LEVANTAMIENTO DEL VELO DE LAS PERSONAS JURÍDICAS.

Abstract

The theory of «lifting the corporate veil» was created to address the abuse of legal personality and shareholders' limited liability in order to engage in unlawful acts. A North American idea to begin with, the theory was later embraced in Europe and Latin America. Lifting the veil is an exceptional type of primary judicial action that lays aside the legal personality of an entity or company and holds its shareholders responsible when the company is being used to conceal or engage in legal fraud, third-party damages or other unlawful acts. The grounds are: elements leading the judge to presume there to be an abuse of legal personality and the existence or simulated creation of a legal person in order to abuse said legal person. Lifting the veil protects third-party rights, renders transactions more transparent and enforces good faith. The authors have chosen to review a catalogue of German cases: identity of wealth and personality between shareholder and company, undercapitalisation, a controlling interest by one company in other companies, abuse of legal personality. The topic has applications in labour law, administrative law, tax law, criminal law, international law and economic constitutional law. Individual forms of application in the United States of America, France, Germany, Spain, Costa Rica, Argentina, Peru, Uruguay, Mexico and Italy are analysed. Nicaragua has no general legislation regulating the lifting of the veil, but there are specific legal provisions. Emphasis is placed upon third parties to registration affairs, a conflictive, delicate issue, because the third party is required to act in good faith in order to enjoy the protection afforded by registration. Some spheres of the problem and its solutions in the light of Nicaraguan registration law are explained.