PROFESSIONAL SOCIETIES: THEIR ADAPTATION TO THE LAW 2 / 2007. DEFINITION OF SOCIAL PURPOSE. PROFESSIONAL ASSOCIATION CERTIFIED. LIST OF PARTNERS AND THEIR CONTRIBUTIONS. Resolution of March 1, 2008, the Directorate General of Registries and Notaries, in the action brought by "Uribe Sánchez SL", against the refusal of the commercial register of Cantabria, to register a script adaptation of the society Professional Societies Act. Binding in part.
Facts: This is a deed of amendment of articles of a limited company to adapt to the Law 2 / 2007 of professional societies. This will only change the art. 1 on the name of the company, art. 2 on the rules governing, and art. 3 relating to the social order. This art. 3 is written in an expository, ie through a list, intended to be exhaustive, of the activities of the professionals who make up society, in this case a trade economist and a graduate. The register describes the document with the following defects:
1. He opposes the entry of the object, as drafted, because in his view, part of the activities listed or express the capacity to act in society, or are specific to the legal person, as such, or are characteristic of other professional fields, or may be carried out by professionals other than those that currently make up society. In the end the calls for the register is that the expression of purpose is limited to simply reflect the professional class in question.
2. Not incorporated into the writing of the respective licenses professional. Contains only the manifestation of that have shown that the notary and the same is the number of collegiate and current rating for the exercise of the profession.
3. Not known manifestation of professional partners who are not incompatible and that are currently enabled for the exercise of the profession concerned.
4. Not recorded in writing the partner relationship with the units that correspond to each of them for the purpose of proving that ¾ of social capital are of professional partners.
5. No ancillary services are regulated by professional partners.
In previous defects turn on 1, 2 and 4. Respect of 1 defends the list of activities since they are all part of the professional status of economists and business graduates. Regarding the 2 nd it is stated in writing that the certificate has been displayed you Notary and this attests to the required data. And finally it uses the default 4 but now it seems that society does not fulfill the requirements that ¾ of the capital belongs to professional partners, this will only be because of dissolution of the company you out after 3 months without recompose the composition of capital and concludes that the relationship of partners and shares that each member does not necessarily reflect in writing.
Doctrine: The DG, in a very important decision, not only by the doctrine it contains, but by the time it is delivered very close to the limit to adapt its statutes have the professional society, gives a full answer to all questions raised by the note of qualification and the applicant. Let's see:
1. On the formulation of the object of professional societies, clearly and with a wealth of arguments, confirmed the note rating, stating that the importance and significance of objects and the objective pursued by Law 2 / 2007, "no can be admitted "a list of activities for the formulation the object of professional societies. Therefore, the object must be expressed with words that the law uses, namely "the joint exercise of a profession" and therefore expressed the profession, above all enumerations of the professional activities to develop, are intended to included in the social order.
2. Defect while the second appeal, not joining the writing of the professional licenses, is not confirmed. It relies DG that there is no statute or regulation, contrary to what happens in many other cases, which require such incorporation and that if the notary attests that the certificate is displayed and sufficient review of the data are and which are necessary for the registration of the company, it is covered by the presumption of veracity and integrity of the notarial document itself.
3. Finally, the third defect confirms turned the note as if it is true the assertions of the appellant, so that the change of partners should be reflected in the commercial register and thus to make this possible, both in the incorporation , and the transformation of society other professional society or your own adaptation, must contain those who are the partners and the number of shares each one. DG Ends
not accessing the registration requested partial, since it is obviously can not join the art. 1 of 2 on naming and rules governing society, because it can not be considered adapted to the Law 2 / 2007 and even that is not the term may not be professional in their names. And also denied entry for the default remedied seat extension for filing appeal and serves the purpose of such entry.
Comment: Transcendental resolution of the DG, not only for the specific case referred to therein, but in general to clarify the rules on registration and professional societies adapt to the current law. From it we extract
the following conclusions:
1. The object of the professional societies should be expressed by saying simply that it is "the development of the professional activity of the question."
2. This is required not only to the constitution of society, but also as to the order, to adapt it. So one of the agreements adaptatorios should be to the adequacy of the objects to the new law it will be difficult for professionals in the pseudo companies registered at the Companies Registry in order to speak with the conciseness required.
3. Not an obstacle, as is well expressed DG in its first legal basis, expressing that the object can be developed through general practitioners, as is clear from the Act that the object is performed by professionals but they do not necessarily have to be members of society and may be strangers to it and without prejudice to the mandatory ancillary professional partners have to perform.
