The “cierre de hecho” conlleva la responsabilidad de los administradores

cierre de hecho

El Tribunal Supremo ha confirmado la responsabilidad de los administradores de una sociedad por su “cierre de hecho”, which prevented the applicant satisfy creditor the right to credit it held against society.

El fallo ha tenido lugar en la sentencia de la Sala Primera del Tribunal Supremo Nº 129/2017, of 27/02/2017, object of this new post. The background fact fueron los siguientes:

  1. Una sociedad cooperativa cuyos administradores eran D. Armando, D. Erasmus, D. Jorge and D. Romanian, a work executed pursuant to a contract. Because of this execution, the subjects involved in this work they were condemned jointly and severally to pay a certain amount.
  2. 06/07/2003, the insurer of the intervening architect in this work, Asemas Mutual Insurance and Reinsurance Fixed Premium, share assumed responsibility for their insured and also of the cooperative society to which we have been referring, amounting to 80.973,08€, and subsequently he repeated against it by that amount.
  3. However, the cooperative not only did not attend the repetition, sino que sus administradores la llevaron a una situación de “cierre de facto de la empresa”. Namely, the company suddenly stopped or significant property assets constarle, operating or commercial establishment, nor it was contactable at the registered office without my having open seat in a different location.

So things, Asemas Mutual Insurance and Reinsurance Fixed Premium (onwards, at position) formulated demand against D. Armando, D. Erasmus, D. Jorge and D. Romanian (onwards, administrators) exercising individual action Responsibility pretendiendo que se les condenara al pago de los antedichos 80.973,08€ primary, plus 25.727,25 € in interest from the date of payment for Asemas, beyond those accruing from the date of demand until full payment of principal.

That application was dismissed, for reasons related to prescription, by the Commercial Court No. 02 Madrid by its judgment of 30/03/2012. However, Asemas filed appeal before the Provincial Court of Madrid, that estimated by the sentence 20/06/2014. Against that judgment, and the embroidery, the defendants made resource managers cassation. In that application, essentially, They argued that the debt claimed, insofar as it was the cooperative, They could not be presented as damage that they were directly responsible, and breach of the duty of dissolution of the company is not sufficient cause to hold managers of a social debt default.

The Supreme Court, in the statement that we are commenting, it echoes the STS full 472/2016, of 13/07/2016, and highlights the following elements:

  • The individual action Responsibility exige la existencia de un direct damage to the third party who exercises (in this case, a creditor).
  • The directness of the damage caused to a creditor requires not occur reflecting damage suffered by the social heritage. Namely, the organic illegal incurred in the administrator must directly determine the credit dissatisfaction.
  • Breach of legal duties relating to the dissolution of the company and its liquidation, which it is where the defendants incurred administrators, is a serious organic illegal Administrator.
  • Such failure to generate direct liability against the creditor, It is necessary to prove that, having avoided (namely, the correct solution and settlement have been made), If it had been possible the creditor receive payment of your credit. In other words, It is necessary to prove that organic failure prevented the satisfaction of the creditor.

Por esos motivos, and because Asemas had sufficiently justified the relationship between your credit dissatisfaction and lack of dissolution and liquidation of the cooperative, the Supreme Court desestimó el recurso de casación interpuesto y confirmó la sentencia de la Audiencia Provincial de Madrid, which it estimated demand full and condemned administrators D. Armando, D. Erasmus, D. Jorge and D. Romanian a abonar a at position 80.973,08 € in principal more 25.727,25 € in interest, without prejudice to those accruing from the filing of the application.

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