The new regulation of the accumulation of actions against a debtor company and its administrator: when jurisprudence shows the way to the legislator

Abstract

This article analyzes an intriguing episode in procedural judicial practice in Spain, in which the Supreme Court (hereinafter, SC), through a 2012 ruling—later reinforced by multiple decisions, thus creating a solid body of case law—departed from the literal wording of the law to allow the joinder of claims that the law expressly prohibited. Specifically, it permitted the combination of a claim for payment against a debtor commercial company and a claim for liability for corporate debts against its administrator, assigning jurisdiction over such matters to the Commercial Courts. This judicial-normative conflict was ultimately resolved with the 2022 legislative reform of the Civil Procedure Act (hereinafter, CPA), which incorporated, in the second paragraph of Article 73.1.1, the exception endorsed by the courts, thereby eliminating the discrepancy between Law and Case Law. Although the issue itself has thus been resolved, its study remains essential for understanding the significant influence that case law can exert on legislative development and the crucial role that legal practitioners played in this legal transformation. Through a detailed analysis, this paper examines how the Supreme Court, previously alerted by the existing discrepancies in lower court rulings, effectively "compelled" the legislator to amend the legal framework through its interpretation, offering a valuable reflection on the interaction between the branches of government and the evolution of the law.