How to establish the liability for company debts administrators?

debt claim

 

 

 

 

 

 

 

 

 

 

 

 

 

For incurred in solution causes of administrators can be held liable for the debts.

The budget is the responsibility to require the attendance of any cause dissolution:

1.- Completion of the social object, inability to perform its social purpose or cessation of the corporate bodies.

2.- Inactivity for three consecutive years.

3.- Reduction of equity net less than half of the share capital, unless reduced to fit and provided it is not necessary to request the bankruptcy.

4.- Reduction of share capital below the minimum legal.

5.- Other reasons outlined in statutes.

If any of these conditions is given, social charges, should:

a) Convene a general meeting to adopt the dissolution agreement. The term is two months convene.

b) Apply through the dissolution of the Judge society if the dissolution agreement is not achieved at the general meeting.

If concur because of dissolution and situation insolvency, administrators are required to seek insolvency.

To ensure that managers are held liable for corporate debts (art. 367 of the Corporations Act), jurisprudence requires the concurrence of three elements:

1.- Having a credit against society.

2.- There is a cause dissolution of those listed above.

3.- Administrators they have not called the general meeting to dissolve or have not sought judicial dissolution or bankruptcy.

And on liability should make the following points:

a) No strict causation is required between the behavior of managers and damage: liability is a sanction with an objective.

b) There need be no "fault" by administrators.

c) The test that the company was not insolvent falls on charges.

There has been only in the case a certain "attenuation of this responsibility from the Supreme Court of 28-4-2006 makes an assessment of the behavior of managers and excluded liability in cases where the creditor did not act according to the principle of good faith, creditors had counterclaims or administrators do not have the ability to avoid damage.

When raising the claim is important to evaluate the legal strategy below, that the liability action art. 367 is considered quasi-automatic "operation legislation" or, while the action of individual responsibility Article 241 LSC does require proof of a causal link between the conduct of the directors and the damage caused.

In the event that there is the liability of directors Article 367, you can only claim for the debts subsequent to the occurrence of the cause of dissolution. It is presumed that the debts are later unless administrators prove otherwise.

This responsibility has jointly and severally among administrators and society.

The action must be brought before the commercial courts. They are entitled to bring proceedings both own society, as minority of members representing at least 5% the capital of the company and creditors. The main problem is that if demand estimation, compensation is intended to reinstate the assets of the company, not to pay the affected. The increase in the solvency of the company benefits both partners and creditors but does so in an indirect way. Thus, often, the best approach is the Individual liability action art. 241 LSC, that in this, other compensation that goes directly to the affected, bypassing the assets of the company. And, not meet the minimum required capital 5%.

Last, within prescription responsibility for this action is 4 years old. There are various interpretations of the time period begins to run this: since the cessation of managers, from the wrongful act, since the action could have been exercised, or is known from previous. Given this situation, the best thing is that in cases of liability for company debts managers, initiate action as soon as possible.

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