Guidance on individual action of responsibility of the administrator

 responsabilidad administrador

Members and others may require managers of a company liable for damages suffered by exercising the action envisaged in Article 236 LSC

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In this entry, we review the Individual liability action administrator of a corporation.

 

What it is the individual action of responsibility of the administrator?

Individual liability action the administrator is regulated in our legal system as a special mode of action tort, regarding the planned generic in Article 1902 CCivil.

It has a regulation itself, endowing individualization, autonomy and substantiation in the company law. It is a responsibility for organic illegal, namely, one that can be derived with the performance of the duties of the office of director of a company, as a social body of the same.

This action was regulated for the first time in our legal system Article 81 de la Ley de Sociedades Anónimas de 1951, passing of 1989, the Transparency Law, the Bankruptcy Act or the current Capital Companies Act.

Currently it stated in the article 236.1 LSC, relative to article 241 of the Corporations Act (LSC, onwards):

Article 236 Budgets and subjective extension of liability

1. Administrators respond to society, against partners and corporate creditors against, the damage they cause by acts or omissions contrary to law or the statutes or in breach of the duties inherent in the office, long as I was involved fraud or negligence.

Article 241 Action Individual Responsibility

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

It is, therefore, an action for damages intention, having standing to exercise it, both partners and third, against acts performed by company administrators in the performance of their duties, which directly affects its interests.

For the administrator to perform unlawful conduct within the framework of its obligations as such, comes this individual action Responsibility. However, if it is a behavior manager out of his duties as such, It will be articulated in the field of general civil law.

It's the law, in this case, which it establishes the existence of its own responsibility for the administrator that individualizes against tort liability. If in the course of their duties, an administrator makes a decision that harms directly to a third party, must respond against it, while, if it harms society, It is operating in the field of social responsibility action.

To be able to demand individual responsibility to the social administrator, the claims are to be identified personally in breach of its duty of care or diligence

What is the action of individual responsibility of managers?

The liability of directors of capital companies may range from corporate or commercial area, to tax matters, labor or criminal.

When an administrator damages directly equity partners or third parties, directly damaging their interests carry out acts in the performance of their duties, You can be held liable and forced to respond with their personal assets from the debts of the company.

Individual action is different from social action. Action by individual responsibility, partners and third parties whose heritage has been damaged by performing an unlawful act by the director of the company, They can get a compensation, that reparations are the property damage they suffered. For its legitimacy will be required to be debt holders beatable, liquid and enforceable.

Ultimately, the individual action of responsibility for the manager is a direct and main action, accorded, both shareholders, as partners or third parties, so they can rebuild their personal assets, after be harmed directly by the acts of the directors of the company.

Procedural requirements of individual action for liability of directors

Of the majority doctrine the article 135 of the Law of Corporations (now replaced by article 241 LSC) and case law have shaped the requirements to compete successfully in order to exercise individual action. They include, among other, on STS 23.05.2014, nº 242 

For Supreme Court,  the requirements of individual ation of liability:  

  1. That has occurred daño the partner, to the creditor, or to third parties, so directly damaging your personal assets.
  2. That have occurred negligent acts or omissions by administrators for not acting as an entrepreneur orderly and loyal representative.
  3. That the act is illegal or unlawful, within the meaning of Article 236 LSC.
  4. That exists relación de causalidad between the conduct and the damage done.

It has to prove the existence of damage, and, above all, the causal link between the act and the damage, the corresponding burden of proof exercising the action.

Frequent cases of individual action liability of directors

In this paragraph we will analyze the most recent judgments of the Supreme Court, to know what the most common behaviors of managers in the performance of their duties, they can determine their liability to third parties. The individuaa action can not be held responsible indiscriminately, since this would be a violation of basic principles of capital companies, as, for example, independent legal personality, its financial autonomy and direct responsibility towards debts.

It must be assumed that the administrator must perform his acts fulfilling the objective duty of care which derives from office, and others established legally and statutorily. The breach of any duty, directly by damaging their performances to third parties, it may take to respond directly for committing negligence in the performance of their duties.   

