Firstly, it should be noted that in general company law, the legislator takes care not to classify the company as a contract, thereby not denying its contractual nature (Oswaldo Hundskopf). Thus, one would then have chosen only not to classify it normatively. And it is that this topic is the subject of deep and intense doctrinal debates.
In effect in society, the contract is presented in two moments (Walter Gutierrez Camacho): the first, (where much of the legislation and comparative doctrine are in agreement), the act of constitution, that is, the social pact or " partnership contract ”, and the second, as an organization (autonomous unilateral benefits).
The present work will be based on developing basically the first moment previously mentioned.
I. Legal nature
This contract legally exists as an act of constitution and as an organization. but not as a legal person because it has not met the requirement that the law requires for it to arise. Therefore, lacking legal personality, it will be irregular (Arts. 144 cc and 423 LGS).
II. Elements
a) Contributions from partners. b) That they form a common fund, with some autonomy. c) Obtain a monetary profit. d) Profit and loss support agreement. e) Organization.
III. Typicity
Our corporate system is closed, since partners are not allowed to “create” new corporate types, and can only choose between those proposed by the general company law (anonymous, collective, limited liability, commercial limited liability and civil).
IV. Cases in which there is no partnership contract
- They occur in the so-called legal society, that is, when the law forces the contracting of the doctrine, it qualifies the act as a forced contract.
- Art. 4 LGS "The plurality of partners is not required when the only partner is the state, or in other cases expressly indicated by law." An example of this case is the special purpose companies regulated by the stock market law, which in its Article 327 establishes “the following rules apply to the constitution of special purpose companies: a) plurality is not required for their constitution. of shareholders (…) ”.
V. Social Pact
Act by which two or more natural or legal persons (partners) agree to form a company and a series of provisions on it. It can be in verbal or written form.
- Content
a) Identification data of the founders b) Express expression of the will of the shareholders to constitute it. c) Appointment and identification data of the first administrators.
d) Bylaws.
A company may exist without prior express expression of the will of the shareholders to establish it, but not without a articles of incorporation.
SAW. Corporate Purpose (ART. 11 LGS)
Reason for which the company is constituted and refers to what the company is dedicated to, that is, the way it participates in the market.
VII. Social position
Document containing the rules by which the company is governed and is included in the articles of incorporation.
- Content
a) Name of the company. b) Description of the corporate purpose. c) Address of the company. d) Duration and start date of activities. e) Amount of capital, number of shares into which it is divided, the nominal value of each one of them and the amount paid for each subscribed share. f) When applicable, the class of shares into which the capital is divided. g) The regime of the organs of the company. h) Requirements for the increase, decrease of capital and modification of the articles of incorporation or the statute. i) The form and opportunity in which the social management and the result of each year must be submitted to the shareholders for approval. j) Rules for the distribution of profits. k) Regime for the dissolution and liquidation of the company.
VIII. Requirements and procedures for the legal constitution and legal status of the company
A) Meeting of the partners
To choose the company figure according to the general law of companies (limited liability company, limited partnership, commercial limited liability and civil).
B) Identification of the company name
This procedure is carried out to avoid that the name that has been chosen so that the company duplicates that of other companies. To do this, the following steps are followed:
1.- Propose names or company name for the company.
2.- Select the name.
The identification process of the company name is carried out in the public records office, upon payment of the fee.
C) Commercial search certificate and request for reservation of name or business name
After which that office delivers a search certificate (commercial search certificate) that indicates whether or not there is another company with that name. if not, the name proposed by you; if positive, you will have to choose another name and restart the process.
These procedures are carried out at the Lima, Callao and regional Registry Offices. The commercial search consists of verifying if there is no name equal or similar to that of the company to be incorporated. The company name reservation allows you to reserve a name for a period of 30 days. If you do not search for the name, your company may be subject to observations by the public registrar or third parties when you want to register it.
D) Procedures at INDECOPI
If you want to associate the name or company name to a certain product or service, you have to carry out an additional search in Indecopi. Once you are sure that there is no trade name or brand of product or service equal to or similar to yours, make the registration that will make you a brand owner for 10 years.
