¡Descarga commercial law y más Apuntes en PDF de Derecho Mercantil solo en Docsity!
INTRODUCTION.
DEFINITION of Comercial Law:
- Is the body of Law that governs business organizations and commercial transactions.
- Sensu stricto- Part of civil law.
- Sensu largo- Industrial property law, unfair trade practices, competition law, consumer protector...
CAPITAL COMPANIES and PARTNERSHIPS:
CAPITAL COMPANIES
(corporations)
GENERAL
PARTNERSHIP
Entity
A separate legal entity and taxed as such.
Not a legal entity but has certain characteristics of one.
Creation
Created by the state upon application in required legal form; evidenced by charter or articles of incorporation.
Created by formal agreement of its members.
Duration Perpetual corporate life. Life limited to term set by partnership agreement.
Ownership (Contribución)
By shareholders (accionistas) evidenced by shares of stock held.
By individual partners in proportions agreed.
Transfer of ownership
Shares normally transferred at will of shareholder.
Consent of corporation or other shareholders not necessary (without consent).
Partnership interest may be transferred at will of partner but assignee does not become a partner unless all partners agree.
Liability of owners
Shareholder has no personal liability for corporate obligations; only risk is loss of investment.
All partners are personally liable for partnerships obligations; liability not limited to investment in partnership.
Management
By board of directors and officers acting under it; shareholders generally limited to voting in election of directors.
All partners have right to manage the business; each is the agent of partnership and of his or her copartners.
3. Profits and losses partition:
- Each partner shall be entitled to an equal share in the profits and shall participate in the losses in the same proportion, irrespective of type and value of contribution.
- A partner’s share in the profits defined in the articles of association shall also apply, in case of doubt, to his shares in the losses.
- The article of association: May release a partner from participation in losses.
- A partner may request that the entire profits be divided and distributed at the end of each financial year.
Capital share:
- The capital share of the partner : Shall equal the value of the contribution effectively made.
- A partner may demand every year a 5% interest on that partner’s capital share, even if the partnership has sustained a loss.
4. Civil liability for partnerships’ debts:
- Each partner shall be liable for the obligations of the partnership without limitation with all his assets jointly and severally with the remaining partners and the partnership (todos son responsables de todo el crédito no de una parte)
- Subsidiary liability of the partner: A creditor of the partnership may conduct execution from the partner’s assets where execution from the assets of the partnership proves ineffective (En primer lugar, el crédito lo cubre la sociedad. En el caso de ser inefectiva, en segundo lugar van los socios)
- Unlimited; 2) Joint and several; 3) Personal; 4) Direct; 5) Subsidary.
5. Partnerships’ representation:
- Each partner have the right to represent the partnership.
- The right of the partner to represent the partnership shall include all acts in court and out of court.
- May not be limited with the effect towards third parties (partes)
- Way of representation: Singly, independently or only together with another partner or agent.
- Deprivation (take away) of right to represent:
- The articles of association : Should be signed also.
- Only for significant reason under a final and non-appealable court of judgement.
Management of affairs of partnership:
- Each partner shall have the right and obligation to manage the affairs of the partnership.
- Each partner may, without a prior resolution of the partners, manage the affairs within the ordinary business of the partnership.
- A resolution of the partners is requiered the unanimity of all partners who have the right to manage the affairs of the partnership shall be required.
- Matters outside ordinary course of business: The consent of all partners shall be required, including those who are excluded from managing the affairs of the partnership.
- Urgent action: The partner who has the right to manage the affairs of the partnership may, without a resolution of the partners, make an urgent action , when the absence of such action could cause serious damage to the partnership.
6. Withdrawal from a partnership:
Transfer of partner’s rights and obligations:
- All rights and obligations of a partner in a partnership may be transferred to another person: 1. Only where the articles of association so provide. 2. Only after the written consent of all of the remaining partners has been obtained.
- Consequences: The withdrawing partner and the acceding partner shall be jointly and severally liable (responsable) for the obligations of the withdrawing partner arising (surgir, presentarse) in connection with his membership of the partnership and for the obligations of the partnership.
PROFESSIONAL PARTNERSHIP
(Asociación profesional)
Definition: A professional partnership : Is a partnership created by partners for the purpose of pursuing a profession in a partnership which operates a business under its own business name.
The partnership may be formed for the purpose of pursuing more than one profession, unless a different law provides otherwise.
1. Partners:
Only natural persons (physical) qualified to pursue professions may become partners in the partnership:
- Advocate, pharmacist, architect, civil engineer, auditor, insurance broker, tax adviser, stock broker, investment adviser, accountant, physician, dentist, veterinary doctor, notary, nurse, midwife, legal adviser, patent attorney, property appraiser and sworn translator.
