This work presents the different classes of companies that can be constituted in Mexico, how the patrimony of the partners can be represented; how these societies are constituted and the transformation they may have; analyzes the interesting and current schemes of merger, spin-off and bankruptcies of companies until the dissolution and liquidation of the same.
mercantile-companiesIntroduction
The company name can be personal, because the owner is the one who represents it with his name and tax registration in the performance of commercial acts and transactions. In their origin many companies were personal, however, as the laws allow establishing commercial companies with their own legal personality, individuals as investors associate to carry out businesses, projects, etc. When companies are legally constituted, they are known as a commercial company, moral or economic entities.
Partnerships are a popular form of organization because they provide a convenient and inexpensive means of combining the capital and special skills of two or more people. Society is not a separate legal entity in itself but simply a voluntary association of individuals.
For a company to be constituted as such, it must have legal personality, this means that the company is a legal entity, it is a fictitious being that can acquire rights and obligations, just like a natural person, it is capable of being represented and acting for itself in the life of business.
Because the company is a legal person, it has its own assets, the assets contributed by the partners pass from their property to the property of this new legal entity that is born with the mere fact of entering into a partnership.
Another element of the legal personality of the company is the circumstance that it has its own domicile, different from that which each of the partners may have, since it is stipulated in the articles of incorporation, for the same reason the company has a proper name, depending on the type of company.
Concept of commercial company
The mercantile society can be defined as follows: “a mercantile society is the one that exists under a denomination or company name, by means of the agreement of wills of a group of people called partners, who join their efforts and capital to achieve an end common of economic character with profit purpose ”.
They are two or more people who create obligation and patrimonial relationships through a unitary treatment for the consequence of a common purpose.
Mercantile companies can be constituted under the fixed capital or variable capital regime, therefore, it should not be thought that the variable capital company is just another company that we have omitted, but that anyone can adopt this modality. The constitution of mercantile companies must be done before a notary public, by means of a social deed that will be registered in the public registry of commerce.
Commercial companies are governed by the general law of commercial companies and the cooperative society by the general law of cooperative companies, the constitution of one and the other must be recorded in a social deed before a notary public.
Here are some of the main data that must be contained in the articles of incorporation of a commercial company.
• The names, nationality and domicile of the individuals or legal entities that make up the company.
• The object or business of the company.
• Your reason or company name.
• Its duration.
• The amount of the share capital.
• The amount that each partner contributes as capital, specifying the amount in cash and in kind.
• The appointment of administrators, their powers and the appointment of those who must make use of the company signature.
• Domicile of the company
• The way in which the profits will be distributed among the partners as well as the losses
• The cases in which the company must be dissolved early and the way in which the liquidation must be carried out.
General characteristics of mercantile companies
At the time of incorporating a company into legal life, a new person is a legal subject who has the capacity to enjoy and exercise capacity different from the people who make it up or who make it up and who create a different entity which has its own characteristics which are the following:
I. Legal capacity: It is the ability to be the holder of rights and obligations but in commercial matters the capacity is limited or conditioned by the purpose of the company, this means that it can only have rights and obligations that are contained within its corporate purpose.
II. Equity (own): The equity of a company is the set of assets, rights and obligations owned by a commercial company and is classified into the following groups:
• Active Assets: Which refers to the assets and rights of a company and that it can be contributed at the time of the incorporation of the mercantile company, in a capital increase, in an increase of the social assets or with the profits obtained by the company.
• Passive Patrimony: The passive patrimony of a company is constituted by the obligations of the same and these can be acquired from the moment of the creation of the mercantile company and consist of debts and obligations to give or to do.
III. Name: In commercial law it is also called a denomination or company name and is defined as the set of characters that identify an individuality, distinguishing it from others.
IV. Address: It is the place where the main business headquarters of a commercial company would be made. In the matter of mercantile companies the domicile by common practice is determined in a city, without specifying number, street or neighborhood.
A legal person or commercial company can have one or other addresses as long as this is reflected in the articles of incorporation, to be able to indicate a main address and various accessories, the main address is known as the main address and the accessories as branches, for legal purposes you can use one or the other interchangeably.
V. Nationality: The nationality of the mercantile companies will be Mexican when they are formed in accordance with the laws of our country, and they establish their domicile in it, otherwise they are considered foreign.
ORGANS OF THE SOCIETY: Legal entities because they are a legal fiction, they do not exist in reality, they cannot materially exercise the functions that correspond to them, they need to be carried out through real people and these real people are the ones that constitute the organs of the society.
SOVEREIGNTY: They are the decision-making bodies in commercial companies that internally resolve matters relating to the constitution, modification, operating bases and appointment of positions in a company. In these types of bodies we find the general assembly of partners.
1. Organs of Sovereignty: We find the general assemblies of partners and the constituent assemblies, it should be noted that these organs of Sovereignty constitute the highest law within a commercial company or that they are the agencies in charge of dissolving and liquidating it.
2. The management, administration or representation bodies: They are those that have an external function and legally represent the commercial company, taking charge of materially developing the corporate purpose. Among them we can find administrative bodies such as boards of directors, boards of directors, advisory boards, boards of directors, boards of directors, managers, general directors, and the most common being the sole administrator.
3. Surveillance bodies: They are those that have a mixed function since they monitor the performance of society both when trying and outside of it and within this type of bodies we find the commissioners and the surveillance council, these bodies are They are empowered to sanction and, where appropriate, dismiss the administrative bodies.
Types of companies
The general law of commercial companies in its Article 1 recognizes the following types of commercial companies:
Company in collective name
It is one that exists under a company name and in which all partners respond, in a subsidiary, unlimited and several of social obligations.
Business name
It must express the true personal composition of the company and be formed by the names of partners and only by them, since the responsibility of the partners is subsidiary, unlimited and joint and several.
y Cía.
and Successors.
Characteristics
a) That it operates under a company name, the responsibility of the partners is subsidiary, unlimited and joint and several.
b) The business name is the name of the company that is formed with the name of one or more partners and when not all appear, the words "and company" or their abbreviations "and company" will be added.
c) When one of the partners whose name has appeared in the business name, separates from the company and follows the same business name, the word “successors” must be added to it; The word "successors" will also be added, when the name of a company adopts it or continues to use a new company that has acquired the rights and obligations of the previous business whose name or company name has transferred subsidiary responsibility is that of the second partners I finish, so that once payment has been demanded from the company and it has not been obtained, they will be obliged to pay the debts, the above occurs in bankruptcy cases, since in this type of company the partners are liable for the obligations of the company in the manner described above.
d) Unlimited liability. It is the one that forces the partners in a very broad way, without recognizing limits, to pay the debts of the company, even with their private assets.
e) Joint and several liability. It is the one that obliges each of the partners to respond for the totality of the debts and not for the proportional part of their invested
capital. Social
capital The social capital is represented by registered social shares and displayed by the partners.
Main obligations
Do not compete with society.
Not be part of companies that carry it out, except with the consent of the other partners.
Do not use the social signature for your own business.
