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波兰
Poland – Liability of company directors and Business judgement rule
11 9 月 2022
- 公司法
A member of the management board or the supervisory board of a Polish LLC or a joint-stock company is liable to the company for damage caused by an act or omission contrary to the law or the articles of association, unless they are not at fault. In the performance of their duties, they are obliged to take the care due to the professional nature of their activities. In other words, the standard of care is high and they cannot release themselves from the liability indicating that they had no sufficient knowledge or experience.
The burden of proof of the damage and the lack of due dilligence of the board member lies with the company. A board member is liable if their conduct is culpable. However, the company does not have to prove this. It is the board member who must demonstrate that the damage caused by their act or omission was not culpable.
When running a business, board members naturally often move within the boundaries of a certain risk and make various business decisions, the consequences of which are often unforeseeable at the time they are made. They can result in both substantial gains and substantial losses for the company. However, with a high standard of due diligence, it is more difficult to demonstrate a lack of culpability.
A recent amendment of the Polish Code of Commercial Companies and Partnerships which enters into force on 13 October 2022 has articulated the so called „business judgement rule” which has already appeared to a limited extent in case law.
This rule assumes that a member of the management board and supervisory board may act within the limits of reasonable business risk. They are not in breach of their duty of professional care as long as they act in loyalty to the company.
The new law indicates that the assessment of the board member may be made on the basis of information, analyses and opinions available to them when making decisions. The new law may contribute to the collection of documentation in defence of the position (so-called defence file). The board members may protect themselves against the liability towards the company by demonstrating that their actions or omissions were based on expert’s opinions and at the time when they were undertaken they did not exceed the limits of the reasonable business jugdement.
很多投资者独自或是与他人合伙创办公司，而对于公司的管理他们倾向于交给更专业且更有经验的人士来负责。
有限责任公司会是第一首选，因为比起股份有限公司，它的运营方式更加灵活且运营成本相对较低。但是很快，成立简易股份有限公司也将成为可能。有关它的文章您可以在我们的博客中找到。
现在，我们还是回到正题。对于有限责任公司来说，董事会成员的竞业禁止义务非常重要。在这篇文章中，我会详细讨论这个问题。
公司法中的竞业禁止义务是如何规定的？
依据波兰的法律，有限责任公司的董事会成员有竞业禁止的法定义务。例如，不得在同行业竞争对手处任职，也不得自营或者为他人经营与所任职公司同类的业务。但是，在无权任命对手公司董事会成员的前提下，他们可以拥有对手公司（有限责任公司或是股份有限公司）不超过10%的股份。
竞业禁止义务自董事会成员任职起产生，并在任期结束后自动消灭。但对于公司来说，它可以随时解除董事会成员的竞业禁止义务。
依据法律规定，董事会成员由股东大会通过决议任命。因此，有关竞业禁止义务的解除也由股东大会通过决议做出。
然而，公司章程可以修改上述规定。例如，董事会成员可以由任意一名股东直接任命。虽然不常见，但也存在第三人专门负责董事会成员的任命和开除的情况。
董事会成员违反竞业禁止义务会带来哪些后果？
一旦违反竞业禁止义务，董事会成员不会自动失去他的职位。然而，他可以通过正常程序，也就是通过股东大会被开除，不论他之前是以何种形式任命的。也就是说，股东大会有权开除不忠实的董事会成员，即便任命和开除董事会成员的权利属于股东。当然，需要强调的是，有关开除董事会成员的决议需要得到多数票的支持才能通过。换句话说，即便中小股东确认某董事会成员违反了竞业禁止义务，他可能也会因为缺少足够的票数支持而使得该董事会成员无法被开除。因此，保护中小股东的利益就成为了在公司章程以及股东协议中起草相应条款的又一理由。
应该指出，董事会成员因违反竞业禁止义务而给公司造成损失的，应当承担赔偿责任。然而，在实践中，公司可能会在举证损失（实际损失或可得利益）方面遇到困难。只有在事实相对清楚的情况下，维权才会变得容易。但对于绝大多数情况来说，整个诉讼过程都是耗时且繁琐的。
如何保护公司？
即便波兰法律规定了董事会成员的竞业禁止义务，投资者和公司还是有必要与他们签订竞业禁止合同，并将竞业禁止条款写入公司章程。
竞业禁止合同中应包含被认作是竞业行为的详细描述以及它的地域适用范围。跟这个义务相关的时间范围也很重要。可以在合同中这样写明，董事会成员不仅在整个任职期间，而且在卸任后的两年内都将受到这个义务的制约。最好可以在合同中加上违约金条款，这样有利于公司对违反竞业禁止义务的董事会成员行使损害赔偿请求权。此外，还建议把补充赔偿责任的追偿权写进合同中。
起草有利公司的合同会更有效地保护公司免于因一切竞业行为（正当或不正当的）而造成的损失。下一篇文章，我会更加详细地讨论有限责任公司股东的竞业禁止义务。
在上一篇文章中，我介绍了有限责任公司董事会成员的竞业禁止义务。而这篇文章，我会将重点放在股东的竞业禁止义务上。
常常，投资者想与已活跃在市场某领域的生意伙伴合资经营企业。这种做法会产生协同效应，让他们节省掉企业发展初期费时费力的阶段。这种情况，协商并就能够解答“股东可以创办与公司相竞争（或有潜在竞争）的新企业或是继续管理存在的企业吗？”这个问题的合作原则达成一致非常重要。不论公司章程的内容是什么，不正当竞争一直都是被禁止的，这个事情不用再提。问题的关键在于正当竞争。波兰法律没有禁止有限责任公司股东经营与本公司相竞争（或有潜在竞争）业务的明文规定。这对于德国和美国的客户来说，简直难以置信，因为在他们的司法体系中这些规定是存在的。在波兰，虽然没有明文规定，但竞业禁止义务可以从股东对公司应遵守的忠实原则中提炼出来。然而，由于持有公司股份数量的差异，股东受该义务的制约也各有不同。持多数股份的股东——也就是可以有效控制公司的——不得经营与本公司相竞争的一切业务。这个做法是合理且公平的。而对于那些仅持有公司少数股份，但对公司实际上没有任何影响力的股东——他们要承担的竞业禁止义务的范围就要小得多：不应禁止这些股东投资其他业务，即便该业务与本公司业务相竞争。
股东的竞业禁止义务是如何规定的？
值得一提的是，波兰法律规定了惩戒程序，目的是保护有限责任公司不受不忠实股东的威胁。剩下的股东，如果持有的股份加起来占比超过了50%，就可以共同向不忠实股东提起诉讼。庭审过程中，法院认定股东是否受竞业禁止义务的制约。如果受制约，那是否违反了该义务。如果违反了该义务，法院可以将该不忠实股东除名。然而，这个程序的缺点是被除名股东的股份必须由剩余股东或第三人依据它们的实际价格收购（强制回购）。此外，整个诉讼的成本高、耗时久。并且，如果法院不能下达禁止该股东在庭审期间实施竞业行为的指令，该股东就可以继续经营与本公司相竞争的业务，致使公司遭受更多的损失。因此，在很多情况下，特别是当不忠实股东持有绝大多数股份时，上述方案收效甚微。
就像我上面提到的那样，波兰法律没有关于股东竞业禁止行为的明文规定，而法定惩戒程序（强制回购）在多数情况下用处不大。要记住的是，每个有限责任公司的股东——甚至是仅持有1%股份的股东——都有权查看公司的所有信息和文件。因此，如果股东擅自使用公司商业机密或是其他保密信息，那么他就可能成为公司利益的潜在威胁。毫无疑问，在这种情况下，可以对他提起侵权之诉。但问题是，谁想通过耗时长、成本高的诉讼来获得赔偿呢？此外，诉讼期间公司可能会陷入财务危机，而这将导致索赔失败。
如何保护公司利益？
唯一的解决办法就是认真起草公司章程以及额外的股东协议。
在起草公司章程时，须考虑到股东可能存在实施竞业行为的风险。竞业禁止条款应包含下列内容：
- 被认作是竞业行为的详细描述
- 直接和间接竞业行为的定义
- 竞业禁止条款的地域适用范围
- 竞业禁止的期限
- 处罚
关于最后一点，公司章程里可以这样写明，股东在出售自己股份后的几年里依旧受到竞业禁止义务的制约。
要切记，竞业禁止条款的语言必须准确而缜密，这对于公司进行自我保护至关重要。如果竞业禁止的定义太过笼统，索赔就会变得很困难。
上面提到的是针对违反忠实义务的股东建立的惩戒机制。我建议再增设股份强制赎回机制，也就是公司，而不是其他股东买下被除名股东的股份。在这种情况下，强制赎回的股票面值可能远比市值低的多。股东协议中应包含竞业禁止和股份强制回购条款，以及向剩余股东支付违约金的内容。当然，如果该股东同时兼任董事一职，那即便公司章程里没有包含股东竞业禁止条款，他也将受到董事会成员竞业禁止义务的制约。
Quick summary – Poland has recently introduced tax incentives which aim at promoting innovations and technology. The new support instrument for investors conducting R&D activity is named «IP Box» and allows for a preferential taxation of qualified profits made on commercialization of several types of qualified property rights. The preferential income tax rate amounts to 5%. By contrast, the general rate is in most cases 19%.
The Qualified Intellectual Property Rights
The intellectual property rights which may be the source of the qualified profit subject the preferential taxation are the following:
- rights to an invention (patents)
- additional protective rights for an invention
- rights for the utility model
- rights from the registration of an industrial design
