ORIGINAL ARTICLE
JÚNIOR, Paulo De Souza [1], FAUTH, Gabriela [2]
JÚNIOR, Paulo De Souza. FAUTH, Gabriela. The liability of the non-managing partner in the limited company on the basis of the duty to supervise the activities of the administrator. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 05, Ed. 06, Vol. 10, pp. 05-27. June 2020. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/limited-liability-company
SUMMARY
This study aims to investigate the application of the Theory of Legal Disregard in the face of the non-managing partner of a limited company, analyzing the possibility (or not) of execution of assets of a partner who does not exercise the management of the company. The research is classified as deductive and comparative based on bibliographic and documentary review. Briefly addresses the peculiarities of limited companies, also identifying their main characteristics and aspects related to their administration, dealing, in this context, with the problem of the accountability of the non-managing partner according to Brazilian doctrine and jurisprudence. The main results suggest that, in theory, the non-managing partner cannot be held responsible for social debts, not least because the disregard of legal personality is an exceptional measure. However, as demonstrated, if there is abuse in the use of the legal entity, not only the administrator will respond, but also the other partners. However, such analysis will require careful verification of the facts in the specific case, and only then can elements be gathered to justify the liability (or not) of the partner who does not hold a management position in the limited company.
Keywords: Liability of the Partner, Disregard of Legal Personality, Limited Company, Non-Managing Partner, duty to supervise.
1. INTRODUCTION
The importance of companies for the promotion of the country’s economy is undeniable, gaining prominence especially when it comes to limited companies, because, in such a business modality, the equity liability of its partners, in the case of social debts, is limited to the import of the capital paid by it for the formation of the assets of the legal entity. Soon, this business modality became predominant in the Brazilian economy. However, like so many other institutes created by man, the legal entity is eventually distorted from its purposes, that is, it becomes a fraudulent and harmful mechanism to third parties.
In this sense, it is worth reiterating, in this reflection, that theories aimed at disregarding legal personality, a concept that originated from English and North American law, from which its main characteristics are extracted, which, in turn, are outlined in English law and North American law, and thus traveled a long way in the Brazilian legal system, being strengthened with doctrinal and jurisprudential notes still in the 60s , and, since then, has solidified, although it has been disciplined by legislation recently, as seen in the Civil Code of 2002, in its Art. 50 and the Consumer Protection Code, in Art. 28.
It is, however, within the scope of the CDC that is the consecration of this theoretical line by Brazilian law, to the extent that, through the aforementioned device, the application requirements and their consequences remained, authorizing the magistrate to remove the legal personality of society in specific cases (of abuse of right, of excessive power, of infringement of legal provisions , the commission of unlawful facts or acts or the violation of the social instrument – statute or contract). It also adds that the provision should be the same in the event of bankruptcy or in a state of insolvency, inactivity or closure of business activities as a result of maladministration.
In relation to the provision entered Art. 50 of the Civil Code of 2002, it has been that the disregard of legal personality can be applied in cases in which there is proven abuse of legal personality, through the finding of property confusion or misuse of purpose. In this context, it is necessary to infer that proven factual situations, the Judge may decide, either at the request of the party or by the Public Prosecutor, in cases where it is appropriate to intervene in the process, on the extent of the effects of certain mandatory relationships to the particular assets of the directors or partners of the company.
However, it should be noted, in this work, that in the case of the limited company, there remains a question in the doctrine and jurisprudence about the scope of the liability for social debts of the partner who does not exercise the administration of the company, being focused on it the problem identified for the present study, whose objective is to ascertain the application of the Theory of Legal Disregard in the face of the non-management partner of a limited company , analyzing the possibility (or not) of execution of assets of a partner who does not exercise the management of the company. Regarding the methodology, the research can be classified, regarding the approach method, as deductive and comparative with regard to the procedure method.
Data collection is based on indirect documentary research techniques, since it is sought in legislation, doctrine, jurisprudence, among other sources, elements capable of providing understanding of the theme. In order to provide a better presentation, it is suggested the subdivision of the present research into three sections. In the first of these the purpose is to understand peculiarities of the theory under analysis (the disregard of legal personality), addressing its emergence, concept, theories that seek to explain its application, as well as the positiveization of the institute in national law, as regulated by the Code of Civil Procedure of 2015.
The second section is dedicated to the approach of the execution of the assets of the non-management partner, analyzing, for this purpose, aspects related to the emergence of limited companies, their main characteristics and the problem of social administration. Finally, in the third and final section, the impossibility of executing the non-managing partner is addressed, seeking, in the case law, the favorable and contrary arguments.
