so-called right of separateness. Thirdly, in the content of the repayment plan, the court determines whether the bankrupt has led to his insolvency or significantly increased its degree intentionally or through gross negligence. Fourth, in the content of the repayment plan, the court specifies to what extent and period, the bankrupt is obliged to pay the liabilities which are subject to bankruptcy proceedings, and how much of the bankrupt's obligations arising before the date of declaration of bankruptcy will be waived after the fulfillment of the creditors' repayment plan. This part of the plan can be described as a repayment plan sensu stricte.
PREREQUISITES FOR THE LENGTH OF EXERCISING OF THE REPAYMENT PLAN
The length of exercising of the repayment plan is significant from the point of view of the debt recovery function of this plan as well as the preventive and educational function. The duration of the
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repayment plan depends on two circumstances. First, it depends on the debtor's payment morality. Secondly, it depends on the degree of satisfaction of creditors under the repayment plan. The period of fulfillment of the repayment plan is not strictly marked: on the contrary, it is flexible and gives the court a certain margin to decide within the limits provided for by the legislator.
Repayment periods include the period from the expiry of six months from the date of declaration of bankruptcy to the date of determining the repayment plan for creditors, unless the debtor would not cover in full the costs of the proceedings temporarily incurred by the State Treasury. The repayment period does not include the period of conditional remission of the debtor's obligations without establishing a repayment plan for creditors (Article 49115 section 1d B.L.).
If it is established that the bankrupt himself has led to his insolvency or significantly increased its degree intentionally (dolus) or through gross negligence (culpa lata), the creditors' repayment plan may not be set for a period shorter than thirty six months or longer than eighty four months. The task of the court is to examine whether the debtor has made him insolvent or significantly increased its degree intentionally or through gross negligence. In other words, it is about examining whether the debtor is at fault for his financial status.
The culture of consumption and suggestive advertising campaigns for loans and advances undoubtedly favor debt. The literature on the subject indicates that at present the consumer does not behave as homo aeconomicus - he does not use reasonable economic calculation, he does not forecast the future (in particular with long-term liabilities), he assesses his financial capabilities from the perspective of current financial possibilities and the current macroeconomic environment, and both these factors are variable in the long perspective. In determining fault, circumstances such as age, education, emotional maturity, mental condition, etc. are relevant.
From the circumstances excluding the guilt (in terms of the subjective element), due to the fact that it can be attributed to a person who has a sufficient degree of discernment and sufficient freedom to direct his conduct, mention the state of insanity, provided that it results from an internal reason, completely excludes conscious or free taking decision and expression of will is permanent. If the debtor is a minor, under 13 years of age, then the minor's age excludes guilt in leading to insolvency or a significant increase in his condition.
It should be added that this is about the debtor's own fault. If it is the statutory representative that caused the replaced person to become insolvent or significantly increased its degree intentionally or through gross negligence, this circumstance does not deprive the debtor of the attribute of payment morality.
The intentional guilt (intentional fault, dolus) occurs when a person acts with a deliberate intention, i.e. wants to commit a violation (dolus directus) or, by anticipating such a possibility, agrees to it (dolus eventualis).
As the legislator has used the terms of the previous regulation in the new text of the Act, it is justified to refer to earlier case law. There is an interesting argument in the ruling of the District Court in Szczecin of April 29, 2016: "willful guilt can be attributed to the debtor when he takes several loans, knowing that he will soon lose the source of income, and the funds obtained in this way will be
transferred to third parties or will squander and then submit a debt relief application. (...) "6.