4. It is not necessary to incorporate the respective professional association certificates to writing by the constitution of a professional society or meets the Act 2 / 2007. Just as the notary of faith that will display the certificate out the information needed for writing and registration, ie the school to which the professional, the number of collegiate and current rating for the exercise of the profession. All other details of the certificate, who issued them, authenticity, date hereof, professional ID, etc. are finding a notary.
Perhaps at this point it is desirable that future statutory regulation of the professional society, which we assume will one day regulate all matters relating to professional school certificate, for the tremendous importance given that the founders have in this social form Undoubtedly, that license is one of the essential parts of the system. Therefore be very desirable to regulate their requirements and especially its effect because it does not appear that these certificates, for the purposes of execution of the deed of incorporation or adaptation of a society to Law 2 / 2007, should be open-ended for the risk implies that there has been any change in professional status to which they relate. Therefore be said that statutory regulation should clarify these points and the inclusion or not in writing, that all the cases cited by the existing DG in the LSA, the RRM LSRL and its solution should be different which adopts, as we do not remember in principle but do not discount that there is-no event that external document certified by the notary authorizing any event this document should not be incorporated into the writing, even by the very security of the attesting notary.
5. Is necessary in the adaptation of societies to Law 2 / 2007, included in the deed or certificate of corporate resolutions, a list of professional partners both as non-professionals with the shares that correspond to each.
6. Finally it is noteworthy that in the note rating does not refer to the need to modify other articles of the statutes of the society so that it is adapted to Law 2 / 2007. Even without knowing these statutes can not clarify this point, and we assume they were properly qualified, none of which had nothing contradictory to Law 2 / 2007, we estimate, however, that is really hard for a limited company can maintain its charter without alteration, when adapted to the new Act are so many issues it touches the Law 2 / 2007, only if it is a statutory minimum (see Section 13 LSRL), not one of their rules clash with the requirements of the Act 2 / 2007. In this regard we review the new case of dissolution of art. 4 of the Act, the manner and conditions of the transfer of shares of the professional members of the art. 12, the causes of separation art. 13, the exclusion of members of the art professional. 14, forced transfers and mortis cause of art. 15, the approval regime final distribution of benefits of art. 10.2, etc, all of which rules should be considered if these materials, or some of them, as is usual in almost all statutes of limited companies, self-regulation are listed in the statutes of the society. Even in the case of minimum statutes, apart from the name and purpose, perhaps the wording of the article on social capital must accommodate the professional or amateur of the shares, but can also be estimated is not strictly necessary if It follows from writing or social arrangements. PDF (2008/05115; 7 pages. - 251 KB.)
Facts: This is a deed of amendment of articles of a limited company to adapt to the Law 2 / 2007 of professional societies. This will only change the art. 1 on the name of the company, art. 2 on the rules governing, and art. 3 relating to the social order. This art. 3 is written in an expository, ie through a list, intended to be exhaustive, of the activities of the professionals who make up society, in this case a trade economist and a graduate. The register describes the document with the following defects:
1. He opposes the entry of the object, as drafted, because in his view, part of the activities listed or express the capacity to act in society, or are specific to the legal person, as such, or are characteristic of other professional fields, or may be carried out by professionals other than those that currently make up society. In the end the calls for the register is that the expression of purpose is limited to simply reflect the professional class in question.
2. Not incorporated into the writing of the respective licenses professional. Contains only the manifestation of that have shown that the notary and the same is the number of collegiate and current rating for the exercise of the profession.
3. Not known manifestation of professional partners who are not incompatible and that are currently enabled for the exercise of the profession concerned.
4. Not recorded in writing the partner relationship with the units that correspond to each of them for the purpose of proving that ¾ of social capital are of professional partners.
5. No ancillary services are regulated by professional partners.
In previous defects turn on 1, 2 and 4. Respect of 1 defends the list of activities since they are all part of the professional status of economists and business graduates. Regarding the 2 nd it is stated in writing that the certificate has been displayed you Notary and this attests to the required data. And finally it uses the default 4 but now it seems that society does not fulfill the requirements that ¾ of the capital belongs to professional partners, this will only be because of dissolution of the company you out after 3 months without recompose the composition of capital and concludes that the relationship of partners and shares that each member does not necessarily reflect in writing.
Doctrine: The DG, in a very important decision, not only by the doctrine it contains, but by the time it is delivered very close to the limit to adapt its statutes have the professional society, gives a full answer to all questions raised by the note of qualification and the applicant. Let's see:
1. On the formulation of the object of professional societies, clearly and with a wealth of arguments, confirmed the note rating, stating that the importance and significance of objects and the objective pursued by Law 2 / 2007, "no can be admitted "a list of activities for the formulation the object of professional societies. Therefore, the object must be expressed with words that the law uses, namely "the joint exercise of a profession" and therefore expressed the profession, above all enumerations of the professional activities to develop, are intended to included in the social order.
