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Prof. dr hab. Wojciech Popiołek
ORCID: 0000-0002-4531-6055

Professor of law (Polish civil law, company law and private international law), employed as professor at the University of Silesia in Katowice. Until 1 October 2019 held the position of the Head of Chair of Civil Law and Private International Law at the Faculty of Law and Administration of the University of Silesia in Katowice. Member of the Association Henri Capitant, European Law Society, Committees of Legal Sciences and Economic Sciences of the Katowice Branch of the Polish Academy of Sciences and the Commission of Law of the Polish Academy of Learning in the Katowice. Qualified attorney-at-law since 1998. Practice at the law firm of ADP Popiołek, Adwokaci i Radcowie Prawni sp.p. with its registered office in Katowice. Author of over 150 academic publications.

DOI: 10.33226/0137-5490.2021.10.8
JEL: K22, K23

In the commented judgment, the Provincial Administrative Court considered the differences between the voluntary and compulsory redemption of shares in the share capital of a limited liability company. The Court held that the compulsory redemption of shares was of an ostensible nature in the meaning of Article 83 of the Civil Code in connection with Article 199a § 1 and 2 of the Tax Code, because — according to the Court — the compulsory redemption masked the real transaction, which was the voluntary redemption of shares. This finding is ill-founded, because the actions performed by the parties in the case at hand do not satisfy the prerequisites for the ostensibility required by Article 83, and the allegedly "concealed" voluntary redemption was not performed at all (inter alia due to the lack of an agreement to sell the redeemed shares to the company, which would have been performed in the required form). It is also incorrect to classify the performed redemption as voluntary redemption, inter alia, because there was no "consent" of the shareholder to the redemption in the form specified in Article 199 § 1 of the Commercial Companies Code. The compulsory redemption provided for in the articles of association was carried out in accordance with the actual intentions of the company.

Keywords: redemption of shares; ostensible compulsory redemption; voluntary redemption
DOI: 10.33226/0137-5490.2020.5.1
JEL: K12

As of 1st January 2021 the rules relating to the joint-stock companies in the Code of Commercial Companies will
importantly change. The paper stock certificates of all non-publicly traded companies will lose ex lege their legal
validity. They will be replaced by the electronic stock certificates. i.e. by electronic (ICT) entries in the registries
of shareholders. Such electronic registries will be operated — on behalf of the companies — by specialized entities
(authorized under the Act of 25.07.2005 on the marketing of financial instruments to keep and run the securities
accounts). The entry in these registries — which might be considered as a carrier of the dematerialized shares — will
constitute the basis for the legal entitlement, since only a person entered into the register in question will be treated
as a shareholder (entitled under a limited right in rem). This fundamental change in the legal nature of the share,
understood as a security, is coupled with a number of detailed amendments in the Code of Commercial
Companies related to the existence of the paper stock certificates, including those considering the disposition of
the shares. Article 3289 § 1 of the Code creates a rule that acquisition of a share (or making it subject to a limited
right in rem) occurs as a result and at the moment of making the entry into the register of the shareholders. It
follows that the entry to the register has a constitutive character (the disposition of a share, or the transaction
affecting the share, takes place at the time of entry into registry). This rule poses number of difficulties that need
to be analysed. Some of these difficulties (inter alia the nature of the legal act constituting the basis for the
disposition, the effects of the entry into register, the consequences of the entry not in accordance with the
actual legal state of affairs) are addressed in the present paper.

Keywords: electronic stock certificate; dematerialization of the shares; register of the shareholders; constitutive entry; disposing of the shares