APPLICATIONS OF THE LAW OF VOLUNTARY JURISDICTION IN COMMERCIAL MATTERS

APPLICATIONS OF THE LAW OF VOLUNTARY JURISDICTION IN COMMERCIAL MATTERS

On July 3, 2015, the long-awaited Voluntary Jurisdiction Law was published in the BOE, which in my opinion, and we will see if practice corroborates it, is one of the most important legislative measures that have been approved since 1978, which also modifies, among other laws, some of special importance, such as the Civil Code, the Commercial Code, the Notary Law, the Civil Procedure Law, the Capital Companies Law, the Exchange and Check Law, the Civil Registry Law or the Law of the Movable Mortgage and Press without Displacement.

The importance of this reform has been somewhat hidden, except in highly specialized circles, because the social debate has focused on the issue of notaries being able to marry and divorce, and whether this meant a privatization of Justice.

The Voluntary Jurisdiction Law is much more than that, because with it, a large number of proceedings that until now could only be carried out before the Judge, can be carried out, depending on the case, before a Notary, Registrar and Court Clerk, in matters of person, family, inheritance, obligations, real and commercial rights, that is to say, practically the entire spectrum that includes private law.

The Law will enter into force, in general, 20 days after its publication in the BOE, that is, on July 23, except for some specific cases, in which its application is delayed.

In this entry I am going to refer, in an illustrative way and not to all, to the files that may be of most interest to businessmen, whose main advantage of its use is that it will allow companies a faster response from the Administration than the that is currently being offered.

1.- EXHIBITION OF BOOKS OF PERSONS REQUIRED TO KEEP ACCOUNTS.

A) Regulation. Articles 112 and following of the Voluntary Jurisdiction Law. It must be based on a law that establishes it. By way of example, in the call for Meetings to approve the annual accounts, the partners exercising their right to information can examine and obtain the accounting documents formulated by the administrators to be submitted for approval by the General Meeting.

B) Competence. Commercial Court of the domicile of the person obliged to exhibit, or of the establishment to whose accounting the books and documents in question are referred to.

C) Postulation.– Legal assistance is required. Not attorney.

D) Legitimation.– Person empowered by virtue of the provision that allows the display of accounting books.

The existence of fines of up to 300 euros per day in case of refusal, obstruction or breach of the duty to collaborate, should serve as an incentive for compliance with the transparency obligations of administrators.

2.- CALL FOR GENERAL MEETINGS OF CAPITAL COMPANIES.

A) Regulation.

a) Background. Articles 169, 170 and 171 LSC.

If the Meeting and the ordinary general meeting or the general meetings provided for in the bylaws, were not called within the corresponding legal or statutory term, it may be, at the request of any partner, after hearing the administrators, by the Court Clerk or Registrar. company of the registered office.

b´) Procedure.- Articles 117 and following of the Voluntary Jurisdiction Law.

B) Competence. Court clerk or Mercantile Registrar of the registered office.

The regulation of the call by the Mercantile Registrar will require a reform of the Regulations of the Mercantile Registry.

C) Postulation.- A lawyer and solicitor are required, in case of processing before the Court Clerk.

D) Initiative The person to whom the law grants this right is entitled to make the request.

Utility.- Acceleration of the calls of Meetings, in case of non-compliance with the legal or statutory assumptions of the call.

3.- APPOINTMENT AND REVOCATION OF LIQUIDATOR, AUDITOR OR AUDITOR OF ANY ENTITY.

A) Regulation.

a) Fund.- Articles 255 and 266 LSC for auditors, Articles 377 and 380 LSC for liquidator and Articles 255 and 266 LSC for auditor.

b´) Procedure.- Articles 120 and following of the Voluntary Jurisdiction Law.

The regulation of the appointment by the Mercantile Registrar will require a reform of the Regulations of the Mercantile Registry.

B) Competence. Court clerk or Mercantile Registrar of the registered office

C) Postulation. Need a lawyer and solicitor

D) Initiative The person to whom the law grants this right is legitimated for the request

Profit.- Acceleration of deadlines.

4.- REDUCTION OF SHARE CAPITAL and AMORTIZATION OR DISPOSAL OF THE PARTICIPATIONS OR SHARES.

A) Regulation.

a) Fund.-  Articles 139 and 141 Capital Companies Law. These are cases of regularization of treasury stock.

b´) Procedure.- Article 124 of the Law of Voluntary Jurisdiction and Regulations of the Mercantile Registry.

The regulation of the actions of the Mercantile Registrar will require a reform of the Regulations of the Mercantile Registry.

B) Competence. Court clerk or Mercantile Registrar of the registered office

C) Postulation. Need a lawyer and solicitor

5.- JUDICIAL DISSOLUTION OF COMPANIES.

A) Regulation.

a) Background.

Article 366 LSC.- 1. If the meeting is not called, is not held, or does not adopt any of the agreements provided for in the previous article, any interested party may request the dissolution of the company before the commercial judge of the registered office. The request for judicial dissolution must be directed against the company. 2. The administrators are obliged to request the judicial dissolution of the company when the social agreement is contrary to the dissolution or cannot be achieved. The request must be made within a period of two months from the date scheduled for the meeting, when it has not been constituted, or from the day of the meeting, when the agreement would have been contrary to the dissolution or not. would have adopted

b´) Procedure.- Articles 112 and following of the Voluntary Jurisdiction Law

B) Competence. Commercial Court of the registered office.