2. Defect while the second appeal, not joining the writing of the professional licenses, is not confirmed. It relies DG that there is no statute or regulation, contrary to what happens in many other cases, which require such incorporation and that if the notary attests that the certificate is displayed and sufficient review of the data are and which are necessary for the registration of the company, it is covered by the presumption of veracity and integrity of the notarial document itself.
3. Finally, the third defect confirms turned the note as if it is true the assertions of the appellant, so that the change of partners should be reflected in the commercial register and thus to make this possible, both in the incorporation , and the transformation of society other professional society or your own adaptation, must contain those who are the partners and the number of shares each one. DG Ends
not accessing the registration requested partial, since it is obviously can not join the art. 1 of 2 on naming and rules governing society, because it can not be considered adapted to the Law 2 / 2007 and even that is not the term may not be professional in their names. And also denied entry for the default remedied seat extension for filing appeal and serves the purpose of such entry.
Comment: Transcendental resolution of the DG, not only for the specific case referred to therein, but in general to clarify the rules on registration and professional societies adapt to the current law. From it we extract
the following conclusions:
1. The object of the professional societies should be expressed by saying simply that it is "the development of the professional activity of the question."
2. This is required not only to the constitution of society, but also as to the order, to adapt it. So one of the agreements adaptatorios should be to the adequacy of the objects to the new law it will be difficult for professionals in the pseudo companies registered at the Companies Registry in order to speak with the conciseness required.
3. Not an obstacle, as is well expressed DG in its first legal basis, expressing that the object can be developed through general practitioners, as is clear from the Act that the object is performed by professionals but they do not necessarily have to be members of society and may be strangers to it and without prejudice to the mandatory ancillary professional partners have to perform.
4. It is not necessary to incorporate the respective professional association certificates to writing by the constitution of a professional society or meets the Act 2 / 2007. Just as the notary of faith that will display the certificate out the information needed for writing and registration, ie the school to which the professional, the number of collegiate and current rating for the exercise of the profession. All other details of the certificate, who issued them, authenticity, date hereof, professional ID, etc. are finding a notary.
Perhaps at this point it is desirable that future statutory regulation of the professional society, which we assume will one day regulate all matters relating to professional school certificate, for the tremendous importance given that the founders have in this social form Undoubtedly, that license is one of the essential parts of the system. Therefore be very desirable to regulate their requirements and especially its effect because it does not appear that these certificates, for the purposes of execution of the deed of incorporation or adaptation of a society to Law 2 / 2007, should be open-ended for the risk implies that there has been any change in professional status to which they relate. Therefore be said that statutory regulation should clarify these points and the inclusion or not in writing, that all the cases cited by the existing DG in the LSA, the RRM LSRL and its solution should be different which adopts, as we do not remember in principle but do not discount that there is-no event that external document certified by the notary authorizing any event this document should not be incorporated into the writing, even by the very security of the attesting notary.
5. Is necessary in the adaptation of societies to Law 2 / 2007, included in the deed or certificate of corporate resolutions, a list of professional partners both as non-professionals with the shares that correspond to each.
6. Finally it is noteworthy that in the note rating does not refer to the need to modify other articles of the statutes of the society so that it is adapted to Law 2 / 2007. Even without knowing these statutes can not clarify this point, and we assume they were properly qualified, none of which had nothing contradictory to Law 2 / 2007, we estimate, however, that is really hard for a limited company can maintain its charter without alteration, when adapted to the new Act are so many issues it touches the Law 2 / 2007, only if it is a statutory minimum (see Section 13 LSRL), not one of their rules clash with the requirements of the Act 2 / 2007. In this regard we review the new case of dissolution of art. 4 of the Act, the manner and conditions of the transfer of shares of the professional members of the art. 12, the causes of separation art. 13, the exclusion of members of the art professional. 14, forced transfers and mortis cause of art. 15, the approval regime final distribution of benefits of art. 10.2, etc, all of which rules should be considered if these materials, or some of them, as is usual in almost all statutes of limited companies, self-regulation are listed in the statutes of the society. Even in the case of minimum statutes, apart from the name and purpose, perhaps the wording of the article on social capital must accommodate the professional or amateur of the shares, but can also be estimated is not strictly necessary if It follows from writing or social arrangements. PDF (2008/05115; 7 pages. - 251 KB.)
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