The joint and several liability of the administrator for not dissolving the company in a situation of losses when it is in bankruptcy phase

It may be the case, seeing the result of the annual accounts, the company is in because of legal dissolution, so administrators must convene the general meeting.

Faced with this bankruptcy situation, the question that arises is whether the tax is still in force board intended to get them to decide on the dissolution of society duty.

If we go to the dictated Jurisprudence, it is very relevant about the judgment of the Civil Chamber of TS dated October 15, 2013, according to which:

“Following the declaration of bankruptcy, it ceases the legal duty of managers to urge the solution which was finally agreed upon as a legal effect of the opening of the liquidation phase (art. 145.3 LC) …”.

Therefore, managers would not be obliged to dissolve the partnership if they had suffered heavy losses, but as long as this situation does not prevent compliance with payment commitments in the agreement.

If they prove ineffective legal grounds for dissolution, it makes no sense to seek judicial dissolution of the company. However, nothing prevents members in general meeting agree to the dissolution of the company voluntarily.

The consequence if the agreement adopted is that in the bankruptcy procedure clearance phase opens.

The conclusion is to consider that while the company is in compliance with the bankruptcy agreement can not apply the liability regime dissolution not foreseen in the LSC, and consequently may not have corporate responsibility for its management in this regard.


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