- rights from registration of the integrated circuit topography
- additional protection rights for a patent for medicinal product or plant protection product
- rights from registration of medicinal or veterinary product
- rights from registration of new plant varieties and animal breeds, and
- rights to a computer program
The above catalogue of qualified intellectual property rights is exhaustive.
Conditions for the application of the Patent Box
A taxpayer may apply the preferential 5% rate on the condition that he or she has created, developed or improved these rights in the course of his/her R&D activities. A taxpayer may create intellectual property but it may also purchase or license it on the exclusive basis, provided that the taxpayer then incurs costs related to the development or improvement of the acquired right.
For example an IT company may create a computer program itself within its R&D activity or it may acquire it from a third party and develop it further. Future income received as a result of commercialization of this computer program may be subject to the tax relief.
The following kinds of income may be subject to tax relief:
- fees or charges arising from the license for qualified intellectual property rights
- the sale of qualified intellectual property rights
- qualified intellectual property rights included in the sale price of the products or services
- the compensation for infringement of qualified intellectual property rights if obtained in litigation proceedings, including court proceedings or arbitration.
How to calculate the tax base
The preferential tax rate is 5% on the tax base. The latter is calculated according to a special formula: the total income received from a particular IP is reduced by a significant part of expenditures on the R&D activities as well as on the creation, acquisition and development of this IP. The appropriate factor, named «nexus», is applied to calculate the tax base.
The tax relief is applicable at the end of the calendar year. This means that during the year the income tax advance payments are due according to the regular rate. Consequently in many instances the taxpayer will recover a part of the tax already paid during the previous calendar year.
It is advisable that the taxpayer applies for the individual tax ruling to the competent authority in order to receive a binding confirmation that its particular IP is eligible for the tax reduction.
It is also crucial that the taxpayer keeps the detailed accounting records of all R&D activities as well as the income and the expenses related to each R&D project (including employment costs). The records should reflect the link of incurred R&D costs with the income from intellectual property rights.
Obligations related to the application of the tax relief
In particular such a taxpayer is obliged to keep records which allow for monitoring and tracking the effects of research and development works. If, based on the accounting records kept by a taxpayer, it is not possible to determine the income (loss) from qualified intellectual property rights, the taxpayer will be obliged to pay the tax based on general rules.
The tax relief may be applied throughout the duration of the legal protection of eligible intellectual property rights.In case if a given IP is subject to notification or registration procedure (the expectative of obtaining a qualified intellectual property right), a taxpayer may benefit from tax relief from the moment of filing or submitting an application for registration. In case of withdrawal of the application, refusal of registration or rejection of the application , the amount of relief will have to be returned.
The above tax relief combined with a governmental programme of grant aid for R&D projects make Polish research, development and innovation environment more and more beneficial for investors.
The sale and purchase of agricultural land under Polish law have been recurrently amended over the past few years.
For the most part legal provisions aim to protect the country’s food resources as well as to be self-sustained and independent from foreign food suppliers. Agriculture is considered to be one of the decisive economic branches and it’s the Lawmaker’s according belief that it should be accurately regulated. Consequently, the sale and purchase of land which may be used for farming are subject to various limitations, as well as the sale and purchase of company shares or business assets (fonds de commerce) holding such land.
This topic, therefore, is crucial to foreign investors. In this article, I would like to highlight some key points which should be taken into account by foreign investors in setting up a joint venture with a Polish counterpart owning a real estate or acquiring shares in an already existing entity that owns a real estate. These situations are very frequent and the legal risks related to the agricultural land cannot be neglected.
Agricultural land is defined as any land which is qualified as such in the zoning regulation. The agricultural character subsists not only when the real estate is already utilized for agricultural purposes but also if such use is merely potential. Here arises the first issue: it is a matter of facts, not law whether such utilization is conceivable and often arguable.
One may imagine a plot of land which is not used for farming at the moment but still suitable to be used in such a way in the future. Such a real estate will be subject to the legal limitations and the sale and purchase of it offer a significant legal and commercial issue. This pertains green fields in the outskirts of a city which are generally marked as agricultural land under the zoning plan and form an ideal target for investors who wish to construct a production facility (e.g. factory), warehouse or start a business far from farming. Except if planning the construction of residential buildings they will have to face severe legal requirements.
