Teoretycznoprawne aspekty jednoosobowej spółki. Cz. 2
Theoretical and legal aspects of single one-partner company, part 2

Summary/Abstract: The legalisation of the one-partner company has led, above all, to undermining of the traditional conception of the notion of a company, regarding it as a special type of contract. According to this concept, a company established as a legal form of cooperation between two or more persons who, through a legal bond between them and in the absence of divergent interests, jointly pursue an objective, constitutes a contractual association of persons. The cooperation of partners in this civil law relationship is based on the partnership agreement concluded between them. The model for all current legal forms of companies was the Roman societas, based on a mutual relationship between two or more persons who undertook together to pursue common goals. The participants in such a community were bound together by a legal bond based on solidarity, fraternity and trust. It was primarily a personal bond, although not without the characteristics of a property bond. Modern legal forms of companies are developed and refined forms of the Roman societas, although they have already diverged significantly from their prototype (this is especially true of capital companies, which have lost their personal character). However, the common legal construct of all types and kinds of companies, despite differences as to their legal nature, remained the contract as the act establishing the company. Therefore, if one accepts that a company is a contractual association of two or more persons who, in the absence of divergent interests, jointly pursue a specific objective, then the essence of a company is reduced to an association of persons.Z. Żabiński, in his study on the single-partner capital company, states that the essence of any company is association. The notion of association, on the other hand, is the opposite of individuality. It must therefore be concluded that the concept of a single-member company contains contradicto in adiecto. S. Janczewski expressed a similar view of the substance of the company. He states: “from an economic point of view, a company is an association of two or more persons for the purpose of jointly carrying on a profit-making enterprise or otherwise pursuing a common economic purpose”. On the other hand, ''from a legal point of view, a company is first and foremost a contract''.Thus, the oldest theory of the concept of a company, the so-called contractual theory, assumed that the basis for the establishment and subsequent existence of any company, as well as all mutual relations between partners and between the company and its partners, is the contract. A company is therefore nothing more than a special variant of a civil law contract. Its essence is to bring people together. The theory therefore primarily emphasises the corporate nature of the company.A competing theory of the concept of the company, contemporary institutional theory, considers the company as an institution, an organisation that is independent of its founders and retains its identity regardless of changes in the composition of the company. In this view, a company is a separate legal entity – an institution that can be formed by either one or more persons. The company as an institution, a legal entity separate from its founders, loses the character of a special contractual relationship. The will of its founders or a single founder undoubtedly continues to play a fundamental role in its formation, but is limited by the mandatory provisions governing the type of company in question. The choice of a particular legal form of company entails compliance with the statutorily specified requirements governing the type of company, the wording of which is no longer under the company founders' control. Although the company as an institution may continue to be an association of persons, the composition, number and changes in the composition of the shareholders do not affect its legal existence as a separate legal entity. It is therefore not impossible that the decision to establish an institution company is made by only one person and that it functions with only one partner. Institutional theory thus provided the theoretical basis for the formation and operation of single shareholder companies.In the search for a legal form for the individual enterprise, two concepts of its organisation competed in the doctrine. In terms of the former, a company is an organisational and legal form of a business that allows for the legal separation, organisation and existence of an economic organism such as a business. According to this concept, the subject matter of company law is primarily an enterprise created in the form of a company, i.e. a company enterprise (entreprise sociétaire), while the legal form of the company constitutes its legal character. It appears as a set of legal principles and mechanisms through which a company can be legally separated. In doing so, it is irrelevant whether the company, in economic terms, is owned by one or several persons. This way, the legal form of a company can also be used as the legal form of organisation of an individual enterprise.Another concept of the organisation of an individual enterprise, put forward in connection with the search for a legal form with which the privilege of limited liability for an individual enterprise would be associated, is that of a special-purpose estate. In its view, it is possible to separate a specific mass of assets, from the personal assets of an individual entrepreneur, in order to organise it as an individual business and thereby limit liability for business-related liabilities.Taking the opportunity of discussions on the need to provide the individual entrepreneur with a legal form of business that would give them the privilege of limited liability, two proposals were therefore put forward. In addition to or instead of the legal form of a limited liability company with a single shareholder, a proposal was raised to create a special legal form, the single-member limited liability company.Although the concept of a special-purpose asset has gained many supporters in the doctrine, the end result is that the legal form of a limited liability company for an individual company has been chosen in most cases. The legal form chosen is one that is widely known and valued for the flexibility of the rules governing the organisation and functioning, allowing, without the need for transformation, within the same legal structure, for changes in membership, i.e. moving from a single-member form to a multi-member form. A legal form that provides the privilege of limited liability to the sole partner and, at the same time, subject to provisions that protect the inviolability of the interests of the company's creditors.The introduction of a new legal form of doing business would first and foremost involve a broader reform of business law. Admittedly, the introduction of a new, special legal form into our legal system in the future cannot be ruled out, which would be the individual limited liability company as an alternative form to the single-partner company. The organisational structure of this legal form of running a business by a single person would not create the problems posed by the fact that there is only a single partner in the organisational structure planned for a corporate body such as a company. On the other hand, however, taking into account the characteristics of the limited liability company indicated above, (including the universality and flexibility of form), the Polish legislator's choice of the legal form of a limited liability company for an individual enterprise, which is already functioning in the Polish legal system, should be regarded as correct.

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