Guilt may be unintentional in the formula of recklessness, where a person has an idea of the effect of the violation, but he unreasonably supposes that he will avoid it. Carelessness is a form of unintentional guilt. In such a situation, a person has no idea as to the effect of not having their right action, even though he could and should have had it. Negligence is graded to ordinary and gross. Gross negligence (culpa lata) is understood as failure to comply with the minimum (elementary) rules of correct behavior in a given situation. This issue is related to the issue of the subjective element of guilt. In the ruling of the District Court in Bydgoszcz of July 5, 20187, there is an opinion that "every natural person should assess not only current ability to perform obligations, including income and savings, but also, looking ahead, make a kind of probable anticipating of future situation. (...) Gross negligence is therefore a qualified form of lack of diligence in anticipating the effects of an action". In the ruling of the District Court in Szczecin of April 29, 20168 it was argued that "the classification of the debtor's behavior as gross negligence is prevented, for example, by incorrect information on the basis of which the debtor made a decision or the fact that the debtor was forced into careless behavior by the conditions in which he acted or factors internal (e.g. age, illness). An example of gross negligence is the behavior of the debtor, who takes out loans significantly exceeding his earning potential at the time of granting them, in the absence of prospects for improving the current situation. According to a reasonable assessment, he should take into account that in the near future - without additional debt - he will not be able to service his debt (...). When assessing the behavior of the debtor and comparing it with the standard type of conduct, one can make an accusation (...) that he should have had an idea as to what his behavior and increasing debt could lead to. (...). " In the ruling of the District Court in Cz^stochowa of April 28, 20179, it was indicated that "from the evidence gathered in the case, it appeared that the debtor incurring further obligations (... ) did not analyze his situation and financial capabilities. (...) the installment of his obligations was almost at the level of all of his monthly salary and by incurring more obligations (...) his obligations exceeded his salary. The Court does not share in this respect the applicant's argument that he was counting on getting allowances or promotion that would significantly increase his salary. (... ) The debtor should therefore only count on the monthly salary he receives, and not make the repayment of increasingly larger liabilities dependent on allowances whose payment was not regulated in any way, as well as promotion, for which the debtor did not receive any proposal. Therefore, the debtor made repayment of increasing liabilities dependent on obtaining funds which he was not sure of receiving, and despite that he incurred further obligations. Such behavior cannot be called anything other than gross negligence."
If it is established that the bankrupt did not lead to his insolvency or significantly increased its degree intentionally (dolus) or as a result of gross negligence (culpa lata), the creditors' repayment plan is established within a period not exceeding thirty-six months (Article 49115 section 1 B.L). In other words, if the debtor's insolvency or extension of its scope was not guilty (e.g. arising as a result of a serious illness, the exclusive action of third parties, e.g.
6 VIII Gz 16/16
7 VIII Gz 117/18
8 VIII Gz 16/16
9 VGz49/17
theft, setting fire to property, beating resulting in incapacity for work, natural disaster, etc.) or even it was culpable but the fault took a different form from intentional fault (dolus) or gross negligence (culpa lata), i.e. it was ordinary negligence, then repayment plan is established within a period not exceeding thirty-six months.
In case if it is established that the bankrupt has led to his insolvency or significantly increased its degree intentionally (dolus) or through gross negligence (culpa lata), the creditors' repayment plan may not be set for a period shorter than thirty six months or longer than eighty four months (Article 49115 section 1a B.L.).
The specific time period for performing the repayment plan set in months is at the discretion of the judge. In accordance with Article 49115 section 4 B.L. the court is not bound by the opinion of the bankrupt and creditors as to the content of the creditors' repayment plan. Nevertheless, when establishing the repayment plan for creditors, the court takes into account such guidelines as:
a) the earning potential of the bankrupt,
b) the need to support the bankrupt and his dependents and their housing needs,
c) the amount of outstanding claims
d) and the degree of satisfaction of claims in bankruptcy proceedings,
The legislator adopted the following solution : the scope of effectiveness of satisfying creditors leads to a reduction in the length of fulfillment of the repayment plan even if the bankrupt does not meet the criteria of payment morality. If, by way of fulfillment of the creditors' repayment plan, the debtor repays at least 70% of the obligations covered by the creditors' repayment plan, the creditors' repayment plan may not be established for a period longer than one year ( Article 49115 section 1b B.L.). If, by way of fulfillment of the creditors' repayment plan, the debtor repays at least 50% of the obligations covered by the creditors' repayment plan, the creditors' repayment plan may not be established for a period longer than two years (Article 49115 section 1c B.L.).