For registration you have to submit an application and make a payment. after 15 days they will give you a notice publication order that you will have to make effective in the Peruvian newspaper. after publication, the name can be observed within 30 days. if there are no problems, you can collect your registration in 15 days.
E) The minute
This document indicates the type of company, the statute that governs it, details of the owner or partners (name, address, marital status, nationality, occupation, DNI., RUC) and if the capital contribution is in assets or cash.
If it is in cash, you will have to present a copy of the minutes to open an account in the bank of your choice and deposit at least 25% of the share capital. In this case, the banking institution will give you a deposit slip. If the capital is in assets, you will have to attach to the minutes a detailed report of the belongings and their value in nuevos soles. once the minutes are ready, they have to be reviewed and signed by you, your partners or partner and the lawyer. The next step is to present it to the notary so that it can be elevated to a public deed.
F) Preparation of minutes (objectives, purposes, activities, statutes)
The minutes is the document that summarizes the statute of the company. The statute contains the rules that will govern society. These are regulated by law and must represent the will of its partners. To obtain the minutes, the following steps are followed:
- Personal data of the partners, names and surnames, DNI, RUC, occupation, marital status, address, name of the spouse, legal address of the company, contributions of the capital stock (cash capital in Cta. Cte. In the name of the company, minimum 25% paid, capital in goods, furniture and real estate supported by invoices).
- Bring together potential partners to discuss the content of the statute. You must have legal advice in order to know the requirements of the law and understand each of the terms of the commitment.
- When writing the minutes, the following should be considered:
a) Name, nationality, marital status, name of the spouse, occupation, DNI, military card of the partners if they were natural persons or the name or business name and address if they were legal persons, as well as the name of who or who the represent. b) The specific type of company that is incorporated. c) The name or company name. d) The object, clearly and precisely indicating the businesses and operations that constitute it. e) The duration and date on which operations begin. f) The amount of share capital. g) The contribution of each partner in money, in industry or in other goods, determining the value attributed to the latter and the criteria adopted for their appraisal. h) The registered office and, where appropriate, the places where the company agrees to establish branches.i) The domain of the administration and the powers of the administrators. j) The appointment of the first administrators or directors. k) The other legal agreements that, in the opinion of the contracting parties, are necessary or convenient for the organization and operation of the company.
- Obtaining the public deed testimony
The minute is elevated by the notary to public deed and after its registration in the public registers it will become a legal entity. The public deed is the legal document that the notary grants to attest to the formation of the company.
- To obtain the public deed you must:
a) Having made a bank deposit in a current account in the name of the company, for 25% of the capital declared in the minutes, when the contribution is monetary.
b) Pay the lawyer's mutual fund 1 x 1000 of the subscribed share capital. c) This payment is deposited in the current account of the bar association.
c) Take the minute, the receipts of the previous payments and a photocopy of the DNI of the representatives of the company to the notary so that the notary can prepare the testimony of constitution, that is, raise the minute to public deed.
d) The partners will appear at the notary to sign the public deed.
e) Inscription in legal person registers The notary takes the public deed to the public registers and in the legal person registry office it registers the company by filling in the corresponding form.
f) Once the public deed is registered, it becomes a legal entity.
g) Approve the minutes in a meeting of all the partners. h) Sign the minutes, with the signature of the lawyer and the representative of the partners.
G) Evidence of notarial constitution
The testimony of constitution is the legal document that the notary grants by which the constitution of the company is accredited.
To obtain the public deed, the following steps are followed:
- Make a bank deposit in a current account in the name of the company for 25% of the capital declared in the minutes. You can also contribute goods in addition to money.
- Pay the attorney's mutual fund 1 / 1,000 of the subscribed share capital. This payment is deposited in the current account of the bar association.
- Take to the notary the minute, the receipts of the previous payments and the photocopy of the electoral booklet of the representatives of the company so that the notary draws up the public deed of constitution.
This procedure takes twenty working days and the partners will go to the notary to sign and put their fingerprint.
H) Notary procedure
To obtain the public deed, deliver the following to the notary:
a) Company incorporation minute, original and simple copy. b) Proof of bank deposit to open the current account in the name of the company to be incorporated. c) Simple copy of the identity documents of the grantors and their spouses, in case of being married. d) Payment of notary fees.
