The dissolution of a company results in the cessation of its commercial activities and because it is translated into a manifestation of private autonomy, with patrimonial content, could not occur at the sole discretion of the State or any other entity, so they are listed in the law cases of dissolution.
Thus, the dissolution is provided for under articles 141 and following of the Portuguese Commercial Companies Code, hereinafter referred to as CSC.
And after analyzing the legal precepts related to the dissolution, it is possible to disclose two types of dissolution of a commercial company, these being the immediate dissolution and the unofficial dissolution, that is, by judicial decision or deliberation, in articles 141 and 143, respectively, of the CSC.
With regard to the immediate dissolution, Article 141 of the CSC provides as follows:
“1 – The company dissolves in the cases provided for in the contract and also:
(a) by the expiry of the period laid down in the contract;
b) By resolution of the partners;
c) For the complete accomplishment of the contractual object;
d) For the illegality supervenience of the object contractual;
e) By declaration of insolvency of the company. ”
From what can be understood that the causes of immediate dissolution can be foreseen in the own agreement of society or in the law. It should be noted that the legal list above mentioned is exhaustive and as regards point a), as indicated by Prof. Dr. António Menezes Cordeiro, the “deadline set in the contract” is an event of rare verification because normally there is no duration for the company.
In fact, what has happened in recent times is the increase in insolvency cases as a cause of the dissolution of commercial companies, due to the economic and financial crisis that our country is experiencing.
Regarding the causes of unofficial dissolution, this is verified within the scope of article 143 of the CSC, in the following terms:
“The competent registry service must initiate the administrative procedure for dissolution of its own motion if it has not yet been initiated by the parties concerned when:
a) For two consecutive years, the company has not deposited the accounting documents and the tax administration has informed the competent registry office of the omission of delivery of the tax return for the same period;
b) The tax administration has communicated to the competent registry service the absence of actual activity of the company, verified in accordance with tax legislation;
c) The tax administration has communicated to the competent registry service the unofficial declaration of the company’s cessation of business, in accordance with the tax legislation. ”
With regard to the dissolution procedure, we are told in Article 144 of the CSC that there is a legal statute to regulate this matter. This being the one of the Legal Regime of the administrative procedures of dissolution and liquidation of commercial entities approved by Decree-Law Nº 76-A / 2006, of March 29, usually denominated by RDA.
Furthermore, Article 145 (2) of the CSC states that there is no mandatory form for dissolution since it has been decided by the general meeting of the company. However, in any of the other cases, there is a legal obligation to require the registration of the dissolution in any trade register, the right of which belongs to any member.
Liquidation of commercial companies
With regard to liquidation in the area of company law, this translates, in the understanding of Prof. Dr. António Menezes Cordeiro, in the “set of acts aimed at ending the collective way of functioning of the Law, before a legal person. In practical terms, settlement involves the removal of all legal situations relating to the company in liquidation, the resolution of all outstanding problems that may involve it, the pecuniary realization (if any) of its assets, the payment of all debts and the calculation of the final balance, to be distributed by the partners “.
Settlement is governed by Article 146 et seq. Of the CSC and the analysis, first of all, of the first article, which establishes the general rules regarding this legal-commercial institute, it can be concluded that the liquidation occurs immediately after the dissolution of the company .
Being that according to the understanding of Prof. Dr. Raul Ventura, the liquidation can be understood in two senses: (a) legal status of the company, after dissolution and before its total extinction and (b) process or set of related acts to be practiced during this process “, ( Cf. “Dissolution and liquidation of companies, pp. 210”)
This implies the idea that as a legal situation, liquidation operates in the sense that the acts of the company are oriented towards the cessation of the most varied relations of society, in which it became involved in the pursuit of its corporate purpose.
As a proceeding, liquidation refers to all operations aimed at terminating the company.
There are thus two special liquidation formulas, these being the immediate sharing and settlement by global transmission, under the terms of article 147, paragraph 1 of the CSC. Since the former results from the non-existence of debts of the company and the second is the transfer of the assets of the company to the sphere of one or more partners, and the remaining money is delivered. It should be noted that this form of liquidation should be when it appears in the articles of association or results from deliberation.
The liquidation process is regulated in article 149 of the CSC and the liquidation period is conditioned by the terms provided in article 150, no.1 and 2 of the CSC, two years after the dissolution of the company , under penalty of the informal promotion of liquidation by administrative means, in accordance with paragraph 3 of the same article.
The figure of the liquidator
It may be said that the liquidator is the main figure in any case of dissolution and liquidation of a company since, according to article 151, paragraph 1 of the CSC, “the members of the company’s management become liquidators of the company from the moment it is considered dissolved “.
And what will be the liquidators and what makes them so important to the process of dissolution and liquidation of a trading company?
This question requires a multi-level response, but in a very practical liquidator idea it is either those who are responsible for carrying out the generality of the acts included in the liquidation procedure, most of which correspond to members of the administration, as is clear from Article referenced above.
It should be noted that the powers, duties and responsibilities of the liquidator (s) are legally stipulated in Article 152 of the CCC. However, there will be no doubt that the duties and obligations of the liquidator, conferred by the legislature, set forth in number 3 of this article, as indicated below, will be more important:
“3. The liquidator shall:
a) Finalize the pending business;
b) To fulfill the obligations of society;
c) Charge the credits of the company;
d) Reduce residual assets to cash, except for the provisions of article 156, paragraph 1;
e) Propose the sharing of social assets. ”
The liquidator, or liquidators, as stated above, may be appointed in several ways. From the outset, with the dissolution of the company, the members of the administration automatically switch to liquidators.
However, it is possible to have a clause or deliberation to the contrary, and may be the dismissal and appointment of other liquidators, even in addition or replacement of existing ones.
Moreover, if there is no liquidator, there is still the possibility of being required by the Fiscal Council, any partner or creditor, the appointment of a liquidator, which may be any individual, except as a of statutory auditors, who have the power to do so).
The essentiality of the liquidator is easily obtained, in the context of the dissolution and liquidation of the company, in the settlement of the social liabilities. Let us see:
Under Article 154 (1) of the CSC, the liquidator is entitled to “pay all debts of the company for which the company’s assets are sufficient” and must share the remaining assets with the shareholders in accordance with Article 156. Of the CSC.
Revised 12/18/2017
Photo credits Malte Baumann on Unsplash