Art 367 lsc

Capital Companies Law legal news

Likewise, the resolution reinforces its legal grounds on the basis of article 87.6 of the Insolvency Law (also on article 1,822 of the Civil Code), recalling that the guarantor who pays the obligation of a debtor company declared in insolvency proceedings will obtain a classification of its credit as insolvency, not as a credit against the estate, since, although the payment has been made during the insolvency proceedings, the secured obligation arose at the time of the subscription of the guarantee, i.e. before the declaration of insolvency proceedings.

Art 241 lsc

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Article 236 of the Capital Companies Law

4. When there is no permanent delegation of powers of the board to one or more managing directors, all the provisions on duties and liability of the directors shall be applicable to the person, whatever his or her name may be, who is vested with powers of senior management of the company, without prejudice to the actions of the company based on his or her legal relationship with the company.

1. Liability action against the directors shall be brought by the company, subject to a resolution of the general meeting, which may be adopted at the request of any shareholder even if it is not on the agenda. The bylaws may not establish a majority other than the ordinary majority for the adoption of this resolution.

1. The shareholder or shareholders who individually or jointly hold a share that allows them to request the calling of the general meeting, may bring the action for liability in defense of the corporate interest when the administrators do not call the general meeting requested for this purpose, when the company does not bring it within a period of one month from the date of adoption of the corresponding resolution, or when the resolution has been contrary to the demand for liability.

Spanish Limited Liability Companies Law

These are cases that are outside the scope of application of Article 367 LSC. However, the corporate regulations contain in Chapter V of Title VI (Articles 236 to 241 bis) the regime of the liability of the administrator, which can serve as a legal basis and which, I insist, are hardly argued in the forensic field.

As for the methodology used, the project has been developed in three parts: the first chapter analyzes the regulation of the administrator’s liability on the basis of a dogmatic legal criterion, to apply it, in the second chapter, to the factual assumption raised: the non-payment of the social debt. The third part of the work presents the conclusions.

The first chapter begins with a brief commentary on the historical evolution of the regulation of the administrator’s liability, taking the codification period as a starting point. Both the Ccom. of 1829 and that of 1885, conceived the administrator as a representative of the shareholders’ meeting, so that there was no liability for the administrator who had acted following the instructions of the meeting. As from the LSA of 1951 and the LSL of 1953, the administrative body began to be endowed with a certain autonomy, attributing to it its own duties, beyond that of following the instructions of the shareholders’ meeting, although the liability of the administrator was only established when the breach of such duties had been due to gross negligence (i.e., in bad faith). Subsequently, the Law of Reform and Adaptation of 1989 tightened the liability regime, in such a way that the administrator could be held liable if he had breached the duties inherent to the position not in bad faith, but in an imprudent manner (slight negligence). This regime was consolidated in the LSA of 1989 and has remained in the current LSC of 2010.