Reforms Of The Social Contract In Colombian Commercial Law

Reforms of the Social Contract in Colombian Commercial Law

Any reform like any commercial document, to be valid must be registered with the Chamber of Commerce as a public deed;registering in the Chamber of Commerce of the domicile of the creation of said company also, and if it has, of the domicile of its branches. As the Commercial Code stipulates in the fifth chapter of the First Title, the Superintendence of Companies to carry out this reform must be taken.

The full security of the majority and favorable vote for the registration of this reform will be taken into account. However, the denomination of administrators and reviewers will not be subject to reform, it will only be in the Chamber of Commerce in the form of an act;However, the majority and approved opinion of the associates will be taken into account.

As mentioned by the Commercial Code in its article 162, ‘the special decisions that give rise to the statutory reform are the anticipated decisions, the merger, the transformation, and the restitution of the contributions to the associates in the cases expressly authorized bythe law’.

In the sixth chapter of the first title, it refers to the transformation and fusion of societies, in addition to the split stipulated in Law 222 of 1995.

Of the transformation

The transformation is a statutory reform of the company which has the possibility of changing the corporate type, modifying the legal organization to any other type of commercial society.

This decision must be accompanied by the majority approval of the Assembly or Board of Partners, which will record the proceedings in an act. In addition, in article 31 of Law 1258 of 2008, it talks about the transformation exposing as requirements that the transformation occurs before the total dissolution of the company.

Of fusion

Mantilla Molina (1946), says “It is a special case of dissolution of societies through which a society is extinguished by the total transmission of its heritage to another pre -existing society or that is constituted, with the contributions of the assets of two or more societiesthat they merge ". The Commercial Code says that the merger is the dissolution of one or more companies so that another is responsible for the rights and obligations of the already dissolved.

In article 173 of the Commercial Code, it establishes for the approval of the fusion, those express reasons for fusion as the conditions of the accounting books must be taken into account to take into account the conditions in which the company is located;expressly establish the assets and liabilities that will be absorbed and the absorbent;an explanatory annex of the methods carried out and the exchange of parts of interest;In addition, copies that certify general balances of society.

The publication publication publication will take place in a newspaper of wide national circulation in which companies are appointed with their respective addresses and their social capital, assets and liabilities that will be absorbed in addition to the synthesis of the methods made of the exchange of the exchange ofThe interest of the parties. There will be a thirty -day term for the absorbent society to require satisfactory guarantees.

In Judgment C-044 of 2006, merger classes are established,

“The Commercial Code in its article 172 contemplates such fusion modalities, the merger by absorption takes place when one or more companies dissolve, without liquidation, to be absorbed by an existing one and the merger by creation when one or more societies aredissolve to create a new. The first modality does not imply the birth of a new society to legal life, since simply the entities that are dissolved are integrated into a legal person that already existed, while the second modality implies the disappearance of the legal world of dissolved societies and theirSubrogation by a new legal person. In both events, the absorbent society acquires the assets and rights of the absorbed societies, and is responsible for paying the internal and external liabilities of the same."

In accordance with this pronouncement of the Court, the Commercial Code adopts these categories in article 178 of this same.

Of the split

In accordance with Law 222 of 1995, which regulates the split and repeals several articles of the Commercial Code exposes two split modalities, the first, the companies that have not been dissolved may transfer their assets into different parts or in their entirety, eitherto a society or several societies, or also for the foundation of a society with this heritage;This form of split will be called to partial split. The second, when a society subsequently to its dissolution, transfers its economic heritage to one or more societies, or contributes the foundation of a new society, it should be noted that this heritage will be entirely divided by two or more parts;This modality will be called total split.

Keep in mind that in the partial excision the legal personality will not be lost, since it is not dissolved, nor ends. It is only a modification of its total capital in the quality of decrease, or bank accounts which will be transferred to the indicated companies. Thus, the total split is the opposite, since this extinction is total, all the assets and liabilities of the company in splitting will be adopted by the beneficiary society, that is, a liquidation will not be necessary because the new company adopts it with all the assetsand liabilities.

Therefore, the discrimination of the assets and liabilities of society is important, as it will be one of the previous requirements for partial splitting. After the split, the equity receiving societies will change their name to beneficiary societies, in addition, the partners of the already split society will be able to participate in the company benefiting with the same contribution of the previous society, except for restrictions.

For the presentation of the split in a company, the approval of the Board of Directors of Partners or General Assembly must be taken into account, followed by requirements stipulated in Law 222 of 1995, such as the reasons for splitting;the name of the company or societies that participate in the split and its internal statutes. The financial statements of the company will be taken into account, certified by an independent public accountant;The assets and liabilities of society in splitting and the amount to be transferred to the beneficiary society will also be studied;The partners will have quotas, parties or shares in the beneficiary society;finally the dates on which the activities of the split are carried out.

Such as the fusion of societies, the publications of the split will take place in a newspaper of wide national circulation, and in a newspaper of wide circulation at the home of each of the societies.

In the split of societies, when a society does not comply with its obligations stipulated under the splitting modality, the other societies will comply with this in a solidarity way. Only the assets that would have been absorbed by the split will be taken in gutter.

Finally, the reforms of social contracts are taxatively stipulated in the Commercial Code, thus being a solemn inter -party process that when carried out will be taken into account different requirements for the action of these reforms. Thus being a procedure such as the creation of a society.