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Derecho Mercantil II (GED70254)

General information

Type:

OB

Curs:

3

Period:

S semester

ECTS Credits:

4 ECTS

Teaching Staff:

Group Teacher Department Language
Sec: A Miguel Trías Sagnier Derecho ESP
Sec: A Javier Fontcuberta Llanes Derecho ESP

Group Teacher Department Language
Sec: B Javier Fontcuberta Llanes Derecho ESP
Sec: B Miguel Trías Sagnier Derecho ESP

Group Teacher Department Language
Sec: C Javier Fontcuberta Llanes Derecho ESP
Sec: C Miguel Trías Sagnier Derecho ESP

Group Teacher Department Language
Sec: D Miguel Trías Sagnier Derecho ESP
Sec: D Javier Fontcuberta Llanes Derecho ESP

Workload distribution

This subject is divided into two parts: the ¿Standard¿ and ¿Extended¿ formats.

Standard:

Workload distribution:
- In-class sessions: Lectures 13.5 hours, 34% of credits
- Directed activities: 14 hours, 35% of credits
Participatory sessions: 6 hours
Case study and assignment preparation: 8 hours
- Independent study: 12.5 hours, 31% of credits

Extended:

Workload distribution:
- In-class sessions: Lectures 9 hours, 23% of credits
- Directed activities: 21 hours, 52% of credits
Participatory sessions: 9 hours
Case study and assignment preparation: 12 hours
- Independent study: 10 hours, 25% of credits

COURSE CONTRIBUTION TO PROGRAM

This subject is a key component in the education of legal experts within the Mercantile Law field. It addresses topics that all law school students, including those later working in non-legal areas, should be familiar and comfortable with.

In terms of values, this subject examines the structures and institutions which make-up the business structure and serve as the foundation for financial markets. Reflecting on the ethical principles on which these institutions are grounded is a key component throughout. These principles include good faith, loyalty, trust and the constant negotiations involving will, its trafficking and its autonomy. These key points will emerge in our analysis of the legal structures and norms as well as their interpretation.

Course Learning Objectives

Upon successfully completing this subject, students should:
- Understand how mercantile companies function and distinguish the different types of companies, choosing the appropriate statutory alternatives for each type.

Competences

11. Tenacity, persistence, constancy
8. Quality orientation and achievement
19. Teamwork and collaboration

CONTENT

1. CONTENT

STANDARD FORMAT: MERCANTILE COMPANIES
Objective: Learn about different types of companies, in particular, companies with share capital.
Content: Mercantile companies; partnerships; companies with share capital: concept, foundation, by-laws, capital, governing bodies and annual accounts.

EXTENDED FORMAT: MERCANTILE COMPANIES
Objective: Learn about the dynamics within companies with share capital.
Content: Dynamics within governing bodies in companies with share capital and verification of annual accounts, as well as modifying by-laws and dissolving and terminating the company.

STANDARD FORMAT SYLLABUS:
I. Mercantile companies and partnerships
TOPIC 1. MERCANTILE COMPANIES
I. Origin and evolution. Formation of different company types until their codification. Codification during the 19th century. Evolution to today and trends in new company types. Economic importance of entrepreneurs. Mercantile company concept. Civil and mercantile companies. Choosing the type of company. Merchantability based on the object or structure. Use of mercantile types for non-commercial purposes.
TOPIC 2. MERCANTILE COMPANIES
II. Founding companies. Foundational business and its components: legal doctrine on business foundation; Spanish Law. Capability and consent. Object: different meanings (object as an activity to be carried out and as a contribution: the contribution and its fit with the type of company). Cause. Structure. Effects of its foundation. Legal personality: the companies¿ degree of subjectivation. Internal legal relations: partner/shareholder-company. Administration and representation: governing bodies. External legal relations: assets and responsibility. Headquarters and nationality. Foreign companies in Spain. Types of mercantile companies. Legal and atypical types. Partnerships and companies with share capital. Joint ventures.
TOPIC 3. PARTNERSHIPS
General partnerships: concept, traits and importance. Foundation. Internal legal relations: partnership by-laws. Organisation: management and agreements. Company property: partner shares and the obligation to contribute. Particularities of industrial partners. External legal relations: representation. Responsibility for company debt. Ordinary limited partnerships and ordinary limited partnerships with share capital: concept, traits and importance. Foundation. Types of partners and their respective traits. Internal legal relations: by-laws for limited partnerships. Organisation: management and agreements. Company property: partner shares and the obligation to contribute. External legal relations: representation. Responsibility for company debt. Dissolution and termination of partnerships.

