Computing the period of limitation of liability action of individual managers corporations

Extract Judgment 700/2010 of the Civil Chamber of the Supreme Court of 11.11.2010, appeal 1927/2006

Speaker: Xiol Rios, Juan Antonio

From STS 20 July 2001 stating that the jurisprudence is the statute of limitations for all cases of claims of responsibility for its organic activity is four years out in Article 949 CCOM. This doctrine has been applied in this room STS dated 1 March 2004, 26 April 2004 5 October 2004 25 March 2005 15 June 2005 22 December 2005, 6 March 2006, 30 January 2007, 21 February 2007, 30 April 2008 (CR No. 3355/2000), 3 July 2008 (CR No. 4186/2001), 10 July 2008 (CR No. 4059/2001) March 12, 2010, CR No. 1435/2005 and 15 April 2010, CR No. 470/2006, among others.

As stated STS 11 March 2010, CR No. 1239/2005, with the appointment of 18 December 2007, CR No. 3550/2000, 3 July 2008, CR No. 4186/2001 14 April 2009, CR 1504/2004), this article brings a specialty CCOM 949 days quo with respect to the [initial day] of computing the said period of four years, which is fixed at the time of termination of exercise administration for any valid reason to produce it.

Among the causes considered suitable to produce Jurisprudence (STSS 26 October 2004 and 22 December 2005, among others) said, among other possibilities, opening the liquidation of the company, automatic consequence except in exceptional circumstances, its dissolution (Article 266 LSA), in terms of determining replacement administradorpor liquidators in management activities and representation (articles 267 and 272 LSA), and also the resignation of administrator (Article 147.1 º RRM), and the separation decision of the general meeting (article 131 and 148 LSA RRM). However, is not sufficient reason to have ceased to administradorla mere fact that the company no longer has activity as administradoresquienes are obliged to promote the orderly dissolution of the Company pursuant to Article 260 LSA. So says the STS 11 March 2010, CR No. 1239/2005, which, however, considered suitable due to the cessation of production manager appointed by the expiration of the deadline by which depletion was appointed, although the details are listed below on the relevancy of the evidence that termination register.

Around the effects of lack of registration in the Commercial Register of the termination of the administrator, the doctrine has understood (STS 27 November 2008, CR No. 1050/2003, mentioned by 11 March 2010, RC No. 1239/2005) it is necessary to differentiate between substantive or material effects that follow from the lack of registration of the termination of the manager in the Commercial Register and formal effects that affect the calculation of the limitation period. On the material plane, the lack of registration does not involve the removal itself ceased administrator remains responsible to third parties exceptions derived from the principle of trust or assume social obligations to fulfill duties that no longer incumbent upon him, as the inscription has constitutive nature. A mere formal effects, and in order to clarify whether the action exercised or not prescribed, the criterion followed by this Court is that if it has knowledge of the affected part of the time in which it effectively ceases to the administrator, credited or not otherwise its bad faith, the calculation of the term of four years involving the termination of the action by prescription but can not start from the time of enrollment since only thereafter can oppose the fact bona fide third termination and, consequently, from that moment be entitled to exercise the action can not deny his ignorance (STSS 26 June 2006, July 3, 2008 and April 14, 2009, RC n. º 1504/2004, all cited by 11 March 2010, CR No. 1239/2005, and STS 15 April 2010 CR No. 470/2006, with the appointment of 2 June 2009, CR No. 2352/2004 and 18 June 2009, CR No. 2760/2004).

Consequence of the above is that the day a quo [initial day] of the limitation period is fixed at the time of termination of the exercise of any valid reason for the administration to produce it, although not computed with third parties in good faith until it is registered in the Commercial Register.