Abstract
<p>For many years there has been a dispute in the field of commercial law concerning the nature of the ruling issued as part of an action for annulment of a resolution of the general meeting under Article 425 of the Code of Commercial Companies (hereinafter: CCC). The multitude of both studies of the representatives of the doctrine and opinions expressed in the court decisions, allows this dispute to be included in two opposing theses, which, together with the arguments for their support, the authors presented in this article. The supporters of the declarative character of the judgement indicate the necessity to carry out a linguistic, systemic and historical interpretation of the norm, as well as to refer to Article 58 of the Civil Code and adopt the indicated model of absolute nullity. Part of the doctrine also indicates that the standard of Article 425 CCC is a special regulation in relation to Article 189 of the Code of Civil Procedure. On the side of the thesis about the constitutive ruling, it is indicated that Article 425 CCC is a special regulation in relation to Article 58 CCC, and therefore it is not of absolute nullity nature. Moreover, arguments are also raised about the concurrence with the sanction contained in Article 422 CCC and about the necessity to secure legal turnover thanks to a constitutive ruling. The article also presents the evolution of the jurisprudence line towards the adoption of a constitutive position and its domination in the jurisprudence of the Polish Supreme Court based on the security of legal transactions. The authors of this article, through the analysis of the Polish jurisprudence as well as the views of the doctrine contained in the comments, scientific articles and monographs, have set themselves the goal of collecting, summarizing and organizing the most popular positions and their arguments.</p>
Highlights
S For many years, the science of commercial law has witnessed a dispute about the nature of a ruling issued in the action for declaration of invalidity of a resolutionC of the general meeting under Article 425 of the Code of Commercial Companies.1Considering plentitude of both studies published by the doctrine’s representatives and opinions expressed in judicial rulings, this dispute could be approached from the perspective of two opposite theses
For many years there has been a dispute in the field of commercial law concerning the nature of the ruling issued as part of an action for annulment of a resolution of the general meeting under Article 425 of the Code of Commercial Companies
Part of the doctrine indicates that the standard of Article 425 CCC is a special regulation in relation to Article 189 of the Code of Civil Procedure
Summary
S For many years, the science of commercial law has witnessed a dispute about the nature of a ruling issued in the action for declaration of invalidity of a resolutionC of the general meeting under Article 425 of the Code of Commercial Companies.1Considering plentitude of both studies published by the doctrine’s representatives and opinions expressed in judicial rulings, this dispute could be approached from the perspective of two opposite theses. The first opinion in favor of a declaratory nature of a ruling declaring invalidity of a resolution of the general meeting is held by the co-creator of the provisions of the Code of Commercial Companies – S.
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