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зарубежный опыт
Ян Лик
д-р юрид. наук, доцент, Краковский университет экономики, Польша, Краков
e-mail: jl@libertus.pl
УДК 346.2(438) DOI 10.12737/5640
Получено 14.03.2014 Одобрено 24.05.2014 Опубликовано 17.09.2014
Проблема общего совладения в гражданском праве Польши применительно к товариществам
Аннотация
Проблема общего совладения применительно к товариществам составляет одну из самых сложных и спорных проблем в польском гражданском праве. С одной стороны есть много причин того, почему определенное гражданским правом товарищество должно иметь правовой статус, возможность выступать стороной в гражданских делах, обладать возможностью банкротства и статусом предпринимателя. С другой стороны, система общего совладения устраняет товарищество от получения такого статуса. Признание правового статуса товарищества означало бы, что оно является носителем прав и обязанностей. Это, однако, было бы воспринято как вызов самой системой общего совладения, так как в данном случае участники товарищества, как совладельцы, становились бы теми же самыми носителями прав и обязанностей. Однако невозможно, чтобы товарищество и его участники являлись бы носителями одних и тех же прав собственности, особенно права на собственность товарищества. Даже если бы законодательный орган решил, что гражданское право по отношению к товариществу является не просто обязательством, но также и структурной единицей, и что по отношению к нему должен применяться принцип право- и дееспособности, то от системы общего совладения, рассматриваемой с точки зрения гражданского права товарищества, нужно было бы отказаться. Многочисленные положения общественного права, в особенности налогового, предлагают такое решение. Они уже рассматривают товарищество в гражданском праве как юридическое лицо. Соответствующий акт предоставления право- и дееспособности привел бы статус товарищества в соответствие во всех областях закона. Кроме того, за рубежом есть юридические прецеденты, которые говорят в пользу вышеприведенного решения. Во Франции и Шотландии товарищество в гражданском праве является юридическим лицом. В Германии эквивалентному партнерству предоставили правовой статус, и это стало возможно без необходимости выхода из системы общего совладения (Gesamthand). В отличие от польского общего совладения, немецкий Gesamthand является не типом совместного владения, а скорее типом правового сообщества личной, а не имущественной природы. В странах, где товариществу в гражданском праве не предоставили правовой статус, возникают проблемы, подобные тем, которые характерны для польского законодательства. Постулат предоставления правового статуса товариществу в гражданском праве оправдан. Однако это должно быть ограничено теми товариществами, областью деятельности которых является деловая активность. Обычные внешние партнерства не требуют правового статуса, поэтому они все еще могут сохранить систему общего совладения.
Ключевые слова:
общее совладение, ассоциация общей долевой собственности, Gesamthand, общая собственность, собственность товарищества, юридическое сообщество, право- и дееспособность, возможность быть стороной в гражданских делах, возможность банкротства, юридическое лицо, носитель прав и обязанностей, экономический потенциал, статус предпринимателя.
Jan Lic
Doctor of Laws, Assistant Professor, Cracow University of Economics, Poland, Cracow
e-mail: jl@libertus.pl
The Problem of Joint Co-ownership in a Polish Civil Law Partnership
Abstract
The problem of joint co-ownership in a Polish civil law partnership constitutes one of the most complex and contentious problems in Polish civil law. On one hand, there are many reasons why a civil law partnership should have legal capacity, capacity to be a party in civil cases, bankruptcy capacity and a status of an entrepreneur. On the other hand, the system of joint co-ownership precludes the partnership from being accorded that status. Recognising the legal capacity of a partnership would mean that it is a carrier of rights and obligations. This, however, would be defied by the system of joint co-ownership, since in that case it would be the partners, as co-owners, that would be the carriers of rights and obligations.
