Acta Iuris Stetinensis (Jan 2019)
Podział majątku wspólnego małżonków-wspólników spółki jawnej i z ograniczoną odpowiedzialnością
Abstract
The purpose of the paper is to analyze the issue of the division of the joint property of spouses in the scope of individual components of this joint property – partnership rights due to participation in a registered partnership and shares in a limited liability company. While many studies have been written on the subject of partnership rights belonging to the property of spouses, the issue of the division of the spouses’ property including these rights is only beginning to appear in deliberations of few authors. An independent interpretation of the law as well as an analysis and critical look at the literature were adopted as the basic research method. The subject of the research involves a registered partnership (as a model partnership) and a limited liability company (because in many places regulations concerning a limited liability company and a jointstock company are similar). Although the issues of the division of the joint property of spouses are regulated by the provisions of the Family and Guardianship Code (Articles 45 and 46 FGC) and the Civil Code, one can find norms concerning the operation of companies and partnerships (Article 1 § 1 CCC) which modify general principles regarding the manner of division of joint property and are applied as a special rule. The civil division of a partnership share in a registered partnership (Article 62 CCC) and the division in kind of a single share in a capital company (Article 333 § 1 CCC) are not possible. It is the my belief – although I am aware that this is a controversial thesis – that it is possible to divide a partnership share in a general partnership. Restrictions on the method of the division are provided for in Articles 10, 1831, 3321 CCC, which, in my opinion, apply to the division of the joint property of spouses.
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