2. Tipos de Sociedades | Be Lawyer

Name: 2. Tipos de Sociedades | Be Lawyer
Uploaded: 2023-12-16T19:06:10.000Z
Duration: 2 h 36 min 42 s

Introduction to Types of Societies

Welcome and Speaker Introduction

The session is part of a corporate law diploma organized by Lyer, featuring Dr. Samuel Bis as the speaker.

Dr. Bis holds a law degree from the Universidad Católica de Santa María and a master's in business law from the University of Navarra, Spain.

He specializes in commercial law, financial law, and securities market law, currently working at Payet Rey Cauvi Pérez Law Firm and teaching at Pontificia Universidad Católica del Perú.

Session Overview

Dr. Bis expresses gratitude for the invitation and outlines that his presentation will last approximately 45 minutes to an hour.

He emphasizes the importance of interaction during the session, encouraging questions and discussions among participants.

Understanding Types of Societies

Importance of Society Types

Dr. Bis highlights that understanding types of societies is crucial for both students and practicing lawyers.

He notes that some universities offer extensive courses on corporate legislation but may not cover all types of societies comprehensively.

Distinction Between Societies

The focus will be on general notions regarding regulated forms of societies in Peru, distinguishing between partnerships and capital companies.

He mentions that many universities only teach about specific types like anonymous societies without covering others.

Conceptual Clarification: Company vs. Society

Common Misconceptions

Dr. Bis addresses common colloquial usage where "company" is often used interchangeably with "society."

He stresses that while people refer to businesses as companies in everyday language, legally they are distinct concepts within corporate law.

Legal Definitions

A company is defined as an organization engaged in industrial or commercial activities for profit; this definition aligns with legal terminology.

Understanding these distinctions is vital for grasping corporate legal frameworks effectively.

Conclusion: Setting Up for Further Discussion

Preparing for In-depth Exploration

Dr. Bis prepares participants for deeper exploration into societal structures beyond just surface-level definitions.

Understanding the Concept of Business in Peru

The Freedom of Enterprise

In Peru, private initiative is free, and the state guarantees business freedom as stated in Article 59 of the Constitution. This includes the right to establish a company.

The Constitutional Tribunal (2016) emphasizes that recognizing business freedom ensures individuals have the liberty to create companies, set objectives, and manage activities based on their resources.

Economic vs. Legal Definitions of Business

Definitions from RAE and constitutional texts indicate that "business" refers primarily to economic activity rather than legal structures like corporations.

A preliminary notion is that business involves using time and effort for profit; it remains an economic concept without inherent legal requirements.

Practical Examples of Business Activities

An example illustrates someone selling desserts via Instagram: they engage in a commercial activity without needing formal legal structures like a corporation.

The act of running a business does not necessitate prior establishment as a legal entity; one can operate informally while still engaging in economic activities.

Distinction Between Business and Society

It’s crucial to differentiate between "business" (an economic activity) and "society" (a legal construct). Businesses can exist independently from formal societal structures.

Today's discussion focuses on types of societies rather than types of businesses, highlighting that society serves as a vehicle for conducting business but is not synonymous with it.

Forms of Legal Entities for Conducting Business

Societies are one form through which businesses can operate legally; however, they are not the only option available.

Individuals may choose various forms such as sole proprietorship or partnerships without needing to establish a formal society first.

Decision-Making and Resource Management

Choosing to conduct business through different entities affects decision-making processes, resource acquisition, and relationships with third parties.

Understanding these differences helps clarify why individuals might opt for specific legal frameworks when starting their businesses.

Understanding Business Structures and Their Impact

The Concept of Societies in Business

Discussion begins on the concept of "sociedades" (societies) as a special vehicle for business activities, emphasizing that one can engage in entrepreneurial activities without formal legal acts.

Introduction to major global companies by market capitalization, highlighting their significance and presence on stock exchanges like the New York Stock Exchange.