Another point is that in Poland not every region has a zoning plan. Often there is none and the legal character of a given land has to be determined on the basis of other sources; such as a land register or a general concept of zoning plan adopted by a single municipality. Oftentimes the data arising from the two sources are contradictory.
Issue concerns only out of city real estate
The upside is that these strict regulations do not apply to agricultural land situated within the administrative city limits.
Minimum surface: 1 ha and 5 ha
The statutory limitations apply only in case if the land exceeds a certain surface.
For share deals (transactions where the shares in a company or rights in a partnership are transferred) the minimum surface required is 5 ha. If a company or a partnership owns an agricultural land below 5 ha the share deal can be done without further complications.
For asset deals (simple transactions resulting in a transfer of land property) the relevant figure is 1 ha (see below).
Transfer of land
The transfer of agricultural land having a surface exceeding 1 ha to a non-farmer, requires the approval of the State. This is given through an administrative decision.
If the surface is less than 1 ha, transfer approval is not mandatory, but the State has a right of first refusal with respect to such land. As mentioned earlier, these rules do not apply to the real estate situated within the cities.
For these reasons an asset deal in Poland may produce complications.
Transfer of shares in a capital company
The share deals are comparatively easier, even if the company owns an agricultural real estate. They do not require the approval of the State.
However, the State has a right of first refusal with respect to shares in a company (limited liability company or joint stock company) which owns an agricultural land having a surface of at least 5 ha. It has a right to examine the company’s papers and books as well as to request data from the company in order to establish the legal and financial state of the real estate.
The shares owner can only enter into a conditional share sale and purchase agreement with a third party. Such an agreement is conditioned by the mentioned right to a first refusal within a statutory time period of 1 (one) month. However, there is a very important deviation from the regular right of first refusal. If the State considers the contractual price does not meet the market value of the shares it may demand that the share price which the State itself will pay is set by a court. Such price revision does not extend to regular share deals or asset deals. And therein we see the significant risk for the seller.
Transfer of shares in a partnership and accession of a new member
Different rules apply if the sale and purchase agreements relating to the rights in a partnership (general partnership, limited partnership, a partnership limited by shares or professional partnership) owning an agricultural land of at least 5 ha surface.
In such a case, if a current member transfers his/her rights to a third party or a new member adheres, the company is obliged to inform the State of such transfer or adhesion. Subsequently, the State has a right take over the property of the land and to set a price for it unilaterally. Such a price should reflect the market value of the concerned real estate. However, in many cases, the partnership may find the price too low and wishes to challenge it. The partnership thus has to go to court asking for a price revision.
Real estate or shares in a company or a partnership as a non-cash contribution
It is not possible to avoid the above complications if instead of selling the shares or a real estate we transfer them to a purchaser through a different legal act. For example, one may wish to confer it as a non-cash contribution to a different company, exchange it for some other asset or donate it to a third party.
In those cases, very strict rules apply too. The State may take over respectively the land or the shares. The State sets the price unilaterally. The land- or shareowner may challenge the price in court but he has to apply within 1 month from take-over.
Mergers, divisions, and transformations of companies and partnerships
The right to take over the property of a real estate applies similarly to mergers, transformations, and divisions of companies and partnerships. There is a significant legal and financial risk connected to this kind of M&A.
Null and void agreements
If an agreement related to a transfer of land, shares in a company or rights in a partnership does not match all legal requirements it is null and void. In such a case the Buyer does not acquire the rights for which he/she has paid. The value of the real estate in question or importance for the company’s business is irrelevant. Even if the entity owns a relatively small real estate which currently is useless but potentially may be used for agricultural purposes and it is not properly identified within the due diligence process – this may trigger the invalidity of the whole transaction.
Be careful!
For the above reasons the buyer craving to purchase shares in Polish companies or partnerships should carefully investigate if his/her target entity is an owner of any real estate and – if so – what legal status of it might be. If it turns out that the entity owns an agricultural land of at least 1 ha then the share sale and purchase transaction should be performed very carefully and by specialized lawyers. If the relevant procedures are omitted the current share owner may lose the ownership of the shares and the intended purchaser may lose money in case the irregularity is discovered later on, when e.g. the seller gets insolvent, has been liquidated or simply disappeared.
As I have already mentioned in my previous article, the most popular type of company set up in Poland is the Limited Liability Company (LLC). Many foreign investors choose this legal structure for its simplicity and low costs, and often – especially in the smaller ones – investors themselves wish to manage (or co-manage) the company, so they become members of the Management Board.
However, many of them do not pay due attention to legal consequences of such a decision and are not aware of the legal liability connected with this position. I am compelled to underline that many foreign clients invest in Poland in a form of an LLC being groundlessly convinced that the limited liability refers to the whole business in Poland and all the people involved in it. They think that, if something goes wrong and the business of a subsidiary fails, they can just close it, leave the debts behind and start somewhere else.
This is not the case: The members of the Management Board, indeed, could be forced to pay a high price for it. Let’s take a look at this topic.
According to the Polish company law the Management Board Members of an LLC are jointly and severally responsible for the debts of the company in case it does not satisfy its creditors.
Basically, in order to pursue a Member of the Management Board a creditor needs to sue the company first and initiate the enforcement proceedings. In case the enforcement proceedings turn out to be totally or partly ineffective for the lack of the company’s assets – this fact will be confirmed by the bailiff. On this basis the creditor is entitled to sue the member of the Management Board and demand all the amounts that the company didn’t pay to him/her as well as the interest and costs of the court proceedings, including the attorney’s fees. As you may imagine, the amount at stake is high.
How can a Member of the Management Board defend from the liability for the company’s debts? By proving one of the following:
- he/she filed for company’s bankruptcy in a due time;
- the court declared the restructuring proceedings towards the company in a due time,
- it is not his/her fault the non-filing for the bankruptcy or restructuring proceedings in a due time;
- the creditor did not incur damage due to the fact that the aforementioned procedures were not initiated in a due time.
The burden of proof shall lie with the Manager. In other words, if he/she needs to prove at least one of those circumstances, while the plaintiff only needs to prove the existence of an unpaid company’s debt.
Establishing the “due time” is a crucial point. It is considered appropriate to file for bankruptcy when:
- the company for 3 consecutive months has problems with invoices paying; or
- the company is indebted above the value of its assets for more than 2 years; or
Often an appalling event proving that the company is in serious trouble arises when the bank refused to continue the financing or worse, terminates the loan and no other bank is wishing to provide the company with the financing. .
By contrast, the restructuring may be initiated when the company is still in a relatively good condition: through an agreement with creditors for the deferment or reduction of some payments together with the implementation of certain business improvements, the restructuring agreement may bring the company back into business. Despite the restructuring being relatively expensive, it allows to maintain the company alive, overcome difficulties and get back into the game.
When it is too late or there is no good recovery plan, the only remaining solution is the liquidation of the company within the insolvency proceedings. However, also these proceedings provoke expenses: the insolvent company needs to have resources to finance the judicial fees, the accountants, the receiver’s fees, the attorney’s fees, the employee’s salaries and all other costs during the insolvency process.