The partner may be separated for "commission of fraudulent or malicious acts against the company".
Due to disqualification in commerce.
Administration
The administration of the company will be in charge of one or more administrators, who may be partners or strangers to it (Art. 36). His appointment and removal will be made by majority vote of the partners unless otherwise agreed (article 37, LGSM). If the administrator is a partner and his tenure is agreed in the contract, he can only be judicially removed for fraud, fault or inability (article 39, LGSM).
When there is no appointment of administrators, all partners will concur in the administration (article 40, LGSM). Non-managing partners can appoint an auditor to monitor the acts of the administration (article 47, LGSM).
Supreme Body
This is constituted by the Assembly or board of partners that represents the meeting of the legally summoned partners at least once a year, generally after the close of the fiscal year.
Financial information
The administration account will be rendered semi-annually, if there is no agreement on the matter, and at any time agreed by the partners.
Operating requirements
If it is constituted as variable capital, the minimum capital cannot be less than one fifth of the initial capital (article 217, first paragraph, LGSM).
Its capital stock may not be distributed until after the dissolution of the company, prior liquidation (article 48, LGSM).
Advantages
Perhaps the most important advantage in most partnerships is the opportunity to raise enough capital to get a business going. Forming a partnership is much easier and less expensive than organizing a joint-stock company.
Members of a partnership have more freedom from government laws and flexibility of action than owners of a joint-stock company. Partners can withdraw funds and make decisions of all kinds without the need for formal meetings or legal procedures.
Disadvantages
Limited life, unlimited liability and mutual representation. Also, if a company requires a large amount of capital, the partnership is less effective in raising funds than a joint-stock company.
Articles that govern it in the Commercial Companies Law:
Art. 25 that deals with its constitution, Art. 26 Percentage of the responsibility of the partners, Art. 27 Of the business name of the company as it is formed, Art. 28 Of the strangers to the company that appear in the business name, Art. 29 The partners and their separation when their name is within the company name, Art. 30 When the word successors is used, Art. 31 Succession of rights of the partners, Art. 32 The inheritance to continue with the society when a partner dies, Art. 33 When a stranger comes to the administration of the company, Art. 34 Reform of the social contract, Art. 35 The partners owe loyalty to the activity that this company develops, Art. 36 Who can be administrators in society, Art. 37 The removal of administrators, Art.38 On the right to separate from partners, Art.39 When one of the partners is an administrator and causes to be removed, Art. 40 When there is no appointment of administrators who act as such, Art. 41 Disposal of the company's assets is the consent of the partners, Art.42 Some activities of the administrators such as corporate business with the agreement of the majority, Art. 43 The administration account, periods in which it is delivered, Art. 44 Use of the company name, Art. 45 The decisions of the administrators, Art. 46 The representation and the percentage in the voting of the partners in specific cases, Art. 49 Periods in which the industrial partners, receive amounts they need for food, Art. 50 The partnership contract with respect to a partner.40 When there is no appointment of administrators who act as such, Art. 41 Disposal of company assets are the consent of the partners, Art.42 Some activities of the administrators such as corporate business with the agreement of the majority, Art. 43 The administration account, periods in which it is delivered, Art. 44 Use of the company name, Art. 45 The decisions of the administrators, Art. 46 The representation and percentage in the voting of the partners in specific cases, Art. 49 Periods in which the industrial partners receive amounts they need for food, Art. 50 The partnership contract with respect to a partner.40 When there is no appointment of administrators who act as such, Art. 41 Disposal of company assets are the consent of the partners, Art.42 Some activities of the administrators such as corporate business with the agreement of the majority, Art. 43 The administration account, periods in which it is delivered, Art. 44 Use of the company name, Art. 45 The decisions of the administrators, Art. 46 The representation and percentage in the voting of the partners in specific cases, Art. 49 Periods in which the industrial partners receive amounts they need for food, Art. 50 The partnership contract with respect to a partner.43 The administration account, periods in which it is delivered, Art. 44 Use of the company name, Art. 45 The decisions of the administrators, Art. 46 The representation and percentage in the voting of the partners in specific cases, Art 49 Periods in which industrial partners receive amounts they need for food, Art. 50 The partnership contract with respect to a partner.43 The administration account, periods in which it is delivered, Art. 44 Use of the company name, Art. 45 The decisions of the administrators, Art. 46 The representation and percentage in the voting of the partners in specific cases, Art 49 Periods in which industrial partners receive amounts they need for food, Art. 50 The partnership contract with respect to a partner.
Simple limited partnership
It is one that exists under a company name and is made up of one or more limited partners who respond, in a subsidiary, unlimited and joint manner, for the social obligations, and one or more limited partners who are only obliged to pay your contributions. (Art. 51)
Corporate name
The corporate name will be formed with the names of one or more comanditados, followed by the words "and company" or equivalent when they are not included in those of all. The words “Limited Partnership” or its abbreviation “S. in C. " (Art. 52).
Limited Partners
Limited partners are those who are obliged to pay their contributions and are not liable in a subsidiary, unlimited and jointly-several manner for the social obligations. The limited partner will be jointly and severally bound to third parties, for all the obligations of the company in which he has taken part when they exercise acts of administration or have power as administrators.
Limited Partners
These are the partners who are liable in a subsidiary, unlimited and joint manner for the social obligations as well as the partners of the company in the collective name.
Social Capital
The law does not set a minimum capital. The social capital is represented by the sum of contributions made in money or in kind by the partners.
The capital must be divided, according to the responsibility of the partners, separating the limited capital from the limited capital.
Operating requirements
If it is constituted as variable capital, the minimum capital cannot be less than one fifth of the initial capital (article 217, first paragraph, LGSM).
Corporate body
Limited partners cannot exercise administration. The exception to the above is in the event of the death of the administrator, provided that the way to replace him is not stipulated (article 54 and 56, LGSM).
Administration
The administration is constituted by the Board of Directors and will be in charge of one or more administrators, who may be limited partners or strangers to them.
The limited partner or partners may not exercise any act of administration (Art. 54). The limited partners will be the directors of the company, the limited partners, if administered, will be unlimitedly liable to third parties.
Supreme Body
It is constituted by the Assembly or Board of Partners that represent the meeting of the legally called partners at least once a year, generally after the close of the fiscal year.
Oversight Body
Corresponds to the limited partners, not administrators and all limited partners who may appoint an auditor to monitor the acts of the administrators, and will have the right to examine the state of the administration, accounting, and papers of the company, making suitable claims.
Regarding the limited partners, the rules of partnership will be applied in the collective name (Art. 57 LGSM)
Financial Information
The administration account will be rendered semi-annually, if there is no agreement on the matter and at any time agreed by the partners.
Observation
The simple limited partnership has little practical importance, because the partners respond with their own assets for the social debts, so it is preferred to resort, to exploit a commercial negotiation, to the social rates that limit the responsibility of the partners up to the amount of your contribution, in order to prevent an unfavorable economic situation from affecting the personal assets of the partners.