2. THE THEORY OF DISREGARD FOR LEGAL PERSONALITY
The theory of the Disregard of Legal Personality, whose origin and main characteristics are found in English law and North American law, has come a long way in the Brazilian legal system, being strengthened with the doctrinal work of Rubens Requião, still in the 1960s, and jurisprudential, from then on, although it has only been disciplined by legislation recently, as seen in the Consumer Protection Code (Art. 28) and the Civil Code of 2002 (Art. 50). The doctrine points to the origin of the Theory of The Disregard of Legal Personality in English Law, and, in this, the system of Common Law prevails, whose source of law is the custom. Thus, the question was raised in the year 1897, in the trial of the case Salomon vs. Salomon & Co. Ltd. (GUIMARÃES, 1998).
In this sense, ramos’s (2014) teachings suggest that the doctrine of disregarddoctrine comes from jurisprudential construction, mainly from North American and English jurisprudence, and the pioneering role in the negotiations on the theory of disregard of legal personality is attributed to this case. The decision given by the House of Lords is of paramount importance for English commercial law, as it has set two basic principles to the theory in question, namely: a) the divergence between the legal entity of the company and that of the partners; b) the legitimation of a single person’s society. It is important to emphasize that the legal personality of the company was already admitted as a reality, mainly because the limitation of the responsibility of the partners was recognized (GUIMARÃES, 1998).
However, it should be noted here that after the case Salomon vs. Salomon & Co. Ltd. began to recognize as absolute the legal personality of the company, and thus manifests itself independently to the personality of the partners, although there was no legislation about it (GUIMARÃES, 1998). A sociedade Salomon & Co. Ltd., as Silva (2009) points out, was created in 1892 by Aron Salomon, and was formed by him and his family members, whose majority of the capital was concentrated in the hands of Aron. This characteristic shows that the company was fictitious, because there was only one partner, so much so that Aron Salomon constitutes a privileged credit in favor of himself, and then received a large sum of money and, in the face of the company’s insolvency, the creditors remained, without any guarantee (SILVA, 2009).
Before the Court of Appeals, the Company’s liquidator claimed, in favor of the creditors, that the company was an agent of Salomon’s activity, and the court ups associationd this claim (SILVA, 2009). The House of Lords, however, decided that the business was legitimate and that the company’s objective was not to act as an agent for the acts of the partners, reforming the understanding of the Court of Appeals (SILVA, 2009). In the face of the insolvency and dissolution of Salomon & Co. Ltda. is that the legal dispute between Aron Salomon himself, the liquidator of the company, and his company was settled. And that, in the lower courts, the judges gave the company a gain of cause, condemning the majority partner to pay him a certain amount of money, highlighting the decisions that the company would be just another name to designate Aron Salomon himself, which justifies the expression “agent” that conferred on him the Court of Appeals (SILVA, 2009).
However, the House of Lords did not understand in this way and reformed the decision given in the lower courts, on the grounds that once the existence of the company by its liquidator is accepted, it becomes asserting certain rights against its principal partner as a result of the distinction between the personalities of the company and the partners. The House of Lords also affirmed that the fact that almost all actions in Aron Salomon’s name were not sufficient to affect the validity of the constitution of the society, nor even to give birth, against the person of its partners, related duties (SILVA, 2009). It is perceived, therefore, that the decision of the House of Lords did not apply the disregard of legal personality, and, as Silva (2009) said, it is a negative influence for the development of the Disregard Doctrine, although it contributed to the rigorous application of the principles of the separation of legal personalities between partners and society, as well as the patrimonial responsibility enshrined therein (SILVA, 2009).
In turn, Coelho (2014) advocates that the effective contribution to the emergence and consolidation of the theory of the Disregard of Legal Personality comes from Rolf Serick, because he defended, in 1953, his doctoral thesis on the subject, although it cannot be ignored that other authors, such as Maurice Worm who, already in the 1920s, had already dealt with the theme , being conceived, therefore, as a precursor of Serick, although this is, in the author’s opinion, who effectively sought in the American jurisprudence the criteria to define the theory in comment. It is perceived, therefore, that the theory arose in jurisprudence, although doctrinal studies are of paramount importance for its improvement and consolidation. It should also be noteworthy that there is no concept of disregard for legal personality in legislation, and the delimitation of the institute is left to the doctrine.