It is not possible that a partnership and its partners are both carriers of the same property rights; particularly, the right to the property of partnership. Even if the legislature de-cided that a civil law partnership is not just a civil law obligation, but also an organisa-tional unit and that the legal capacity should be accorded to it, then the system of joint co-ownership in a civil law partnership would also have to be waived. Numerous provi-sions of public law, including in particular tax law, suggest such a solution. They already treat a civil law partnership as a legal entity. Accordance of" as the act of granting civil law capacity would unify its status in all areas of law. Furthermore, there are cases from foreign law that speak for the above-presented solution. In France and Scotland a civil law partnership has legal personality. In Germany the equivalent partnership was granted legal capacity. In the latter country, this was possible without the need to resign from the system of community of joint co-ownership (Gesamthand). Contrary to the Polish joint co-ownership, the German Gesamthand is not a type of co-ownership, but a type of legal community of personal rather than property nature. In countries in which a civil law partnership has not been granted legal capacity, problems similar to those that occur in Polish law arise. The postulate of granting legal capacity to a civil law partnership is justified. However, it should be limited to partnerships that operate business activity. Ordinary external partnerships do not require legal capacity; therefore they can still retain the system of joint co-ownership.
Keywords:
joint co-ownership, community of joint ownership, Gesamthand, joint property, property of a partnership, legal community, legal capacity, capacity to be a party in civil cases, bankruptcy capacity, legal personality, carrier of rights and obligations, economic capacity, status of an entrepreneur.
There are two types of co-ownership in Polish ownership relations: co-ownership in fractional parts and joint co-ownership . The former can arise in any legal relationship in which there are joint and indivisible rights to the same movable or immovable item . It is therefore an intrinsic legal relationship, in which shares of co-ownership are defined in fractions and a co-owner has freedom to dispose of them freely. Joint co-ownership however, has completely different characteristics . First of all, it does not exist autonomously, but always within a relationship of another type, under Polish law — in a marriage and a civil law partnership . Second, shares in this co-ownership are not defined by a fraction or any other similar way Third, neither a spouse nor a partner of a civil law partnership can freely dispose of those shares, which means that he or she cannot dispose of them without the consent of the spouse or of all partners [1].
In the past, existence of joint co-ownership was also adopted in a general partnership and a limited partnership . However, in the year 2000, a new Code of Commercial Partnerships and Companies was introduced in Poland (Act of 15. 09 .2000 — Code of Commercial Partnerships and Companies (Journal of Laws No . 94 item 1037 as amended . ), hereinafter referred to as the CCPC), in which a general partnership, in addition to other commercial partnerships (Currently there are 4 commercial partnerships: those that have existed before — a general partnership and a limited partnership, and new ones — a professional partnership and a limited joint-stock partnership), were accorded legal capacity pursuant to 8 § 1 the CCPC . Legal capacity means that those partnerships can be the subjects of rights and obligations . However, those partnerships do not have legal personality Legal personality must be explicitly granted by a law and then the members of a legal entity are not liable for its obligations with their personal property In commercial partnerships, due to lack of legal personality, their partners have subsidiary liability for its obligations with their personal property. Since they are carriers of rights, e . g . property right, partners cannot, at the same time, be carriers of rights on the basis of joint co-ownership . Therefore, it is the partnership that is the owner of its property and partners are not its co-owners .
A civil law partnership is a type of private company, however, it is not a commercial partnership since it is regulated by the Civil Code, (Act of 23. 04.1964 — Civil Code (Journal of Laws No 16, item 93 as amended ), hereinafter referred to as CC) among other agreements This type of a partnership can pursue any economic objective (Art . 860 of the CC) . It is usually considered to be an external partnership, in which joint property arises, while actions taken by its representatives produce legal
effects affecting all partners Acceptability of an internal civil law partnership, in which a partner incurring obligations does it on his own behalf; in which joint property usually does not arise and where its existence can be even concealed from third parties, is arguable . External partnerships are usually divided into ordinary partnerships that pursue a non-profit economic objective and partnerships that operate business activity, pursuing economic and gainful objectives at the same time Economic activity, which is not a gainful activity, includes, e g construction of garages on a housing estate by its inhabitants In Poland, the latter constitutes a very popular form of business activity According to the data presented by the Central Statistical Office, in the year 2012, there were 279,732 civil law partnerships operating business activity in comparison to as many as 348,952 commercial partnerships, with only 33,388 general partnerships [2].
