Refusal to register a company in the National Court Register - what should be done?

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The law of commercial companies requires the mandatory registration of a company in order for it to function legally in legal and economic transactions. Registration courts are very scrupulous when it comes to checking applications and documentation submitted by founders of companies - if they are incomplete, the company may be refused registration. In this case, the party has the right to lodge a complaint.

Company formation

The desire to create a commercial law company requires not only an idea for your own business, but above all the conclusion of a correct contract or statute, the content of which will be in accordance with applicable regulations. In the case of capital companies (limited liability company and joint-stock company), it is additionally necessary to raise share capital of an appropriate amount. The mere conclusion of a company agreement or statute is not sufficient for it to operate on the market, although in the case of a limited liability company and a joint-stock company for the first 6 months they may operate in the so-called form in the organization without having to register them in the National Court Register.

Correct registration of the company in the National Court Register is a necessary condition for this entity to effectively acquire rights and incur liabilities. Sooner or later, the registration must be made, otherwise the established company will be simply illegal.

Refusal to register a company

Registration courts (commercial courts, KRS departments) scrupulously approach the issue of examining applications for registration of new companies. In practice, this means that they very carefully check the correctness of concluded contracts and statutes, as well as submitted registration forms and paid court fees. If they notice any error, they will call the applicant to correct it within 7 days from the date of delivery of the relevant letter. If the error is not corrected, the court will refuse to register the company in the National Court Register.

The most common errors that appear during the registration procedure include:

  • using the company name (name) of a company that already exists on the market or that confusingly resembles the company of another enterprise;

  • submitting a registration application to the wrong branch of the National Court Register (the competent court will be the district court in the vicinity of which the registered office of the company is located - e.g. if the seat of the company is in Poznań, the competent court will be the District Court Commercial Department of the National Court Register in Poznań);

  • indication of defective representation of the company in the contract or statute;

  • prohibited subject of the company's activity - inconsistent with the Polish Classification of Activities;

  • the registration application was submitted after the deadline - the applicant must absolutely register the company within 6 months from the date of the company's articles of association or statute;

  • inclusion in the company's management board of persons who are listed in the National Criminal Register.

Sometimes it happens that the refusal to register a company is unjustified. Court referendaries also make mistakes and sometimes accidentally refuse to recognize the company's registration documents when this should not be the case. If the applicant considers that the refusal to register his company is unjustified, he has the right to lodge a complaint against the relevant court decision, although he has a limited amount of time and must do so in a proper form.

Refusal to register a company - appeal

The refusal to register a company in the National Court Register unfortunately results in the loss of the court fee that has been paid in a given case.Of course, if the applicant did not pay the appropriate fee and it was the only reason for refusing to register a new company, we will not have to deal with such a situation at all.

The appeal against the refusal to register a company in the National Court Register is made in the form of an appeal. The applicant may appeal against the refusal in whole or in part - in practice, however, the vast majority of people decide to appeal against the entire judgment of the registry court. We should remember, however, that an appeal may only be made if the decision under appeal was issued by a court, not a court referendary.

In the vast majority of cases, the refusal to register a company in the National Court Register is made by court referendaries, which means that the applicant must first appeal against referenda actions, before even thinking about the possibility of submitting an appeal in his case. If the referendary's decision is not challenged beforehand, the submission of the appeal will be erroneous and therefore ineffective.

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Complaint against the decision of the court referendary

If the refusal to register the company in the National Court Register was due to the actions of a referendary, the applicant must first file a complaint against the ruling. Pursuant to Art. 39822 of the Code of Civil Procedure, the complaint shall be lodged with the court in which the court referendary issued the judgment under appeal, within one week from the date of its delivery, and if a justification for this judgment was requested - from the date of its delivery with reasons. In the registration proceedings for entry in the National Court Register, in the event of a complaint being lodged against the decision of the court referendary ordering the entry, it shall remain in force until the complaint is examined by the district court examining the case as the court of first instance.

If the complaint is obviously justified, the court referendary who issued the judgment under appeal may, within one week from the date of filing the complaint, decide that the complaint is justified and, if necessary, issue a new judgment. There is a general complaint against a re-adjudication, but in the event of a complaint against it, we do not apply this regulation.

After the ruling of the court referendary loses its validity, the court recognizes the case as a court of first instance. If an appeal against a decision to a higher court is not possible due to the lack of such a court, the appeal is heard by the same court in a different composition. If the legal clerk of the court decides that the complaint is subject to rejection, he shall refer the case to the court. If it is found that there are no grounds for rejecting the complaint, the court may recognize the case immediately, if its condition allows it.

The Act does not provide for any specific formal requirements that the complaint should meet, hence it is assumed that it is sufficient to comply with the requirements for the pleading. In practice, this means that a complaint against a referendary should contain:

  • designation of the reference number of the case files;

  • the date and place where the complaint was made;

  • specification of the applicant's data;

  • the designation of the court to which the complaint is directed;

  • specification of the judgment under appeal (date of its issuance and details of the referendary who issued the judgment);

  • indication of whether we are appealing against the issued decision in whole or in part (in the latter case, please specify exactly which part of the decision is appealed against);

  • providing justification in which to demonstrate why we do not agree with the position of the court referendary and why, in our opinion, the company should be registered in the National Court Register;

  • the signature of the complainant;

  • list of attachments, including proof of payment of stamp duty.

A complaint against a decision of a court referendary who refused to enter a company in the National Court Register is subject to a fixed court fee in the amount of PLN 100. It can be paid directly to the bank account of the court to which the letter will be submitted, or by purchasing and then affixing court stamps with appropriate denominations on the complaint. The proof of payment must be attached to the submitted complaint. Of course, the party may apply for an exemption from court costs in the case - however, together with the complaint, the party must submit an appropriate application and a declaration of assets and income drawn up on a special form.

When examining the case, the court issues a decision in which the appealed decision and the entry made on its basis amends or maintains in force or repealed in whole or in part, and in this respect the application is dismissed or rejected, or the proceedings are discontinued. The complaint against the decision of the court clerk may therefore be allowed - then an appeal will not be necessary. In such cases, the requested entry is usually made in the National Court Register and there is no need to take any additional actions. However, if the complaint is unsuccessful, the complainant has the right to appeal.

Refusal to register a company - summary

A complaint against the refusal to register a company in the National Court Register is the first step to challenge the ruling, which is an obstacle to legalizing the new company. If, in a given case, the refusal has been issued in the form of a decision by a court clerk, the applicant has the option to lodge a complaint with the court where the clerk is in office. If the decision is upheld, the applicant has the option to appeal against the court order.