Czy szwajcarskie prawo upadłościowe powinno być wzorem dla polskiego ustawodawcy?
Should Swiss bankruptcy law be a model for the Polish legislator?

Summary/Abstract: Swiss law can be a source of extremely interesting inspiration for the Polish legislator, and not only in the field of insolvency law. The entire system of monetary recovery, of which bankruptcy law is a component, deserves special attention. It is a system that ensures much faster realisation of undisputed claims than under the Polish law. Recent amendments to the Code of Civil Procedure, in particular the writ-of-payment procedure, bring the Polish order closer to Swiss law, although the degree of efficiency achieved there is still far from being reached. Swiss law, which had preserved traditional, 19th century constructs related to the domination of creditors in bankruptcy proceedings, suddenly became modern and in line with the currents of the modern era. In this regard, it should be pointed out that it contains provisions that naturally protect small creditors since, apart from the meeting called to approve the arrangement, capital majorities are not required. A solution that in practice does not provide for subjective restrictions for declaring bankruptcy or opening arrangement proceedings is worth adopting into the Polish legal order. The lack of a formulated premise of insolvency needs to be considered. However, it must be borne in mind that under Swiss law, bankruptcy is not an alternative to singular enforcement, but in many cases (of entities with so-called insolvency capacity) the only way to enforce monetary obligations. This fact must be taken into account in any attempt to adapt and Swiss solutions. Note the negligible involvement of the judicial structure in the course of the insolvency proceedings themselves. Replacing both the bankruptcy court, the judge-commissioner and the trustee, the institution of the bankruptcy office (for the post-bankruptcy stage of the proceedings) appears to be a cost-effective solution, while the structure of these proceedings is unlikely to pose particular risks to the interests of the participants in the proceedings.The provided outline of the various institutions of Swiss insolvency law is by its very nature abbreviated. The order of this law breaks down the traditional constructs that have grown out of German and Austrian law, seemingly necessary for the proceedings. The Polish legislator, when adopting new solutions based on new German and American concepts, should compare them to Swiss constructions - they will often be much simpler and more effective.

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