Constitution injunction sole proprietorship. Clearance
Monday, January 15, 2007
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| Legal Office To: Guillermo Enrique Vallejo Ángel Notary sixth Cra 14 No. 12-15 Pereira Subject: creation of a sole proprietorship injunction Code ER --- 006-CN 47038/529/865-06 Date: December 29 , 2006 In response to your communication, in which questions about the viability or not, that the curator of an injunction to the latter constitutes a sole proprietorship and contribution for this purpose, real property comprising the estate of the grantor, not that this court has the authorization, adding that if the case falls under Article 103 of the Commercial Code and the Constitutional Court decision (Case C- 716-06). In this respect I show: Legal • Civil Code, art. 483 et seq, 1504, 1741 • Commercial Code, art. 103 and 111 Article 103. Replaced by section 2 of Act 222 of 1995. The incompetent are not partners of partnerships or limited partnerships managers. In other cases, may be members, provided they act through their representatives or with the authorization, as appropriate. For the contribution of interests in land, it is sufficient compliance with the requirements of Article 111. (...)". (The strikeout was declared unconstitutional by the Constitutional Court, Judgement C-716, 2006). • Act 222 of 1995, Act 1014 of 2006 and Decree No. 4463 of 2006, which regulates Article 22 of Law 1014 of 2006. • Decree 960 of 1970: ss. 6 and 21 considerations of the legal office In accordance with Article 71 of Law 222 of 1995, "[M] hrough the Company Superintendency of Notaries and Registration Ministry of Interior and Justice of Colombia Sole natural or legal person who meets the qualifications required to exercise the trade, may allocate part of its assets to perform one or more activities of a commercial nature, "adding that it has been entered in the commercial register, it is a legal person, that is, which is different from this entrepreneur and independent. According to the Guide # 24 Chamber of Commerce Bogota, from the record there are two subjects of law with legal personality perfectly differentiated: first-person company that acquires the merchant category and on the other hand, the natural or legal person that gave birth to the first. Each has its own assets and its capacity for organized economic activity has been proposed. So, the person who contributes assets to the establishment of a sole proprietorship, it appears the domain, it performs a "transfer" for the EU contribution in the case of real estate, it must be given by writing public and sign the relevant registration office. According to Article 103 of the Commercial Code, the incompetent can not be shareholders of companies where their assets or undertake unlimited liability and must act through their representatives or with permission. That provision stated that when unable to furnish the property, you would just register the deed before the registration offices, ie the law 222 of 1995, had abolished the requirement of judicial license contested in the Civil Code. Constitutional Court to consider the final part of the said article, said the ruling C-716, 2006, the legislature and, by eliminating the legal license for the provision of real estate of disability, checked out, by not providing an alternative measure effective and conducive to safeguard his interests against those property rights. In one of its preamble, the Corporation said: (...) truth is that making contributions of interests in land the left unable to have his head in a safe investment, especially protected by law, to change the other subject to greater chances of gain or loss. And that also is true that in this way the law tolerates pretermisión judicial license in general civil law requires to carry out acts devices or the tax on real estate incapable. In another of his asides justified the permanence of judicial license and Superintendency of Notaries and Registration Ministry of Interior and Justice of Colombia (...) judicial authorization prior to contribution rights society real property itself incapable of constitutional [e] a necessary and conducive to protecting its interests in (i) was previously and therefore preventive, (ii) allowed the intervention of the judge and the representative of the prosecution , impartial authorities when assessing the usefulness or necessity of the act, (iii) did not tolerate that, by way of a contribution to society without any requirements other than the registration of the transfer deed at the registry office, is pretermitieran all other Civil Code provisions requiring court for acts licensed devices or unable to levy on assets, (iv) favored in the head is unable to maintain rights historically granted special value and are protected by a special legal regime, (v) remove the danger legal acts irresponsible or malicious to the rights of the disabled. Based on the foregoing, the Court declared unconstitutionality of the term defendant, and consequently noted that "from now on the contribution to society interests in land at the head of incapable be subject to prior judicial license requirement, and other requirements under the general rules of law civil. " Based on the reviewed regulations and in Case C-716, 2006, this office conceptualized that the contribution of real estate for the establishment of a sole proprietorship a disability, who acts through his guardian, requires prior judicial license, according to the provisions of Article 483 of CC, 822 and 103 C. Trade and expresses reference in Article 80 of Law 222 of 1995. Sincerely, Carlina Gomez Durán Chief Counsel Office (E) Projected Edilpa |
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