Articles of the Commercial Companies Law that govern it
Art. 51 The company and its composition, Art. 52 The company name and its formation, Art. 53 Of the names that appear in the company name, Art. 54 The partners cannot be administrators, Art. 55 The solidarity of the partners according to the constitution of the company, Art. 56 Cases of death or disability, Art. 57 The articles applicable to this company are the following: 30-39, and 41-44 and 46-50, Art. 58 Liability of the partners and their limits, Art. 59 The name or company name, Art. 60 Strangers that appear in the company name, Art. 61 The number of partners of the company, Art. 62 The share capital, Art. 63 Increase of the capital stock and its procedure, Art. 64 Of the subscription and exhibition of the capital, Art. 65 Admission of new partners, Art. 66 When the transfer of shares is for a person outside the company,Art. 67 The transfer by inheritance of the social shares will not require the consent of the partners, Art. 68 The social shares of each partner, Art. 69 Right of division of the social shares, Art. 70 Supplementary contributions of the partners, Others Articles that are not mentioned but that govern this company such as Article 71, 72, 73, 74. 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85 and 86 of the General Law of Companies Mercantile.85 and 86 of the General Law of Commercial Companies.85 and 86 of the General Law of Commercial Companies.
Limited partnership by shares
It is composed of one or more limited partners who respond in a subsidiary, unlimited and joint manner to the social obligations and of one or more limited partners who are only obliged to pay their shares.
This company participates in the characteristics of the so-called personal and capital companies, as they are made up of one or more limited partners who respond in a subsidiary, unlimited and jointly responsible manner, for the social obligations and for one or more limited partners that only they are obliged to pay their shares.
Business name
It will be formed with the names of one or more limited partners followed by the words “and company” or under a company name adding the words Limited Partnership by Shares or S. in C. by A.
Capital Stock It
will be divided into shares, the belonging to the limited partners are nominative and cannot be assigned without the full consent of the limited partners and two-thirds of the limited partners.
Administration
The administration of the company will be in charge of the limited partners.
Operating requirements
The words "limited partnership by shares" or the initials "S in C for A" shall be added to its company name. Its capital will be divided into shares and may not be assigned without the consent of all the limited partners and two-thirds of the limited partners.
Corporate body
The provisions regarding the limited partners apply.
The limited partner or partners may not exercise any act of administration, not even as proxies of the administrators, the limited partner being jointly and severally bound by the obligations in which he has taken part; The comandados, neither on their own account nor on behalf of others, can engage in businesses of the same kind as those that constitute the object of the company or form part of companies that carry them out, unless they have the consent of the other partners and when the administrator is one of the partners, may only be judicially removed for fraud, fault or inability, if the social contract had agreed to their immobility.
Articles that govern it in the Commercial Companies Law:
Art.207 its concept, Art. 208 rules that govern this company, Art. 209 of the capital stock, Art. 210 company name of the company, Art. 211 what refers to the partners.
Limited liability company
It is the one that is constituted between partners who are only obliged to pay their contributions, without the social parties being represented by negotiable titles, to order or bearer, since they will only be assignable in the cases and with the requirements established by law.
Denomination or social reason.
The company name is a business man forming with personal mentions; the name is formed with words that refer to the main objective activity of the company, regardless of any personal name. It is the statuses that have to establish whether the company has to use one or another form of trade name. If a company name is used, it must comply with the principles established by law. The first basis in this matter is the principle of the truth or veracity of the company name, according to which it must be formed with the names of partners and only partners. The names of all the partners of some or some will be included in them and, in these last two cases, the words “and company” will be added.
The law provides that strangers to the company who make appear or allow their name to appear in the company name, will be liable for social operations up to the amount of the largest contribution (Art. 60).
If the limited company has to turn under a denomination, this will be formed in accordance with the norms established by law. In both cases, the law requires that the words "limited liability company" or its initials "S. De RL ”, so that when this is not done, the partners will no longer enjoy the benefit of limited liability.
Social capital
Limited Liability Company (hereinafter SL) as a company of a commercial nature, it is divided into equal, accumulative and indivisible shares, which may not be incorporated into negotiable securities or called shares, and whose partners, which will not exceed 50, will not be personally liable for social debts.
The SL, like the SA, will always have a commercial nature, whatever the nature of its object.
For its part, the capital stock must be determined, is unlimited, and is divided into equal, accumulative and indivisible shares. The shares are equal in that they have the same value and attribute equal rights; they are cumulative since the partners can subscribe and hold two or more shares; they are indivisible insofar as the condition of partner is indivisible and if there is ownership of the undivided shares, the owners must designate only one to exercise the social rights.
The capital stock has a double function: an operating value and a guarantee or retention figure in favor of creditors, as in the SA
The Social Capital will never be less than $ 3,000.00 pesos, they will be divided into social shares that may be of unequal value and categories, but in any case, they will be of one peso or a multiple of this amount
Number of partners
Regarding the partners, in the foundation, their number must be at least two. Those who participate in the founding deed, subscribe and disburse, at least one participation, originally possess this condition. The detail of the importance of the company that adopts the form of SL is determined, in a way, by the legal prohibition that the partners are more than 50.
Legal nature:
On the one hand, the limited liability of the partners brings the SL closer to capitalist-type companies; However, the consideration of the personal circumstances of the partners seems to bring it closer to that of partnerships. Therefore, a unique character of the Limited Liability company cannot be affirmed in our Law.
Foundation: the Law is limited to requiring the granting of a public deed and its registration so that the company can have legal personality.
Content of the deed:
• Members' identification data.
• Data relating to the contributions of the partners. In any case, the capital must be fully subscribed and paid up.
• General mentions: company name or company name, duration and registered office, capital and number of shares, persons in charge of the administration, way of calling and constituting the General Meeting… (art. 7 LSRL).
• Data relating to corporate agreements: All other legal agreements and conditions that the partners deem appropriate to establish.
Indicate that, unlike the SA, a clear separation is not required between the articles of incorporation and the bylaws, although some of the contents of the deed indicated clearly constitute matters to be consigned in the bylaws.
Administration
It will be in charge of one or more managers or people who may be partners or strangers to the company, appointed temporarily or indefinitely. Unless otherwise agreed, the company will have the right to revoke its administrators at any time.
Supreme Body
It is formed by the Assembly of the partners. Its resolutions will be taken by majority vote of the partners it represents, at least half of the share capital, unless the social contract requires a higher majority. The shareholders' meeting is the highest governing body of the company. Powers of the meetings:
voting
voting by correspondence, summons.
Surveillance Body
If the social contract so establishes it, a supervisory council will be constituted made up of partners or strangers to the company. Its creation is optional and as the law does not establish anything regarding its operation, it must be created to the relative provisions of the corporation.
Financial Information
The administration account will be rendered every six months, if there is no agreement on the matter, and at any time agreed by the partners.