In this context, regarding the conceptualization of the institute, it is worth mentioning that, at the conceptual level, the disregard of legal personality is the institute through which the judge fails to take into account the separation/autonomy of assets existing between a company and a partner(s) in order to hold this(s) responsible for its debts. Coelho (2014), in turn, directs the notes to the fact that the theory of the Disregard of Legal Personality is a recent doctrinal elaboration, highlighting, however, the emergence in the jurisprudential scope. Coelho (2014) argues that in the national legal system there are two theories about disregard, one larger and one smaller. The major theory, also called subjective, according to the aforementioned author, has a solid basis and refers to true disregard, and is also linked to the verification of the fraudulent use of the legal entity.
Thus, in order to be applied, it is necessary the presence (concomitant) of two requirements, that are, the injury to the creditor and the abuse of legal personality. On the other hand, the lesser or objective theory applies to any situation, just the insolvency of the company, whose fraud is presumed. There is therefore a requirement for the presence of only one element, namely the damage caused to the creditor. In Brazilian law, according to Tartuce (2015), the larger theory is supported in Art. 50 of the Civil Code of 2002, while the minor theory has its incidence in Art. 28 of the Consumer Protection Code. Analyzing the assumptions of both, it has been that the minor theory of disregard points as an element for its application the simple default of the credit constituted by the legal entity, imposing the overcoming of the legal personality, especially the principle of equity separation.
It is necessary to consider the incidence of absence of equity of the company to solver third party credit together with the existence of partner with solvency, facts that must be demonstrated by the holder of the credit with the company. On the other hand, the larger theory is that which covers, in national law, a greater number of adherents, mainly because it is the theoretical line closest to the original molds established for the institute in North American and English rights, reaching other countries of Europe with the passage of time. The larger theory has great similarity with the objective formulation, because it allows the request of disregard to the judge in situations in which the business company is used for the purpose of abuse of law or committing fraud. It is considered a more elaborate and precise theory because it does not depend on any legislative implementation for its admission and is that it has the scope of suppressing fraudulent acts.
That is, the lack of an express legal precept does not prevent its application, since this size’s attitude would matter in support of fraud. Coelho (2014), also argues that the Major Theory is the target of severe criticism, mainly because there is no distinction between disregard and other institutes, such as fraud to creditors, subsidiary liability, irregular dissolution of society, among others, only the insolvency of society to make the assets of the partners come to account for social obligations, regardless of the configuration of acts such as abuse of law or fraud. It should be noted that the theory of the Disregard of Legal Personality was introduced in Brazilian law by the doctrine a few decades ago, without, however, failing to encourage fierce discussions about its application, an issue that will be better explained in due course.
It is not too much to emphasize that jurisprudence, in the civil sphere, has long recognized the possibility of distancing legal personality from certain specific cases, holding members responsible for acts committed through the legal entity, even though the text of the Civil Code of 1916 was omitted on the issue. With the advent of the Civil Code of 2002, the legislator expressly recognized that if there is abuse of legal personality, through confusion of property or deviation of purpose, the magistrate may, at the request of the party or representative of the Public Prosecutor’s Office, in cases in which it is responsible for intervening in the process, to extend certain obligations to the administrators or partners of the legal entity, in accordance with Art. 50 of the Civil Code.
This time, it should be emphasized, considering the context presented, that it is only possible for the magistrate to disregard the legal personality before the recognition that the legal entity is not confused with its members, and, thus, Silva’s reflections (2009) point to this prerogative as of paramount importance to the application and effectiveness of the theory. It is also worth mentioning, through the foregoing, that the Brazilian Civil Code, especially its Art. 50, allows the application of the disregard of legal personality in cases of abuse of this, and, for this, these situations need to be marked by the deviation of purpose of the business activity, or even through the confusion of assets / assets of the partners and the company. Therefore, it is alluded that:
Art. 50. In case of abuse of legal personality, characterized by misuse of purpose, or by property confusion, the judge may decide; at the request of the party or the Public Prosecutor’ s Office, when it is appropriate to intervene in the proceedings, that the effects of certain and certain obligations relationships be extended to the private assets of the directors or partners of the legal entity (BRASIL, 2002).
In phoning about this device, Venosa (2013) points out that the wording meets the need of the magistrate, in the analysis of the specific case, to remove the veil that covers the legal entity so that it is also possible to reach the controlling partners or administrators in cases in which there is a deviation of purpose, with consequent prejudice caused to third parties as a result. In such cases, according to the author, the judge may determine that the effects of certain mandatory relationships to achieve the private assets of the managing partners be extended. It is worth remembering that under the dictates included in the Arts. 28 of the Brazilian Consumer Protection Code and 50 of the Civil Code of 2002[…], the “corporate company appears as debtor and the partners, as secondary property responsible, that is, even if they are not debtors, will answer with their assets for debt satisfaction” (NEVES, 2015, p. 198).
