Legitimación de la sociedad en liquidación

legitimacion sociedad disuelta

 

Una sociedad en liquidación mantiene su legitimación activa mientras no se cancele su hoja en el registro mercantil

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A company in liquidation has active and passive legitimization.

This is reflected in the sentence nº315 / 2018, of 28 May, the Audiencia Provincial de Almería.

Elasticsuelos SL sued because Ludonatura SL claimed to have delivered goods ordered by the defendant and it had not paid the bill. Ludonatura said that I received did not match the request and hence the return of bills.

The applicant was broken and even enrolled the liquidator in the BORME. But its leaf in the Companies Registry was not canceled.

Primera Instancia

The Court of First Instance No. 1 of Roquetas of sea gave judgment nº167 / 2016, of 14 November, estimating demand.

Ludonatura SL appealed the decision of first instance alleging lack of locus standi of the applicant, to be settled.

Provincial Court

He noted the Chamber that the Supreme Court in ruling No. 324/2017, of 24 May, He recognized "ability to join these societies, to understand that survives its legal personality, if only to meet the outstanding legal relations "; while ruling nº503 / 2012, of 25 July noted that "the time of the extinction of the social personality, It concludes that it should not sue a company that has no legal personality without trying to the same time as the recover”.

Thus, It can not deprive creditors the possibility of direct action against the company to claim the credit, since it is latent keeps the personality of the company provided the claim is related to the liquidation operations.

So, the Court confirmed the position of judgments 979/2011, of 27 December, and 220/2013, of 20 March and understood that the defendant company had the capacity to be part of the proceedings.

Although the doctrine mentioned is referred to passive standing to protect the rights of creditors, It applies equally to the standing.

The Court indicated that the STS 103/2013, of 28 February, the standing of a company admitted no activity, in the interests of injured. It was a case of housing cooperatives, where the legitimacy of this is supported in buyer interest, even assuming that it has sold to the promotion partners, as long as it is not dissolved would find at the time of filing of the application.

In this case, the fact that it had appointed liquidator could mean that society had disappeared from the legal traffic: It not expressly says that society has given the writing that article refers. 395 TRLSC and has proceeded to the cancellation of personal leaf in the Companies Register ( art. 396 LEC ).

“Therefore, It is not true that society has disappeared from the legal traffic, continues as a company in liquidation, being so the doctrine outlined earlier ruling applies to dissolved and extinct societies.”

Conclusion

A society in solution has legal standing until it has proceeded to the cancellation of personal leaf in the commercial register.

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