Articles applicable to the Limited Liability Company of the LSM
Art. 58 How the limited liability company is constituted, Art. 59 Denomination or company name, Art. 60 Of strangers whose name appears in the company name, Art. 61 Number of partners of the company, Art. 62 The Share capital, Art. 63 Increase or decrease of share capital, Art.64 Of the subscription of share capital, Art. 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85 and 86, which refer to the entire process through which the company goes through until the moment of its liquidation or if the case of the merger of the same occurs. The above is related to the first articles of this law that frame the principles of the company, as it does in the same way as in other commercial companies.
Public Interest Limited Liability Company
Constitution
They may be constituted when their object is constituted by activities of public interest, activities that affect an important sector of the national economy.
It is necessary to apply to the secretary of industry and commerce. The one that will have constant and direct interference in the administration (Inspection and Surveillance).
Number of partners
A minimum of 3 partners and an unlimited maximum.
Capital stock
Minimum of 5,000.00 pesos, but no share may exceed a quarter of the share capital.
Corporate bodies
Necessarily collegiate and of mandatory existence, the board of directors would comprise at least three members and the supervisory board at least two.
Anonymous society
It is the one that exists under a denomination and is made up exclusively of partners whose obligation is limited to the payment of their shares. Anonymous means that you do not trade under the partners' own name.
The public limited company can be defined as a «company of a commercial nature, whatever its purpose, whose capital is divided into transferable shares that attribute to its owner the status of partner, which enjoys the benefit of limited liability vis-à-vis the company and he is not personally liable for social debts ».
Features
• Have divided into share capital;
• The capital is formed by the contributions of the partners;
• The partners are not personally liable for corporate debts.
Society Constitution
That there are at least two partners, that the share capital is not less than $ 50,000.00, that the cash is displayed, at least 20% of the value of each share payable in cash and that the value of each share that is has to be paid.
Company Name
The name will be freely formed but will be different from that of any other company, and must be followed by the words Sociedad Anónima or SA
On the other hand, the name of the company is necessary in order to be distinguished from those with which able to compete and it will also serve as a signature to underwrite your business transactions.
The Law grants almost absolute freedom as to the name that can be chosen for the corporation, it only provides that the indication of "corporation" or its abbreviation must necessarily be recorded: SA and that a name identical to that of another may not be adopted. pre-existing society. For this reason, it is necessary to obtain the corresponding certificate of non-registration that has to be requested in the Mercantile Registry.
Capital Stock
It is represented by registered titles that will serve to prove and transmit the quality and rights of the partners. Not less than 25,000.00 pesos fully subscribed. That at least 20% of each payable share is exhibited in cash.
Subscribed capital:
Paid capital,
Authorized capital.
Working capital or working capital,
Fixed capital.
Actions:
released or ordinary shares.
paying shares
shares with par value
quota
shares prefere preferred or privileged shares.
limited voting shares.
Number of partners At
least five partners and each one to subscribe for shares at least.
Nature and domicile
As regards the nature of this type of company, no doubt is admitted: it is of a commercial nature, whatever its purpose (Art. 3 of the LSA)
Once the incorporation formalities have been completed by the company, the company acquires a domicile and determined nationality: "all public limited companies that have their domicile in Spanish territory will be Spanish and will be governed by this Law, regardless of the place in which they were incorporated" (Art. 5.1. LSA), and it is legally added that "Limited companies whose main establishment or operation is within its territory must have their domicile in Spain."
Finally, indicate that the registered office must be established in the articles of incorporation.
Administration It
will be in charge of one or more revocable temporary agents, who may be partners or people outside the company.
Supreme body
It is made up of the General Assembly of Shareholders who may agree and ratify all the acts and operations of this and its resolutions will be fulfilled by whoever it designates, or in the absence of appointment by the administrator or the board of directors.
Surveillance Body It
will be in charge of one or more commissioners, temporary and revocable, who may be partners or people outside the company.
Of Financial Information
Corporations under the responsibility of their administrators, an annual report will be presented to the Shareholders' Meeting.
Articles that govern this company
From Art. 87 which is the constitution of the company, Art. 88 its name, Art. 89 the constitution of the society, Art. 90 appearance before a notary of the constitution of the same, Art. 91 of the articles of incorporation, Art. 92 the subscription of the company, Art. 93 Content of the subscription program, Art. 94 the deposit of subscribers, Art. 95 Contributions other than cash, Art. 96 If a subscriber is missing his obligations, Art. 97 Term for subscribe the shares, Art. 98 if the incorporation of the company is not concluded, Art. 99 call for the general meeting, Art. 100 occupation of the General Assembly, Art. 101 registration of the meeting minutes and the statutes, Art. 102 the decisions of the majority in the General assemblies, Art. 103 of the founders in a public limited company, Art.104 the founders cannot stipulate in their favor any benefit that undermines the capital stock, Art. 105 annual profits, Art. 106 special titles for the founders' participation in profits, Art. 107 validity of the founder's bonus, Art. 108 Content of the founder's bonuses, Art. 109 participation of the founder's bonuses, Art. 110 application of the founder's bonuses.
Likewise, we find in the following articles up to article 206 of the same General Law of Mercantile Societies the articles that govern this public limited company within the entire process it goes through to reach its dissolution or merger.
Cooperative society
Form of social organization made up of individuals based on common interests and the principles of solidarity, self-help and mutual help, with the purpose of satisfying individual and collective needs, through the performance of economic activities.
The cooperative is a society that associates, under a free membership and voluntary withdrawal regime, people who have common interests or socio-economic needs, for whose satisfaction and at the service of the community they carry out business activities in order to satisfy the needs of the members.
The general principles that inform the constitution and operation of cooperative societies are the following:
a) Free membership and voluntary withdrawal of members, with the consequent variability of the capital stock.
b) Equal rights and obligations between partners.
c) Democratic structure, management and control.
d) Voluntary interest limited to contributions to capital stock.
e) Participation in cooperative activity.
f) Participation of the partners in the results, in proportion to the activity carried out in the cooperative.
g) Cooperative education and training of its members, as well as the dissemination of these principles in their environment.
h) Promotion of inter-cooperative relations to better serve their common interests.
i) Autonomy of cooperatives from all political, economic, religious or union bodies.
j) Registered office: The cooperative will have its domicile within the municipality where it mainly carries out activities with its partners or centralizes administrative management.
k) Liability: The member's liability for the cooperative's debts will be limited to their subscribed contributions to the capital stock, whether or not they are paid.
Characteristics
a) They exist under a social name,
b) they are made up of working class people (for this reason it is said that it is a »classist» society)
c) the rights and obligations of the partners are equal,
d) the number of partners is not It may be less than ten, therefore its number is unlimited,
e) each partner has one vote
f) they are always of variable capital,
g) they can never be for profit,
h) the duration of the company will be indefinite,
i) The distribution of profits will be in proportion to the time worked for each member (in the case of production cooperatives), in the case of consumer cooperatives it will be due to the operations carried out.
j) Upon incorporation, at least 10% of the contributions must be exhibited (the law does not set minimum capital).
k) The articles of incorporation will be certified by an official with public faith.
l) Cooperative Societies must constitute two kinds of funds: reserve and social security.
m) In principle, Cooperative Societies will not employ employees, and, in exceptional cases, their relationships will be governed by the Federal Labor Law.
n) They may not belong to chambers of commerce or producer associations, on the other hand, it is their obligation to be part of the federations, and these of the National Cooperative Confederation. To establish a federation, a minimum of two Cooperative Societies will be required (Article 108 of the LGSC Regulations).
o) Cooperative Societies have the right to special SHCP franchises and must submit to official surveillance by the STPS.
