La acción social de responsabilidad de los administradores de las sociedades de capitalUn estudio en clave procesal de los artículos 238 y 239 de la LSC

Resumen

The aim of this thesis is to study, from a procedural perspective, the rules of Articles 238 and 239 of the Spanish Capital Companies Law which regulate the directors' liability action and specify the way in which the company or, where the case may be, the shareholders, must bring an action for damages caused by the directors when they infringed their director´s duties or obligations causing damages to the patrimony of the company. These rules, which we call instrumental, are of a procedural nature and are mainly directed to the judge, who has the duty to apply them with all their consequences, thus binding the parties involved in the process. They regulate aspects of the judicial process, or of the procedural legal relationship, and are those to which company must recourse if it wants to see its patrimony restored. This means that they must be interpreted in accordance with the criteria of procedural law, applying the dogmatic and procedural concepts that have been developed by academic and jurisprudential doctrine and which, in precise terms, within our legal system, refer to and regulate the way in which company can bring a corporate liability action. This being so, a very special procedural regime can be inferred from these rules in which the General Meeting of Shareholders has been empowered with excluding and exclusive powers to take a decision of essential importance for the legal system, such as the decision to bring a corporate liability action against the administrator. It also provides a procedural system so that the corporate liability action can be brought by the shareholders who form a minority. The set of rules governing the waiver or settlement of the corporate liability action has also been defined, leaving this decision in the hands of the general meeting, albeit subject to the absence of opposition from a minority, thus maintaining the coherence of the system designed regarding the procedural legal standing to bring the corporate liability action. This very special regime determines that the action can only be brought by the company or by the minority, never jointly, that the action perishes for the company when the claim is brought by the minority and that the company cannot intervene in the proceedings brought by the shareholders, nor can the shareholders intervene in the proceedings brought by the company.