1 H. Cioch, Prawo spółdzielcze, Warsaw 2011, p. 109. 2 I OSK 776/11, LEX No. 1,149,434.
3 Ie. Dz. U. of 2018. Pos. 1285, as amended. Referred to as pr. sp. 4 H. Cioch, Związki spółdzielcze i Krajowa Rada Spółdzielcza w świetle
projektu ustawy – Prawo spółdzielcze, „Rejent” 2004, No. 12, p. 30.
5 Data from the official website of the National Cooperative Council,
https://www.krs.org.pl/index.php/kontakt-2/krajowe-spodzielcze-zwizki-rewizyjne [accessed 20 October 2018].
The purpose of this article is to present and analyze the legal regulations concerning the activities of the cooperative auditing associations. Below discussed issues relating to the issue of establishing a trade inspection, their tasks, and the organization and bodies. The framework text vent total analysis of title issues, because it pre-sented some threads do not fully exhaust the sub-ject, but may be a contribution to make in-depth analysis of the legal status of the compounds of revision.
Establishment of auditing association
No legal person did not appear suddenly and unexpectedly, without taking measures to create it. Recipes – depending on the type of legal entity - describe the next steps that should go to such a person was established.
Creating a relationship audit team is fac-tual and legal actions, which lead to this relation-ship by legal personality. There are the following steps: 1) selecting a group of cooperative efforts to create the compound inspection; 2) passing the inspection Statutes compound; 3) to select audi-ting association authorities; 4) the entry into the National Court Register; 5) the entry of an audi-ting association in the register maintained by the National Cooperative Council.
Auditing Association is a voluntary asso-ciation, it can assume at least 10 cooperatives. This is expressly recipe Article 240 § 1 pr. sp. De lege lata to establish connection audit also apply the provisions on the establishment and registra-tion of cooperatives, because in matters not covered by Title I, constituting a cooperative relationship, the provisions of the Cooperatives Act relating to the cooperative – such regulation is
6
based on Article 257 § 1 pr. sp. Cooperatives interested in the appointment of an audit union convene founding meeting. It should be noted that the management of the cooperative to be able to proceed on the assumption of an audit union must get authorization in the form of a resolution adopted by the general meeting of the cooperative. During his meeting cooperatives are represented by the boards. The doctrine
rightly points out that during the meeting of the founding board of the founding of each coope-rative has one vote. Participants in the meeting
7
must therefore adopt the statute revision . It takes the form of writing. The statute must not only be adopted, but also adopted, and this fact is confirmed by submitting the signatures of the
8 founders of the association audit .
The legislature in § 4 of Article 240 pr. sp. handed mandatory elements that should be included in the provisions of the statute. These include: 1) specify the name and headquarters of the compound; 2) administering to the subject and the activity of the compound; 3) define the conditions and procedures of admission, plot-ting, expulsion and termination of membership; 4) regulate the principles and procedures for selection of the bodies, and therefore their tasks and competences, as well as the administration of the rules and procedures for determining the inspector.
The doctrine rightly points out that the scope of the provisions of the Statute of the audit relationship defined in the above provision of the minimum content of that statute should include inspection of each compound, so that it
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can be registered . It is worth remembering that the content of the statutes may also contain optional provisions.
Another activity related to the process of formation of a revision, which must be made at a meeting of founding bodies is to select a rela-tionship. These bodies are the board and the su-pervisory board.
The next stage aimed to create a connec-tion is to obtain entry into the Naconnec-tional Court Re-gister. Proper entry into the register of entrepre-neurs makes the audit union, according to the Article 240 § 4, first sentence pr. sp., acquires legal personality. The application for registration should be made within 7 days of justifying making an entry. In the light of Article 2 § 1 of the 10 Act of 20 August 1997. National Court Register . The register is operated by the local courts (economic courts) covering the area of i ts characteristic region or a part thereof. However, 6
See. K. Pietrzykowski, Spółdzielnie mieszkaniowe. Komentarz, ed. 8, Warsaw 2016, p. 427. 7 M. Gersdorf, J. Ignatowicz, Prawo spółdzielcze. Komentarz, Warsaw 1985, p. 502.