Major Global Companies

Examples of billion-dollar companies such as Apple, Saudi Aramco, Microsoft, Alphabet (Google), Amazon, and Tesla are presented. These companies often exceed the GDP of entire countries.

The speaker emphasizes that these large corporations are products of legal fictions created by legislation allowing individuals to form societies for business purposes.

Economic Reality vs. Legal Structure

The discussion highlights how societal structures enable ideas like Apple's technology or Amazon's e-commerce platform to flourish into massive enterprises.

Clarification that a business is an economic activity not necessarily requiring prior legal formation; it exists as an organization engaged in commercial or service activities aimed at profit.

Business Landscape in Peru

Transitioning focus to Peru's business environment using data from INEI’s 2022 demographic bulletin, which shows nearly 3 million registered businesses.

Explanation that many businesses operate under natural persons rather than formal societies; this includes informal sellers who may not have extensive registrations but still conduct business.

Types of Businesses and Legal Forms

Noting that while there are approximately 3 million registered businesses in Peru, many operate informally or as sole proprietorships without formal incorporation.

Emphasis on microenterprises dominating the Peruvian economy; only a small percentage represent medium or large enterprises.

Preferred Legal Structures for Businesses

Analysis reveals that about 65% of businesses are registered as natural persons rather than adopting corporate forms like sociedades anónimas (corporations).

Acknowledgment that while some prefer limited liability entities (EIRL), most entrepreneurs choose simpler structures due to ease and accessibility.

This structured overview captures key insights from the transcript regarding business structures and their implications within both a global context and specifically within Peru.

Types of Business Entities in Peru

Overview of Business Structures

The discussion begins with the prevalence of the sociedad anónima (corporation) as the most commonly used business entity in Peru, overshadowing other forms like civil societies and limited partnerships.

Some universities emphasize studying the sociedad anónima over other types regulated by the General Law of Societies (Ley General de Sociedades), which may not have practical applications.

Distinction Between Company and Society

A clear distinction is made between "empresa" (business) as an economic reality and "sociedad" (society) as a legal vehicle for conducting business.

The speaker highlights that while businesses can exist as individual entities, societies serve as legal frameworks provided by law to facilitate business operations.

Types of Societies Under Peruvian Law

The Ley General de Sociedades, established in 1998, outlines five main types of societies:

Sociedad Anónima

Sociedad Colectiva

Sociedad En Comandita

Sociedad Comercial de Responsabilidad Limitada

Sociedad Civil

Focus on Corporations

Notably, two-thirds of the Ley General de Sociedades is dedicated to regulating sociedad anónima, indicating its significance within Peruvian law.

The corporation has three subtypes: ordinary, closed, and open corporations, reflecting its versatility and importance in business formation.

Usage Trends and Observations

Historical data shows that the sociedad anónima has consistently been the preferred choice for entrepreneurs since at least 1998.

Other forms like sociedad en comandita and sociedad colectiva are rarely utilized; personal experiences suggest these structures are seldom seen in practice.

Additional Business Entity Considerations

Beyond those defined in the Ley General de Sociedades, there exists a form called individual limited liability company (IRL) which allows sole proprietors to limit their personal liability.

In addition to traditional entities, a new structure was introduced via Legislative Decree No. 1409 for simplified closed joint-stock companies, highlighting ongoing developments in corporate law.

Types of Business Entities in Peru

Overview of Business Structures

The discussion begins with an overview of the types of business entities regulated by Peruvian law, specifically mentioning the simplified closed joint-stock company (SAC) and the EIRE (Empresa Individual de Responsabilidad Limitada).

The speaker highlights that the most commonly used corporate form in Peru is the corporation (sociedad anónima), noting that legislation has focused more on regulating this entity since 1998 compared to others like partnerships.

Distinction Between Capital and Personal Societies

In Peru, there are two main categories of societies: capital societies and personal societies. The corporation is classified as a capital society, while partnerships fall under personal societies.