Legal personality and start of activity
Cooperative societies will be established by public deed and will acquire legal personality from the moment they are registered in the Cooperative Registry.
Cooperative societies must start their activity, in accordance with their statutes, within a maximum period of one year from the date of their registration in the Cooperative Registry.
Company Name
The general law of cooperative societies of August 3, 1994 does not legislate in this regard. The previous regulation indicated that the letters SCL or SCS must be added to the name of the company
Number of partners
The number of partners is a minimum of ten, with no upper limit. First grade cooperatives must be made up of at least three ordinary members. Those of the second or subsequent degree and those of integration will have, at least, two ordinary partners.
They may adopt the limited or supplemented liability regime of the partners. It will be limited, when the partners are only obliged to pay the contribution certificates that they have signed. Supplemented when the partners respond pro rata for the social operations, up to the amount determined in the articles of incorporation.
Social capital
The capital of the cooperative societies is integrated with the contributions of the partners and with the returns that the General Assembly agrees are destined to increase it, being able to issue certificates of contribution for risk capital for a determined time. Contributions must be made in national currency and if the bylaws or the general assembly so agreed, in goods and rights, they can be made in cash, and will be represented by registered, indivisible certificates of equal value, updated annually, being susceptible of transmission to the beneficiary designated by the owner in the event of death.
The participation of the partner in the capital stock of the first-degree cooperatives cannot exceed 25% of its figure.
The partner's liability for corporate debts is limited to the contributions subscribed to make up the share capital, unless otherwise provided in the statutes. However, the member who leaves the cooperative will respond personally during the following five years and for the social debts contracted prior to that. Cooperative societies may constitute the following funds:
a) Reserve: it is constituted with 10% to 20% of the returns obtained in each fiscal year; It is intended to face losses or to restore working capital.
b) Of social security: it is constituted with the annual contribution that the General Assembly determines on the net income and cannot be limited, it is destined to reserves to cover risks and occupational diseases, and to form pension funds and retirement assets of partners, seniority bonuses, medical expenses, funeral expenses, etc.
c) Cooperative education: it is constituted with the percentage agreed by the General Assembly, but it cannot be less than 1% of the net income for the month.
Constitution requirements
At least five partners, with one vote per partner, regardless of their contributions.
Variable capital and indefinite duration.
Essential equality in rights and obligations of members and equality in conditions for women will be granted.
Formalities for its constitution
By means of a general assembly held by the interested parties and in which an act will be drawn up containing the general data of the founders, the names of the people who have been elected to integrate the councils and commissions for the first time and the constitutive bases.
The partners must prove their identity; ratify their will in the constitution of the cooperative society and recognize the signatures or fingerprints that appear in the articles of incorporation before a notary public, public broker, district judge, judge of first instance, municipal president, secretary or municipal delegate of the domicile of the cooperative society, which will have legal personality from the moment of signing the articles of incorporation, which must be registered in the Public Registry of Property corresponding to its social location.
Bylaws
The bylaws of cooperative societies must regulate, at least, the following matters:
1º. Name of the cooperative society.
2nd. Registered office.
3rd. The activity or activities that the cooperative will develop for the fulfillment of its social purpose.
4th. Duration.
5th. Minimum share capital.
6th. Mandatory initial contribution to be a member and the part of it that must be paid at the time of subscription, as well as the form and payment terms of the rest of the contribution.
7th. Objective requirements for the admission of partners.
8th. Minimum mandatory participation of the member in cooperative activity.
9th. Norms of social discipline, setting of faults, sanctions, disciplinary procedure and regime of challenge of acts and agreements.
10th. Guarantees and limit of the rights of the partners.
11th. Causes of justified withdrawal.
12th. Regime of the sections that are created in the cooperative, if applicable.
13th. Call, operating regime and adoption of resolutions of the General Assembly.
14th. Determination of the representative and management body of the cooperative society, its composition, term of office, election, replacement and removal.
15th. Regulation of the Controllers. Composition, duration of the position, organization and operating regime.
16th. Determination of whether the contributions to the capital stock accrue interest or not.
17th. Transition regime and reimbursement of contributions.
18th. Any other required by current regulations.
Classification
In accordance with the provisions of the General Law of Cooperative Societies, cooperative societies are classified:
By their purpose:
a) Consumers of goods.
b) Consumers of services
c) Consumers of goods and / or services
d) Producers of goods.
e) Producers of services
f) Producers of goods and / or services
Cooperative consumer societies, their members associate to obtain in common articles, goods and services for themselves, their homes or their production activities.
Cooperative production societies, their members associate to work together in the production of goods, services or both, contributing their personal, physical or intellectual work
By category:
a) Ordinary: these are the common ones that only require their legal constitution
b) State participation: they are those that are associated with federal, state or municipal authorities for the exploitation of production units or public services, given in administration, or to finance economic development projects at the local, regional or national level.
Administration
The direction, administration and internal surveillance of the cooperative societies is in charge of the following bodies:
a) The General Assembly: supreme authority, who will know and resolve all the important businesses of the society, in whose charge they will also be of the powers granted by the bylaws, the following powers:
The acceptance, exclusion and voluntary separation of partners;
modification of the constitutive bases;
approval of production, work, distribution, sales and financing systems and plans;
increase or decrease in equity and capital stock;
appointment and removal of the members of the Board of Directors and the Supervisory Board, as well as the special committees and the hired specialists;
review of the internal accounting system;
report of the councils;
responsibility of the members of the councils and commissions;
application of disciplinary sanctions to partners;
distribution of income, surpluses and receipt of advances between partners and
approval of the ecological measures that are proposed.
b) The Board of Directors: executive body of the General Assembly, made up of a President, a Secretary and a Member appointed by the Assembly itself for a term of five years with the possibility of re-election, who will have the representation of the company and the signature social, being able to designate one or more managers and commissioners for the administration of the specialized sections, from among the partners or non-associates, with the understanding that those responsible for financial management will require a joint guarantee or surety during the period of their management, in order to ensure the correct administration of the company.
c) Surveillance Body: it is in charge of the supervision of all the activities of the company and is made up of an odd number of members not greater than five with the same number of substitutes who will have the positions of President, Secretary, and Members, designated the same as the Board of Directors and up to five years of duration. He has the right of veto regarding the resolutions of the board of directors (Art. 32 and 33 LGSC).
Financial Information
The surpluses of each annual fiscal year are the difference between assets and liabilities minus the sum of the capital stock, and the accumulated income of previous years, which will be consigned in the annual balance that the Board of Directors will present to the General Assembly, the same procedure will be carried out if the balance reports losses.
