Abstract

RODRIGUEZ MONTOYA, Camilo Augusto. Suggestion against the inefficiency of the disregard concerning SAS in the case-law of Supersociedades from the dynamic burden of proof. Rev. Fac. Derecho Cienc. Polit. - Univ. Pontif. Bolivar. [online]. 2019, vol.49, n.131, pp.478-506.  Epub Mar 26, 2020. ISSN 0120-3886.  https://doi.org/10.18566/rfdcp.v49n131.a10.

The disregard of the corporate entity, or desestimación de la personalidad jurídica, consists of an exemption to the attribute of limited liability which covers the partners or shareholders of certain commercial companies such as Sociedades por Acciones Simplificada (Simplified joint-stock company), commonly referred to as S.A.S. However, in judicial practice when the Superintendencia de Sociedades (Superintendence of Companies) acts as preventive and specialized judge in these commercial matters, we find, to the present date, only one ruling in which claims for liability extension are recognized. These lawsuits were denied in the rest of the cases, chiefly because the plaintiff failed to prove 'unequivocally', according to Supersociedades, the corresponding elements for the sanction. Therefore, a problem of judicial interpretation regarding the burden of proof in these procedures is observed, which would lead us to study, mainly, the units of analysis present in it. These are composed out of the disregard of the corporate entity and the burden of proof with its theoretical variable of the distribution or dynamic burden of proof. All of this, plus the fundaments that justify a dynamic burden under certain circumstances, will provide us the theoretical and practical tools to deliver a suggestion in regards to the treatment of the burden of proof in these mercantile procedures, to address the ineffectiveness of the legal mechanism evidenced in the case-law of the Superintendencia de Sociedades de Colombia during 2012 and 2018.

Keywords : Disregard of the corporate entity; lifting the corporate veil; piercing the corporate veil; disregard of limited liability; burden of proof; distribution of the burden of proof; dynamic burden of proof.

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