Legal personality of commercial companies

Abstract

The juridical personality of commercial companies implies an important consideration for the faculties that it observes through the identification of: the form of acquisition, its attributes, the form in which it is lost, and the actions that can be developed to contemplate itself. Within the indicated attributes, it is inserted, with greater relevance, the one of the patrimony through which the own assets of the associates and those of the corporate entity are separated. Nor should we forget the additional attributes of legal personality developed by the doctrine, within which are the name, address, capacity, nationality and its state: current, in causal of dissolution and liquidated. In our legal system, and depending on the type of company that is intended to be constituted, legal personality is acquired in two ways, through the elaboration of the public deed (for companies regulated under Decree 410 of 1971), or by registration of the written or private document that gives life to the company (for the Sole-Share Company and the Simplified Shares Company). The juridical personality observes its birth from diverse theories, which roughly can be summarized in 1) the theory of the fiction, that welcomes our normativity in the light of the provision of article 633 of the Civil Code, and which gives form to a legal fiction established by the legislator 2) theory of reality, which consists in giving formal existence to a figure that exists in the society in a material way. It should also be noted that the Colombian Constitutional Court recognizes in multiple judgments the existence of legal personality, and the scope it offers within the mercantile development, that is how it authorizes its protection through guardianship.