From the analysis of the consumerist codex article, it is observed that the abuse of rights is a motivating factor for the application of the disregard of legal personality. From the analysis of the second part, there is also the possibility of acting, as Silva (2009) points out, in cases where the liability of the partner or administrator is necessary for bankruptcy, insolvency, closure or inactivity of the company, provided that they come from maladministration. There is also the possibility of holding the partners or directors responsible, provided that the maladministration is present with regard to the legal entity itself and the other partners, which demonstrates not only the consumer the object of the protection conferred by the Brazilian Consumer Protection Code. Finally, § 5 of Art. 28 of the CDC points to the existence of a certain uncertainty regarding consumer dissatisfaction as a justification for applying the disregard of legal personality.
3. OF LIMITED COMPANIES: GENERAL CONSIDERATIONS
It was because of the needs of small and medium-sized entrepreneurs that this new corporate type arose, because it manages to bring together the advantages of capital companies and the society of people, ensuring, for this, the partners, the limited liability only for social obligations (TOMAZETTE, 2003). In this sense, it is important to highlight that it was the personal relationship combined with the combination of efforts and assets to achieve a certain end that gave rise to the first manifestations aimed at the creation of societies with the intention of personae, that is, those that comprise the union of the personal qualities of the respective partners, with emphasis and predominance of subjective elements (ALMEIDA, 1998).
As expected, there was, then, an intense economic evolution due to a continuous progress of the business, coming to force, around the fifteenth century, the need for higher volumes of capital necessary for the formation of companies, thus emerging the capital companies, for which is considered the entry of each partner, anonymous, with a long-sought constitution, with the purpose of large enterprises (ALMEIDA , 1998). Germany, however, was the birthplace of limited society. However, it should be alluded to that this type of company was not born with that name, since it was previously called a limited liability company, as established by law dated April 20, 1892.
However, it developed in an extraordinary way in Brazil, since it ended up becoming the most common type of business, preferred, therefore, by non-entrepreneurs and entrepreneurs, whose activities could be small, large and medium-sized (NEGRÃO, 2005). In this context, we highlight the project of the then Deputy Joaquim Luís Osório who had a very fast procedure, discarding the possibility of further debates or changes in its text by the Legislative Chamber, which gave rise to Decree No. 3,708 of 10/01/1919, with only eighteen articles, with determination, in the last one, of subsidiary application of the law of corporations, in the case of omissions related to contracts and law (CARVALHOSA, 2005).
It can be said that, in a way, there is a positive point, especially regarding the use of subsidiary law, because it was such a gap that ensured the flexibility to boost the autonomy of the interest of the partners through the social contract (CARVALHOSA, 2005). It was precisely this flexibility, together with the limitation of the responsibility of the partners, that made limited the corporate type par excellence of the small and medium-sized Brazilian company and, thus, from the 1980s, also of large companies, especially multinationals. Finally, the Civil Code of 2002 established a differentiated and unified system for companies in general, contained provisions in chapter IV on the limited company.
Thus, the aforementioned Brazilian civil codex brought some adaptations that could meet the requirements of Decree 3.708/19, because there were certain gaps, giving the Limited Company more autonomy and a peculiar structure, whose discipline, its form of constitution and its functioning, transforming it into a unique corporate type, attributed more legal certainty to those who in one way or another establish business with this type of company, as well as its new name that changes from “Company for limited liability shares” to only limited company (CARVALHOSA, 2005). In view of the fact that the history of the limited society has occurred, no less important are the characteristics that must be emphasized, object of the next item.
Among the numerous peculiar characteristics that the types of entrepreneurs have, it is worth mentioning, in this reflection, that the emphasis will be restricted to some because they are understood to be the most relevant for the characterization of the limited society. One of its most important characteristics is the fact that it can be formed by the meeting of individuals or legal entities, attributing the responsibility to each partner to the extent of their share, although all answer jointly for the payment of the share capital. Likewise, the personal assets of the partners are protected, and they are not liable for social debts arising from the company’s failure, except for the exceptions provided for by law (CARDOSO, 2012).
In this sense, Campinho (2011, p. 142) says that “as in all companies, the characteristic profile of the limited company rests on the liability of the partner to third parties, creditors of the legal entity”. In the face of society, each shareholder is obliged to deliver only the value of his quota. By fully completing this value, he should not do anything else to society. However, before third parties, all partners will answer, jointly and severally, for the part that has failed to pay. As for the liability of the partners in relation to the limited company, it can be understood then that this corporate type adopted for itself, as the main rule, the fact that, since the share capital once paid up as provided in the contract by all partners, they will be exempted from any liability, nothing more owed to the company individually, nor in solidarity to the creditors of the legal entity (CAMPINHO , 2011).
