Persons handling a dishonest debtor’s affairs may be liable to creditors
The Supreme Court of Poland regards protection of the creditor’s financial interests as the main purpose of punishing the debtor (and his supporters, if any) for behaviour preventing or diminishing the satisfaction of creditors. Therefore, persons handling the debtor’s affairs can be jointly and severally liable to the creditor.
Abuse of legal personality to the detriment of creditors
Dishonest debtors display great ingenuity in evading their obligations. They may also turn to advisers who, for a hefty fee, provide “sophisticated” ideas to lead creditors astray. Often such ideas involve the creation of legal entities (sometimes a whole group or “chain”) to hide components of the debtor’s business from creditors. Such actions constitute abuse of legal personality for the purpose of harming creditors. Can dishonest debtors and their supporters (including advisers) who knowingly use such methods really rest easy?
Liability for damages of a person who assists a perpetrator
The effectiveness of pursuing claims for damages for a tort (a wrongful act) often depends on whether the injured party brings an action against a sufficiently wide range of defendants who can be held jointly and severally liable for damages. This range includes those who can be found to have knowingly assisted in causing injury.
Pursuing claims for the tort of selective payment of creditors as an alternative method of securing the interests of creditors overlooked by the debtor
In its judgment of 10 February 2021 (case no. I CSKP 33/21), the Supreme Court of Poland considered a cassation appeal by a claimant seeking to prove that it was wronged as a creditor in a fraudulent transfer claim against a third party (governed by Art. 527 and following of the Civil Code). The Supreme Court raised important issues in this debatable decision from the point of view of the safety of participants in commerce, including creditors. Among other things, the court pointed out that the assessment of whether a creditor was harmed within the meaning of Art. 527 §2 is affected by whether the consideration obtained by the debtor was used to satisfy other creditors.
Identifying and responding to economic fraud
During a crisis, the risk of running a business increases, and not just for “natural” reasons. There is also a growing number of unlawful behaviours by businesses, from incurring obligations they cannot honour to evading their existing liabilities. Too many businesses treat hard times as a great opportunity to shift the risk of their operations to counterparties who aren’t as “clever.”
Damages for victims of criminal offences can be sought not only from the perpetrator
The possibility of seeking damages from a person who has knowingly benefited from a wrong done to another may offer the victim the only practical chance of obtaining even partial recompense. Often the immediate wrongdoer is insolvent, while someone else gains from the unlawful act.
Possible consequences of aiding a dishonest debtor
Liability for money laundering in the case of persons assisting in actions taken by dishonest debtors to the detriment of creditors.
A dishonest party may be required to pay a debt through criminal proceedings
The penal sanction of the duty to redress loss or provide satisfaction for injury, which may be imposed on a dishonest debtor by the criminal court, protects the interests of creditors.