Dissolution and liquidation
Cooperative societies are dissolved for the following reasons:
I. At the will of two-thirds of the partners
II. Decrease in the number of partners to less than five
III. Because its object is consumed
IV. Because the economic state of the company does not allow it to continue operating
V. By judicial resolution.
If they wish to transform into another type of company, they must be dissolved and previously liquidated. When two or more cooperatives merge, the resulting company must take charge of the rights and obligations of the merged companies.
Mutual insurance companies
Mutual insurance companies are those that do not produce profit or profit for the company or its partners and that carry out insurance operations referred to in the authorization required by this law, with the exception of pension insurance contracts derived from the laws social security; they constitute and invest the reserves provided for in the Law and administer the sums entrusted to them by the insured or their beneficiaries as dividends or indemnities.
Constitution
The Law says that the articles of incorporation must be executed before a notary public, comply with the bases established by the same law, and register in the manner provided by the Commercial Companies Law ”. To organize and function as an institution or mutual insurance company, authorization from the Federal Government is required, which is the responsibility or discretion of the Ministry of Finance and Public Credit.
Number of partners
The deed must contain names, surnames, domicile and other general ones of the mutualized, indicating the values insured by each of them and the figures of their fees. The number of mutualized may not be less than $ 300,000 in the case of life insurance, or $ 500,000 in the case of property insurance.
Company name or name
The name of the company must be included as a denomination, and must express the nature of a mutual society and contain an indication of the kinds of risks that the company will insure.
Social capital
Formally, mutuals do not have social capital. The law indicates that mutual funds must exhibit a social fund, the amount of which must appear in the articles of incorporation, which must indicate how such fund must be amortized, that is, returned to its contributors.
Corporate purpose
Mutual insurance companies may only carry out the following operations:
I. Carry out the insurance operations referred to in the authorization required by this Law, with the exception of pension insurance contracts, derived from social security laws, provided for in the second paragraph of section I of article 8. of this Law;
II. Constitute and invest the reserves provided for in the Law;
III. Manage the sums that the insured or their beneficiaries entrust to them for dividends or indemnities;
IV. Manage the reserves retained to institutions in the country and abroad, corresponding to the reinsurance operations that have been transferred;
V. Constitute deposits in credit institutions;
SAW. Receive titles in discount and rediscount to auxiliary credit institutions and organizations and permanent funds for economic development destined in trust by the Federal Government in credit institutions;
VII. Grant loans or credits;
VIII. Operate with securities under the terms of the provisions of this Law and the Securities Market Law;
IX. Operate with commercial documents on their own account, to carry out their corporate purpose;
X. Acquire, build and manage low-income housing and urban real estate with regular products;
XI. Acquire the movable and immovable property necessary to carry out its corporate purpose, and
XII. Carry out, under the terms of the Ministry of Finance and Public Credit, the similar and related operations that it authorizes.
Variable capital company
It is the one that allows the capital of the company to be increased, either in subsequent contributions by the partners or by admission of new partners or by reduction due to partial or total withdrawal of contributions.
The variable capital modality can be adopted by any kind of company. Variable capital companies will be governed by the provisions that correspond to the type of company in question and by those of the public limited company regarding balance sheets and responsibilities of administrators, except for the modifications established in the same law.
Constitution
The variable capital company, depending on the type of company to which it corresponds, is constituted under a company name or name in which the words “variable capital” will always be noted.
In accordance with the legal rules that correspond to it, the stipulations that are set for the increase or decrease of share capital must be indicated and if it is about joint-stock companies, the capital increases will be set in the social contract or in the General Assembly.:
In the Public Limited Company, in the Limited Liability Company and in the Limited by Shares a minimum capital will be indicated.
In the Companies in Collective Name and in Simple Limited Partnership, the minimum capital may not be less than one fifth of the initial capital.
Subscribed capital, exhibited capital, authorized capital
In any society, the subscribed capital can be distinguished, which is that which the partners have been obliged to contribute, and the exhibited capital, which is formed by the contributions actually delivered to the society. In variable capital companies, another concept can be pointed out: that of authorized capital, which is the maximum amount that the subscribed capital can reach without the need to amend the articles of incorporation.
In this case, the law does not indicate among the requirements of the articles of incorporation the indication of the authorized capital, so that this can only result implicitly from the set of rules for increasing capital. But if these are not indicated in the statutes, the capital increases will be decided by the shareholders 'meeting or the shareholders' meeting, and in such cases there will be no authorized capital.
The company will have to have an authorized capital whose figure is obtained by adding the subscribed capital and that represented by treasury shares.
Companies in which, perhaps together with a profit purpose, there is a collective service purpose, can adopt the variable capital modality, to accommodate all those who want to help the company.
Variable capital companies are adapted to the needs of those companies whose assets are subject to a constant and progressive decline, such as public service concessionaires, whose assets must pass to the state once the concession is over.
Foreign Companies
These are companies constituted under foreign laws, to which Mexico recognizes legal personality; They are created in accordance with the legal provisions of the foreigner and that are not contrary to the Mexican legal order, which carry out their activities in our country.
They are those entities made up of 2 or more people who are dedicated to carrying out commercial activities, constituted in accordance with the laws of the country of their origin.
The laws provide the possibility that the partners that constitute the mercantile society in both cases are not Mexican, that is, the partners may have foreign nationality and, by complying with the requirements established by law, may acquire land in the country from Through the contracts that they sign with the ejidos, the fact that foreign companies or with foreign partners can control the lands that originally belong to Mexicans, causes this loss of Territorial Sovereignty, since, although legally, the State is losing control of an essential part that constitutes it: the territory.
Nationality, in terms of legal tribute, is independent of ethnic, linguistic, etc. characteristics, which can only be displayed by individuals; In other words, if a legal and not a sociological concept of nationality is used, there will be no difficulty in applying it to legal persons and therefore to societies.
Nationality is a quality that is attributed to people, to determine the application of a certain set of legal norms.
Foreign investment is considered to be a Mexican company in which the majority of the capital is foreign.
Foreign investment may participate in the following percentages:
1. 10% in cooperative production companies
2. 25% in national air transport, air taxi and specialized air.
3. 30% in holding companies of financial groups, multiple banking credit institutions, brokerage houses and stock market specialists.
4. 49% in insurance institutions, surety institutions, general deposit warehouses, financial leasing companies, printing and publishing of newspapers, etc.
The articles of incorporation of a company must contain:
I. The names, nationality and domicile of the physical or legal persons that constitute the company;
II. The object of the society;
III. Your business name or name;
IV. Its duration:
V. The amount of the share capital;
SAW. The expression that each partner contributes in money or other assets; the value attributed to them and the criteria followed for their valuation. When the capital is variable, it will be expressed indicating the minimum that is set;
VII. The domicile of the company;
VIII. The manner in which the company is to be administered and the powers of the administrators;
IX. The appointment of the administrators and the appointment of those who must carry the social signature;
X. The way to make the distribution of profits and losses among the members of the society;
XI. The amount of the reserve fund;
XII. The cases in which the company has to be dissolved early, and
XIII. The bases for practicing the liquidation of the companies and the way to proceed with the election of liquidators, when they have not been appointed in advance.