8 In a similar vein, he spoke of the Supreme Court judgment of 6 October 2016. IV CSK 826/15, OSNC 2017 No. 6, item. 69.
9 H. Cioch, Prawo ..., op. cit., p. 116.
10 Ie. Dz. U. of 2018. Pos. 986, as amended. Hereinafter referred to as the Law on National Court Register.
in accordance with Article Act 6942 of 17 No-11 vember 1964. - Code of Civil Procedure in matters of registration exclusive jurisdiction is the district court (commercial court) competent for the place of residence or registered office entered in the register of the entity at issue (registration court).
Application for entry to the National Court must be submitted in writing on the official form (Article 19 § 2 of the Act on KRS). The forms should be completed in Polish language, reading, all the fields in which no relevant infor-mation will be entered, must be struck. Given the wording of Article 19 § 2b of the Law on the National Court an application for entry in the register of audit relationship can be submitted electronically. In this case it is required affixing qualified electronic signature, or the signature of
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a trusted . However, from the provisions of Article 6944 § 1 of the Code of Civil Procedure that documents constituting the basis for entry into the National Court Register or deposit sub-ject to registration files submitted in originals or officially certified copies or extracts. When sub-mitting the application, the applicant pays a fee without summons to court. Proposal for register a revision in the National Court Register is subject to the fixed fee in the amount of 500 zł - this is Article 52 of the Act of 28 July 2005. On court
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fees in civil cases . While the fee for inclusion in the Court and Economic Monitor information about the entry into the National Court Register is in accordance with § 6 of the Regulation of the Minister of Justice of 13 May 2014. On the pro-duction and dissemination of Court and
Econo-14 mic Monitor, 100 zł .
It is worth emphasizing that the legislator did not specify explicitly the normative acts, to whose competence must submit to the court an application for registration of an audit union. It seems reasonable to assume that this obligation rests with the people forming the future relation-ship management audit.
The provision of Article 19 § 3 of the Act on KRS explicitly indicates that the requested unresponsive formal requirements is returned without calling to remedy the deficiencies.
In the case of return the application can be re-submitted within 7 days from the date of receipt of order to recover. If again requested no deficiencies, effective as from the date of original filing. Such an effect does not occur if another application is returned, unless there was a return due to shortcomings not mentioned previously.
Registration court proceedings after the registration issue a decision on entering due to a revision of the National Court Register. This entry is obligatory and constitutive character. The moment of entry determines the relationship by obtaining legal personality inspection.
The last step is the founding declaration by the management of the register of registered trade inspection conducted by the National Cooperative Council. It should be assumed that the board connection should be done immedia-tely after obtaining his legal personality. This register is relevant statistics and information. It is available on the official website of the National Cooperative Council in Warsaw.
Accession to the cooperative audit
The cooperative can join an existing rela-tionship revision. But in order to do so, the gene-ral meeting of a cooperative must obligatorily adopt a resolution authorizing the management of the cooperative activities aimed at accession to the audit. The basis for the adoption of a coope-rative relationship as members of audit is com-pleted and membership declaration filed with the resolution of the general meeting on this subject. The resolution on the purchase or acquisition of refusal to take the appropriate authority of the membership audit relationship. The resolution on the adoption of the resolution or refusing to adopt the board shall notify the concerned cooperative relationship in writing. Notice of refusal should include justification and instruc-tion on how to appeal.
The tasks of the compounds of revision Adjustment of Article 240 § 2 pr. sp. shows quite generally, that the purpose of inspec-tion is to ensure connecinspec-tion associated in coope-ratives help them in their business office.
11 Ie. Dz. U. of 2018. Pos. 1360, as amended. Referred to as the Code of Civil Procedure.
12 G. Tylec, Statut spółdzielni i jego kontrola w postępowaniu o wpis do Krajowego Rejestru Sądowego, Warsaw 2012, p. 21.
