Shares are the instrument regulated by the legislator to divide the capital of the following types of companies: limited partnership with shares, simplified stock companies, and corporations.
In this regard, shares are defined as the title representing an aliquot part of the share capital, conferring on their holders economic and/or political rights, depending on their classification, whether they are ordinary shares, preferred shares with preferential dividends and without voting rights.
However, regardless of their classification or the type of share determined, it is important to bear in mind that all shares represent a negotiable instrument of ownership issued by the company, which must be represented at a nominal value; likewise, the maximum and minimum percentages or amounts held by each shareholder must be established in order to carry out a legitimate transfer.
Bearing this in mind, and in accordance with the provisions of the Civil Code and the General Code of Procedure, it cannot be asserted that any authority has been granted in the creation or statutory reforms of companies to limit the seizure of shares or restrict the right of every creditor to attach the portion of shares, since the legislator has exhaustively established the assets that are not subject to seizure, and among its prohibitions, no type of limitation or restriction is generated to carry out the seizure of shares.
In this regard, creditors of shareholders may attach the shares they hold in the company, in order to bring about their adjudication or judicial sale.
Now then, bearing in mind that the seizure of shares can indeed be carried out, it is pertinent to mention that once the court order for the seizure of shares is executed, it must be duly registered in the share register, leaving a trace for third parties, which prevents the shareholder from disposing of them or engaging in any type of negotiation over them, and, in this way, providing legal and commercial certainty to the creditor.
Once the shares are seized and their registration has been made, the dividends generated in favor of the debtor must be delivered directly to the orders of the judge conducting the judicial proceeding through which the seizure of shares was ordered. However, it is noted that the seizure of shares does not limit the rights and obligations that the shareholder has within the company.
In conclusion, seizure does not mean losing ownership of their shares, since it is a limitation on their property regarding the freedom of alienation, that is, the owner cannot transfer the shares to a third party while the seizure is pending. Nevertheless, the holder will continue to retain all rights, including the right to be summoned in accordance with legal and statutory provisions, to participate, to vote at the shareholders' meeting, among other rights.
Prepared by: Paula Andrea Florez, Consulting Attorney.