Thus, creditors should exhaust the possibilities of attacking the assets of the company first, since the responsibility of the partners is subsidiary, which entails the liability of the company with all its assets, directly for its obligations (CAMPINHO, 2011). It should be noted that another characteristic of this type of corporate is that the members may have one or more quotas, these being of equal or distinct values, but the Civil Code adopted and maintained the indivisibility of the quota, with the exception in the case of transfer, since the quotas can be transferred to other people for payment or even free of charge , however, it is clear that, in the case of the social contract, there is nothing to be available on this issue, it will be subject to the approval of three quarters of the share capital (TOMAZETTE, 2003).
In view of the analysis made about the characteristics of the limited company, which has greater relevance, as seen, with regard to the liability of the partner, it is necessary to investigate the issues related to the social administration. The limited company is constituted by means of a contractual instrument called a social contract, which was created from Art. 2nd of Decree No. 3,708, and thus provides that the constitutive act would be regularized from the provisions of the Arts. 300 and 302, both of the Commercial Code, which included the limitation of the shareholders’ liability and the totalized share capital (REQUIÃO, 2003).
In this context, it is worth mentioning, here, that one can find legal provisions that deal with the constitution of the company in the Civil Code, and, thus, it is worth mentioning art. 997, since it stipulates the content which it must have in the above contract, which, in turn, are aspects foreseen for simple companies and also includes the social firm, if necessary. It also includes the main characteristic that is the limitation of the partner’s liability, and, consequently, the joint and several liability for the payment of the share capital (REQUIÃO, 2003). In this sense, Cardoso (2012, p. 53) elucidates that:
The limited company is constituted by written contract, private or public, which, in addition to clauses stipulated by the parties, will mention whether or not the partners are liable, in a subsidiary, for the social obligations. Participation in the limited capital generates, so to speak, rights and obligations for the partners.
The partners are obliged to pay the share capital subscribed in the contract, that is, to contribute with capital that they subscribed to the formation of the company, in time and in the manner stipulated in the contract, having responsibility within the limits of their social contribution (Art. 1,052 of the Civil Code). What can be drawn from this is that if the partner does not respond with his/her private capital, in the case of debts arising from the company, it means that it is with the birth of the company, duly stipulated in a social contract, it is that the social assets will be born, which will be responsible and guarantor of the debts arising from the company (CARDOSO, 2012). Its requirement is these aspects common to all contracts of this kind, in its constitutive act the free consent of the parties, the capacity of the parties, the suitability of the object (lawful object), the legitimation of the parties to carry it out and the legal form (CAMPINHO, 2011).
In addition to the requirements inherent to all types of corporate contracts, the limited company also has requirements that are peculiar to it, with the plurality of partners being the contribution of all partners to the constitution of the share capital, however, it is worth remembering that this type of company does not allow the shareholder to fully share the capital from the work, it will contain , also, the cash share in profits, especially Art 1008 that prohibits the non-distribution of profits among the partners, that is, the centralization of profits for only one partner, since this corporate type has as a requirement the plurality of partners, and, finally, the so-called affectio societatis, that is, the willingness to associate and remain united (CAMPINHO , 2011).
The constitutive act, as seen, aims to legally bind the partners, and, for this, establishes mandatory guidelines between them, having as main scope to create a subject of rights and legal personality, which, in turn, becomes one of the main purposes of the act, this being the society (CALÇAS, 2003). From the moment the constitution is realized, the company will take into account its commercial name, and thus may have a particular name or corporate name, as described in the contract (REQUIÃO, 2003). When it comes to the administration of the company, it refers to a person, or, in this case, people, and, in turn, the administrator has a primary function, as precepted by Art. 1,011 of the Civil Code.
Care and diligence should be taken in the performance of their duties, as if managing their own business, in view of the Art. 1,016 of the same diploma defines that administrators are responsible for guilt in the performance of their duties (CALÇAS, 2003). The social administration is entrusted to one or more persons designated in the social contract or by separate act. These directors are elected by the partners and destitute in the same way, however, in each situation, the provisions of the law must be observed, such as qualified majority enforceability (COELHO, 2014). On this issue, in the light of the Civil Code, Carvalhosa (2005, p. 104) explains that “the limited company may have one or more directors, as freely available to its social contract, not establishing the Civil Code of 2002 minimum or maximum numbers”.