ESTABLISHING A REPAYMENT PLAN IN CONSUMER BANKRUPTCY
The institution of the repayment plan is an autonomous structure of consumer bankruptcy regulations. Its counterpart is neither the arrangement concluded in the restructuring proceedings nor a court settlement (Article 223 C.P.C.10) or an out-of-court settlement (Article 917 C.C.11). The repayment plan, as determined by the bankruptcy court, is not a private act.
In the justification of the bill, it was emphasized that "the innovative solution proposed in the act is to combine the creditors' repayment plan with the distribution plan (...). The repayment plan distributes the bankruptcy estate's funds. Insolvency funds means all sums that have been included in the insolvency estate and should be allocated to satisfy creditors, i.e. funds taken up by the trustee after the declaration of bankruptcy, funds from the income of the bankrupt during the bankruptcy proceedings and sums obtained from the liquidation of the bankruptcy estate, including also from property components encumbered with a mortgage, pledge, registered pledge, tax or maritime mortgage, as well as rights and personal rights and claims disclosed by an entry in the land and mortgage register or not disclosed in this way, but notified to the
judge-commissioner within the period specified in Article 51 sec-
12
tion 1 point 5" .
10 C.P.C. - Civil Procedure Code/ ustawa z dnia 17 listopada 1964 r. - Kodeks post^powania cywilnego
11 C.C. - Civil Code/ ustawa z dnia 23 kwietnia 1964 r. - Kodeks cywilny
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A characteristic feature of the repayment plan is its arbitrary determination by the bankruptcy court. The decision of the bankruptcy court may, at the initiative of the creditors or the bankrupt, be subject to control of the upper court. The repayment plan is therefore not determined by the debtor's proposals which are subject to verification in the act of voting by creditors.
Another characteristic feature of the repayment plan is its monotype content. The bankruptcy court specifies in the content of the repayment plan (1) in what period of time and (2) to what extent the bankrupt is obliged to pay the liabilities subject to the repayment plan, and (3) how much of the bankrupt's obligations will be written off after the repayment plan has been completed. It is not possible to set other "restructuring" conditions regarding liabilities than their repayment in installments.
An important characteristic of the repayment plan, requiring a separate emphasis (signum specificum) is the creative role of the bankruptcy court. The content of the repayment plan may not be consistent with the will of the bankrupt or the will of all or some creditors. The repayment plan is therefore not an "agreement" between the bankrupt and the creditors. The court is not bound by the opinion of the bankrupt and the creditors as to the content of the repayment plan (Article 49115 section 4 first sentence B.L.). When establishing a repayment plan for creditors, the court takes into account the earning potential of the bankrupt, the need to maintain the bankrupt and his dependents, claims and the degree of satisfaction of claims in bankruptcy proceedings (Article 49115 section 4 first sentence B.L.).
It should be assumed that repayment to creditors should be proportional. The principle of equal treatment of creditors is one of the basic principles of bankruptcy law. For example, it is not acceptable to assume that the bankrupt pays each creditor (having different claims) an equal amount of money. Nonetheless, it should be assumed that - at a hearing before establishing a repayment plan - creditors may agree to an unequal repayment (volenti non fit iniuria). The repayment plan includes - as a rule - repayment in many installments. The bankruptcy court should specify the size of the installment (equal, degressive, progressive) as well as the date of their payment (payment e.g. at the end of each calendar month, calendar quarter, half year, etc.). The acceptance of an obligation to pay in one installment is not excluded.
It should be recalled that when bankruptcy is declared, nonmonetary claims change into monetary claims and become due on the day of declaration of bankruptcy (Article 91 B.L.).
In the justification of the amendment act of August 30, 2019, it was stated that "the change in section 4 Article 49115 consists in specifying the conditions that the court takes into account when determining the repayment plan. Practice shows that an important criterion defining the repayment plan is the degree of satisfaction of claims from liquidation of assets and current income of the debtor in bankruptcy proceedings. The above solution should lead the court to award those debtors who actively increase the level of satisfaction of creditors during the course of the proceedings. "13.