Law 57/1968, of 27 July, to perceive the amounts anticipated in the construction and sale of homes

The first time the Supreme Court has ruled on the viability of individual action of responsibility for social managers for "lack of establishment of the necessary guarantees to respond to the restitution of the amounts paid on account to the developer company by buyers housing "was in the STS 23 May 2014, nº 237/2014 (reiterated by the STS 3.03.2016).

The question to be resolved in this case was whether there was failure of the development company of the obligation to guarantee the buyer the amounts paid in advance in the event of termination of the contract of sale, because it is a legal requirement in the field of their performance. Specifically, if the failure could be attributed to the directors of the company, to hold them accountable individual title and solidarity with society.

The Law 57/1968. also be imperative, picked up a set of rules for ensure "both real and effective implementation of the anticipated economic means by acquirers and future users to build their home as their return on the assumption that it is not put into effect".

The article 1 thereof, demanded that, Any natural or legal person who promote housing construction (…) and purporting to obtain cash advances assignees before starting construction or during, must meet a number of conditions:

  1. Guarantee the repayment of the amounts paid plus six percent annual interest, through insurance contract Underwriter awarded with registered and licensed in the Register of the General Department of Insurance or joint and several guarantee provided by entity registered in the Register of Banks and Bankers, or Savings, in the event that construction does not start or does not reach a successful conclusion for any reason within the period agreed.”
  2. Perceiving the amounts advanced by acquirers through a bank or savings bank, in which they shall deposited in a special account, with separation of any other kind of funds belonging to the promoter and that only you can arrange for visits resulting from the construction of housing. For opening these accounts or deposits or savings bank savings bank, under its responsibility, require assurance that the above condition is concerned. "

One, for some reason it was, It would not have been effective housing delivery, or expiration of the term of commencement of works, the buyer had the same right to choose, as permitted by law, specifically Article 3, "Between termination of the contract with repayment of the amounts paid on account, increased by six percent annual interest, or grant the extension assignor, which shall be recorded in an endorsement of the contract awarded, specifying the new period with the date of completion of construction and delivery of housing. "

In that judgment,  the development company had not delivered on time housing, and he had not complied with the obligations legally established to guarantee the repayment of amounts paid on account.

In this case, the Supreme Court He charged directly responsible for the failure administrator of the promoter for failing to provide to the homebuyer amounts paid in advance when he decided to terminate the contract of sale, prospering individual action for the following reasons:

  • legal breach, omissive behavior by administrator.
  • The administrator is the social organ development company.
  • The unlawful conduct, culpably negligent, can cause damage to the purchaser.
  • The damage is straightforward because the buyer is a third party who hires.
  • There is a causal link between the conduct contrary to the law and direct damage to the buyer.

He violated a law that was mandatory: Although the administrators are not the guarantors of social debts, their conduct was imputable to them, and an individual responsibility was generated. His failure occurred directly, damage to the home buyer who could not exercise their right to opt for the resolution of the contract and recover the amounts paid on account.

Accounting society does not reflect the real financial situation

This case is included in the STS 22 December 2014, nº 737: individual action is brought by creditors of the company. There is a failure by managers, since it was not being properly accounting or preparation of the annual accounts, It is classified as serious non-compliance. In fact, is the article 34.2 Crcom which states that "The annual accounts must be drawn up clearly and true and fair view of the assets, financial position and results of the company, in accordance with the laws. On that matter, in accounting for transactions shall address its economic reality and not just their legal form. "

The Supreme Court ruled that the fact partially pay claims arising with various creditors, directly harmed the personal assets of the same. This partial non-payment stems from the realization of an unlawful act by the directors of the company, since the accounting reflected an unrealistic financial situation of the company.

STS states that "the differences, errors or mismatches in the accounts of a company in the commercial register published for general information, themselves are not necessarily suitable, causally adequate, for individual action against its directors ". However, in this case,  which was reflected in the accounts was a situation of solvency of the company that caused a guarantee of confidence by creditors was the entirely false, without knowing the difficulty they would face to collect credits.