The fact that the system of joint co-ownership is applied in a civil law partnership has been proved by the content of Art . 863 of the CC . In § 1, the Civil Code stipulates that a partner can neither dispose of their share in the partners' joint property nor of the share in individual assets Pursuant to § 2, during the period of the partnership operation, a partner shall not demand partition of the joint property of partners and in accordance with § 3 in the period of the partnership operation A partner's creditor may neither demand satisfaction of claims from the partner's share in the partners' joint property nor from the share in individual assets of that property. Adoption of joint co-ownership in this type of partnership precludes both its legal capacity and legal personality Therefore this partnership is not a carrier of property rights; in particular, owners (joint co-owners) of property on the basis of which it operates are partners — not the partnership
The joint co-ownership construct comes from German law, where it exists under the name Gesamthand. During the years 1890—1895, a second BGB bill was drawn up (German Civil Code from 18. 08.1896 (Bürgerliches Getz-buch)), in which, prompted by the criticism of O . v. Gierke [3], the principle of community of joint co-ownership (das Prinzip der Gesamthand) was introduced to the civil law partnerships regulation It replaced the system of co-ownership in fractional parts, which was based on the Roman partnership . Since then, for a several dozen years, many disputes have arisen and still have not been solved, as to whether the Gesamthand principle should be understood as a sheer property principle; a type of a separated special fund (Sondervermogen) or more as a community of partners (Gemeinschaft) . In Germany this issue has been regarded as one of the most difficult and most disputable problems of contemporary civil law [4].
After the BGB's entry into force, there was a prevailing view in Germany that Gesamthand is only a type of a special fund (Sondervermogen), although even
0 . v. Gierke himself represented the opposite stance . In 1972, a groundbreaking article by W. Flume "Gesselschaft und Gesamthand" [5] was published . Referring to the 19th century theory of personal unity O. von Gierke, W. Flume laid foundations for a modern and personalistic theory of a group . P. Ulmer expanded this theory to a wide and practical application model [6]. Soon, similar views were shared by K. Schmidt [7] and J. Wertenbruch [8]. At the end of the 20th century, a personalistic concept of Gesamthand gained wide recognition A civil law partnership ceased to be considered as an obligation-based relationship between partners who act based on a special fund separated from their personal property, (Sondervermogen) and it was recognised as a group pursuing its joint goal on the basis of the group's joint property. A group of partners started to be regarded as a type of a separate civil law entity It was reflected in legal regulations that treated a partnership as a legal entity (As e . g . in § 191 section 2 item
1 of the German Transformations Act of 28. 10 .1994 (Umwandlungsgesetz) or § 11 section 2 item 1 of the German Insolvency Act of 28.10. 1994 (Insolvenzordnung)) and it opened the door to eventual recognition of legal capacity of an external civil law partnership in a historic verdict of the Federal Tribunal of 29 . 01. 2001 (II ZR 331/00, BGHZ 146, p . 341 et seq . ; NJW 2001, p . 1056). However, by passing this decision, the Federal Tribunal exceeded expectations of the doctrine in two ways First of all, it decided that a partnership itself has legal capacity and did not attempt to boil it down to semi-subject — an empowered group of partners . As a result it rejected the group theory. Secondly, it recognised legal capacity of every external partnership, not only of those that operate business activity
The Polish construct of joint co-ownership, apart from numerous similarities to the German concept of a community of joint ownership, differs significantly In Poland joint co-ownership and co-ownership in fractional parts form two types of co-ownership . Polish law does not regulate the concept of legal communities at all On the contrary, in Germany it is a community that is a fundamental concept, not the concept of co-ownership In accordance with the BGB there are two types of legal communities: community in fractional parts and community of joint co-ownership . The former are regulated by provisions on community in fractional parts (§ 741 et seq the BGB) and additionally by provisions on co-ownership (§ 1008 at seq . BGB) (What is also crucial is that there are 18 paragraphs on a community
