Liability of Legal Person
By: Andrew Chang Guillermo Hernández (*)
I. Introduction. Regularly
often impose liability between individuals, it is precisely those who, by their conduct causing injury to others and in these cases beyond the problems of proximate causation liability, causation or determination of the identification and quantification of damage, the identity of the person responsible is clear or at least pre-established by law and is such that you have when responding to another office for the harm it produces or when responding to the damage of the ward exercise that acts with discernment.
However, this direct determination of the subject caused the damage, not always straightforward, because in case of damage caused by a legal person, the question is who will be responsible if the legal person, as an entity subject to rights and obligations or will direct its members, who are ultimately materialize who perform or conduct on behalf of course is of such entities.
At this point, therefore, worth noting the various theories developed to support the existence of legal persons and thus to determine who shall be liable for damages generators acts of them.
As you know there are two theories that attempt to explain the existence of legal entities: The Theory of the legal fiction and the real personality theory, organizational theory and legal reality.
II. The Theory of Legal fiction .-
As explained by Dr. Enrique Elias Larosa, citing Perez de Ayala, is a legal provision which gives legal effect to certain factual assumptions, ignoring its true nature. The fiction does not alter or hide the real truth but it creates a legal right, different from the reality. Meanwhile
Perick and De Castro, state: the theory of fiction presents a simple and logical the problem of determining the legal nature of corporations. Since only humans are persons, the law has decided that something else is the same: to give companies like the rights of individuals has been established that the former are entitled to be legal.
III. The theory of real personality.
The other theory seeks to explain and substantiate the existence of legal persons, is the real personality theory, organizational theory and legal reality, as has been called either. According to this theory goes right in the world of abstract ideas and therefore not required to support physical counterpart the legal reality of an institution abstract contained in a statute that punishes. An example of this is the right of property where the enjoyment of his domain, the holder can exercise without the need unaq physical possession or control over the thing. About
positions must be loved Larosa Elias tells us "... It is difficult to accept that legal entities are only fictions. If called by the fact they want legal persons compared with individuals, obvious difference and is easily the concept of fiction. But if we analyze its existence, its independence from the partners and their ability to be autonomous subjects, we have concede that the real personality theory or legal reality, is the most solid foundations "
on the aforesaid, it should be noted that the legal person can not develop its activities and express their skills and express their will if not through of natural persons. It is the latter part of the governing bodies of the company and exercise the powers of attorney. Here it is clear that legal persons are not directors or agents of the members but the legal entity
therefore have the legal personality creates the effect of totally independent to its members on issues of public liability and liability and legal representation. In short, the legal personality enter it generates independent company and its partners.
The premise argued before, is used to determine the liability of legal persons answered the partners or society itself, this is one of the big questions that pit the civil liability in legal construction of society.
IV. Recognition as a subject of a legal person. Vanished
legal mirages offered the theory of fiction and eliminated the "confusion organic" Gierke. Cossio-resizing egological the formalist approach Kelsen, revealed that the legal person has no other existence than that which the members who compose it, laying the foundation for three-dimensional approximation of the concept of legal person as an organization of people who are grouped in seeking an end and valuable and complies with the formality of registration, there are two centers of allocating rights and duties: that of the entity and the members that compose it, taken individually.
For Professor John Evans deserves particular attention from this perspective, the ability and responsibility of the legal person. In fact, the same, while central allocation of rights and duties has legal capacity. On the subject is to distinguish that in the case of this particular type of subject of law, there is no logical obstacle of the abstract to prevent this complaint (rights and duties of the corporation), the acts performed by their bodies "is not, or could be, a psychological complaint (...) but a legal complaint"
IV. Responsibility of the legal person and acts that make it responsible.
As such an individual and by law a legal person is an entity subject of rights and obligations and therefore they can charge duties and recognize rights. This has now recognized the right of enjoyment and exercise of legal entities, of course, the latter embodied by individuals, this is for the directors of the entity. Therefore, for purposes of determining when a person is civilly responsible to justice third, in which case the acts of those who represent these collective entities, make it accountable.
The doctrine distinguishes between two major groups, on this point: the first, collected in the German system, which means an overall capacity of the acts of the legal person, ie you are liable for all acts undertaken by it or its representatives made in your name, the second force in the Anglo-Saxon system that informs us of a limited liability. Our country takes the first theory, in which the third party in good faith does not assume the risks of corporate traffic in the market, as well as can be seen from Article 12 of the General Corporation Law.
also worth stressing that the participation of natural persons, as a member of the Law Society, as part of the same organizational structure, ie through organs. Participation or representation which must be distinguished with that exercised by the representatives of minors or interdicts, as those unable to manage their own interest on their own terms of age or health, the legal structure of legal representation for the purpose of his care or protection.