The Civil Code regulated some aspects related to the directors, such as the form of their appointment, investiture, termination of the position, their dismissal and resignation and the exercise and accountability of the company’s management. The other rules not specifically dealt with should be met by applying the rules of simple companies or the rules relating to corporations for the limited companies that so choose in their social contract. The company’s management was an exclusive position of partner, according to the Arts. 10, 11, 12 and 13, of Decree 3.708/19. They were referring to the managing partner. However, the 2002 Code now allows non-members to be appointed, with observation of legislation requiring the unanimity of members if the share capital is not paid up. If the share capital is paid, it must observe the amount of 2/3 (two thirds), the latter being the minimum stipulated (CAMPINHO, 2011). Like this:
In the Civil Code, the possibility of appointing a stranger to the board of executive officers is established for the functions of administrator, by unanimous approval of the partners, when the capital is not paid up, and, after payment, for three quarters of the share capital, it is not prohibited from taking on these responsibilities by a legal entity (NEGRÃO, 2005, p. 366).
And, also, Tomazette (2003, p. 177), according to the new concept brought by the Civil Code of 2002, explains:
With the Civil Code of 2002, the systematic management of the limited company is profoundly altered, being improved by the new legal diploma. First, it is admitted that the social contract expressly allows the appointment of directors outside the social framework, facilitating the professionalization of management. However, if there is contractual permission, it is still required a qualified quorum for the appointment of such strangers, that is, unanimity as long as the share capital is not fully paid up, and two-thirds of the share capital after its payment, depending on the greater risks that may arise from the appointment of a stranger.
A characteristic of the management in the limited company is that this corporate type admits only one managing director, whether he is a partner or not, as long as elected in the contract, this being the legal representative of the company (PALMA, 2006). It is the social contract or the separate act of appointment that delimits the time that the administrator will be in charge of the company, and may be for a fixed or indefinite period. However, the duration of the administration, re-election of the administrator, if any, should be filed with the Board of Trade (COELHO, 2014). The administrator may request the waiver, but such an act generates effects of immediate knowledge by the company, but, before third parties, the resigning administrator will continue to respond until the legal period of its exercise, which should appear in the competent public registry (NEGRÃO, 2005). Thus, Campinho (2011, p. 242) alludes that:
In the event of resignation of the administrator, the unilateral manifestation of his/her will must be published in writing, or translated into minutes of the meeting or meeting of the members, or even in minutes of the meeting of the management body. In relation to society, it becomes the effective renunciation from the moment when it is made aware of the volitional act expressed by the renounant. However, its effectiveness in relation to third parties depends on registration in the company’s registration and also requires the law, the realization of publication, with the scope of better protecting the interests of these third parties. The publication shall take place both in the official body of the Union or of the State, according to the place of the company’s headquarters, as well as in a newspaper of great circulation (§ 3, article 1.063 c/c § 1 of Article 1.052).
With regard to the responsibilities of the administrator, account must be taken of the obligations under contracted from so-called regular and ordinary management acts, of which the director is not liable for these acts before third parties, since the director is a mere holder of the company, that is, when he is in possession of the position conferred on him does not act in his own name nor on his own account , but on behalf of society, expressing externally its wills and needs, being responsible, in this case, the company itself (CARVALHOSA, 2005). In this sense, Tomazette (2003, p. 179) reinforces that:
By practicing acts that do not exceed such limits, the directors practice regular acts of management, which are attributed to society, and not to them, since they are mere organs that make present the will of society. Such acts are the sole responsibility of the company itself, and there is no need to consider the responsibility of the administrator’s assets.
Reiterating the express it is realized that the administrator does not respond when the acts committed by him are within the limits and powers conferred upon him. It happens that when the administrator acts in such a way as not to exercise his powers for the benefit of society, for reasons of personal vicissitudes, or rather, exceeding the powers conferred on him, such attitudes violate the law or the rules stipulated in the social contract, being unequivocal, in this case, the imputation of the responsibility attributed to him (TOMAZETTE, 2003). Thus, so that the administrator does not inpet the risk of being held responsible for the acts committed, as provided by Art. 1.011 of the Civil Code, he must employ care and diligence in the administration as if he were employed in the interest of his own assets (CALÇAS, 2003).
