The division of legal persons is not regulated in Peruvian positive law or Peruvian legislation, but only company division.
1. Introduction
In this research work, the generalities, motivation of this work, source of inspiration, definition, legal basis of the division in Peruvian law, division of companies or division of companies or autonomous entities or legal entities, comparative law are developed., classes, own division, improper division, purposes of the division, the division is a registrable act and the division is not only registered in the registry of companies.
2. General
The spin-off of companies is an institution of company law, which is becoming increasingly important, since it makes it easier for investors to have their companies adopt various measures to optimize their results, not only by grouping (such as merger cases, cartels, holding companies, among other figures typical of business law and more properly of business concentration), but also separating.
Although it is true that the division of companies is an institution of company law, it is also true that it can be applied to all companies, legal entities and autonomous entities, for which we can affirm that it is beyond the field of study of company law.
Therefore, it can be validly applied to the division of associations, committees, peasant communities, foundations, peasant rounds, communal companies, individual limited liability companies, cooperatives, among others. However, it is clear that these are the most important legal entities.
However, we have not had before us works that focus on the subject matter of study as belonging not only to corporate law, which is part of commercial or commercial law and within private and business and corporate law.
3. Motivation of this work
All research work has a motivation, so the present also has a motivation, which is the lack of existing doctrine on the subject that encompasses all legal persons, companies or autonomous entities.
4. Source of inspiration
All research work has a source of inspiration, so this work has a source of inspiration, which is the free work that I presented in the Master in Business Law on spin-off in 1996 and the work published in the Ofired magazine of the then regional registry office the liberators Wari in 1997.
For the record that of these two research works cited or mentioned, only the second was published, which was a shorter work than the other and had only two pages.
5. Definition
The general law of companies defines the division of companies, for which we relieve ourselves of more details, since in the states that are part of the Germanic Roman family, the law prevails over other sources of law.
In practice, some opportunities define the legal or legal institutions and other opportunities do not define them, which in the latter case causes defects in the application.
It is convenient for the legislator to define legal institutions, which facilitates the application of the rules of positive law.
6. Legal basis of the division in Peruvian law
The legal basis for the division in Peruvian law is the general company law, but it applies to all legal entities and all autonomous entities.
We also find a legal basis in the tax regulations, however, these only refer to the payment of taxes.
7. Excision of companies or division of companies or autonomous entities or legal entities
The spin-off is not only applicable to companies, it is applicable to all companies, autonomous entities and all legal entities.
8. Comparative law
Comparative law consists of the application of the comparative method to law, which is why comparative law is studied comparative method, which incidentally is not only applicable to law but also to other areas of knowledge such as accounting, medicine, administration, economics, sociology, among others.
Comparative law is divided into two parts that are a general part and a special part, therefore, the part we are referring to now is the special part and not the general part.
However, we are obliged to record that legal studies can be enriched when we do comparative law.
Legal families is a subject studied by comparative law, for which we can affirm that they are the following: Romanic Germanic family, legal family of the Common Law, legal family of socialist rights and legal family of philosophical systems. However, it is clear that this is only one of the classifications of legal families in which the most prominent are the Germanic Roman family and the Common Law family.
Therefore, we will now analyze the law of two states that belong to the Germanic Roman legal family, such as Mexico and Argentina.
The law is compared with these states because in those states the legislation was until a more advanced time in the matter of company divisions.
The law of Mexico and Argentina regulate the spin-off of companies, which may be a matter of study, however the regulation is not the same.
9. Classes
The division currently has two generic classes, which are the following:
9.1. Own excision
Also known by the names of total division and division of companies.
This kind of split is characterized, because the originally existing society is extinct.
For example, it is an assumption of own split when the saga company splits into two companies that are a and b and the existing original society disappears.
9.2. Improper excision
Also known as partial cleavage.
This kind of split is characterized in that the originally existing society continues to exist.
For example, it is an assumption of improper division when the saga company splits into two companies that are ayby and the existing primal society does not disappear.
10. Purpose of the spin-off
The main purposes of the spin-off are as follows:
1) the redistribution of the activities of a company or of several.
2) the specialization of the activities, since each society will have only some activities, which they will be able to perform better and / or at a lower cost.
3) geographical decentralization, which can be divided by states, regions, departments, districts, cities, etc.
4) reduce the payment of taxes for two reasons:
4.1) as each of the resulting companies has a lower income, it will be within a different regime, for example the resulting companies will no longer pay taxes under the general regime but under the special income tax regime.
4.2) that a certain tax benefit corresponds to a certain area of the state.
5) solutions to internal problems of the partners:
5.1) the way of running the company.
5.2) the types of operations that the company must carry out.
5.3) the selection of suppliers and / or clients.
6) to clean up the society, separating from it the activity or activities of the same with economic problems and in this way, delimit the activities that work well, from those that are going through difficulties, avoiding the contamination of those by them.
7) the elimination of non-legal monopolies, thus achieving that in this space and time, competition appears, and with this, these companies acquire a competitive advantage.
11. Splitting is a recordable act
The acts are divided into recordable and non-recordable, so it is up to this headquarters to determine whether the spin-off is a recordable act.
The recordable acts are the inscriptions or annotations that the registrar extends in the registry.
Unregistrable acts are acts that the registrar cannot extend in the registry.
The split is a registrable act, for which the registry provides registry publicity to this act in the registry items.
12. The spin-off is not only recorded in the register of companies
This registrable act is also registered in the registries of other legal persons such as associations, committees, foundations, peasant communities, communal companies, peasant rounds, individual limited liability companies, cooperatives, among other legal persons or autonomous entities, therefore, this act Registrable is not exclusive to the company registry.
The spin-off is not only registered in the register of companies, but it is also registered in other registers such as the register of immovable property, registration of vehicular property and other registers of assets and guarantees.
For example, if the company has assets registered in its name in the registry, it is normal that the change of registry owner in the registry of assets is a registrable act.
And the same happens if the companies have registered guarantees in which they can intervene as creditor, guarantor (who is the non-debtor owner of the obligation), or as a debtor.
13. Conclusions
1) The spin-off of companies is not regulated in Peruvian positive law or Peruvian legislation, but only the spin-off of companies, which must be taken into account when deciding what is appropriate.
2) The division of legal entities is not regulated in Peruvian positive law or Peruvian legislation, but only division of companies.
3) the split of autonomous entities is not regulated in the Peruvian positive law or Peruvian legislation, but only division of companies.
14. Suggestions
1) It is necessary to spread the division of companies, so that economic agents have adequate tools for the development of companies in Peruvian and foreign law.
2) It is necessary to disseminate that the division of legal entities and autonomous entities is not regulated in Peruvian positive law, which must be taken into account when studying the subject matter of the investigation.
15. Legislative proposals
1) It is necessary to regulate the division of legal entities.
2) it is necessary to regulate the division of companies.
3) it is necessary to regulate the division of autonomous entities.
16. Sources of information or bibliography
1) Torres Manrique, Fernando Jesús. Business law.
2) Torres Manrique, Fernando Jesús. Treaty of the company and its applicable law.
3) Uria, Rodrigo. Commercial Law.