If the company does not have enough assets, the court will not even open the insolvency proceedings and if, during the proceedings a shortage of funds arises, the proceedings will be closed.
If the demand for opening of the insolvency or restructuring proceedings is filed too late, the Manager cannot release himself/herself from the liability for the debts of the company and all the damages incurred by the company’s creditors as a result of a belated opening of the insolvency proceedings. As the damage is often equivalent of the unpaid debt, the creditors have two separate legal bases to sue the Management Board Members and get back from them the money they didn’t get from the company.
In extreme cases, when the negligence of the Management Board is truly gross and the damage caused to creditors due to the belated filing for bankruptcy is very high, the court may impose on the Management Board Members a prohibition of running enterprise and holding positions in enterprises.
My advice is to accept the position of Management Board Members with extreme caution and, when the first signs of corporate difficulty arise, to react immediately and contact a lawyer expert in the matter: not only for the company’s sake, but also to protect their own assets and interest.
Limited Liability Company (LLC) is the most popular company form in Poland and is often chosen by foreign investors to access the Polish market for several reasons, such as: low initial share capital; limited liability; flexibility and simplicity in management; no social security contributions, etc.
When foreign investors buy minority shares in an existing LLC it is always a good idea to reflect the main points of the agreements between the parties in the corporate documents. In this brief post I will list seven common problems connected with the protection of minority shareholders, offering some possible solutions.
Problem 1: Polish law provides for a very basic protection for the minority shareholders.
Solution: if you want to have a strong position you should draft properly the Article of Association and preferably conclude also a side Shareholders’ Agreement.
Problem 2: Polish law provides no requirement related to the quorum of the Shareholders’ Meeting. In other words, if the Shareholders’ Meeting is properly convened, it may deliberate and adopt valid resolutions regardless of the numbers of shareholders present.
Solution: if you want the Shareholders’ Meeting to be valid only if a certain quorum is present, this should be included in the Articles of Association.
Problem 3: Polish law provides that the Shareholders’ Meeting resolutions are generally adopted with a simple majority (50% +1). Only some strategic matters it requires a qualified majority of 2/3 or 3/4. Thus the shareholder who owns at least 50% of shares dominates the company.
There may be two solutions to this situation.
Solution A: if the minority shareholder wishes to have a true influence on the company’s life, he should introduce a qualified majority for the validity of all Shareholders’ Meeting resolutions or of some of them (e.g. related to contracts of a significant value, to employment, to investments etc.).
Solution B: the minority shareholder may also negotiate that his/her shares will enjoy preference of votes. For example, each share may entitle to 2 votes. In such a way, his/her quota will have more influence.
Problem 4: According to Polish law, the Management Board Members are appointed by a resolution of the Shareholders’ Meeting, so usually the majority shareholder decides who will manage the company.
Solution: if the minority shareholder wishes to be sure that he will have real influence of the company’s activity, he may negotiate a clause of the Article of Association giving him a personal right to nominate and revoke one (or more) members of the Management Board.
Problem 5: Under Polish law the transfer of shares in an LLC is free, so the minority shareholder risks that the majority shareholder sells all his/her shares to a third party.
Solution: minority shareholder shall negotiate restrictions to the sale of shares. Restrictions may be of different kind, covering specific shareholders needs, such as: request the consent of the company for the sale (with possible recourse to ordinary jurisdiction); right of first refusal, etc.
One last tip: it is recommendable to conclude the shareholder’s agreement in a written form with signatures certified by a public notary. It is particularly important if this agreement contains clauses such as put option, call option, priority right, as written form is necessary to enforce the transfer of shares before the court. The lifetime of the shareholders’ agreement should be at least as long as the shareholders own the shares in the company. It may, however, extend beyond the moment when a shareholder leaves the company, e.g. with regard to the non-competition clause or confidentiality clause.
最近一段时间，波兰因经验丰富的信息技术专员而闻名。每年都有数千名新的波兰信息技术专员（程序员，开发人员，测试人员，设计人员等）流向市场。他们很受国内和国际公司的青睐。
其中，有很大一部分青年才干开了自己的公司或是以自由职业者的身份给欧洲、美国、加拿大、日本、中国等国家的客户开发软件。然而，那些想与他们合作，并把软件开发交给波兰信息技术公司或是波兰自由职业者来做的企业应该意识到，在波兰，著作权主要保护的是发明人，而不是客户。因此，为了安全起见，最好遵循以下8个基本原则：
- 永远不要在无正式合同的情况下与波兰信息技术专员或信息技术公司合作。我这里指的是真正的合同——书面形式和有能代表公司做出有效行为的人员签名。书面形式非常重要，因为依据波兰的法律，那些不符合书面形式要件的著作权转让和独占许可合同是无效的。此外，在无合同的情况下，一切与知识产权相关的事宜都将适用波兰著作权法。如果外国公司想让它与波兰信息技术专员或软件公司之间产生的法律关系适用本国法，那就必须要在合同中拟定相应条款。
- 要切记，软件是受著作权法保护的作品。因此，你要考虑你是想取得全部知识产权还是只需要许可。如果你需要知识产权的全部转让，你就必须要在合同中清楚地写明，否则你获得的只是普通许可。从商业的角度来看，在多数情况下，普通许可用处不大。如果只需要许可，最好还是商量清楚，是独占许可还是普通许可。
- 与知识产权相关的条款内容应是具体且清晰的。如果你想拥有无限制反编译和分解二进制代码的权利，请在条款中写明。如果你想获得修改源代码的权利，请在条款中写明。如果你想取得从属许可，也请在条款中写明。
- 与知识产权相关的条款内容应包含软件是通过移动设备、个人电脑、其他电子装置还是网络（云端）使用的方式的描述。请相信我，当我指出哪些需要写进条款中时，这意味着这些内容你必须要写进去。否则，条款是无效的，而波兰信息技术专员可能还会在收了报酬之后告你侵权。
- 记住，要注明许可使用或知识产权转让的时间和地域范围。如果你不在合同里写清楚，那依据波兰的法律，你只能获得5年的使用许可，之后它将自动失效。
- 要谨慎地起草合同终止条款。依据波兰的法律，许可方可以提前一年通知被许可方终止无限期许可使用合同。如果你不想在大项目进行的过程中失去软件的知识产权，请确保从一开始你就规避了这个风险。
- 要确保你的合作伙伴会把所有你需要的软件文档和源代码发给你。你可以通过签订违约金条款来保障对方守约。
- 要确保你的合同中包含赔偿条款。常常，波兰信息技术公司会将一部分软件开发工作交给自由职业者来做。而他们之间是否签订了相应的合同，以及波兰信息技术公司是否取得了软件的所有权我们不得而知。因此，这就存在着某个你根本不认识的波兰信息技术专员对你提起侵犯知识产权之诉的风险。在这种情况下，赔偿条款就能帮你从你的合作伙伴那里收回损失。
越南 
中国 
埃及 
西班牙 
荷兰 
法国 
写信给 Agata
有限责任公司董事会成员的竞业禁止义务
15 12 月 2021
-
波兰
- 公司法
A member of the management board or the supervisory board of a Polish LLC or a joint-stock company is liable to the company for damage caused by an act or omission contrary to the law or the articles of association, unless they are not at fault. In the performance of their duties, they are obliged to take the care due to the professional nature of their activities. In other words, the standard of care is high and they cannot release themselves from the liability indicating that they had no sufficient knowledge or experience.
