Napadení přeměny společnosti v insolvenčním řízení

In its decision under file number 29 ICdo 133/2020 dated September 30, 2022, the Supreme Court expressly acknowledged for the first time that a transformation of a business company, in this case a division by spin-off merger, can be challenged by a fraudulent conveyance action under the Insolvency Act. The transformation can thus be assessed as a deliberately detrimental legal act if its purpose or even just its anticipated consequence was to curtail the satisfaction of creditors. The Supreme Court emphasized that the determination of ineffectiveness does not lead to the annulment of the transformation itself. It remains legally valid and effective against third parties; however, its effects are not recognized in relation to the insolvency administrator and the debtor's creditors. As a result, the insolvency administrator can recover assets that were transferred to the legal successor as part of the successfully challenged transformation. This confirmed that the protection of creditors under the Transformation Act does not represent a closed system and may be supplemented by instruments of insolvency law.

The Supreme Court followed up on this decision with a ruling under file number 29 ICdo 73/2023 dated June 30, 2025, in which it assessed the same division at a later stage of the proceedings. The court further clarified how the debtor's intent to curtail the satisfaction of creditors should be examined. It is not decisive when the transformation project was prepared or published, but rather the moment it was approved by the general meeting, as it is at that time that the debtor expressed the will to adhere to the project.

The intent to curtail the satisfaction of creditors does not need to be directed at a specific person or tied to a claim that is already due or undisputed. It is sufficient that the debtor was aware that some debt exists or may arise and understood that the transformation could complicate the satisfaction of creditors. The existence of a prior final judgment apparently favorable to the debtor does not, by itself, mean that the debtor was in good faith unaware of the non-existence of a debt. The court therefore instructed lower instances to evaluate all relevant circumstances, including information about ongoing corrective proceedings or other disputes, and only on that basis to assess whether the intent to curtail the satisfaction of creditors was fulfilled.

The question of who is the addressee of the legal action is also crucial. The Supreme Court noted that a fraudulent conveyance action can also be directed against a person who was not a direct party to the transformation project but benefited from it, even indirectly. The decisive factor is the actual economic impact of the transformation—what assets and liabilities were transferred to the successor company, what values were moved within the group, and whether some creditors gained a better opportunity for satisfaction than others.

Both rulings represent a significant strengthening of the position of creditors and insolvency administrators. Transformations of business companies, especially within corporate structures or prior to insolvency, can no longer be viewed as legally secure and automatically untouchable transactions. Courts will examine their actual economic substance and impact on creditors. Therefore, companies should conduct insolvency and balance sheet tests when preparing transformation projects in complex cases, analyze potential creditor curtailment, and carefully document the decision-making process and economic rationale for the transaction. Transparent justification of actions and properly maintained internal documentation are the best defense against potential fraudulent conveyance actions.

The Supreme Court thus clearly indicates that mere formal compliance with the Transformation Act is insufficient. Transformations must also withstand scrutiny from the perspective of insolvency law and in the test of their impact on creditors. We assist our clients in addressing these aspects already at the structuring stage of the transformation, to ensure that transactions can withstand any potential insolvency review.

Authors:

Vladimír Petráček

Dominik Záliš