El derecho de los socios frente al proceso de exclusión en las S.A.S.

Abstract

The exclusion of a member from a company constitutes a pathway aimed primarily at unilaterally terminating the partnership agreement. This translates into a penalty towards the partner who has notably and significantly failed to fulfill their obligations within the company, which were contracted in the aforementioned agreement. Its purpose is to safeguard the interests of the legal entity and preserve the "affectio societatis," i.e., the common will that keeps the company's partners united. Legal provisions related to the company often enumerate justifying causes for expelling a partner, although this is done in a scattered manner. In many cases, these causes must be pursued judicially, leading to the definition of a special and direct procedure to carry out this punitive measure. In the specific context of Simplified Stock Companies (S.A.S.), the inclusion of specific grounds in the company's bylaws, located in its constitution, is permitted. However, in practice, the applicability of the punitive mechanism has raised questions due to the lack of clarity regarding processes and minimum conditions to carry it out. In the national corporate reality, its application has been highlighted in limited liability companies, whose regulations are equally applicable to S.A.S. This thesis delves into these provisions with the purpose of elucidating the proper use of member exclusion in these types of entities.