The burden of proof of the damage and the lack of due dilligence of the board member lies with the company. A board member is liable if their conduct is culpable. However, the company does not have to prove this. It is the board member who must demonstrate that the damage caused by their act or omission was not culpable.
When running a business, board members naturally often move within the boundaries of a certain risk and make various business decisions, the consequences of which are often unforeseeable at the time they are made. They can result in both substantial gains and substantial losses for the company. However, with a high standard of due diligence, it is more difficult to demonstrate a lack of culpability.
A recent amendment of the Polish Code of Commercial Companies and Partnerships which enters into force on 13 October 2022 has articulated the so called „business judgement rule” which has already appeared to a limited extent in case law.
This rule assumes that a member of the management board and supervisory board may act within the limits of reasonable business risk. They are not in breach of their duty of professional care as long as they act in loyalty to the company.
The new law indicates that the assessment of the board member may be made on the basis of information, analyses and opinions available to them when making decisions. The new law may contribute to the collection of documentation in defence of the position (so-called defence file). The board members may protect themselves against the liability towards the company by demonstrating that their actions or omissions were based on expert’s opinions and at the time when they were undertaken they did not exceed the limits of the reasonable business jugdement.
很多投资者独自或是与他人合伙创办公司，而对于公司的管理他们倾向于交给更专业且更有经验的人士来负责。
有限责任公司会是第一首选，因为比起股份有限公司，它的运营方式更加灵活且运营成本相对较低。但是很快，成立简易股份有限公司也将成为可能。有关它的文章您可以在我们的博客中找到。
现在，我们还是回到正题。对于有限责任公司来说，董事会成员的竞业禁止义务非常重要。在这篇文章中，我会详细讨论这个问题。
公司法中的竞业禁止义务是如何规定的？
依据波兰的法律，有限责任公司的董事会成员有竞业禁止的法定义务。例如，不得在同行业竞争对手处任职，也不得自营或者为他人经营与所任职公司同类的业务。但是，在无权任命对手公司董事会成员的前提下，他们可以拥有对手公司（有限责任公司或是股份有限公司）不超过10%的股份。
竞业禁止义务自董事会成员任职起产生，并在任期结束后自动消灭。但对于公司来说，它可以随时解除董事会成员的竞业禁止义务。
依据法律规定，董事会成员由股东大会通过决议任命。因此，有关竞业禁止义务的解除也由股东大会通过决议做出。
然而，公司章程可以修改上述规定。例如，董事会成员可以由任意一名股东直接任命。虽然不常见，但也存在第三人专门负责董事会成员的任命和开除的情况。
董事会成员违反竞业禁止义务会带来哪些后果？
一旦违反竞业禁止义务，董事会成员不会自动失去他的职位。然而，他可以通过正常程序，也就是通过股东大会被开除，不论他之前是以何种形式任命的。也就是说，股东大会有权开除不忠实的董事会成员，即便任命和开除董事会成员的权利属于股东。当然，需要强调的是，有关开除董事会成员的决议需要得到多数票的支持才能通过。换句话说，即便中小股东确认某董事会成员违反了竞业禁止义务，他可能也会因为缺少足够的票数支持而使得该董事会成员无法被开除。因此，保护中小股东的利益就成为了在公司章程以及股东协议中起草相应条款的又一理由。
应该指出，董事会成员因违反竞业禁止义务而给公司造成损失的，应当承担赔偿责任。然而，在实践中，公司可能会在举证损失（实际损失或可得利益）方面遇到困难。只有在事实相对清楚的情况下，维权才会变得容易。但对于绝大多数情况来说，整个诉讼过程都是耗时且繁琐的。
如何保护公司？
即便波兰法律规定了董事会成员的竞业禁止义务，投资者和公司还是有必要与他们签订竞业禁止合同，并将竞业禁止条款写入公司章程。
竞业禁止合同中应包含被认作是竞业行为的详细描述以及它的地域适用范围。跟这个义务相关的时间范围也很重要。可以在合同中这样写明，董事会成员不仅在整个任职期间，而且在卸任后的两年内都将受到这个义务的制约。最好可以在合同中加上违约金条款，这样有利于公司对违反竞业禁止义务的董事会成员行使损害赔偿请求权。此外，还建议把补充赔偿责任的追偿权写进合同中。
起草有利公司的合同会更有效地保护公司免于因一切竞业行为（正当或不正当的）而造成的损失。下一篇文章，我会更加详细地讨论有限责任公司股东的竞业禁止义务。
在上一篇文章中，我介绍了有限责任公司董事会成员的竞业禁止义务。而这篇文章，我会将重点放在股东的竞业禁止义务上。
常常，投资者想与已活跃在市场某领域的生意伙伴合资经营企业。这种做法会产生协同效应，让他们节省掉企业发展初期费时费力的阶段。这种情况，协商并就能够解答“股东可以创办与公司相竞争（或有潜在竞争）的新企业或是继续管理存在的企业吗？”这个问题的合作原则达成一致非常重要。不论公司章程的内容是什么，不正当竞争一直都是被禁止的，这个事情不用再提。问题的关键在于正当竞争。波兰法律没有禁止有限责任公司股东经营与本公司相竞争（或有潜在竞争）业务的明文规定。这对于德国和美国的客户来说，简直难以置信，因为在他们的司法体系中这些规定是存在的。在波兰，虽然没有明文规定，但竞业禁止义务可以从股东对公司应遵守的忠实原则中提炼出来。然而，由于持有公司股份数量的差异，股东受该义务的制约也各有不同。持多数股份的股东——也就是可以有效控制公司的——不得经营与本公司相竞争的一切业务。这个做法是合理且公平的。而对于那些仅持有公司少数股份，但对公司实际上没有任何影响力的股东——他们要承担的竞业禁止义务的范围就要小得多：不应禁止这些股东投资其他业务，即便该业务与本公司业务相竞争。
股东的竞业禁止义务是如何规定的？
值得一提的是，波兰法律规定了惩戒程序，目的是保护有限责任公司不受不忠实股东的威胁。剩下的股东，如果持有的股份加起来占比超过了50%，就可以共同向不忠实股东提起诉讼。庭审过程中，法院认定股东是否受竞业禁止义务的制约。如果受制约，那是否违反了该义务。如果违反了该义务，法院可以将该不忠实股东除名。然而，这个程序的缺点是被除名股东的股份必须由剩余股东或第三人依据它们的实际价格收购（强制回购）。此外，整个诉讼的成本高、耗时久。并且，如果法院不能下达禁止该股东在庭审期间实施竞业行为的指令，该股东就可以继续经营与本公司相竞争的业务，致使公司遭受更多的损失。因此，在很多情况下，特别是当不忠实股东持有绝大多数股份时，上述方案收效甚微。
就像我上面提到的那样，波兰法律没有关于股东竞业禁止行为的明文规定，而法定惩戒程序（强制回购）在多数情况下用处不大。要记住的是，每个有限责任公司的股东——甚至是仅持有1%股份的股东——都有权查看公司的所有信息和文件。因此，如果股东擅自使用公司商业机密或是其他保密信息，那么他就可能成为公司利益的潜在威胁。毫无疑问，在这种情况下，可以对他提起侵权之诉。但问题是，谁想通过耗时长、成本高的诉讼来获得赔偿呢？此外，诉讼期间公司可能会陷入财务危机，而这将导致索赔失败。
如何保护公司利益？
唯一的解决办法就是认真起草公司章程以及额外的股东协议。
在起草公司章程时，须考虑到股东可能存在实施竞业行为的风险。竞业禁止条款应包含下列内容：
- 被认作是竞业行为的详细描述
- 直接和间接竞业行为的定义
- 竞业禁止条款的地域适用范围
- 竞业禁止的期限
- 处罚
关于最后一点，公司章程里可以这样写明，股东在出售自己股份后的几年里依旧受到竞业禁止义务的制约。
要切记，竞业禁止条款的语言必须准确而缜密，这对于公司进行自我保护至关重要。如果竞业禁止的定义太过笼统，索赔就会变得很困难。
上面提到的是针对违反忠实义务的股东建立的惩戒机制。我建议再增设股份强制赎回机制，也就是公司，而不是其他股东买下被除名股东的股份。在这种情况下，强制赎回的股票面值可能远比市值低的多。股东协议中应包含竞业禁止和股份强制回购条款，以及向剩余股东支付违约金的内容。当然，如果该股东同时兼任董事一职，那即便公司章程里没有包含股东竞业禁止条款，他也将受到董事会成员竞业禁止义务的制约。
Quick summary – Poland has recently introduced tax incentives which aim at promoting innovations and technology. The new support instrument for investors conducting R&D activity is named «IP Box» and allows for a preferential taxation of qualified profits made on commercialization of several types of qualified property rights. The preferential income tax rate amounts to 5%. By contrast, the general rate is in most cases 19%.
The Qualified Intellectual Property Rights
The intellectual property rights which may be the source of the qualified profit subject the preferential taxation are the following:
- rights to an invention (patents)
- additional protective rights for an invention
- rights for the utility model
- rights from the registration of an industrial design
- rights from registration of the integrated circuit topography
- additional protection rights for a patent for medicinal product or plant protection product
- rights from registration of medicinal or veterinary product
- rights from registration of new plant varieties and animal breeds, and
- rights to a computer program