2. Responsibility:
All partners shall not be liable.
- For the obligations of the partnership which arise in connection with the pursuit (actividad): By the remaining partners of the profession in the partnership.
- For the obligations of the partnership which arise as a result of acts or omissions of persons employed: By the partnership under an employment contract or another legal relationship who have been guided by another partner in the provision of services connected with the objects of the partnership.
- The articles of association : May provide that one or more partners agree to be liable as a partner of a registered partnership.
3. Representation:
- Each partner shall have the right to represent the partnership individually, unless the articles of association provide otherwise.
- The articles of association of a professional partnership : May provide that the management of the affairs and the representation of the partnership be entrusted to the management board.
4. Loss of professional qualifications:
- In the event that a partner loses the right to pursue the profession : He shall withdraw from the partnership at the latest at the end of the financial year in which he lost the right to pursue the profession.
4. Managing affairs of partnership:
- A limited partner shall not have the right or obligation to manage the affairs of the partnership, unless the articles of association provide otherwise.
- The consent of the limited partner shall be required in matters which fall outside the ordinary course of business of the partnership, unless the articles of association provide otherwise.
5. Participation in profits and loses:
- A limited partner shall participate in the profits of the partnership proportionally to his contribution actually to the partnership unless the articles of association provide otherwise.
- The profit shall be used first of all to supplement his contribution actually made up to the value of the agreed contribution.
- In case of doubt, a limited partner shall participate in the loss only up to the value of the agreed contribution.
LIMITED LIABILITY COMPANY (LLC). LIMITED COMPANY. (Sociedad limitada)
1. Essence of LLC:
- A Limited Liability Company : May be incorporated by one or more persons for any purpose allowed by law.
- The shareholders shall not be liable for the obligations of the company.
- Share capital : The share capital of the company shall be divided into shares of equal or non-equal nominal value.
2. Creation of a Company:
- The conclusion of the articles of association.
- The making by the shareholders of contributions to finance the entire share capital, and where the share is subscribed for a price higher than the nominal value, also contributing of the balance.
- The appointmen t of the manage board.
- The constitution of the supervisory board or the audit committee if this is required by law or by the articles of association.
- The registration in the Register.
3. The Articles of Organization:
- The name and seat of the company.
- The objects of the company.
- The amount of the share capital.
- Whether or not the shareholder may have more than one share.
- The number and nominal value of the shares subscribed for by individual shareholders.
- The term of the company, if it is defined.
The Articles of association shall be made in the form of a notarial deed.
10. Share register:
The management board shall keep a share register where:
The surname and first name or the business name and the seat of each shareholder , the address, the number and the nominal value of his shares and the creation of the pledge or usufruct and the exercise of the right to vote by the pledge or the holder of the right of usufruct shall be entered, together with all changes of the shareholders and their respective shares.
11. Preference (privileged) shares:
- Such privileges may concern in particular:
- The right to vote.
- The right to dividends.
- The right to participation in the division of assets in the event of liquidation of the company.
Such privileges in respect of the right to vote may attach only to shares of equal nominal value.
12. Privileged dividends:
Each preference share which is a preference as regards dividends may give entitlement to dividends larger by not more than half than the dividend payable on non-preference shares.
13. Management Board: (1er órgano)
- Shall manage the affairs of the company and represent the company.
- Shall include one or more members.
- The members of the management board may be drawn from among the shareholders or other persons.
- A member of the management board shall be appointed and dismissed by a resolution of the shareholders.
Representation:
If the management board comprises several members, representation in the name of the company may be made by:
- Two members of the management board acting jointly or;
- One member of the management board acting together with a holder of the commercial power of attorney.
Shareholder’s right to control:
- The right to control shall be enjoyed by each shareholder.
- For this purpose, a shareholder may at any time inspect the books and documents of the company, draw up a balance sheet for his use or request explanations from the management board.
- Refusal: The management board may refuse to give explanations to the shareholders or provide the company books and documents for inspection, if there exists a justified concern that the shareholder may use them for purposes contrary to the interests of the company and as result may case material damage to the company.
14. Supervisory board: (2º órgano)
- The Articles of association may create a supervisory board or an audit committee or both.
- The supervisory board : Shall consist of at least three members appointed and dismissed by a resolution of the shareholders.
Tasks:
- The supervisory board shall exercise permanent supervision over all areas of the activities of the company.
- The supervisory board shall not have the right to give the management board any binding instructions with respect to the management of the affairs of the company.