II. Introduction to companies with share capital
TOPIC 4. INTRODUCTION.
Concept and regulating companies with share capital. Public limited and limited liability companies: historical origins and evolution. Economic and social importance in the market system. Diverse economic functions: open and closed companies. Spanish Law: precedents and current norms. Concept and traits. Share capital companies. Limited responsibility. ¿Lift the veil¿ doctrine. Legal personality and organisation. Merchantability due to structure. Incorporation of the condition of partners into the security, shares, as a differential element of public limited companies.
TOPIC 5. FOUNDATION
Types of foundation. Simultaneous foundation: formal requirements, public deed and registration. Regime governing single-person public limited companies. Successive foundation: process. Nationality. Headquarters and website. Public deed and by-laws: content. Advantages for founders and promoters. Foundation process: regime governing obligations assumed before registration. Irregular companies. Foundational defects. Annulment.
TOPIC 6. EQUITY, SHARES AND EQUITY OWNERSHIP. BUSINESS BASED ON OWN SHARES AND EQUITY OWNERSHIP. DEBT ISSUANCE.
Equity concept. Assets and patrimony. Key authorisations regarding equity and equity ownership. Debate on the role of capital protection. Subscription and payment. Partner contributions: monetary and non-monetary. Shares and share division as part of capital. Principle regarding the equivalence between the nominal value and contribution. Partner obligations: contribution, payment, issuance with bonus and accessory benefits. Delinquent shareholder. Partner rights: political rights (vote, information and contestation) and economic (participation in benefits, settlement share). Pre-emptive rights regarding capital increases. Other rights. Ordinary and privileged shares. Shares without vote. Shares as negotiable instruments. Representation via securities and account entries. Formal requirements for securities: registered and bearer shares. Scrips. Registry of shares. Share and equity ownership transmission. Legal regime. Limits to free transmission. Rights in rem governing shares: co-ownership, usufruct and pledge of shares. Business based on own shares and equity ownership: original and derivative acquisition, financial assistance. Cross-shareholding. Debt securities: concept and types. Convertible debt securities. Issuance. Syndicate of bondholders. Amortisation..
TOPIC 7. GOVERNING BODIES IN COMPANIES WITH SHARE CAPITAL
Governing bodies in companies with share capital. Organisational models in public limited companies: evolution and current trends. The position of governing bodies and their relation in Spanish Law. Modern trends in corporate governance and compliance. The general assembly of shareholders. Assemblies in closed companies. Assemblies in open companies. Problems associated to delegation and absenteeism. Different types of partners: control, institutional and individual. Assembly competencies. Types of assemblies: ordinary, extraordinary, general and special. The administrative body. General traits and structure. Administrator functions and competencies: management and representation. Representation: acts unrelated to the company¿s object. Legal nature of the administrative relation. Capacity and aptitude to be administrator. Prohibitions and incompatibilities. Naming and term. Firing administrators and causes. Administrator obligations: diligence and protection of business judgment; loyalty and conflicts of interest. Regime governing responsibility (budgets and subjective extension) and its limitations.
TOPIC 8. ANNUAL ACCOUNTS
Composition. Balance sheet. Profit and loss account. Annual report. Statement of changes in equity. Statement of changes in cash flow. Management report. Preparing annual accounts. Preparing abridged annual accounts. Consolidated accounts. Approval of annual accounts: purpose and treatment in comparative Law. Regime governing their publication: inclusion in the Mercantile Registry. Consequences of not depositing them in the Mercantile Registry. Application of benefits. Dividend payment. Legal, statutory and voluntary reservations. Interim dividend.

EXTENDED FORMAT:
I. Dynamics in companies with share capital.
TOPIC 9. GENERAL ASSEMBLY OF SHAREHOLDERS
Call: faculty and obligation to convene; requirements; legal call; universal assembly. Constitution: right to attend; representation; quorums. Celebration, right to information; deliberation; voting; and agreements on the exercise of votes (share syndication: publication in listed companies); prohibition to vote in case of conflict of interest; majorities and adopting agreements. Regulations governing general assemblies. Minutes of assembly meetings and their approval. Challenging agreements. Causes. Legitimation, expiration and proceedings.
TOPIC 10. ADMINISTRATORS.
Remuneration: systems, determination and approval. Board of Directors as a collegiate body. Naming members: system of proportional representation and co-optation. Internal functioning, positions, delegation of faculties and faculties that cannot be delegated. CEOs and executive committees. Challenging agreements.
TOPIC 11. VERIFICATION OF ANNUAL ACCOUNTS.
Auditing accounts. General problem and evolution in comparative Law. Spanish regime: obligatory nature. Aim of audits and audit report content. Auditors: independence, naming, revocation and responsibility.
TOPIC 12. MODIFYING BY-LAWS. SEPARATING AND EXCLUDING PARTNERS.
Legal approach and treatment. Shareholder protection norms: general and specific requirements (imposition of new obligations, harmful modifications for a given type of share). Special cases: restrictions to the free transmission of shares and changes to the company object. Separation of partners. Separation due to not distributing dividends. Partner exclusion.
TOPIC 13. DISSOLUTION AND SETTLEMENT.
Concept and causes of dissolution. Proceedings. Effects. Administrator responsibility with respect to dissolution. Dissolution and bankruptcy proceedings. Company settlement. Liquidators. Settlement actions. Termination of the public limited company.

