PPE 5/2022
Przywileje egzekucyjne dłużnika prowadzącego działalność gospodarczą
dr hab. Aneta Łazarska
wykładowczyni Uczelni Łazarskiego, ORCID: 0000-0001-8802-8160; sędzia Sądu Okręgowego w Warszawie
Dowiedz się więcejABSTRACT
Enforcement Privileges of a Debtor who Carries on a Business Activity
The purpose of the article is to describe mechanisms that grant privileges in enforcement proceedings to a debtor who performs a business activity. Enforcement against an entrepreneur certainly constitutes an interference with a special area of liberty of debtor’s business activity. It results in numerous complications, as a debtor is deprived of the possibility to continue conducting a business activity and of his earning capacity; sometimes, it may lead to depriving a debtor of basic tools or chattel that are necessary for the operation of his enterprise. A special method of enforcement is compulsory administration or the sales of an enterprise itself. In addition to this mechanism, the Code of Civil Proceedings provides for the procedure of excluding a thing from enforcement (art. 1061 CCP), which offers an option to balance interests of both parties with regard to exempting a thing from enforcement. In addition, a court should take into account the nature of a conducted business activity. However, as practical experience indicates, this is not an optimal procedure.
A prohibition of oppressive enforcement should protect a debtor who carries on a business activity. A bailiff, in addition to objectives of effective enforcement, should take into account a specific nature of a business activity of a debtor, so that the applied method of enforcement enables a debtor to continue his business activity. A debtor should cooperate in this respect, by submitting relevant explanations and a list of property, in which he discloses a special importance of individual assets of his property for his business activity. A debtor may also apply for suspending enforcement proceedings.
The analysis of the discussed regulations indicates that in the Code of Civil Proceedings the protection of interests of a debtor who conducts a business activity should be implemented in a proportional manner and certainly with respect for the protection of a creditor.
Keywords: a debtor who carries on a business activity, exemption of things from enforcement, prohibition of oppressive enforcement, excluding tools from enforcement, excluding money from enforcement, compulsory administration, protection of creditor, enforcement privilege