13 Ie. Dz. U. of 2018. Pos. 300, as amended. 14 Dz. U. of 2017. Pos. 1957, as amended.
According to the above compounds guideline revision may only act on behalf of and for the
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benefit of its members . According to the Article 240 § 3 pr. sp. described the tasks of the organi-zation audit of cooperatives in terms of its mem-bers. These include: 1)the inspection of coope-rative members; 2) running in favor of affiliated cooperatives instructional activities, counseling, cultural, educational, training and publishing; 3) represent the interests of affiliated cooperati-ves to bodies of state administration and local government bodies; 4) representing affiliated cooperatives abroad; 5) the initiation and deve-lopment of cooperation and interaction between cooperatives with research institutions; 6) per-form other tasks provided for in this Act and the Statute.
The provision of Article 240 § 3 pr. sp. did not exhaust all legal and statutory tasks of an audit union. This adjustment includes only the basic tasks of the analyzed institution and can not be read as numerus clausus tasks relationship.
The legislator normalized in the provi-sions of the cooperative relationship many powers to audit its affiliated cooperatives and cooperative duties to such compounds. It is worth to indicate, in particular: 1) the rights and obligations connected with the deliberations of the General Assembly, including the right of union representatives to participate revision in which the cooperative is affiliated, in a general meeting (Article 36 § 8pr. sp.); 2) the right to convene a general meeting (Article 39 § 5 pr. sp.); 3) obligation to notify the audit relationship with time, place and agenda of the general meeting (Article 40 § 1 pr. sp.); 4) disclosure of the minutes of the general meeting for union representatives Reform (Article 41 § 4 pr. sp.); 5) the power
16 connection decommissioning cooperative . With grim determination it should be emphasized that the fundamental task of any revision due to its cooperative members is to carry out their vetting.
Vetting is regulated in Article 91–93 pr. sp. These rules define the purpose and principles of the vetting, lustrators, duties, rules for drawing up the minutes of the inspection and the cost of
17 vetting .
According to the available 91 § 1 pr. sp. each cooperative is obliged at least once every three years, and during the stay in liquidation annually undergo lustration study legality, efficiency and reliability of the whole operation. Vetting covers the period from the previous lustration, while housing cooperatives during the building of residential buildings and no settle-ment of the cost of construction of these buil-dings, as well as cooperatives in liquidation vetting process is carried out annually. Vetting may also be carried out at the request of the general meeting, the supervisory board or 1/5 of the members of the cooperative. The provision of Article 91 § 21 pr. sp. specifies the inspection purposes. These include: 1) to verify compliance by the cooperative law and the provisions of the Statute; 2) to examine the compliance of the cooperative conduct of its activities in the interest of all members; 3) control of economy, useful-ness and reliability of the implementation of the cooperative its economic, social and cultural; 4) indicating the members of the irregularities in the activities of the cooperative bodies; 5) provi-ding the organizational and instructional assistan-ce in removing irregularities and streamline acti-vities of the cooperative.
Vetting compound inspection is perfor-med in which the cooperative is associated. Cooperatives that are not members of the audit relationship, commission paid to carry out the inspection chosen to audit the union or the National Cooperative Council. In this case, the vetting should perform audit union jurisdiction over the object of the cooperative. Vetting carried inspector appointed by the audit union in which the cooperative is affiliated, or the National Council of Cooperatives. Inspector appointed to conduct the vetting is required, pursuant to Article 92 § 1 pr. sp., a written notice to the members of the supervisory board and the board of the cooperative to begin vetting. Inspector to correctly carry out the whole process is equipped by the regulator in accordance with 92 § 2 pr. sp., the power to inspect the books and documents in any lustration cooperatives and direct checking her assets, and cooperative bodies and its employees are obliged to provide explanations
15 H. Cioch, Prawo..., op. cit., p. 112.
16 Prawo spółdzielcze. Komentarz, ed. K. Osajda, ed. 2, the electronic version, Legalis 2018 [accessed 19 October 2018].
and requested him any assistance. Inspector of actions performed draw up a protocol, which shall be submitted to the supervisory board and management board of the cooperative. The protocol by the inspector has the power of an official document.
