Umorzenie udziałów w spółce z ograniczoną odpowiedzialnością

Abstract

The "pure profit" referred to in Article 193 § 2 of the Commercial Code is to be regarded as both, the current profit, as verified for the company's last financial year, and funds in the form of reserve funds created from part of the annual profits.

Only the shareholders can decide on the redemption of shares in a fully responsible manner, as it is they who will be primarily affected by its effects.

In a situation where the articles of association define, in a precise and unambiguous manner, the shares to be redeemed and the order in which they are to be redeemed, the premise of the shareholder's request appears superfluous, especially from the point of view of protecting the shareholder's rights, in accordance with the paremma volenti non fit iniuria. Here, too, an ex ante consent to redemption already given at the time of the conclusion of the articles of association applies. However, in the absence of an express basis for that in the contract, the relevant consent of the shareholder cannot be presumed – this would be contrary to basic principles of contractual fairness.

The mandatory nature of the provisions of Articles 280 et seq. of the Commercial Code does not prejudge the fact that this is to be the only permissible means of effecting [the exclusion of a partner from the company]. In a situation where the company has abused the power granted to it to the detriment of the shareholder, the protection of the shareholder's interests could be pursued by an action for the revocation of the resolution ordering redemption or by raising a plea of abuse of right (Article 5 of the Civil Code).

These are undoubtedly serious substantive reasons for approving the position allowing the sanctioned cancellation of the participation. When introducing this institution in the articles of association, it should be advocated that the reasons justifying its application be listed as precisely and comprehensively as possible.

Redemption without payment of an equivalent for the redeemed share is only possible if the company's articles of association so provide or the shareholder whose shares are being redeemed agrees.

The mere nominal value of a share, detached from the amount of the total share capital and the value of the company's assets, is not a reliable determinant [of determining the value of the share to be redeemed], nor is the fraction expressing a co-owner's share, without referencing it to the value of the thing constituting the object of co-ownership. Nor can the nominal value of the share be assumed to correspond to the actual value of the shareholder's contribution to the company, when it may be in excess of the value of the contribution declared by the shareholder in the articles of association.

The structural assumptions on which the company in organisation is based allow the so-called sustainability principle to be formulated in relation to it. As its primary purpose is to prepare the organisational substrate (election of the company's bodies) and the property and capital substrate (contribution to the share capital) for the company's activities, any acts contrary to it appear to be impermissible.

The result, which is usually served by the redemption of shares, is achieved in the case of a non-registered company by a unanimous amendment to the articles of association.

Redemption of shares is also not permitted in a limited liability company in liquidation.