Art 348 bis lsc

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The right of separation of the shareholder for non-distribution of dividends in Article 348 bis of the Capital Companies Act (“LSC”) is intended to protect the right of minority shareholders to participate in the company’s profits, against possible practices of majority shareholders who may participate in the company’s management, more inclined to avoid or reduce the distribution via dividends.

Since its entry into force in October 2011, this article has received numerous criticisms, and its validity has been suspended on two occasions. Its initial regulation was considered by the doctrine as excessively rigid for companies, and lacking sensitivity to the different situations that a company may go through.

a) In the case of listed companies or companies whose shares are admitted to trading in a multilateral trading system (Art. 348 bis 5.a) of the LSC).  This exclusion has the logic that the shares of a listed company are much more liquid or realizable than those of a closed company.

Capital companies law

Article 348 bis of Royal Legislative Decree 1/2010, of July 2, 2010, approving the revised text of the Capital Companies Law (“LSC” or “Ley de Sociedades de Capital”) regulates the right of separation in the event of non-distribution of dividends.

The fourth and fifth paragraphs are noteworthy, relating to the (1) recognition of the same right to the shareholder of the controlling company within a group of companies with the obligation to file consolidated financial statements and the (2) slightly extended list of exceptions, respectively.

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Art 348 bis lsc 2022

The Draft Reform Bill amending the Commercial Code, the TRLSC and the Accounts Auditing Act in matters of non-financial information and diversity (stemming from RD 18/2017 of November 24), contains a new reform of art. 348 bis LSC (right of separation in the event of failure to distribute dividends).

The rest are ancillary issues: (i) it is expressly recognized that this is a remedy independent of the exercise of liability actions or challenge of resolutions (the non-distribution resolution); (ii) it is clarified that it is a right that can be derogated or modified by the bylaws at the time of its creation or subsequently with the unanimous consent of the partners, (iii) it expressly excludes from its scope of application all companies whose shares are listed on a multilateral trading system (listed companies, MaB), companies in insolvency proceedings, those that have submitted a proposal under article 5bis LC and those that have reached a refinancing agreement under article 71 bis LC. 71 bis LC.

Art 348 bis lsc del momento

To regularize means to adjust, regulate or put in order. In the service of this regularization, the systematics have sometimes been modified, while attempts have been made to reduce the imperfections of the normative proposals. Naturally, the recast text contains the entirety of what it recasts. Neither have the parts that experience has shown to be obsolete been deleted; nor have the solutions provided by the law been modified, even though practice has cast doubt on their efficiency and highlighted the cost of application; nor have rules that have not yet achieved legislative recognition been incorporated in anticipation of the foreseeable solution. But a consolidated text that would come to light without this imperative regularization would betray the terms of the authorization granted.

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This substantial unity between the different forms of capital companies can be seen even more clearly, if possible, in the systematic arrangement of the consolidated text, which has renounced a possible division between “general parts” and “special parts”, articulating the texts by subject matter, with the appropriate generalizations, without prejudice to the inclusion, within each chapter or section, or even within each article, of the special features of each form of company when they really and effectively exist. However, the interpreter will be able to appreciate that the impossibility of crossing the limits of the authorization leaves open questions as to the meaning of certain different solutions based on the corporate form chosen.