Bodies and union organization of inspection The organizational structure of the com-pounds of revision is analogous to the structure
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of the associated cooperative . The compounds of the inspection as a legal act through their bodies. The structure of the connection bodies are: general meeting (in practice, often called the congress delegates or representatives of the exit), the supervisory board and the management. Convening, debating, passing resolutions, as well as the competences of these bodies are the same as in the case of cooperative bodies and belongs to them, apply the provisions of the Cooperatives Act relating to cooperatives. Resolutions adopted by the organs of trade inspection de lege lata can be appealed in court.
Union members have a similar inspec-tion rights and obligainspec-tions as members of an organizational nature of the cooperative. The rights and obligations of the situation is different, 19 which results from the nature of an audit union . Cooperative acceding to the audit must make a mandatory entrance fee, the amount of which is determined by the provisions of the statute. The duties of the property must also include deposi-ting contributions by cooperatives to perform tasks of an audit union. Membership in the association ceases in the event of loss of legal personality by the cooperative affiliated to it, as well as by plotting, exclusion and voluntary withdrawal from the compound. The statute of each compound revision must precisely define the conditions and procedure of dealing with termination of membership. The doctrine rightly pointed out that in proceedings related to the deletion or exclusion of union members revision from the provisions of the Cooperatives Act con-cerning the conduct of the appeal proceedings
20 and inter-cooperative .
Compounds of inspection may be bined and may also share. In the above com-pounds inspection organizational changes by
analogy you should use the provisions of Articles
96–102 pr. sp. on mergers and cooperative Artic-les 108–112 pr. sp. relating to the distribution cooperative. Behind this reasoning speaks regu-lation Article 257 § 1 pr. sp. Provisions for merger and division cooperative contain complex regula-tion and are mandatory terms. According to the above inspection compound may at any time connect to another compound of the revision based on the resolutions of the general assembly of the merging of the compounds 2/3 majority. Such resolutions must include designation of a compound revision accepting adoption of the statute as a basis for further business relationship, as well as the date of the call. The statute does not prejudice any property rights acquired members. The combination of the compounds revisions take effect only upon entry into the National Court Register.
As for the distribution relationship audit, it is worth noting that it may be divided on the basis of general meeting resolution, adopted by a simple majority of votes in such a way that a separate part of the new relationship is created revision. Content of the resolution of the division must include the following: 1) the current revision compound and a compound formed as a result of the division; 2) the list of members for passing the emerging relationship audit; 3) appro-val of the financial statement audit and relation-ship sharing plan assets, rights and obligations, and 4) the date of the distribution of audit rela-tionship. The board should audit the emerging relationship within 14 days from the date of his election request to enter due to the revision of the National Court Register, management and audit existing relationship – the request for entry in the register of the division.
Compounds of inspection, as coopera-tives may be liquidated. According to the doctrine of the legal basis for the liquidation of the cooperative is the occurrence of a condition or the occurrence of a specific event, which by law is
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or may be the cause of its liquidation . Based on the analysis of the events preceding the liquida-tion of the legal relaliquida-tionship, we can distinguish the liquidation audit: statutory, voluntary and forced. Inspection Association ex lege goes into liquidation as a result of a decrease in the number 18 H. Cioch, Prawo..., op. cit., p. 116.
19 Ibidem, p. 117. 20 Ibidem.
of members below specified in the statute or in Article 240 § 1 pr. sp. In this case we deconta-minate from the dismantling statutory. Inspec-tion AssociaInspec-tion may also be subject to liquida-tion by a resoluliquida-tion of the general meeting of representatives (Congress) adopted by a simple majority of votes. This type of liquidation is called voluntary liquidation and is based on two fundamental principles of co-operative – the vo-luntary establishment and liquidation of coope-ratives, as well as self-government, as interpreted by members of the right to decide the most
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important issues . Compulsory liquidation on the basis of a court ruling issued at the request of the National Cooperative Council in the event that your business relationship flagrantly violates the law or the provisions of the statute. Manda-tory element of the proposal of the National Cooperative Council is to identify the liquidator revision of this compound. This obligation arises from Article 242 § 3, 242 § 2 pr. sp. that in the event of liquidation, statutory and voluntary liquidation relationship management audit of this compound must immediately notify the court of registration, the National Cooperative Council and appoint a liquidator. A liquidator might be the last member of the board.