The corporate veil is a figure that allows for the division and differentiation between the partners who decide to unite with the common purpose of creating a company, and the legal entity that is created, which is completely distinct from the individuals themselves. For its part, the legislator has provided that in those cases where such partners use that company with the purpose of committing fraudulent acts, contrary to law, or to the detriment of third parties, such corporate veil is lifted, and this is known as the disregard of the legal personality of a corporate entity.
In the same sense, lifting this veil achieves the suppression of the effects inherent to the emergence of a commercial company regarding the limitation of partners' liability to the amount of their contributions. Thus, this figure can arise in any of the following cases:
a) when it concerns a type of company that allows for the liability of partners for certain obligations, for example, general partnerships or limited liability companies for tax or labor obligations;
b) by express agreement of the partners to be liable for the company's obligations beyond the amount of their contribution; or
c) when the actual piercing of the corporate veil occurs.
It is understood then that the partner, in principle, is the owner of their own assets, and their assets are not confused with those of other partners, or with those of the independently formed legal entity, making them only liable with their assets up to the amount of their contributions. However, with the possibility offered by the legislator to lift the veil that shields such assets, one of the elements currently considered most important to curb abuses of legal personality by corporate managers is configured, based on the idea that if the legal entity itself enjoys certain rights, it should also bear obligations.
The Superintendence of Companies has specified in several pronouncements that the law or jurisprudence has not taxatively established those circumstances that may give rise to the lifting of the corporate veil or the disregard of legal personality, so it will be up to the judge to analyze each case and, based on the evidence submitted to the process, determine whether the events that occurred or the acts committed imply that the company was indeed used in fraud of the law or to the detriment of third parties, and consequently, determine the moment from which the limitation period (five years) will be counted, as established in Article 235 of Law 222 of 1995, and likewise, its interruption due to the opening of the judicial liquidation process or the filing of the lawsuit.
It can be concluded that this is how the legal system allows for the imposition of liability without the limitation granted by the legal entity, due to the fact that, with actions of bad faith, disloyal or dishonest, which do not arise directly from the corporate contract, shareholders become involved as actors causing harm to third parties.
However, and as noted, this is an exception, since the general rule is that there is a limitation of liability in those companies that are precisely established for this purpose or “benefit,” among others, if it is clear that this contributes to the proper functioning of the economy, by providing legal and financial security to different actors, including investors and entrepreneurs.
Prepared by: Salomé Restrepo. Consulting Attorney.