The speaker elaborates on different forms of corporations: ordinary, closed, and open joint-stock companies, alongside other types such as simplified closed joint-stock companies.

Characteristics of Capital Societies

A key distinction between capital and personal societies is that in capital societies like corporations, what matters most is the financial contribution made by individuals rather than their identities or backgrounds.

The focus on monetary contributions leads to the concept of social capital being represented through shares; thus, decision-making power correlates with one's financial input into the company.

Importance of Contributions Over Identity

When forming a corporation, contributions can be monetary or non-monetary assets valued in money. This determines ownership stakes reflected in share distribution.

In a scenario where one partner contributes significantly more than another, they hold greater decision-making power and receive larger economic benefits from dividends.

Role of Personal Identity in Personal Societies

Unlike capital societies where identity is less significant, personal societies emphasize who is behind the company. This aspect becomes crucial for clients seeking services from professionals like lawyers.

In personal societies such as civil partnerships or limited liability companies, individual qualifications and backgrounds play a vital role in establishing trust and credibility among clients.

Understanding Business Structures in Peru

The Role of Partners in Business Management

The involvement of partners is crucial in managing a company; their shares cannot be transferred without the consent of other partners.

If someone uses another's name for a business, that person may bear responsibility for obligations incurred by the legal entity, even if they are not an official partner.

Distinction Between Types of Companies

In partnerships, the identity and background of the partners are significant, while in corporations, capital contributions take precedence.

Civil societies are limited to providing professional services (e.g., law firms, accounting), emphasizing the importance of who is behind the business.

Importance of Identity in Different Business Activities

Professional service businesses often reflect personal identities through their names due to their reliance on individual reputations.

In contrast, businesses like restaurants or manufacturing may focus more on operational aspects than on individual identities.

Types of Societies: Capital vs. Persons

There are two main types of companies: capital societies where financial contributions matter most and person societies where partner identities are prioritized.

Examples include collective partnerships and limited liability companies which emphasize personal involvement over mere financial input.

Advantages of Limited Liability Companies

Limited liability companies protect personal assets; owners are only liable up to their investment amount.

Engaging in business as a natural person exposes one’s entire wealth to risk compared to forming a corporation with limited liability protections.

Practical Implications for Entrepreneurs

Individuals engaging in various business activities face unlimited liability unless they form a legal entity like a corporation.

Establishing a corporation involves initial effort but provides significant benefits such as limited liability protection against personal asset loss.

This structured overview captures key insights from the transcript regarding business structures and responsibilities within different types of companies.

Understanding Legal Structures in Business

The Concept of a Legal Entity

A legal entity is an independent person with its own rights and obligations, separate from its owners. This structure allows for limited liability, meaning the entity itself is responsible for its debts and obligations, not the individual shareholders or partners.

Advantages of Corporations

Corporations, such as Apple and Microsoft, are examples of sociedades anónimas (anonymous societies) that provide limited liability to investors. This means that if the business fails, personal assets of shareholders are protected from creditors.

Risk Limitation through Corporate Structure

Establishing a sociedad anónima limits the financial risk associated with business activities. For instance, if one invests 10,000 soles into a bakery corporation and it incurs debt, creditors can only pursue the corporation's assets—not personal assets of the investor.

Comparison with Other Business Forms

Unlike sociedades colectivas (collective societies) and sociedades en comandita (limited partnerships), which do not offer limited liability protection to all partners, sociedades anónimas provide significant advantages in risk management and operational flexibility.

Challenges with Limited Liability Companies

While sociedades comerciales de responsabilidad limitada (limited liability companies) also offer limited liability benefits, they require more administrative work compared to sociedades anónimas due to public registration requirements for partner identities and share transfers. This complexity can deter their use in Peru.

Importance of Legal Framework for Businesses

The legal framework aims to support entrepreneurs by providing various structures like corporations that facilitate business growth without exposing them to excessive personal risk from potential liabilities arising from their operations. Legislators create these frameworks to encourage economic activity while protecting individuals' interests.

