Odstoupení jednatele v nevhodné době jej nezbaví odpovědnosti

The recent ruling by the High Court in Olomouc provides further significant confirmation of the judicial line regarding the liability of members of statutory bodies for the debts of a company under Section 68(1) of the Commercial Corporations Act, as effective until December 31, 2020. The court emphasized that members of the governing bodies bear responsibility not only for active conduct but also for inaction at a time when it is evident that the company is facing imminent insolvency (i.e., when it can be reasonably assumed, considering all circumstances, that the debtor will not be able to properly and timely fulfill a substantial part of its monetary obligations). If, in such a situation, they choose mere "flight," they may be liable to creditors for the company's debts.

The case involved two managing directors of a company that operated a restaurant and guesthouse. At the beginning of 2018, the company stopped paying rent and other operating expenses. When the landlord terminated the lease, the company lost its only source of income. Nevertheless, the directors took no measures to address the situation—they did not communicate with creditors, did not attempt to secure new operating premises, nor did they file for insolvency. Instead, they allowed themselves to be removed from their positions at a general meeting and sold their business shares to a company led by a man involved in dozens of dubious enterprises. Shortly thereafter, bankruptcy was declared on the company's assets, which were found to have no value.

The creditor, the landlord of the commercial premises, subsequently sought a court ruling to establish the liability of the former directors for the company's obligations. The directors defended themselves by claiming that their mother managed the business, that they were unaware of the insolvency, and that after transferring their shares, they had no influence over the company's operations. The High Court rejected their defense. It confirmed that the imminent insolvency occurred at the moment the lease was terminated, when the company lost its ability to generate income while having numerous overdue obligations. The directors must have been aware of this situation, yet they took no reasonable steps to address it. The court emphasized that the duty of care of a prudent manager does not imply success but rather an active and demonstrable effort to prevent losses or insolvency of the company. Passivity, formal performance of duties, or opportunistic resignation during a crisis constitutes a breach of this duty.

The High Court also noted that a claim under Section 68(1) of the Commercial Corporations Act aims to determine that members of the statutory body are liable for the company's obligations but does not impose a direct payment obligation. Therefore, the first-instance court exceeded the scope of the claim when it ordered the defendants to pay specific amounts. In this regard, the High Court annulled the judgment and halted the proceedings, while confirming the decision regarding the establishment of liability.

This ruling thus confirms that liability under Section 68(1) of the Commercial Corporations Act represents a real risk for members of statutory bodies who abandon their company to its fate. It is not a sanction for business failures but for passivity at a time when insolvency could be anticipated and when it was at least possible to attempt to prevent it. Courts will continue to assess the responsibility of statutory members based on their specific actions, documentation, and ability to respond to crises. For creditors, the decision reaffirms that Section 68 of the Commercial Corporations Act can be an effective means of protecting their rights, while for members of statutory bodies, it serves as a warning that resignation during a company's financial troubles is, according to established case law, a step that can very likely lead to significant liability arising from statutory obligations.

Authors:

Vladimír Petráček

Dominik Záliš