The recognition of the ability to enjoy legal authorities found no major controversies, which essentially creates the time discussion is that local groups can exercise exercise capacity, as this is a basic principle of tort liability.
legal entities although they are subjects of rights and obligations, it is also true that their actions do not make it themselves but that, of course to be abstract entities with legal recognition, must be made through their representatives. It is in these cases where it is important to determine in which cases the conduct of representatives of a legal or binding responsibility to his client.
In this regard we must remember that the allocation of responsibilities such acts against representatives of the entity they represent, is subject to the rules of representation contained in the Civil Code, as in the rules of Articles 12 and 13 of Law 26887, General Corporate Law,
In summary we can say that if the representative is acting within its functions, the legal act directly effects (Art. 160 of the Civil Code). Failure to act within the exercise of its functions, such act shall be ineffective (Art. 161 of CC), unless such act be ratified (Article 162 of CC). These same rules apply to the case of Dependents working in establishments of legal persons open to the public, however, these rules, listed in the strict legal act does not refer specifically to matters relating to the allocation of liability of the person ju4ridica against damage to third parties, as they refer mainly to the effectiveness and ineffectiveness of the actions of the representatives of legal persons.
V. Liability of the legal person designed by the Peruvian Civil Code.
In the event that the Authority, he or the clerk may cause more harm year (or during functions), in civil liability, there are two cases: a.
If the liability is contractual .- implementing Article 1325 of the CC, that is liable to the damaged one legal person, notwithstanding that this direct repeat against the debtor. B.
If tort liability is, applying Article 1981 of the CC is generated (in solidarity) the direct responsibility of the agent and at the same time, responsibility (misnamed "indirect") of the entity (which is direct, but in fact third party).
VI. Oregano Theory against the liability of legal persons.
It has been argued, rightly, that the liability of legal persons reporting the absence of the principle of "personality of responsibility" (Societas delinquere non potest), this principle was not merely the result of understanding the civil liability in most primitive form, ie as an obligation that arises from the damage caused by direct physical action (fraudulent or negligent) of a natural person. Within this conceptual framework, the legal person, is irresponsible and malicious human acts, of which the authors respond direct. At present, the person law "directly responsible for the crimes carried out by individuals who have acted on their behalf and on his behalf. Individuals are 'organs' of the body and on the basis of the organic, all his action served in that capacity is charged directly to the entity "
As previously advanced, conceptually, the body should not be confused with the representation. Some say, following a sector of the Italian doctrine that "the genuine representation involves two areas of law (that of the representative and the represented), so that one is subject to action and a complaint" (16). However, it warns, both efficiency business concluded on behalf of the legal person, as the responsibility of representation of legal persons, there is no difference between body and representaciónll7!, is why it is stated that in the case of legal persons "we with a sui generis phenomenon of representation but not a case of lack of it "(18), reserving the term" organic representation "to exercise the functions of the body, and the" voluntary representation "when the same corporate (through its agencies) gives powers to a third person for any act specified (19).
One must distinguish, within the legally relevant task of the legal person, the physiological time (in which plays a decisive role performance of its agencies) the moment pathological (liability) (2O). Within the latter may have the following factual circumstances:
1) ultra vires the responsibility of the legal person, ie when you perform actions that exceed its purpose.
2) Civil liability in the performance of the functions of the body, representative or employee.
3) Civil liability in excess of the body's functions, representative or employee.
4) The liability on the occasion of the functions of the organ, representative or dependent.
Note that there are different status of managers, ie, organ (person who acts as if the same legal entity), representative (person to whom the legal person has been granted specific powers) and dependent (who is in relationship subordinate to the legal person).
Article 12 .- Scope of representation
The company is bound to those with whom he has hired and third parties in good faith by the actions of their representatives held within the limits of powers to them although such acts given society committed to business or operations are not included within its corporate purpose.
partners or directors, as appropriate, respond to society for the damage it has experienced as a result of resolutions adopted by voting and by virtue of which could have authorized the holding of events that overstep their social order and that the force against co-contractors and third parties in good faith, without prejudice to criminal liability that might be applicable.
The good faith of the other one was harmed by the registration of incorporation.
Article 13 .- Acts which do not require
society Those who are not authorized to act as representatives of society not bound by its acts, although held in her name.
civil or criminal liability for such acts rests exclusively with the authors.
* Professor of the Universidad Privada San Juan Bautista and Private Alas Peruanas University, Post-Graduate in civil liability by the University of Castilla - La Mancha (Toledo - Spain), has been a lawyer at Muñiz, Ramirez, Perez-Taiman & Olaya's lawyer, and former official of the SAT in Ica, Chiclayo, Pisco, Author of the Books "Legal Test" (Lima 2004) and "The Interpretation of Contracts in Peruvian law (Ed. San Marcos 2009), Gaceta collaborator with current Legal and Legal Consultant of the Ministry of Energy and Mines for the Regional Government of Ica.
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