in fractional parts, whereas only 4 on co-ownership, which in fact, bear little significance); the latter — only by specific regulations referring to individual types of communities . Therefore in German law, in accordance with the prevailing view, only one type of co-ownership is distinguished — co-ownership in fractional parts, on the basis of which a community under the same name exists . Nevertheless, a community of joint co-ownership in marriage, in civil law partnership and in open inheritance is not regarded as co-ownership, but as a separate proprietary construct — Gesamthand. The former is of purely material nature, whereas the latter has more personal nature
The result of such a difference is that in Germany it was possible to accord legal capacity to a civil law partnership only by way of interpretation of provisions on a partnership, without interfering with the content of BGB . If Gesamthand is not co-ownership, but a type of legal community of personal rather than proprietary nature, it could be understood as a carrier of rights and obligations . In particular, ownership of partnership property is not, in such a case, a clear contradiction with ownership (co-ownership) of partners . In Poland, such a path to recognition of legal capacity of a partnership is not possible . If partners are co-owners of property, then the partnership cannot be the owner at the same time . Recognition of a partnership as a subject of rights and obligations would need to take place by way of legislation . However, granting legal capacity to a partnership would not be sufficient The system ofjoint co-ownership in a partnership would have to be waived at the same time . Otherwise, we would have a case of a double carrier of rights and obligations — a partnership and partners at the same time . Eventually, it would not be clear to whom the partnership property belongs . Accordance of legal capacity in Poland is much more difficult than in Germany
The problem of legal capacity of a civil law partnership finds varying solutions in different countries In Russia, pursuant to Art. 1041 section 1 of the CCRF (Civil Code of the Russian Federation from the years 1994—2006 (Гражданский кодекс Российской Федерации, ГК РФ)) a simple partnership (equivalent of a civil law partnership) does not constitute a legal entity. Pursuant to Art . 1043 section 1 of the CCRF, property contributed to a partnership, as well as produced throughout the period of its operation is partners' joint co-ownership in fractional parts (их общей долевой собственностью), unless legal provisions or agreement between the parties or nature of the obligation stipulate otherwise Article 244 of the CCRF stipulates that it can be no-shares co-ownership — equivalent of joint co-ownership . A similar solution has been adopted in Ukraine (Art . 1130 and 1134 of
the CCU (Civil Code of Ukraine of 2003 (Цивыьний кодекс Украти))). In France, a civil law partnership has had legal personality like commercial partnerships since 1891 [9]. This precludes the construct of co-ownership in this partnership . In England and Wales, in accordance with the Partnership Act from 1890, a partnership (equivalent of a civil law partnership and general partnership) has neither legal personality nor legal capacity, while the same Act stipulates also that a Scottish partnership is a legal entity. The diversity of the legal status of partnerships in Great Britain is considered negative . For this reason, advanced legislative works were undertaken to grant legal personality to all partnerships in Great Britain [10].
The American Revised Uniform Partnership Act of 1997 recognises, in Art . 201, the legal capacity of a partnership and ownership of its property The law was adopted by the majority of American states [11]. In Italy, a partnership does not have legal capacity. The partnership's property is the common property of partners . Nevertheless, there are numerous provisions provided in the doctrine, which stipulate legal capacity of a partnership, and such a partnership is referred to as an entity without corporate status (soggettivita imperfecta) [12]. In Switzerland, like Germany, the Gesamthand principle is applied . However, a simple partnership (equivalent of a civil law partnership) does not have legal capacity A special role is taken by the so-called "basic merchant partnership" . Part of the doctrine believes that such a partnership has — just like a general partnership — legal capacity [13]. A civil law partnership in Austria does not have legal capacity or capacity to be a party in civil cases It is considered a multilateral consensual contract, in which — as in the case of Russia and Ukraine — the system of property co-ownership in fractional parts is applied [14].