- In order to perform its duties, the supervisory board may review all company documentary, request reports and explanations from the management board and the employees, and review the state of the company’s assets.
15. General meeting:
- Consideration and approval of the management board report on the operations of the company, the financial report for the previous financial year and the granting of approval of the performance of duties by the members of the company governing bodies.
- Decision on claims for damages caused upon formation of the company of its management or supervision.
- Disposal of a tenancy of the enterprise or its organized part and the creation of a limited right in rem over them.
EUROPEAN PUBLIC LIMITED-LIABILITY COMPANY
(Sociedad Anónima Europea)
1. Main features:
- Have legal personality , SE shall acquire legal personality on the date on which is it complicated.
- The capital of an SE shall be divided into shares. The subscribed capital shall not be less than 120.000 €.
- Employee involvement Directive 2001/86/EC.
- No shareholders shall be liable for more than the amount he has subscribed.
Ex.: Allianz SE, Porshe Automobil Holding SE.
2. Creation of SE:
- Public limited-liability companies: May form an SE by means of a merger.
- Public and private limited-liability companies : May promote the formation of a holding SE.
- Companies and firms within the meaning of the second paragraph of article 48 of the treats: May form a subsidiary SE by subscribing for its shares.
Formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community shall, be treated in the same way as natural persons who are nationals of Member States.
Means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
- Conversion of an existing public limited-liability company into an SE.
May be transformed into an SE if for at least 2 years it has had a subsidiary company governed by the law of another Member State.
3. Formation by merger:
- Provided that at least two of public limited liability companies are governed by the law of different Member States.
- The procedure for merger by acquisition: The acquiring company shall take the form of an SE when the merger takes place.
- The procedure for merger by the formation of a new company: The SE shall be the newly formed company.
4. Formation of a holding SE:
- Public and private limited-liability companies.
- Transnational aspect : At least two of them:
a) Is governed by the law of a different Member State, OR;
b) Has for at least 2 years had a subsidiary company governed by the law of another Member State or a branch situated in another Member State.
5. Structure of SE:
SE shall comprise:
- A general meeting of shareholders.
- A supervisory organ and a management organ (two-tier system).
- An administrative organ (one-tier system) depending on the form adopted in the statutes.
Two-tier system: Management organ.
- The management organ : Shall be responsible for managing the SE.
A managing director or directors shall be responsible for the current management under the same conditions as for public limited-liability companies that have registered offices within that Member State’s territory.
- The member or members of the management organ shall be appointed and removed by the supervisory organ.
- Quorums and decision-taking in SE organs shall be as follows:
- Quorum: At least half of the members must be present or represented.
- Decision-taking: A majority of the members must be present or represented.
6. General meeting:
- An SE shall hold a general meeting at least once each calendar year, within 6 months of the end of its financial year.
- General meeting may be convened at any time by the management organ, the administrative organ, the supervisory organ or any other organ or competent authority in accordance with the natural law.
- One or more shareholders who together hold at least 10% of a SE’s subscribed capital: May request the SE to concern a general meeting and draw up the agenda therefor.
- Amendment of an SE’s statutes : Shall require a decision by the general meeting taken by a majority which may not be less than 2/3 of the votes cast.
INDUSTRIAL PROPERTY RIGHTS IN KNOWLEDGE
BASED ECONOMY.
Intangible assets
Patent from invention. Utility model. Industrial design. Trade mark. Geographical indication. Topographies of integrated circuits. Know-how (Trade secrets). Copyrights.
1. Global point of view on patent protection:
- International patent filings under WIPO’S Patent Cooperation Treaty (PCT) grew by 2,4% in 2.008, to nearly 164.000 applications.
- The largest number of international PCT applications , just under a third of the total for 2.008 (32.7% or 53.521 applications) were filed by inventors in the United States of America.
- Inventors of the Republic of Korea (+12%), China (+11,9%) and Sweden (+12,5%) enjoyed robust growth rates.
- Inventions and corporations from Japan, with 17.5% (28.774), Germany (18.428), Republic of Korea (7.908), etc.
- For the first time, a Chinese company topped the list of PCT applicants in
- Of the 100 top companies : 38 were from United States, 28 from japan and 13 from Germany.
2. Patentable invention:
- Patents : Shall be granted for any inventions which are new, which involve an inventive step and which are susceptible of industrial application.
- Novelty: An invention : Shall be considered to be new if it does not form part of the state of the art.
The state of the art : Shall be held to comprise everything made available to the public by means of a written or oral description, by use, displaying or disclosure in any other way, before the date according to which priority to obtain a patent is determined.