It turns out that, to this end, the rights of the administrator are closely linked to the obligation to practice his acts with diligence, which implies, therefore, taking appropriate precautions in the case of buying or selling products and services, in order to examine price and quality of these, and, finally, should not perform acts that place the interest of the company in conflict , thus avoiding being held accountable (CAMPINHO, 2011). To this end, the members can avail themselves of a right they have to prevent the excess of powers attributed to the administrator. This is the supervision of acts of administration or fiscal council and this right cannot be omitted or prohibited by contract, general meeting or quotaholders meeting (CAMPINHO, 2011).
It is mandatory, to the administrator, according to Art. 1,065 of the Civil Code, which, at the end of the administrative fiscal year, is carried out a survey of the balance sheet and a balance sheet of the economic results, leaving them available to the partners, observing the period of 30 (thirty) days before the meeting or the annual meeting of the shareholders, of which they will assess on the acts of the administrator and deliberate on the balance sheets, also provided in Art. 1,078 of the same legal diploma (CAMPINHO, 2011). There should be an interaction of financial and business information that will be clearly exposed in the management report, and should also be related to the company’s investments in subsidiaries and affiliates and mentioned the changes that occurred during the year.
Despite the participation of the partners, there are no restrictions on the possibility of participation of any shareholder, but with regard to participating in the deliberations, the latter will be in accordance with the portion of the capital that the partner has, based on the principle of the majority of the share capital, whose matter is disciplined in Art. 1,072 of the Civil Code (REQUIÃO, 2003). However, the deliberations dealing with the daily functioning of society do not have the form as an essential requirement, since some decisions may be taken informally, with respect to the principle of speed, especially with regard to commercial businesses that become incompatible with a formal rite (REQUIÃO, 2003).
Nevertheless, there are assemblies in which the agenda will require a specific quorum of members, as well as some formalities to be completed, however this work will not highlight all the forms envisaged, having only a brief notion of the functioning of the administration, responsibilities and duties.
4. (IM) POSSIBILITY OF EXECUTING THE PRIVATE ASSETS OF THE NON-MANAGING SHAREHOLDER
The absolute majority of Brazilian business companies use the limited type, while in the rest the anonymous form predominates. Therefore, the application of disregard in corporations is directly related to the occurrence of abuse of the control power by the managing partner. In this regard, following bruschi’s teachings (2009, p. 144), it is known that the managing partner, or controll[…]er, is “the individual, or group of individuals, or even a legal entity, who holds control”. It should be noteed that among the hypotheses of application related to Law No. 6,404/1976, which deals with companies by shares, in Art. 244, § 2, combined with Art. 30, § 4, of the same legal law, there is the disregard resulting from the abuse of indirect control power by the vote of a controlled company holding shares of the parent company. Já o Art. 117, § 2 provides that the disregard is the result of an abusive act of power on the part of the controlling shareholder, in favor of the company in which it has interest or control (BRUSCHI, 2009).
Moreover, due to the division of their capital into shares, shareholders will have their responsibility “limited to the issue price of subscribed or acquired shares” (BRUSCHI, 2009, p. 144). In this case, it is perceived similar to limited companies, because, in both cases, the liability of the partner is restricted to the “realized contribution of the social capital” (SILVA, 2009, p. 158). It should also be stated with regard to limited companies, according to Bruschi (2009), that their disregard usually occurs through a procedural incident in the enforcement process. Tomazette (2003, p. 187) argues that implemented the share capital “nothing more can be required of the shareholders patrimonially, except in the case of exceptional hypotheses that authorize the disregard of legal personality”, so that, in the case of the corporate modality analyzed here, its most recurrent use in Brazil is due to the fact that it offers fewer risks to the parties, which justifies the non-disregard of the legal personality.
It cannot be ignored, however, that, in the limited business company, the liability of the partner may be exceptional in the performance of tax, social security and labor credits, as well as in the constitution of a limited company by married spouses in a regime of communion or total separation of assets, in the acts that the law assigns direct liability of the partner, in the equity confusion between partner and company and in the deviation of the social purpose of the company. The last two acts, moreover, configure, together with the abuse of law, the presuppositions of application of the theory of the Disregard of Legal Personality, which aims to overcome both the principle of the patrimonial autonomy of society and the limitation of liability of its partners, in the cases in which legal personality becomes an obstacle to the punishment of its offenders.
Therefore, it is important to point out that the partner causing the disregard cannot use the benefit of order, as well as the right of return against society, at the risk of taking advantage of the torpeza itself. It should also be noteworthy that the overcoming of the specific legal personality of limited companies is concerned, there is a discrepancy of the scholars of law with regard to the application in the scope of Tax Law. Proponents of its use argue that the assumptions of the application of overcoming legal personality remain characterized in the performance imbued with bad faith by the partners against third parties, under the veil of protection of the legal entity. Thus, the majority current, unlike the first, argues that Art. 135, III, of the National Tax Code, deals with the personal responsibility of the members for the acts listed in the device and that the case law only applies it in an attempt to find a solution appropriate to the specific case (BRASIL, 1966).