In Poland, the first regulation of a civil law partnership included in the Code of Obligations (Act of the President of the Republic of Poland from 27.10.1933 — Code of Obligations (Journal of Laws No 82, item 598 as amended ), hereinafter referred to as the CO) neither established its legal capacity nor determined its property system . Article 548 of the CO stipulated that things and rights that are the partners' contributions constitute partnership property By way of interpretation, it was assumed to be joint co-ownership . Statutorily, this construct was introduced to the Civil Code only in 1965 . Over many years the fact that a civil law partnership is only an obligation-based relationship — not an organisational unit and a civil law entity — did not arouse any controversy The first larger breakthrough took place in 1989 when the Business Activity Act (Business Activity Act of 23 .12. 1988 (Journal of Laws No 41, item 324 as amended)) entered into a force called "a small constitu-
tion for Polish economy". Art . 2 section 2 of this Act recognised a civil law partnership as an entrepreneur, which has been interpreted as accordance of economic capacity. The partnership also gained capacity to be a party in civil cases as well as bankruptcy capacity. A heated dispute broke out in the doctrine and jurisdiction as to whether a civil law partnership, without having legal capacity, can be considered a business entity and whether granting it the capacity to be a party in civil cases as well as bankruptcy capacity is justified [15]. Eventually, the opposite stance prevailed and in 1999, under Art . 2 section 3 of the Business Activity Act, (Business Activity Act of 19. 11.1999 (Journal of Laws No 101, item 1178 as amended)) partners of a civil law partnership — not the partnership as such — were recognised as entrepreneurs After further amendments to the law, the said partnership also lost both capacity to be a party in civil cases and the bankruptcy capacity. Such a legal situation was sustained in the currently applicable Freedom of Business Activity Act (Freedom of Business Activity Act of 2. 07.2004 (i . e . Journal of Laws from 2013 item 672 as amended)Despite the lack of legal capacity and a status of an entrepreneur, a civil law partnership is considered an entity of national economy as defined in provisions on public statistics (it has its own National Official Business Register Number (REGON)). It has a Tax Identification Number (NIP) other than those of its partners; it is considered a VAT payer, a local tax payer, and it is also considered an employer, which is confirmed by Art . 886 § 2 of the Code of Civil Procedure (Act of 17 . 11. 1964 — the Code of Civil Procedure (Journal of Laws No 43, item 296 as amended)) . It is treated as a payer of social insurance contributions
Recently, the Supreme Administrative Court has decided that a civil law partnership is an organisational unit, not an obligation, and that it has a status of an agricultural producer (Resolution of 7 judges of the Supreme Administrative Court of 30. 5 . 2012, II GPS 2/12, ONSAiWSA 2012, No . 4, item 63) . A partnership also has a status of legal entity in state aid law, sea transport law and energy law As a result, a civil law partnership has a different status in private law and in public law, which, in the long run, is hard to retain
In those areas of law in which a civil law partnership does not obtain the status of a legal entity, such as exchange and cheque law, bankruptcy law, foreign currency law or road transport law, it causes significant difficulties in the application of law, which is reflected in numerous litigations . In many areas of law, the status of a civil law partnership is unclear and subject to contradictory interpretations This also leads to numerous
legal disputes The law areas that should be noted here include intellectual property law, industrial property law (regarding trademarks), and part of tax law, competition and consumer protection law as well as customs law
Countless problems related to the lack of legal capacity led to the situation that the doctrine postulates the statutory accordance of legal capacity to a civil law partnership that operates business activity and as a consequence, the capacity to be a party in civil cases, bankruptcy capacity and a status of an entrepreneur (economic capacity) [16]. It is assumed that a necessary prerequisite is a waiver of a joint co-ownership system in the partnership [17]. This postulate is related to the need for breaking the strong attachment of part of the doctrine and jurisdiction to this legal construct In Germany, such necessity did not take place Therefore, despite equipping a civil law partnership, as well as a general partnership and a limited partnership with legal capacity, it is assumed that in those partnerships the community of joint co-ownership still applies (Gesamthand). In Poland, there is no tendency to propose granting of legal capacity to ordinary external partnerships since a large majority of problems, which arise from its lack of civil law and economic capacity (status of an entrepreneur), are related to the activity of civil law
partnerships that operate business activity At the same time, looser structure based on joint co-ownership can be more suitable for ordinary partnerships, whose activity, aimed at achieving an economic goal, is based on cooperation, and not on creation of legal capacity construct [18].