Referring to earning opportunities when setting up a repayment plan does not automatically mean that debtor's current earnings are being considered. It should be remembered that in practice the professional deactivation of the bankrupt may be the result of an earlier bailiffa's seizure of remuneration, which in practice could have had a demobilizing effect on the need for job activity. The court should take into account, in particular, such circumstances as
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the education of the bankrupt, learned profession, situation on the labor market, age (retirement age), state of health of the bankrupt (e.g. disability impairing professional activity), other factors, and therefore a set of objective and individual factors.
Certain analogies can be sought in cases regarding earning capacity for determining the amount of maintenance obligations between relatives. In the judgment of the Supreme Court of May 16, 1975 it was clearly stated that " The scope of the maintenance obligation can and should be greater than that resulting from the actual earnings and income of the obligated person, if with full and proper use of his strengths and skills the earnings and income were greater, and the existing socio-economic conditions and important reasons for such use do not prevent."14 In the Supreme Court's judgment of November 28, 1975, it was aptly stated that "an invalid cannot be required (...) to make an effort to obtain income with such an effort that exceeds his physical abilities and, as a consequence, could affect his health in a negative way"15. In the judgment of the Appeal Court in Krakow of March 23, 2016, it was aptly noted that "in the amount of maintenance, the costs of water, electricity, gas for cooking and heating drinking water for children should be taken into account as a lump sum. However, the cost of maintaining and heating the apartment is borne by the parent who is entrusted with the exercise of parental responsibility and is obliged to provide for himself an apartment that allows children to stay with him. Facts can modify this view."16 The judgment of the Supreme Court of November 14, 1997 states that "when deciding on the maintenance obligation of parents towards children who have reached the age of majority, it should also be taken into account whether they show a desire to continue learning and whether their personal abilities and character traits allow them to actually continue science"17.
EFFECTS OF ESTABLISHING THE REPAYMENT PLAN
Establishing the creditors' repayment plan does not infringe the creditor's rights against the bankrupt guarantor and the bankrupt's co-debtor (Article 49115 section 5 B.L.).
The commented provision regarding the guarantor's liability is a lexspecialis in relation to Article 879 § 1 C.C. which is as an expression of the accessory nature of the guarantor's liability.
The repayment plan of creditors does not infringe upon the rights arising from mortgage, pledge, registered pledge, tax lien and maritime mortgage if they were established on the property of a third party (Article 49115 section 5 B.L.+). The commented regulation does not affect the substance of material collateral on the property components of a third party. The provisions on the effects of the repayment plan do not apply to collateral on the assets of the bankrupt, as they are subject to sale as part of the liquidation of the estate.
During the fulfillment of the repayment plan, it is unacceptable to initiate enforcement proceedings regarding claims arising before the repayment plan has been established, with the exception of claims arising from the obligations referred to in Article 49121 section 2 B.L. (Article 49115 section 6 B.L).
During the fulfillment of the repayment plan, the bankrupt may not perform legal actions regarding his assets that could impair his ability to perform the repayment plan (Article 49118 section 1 B.L.). In particularly justified cases, the court, at the request of the bank-
14 III CRN 48/75
15 III CRN 370/75
16 IACa 1755/15
17 III CKN 257/17
rupt, may agree to perform or approve the performance of a legal act (Article 49118 section 2 B.L.).
PROCEEDINGS FOR CHANGING THE REPAYMENT PLAN
Proceedings for changing the repayment plan are regulated in Article 49119 B.L. It refers to the institution of the rebus sic stantibus clause known to civil law (Article 3571, 3581 § 3 C.C.) and to the change of the arrangement concluded under bankruptcy and restructuring law. However, the premises of changing the repayment plan does not require an extraordinary change in relations.