Understanding Legal Entities in Business

The Nature of Societies and Companies

The speaker distinguishes between "society" as a legal form and "company" as an economic concept, emphasizing that society is a legal institution created by legislators to facilitate business activities.

In Peru, the General Law of Societies regulates these forms, with specific norms complementing it. This law provides the framework for establishing different types of societies.

Types of Societies

There are two main categories of societies: sociedades de personas (people's societies) and sociedades de capital (capital societies). The classification depends on whether personal identity or financial contribution is prioritized.

Within capital societies, the most significant type in Peru is the sociedad anónima (anonymous society), which includes various subtypes such as ordinary, closed, open, and simplified closed stock companies.

Usage and Implications of Different Society Types

Sociedades de personas are less common due to their lack of limited liability benefits compared to commercial and civil limited liability partnerships. This leads to fewer applications in practice.

The sociedad anónima is favored for its limited liability feature, which protects individual partners from personal loss beyond their investment in the company.

Responsibilities within Legal Entities

While personal identity matters in a sociedad anónima, the primary concern remains the capital contributions made by shareholders. This structure allows for clearer financial accountability.

The session concludes with an invitation for questions from participants regarding the discussed topics related to legal entities and responsibilities within them.

Clarifying Legal Fiction

A participant raises a question about responsibility within a sociedad anónima. They inquire about who bears responsibility when harm occurs due to company actions since it operates as a legal fiction.

The speaker explains that while a sociedad is indeed a legal fiction created for business purposes, it possesses its own rights and obligations separate from its members.

Rights of Legal Persons

Legal persons have fundamental rights recognized by constitutional courts; they can hold names, nationalities, and reputations just like natural persons do.

An example illustrates how corporate reputation can be affected through public perception or media representation—highlighting that companies can suffer damages similar to individuals under certain circumstances.

Liability Considerations

When forming a company (e.g., for baking), any liabilities incurred would fall upon the company's assets rather than those of individual partners unless fraudulent intent is proven.

The discussion emphasizes that while laws aim to protect against misuse of corporate structures for fraud, there are always considerations regarding human behavior that complicate enforcement.

Responsibility in Corporate Structures

Understanding Corporate Responsibility

The discussion begins with the assertion that having cars facilitates transportation, but raises concerns about individual responsibility within corporate activities.

Clarification is made that a legal entity (persona jurídica) holds responsibility for its obligations, not individuals unless fraud is proven.

The concept of "lifting the corporate veil" is introduced, indicating that if a company is used for fraudulent purposes, personal liability may arise for its partners.

It’s emphasized that normally, only the corporation itself bears responsibility; exceptions apply only under specific circumstances of fraud.

Liquidation and Bankruptcy Processes

A question arises regarding what happens when a company cannot cover damages due to liquidation or bankruptcy.

Two main ways a legal entity can cease to exist are discussed: through insolvency proceedings (concurso) or voluntary liquidation by shareholders.

In cases where a company enters judicial bankruptcy without fraudulent intent, it simply indicates financial failure rather than misconduct by owners.

Judicial bankruptcy allows creditors to receive a certificate of uncollectibility if the company's assets are insufficient to cover debts.

Decision-Making in Different Company Types

A query about decision-making power distribution in capital versus personal societies leads to an explanation of how decisions are typically made based on majority votes among members rather than capital contributions alone.

In personal societies, decisions are made by majority vote among individuals present rather than weighted by financial input as seen in capital societies.

This distinction highlights how governance structures differ significantly between types of companies and their operational dynamics.

Concerns About Asset Withdrawal Before Liquidation

A concern is raised regarding potential asset withdrawal before declaring bankruptcy or liquidation. The response emphasizes that such actions would be scrutinized under law and could lead to legal consequences if deemed fraudulent.

