Commercial Register: Registration, Impact, and Key Functions
Item 11: The Commercial Register (Important)
Concept, Characteristics, and Effects
- The Commercial Register is a public institution that records entries related to the most basic and general aspects of entrepreneurial activity. Its purpose is to protect those who rely on the entries in this list. The effectiveness of registration is what distinguishes it from other records.
- It has both formal and material publicity.
- Formal: It is public because the contents of its books can be accessed, either by certifying the entries issued by the registrar or by a simple note or copy of the entries.
- Material: It is public due to the efficiency of registration with respect to third parties. Material publicity is achieved through registration, publication, and dissemination in the BORME (Official Gazette of the Commercial Registry).
- Positive Material Publicity: This occurs with the registration of an event and its subsequent dissemination. The effects are that it can be relied upon against third parties as entered in the register and published in the BORME. If there are discrepancies between what is recorded and published, a bona fide third party may claim the publication in the BORME if it was reasonable. A bona fide third party is a person who is not proven to have known the mismatch between publication and registration. (Article 21 CCo and 9 Mercantile Register Regulations).
- Negative Material Publicity: This results from the non-registration of a fact. The effects are the inability of those who are obliged to perform the registration of an event or action to assert against third parties in good faith the fact subject to registration and not registered. The bona fide third party may not invoke the fact registered as is in its favor. The general principle of good faith also extends to the field of registration effectiveness.
* Registry principles explaining the operation of this record: photocopied.
Registration of Individual Entrepreneurs
- Registration is optional, except in the case of shipping, which is required. An individual entrepreneur who is not registered may not apply to register their name for any act or contract affecting them, but they can legalize their books.
- To practice the registration of an individual entrepreneur, they must first pay the taxes accruing to them from the start of the business and communicate a declaration to the registrar, which shall be signed or confirmed before the registrar or lead firm entitled notary.
- The following are entitled to apply for the first registration of the individual entrepreneur:
- The employer.
- Their spouse who does not want to link all the common goods of marriage to pursue entrepreneurial activity.
- Those holding the guardianship or legal representation of minors or incapacitated individuals.
- The judicial or administrative authority in the cases provided for in the regulation of the business register.
- In the first registration of the individual employer, the following circumstances shall be recorded:
- The identity of the employer.
- Their trade name and the label of the establishment if they have it.
- The address of the principal and branch offices.
- Their activity.
- The date of commencement of their operations.
- If married, the identity of their spouse, date and place of marriage, data entry in the civil registry, the agreed matrimonial property, and entry in the registry office shall be recorded.
- The following should be stated on the registration sheet of the employer: general powers and modification, replacement, and renewal. Also, the opening, closing, and other circumstances relating to branches and any changes that may occur on the above.
Registration of Commercial Societies and Organizations
- Registration is compulsory. However, under the principle of recruitment spiritualist, the CCo acknowledges the validity and enforceability of contracts of companies not registered in the commercial register (obliging man, he is bound, no matter the form).
- The partnership agreement will order the operation of that company and its possible solution, but not being registered in the commercial register, members shall not have the privilege of responsibility for debts. This privilege only arises from the registration of the contract corporation.
- Regarding the circumstances that must be registered on corporations and other business entities, these include their articles of association, their social status, any change in them, and their transformation, merger, and demerger agreements relating to the representation of the entity.
Other Functions
- Legalization of accounting books for entrepreneurs.
- The deposit of annual accounts of companies and other entities required to make them public, and the publication of these accounts deposited in the registry.
- Appointment of auditors and independent experts to be engaged in certain circumstances of capital companies.