The above catalogue of qualified intellectual property rights is exhaustive.
Conditions for the application of the Patent Box
A taxpayer may apply the preferential 5% rate on the condition that he or she has created, developed or improved these rights in the course of his/her R&D activities. A taxpayer may create intellectual property but it may also purchase or license it on the exclusive basis, provided that the taxpayer then incurs costs related to the development or improvement of the acquired right.
For example an IT company may create a computer program itself within its R&D activity or it may acquire it from a third party and develop it further. Future income received as a result of commercialization of this computer program may be subject to the tax relief.
The following kinds of income may be subject to tax relief:
- fees or charges arising from the license for qualified intellectual property rights
- the sale of qualified intellectual property rights
- qualified intellectual property rights included in the sale price of the products or services
- the compensation for infringement of qualified intellectual property rights if obtained in litigation proceedings, including court proceedings or arbitration.
How to calculate the tax base
The preferential tax rate is 5% on the tax base. The latter is calculated according to a special formula: the total income received from a particular IP is reduced by a significant part of expenditures on the R&D activities as well as on the creation, acquisition and development of this IP. The appropriate factor, named «nexus», is applied to calculate the tax base.
The tax relief is applicable at the end of the calendar year. This means that during the year the income tax advance payments are due according to the regular rate. Consequently in many instances the taxpayer will recover a part of the tax already paid during the previous calendar year.
It is advisable that the taxpayer applies for the individual tax ruling to the competent authority in order to receive a binding confirmation that its particular IP is eligible for the tax reduction.
It is also crucial that the taxpayer keeps the detailed accounting records of all R&D activities as well as the income and the expenses related to each R&D project (including employment costs). The records should reflect the link of incurred R&D costs with the income from intellectual property rights.
Obligations related to the application of the tax relief
In particular such a taxpayer is obliged to keep records which allow for monitoring and tracking the effects of research and development works. If, based on the accounting records kept by a taxpayer, it is not possible to determine the income (loss) from qualified intellectual property rights, the taxpayer will be obliged to pay the tax based on general rules.
The tax relief may be applied throughout the duration of the legal protection of eligible intellectual property rights.In case if a given IP is subject to notification or registration procedure (the expectative of obtaining a qualified intellectual property right), a taxpayer may benefit from tax relief from the moment of filing or submitting an application for registration. In case of withdrawal of the application, refusal of registration or rejection of the application , the amount of relief will have to be returned.
The above tax relief combined with a governmental programme of grant aid for R&D projects make Polish research, development and innovation environment more and more beneficial for investors.
The sale and purchase of agricultural land under Polish law have been recurrently amended over the past few years.
For the most part legal provisions aim to protect the country’s food resources as well as to be self-sustained and independent from foreign food suppliers. Agriculture is considered to be one of the decisive economic branches and it’s the Lawmaker’s according belief that it should be accurately regulated. Consequently, the sale and purchase of land which may be used for farming are subject to various limitations, as well as the sale and purchase of company shares or business assets (fonds de commerce) holding such land.
This topic, therefore, is crucial to foreign investors. In this article, I would like to highlight some key points which should be taken into account by foreign investors in setting up a joint venture with a Polish counterpart owning a real estate or acquiring shares in an already existing entity that owns a real estate. These situations are very frequent and the legal risks related to the agricultural land cannot be neglected.
Agricultural land is defined as any land which is qualified as such in the zoning regulation. The agricultural character subsists not only when the real estate is already utilized for agricultural purposes but also if such use is merely potential. Here arises the first issue: it is a matter of facts, not law whether such utilization is conceivable and often arguable.
One may imagine a plot of land which is not used for farming at the moment but still suitable to be used in such a way in the future. Such a real estate will be subject to the legal limitations and the sale and purchase of it offer a significant legal and commercial issue. This pertains green fields in the outskirts of a city which are generally marked as agricultural land under the zoning plan and form an ideal target for investors who wish to construct a production facility (e.g. factory), warehouse or start a business far from farming. Except if planning the construction of residential buildings they will have to face severe legal requirements.