Liquidation and Bankruptcy Procedures

Understanding Fraudulent Situations in Liquidation

The discussion begins with the mention of fraudulent situations where a company may have resources but is liquidated to avoid debt obligations. Legal actions such as civil actions or nullities can be employed to address these issues.

It is noted that when a company lacks sufficient assets to pay its debts, the liquidation process becomes complex, especially if fraud is suspected. Each case must be analyzed individually based on its unique circumstances.

A "pauliana action" may be initiated against the general manager if there has been misconduct that violates obligations during liquidation. This highlights the need for careful legal scrutiny in each case.

Judicial Bankruptcy Implications

The conversation touches on judicial bankruptcy, which signifies the end of a company's existence without settling its debts. This raises questions about accountability and consequences for stakeholders involved.

Questions Regarding Personal Bankruptcy

Can Individuals Be Declared Bankrupt?

A participant asks whether individuals can also declare bankruptcy, leading to clarification that natural persons can indeed file for bankruptcy under similar judicial procedures as corporations.

Professional Services and Business Structures

There’s a query regarding whether professional services must only operate through civil societies or if they can also use anonymous companies (sociedades anónimas).

The response confirms that while civil societies are typically used for professional services, it is permissible to establish an anonymous company for this purpose as well.

Distinctions Between Company Types

Civil Societies vs. Anonymous Companies

Civil societies are specifically designed for professional activities like law or accounting firms, emphasizing personal qualifications over capital contributions in partnerships.

While both structures are valid for professional services, civil societies allow more control over who qualifies as partners based on their expertise rather than just financial input.

Challenges with Anonymous Companies

Establishing an anonymous company poses challenges in regulating partner qualifications since ownership can easily transfer through shares, potentially compromising the integrity of professional partnerships.

Conclusion: Regulatory Considerations in Professional Firms

Importance of Structure Choice

The choice between forming a civil society versus an anonymous company significantly impacts how professionals manage partnerships and client relationships within their firms.

Ultimately, large law firms often prefer civil society structures due to their ability to maintain strict control over partnership criteria compared to anonymous companies where capital contribution takes precedence over personal qualifications.

Understanding Corporate Dissolution and Bankruptcy

Differences Between Dissolution and Liquidation

The speaker discusses the distinction between dissolution and liquidation in corporate contexts, emphasizing that being part of a prestigious firm without prior experience is intriguing.

In bankruptcy situations, insolvency arises when a company cannot meet its debt obligations. This can lead to two types of bankruptcy: initiated by the debtor or creditors.

For a company to enter bankruptcy proceedings, it must demonstrate insolvency, defined as being unable to pay debts for over 60 days.

Understanding Liquidation

Liquidation can occur even in successful companies; for instance, partners may choose to dissolve their partnership amicably despite financial health.

Unlike insolvency-driven bankruptcies, liquidation can happen when partners agree to end their business operations or upon completion of the company's purpose.

If during liquidation it becomes evident that debts exceed assets, judicial bankruptcy may be pursued by the liquidator.

Bankruptcy Processes

Judicial bankruptcy serves as an orderly process for dissolving a corporation while ensuring no lingering legal entity remains if partners decide on liquidation voluntarily.

A key point is that entering into bankruptcy requires proof of insolvency; otherwise, one cannot declare bankruptcy successfully.

Outcomes of Bankruptcy Proceedings

Companies facing bankruptcy have two paths: they can either request liquidation or propose a restructuring plan to recover financially.

Restructuring allows companies time to stabilize finances and negotiate with creditors about extending payment deadlines or selling assets strategically.

Conclusion on Judicial Bankruptcy

Judicial bankruptcy signifies an irreversible state where recovery isn't possible; it's strictly about extinguishing the company rather than offering recovery options.

The conclusion of judicial processes results in three outcomes: declaring the company's assets extinguished, recognizing debts as uncollectible, and mandating public records update regarding the company's status.

Final Thoughts

The session concludes with gratitude expressed towards participants for their engagement and insights shared throughout this informative discussion on corporate law.