In fact, individual action thrives because it is considered by the High Court that there relación de causalidad between the unlawful conduct of managers of falsifying company accounts, and the attitude of creditors when assessing the risk of default on their loans.

The fact closing a business (also called "persianazo")

On STS 13.07.2016, nº 472/2016, also it discussed Single action liability of directors in the case of the de facto closure of a business.

There was a fulfill the responsibilities of dissolution and liquidation, facto closing of the company by the administrator, without paying the outstanding credit to the creditor. Also failed to comply with the obligation to pay social taxes, nor the obligation to present in the commercial register of annual accounts.

In light of case law on individual responsibility action, TS "Comes the understanding that individual action of liability of directors" is a special application of tort integrated into a corporate framework, which it has a regulation itself, and, present day, It is Article 241 LSC, that specializes regarding the generic under Article 1902 CCivil. Se trata de una responsabilidad porilícito orgánico”, understood as incurred in the performance of their duties of office ' ".

To impute this action, It has to prove occurrence of actual damage. In general, the Supreme Court reiterates, as it did in the STS 18.04.2016, nº 253/2016, "that It can not be used indiscriminately to the path of individual directors' liability for any breach of contract. Otherwise would contradict the fundamental principles of capital companies, such as the legal personality of the same, its financial autonomy and exclusive responsibility for corporate debts, or forget the principle that contracts take effect only between the parties that the grant, as proclaimed in Article 1257 CCivil.”

"That can be attributed to the administering non-payment of social debt, as damage caused directly to the lending company, not enough to say that the enforceability of the debt payment was delayed by endorsement of promissory notes, while the company was insolvent and the administrator failed to comply with the duty to liquidate in an orderly society. clearer breach of a legal duty to which he can so directly tying unpaid social debt must exist. " (STS 18.04.2016, nº 253/2016).

In this particular case, it was proved the damage, since there is a default on debts incurred by the company to the creditor, It is generated by a negligent action by the administrator. The fact that closed "de facto" society, ceasing social activity constituting the corporate purpose of the same, without having canceled the outstanding credit, without carrying out the dissolution or liquidation of the company, knowing the insolvency, It was a clear breach of the legal requirements.

Referring back to STS 18.04.2016, nº 253/2016, the Supreme Court clarified that "The law, when dear administrators have attributed joint and several liability for non-payment of social debts in case of breach of the duty to promote the dissolution of society, It has restricted this responsibility to subsequent loans to the emergence of the cause of dissolution (Article 367 LSC).”

Procedural aspects of individual liability action

Jurisdiction and competence

This is la Ley Orgánica 8/2003, of 9 July, Bankruptcy Reform, which by appropriate modification of the Organic law of judicial power (new article 86 ter), created the Commercial Courts, with the intention of concentrating in a single court matters they are considered of particular importance for the assets of the debtor. Through Second Final Provision of the Act, the commercial courts became operational from the 1 September 2004.

This reform, went on to hold the competition objective of la Single action liability of directors, the Commercial Courts, the, if, Courts of First Instance competition in the commercial field, as it established the Article 86.2.a) ter of the Organic Law of the Judiciary (LOPJ, onwards).

As regards the territorial jurisdiction¸ nothing is regulated to respect the Capital Companies Act, so that, They shall be governed by the express or tacit submission of the parties, as it established the article 54 of the Civil Procedure Act, With respect to dispositive of the rules on territorial jurisdiction.

In the absence of submission, either express or tacit, We will go to the regulations of the articles 50 and 51 the Lecivil, With respect to General jurisdiction of individuals, of legal persons and entities without personality, territorially competent being the domicile of the defendant.

Procedure

Also in this sense is nothing regulated by the Companies Act Capital, so we must go to the LECivil, specifically, a los articles 399 ff. of the procedure for Ordinary trial, and the articles 437 ff. Should be before the procedure Verbal judgment. This will depend stand before one or the other procedure will depend on the subject of the claim amount. There is no specialty for being commercial in processing.