As a result of proposed changes, ordinary external partnerships and internal partnerships would be in accordance with the current principles based on the joint co-ownership system . External partnerships operating business activity would gain legal capacity, capacity to be a party in civil cases, bankruptcy capacity and a status of an entrepreneur, whereas their property would be, as in a general partnership, the property of a partnership — not of its partners . Thus, the construct of a civil law partnership would be closer to that of a general partnership, which is a serious accusation brought up by opponents of this concept [19]. However, it should be noted, that those partnerships differ in many crucial details, such as principles of operation and partnership representation, as well as principles of liability for incurred obligations . Furthermore, a civil law partnership would still remain a very simple and comprehensible legal regulation, currently having only 16 articles against 64 articles that regulate a general partnership .
References
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2. Concise Statistical Yearbook for the year 2013. Available at: http://www.stat.gov.pl/cps/rde/xbcr/gus/RS_maly_rocznik_ statystyczny_2013.pdf
3. Gierke v. O. Die soziale Aufgabe des Privatrechts, Reprint Frankfurt 1948, p. 32.
4. Schmidt K. Gesellschaftsrecht, Köln-Berlin-Bonn-München 2002, p. 196.
5. Flume W. Gesellschaft und Gesamthand, ZHR 1972, No. 136, p. 177 et seq.
6. Ulmer P. Gesellschaft bürgerlichen Rechts und Partnerschaftsgesellschaft, Systematischer Kommentar, München 2004, p. 169 et seq., referring to the views of W. Flume.
7. Schmidt K. Gesellschaftsrecht, p. 196 et seq.
8. Wertenbruch J. Die Haftung von Gesellschaften und Gesellschaftsanteilen in der Zwangvollstreckung, Köln 2000, p. 211 et seq.
9. Germain M. Traite de droit commercial, vol. 1, part 2, Les société commerciales, Paris 2002, p. 102.
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11. Cahn A., Donald D. C. Comparative Company Law: Text and Cases on the Laws Governing Corporations in Germany, the UK and the USA, Cambridge 2010, p. 41.
12. Alessi R., Russo D., Quagliotti L. Manuale breve. Diritto commerciale, Milan 2008, p. 736.
13. Vonzun R. Rechtsnatur und Haftung der Personengesellschaften, Basel—Genf—München 2000, p. 231.
14. Krejci H., Gesellschaftsrecht I. Allgemeiner Teil und Personengesellschaften, Wien 2005, p. 29 and 220.
15. Cf. Lic J., Spôika cywilna, p. 578 et seq.
16. Podles M. Charakter prawny spôiki cywilnej na tle prawa polskiego i niemieckiego [Legal nature of a civil law partnership in Polish and German law], Warsaw 2008, p. 247 et seq; Lic J., Spôika cywilna, p. 827 et seq.
17. Podles M. Charakter prawny, p. 411; Lic J., Spôika cywilna, p. 832.
18. Lic J. Spôika cywilna, p. 828-830.
19. Herbet A. Spôika cywilna. Konstrukcja prawna [Civil law partnership. Legal construct], Warsaw 2008, p. 308.