Occasional action of a foreign company
It occurs when, without any purpose of exercising commerce in a habitual and systematic way, a foreign company may pretend to carry out one or more legal acts in Mexico. Example:
a) enter into contracts that do not involve the development of commercial activities (acquire a property in which to install a place of recreation for its employees, or for simple investment purposes; hiring workers to make possible the execution in our country of a contract entered into abroad, etc.)
b) celebrate in Mexico an isolated act of commerce (construction company that is in charge of the execution of a certain work)
c) obtain a Mexican patent, without the purpose of exploiting it in the national territory.
d) appear before the administrative or judicial authorities to enforce their rights derived, including, from acts or contracts celebrated abroad, etc.
Permanent action of a foreign company
In order to do business in the Republic, a foreign company must obtain authorization from the Ministry of Economy, and register in the Public Registry of Commerce. The authorization will be granted when it is verified that the company is constituted in accordance with the laws of its country of origin and that its bylaws are not "contrary to the precepts of public order" of Mexican law.
The establishment of a branch or agency of a foreign company requires a resolution of the National Commission of Foreign Investments. For the competent Secretary to authorize the registration of a foreign company, the requirement is section II of article 250 LSM.
The draft Commercial Code indicates with greater precision that the LSM, that the foreign company that wants to operate in Mexico permanently, must invest in the country an amount equivalent to the share capital of the public limited companies, and have a representative with sufficient faculties.
In accordance with section II of article 3 of the Commercial Code, the foreign company that establishes a branch or agency in Mexico will have the legal status of a merchant, and, therefore, it must be concluded that it will be subject to their professional duties.
The attribution of merchant status to the agencies or branches of a foreign company has the consequence that they can be declared bankrupt. The foreign company that performs an isolated act of commerce will not acquire the character of merchant in the Republic.
Dissolution and liquidation of companies
The circumstances that according to the law are capable of ending the contract are called causes of dissolution, that is, it is the situation of the Company that loses its legal capacity to fulfill the purpose for which it was created. and that only subsists for the resolution of the links established by the company with third parties, by that with the partners and by them with each other.
Article 229 of the general law of commercial companies capitulates about the dissolution and the reasons that can originate this state in a company and as a consequence the liquidation process.
Likewise, Article 230, which contemplates the company in the collective name that will be dissolved unless otherwise agreed, due to the death, disability, exclusion or retirement of one or more of the partners, or because the social contract is terminated with respect to any of them.
In the event of the death of one of them and in the understanding of not reaching any agreement with their heirs, the company, within a period of two months, must deliver to the heirs the share corresponding to the deceased partner according to the last approved balance sheet.
Article 231, of the previous provisions, will be applicable to the simple limited partnership and to the limited partnership by shares, as regards the limited partners.
For the established term of the duration of a company, it is marked in Article 229, not being the same in the cases of other companies as according to Article 232, which says that the existence of the causes of dissolution has been verified by the company, register in the Public Registry of Commerce but if in the opinion of any interested party there is no cause that justifies the dissolution, then this may occur before the judicial authority within the limit of thirty days from the date of registration and sue in summary proceedings, cancellation of registration.
Likewise, the transformation of the production activity into the liquidation activity is assumed. The termination of the partnership contract is complicated, not like another type of contract that exhausts its effects on the relationships of the parties. The company directed by third parties, upon dissolving it, demands that the ties established with the people who hired with it be broken and in our country, the law protects good faith and the rights of third parties, so the dissolution of the company in truth involves a complicated legal problem.
The fact that there is a cause for dissolution does not mean that the company will end immediately, but that there will be the starting point of the dissolution situation that will lead to another process such as liquidation.
The General Law of Mercantile Societies in our country, recognizes in Article 234, the principles of the Companies when they are in a state of dissolution, in the same way, in Article 244 of the same law says that the effects to create a dissolution in the company and even in that state, it will retain its legal personality for liquidation purposes.
Dissolution and conservation of the company, the historical consideration of the provisions applicable to the dissolution of commercial companies shows us a strong and complicated relationship between two opposing principles, that of dissolution by will and for strictly personal reasons, that is, the conservation of the company above the personal interests of the partners and the opposite in the individual will of each of the partners.
CAUSES OF DISSOLUTION.
LEGAL CAUSES: they are so called because they are established within the law of commercial companies, they are those that result mechanically without the need for someone to make the decision to terminate the link that exists between the partners.
VOLUNTARY CAUSES: they are those that derive from cases not specified by law, they are determinations that have been taken by one or more of the partners, or the law who determines that once the dissolution situation has been verified, it will be registered in the Public Registry of Commerce so that third parties are not affected and the situation of the company is known by all those who have any interest in knowing such information, and thus proceed to what corresponds given the legal relationship between the company in dissolution and people external physical or moral.
PARTIAL DISSOLUTION: exclusion and separation occur, which first means the exclusion is also called termination of the partnership contract that does not affect all the partners but does affect a part of them, meanwhile the separation is the partial conclusion of the contract of partnership by the will of the partner in the cases that the statutes and the law mark, is a mechanism where the will of the partner is attributed the possibility of concluding the contract to which he was linked.
CAUSES OF SEPARATION IN COMPANIES.
IN THE COLLECTIVE SOCIETY. The appointment of a stranger as the administrator of the company, because in the collective partnership, the administration is supposed to be in the hands of the same partners, that is why when a stranger or someone who does not belong to the circle of partners between as administrator, the dissatisfied partner may separate from said company and oppose this interference. Even if it is a minority of the partners who are dissatisfied, they may separate from the company. The SM law recognizes the right to active termination which in other words is the separation of the partner for the reasons mentioned above.
IN THE PUBLIC LIMITED COMPANY AND IN THE COMMANDED SOCIETY BY SHARES. Dissatisfied shareholders will have the right to this separation when the general meeting adopts the resolutions with respect to sections IV, V and VI of Article 182, which refer to changes of purpose, nationality or transformation of the company.
IN THE COMMANDED SOCIETY BY SHARES. As in other types of companies, if a stranger is appointed administrator and the partner does not agree, he can request his separation from the company, or if there are modifications in the statutes that do not suit the interests of the partners, he can request his separation by thus suit your personal interests.
IN THE COMPANY FOR LIMITED LIABILITY. It only concerns in the case of the appointment of a stranger as administrator of the company.
CAUSES AND EFFECTS OF PARTIAL DISSOLUTION.
It is very important to mention that the separation causes as an effect, very important aspects in the development of the company's purpose, such as not continuing with the activity or objective that had been set and that was the reason for the creation of The company, since the case of separation, forces the company in this situation to have to reduce its profit activities, to the fact of only carrying out tasks and actions as a non-profit company and continuing with the legal nature of managing its assets alone in the state of liquidation and for what the law refers to when a company declares in this process.