Methodology

The teaching methodology applied is based on:
a) Lectures or debates on the majority of topics.
b) Resolution of case studies related to the subject content.

Consequently, students¿ work will comprise:
a) Studying the material taught, supported by one of the recommended manuals.
b) Preparing specific topics prior to the sessions in question.
c) Preparing case studies (not to be turned in).

At the start of the sessions dedicated to case study resolutions or discussing topics prepared beforehand, faculty may give students a short-answer question to answer in writing. These will be marked. Similarly, faculty may assess students¿ interventions during case study resolution or topic discussion sessions.

Assessment criteria

Assessment for this subject aims to encourage students¿ ongoing work and progressive assimilation of the material covered.

The assessment components include:
a) Answering the questions raised in class and the written assignments carried out in the latter.
b) Tests on the case studies and student interventions during their discussion.
c) The final exam.

Students¿ final marks will be weighted as follows:

A) If their marks on the final exam are under a 4.5 (out of 10), their final marks for the subject will be said mark on the final exam.
B) If their marks on the final exam are above a 6 (out of 10), their final marks for the subject will be the highest of the following two marks:
B.1. Final exam
B.2. Final exam x 0.5 + the mean marks on a) and b) above x 0.5.
C) If their marks on the final exam are between a 4.5 and 6, their final marks for the subject will be as follows:
Final exam x 0.5 + the mean marks on a) and b) above x 0.5.

Students who do not:
1. Pass the course after the first-sitting of the final exam due to not attending class, failing to carry out the assigned activities or copying them, will not be able to re-sit the final exam. Instead, they will have to re-register for the subject the following year and complete all the activities assigned by faculty.
2. Achieve the level of competencies demanded may pass this subject but they will not be able to complete the final degree project until they have achieve the level of competencies demanded by the programme.

Bibliography

Short bibliography
BROSETA PONT, MANUEL
Manual de Derecho Mercantil
Ed. Tecnos. Barcelona, latest edition.

SÁNCHEZ CALERO, FERNANDO
Instituciones de Derecho Mercantil
Ed. Mc. Graw Hill, Madrid, latest edition, 2 Vols.

MENÉNDEZ MENÉNDEZ, AURELIO
Lecciones de Derecho Mercantil, Thomson Reuters, Madrid, latest edition

VICENT CHULIÁ, FRANCISCO
Introducción al Derecho Mercantil
Tirant lo Blanch, Valencia, latest edition.

Complementary bibliography and material:
URÍA RODRIGO, MENÉNDEZ AURELIO
Curso de Derecho Mercantil
Ed. Civitas. Madrid, 2005, 2 Vols.

URÍA RODRIGO, MENÉNDEZ AURELIO,
Comentario al régimen legal de las sociedades mercantiles
Ed. Civitas. Madrid, 1999, varios vols.

ROJO FERNÁNDEZ-RÍO, ÁNGEL; BELTRÁN, EMILIO
Comentario de la Ley de Sociedades de Capital
Ed. Civitas. Madrid, 2011

Legal texts
General Laws
- Spanish Constitution
- Civil Code

Mercantile Laws
-Commerce Code
-Royal Legislative Decree 1/2010, which approved the Capital Companies Act.

Timetable and sections

Group Teacher Department
Sec: A Miguel Trías Sagnier Derecho
Sec: A Javier Fontcuberta Llanes Derecho

Timetable Sec: A

From 2018/9/6 to 2018/11/22:
Tuesday and Thursday from 11:15 to 12:45. (Except: 2018/9/11 and 2018/11/1)

Group Teacher Department
Sec: B Javier Fontcuberta Llanes Derecho
Sec: B Miguel Trías Sagnier Derecho

Timetable Sec: B

From 2019/2/6 to 2019/5/2:
Each Thursday from 18:00 to 19:30. (Except: 2019/4/18)
Each Wednesday from 14:30 to 16:00. (Except: 2019/4/17 and 2019/5/1)

Group Teacher Department
Sec: C Javier Fontcuberta Llanes Derecho
Sec: C Miguel Trías Sagnier Derecho

Timetable Sec: C

From 2019/2/4 to 2019/5/2:
Each Monday from 18:00 to 19:30. (Except: 2019/4/15 and 2019/4/22)
Each Thursday from 16:15 to 17:45. (Except: 2019/4/18)

Group Teacher Department
Sec: D Miguel Trías Sagnier Derecho
Sec: D Javier Fontcuberta Llanes Derecho

Timetable Sec: D

From 2018/9/6 to 2018/11/22:
Tuesday and Thursday from 9:30 to 11:00. (Except: 2018/9/11 and 2018/11/1)