14 Keys to the individual action of liability of directors

debt claim













Individual action liability of directors may allow recovery of claims against a company even when it was insolvent.

Article 241 the Corporations Act sets:

"Excepted damages actions that may apply to partners and third parties for acts of managers who directly affecting the interests of those."

We have discussed the topic with entries 20 June 2014, of 14 April 2014, and 10 April 2014.

The brevity with which the regulation of this action is essential to establishing the revised criteria in the courts to examine the possibilities of each case.

So let's review the criteria being followed in this case the ninth of the Provincial Court of Valencia in their last statements section to have a better knowledge of the criteria used.

1.- We must spread between individual action Responsibility (articles 236 y ss LSC) and corporate liability action (241 LSC).

2.- They can exercise Collected Same demand.

3.- A single act constituting a violation may serve budget for the two actions.

4.- The individual action Responsibility requires fault, damage and causation: It is a subjective responsibility. The social responsibility action is objective in nature: causation does not require guilt or reproach, constituting a responsibility "ex lege", nature "quasi objective".

5.- The requirements individual liability action art. 241 LSC are (as STS 4 November 2010):

a) Unlawful act or omission.

b) Development of the act or omission by the administrator in manager concept.

c) Direct damage who demand.

d) Causal link between the act and the damage Administrator.

6.- The action must clearly established "No room the surprise effect, nor subject to the counterparty and the court to endeavor to ascertain the basis of what is actually intended in demand ". Must be provided when individual action is exerted, social action or both.

7.- It is imperative prove the causal link between the unlawful act or omission by the administrator and the debt default.

8.- It is preferable that there is a previous ruling against the company on the subject of the proceeding. This can lengthen the process and let us "off the grid" by the statute of limitations.

9.- If estoppel, It is possible no assessment of costs when debt is undoubted and the conduct of the debtor generates doubts (for example, when soon after generation of debt enters bankruptcy).

10.- The deadline for limitations is four years from the cessation of directorship (STS 14 April 2009 SAP and Valencia 14 March 2006). This is expressly laid down in Art.949 of C. Trade.

11.- The "Closing de facto" the "persianazo", with complete disregard to the interests of creditors, society unliquidated or subject to a bankruptcy proceeding is considered a gross negligence. (SAP Valencia 16 May 2012, 19 February 2014).

12.- Another example of negligent behavior is social Administrator (SAP Valencia 10 October 2011) the coordination of services for high economic value without adequate economic forecast or not fully aware of them effective.

13.- It causes exemption from the individual responsibility of managers, knowledge by the creditor of the economic situation of the debtor corporation (STS 20 July 2001): Concurrency in good faith in which demand is required. (SAP Valencia 19 May 2011).

14.- Administrators are not responsible for their subsequent removal credits, cessation and registration in the Register, no constitutive. But good faith concurring creditor, unable to meet this cessation but from the date of registration, the term shall begin to run from the entry in the Register.

In summary, there are legal channels to get the collection of a debt, even though the debtor has made a "de facto closure" or "persianazo".

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