Legitymacja czynna spółki kapitałowej w organizacji do udzielenia prokury

The analysis of the legal regulations concerning the institution of procuration shows that capital companies in organisation may not use this legal instrument. These entities, bestowed by the legislator with the legal capacity and possibility to acquire the entrepreneur’s status, do not fulfil, however, the second criterion established in Art. 1091 § 1 of the Civil Code, i.e. they are not subject to the requirement of entry into the entrepreneurs’ register. Thus, capital companies in organisation do not have an active right to grant procuration. This conclusion is strictly correlated with the legal shape of procuration itself, since its obligatory entry into the register – as an element of protection of the third parties performing a legal action with the empowering party represented by the proxy – is the essence of this legal relation. Allowing for the possibility for capital companies in organisation to grant procuration would mean creating a new type of procuration – “non-registered procuration” –which is not grounded in legal regulations and which distorts the very nature of the institution of procuration in its legal shape as applicable by now.