THE LIABILITY OF THE ADMINISTRATORS OF COMMERCIAL COMPANIES

THE LIABILITY OF THE ADMINISTRATORS OF COMMERCIAL COMPANIES

 

It may seem a bit daring to reduce the liability regime of the administrators of commercial companies to a few lines. It is not our intention, since we only want to call attention, as a result of the large number of questions that are formulated in the Notary, that the administrators of commercial companies can personally respond to some of the company debts, and not only the who formally hold that position, but also those who exercise it effectively despite not having a formal appointment. With this we already make a delimitation of the matter, since we are not going to refer to the responsibility of the administrators before the partners or the company, but only to those cases in which the administrators respond to third parties outside the company.

Such cases of responsibility towards third parties can be differentiated in the following sections:

A.- LIABILITY FOR COMPANY DEBTS.

In accordance with article 363.1.d) of the Capital Companies Law, the capital company must be dissolved due to losses that reduce the net worth to less than half of the share capital, unless it is increased or reduced by to a sufficient extent, and whenever it is not appropriate to request the declaration of bankruptcy.

In those cases in which a company has losses and the declaration of bankruptcy is not appropriate, the administrators must convene the general meeting within a period of two months to adopt the resolution of dissolution or remove its cause, establishing itself as an incentive, at the same time What sanction, for administrators, in accordance with article 367 of the Capital Companies Act, who will be jointly and severally liable for corporate obligations subsequent to the occurrence of the legal cause for dissolution, administrators who fail to comply with the obligation to convene the general meeting to adopt, where appropriate, the dissolution agreement, as well as the administrators who do not request judicial dissolution, within a period of two months from the date scheduled for the meeting, when it has not been held constituted, or from the day of the meeting, when the agreement would have been contrary to the dissolution.

However, in the case of real estate companies, it is in force on a temporary basis, which is not computed, for the exclusive purposes of whether or not to dissolve and liquidate a company, impairments in the value of Tangible Fixed Assets, Real Estate Investments and Stocks (remember that for a property developer Inventories are both land and work in progress or finished homes).

In order to send a message of tranquility, we want to draw attention to the fact that the administrators will not be liable for all company debts, but for those that are subsequent to the occurrence of the legal cause of dissolution.

B.- BANKRUPTCY LIABILITY.

When a company is in a state of insolvency, which according to the Bankruptcy Law, occurs when it cannot regularly comply with its enforceable obligations, its administrators must request the declaration of bankruptcy within two months following the date on which they had known or should know that state of insolvency.

Except for those cases in which it is justified that the company has started negotiations to reach a refinancing agreement or to obtain adhesions to an anticipated agreement proposal in the terms provided by law, the breach of the obligation to request the declaration of bankruptcy, implies the presumption of guilty contest

In those cases in which the bankruptcy is declared guilty, there is what is called the responsibility of the administrators for the deficit, insofar as the judge may condemn all or some of the administrators, liquidators, in law or in fact, or general representatives. , of the bankrupt legal person who had been declared persons affected by the qualification to the coverage, total or partial, of the deficit, that is to say, to pay those debts that have not been covered with the assets of the bankrupt company.

As we can see, there is an important consequence of the actions of the administrators, but it cannot strictly be said that they are responsible for all social debts.

C.- LABOR AND SOCIAL SECURITY RESPONSIBILITY.

Pursuant to article 15.3 of the General Social Security Law, natural or legal persons or entities without legal status are responsible for complying with the obligation to contribute and pay the other Social Security resources. appeal directly impose the obligation of their income and, in addition, those who be jointly responsible, subsidiaries or successors mortis causa of those, due to the occurrence of acts, omissions, business or legal acts that determine those responsibilities, in application of any norm with the rank of Law that refers to or does not expressly exclude Social Security obligations, or agreements or agreements not contrary to the laws.

This precept must be connected with what we have indicated in section A on liability for corporate debts, since it is the legal precept that recognizes the possibility of joint and several liability of administrators, which will make the aforementioned rule of the Social Security Law.

The joint and several liability of the administrators does not require any type of pronouncement from a court of civil order, since it will be declared and required, by the administration itself, either in the debt claim procedure itself or in the minutes that the inspection may draw up. of work, which must motivate the assumptions provided for in the capital companies law for the existence of joint and several liability of the administrator, that is, the existence of a cause of dissolution and the lack of convening of the Board of Partners to promote the dissolution of the company.

D.- LIABILITY BEFORE THE TAX ADMINISTRATION.

The debts that a company may have before the Public Treasury, if they were not paid, can be demanded from other people, as joint or subsidiary responsible.

For what is relevant to the subject we are dealing with, the subsidiaries responsible for the tax debts of a company are the de facto or legal administrators who, having committed tax offenses, have not carried out the necessary acts that are incumbent upon them to comply with the tax obligations and duties, have consented to non-compliance by those who depend on them or have adopted agreements that make possible the infractions.

The subsidiary liability of the directors of capital companies requires a prior declaration of bankruptcy by the main debtor and, where appropriate, the joint and several responsible parties, by virtue of which the Tax Administration will issue an act of declaration of liability, which will be notified to the subsidiary responsible party (in our case to the administrator), who may make the allegations that he deems pertinent and provide the necessary documentation.

E.- CRIMINAL LIABILITY OF ADMINISTRATORS.

The liability in the criminal field of the administrators in fact or in law of commercial companies, can derive from two ways: a) from their consideration as the main author of certain crimes, for which it is necessary to have the status of administrator and that they are a consequence, normally of actions contrary to the company itself or the partners. b) But also the administrators of the companies, by acting on behalf of a legal person, can become criminally responsible, when the crime is committed within the framework of a company and the special circumstances required by the criminal type do not concur in it, which if they concur in the entity on whose behalf they act.

The crimes in which an administrator can be considered the main perpetrator are the so-called corporate crimes, regulated in articles 290 et seq. of the Penal Code and which include the falsification of accounts, annual accounts or other documents that must reflect the legal or economic situation. of the entity, the imposition of abusive agreements, for their own profit or that of others, to the detriment of the other partners, the imposition of a harmful agreement adopted by a fictitious majority; the denial of a partner the exercise of the rights of information, participation in the management or control of the company's activity, or preferential subscription of shares recognized by Laws; the refusal to act by inspecting or supervisory persons, bodies or entities; unfair administration.

The crimes is that an administrator can answer for acting on behalf of the legal entity can be misappropriation; the uprising of assets and bankruptcy crimes; tax fraud; crimes related to the market and consumers; corruption between individuals; urban crimes; environmental crimes and documentary falsehoods.

F.- OTHER CASES OF LIABILITY.

The increasing intervention of the administration in economic activities has notably increased the rules on infractions and administrative sanctions, which may affect company administrators. These are actions by companies that operate in areas subject to special surveillance, such as financial and securities markets, banking and insurance, telecommunications, professional sports, in which non-compliance with the rules of conduct can also lead to sanctions. for administrators.

The best and almost only way to avoid responsibilities for the exercise of the position of administrator of companies is to fulfill the function with exemplary diligence and to know the consequences of having accepted the position. With everything that we have indicated, as we point out in all the entries, correct legal advice before making any decision is essential.

 

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