Ejercicio abusivo del derecho al voto : materialización e implicaciones probatorias

Abstract

As a result of the enactment of law 1258 of 2008, several innovations were introduced to the Colombian legal system, specifically in corporate law. Among those incorporations there is a new type of partnership called Joint Stock Company, as well as a new legal figure known as the abuse of the right to vote. However, this new figure was not adequately demarcated nor a proper application procedure was established. Thus, the most important requirements and criteria for its materialization have been recognized through precedent case law by the Superintendencia de Sociedades, in the fulfilment of its jurisdictional functions. For the effective declaration of an abuse of the right to vote, the aforementioned entity has established a high burden of proof which is usually satisfied through circumstantial evidence and thus shareholders face multiple obstacles to achieve its effective declaration. The present undergraduate work aims to highlight the key points that any shareholder interested in applying the abuse of the right to vote figure must consider regarding the evidence needed for the case. This process included the study of the legislation related to the abuse of the right to vote, specifically, through the analysis of multiple decisions the Superintendencia de Sociedades has taken; which will illustrate the requisites to bestow a favorable ruling to the interested shareholder.