Contempt for legal entity was a doctrine developed in the United States and preserved in Brazil by Rubens Requião. In our law, it has been given the following name: theory of contempt for legal personality or doctrine of penetration. Another institution that has been used without legal regulation is the disregard for the so-called “inverse” legal personality, which essentially serves to curb the misappropriation of assets. Such an institution is often used in the case of a spouse transferring ownership to the company to cheat the division in the event of separation or succession. The National Tax Code follows the same path which, as a hypothesis that may be subject to the personal liability of the partners, directors, officers or representatives of the legal person for loans corresponding to tax obligations, provides for acts committed with “over power”, “violation of the law, statutes or statutes”. After the question has been summarized by the STJ (summary 435), which provides that in the event of “irregular dissolution of the company”, there will be non-compliance, it can even be presumed that the company ceases its activities in its place of residence without informing the competent authorities of the new address of its registered office. This uncertainty is exacerbated by the divergence of the necessary requirements in non-compliance decisions initiated on the basis of the CC and the CDC, as well as in antitrust law (which provides for the prevention and combating of violations of the economic order). The Brazilian company, the main means of creating jobs and growing the country`s economy, which faces the notorious and numerous obligations to maintain its regular activities, whether tax, labor or market, must live with the risk of having its personal assets threatened. The theory of contempt for legal personality or the doctrine of penetration aims to carry out acts of malice and violation, which are applied when the company covers the figure of the partner and becomes an instrument of fraud. It should be noted that it must be proven that the partners acted vigorously and that the company was used as a “screen” to harm third parties, leaving the assets of the smart partners far from the scope of the execution process. The Institute for The Non-Respect of Legal Personality is provided for in Article 50 of the CCC. In addition, under the amendments to the new Code of Civil Procedure, subject to the approval of the National Congress, it is provided that the legal person and / or partners will be disclosed within fifteen days if there is an express request for contempt, thus exercising their right of defense and adversarial before a restriction is granted.
In addition, the partner or director receives the right to fulfill the obligation to pay the debt, reserves the right of return, in the procedure itself to perform the company (which always bears the main responsibility for the performance of its obligations). Make a constructive comment on this document. Some understand that the abuse is marked only if the “deviation from the corporate purpose of the company with abuse or destination different from that provided for in the articles of association or in the statutes” is proven, others if there is the “practice of irregular acts by partners or directors”, and finally, if there is an “obvious confusion of assets”, with obvious difficulties, distinguish or divide the assets of the legal person and the beneficiary. * Ana Gabriela Nunes is part of the civil litigation team at the law firm Chenut Oliveira Santiago. The decision has no impact on the company itself, the so-called “security”, which is always the main person responsible for the obligation. However, the actions which characterise these declarations of intent and the assumption of obligations are carried out by their managers, representatives and directors or by the partners themselves. The divergence of agreements between the state courts and the STJ is something that brings real uncertainty to the businesswoman, namely the hypotheses in which she (again the command does not comply) can be held personally responsible for the actions performed by the legal person. The classical theory of company law states that the rights and obligations of a company (including the assets of the company) are not confused with those of its shareholders (the personal property of its shareholders). It is known that the legal person has its own characteristic; issues a declaration of intent and contracts in accordance with the provisions of the law and the contract; responds politely, even with their own strengths.
Contempt for legal personality breaks this paradigm because it removes the “protection” given by the shield of the legal personality of the company, which allows partners or directors to replace it in the passive pole of a procedural relationship and therefore to be directly responsible for the actions of the company. These laws are broad and provide that non-compliance is applied whenever there is “abuse of claims”, “excess of power”, “violation of the law”, “fact or tort” or “violation of laws or social contracts”, “bankruptcy, state of insolvency”, “closure or inactivity of the legal person caused”, all of which are called mismanagement or improper administration. Under this article, the judge may, at the request of the other party or, where applicable, the Public Prosecutor`s Office, decide that the effects of certain suretyship relationships must be extended to the private property of the directors or members of the legal person. In this sense, article 4 of the Law on Environmental Offences, which deals with criminal and administrative sanctions resulting from conduct and activities harmful to the environment, provides for liability for environmental damage and stipulates that “the legal person may not be taken into account if its personality constitutes an obstacle to compensation for damage caused to the quality of the environment”. significantly broaden assumptions about the impact of this exceptional institute. Another point that is still the subject of much discussion is the application of the Institute of Contempt to an entire economic group in order to reach the most fraudulent legal entity covered by the other companies in the group. But the judge`s discretion is not unlimited. The law itself stipulates that non-compliance is only appropriate and that, therefore (see that the requirement is not in conformity) can (and only) be recognized by the judiciary if there is an abuse of legal personality characterized by a deviation from the object or confusion of ownership. In such exceptional cases, the general rule may still (not) be blocked, meaning that the effects of some and some (not all) obligations of the company are extended to the private assets of shareholders or directors. The state courts have interpreted in detail the premises of Article 50 and extended the application by the institution of contempt for legal personality to cases of “irregular dissolution of the company”, that is to say when it becomes inactive without it being carried out regularly (these are the forgotten Sleep companies). However, it is not the consolidated interpretation in several Arestos of the Supreme Court, which has applied the requirements set out in the above article exhaustively, i.e. does not take into account the legal personality of companies only (and only) in cases where the “deviation of purpose” or “confusion of assets” remains proven.
“The private assets of the partners, once the capital of the company has been paid by quotas, do not take into account the joint or tax debts of the company, unless the partner has committed an act of excessive powers or a violation of the law, the share contract or the articles of association” (RTJ 85/945) It is therefore examined whether there is no properly defined term, which covers all areas of law and which can be used by the entrepreneur. to analyze your risk before starting a business. On the contrary, it must be aware of the different points of view of the courts and the requirements applied in cases of non-compliance, in the civil, consumer, tax and environmental fields and now also in marriage. The fact is that the courts interpret the term “abuse” differently.