C) Application. Need a lawyer and solicitor

D) Initiative.- Anyone interested

6.- OF THE CALL OF THE GENERAL ASSEMBLY OF BOND HOLDERS.

A) Regulation.

a) Background. It will be applied in all cases in which the laws allow requesting the convening of a general meeting of bondholders..

b´) Procedure.- Articles 129 and following of the Voluntary Jurisdiction Law

B) Competence. Commercial Court of the registered office of the issuing company

C) Application. Need a lawyer and solicitor

D) Initiative.- Anyone interested

7.- THEFT, THEFT, LOSS, DESTRUCTION OF SECURITIES (BILLS OF EXCHANGE, CHECKS OR PROMISSORY NOTES) OR SHARES OR REPRESENTATIONS OF PARTIES OF PARTNERS OF A COMPANY.

A) Regulation.

a) Fund.- Articles 547 to 566 CoC.

b´) Procedure.- Articles 132 and following of the Voluntary Jurisdiction Law and 78 of the Notary Law

B) Competence. Commercial Courts or Notaries

Mercantile courts of the place of payment in the case of a credit title, of the place of deposit in the case of deposit titles, or the place of domicile of the issuing entity when the titles were transferable securities, as appropriate.

Competent notary in place of payment in the case of a credit title, of the place of deposit in the case of deposit titles, or the place of domicile of the issuing entity when the titles were transferable securities, as appropriate.

C) Postulation. Need a lawyer and solicitor

D) Initiative.- The complainant

Utility.- Easier procedure.

8.- DEPOSIT OF MOVABLE PROPERTY, SECURITIES OR COMMERCIAL EFFECTS AND SALE OF DEPOSITED PROPERTY OR EFFECTS.

A) Regulation.

a) Fund.- Those cases in which, by legal provision or agreement, the deposit of movable property, securities or commercial effects proceeds, may be made before a Notary Public by means of a deposit certificate, in accordance with the provisions of this Law and its implementing regulations.

b´) Procedure.- Articles 112 and following of the Voluntary Jurisdiction Law

B) Competence. Exclusive notarial

C) Postulation.- Does not require the intervention of a lawyer or attorney

D) Initiative.- Depositor or depositary.

Utility.- Applicable to all those cases in which by agreement or law the deposit proceeds, the notarial action provides a procedure

9.- APPOINTMENT OF EXPERTS IN INSURANCE CONTRACTS.

A) Regulation.

a´) Fund.- Insurance contract law. "in the insurance contract, in accordance with its specific legislation, there is no agreement between the experts appointed by the insurer and the insured to determine the damage produced and those who do not agree with the appointment of a third party."

b´) Procedure.- Articles 136 and following of the Voluntary Jurisdiction Law and Articles 80 and following of the Notaries Law.

B) Competition.- Commercial and Notary Courts

Commercial court of the domicile of the insured

The Notary to whom the insured and the insurer mutually agree will be competent. In the absence of an agreement, any of those who have their residence in the place of domicile or habitual residence of the insured or where the object of the valuation is located, at the requester's choice. You can also choose a Notary from a district adjacent to the above

C) Postulation.- The intervention of a lawyer or solicitor is not mandatory.

D) Initiative.- Anyone interested.

10.- CLAIM FOR MONEY DEBTS NOT SATISFIED. Creation of executive titles.

A) Regulation.- Articles 70 and 71 Law of Notaries.

B) Competition.- Exclusive Notarial.

Notary public residing at the debtor's domicile consigned in the document proving the debt or documented evidence, or at the debtor's habitual residence or at the place where the debtor could be found, which requires the debtor to pay, when the debt , is accredited in the documentary form, which in the opinion of the Notary, is indubitable.

C) Application.- The assistance of a lawyer or solicitor is not necessary.

D) Initiative.- Creditor who claims payment of the debt. It is not applicable to debts that are based on a contract between a businessman or professional and a consumer or user; Those based on article 21 of the horizontal property law, not the Civil Code of Catalonia; Maintenance debts in which minors or persons with judicially modified capacity are interested, nor those that fall on unavailable materials or operations subject to judicial authorization; nor The claims in which a Public Administration is concerned.

11.- NOTARY AUCTIONS. Entry into force October 15, 2015.

A) Regulation.

thoroughly.- Alienation of assets and right at the request of the interested party outside of an enforcement procedure

b´) Procedure.- Articles 108 and following Law of Voluntary Jurisdiction and Articles 72 and following of the Law of Notaries.

B) – Courts of 1st Instance and Notary.

C) Application.- The assistance of a lawyer or solicitor is not necessary.

D) Initiative.- The person interested in the sale of goods.

12.- CONCILIATIONS

A) REGULATION.-

Thoroughly.- All assumptions to avoid a lawsuit, except for the following exceptions, which are unavailable:

a) Issues in which minors and persons with judicially modified capacity for the free administration of their assets are interested. b) Issues in which the State, the Autonomous Communities and other public Administrations, Corporations or Institutions of the same nature are interested. c) Trials on civil liability against Judges and Magistrates. d) In general, the agreements that are sought on matters not subject to transaction or commitment

B´) Procedure.- Articles 139 and following of the Voluntary Jurisdiction Law and Articles 81 and following of the Notaries Law.

B) Competition.- Judges, Court Clerks, Notaries and Registrars (these only for registration issues)

C) Application.- The assistance of a lawyer or solicitor is not necessary, except for matters

D) Initiative.- The person interested in conciliation.

 

IN SUCCESSIVE ENTRIES WE WILL DEVELOP THE SUBJECTS.

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