Another point is that in Poland not every region has a zoning plan. Often there is none and the legal character of a given land has to be determined on the basis of other sources; such as a land register or a general concept of zoning plan adopted by a single municipality. Oftentimes the data arising from the two sources are contradictory.
Issue concerns only out of city real estate
The upside is that these strict regulations do not apply to agricultural land situated within the administrative city limits.
Minimum surface: 1 ha and 5 ha
The statutory limitations apply only in case if the land exceeds a certain surface.
For share deals (transactions where the shares in a company or rights in a partnership are transferred) the minimum surface required is 5 ha. If a company or a partnership owns an agricultural land below 5 ha the share deal can be done without further complications.
For asset deals (simple transactions resulting in a transfer of land property) the relevant figure is 1 ha (see below).
Transfer of land
The transfer of agricultural land having a surface exceeding 1 ha to a non-farmer, requires the approval of the State. This is given through an administrative decision.
If the surface is less than 1 ha, transfer approval is not mandatory, but the State has a right of first refusal with respect to such land. As mentioned earlier, these rules do not apply to the real estate situated within the cities.
For these reasons an asset deal in Poland may produce complications.
Transfer of shares in a capital company
The share deals are comparatively easier, even if the company owns an agricultural real estate. They do not require the approval of the State.
However, the State has a right of first refusal with respect to shares in a company (limited liability company or joint stock company) which owns an agricultural land having a surface of at least 5 ha. It has a right to examine the company’s papers and books as well as to request data from the company in order to establish the legal and financial state of the real estate.
The shares owner can only enter into a conditional share sale and purchase agreement with a third party. Such an agreement is conditioned by the mentioned right to a first refusal within a statutory time period of 1 (one) month. However, there is a very important deviation from the regular right of first refusal. If the State considers the contractual price does not meet the market value of the shares it may demand that the share price which the State itself will pay is set by a court. Such price revision does not extend to regular share deals or asset deals. And therein we see the significant risk for the seller.
Transfer of shares in a partnership and accession of a new member
Different rules apply if the sale and purchase agreements relating to the rights in a partnership (general partnership, limited partnership, a partnership limited by shares or professional partnership) owning an agricultural land of at least 5 ha surface.
In such a case, if a current member transfers his/her rights to a third party or a new member adheres, the company is obliged to inform the State of such transfer or adhesion. Subsequently, the State has a right take over the property of the land and to set a price for it unilaterally. Such a price should reflect the market value of the concerned real estate. However, in many cases, the partnership may find the price too low and wishes to challenge it. The partnership thus has to go to court asking for a price revision.
Real estate or shares in a company or a partnership as a non-cash contribution
It is not possible to avoid the above complications if instead of selling the shares or a real estate we transfer them to a purchaser through a different legal act. For example, one may wish to confer it as a non-cash contribution to a different company, exchange it for some other asset or donate it to a third party.
In those cases, very strict rules apply too. The State may take over respectively the land or the shares. The State sets the price unilaterally. The land- or shareowner may challenge the price in court but he has to apply within 1 month from take-over.
Mergers, divisions, and transformations of companies and partnerships
The right to take over the property of a real estate applies similarly to mergers, transformations, and divisions of companies and partnerships. There is a significant legal and financial risk connected to this kind of M&A.
Null and void agreements
If an agreement related to a transfer of land, shares in a company or rights in a partnership does not match all legal requirements it is null and void. In such a case the Buyer does not acquire the rights for which he/she has paid. The value of the real estate in question or importance for the company’s business is irrelevant. Even if the entity owns a relatively small real estate which currently is useless but potentially may be used for agricultural purposes and it is not properly identified within the due diligence process – this may trigger the invalidity of the whole transaction.
Be careful!
For the above reasons the buyer craving to purchase shares in Polish companies or partnerships should carefully investigate if his/her target entity is an owner of any real estate and – if so – what legal status of it might be. If it turns out that the entity owns an agricultural land of at least 1 ha then the share sale and purchase transaction should be performed very carefully and by specialized lawyers. If the relevant procedures are omitted the current share owner may lose the ownership of the shares and the intended purchaser may lose money in case the irregularity is discovered later on, when e.g. the seller gets insolvent, has been liquidated or simply disappeared.
As I have already mentioned in my previous article, the most popular type of company set up in Poland is the Limited Liability Company (LLC). Many foreign investors choose this legal structure for its simplicity and low costs, and often – especially in the smaller ones – investors themselves wish to manage (or co-manage) the company, so they become members of the Management Board.
However, many of them do not pay due attention to legal consequences of such a decision and are not aware of the legal liability connected with this position. I am compelled to underline that many foreign clients invest in Poland in a form of an LLC being groundlessly convinced that the limited liability refers to the whole business in Poland and all the people involved in it. They think that, if something goes wrong and the business of a subsidiary fails, they can just close it, leave the debts behind and start somewhere else.
This is not the case: The members of the Management Board, indeed, could be forced to pay a high price for it. Let’s take a look at this topic.
According to the Polish company law the Management Board Members of an LLC are jointly and severally responsible for the debts of the company in case it does not satisfy its creditors.
Basically, in order to pursue a Member of the Management Board a creditor needs to sue the company first and initiate the enforcement proceedings. In case the enforcement proceedings turn out to be totally or partly ineffective for the lack of the company’s assets – this fact will be confirmed by the bailiff. On this basis the creditor is entitled to sue the member of the Management Board and demand all the amounts that the company didn’t pay to him/her as well as the interest and costs of the court proceedings, including the attorney’s fees. As you may imagine, the amount at stake is high.
How can a Member of the Management Board defend from the liability for the company’s debts? By proving one of the following:
- he/she filed for company’s bankruptcy in a due time;
- the court declared the restructuring proceedings towards the company in a due time,
- it is not his/her fault the non-filing for the bankruptcy or restructuring proceedings in a due time;
- the creditor did not incur damage due to the fact that the aforementioned procedures were not initiated in a due time.
The burden of proof shall lie with the Manager. In other words, if he/she needs to prove at least one of those circumstances, while the plaintiff only needs to prove the existence of an unpaid company’s debt.
Establishing the “due time” is a crucial point. It is considered appropriate to file for bankruptcy when:
- the company for 3 consecutive months has problems with invoices paying; or
- the company is indebted above the value of its assets for more than 2 years; or
Often an appalling event proving that the company is in serious trouble arises when the bank refused to continue the financing or worse, terminates the loan and no other bank is wishing to provide the company with the financing. .
By contrast, the restructuring may be initiated when the company is still in a relatively good condition: through an agreement with creditors for the deferment or reduction of some payments together with the implementation of certain business improvements, the restructuring agreement may bring the company back into business. Despite the restructuring being relatively expensive, it allows to maintain the company alive, overcome difficulties and get back into the game.
When it is too late or there is no good recovery plan, the only remaining solution is the liquidation of the company within the insolvency proceedings. However, also these proceedings provoke expenses: the insolvent company needs to have resources to finance the judicial fees, the accountants, the receiver’s fees, the attorney’s fees, the employee’s salaries and all other costs during the insolvency process.
