Aproximación al estudio del deber de lealtad del administrador de sociedades

Resum

The work is divided in three parts. The first, study, in the first place, methodological aspects, distinguishing the economic analysis of law and the dogmatic analysis. The economic analysis is used to analize the opportunistic conducts in the fiduciary relationships and the measures intended to limit the conflicts of interests, focusing this methodology with a critical view. The dogmatic analysis is used to establish the basis of the configuration of the duty of loyalty as a principle of law. A second chapter of the first part is object of study the compartive law, making a distintion between the Continental legal system from the Anglo-Saxon system. Among the Continental law, we have studied the regulations of the institution in France, Belgium, Italy and Germany, paying attention to the latest reforms. Related to the Anglo-Saxon legal system, we have studied the laws of the United Kingdom and the United States, being preceded of a preliminar study about the fiduciary duties. The second part is dedicated to explain the general aspects of the duty of loyalty. In the first place is being analyzed the management relationship (relación gestora) from a tipological perspective, distinguishing its structural elements and its economic function and treating the notion of relación gestora. Next, we tackle the related institutions, like relaciones de colaboración, agency and fiduciary relationship. It is included other two typical groups of management relationships: the representative management (gestión representativa) and the organic management (gestión orgánica). On the second place, the thesis studies the duty of loyalty, first, from its systematic configuration, paying attention to the bona fide as a legal source of the duty and to the relationship between diligence and loyalty. Furthermore the work treats the function of the duty, its definition and contend and the extending of its application. Also the special rules applied to the Securities Market. The third part of the thesis is related to the duty of loyalty appliyed to the company director. The first chapter studies the elements that characterized the conflict of interest, its negative delimitation and also order the conflicts. We add a subjective aspect concerned with the determination of the indirect interest of the director, distinguishing different possible interests. In addition, we analyse the most common conflicts, such as the use of information and opportunities, competition and interested contracts. The thesis defends the need of regulation the duty as opposed to the contractual freedom offered by the codes if conduct. In this direction, the duty is characterized by having a minimum imperative content and by having a preventive character. Moreover, the application of the duty of loyalty to the company directors requires the study of the exercise of the duties of disclosure of the interested director and the authorization of the conflict by the competent organ. The last chapter is referred to the sanctions derived to the breach of the duties, where we treat the following aspects. First, the legal consequences relative of the validity of the resolution that authorizes the conflict. Second, the legal consequences about civil responsibility. Third, the legal consequences related to the obligation of restitution. Fourth, the consequences related to the validity of the interested contracts. Finally, we synthesize the criminal offences which are applicable to the wrongdoer.