Joinder: the individual action of responsibility and action claim against the company amount

In court practice, It is common to find that, on bringing an action for payment against a corporation, also exercise the individual action of responsibility of the administrators of the same, to considering the social heritage may be insufficient to cover the claims of the plaintiff. Doubt it is generated, If both actions, They can accumulate, and if so, to which jurisdiction will have to exercise. That question has been clarified by the judgment of the Plenum of the 1st Chamber of the Supreme Court No.. 539/2012, of 10 September, recurso núm. 2149/2009, which he stated that the action of monetary claim against a business entity and action directors' liability for the debts of the business entity may be accumulated for processing and decision in the same process, and that the jurisdiction of the shares corresponds accumulated in these cases to the Commercial Courts. This doctrine was repeated by the STS 23 May 2013 and by the order of the Supreme Court 9 September 2014.  

Unlike the social action Article 238 LSC

On the one hand, while social action It is regulated in the article 238 LSC, being born, as expressing STS 16.04.2018 with the "Existence of an active or passive behavior developed by administrators, that it is attributable to the board as such, that the conduct of the administrator deserves the qualification of unlawful, for breaking the law, statutes or not conform to the standard or pattern of diligence required of a businessman and a loyal representative ordered, that society suffers damage and that there is a causal link between the actions of the administrator and damage. "Social action aims to redress the assets of the company itself. Unlike previous, the individual action which regulates the article 241 LSC, It seeks compensation for damages suffered by the personal assets of a partner, or a third party.

Burden of proof: each party must try

On STS 13 July 2016, nº 472/2016, the correct application of the rules of the burden of proof is collected in Individual liability action administrator.

"According to paragraph 2 theart. 217  LEC, "Corresponds to the actor (…) the burden of proving the accuracy of the facts which ordinarily detached, according to legal rules applicable to them are, the legal effect corresponding to the claims in the application…». And in accordance with paragraph 7, this rule may stop operating if the court believes that the availability and ease probation was for the defendant. "

"In order to attribute responsibility to the administrator, must be a Failure of a clearer legal duty. If there is such argumentative effort and, to the margin of accreditation of the facts on which it is based, results logic, if they become accredited, the responsibility of the administrator must be attributed to that administrator the burden of proof of those facts for which evidence is more easily. "

Ultimately, It has to prove the existence of damage, fault and causation of illicit administrator of society, corresponding to the applicant responsibility budgets. 

Limitation periods: retroactivity and computing Article 241 to LSC

The limitation period for exercising the individual action of liability of directors stated in the article 241 to LSC, which states that "The liability action against the directors, sea social o individual, will be extinguished after four years from the day when he could have exercised. "

The dies a quo start running, Not since the cessation of the administrator, but from the day he could exercise, can identify with time of production of the damage.

There is case law that clarifies the dies a quoas, for example, the STS 6 March 2003, stating that "Action is not responsible for debt, but damage resarcitoria, so do not be born (action is born, article 1969 CC) the mere breach contractual, but with the production of the damage. The dies a quo is not seeking the defendants but when the injured party (social creditor) He knew the damage. "

also STS 26 October 2007 is pronounced, stating that "The starting day for the exercise of tort action is one that could be exercised to the actor have the factual and legal elements appropriate to establish a situation of full capacity to litigate, pues activity while she does not have a prescription. "

For his part,  the STS 31 January 2001, states "Forecasting article 1969 CCivil, which refers to the day when the shares were exercised, and this is subject to its nature and characteristics that determine the action born when the right can be realized that it is acting, implying that have full knowledge of the result motivates action, es decir desde que el perjudicadolo supo” (STS 21.02.1974), without necessarily resulting clarified the required amount of liquid damage (…).”

Finally, "It reiterated the jurisprudential doctrine that for a party who alleges the test prescription dies a quo, so that the lack of specificity and the indeterminacy of the initial day, or doubts may arise on the matter should not be resolved in principle against the party in whose favor playing the right claimed. " (STS 10.03.1989; 3.12.1993 and 9.03.2006).”

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