If the company does not have enough assets, the court will not even open the insolvency proceedings and if, during the proceedings a shortage of funds arises, the proceedings will be closed.
If the demand for opening of the insolvency or restructuring proceedings is filed too late, the Manager cannot release himself/herself from the liability for the debts of the company and all the damages incurred by the company’s creditors as a result of a belated opening of the insolvency proceedings. As the damage is often equivalent of the unpaid debt, the creditors have two separate legal bases to sue the Management Board Members and get back from them the money they didn’t get from the company.
In extreme cases, when the negligence of the Management Board is truly gross and the damage caused to creditors due to the belated filing for bankruptcy is very high, the court may impose on the Management Board Members a prohibition of running enterprise and holding positions in enterprises.
My advice is to accept the position of Management Board Members with extreme caution and, when the first signs of corporate difficulty arise, to react immediately and contact a lawyer expert in the matter: not only for the company’s sake, but also to protect their own assets and interest.
Limited Liability Company (LLC) is the most popular company form in Poland and is often chosen by foreign investors to access the Polish market for several reasons, such as: low initial share capital; limited liability; flexibility and simplicity in management; no social security contributions, etc.
When foreign investors buy minority shares in an existing LLC it is always a good idea to reflect the main points of the agreements between the parties in the corporate documents. In this brief post I will list seven common problems connected with the protection of minority shareholders, offering some possible solutions.
Problem 1: Polish law provides for a very basic protection for the minority shareholders.
Solution: if you want to have a strong position you should draft properly the Article of Association and preferably conclude also a side Shareholders’ Agreement.
Problem 2: Polish law provides no requirement related to the quorum of the Shareholders’ Meeting. In other words, if the Shareholders’ Meeting is properly convened, it may deliberate and adopt valid resolutions regardless of the numbers of shareholders present.
Solution: if you want the Shareholders’ Meeting to be valid only if a certain quorum is present, this should be included in the Articles of Association.
Problem 3: Polish law provides that the Shareholders’ Meeting resolutions are generally adopted with a simple majority (50% +1). Only some strategic matters it requires a qualified majority of 2/3 or 3/4. Thus the shareholder who owns at least 50% of shares dominates the company.
There may be two solutions to this situation.
Solution A: if the minority shareholder wishes to have a true influence on the company’s life, he should introduce a qualified majority for the validity of all Shareholders’ Meeting resolutions or of some of them (e.g. related to contracts of a significant value, to employment, to investments etc.).
Solution B: the minority shareholder may also negotiate that his/her shares will enjoy preference of votes. For example, each share may entitle to 2 votes. In such a way, his/her quota will have more influence.
Problem 4: According to Polish law, the Management Board Members are appointed by a resolution of the Shareholders’ Meeting, so usually the majority shareholder decides who will manage the company.
Solution: if the minority shareholder wishes to be sure that he will have real influence of the company’s activity, he may negotiate a clause of the Article of Association giving him a personal right to nominate and revoke one (or more) members of the Management Board.
Problem 5: Under Polish law the transfer of shares in an LLC is free, so the minority shareholder risks that the majority shareholder sells all his/her shares to a third party.
Solution: minority shareholder shall negotiate restrictions to the sale of shares. Restrictions may be of different kind, covering specific shareholders needs, such as: request the consent of the company for the sale (with possible recourse to ordinary jurisdiction); right of first refusal, etc.
One last tip: it is recommendable to conclude the shareholder’s agreement in a written form with signatures certified by a public notary. It is particularly important if this agreement contains clauses such as put option, call option, priority right, as written form is necessary to enforce the transfer of shares before the court. The lifetime of the shareholders’ agreement should be at least as long as the shareholders own the shares in the company. It may, however, extend beyond the moment when a shareholder leaves the company, e.g. with regard to the non-competition clause or confidentiality clause.
最近一段时间，波兰因经验丰富的信息技术专员而闻名。每年都有数千名新的波兰信息技术专员（程序员，开发人员，测试人员，设计人员等）流向市场。他们很受国内和国际公司的青睐。
其中，有很大一部分青年才干开了自己的公司或是以自由职业者的身份给欧洲、美国、加拿大、日本、中国等国家的客户开发软件。然而，那些想与他们合作，并把软件开发交给波兰信息技术公司或是波兰自由职业者来做的企业应该意识到，在波兰，著作权主要保护的是发明人，而不是客户。因此，为了安全起见，最好遵循以下8个基本原则：
- 永远不要在无正式合同的情况下与波兰信息技术专员或信息技术公司合作。我这里指的是真正的合同——书面形式和有能代表公司做出有效行为的人员签名。书面形式非常重要，因为依据波兰的法律，那些不符合书面形式要件的著作权转让和独占许可合同是无效的。此外，在无合同的情况下，一切与知识产权相关的事宜都将适用波兰著作权法。如果外国公司想让它与波兰信息技术专员或软件公司之间产生的法律关系适用本国法，那就必须要在合同中拟定相应条款。
- 要切记，软件是受著作权法保护的作品。因此，你要考虑你是想取得全部知识产权还是只需要许可。如果你需要知识产权的全部转让，你就必须要在合同中清楚地写明，否则你获得的只是普通许可。从商业的角度来看，在多数情况下，普通许可用处不大。如果只需要许可，最好还是商量清楚，是独占许可还是普通许可。
- 与知识产权相关的条款内容应是具体且清晰的。如果你想拥有无限制反编译和分解二进制代码的权利，请在条款中写明。如果你想获得修改源代码的权利，请在条款中写明。如果你想取得从属许可，也请在条款中写明。
- 与知识产权相关的条款内容应包含软件是通过移动设备、个人电脑、其他电子装置还是网络（云端）使用的方式的描述。请相信我，当我指出哪些需要写进条款中时，这意味着这些内容你必须要写进去。否则，条款是无效的，而波兰信息技术专员可能还会在收了报酬之后告你侵权。
- 记住，要注明许可使用或知识产权转让的时间和地域范围。如果你不在合同里写清楚，那依据波兰的法律，你只能获得5年的使用许可，之后它将自动失效。
- 要谨慎地起草合同终止条款。依据波兰的法律，许可方可以提前一年通知被许可方终止无限期许可使用合同。如果你不想在大项目进行的过程中失去软件的知识产权，请确保从一开始你就规避了这个风险。
- 要确保你的合作伙伴会把所有你需要的软件文档和源代码发给你。你可以通过签订违约金条款来保障对方守约。
- 要确保你的合同中包含赔偿条款。常常，波兰信息技术公司会将一部分软件开发工作交给自由职业者来做。而他们之间是否签订了相应的合同，以及波兰信息技术公司是否取得了软件的所有权我们不得而知。因此，这就存在着某个你根本不认识的波兰信息技术专员对你提起侵犯知识产权之诉的风险。在这种情况下，赔偿条款就能帮你从你的合作伙伴那里收回损失。