Czy austriackie prawo dotyczące niewypłacalności może stanowić wzór dla polskiego ustawodawcy?

Abstract

The Austrian legislator succeeded in implementing the ideas behind the German insolvency law in a much simplified manner. Mechanisms have been put in place to make it much easier to restructure a company, without having to create a massive and costly infrastructure, as is the case under German law. Austrian insolvency law was most closely related to Polish insolvency law from the very beginning. It was - due to the personal experience of Polish legislators - a natural starting point for the solutions adopted in our system. Hence, further emulation and improvement of the various institutions introduced into it would be the most natural direction for the development of Polish law. Following the Austrian example, it would be advisable to adopt its solutions concerning the continuation of the company (with the principle of maintaining its operations), mechanisms protecting against obstruction at the creditors' meeting concerning the conclusion of an arrangement (not taking into account the capital of creditors absent at the meeting when counting the necessary majorities), relaxing the prerequisites for declaring bankruptcy in the case of poverty of the debtor's assets, countering bankruptcy petitions filed by creditors in order to obtain a privileged position (a phenomenon in Poland, as it seems, not at all marginal). It would also be advisable, following the Austrian model, to abolish prerogatives in the settlement of certain categories of claims. Instead of expanding institutions which reinforce the creditors’ autonomy, as in German law, it would be much more beneficial to introduce specialised institutions enhancing creditors’ representation into the Polish system, reminiscent of Austrian creditor protection associations. Austrian personal insolvency proceedings are also structured more rationally than German ones. There is no strict distinction between consumer and non-consumer proceedings (although some simplifications are provided for the latter), which will prevent numerous problems arising under the German Insolvenzordnung.

It should be assumed that the debt relief procedure itself suffers from similar faults as the German one. Above all, the trustee's small remuneration, as one might assume, causes difficulties in finding a suitable people for this function. Also, the requirement to obtain a certificate of attempted out-of-court settlement with creditors prior to the filing of a bankruptcy petition by a sole proprietor is rather to be viewed critically: one should not expect debtor counselling centres to be particularly effective in view of the increasing number of such proceedings.

It would seem that when it comes to the debt relief procedure itself, it would be appropriate to look to simpler US models, although these may raise some constitutional questions. Preliminary restructuring proceedings, as envisaged in the Company Restructuring Act, are ineffective and therefore do not pass the test. The Polish legislator, in adapting Polish insolvency law to modern requirements, should once again draw on the Austrian experience.

This would be a much safer solution, allowing the preservation - in essence - of the Polish bankruptcy and reorganisation law, which in its original version was characterised by a high legislative level and a fully thought-out design.