The company has rights such as the one to retain the capital and profits of the separate partners until the activities of the company are liquidated. According to the last verified balance of the company, the partner who is exercising the separation, will have the right to withdraw the reimbursement of his shares in proportion to the social assets, and as already mentioned once the last balance of the company in liquidation has been verified.
REASONS THAT ORIGINATE THE PARTIAL DISSOLUTION.
WITHDRAWAL OF A PARTNER.
In all companies, the partner has the right to withdraw from the company and thus cause partial dissolution, in joint-stock companies, this right only corresponds to the partners who have voted against certain modifications to the articles of incorporation. In collective and simple limited partnerships, the right of withdrawal is granted more broadly, by virtue of any modification to the articles of incorporation.
The law empowers that by appointing a stranger as administrator or by appointing someone who is not a partner in the limited liability company, the right to withdraw from the company may be used, even when a new company enters the company. partner to replace the one who retires, not for this reason the social business would stop dissolving, with respect to the first; there would simply be a double modification in the corporate deed: first the departure of a partner and the entry of a new one. It is not possible, as in joint-stock companies, to substitute one partner for another without modifying the social constitution.
VIOLATION OF PARTNER OBLIGATIONS
In any type of company, the lack of fulfillment of the obligations by the partners empowers the company to terminate the social business. Regarding the Comanditees, it is in accordance with the Articles. 57.86 and 211.
DEATH OF A PARTNER
It has very different consequences, in the joint-stock company, in the limited partnership and in the limited partnership by shares, if the deceased was a limited partner, it does not produce any effect on the corporate business, rights and obligations are passed on to their heirs. On the contrary, if a limited partner dies in the limited partnership by shares or any of the partners in the collective, the event will produce, except as otherwise provided in the constitutive act, the total dissolution of the company.
In the companies that have just been mentioned, as in the limited ones, the death of a partner produces: The partial dissolution of the company but the company will continue between the partners; and the heirs of the deceased will be liquidated the social part that corresponds to them according to their cause.
TOTAL DISSOLUTION. They are the causes that according to the law are capable of ending the partnership contract that has been concluded between two or more people, it is the situation in which a company enters prior to the liquidation, where there are factors that may be personal voluntary or they can be factors that are foreseen in the law.
LIQUIDATION OF THE COMPANY.
It is the set of operations that must be carried out in a company that has incurred a cause for dissolution, aimed at the realization of its assets, the payment of its liabilities and the determination, if any, of the remainder of the social patrimony distributable among the partners.
The conclusion of the organization through the operations necessary to terminate the pending businesses in charge of the company, to collect what it is owed or to pay what it owes, to sell all the assets and transform them into money and divide between the partners the patrimony resulting from all of the above.
Article 234 of the general law of companies says that once the company has been dissolved, it will go into liquidation. The person in charge of carrying out all these tasks is the social body called the liquidator. This replaces the administrators as representatives and managers of the company during this period. The company in all its activities must add the legend "IN LIQUIDATION" as well as in all the documents and tasks that it performs.
THE LIQUIDATOR. Article 235 tells us that the liquidation will be in charge of one or more liquidators who will be legal representatives of the company and will be responsible for the acts they carry out exceeding the limits of their assignment.
THE LIQUIDATORS. They are the administrators and legal representatives of the company in liquidation, in charge of carrying it out. The law defines them as the legal representatives of the company being liquidated.
ACTIVITIES OF THE LIQUIDATOR.
1. Conclude the social operations that were pending at the time of dissolution.
2. Cover what is owed to society and pay what it owes.
3. Sell the assets of the company.
4. To liquidate each partner her social assets.
5. Practice the final settlement balance.
When the final liquidation balance is approved, it must be published three times in ten days, and remain for fifteen, at the disposal of the shareholders, who must be called after a meeting to decide on said balance, but once verified, the corresponding payments will be made against delivery of the shares.
In interest-based companies, it is not necessary to dispose of all the corporate assets to distribute their price among the partners, they can form lots to be awarded them and if they do not approve this form of distribution then the assets over which there is a dispute will be made in a pro-undivided manner, in this company it is not an obligation to publish the liquidation balance.
After ten years, the liquidators will keep the information, books and papers of the company, a sufficient term to prescribe the obligations of the company.
MERGER AND SPLIT OF THE COMMERCIAL COMPANIES
As a special aspect in the dissolution we find the merger of companies, which is nothing more than the part where the total equity of the company passes to another existing company, or a new company that is constituted with the shares or contributions of two or more companies that merge in the latter.
In one case, one speaks of the incorporation of one company with another, in the second case, one speaks of the various companies that die out to form one or merge into one.
THE SPLIT: It is the procedure contrary to the merger. The assets of the company are divided and the company may or may not be divided. It occurs when a company called the splitter decides to terminate itself and divides all or part of its assets and liabilities and share capital into two or more parts that are contributed en bloc to other newly created companies named.
The divided assets will be transferred en bloc to one or more other companies (with their assets and liabilities) that may be pre-existing or newly created companies, created "ad hoc" (for this). Can be:
Total spin-off: The patrimony is segregated into two or more parts and the split company is dissolved and extinguished. The segregated assets are passed on to newly created or existing companies called beneficiary companies. The partners also become the partners of the new companies.
Partial spin-off: The divided company is not dissolved, then its assets are only diminished. The partners of this also become partners of the new companies. The part of the segregated patrimony forms an economic unit (a branch that acts without depending on the parent company)
These situations must be raised to a public deed and taken to the RM
Conclusion
This work is the compilation of the most important data that my colleagues and I found about Commercial Companies.
Perhaps they are not enough to elaborate an extensive comment on the matter, but we can assure that the study of them allows us to broaden our perspective on these Societies.
In these times, capital increases are frequent, the creation of new companies depending directly on another entity and the transformation of companies, shareholders' meetings are more active and relevant than in the past and, mergers and splits of companies as well as the suspension of operations and liquidations of companies are no longer so sporadic.
We are talking about the different kinds of companies that can be constituted in our country, how the patrimony of the partners can be represented; how these societies are constituted and the transformation they may have; analyzes the interesting and current schemes of merger, spin-off and bankruptcies of companies until the dissolution and liquidation of the same.
For all the above, the task of researching commercial companies has been very interesting, searching and finding what we want to know when this information is not only precise and cold data, and if it is searching and finding data that teach us the legal aspects of societies since their formation, their external and internal legislation, their procedures to develop the activities to which they are aimed, the principles to which they must be subject for the proper functioning of organizations, the way to find ways to ensure the loyalty of action of those who make up the company, the procedures to end the company when it is known that it is not working for the purpose for which it was created, the appointment of who or who will take charge of the procedure that will lead it to Liquidation,and finally the decision to go ahead with what the company is, and what it will be when merging it with other companies to save the part of the partners who want to continue with this task, always trying to be respectful with what the legislation indicates that intervene for the proper functioning within a society.
As a complement to this text on mercantile companies and their characteristics, the following video-lesson is suggested, which delves into the knowledge of each of the types of companies, their constitution, their legal requirements and effects, their dissolution and liquidation.
Download the original file