The premise for changing the repayment plan is the failure of the bankrupt to meet his obligations set out in the repayment plan. In the context of Article 49211 B.L. it should be assumed that the objective circumstances are: loss of job, loss of earning potential, serious deterioration of health, etc. It should be assumed that the objective circumstance that prevents the bankrupt from fulfillment the repayment plan should be new circumstances, previously unknown (as to theirs existence or as to theirs sizes) on the date of the repayment plan.
If the bankrupt cannot comply with the obligations set out in the creditors 'repayment plan, the court, at his request, after hearing the creditors, may change the creditors' repayment plan. The court may extend the repayment period for a further period not exceeding eighteen months. The court's decision may be appealed, and the decision of the court of second instance may be appealed in cassation (Article 49119 B.L.).
In the event of a significant improvement in the assets of the bankrupt during the fulfillment of the repayment plan of the creditors, resulting from reasons other than an increase in remuneration for work or income obtained from the bankrupt's gainful activity, each of the creditors and the bankrupt may apply for a change in the repayment plan creditors. The court decides to change the repayment plan of creditors after hearing the bankrupt and the creditors. The decision may be appealed (Article 49119 B.L.).
The procedural condition for changing the plan is to hear creditors. "Hearing creditors" does not mean that the court is obliged to hear each creditor on the proposal to change the repayment plan. Hearing should refer to creditors active in insolvency proceedings, i.e. those who want to comment on the matter. Hearing of creditors may take place at a court session, but it is also possible for the court to call creditors to make any written submissions. The court is not bound by the position of creditors.
The legislator does not explicitly specify, with one exception, the limits of changing the repayment plan. If the premise for changing the repayment plan is the inability to perform it, then the change in plan may consist in improving the situation of the bankrupt. It is possible to leave the debt repayment obligation at the same level, but with an extended maturity. At the same time, the court may extend the repayment period for a further period of up to 18 months.
REPEAL OF THE REPAYMENT PLAN RESULTING IN NO DEBT RELIEF
Only the participant of the repayment plan referred to in Article 49115 section 1 point 4 B.L. may demand the repayment plan to be repealed.
The court repeals the creditors' repayment plan in the following five cases. If the repayment plan of the creditors is revoked, the bankrupt's obligations are not subject to cancellation (Article 49120 section 3a B.L.). Due to the special nature of the institution of the repeal of the repayment plan, the far-reaching effects associated with the repeal of the repayment plan, and due to the circumstances justifying the maintenance of the repayment plan, the
conditions for repealing the repayment plan should not be interpreted in a broader way.
First, the court repeals the creditors' repayment plan in the event of the bankrupt's failure to comply with the obligations set out in the creditors' repayment plan, of its own motion or at the request of the creditor, after hearing the bankrupt and the creditors covered by the creditors' repayment plan (Article 49120 section 1 B.L.). This is, in essence, the main and basic premise justifying the repeal of the repayment plan. Non-performance of obligations set out in the repayment plan may take the form of non-performance of these obligations at all or the performance of these obligations improperly: e.g. through incomplete or late payments. Violation of the obligations arising from the repayment plan may consist in the selective satisfaction of creditors.
Secondly, the court repeals the creditors 'repayment plan when the bankrupt has failed to submit a report on the implementation of the creditors' repayment schedule in accordance with Article 49118section 3 B.L. (Article 49120 section 2 point 1 B.L.).
Thirdly, the court repeals the creditors 'repayment plan when they went bankrupt in the report on the implementation of the creditors' repayment concealed the income or acquired assets referred to in Article 49118 section 3 B.L. (Article 49120 section 2 point 2 B.L.).
Fourth, the court repeals the repayment plan of the creditors when the bankrupt has performed the legal act referred to in Article 49118 section 1 B.L. without the consent of the court or this action has not been approved by the court (Article 49120 section 2 point 3 B.L.).
Fifthly, the court repeals the creditors' repayment plan when the bankrupt has hidden the assets or the legal action of the bankrupt has been legally recognized as having been done to the detriment of creditors (Article 49120 section 2 point 4 B.L.).