I) Public Registry
Once the public deed of incorporation has been granted, the notary or the owner of the company must send it to public records for registration. the registrar has a period of 07 working days to qualify it. a payment will have to be made for registration fees, the amount of which will depend on the capital contributed by the partners and the number of representatives. In the event that the deed has been observed, the inconvenience will have to be remedied within 30 days of the notary parties being presented to public records.
J) Procedures at SUNAT
In the case of companies with legal personality, the representative or his attorney must present the simple copy of the public deed of incorporation, registered in public records, and attach the electricity, water or telephone bills of the fiscal domicile (where the society).
To enroll in the single taxpayer registry (RUC), you will fill out the corresponding forms according to the type of tax system in which you have decided to apply (single simplified system- RUS-, special system- RER- or general system). You also have to request authorization to print the payment vouchers, but you must first have the details of the printing company, authorized by Sunat, where it will print them.
K) SUNAT registration (RUC)
Forms: a) 2119 (Company) b) 2046 (Annex establishments) c) 2054 (Legal representatives).
L) Authorization to print payment receipts form 806
a) General regime, and b) Special regime.
LL) Authorization and municipal operating license
In the municipality of the district where your business will be installed, you will have to process the operating license, which can be provisional or final. its amount will vary according to the municipality, but may not exceed one tax unit of tax (ITU). The license is valid for not less than one year and its granting does not oblige you to carry out your activities immediately. the renewal will be automatic as long as you do not make a change of use or zoning.
Legalization of the payroll book and registration in ESSALUD once the company with legal status has been registered, the payroll payment payroll book must be brought to the Ministry of Labor or to its dependencies in the provinces for it to be legalized. afterwards, contact ESSALUD or the national bank and request the forms for the registration of the workers that will be delivered duly completed to the same bank.
M) ESSALUD registration
Employers must register by keeping a payroll record, after 10 business days of starting work activities in society. And workers must register with AFP.
N) Acquisition of accounting records according to their form of constitution with tax effect.
a) RUS: they are not obliged to keep accounts (D. Leg. 777). b) RER: keep records of purchases and sales. c) GENERAL REGIME: complete accounting DL 774.
Ñ) Legalization of the accounting
books.- The accounting books must be legalized by a notary public (Leg. No. 26002) or by a legal justice of the peace (law No. 26501)
IX. Legal and institutional framework
We will name the main legal devices: Political Constitution, Civil Code, General Companies Law, Company Registry Regulations, Securities Market Law, General Law of the Financial System and the Insurance System, Organic Law of the Superintendency of Banking and Insurance, Tax Code, Leg. 777, D. Leg 774, Notary Law.
Likewise, the main institutions dedicated to supervising the activities of private entities are: National Supervisory Commission for Companies and Securities (CONASEV), the National Superintendence of Tax Administration and Indecopi.
X. Conclusions
- Despite the fact that the general company law has not been expressly ruled by the contractual nature of the company, from its text it is possible to identify numerous elements that point in this direction.
- The partnership contract is not an exchange contract, but an organization contract, known in the doctrine as a contract with autonomous benefits.
- The legal personality that is the proper element of the regular society does not arise from the contract, but by mandate of the law.
- It is necessary to distinguish between the company contract and the legal personality of the company.
- The company can exist and not necessarily arise the legal personality (irregular company, de facto company).
- It is important to distinguish society as a constitutive act (social pact or social contract), from its organization (plurilateral contract or organization contract).
- The cases in which the company arises without a contract, are exceptional in that it is formed when it is by mandate of the law.
XI. Suggestions
- Patent, trademark and copyright registrations must be in charge of the Sunarp registry offices and not in charge of Indecopi, since there are currently parallel registries regarding the names of legal persons, that is, with this unification proposal there would be no parallel records, which goes against the existing security in the law.
- There should be approved forms to incorporate companies, which would reduce transaction costs (excessive cost to form companies), promoting the proliferation of de facto and irregular companies. There should be a single statute just as there is a statute for peasant communities (the only legal person in the Peruvian state that owns it).
