Guide to business in Spain Guía de negocios en España

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3. The treatment of liability at the types of business enterprises


3. THE TREATMENT OF LIABILITY AT THE TYPES OF BUSINESS ENTERPRISES

The following table summarizes the liability regime governing shareholders and partners at the various business enterprises:

Table 1

liability regime

Corporate form

Liability

Corporation (S.A.) / Limited Liability Company (S.L.)

The liability of the shareholders is generally limited to the amount of the capital stock contributed by each of them.

However, in exceptional circumstances, liability may be sought from shareholders in order to protect the interests of third parties.

In these exceptional cases, the courts have followed the doctrine of “piercing the corporate veil” (levantamiento del velo) as a reaction to misconduct by the shareholders while fraudulently sheltering behind the company’s legal personality; in such event, the courts may look behind it and not differentiate between the company’s assets and those of each of the shareholders when establishing liability.

General partnership (S.R.C.)

Liability is not limited. General partners are personally and jointly and severally liable with the whole of their net worth for the debts of the partnership.

Limited partnership (S. Com)

There is at least one general partner and one or more limited partners. General partners are personally and jointly and severally liable with the whole of their net worth for the debts of the partnership. Limited partners are only liable for the amount of capital they contribute or promise to contribute to the partnership. The capital of limited partnerships may be divided into shares.

Professional services firm (S.P.)

The professional members will be jointly and severally liable with the firm for its professional acts, and they will be subject to such general rules on contractual and noncontractual liability as may apply.

Notwithstanding the above, Organic Law 5/2010, of June 22, 2010, amending Organic Law 10/1995, of November 23, 1995, on the Criminal Code, introduced into Spanish law the criminal liability of legal entities in certain activities and cases (among others, for example, trafficking in human beings, discovery and disclosure of secrets, fraud, criminal insolvency, damage to others’ property, offenses against intellectual and industrial property, the market and consumers, concealment of criminal property and money laundering, money laundering offenses against the tax and social security authorities, foreign citizens’ rights, offenses against zoning and urban planning, offenses against natural resources and the environment, bribery, influence peddling or corruption in international commercial transactions).

Guide to business in Spain

Annex I. Company and commercial law

5

ICEX - Gobierno de España - Ministerio de Economía y competitividad
Elaborado por Garrigues - Abogados y Asesores Tributarios
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