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.
Dishonest debtors who take measures to unlawfully avoid paying their debts are often assisted by third parties. The debtors transfer their assets to these third parties on the basis of various types of legal title, or these parties simply conceal them.
In practice therefore, third parties often assist dishonest debtors in unlawful avoidance of payment of debts by taking over control, in reality or only for the sake of appearances, of the assets concerned. These parties are aware that this is done in connection with unlawful actions on the part of the debtor intended to harm creditors.
Frequently, these parties then take a series of measures to disguise the fact that the assets in question originate from illegal actions detrimental to creditors, or to conceal their location.
To this end, via those parties, transactions are conducted that usually at that stage are completely legal, with entities that are not aware of the background of the assets being acquired. This renders impossible or at least severely hinders identification of assets that once belonged to a dishonest debtor. Sometimes, these parties only take measures to mix, as appropriate, their assets with the assets they receive from the dishonest debtor. This is also aimed of course at thwarting creditors in satisfaction of their claims using items or property rights that de facto are owned by the debtor.
Third parties that intentionally assist dishonest debtors in this way often do so with no benefit to themselves. They do not derive any gain, at least material gain, from being a kind of trustee for a dishonest debtor for assets concealed from creditors.
Procedures of this kind can be significantly effective, for example in practice they can render protection of creditors using the traditional legal institution of actio pauliana impossible.
Can third parties who intentionally assist dishonest debtors in concealment of assets from creditors face legal liability? The answer is that yes, they can.
This kind of conduct on the part of third parties can qualify as a money laundering offence under Art. 299 of the Criminal Code. In addition, conduct of this nature is a tort under Art. 415 of the Civil Code. If it is determined that a particular third party intentionally assisted a dishonest debtor in concealment of assets from creditors, that party can face separate and personal criminal and civil liability for their own conduct regardless of whether the dishonest debtor aided by that party faces liability of that kind.
Of course it is not easy in practice to prove that a particular third party intentionally helped a dishonest debtor to conceal assets from creditors. However, if that is proven – which is possible especially if there is a close relationship between the debtor and the third party, or if actions in law are performed that are fictitious or artificial, intended to conceal assets, the injured creditors can take measures to protect their rights towards parties that are found to be involved in money laundering of funds derived from acts detrimental to those creditors.
Adam Studziński, adwokat, Difficult Receivables Recovery practice, Wardyński & Partners
