As of January 1, 2018, an amendment to the Commercial Code will come into force, introducing rules extending the liability of participants (shareholders) of business companies and members of statutory bodies.

Furthermore, the amendment imposes special liability on those persons who effectively carry out the powers of the statutory body of the company without being appointed to such a position. Such “factual” directors have the duties of a mandatary under a mandate agreement. In particular, they must act with professional care in accordance with the interests of the company and all of its participants. In the case of breach of these obligations, they have the same liability as the statutory body of the company.

The amendment further introduces the controlling person’s liability for the bankruptcy of the controlled person. The controlling person will be liable to the creditor of the controlled person for the damage caused by the bankruptcy of the controlled person if it has substantially contributed to the bankruptcy of the controlled person. The amendment exonerates the controlling person from liability if the controlling person proves that it acted on an informed basis and in good faith that the action taken was in the best interests of the controlled person.