The repeal of the repayment plan is not absolute. The court shall not repeal the plan if the failure to fulfill obligations is insignificant or the further implementation of the creditors' repayment plan is justified by equitable or humanitarian considerations.
In these cases the bankruptcy court decides at the hearing. The date of the hearing is notified to the creditors by means of an announcement (Article 49120a B.L.). The ruling may be appealed (Article 49120 section 1 B.L.).
The most important effect of repealing the repayment plan is blocking the possibility of cancellation of the debtor's obligations. As a result, one of the main goals of consumer bankruptcy will not be achieved. The liabilities remain to be settled in their original amount, without any restrictions resulting from the content of the repayment plan. Amounts already received by creditors as part of the repayment plan are subject to settlement against existing debts.
ORDER CONFIRMING THE IMPLEMENTATION OF THE REPAYMENT PLAN AND REMITTING THE LIABILITIES
After the bankrupt has fulfilled the obligations set out in the creditors' repayment plan, the court shall issue a ruling establishing the implementation of the creditors' repayment plan and the cancellation of the bankrupt's obligations arising before the date of declaration of bankruptcy and not performed as a result of the implementation of the creditors' repayment plan. The ruling may be appealed (Article 49121 section 1 B.L.).
SUMMARY
The principal and general way to terminate an obligation is its fulfillment by the debtor (pacta sunt servanta). This is the essence of civil law. However, the bankruptcy law introduces a significant
change in relation to the general principles both in relation to private law and public law obligations. Pursuant to the decision of the bankruptcy court, liabilities are canceled, irrespective of the source of their origin, which were not performed by the debtor in a manner consistent with their content. According to the wording of Article 49121 section 1 B.L. after the bankrupt has fulfilled the obligations set out in the creditors' repayment plan, the court must issue a ruling on the implementation of the creditors' repayment plan and the cancellation of the bankrupt's obligations arising before the date of the declaration of bankruptcy.
The bankruptcy court may not refuse a debt relief in the event of a repayment plan which has not been validly repealed, even if at the stage of its implementation or after its implementation it turned out that there were no premises for its determination. Reference list:
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ПОГАШЕНИЕ ДОЛГА С ПОМОЩЬЮ ПЛАНА ПОГАШЕНИЯ ЗАДОЛЖЕННОСТИ В СООТВЕТСТВИИ С ПОЛЬСКИМ ЗАКОНОДАТЕЛЬСТВОМ
Адамус Рафаль, доктор юридических наук, профессор Место работы: Опольский университет, Польша
adamus_rafal@wp.pl
Аннотация: потребительское банкротство является относительно новым институтом в Польше. Он функционирует в польской правовой системе с 2008 года. Серьезная поправка к положениям о банкротстве физического лица, внесенная законом от 30 августа 2019 года «О внесении изменений в Закон О банкротстве и некоторые другие акты» (Journal of Laws 2019 пункт 1802). Данная поправка, безусловно, окажет существенное влияние на заметное увеличение числа дел о банкротстве. Облегчение долгового бремени неплатежеспособного физического лица, не осуществляющего предпринимательскую деятельность, возможно путем списания задолженности по решению суда в специальном порядке после завершения плана погашения задолженности. Режим облегчения долгового бремени, рассматриваемый в настоящей статье, можно охарактеризовать как «классический». Другие способы облегчения бремени задолженности имеют значение для изменения общей структуры банкротства. В статье рассматриваются основания для установления плана погашения кредиторской задолженности, детализируются предпосылки для продолжительности осуществления плана погашения, правовые последствия установления плана погашения. Рассматриваются также положения о процедурах изменения плана погашения задолженности (что относится к институту известной в гражданском праве оговорки rebus sic stantibus и к изменению соглашения, заключенного в соответствии с законом о банкротстве и реструктуризации); об отмене плана погашения задолженности, не приводящей к облегчению долгового бремени. Наконец, в статье рассматривается порядок подтверждения выполнения плана погашения и погашения обязательств. Ключевые слова: банкротство, несостоятельность, потребитель, облегчение бремени задолженности, план погашения.