In the labor and consumerist sphere, the application is much more comprehensive by being based on the premise that the creditor is always a hyposufficiency party in the process, especially in the labor sphere, due to the food nature of the credits involved and the use of the consumerist conception sui generis of disregarddoctrine, adopted by analogy to the Labor Justice, whose civilist device finds subsidiary application. In the jurisprudential context, one of the most recent decisions within the Superior Court of Justice was handed down in 2011, in the case file of Special Appeal No. 1169175/DF, of rapporteurship of Minister Massami Uyeda. That decision discussed the confusion of assets between the assets of a limited company and the assets of the partners, calling on the shareholders to limit the attachment to the shares, which remained removed by the Court, relying on the provisions of Art. 591 of the Civil Code of 1973, in force at the time, understanding that the responsibility of the partners extends to present and future assets. The decision is thus based on:
SPECIAL APPEAL – CIVIL LAW – ARTICLES 472, 593, II and 659, § 4, OF THE CODE OF CIVIL PROCEDURE – DEFICIENT REASONING – INCIDENCE OF SUMMARY 284/STF – DISREGARD OF THE LEGAL PERSONALITY OF THE BUSINESS COMPANY – EXCEPTIONAL MEASURE – OBSERVANCE OF LEGAL HYPOTHESES – ABUSE OF PERSONALITY – MISUSE OF PURPOSE – PROPERTY CONFUSION – IRREGULAR DISSOLUTION OF THE COMPANY – ACT PROVISIONAL EFFECT THAT ALLOWS CHALLENGE – ASSETS OF THE PARTNERS – LIMITATION TO SOCIAL SHARES – IMPOSSIBILITY – LIABILITY OF THE PARTNERS WITH ALL ASSETS PRESENT AND FUTURE UNDER THE TERMS OF ART. 591 OF THE CPC – SPECIAL RESOURCE PARTIALLY KNOWN AND, TO THAT EXTENT, IMPROVISED. I – […]. II – The disregard of legal personality is a mechanism that makes the order to, in absolutely exceptional situations, conceal the protective mantle of the autonomous legal personality of companies, and the creditor may seek the satisfaction of his credit from the individuals who make up the company, more specifically, its partners and/ or directors. III – […]. IV – The disregard does not matter in dissolution of the legal entity, but constitutes only an act of provisional effect, decreed for a specific and objective case, and also has the partners included in the passive pole of the claim, procedural means to challenge it. V – From the disregard of the legal personality, the execution goes towards the assets of the partners, as expressly provided for by the final part of the article itself. 50, of the Civil Code and there is no restriction on enforcement against the partners against the members and where the law does not distinguish, the interpreter is not given to do so. VI – Art. 591 of the Code of Civil Procedure is clear in establishing that debtors respond with all present and future assets in the fulfillment of their obligations, so that admitting that execution is limited to social quotas would lead to reckless and undue destabilization of the institute of the disregard of the legal personality that has long been conquering space and being shaped to the characteristics of our legal system. VII – Special resource partially known and, in this extension, improvised (BRASIL, 2011).
It is perceived that the judging body, even indirectly, highlighted the possibility of executing the assets of the partners, whether or not they are an administrator, determining that the present and future assets are responsible for the execution. Therefore, although it is the disregard of the exceptional legal personality, once characterized the excess of mandate, deviation of purpose, patrimonial confusion or in the hypotheses of irregular dissolution, the mantle of the legal entity must be lifted to reach the assets of the partners. In the previous year, at the time of the judgment of Special Appeal No. 1200850/SP, the same judging body had already ruled on the possibility of constricting the assets of the executing partners, since the liability of the directors and partners for the obligations attributed to the legal entity was supported by the theory of disregard of legal personality. Therefore, without separation of the assets of the legal entity and its partners, even if it is not the administrator, the execution may fall on the assets, as extracted from the following menu:
SPECIAL APPEAL – DENIAL OF JUDICIAL PROVISION – NON-OCCURRENCE – ALLEGATION OF VIOLATION OF THE THING JUDGED – NON-VERIFICATION – MOTIVATION USED IN THE JUDGMENT THAT BECAME FINAL – NO INCIDENCE OF THE EFFECT OF IMMUTABILITY – DISREGARD OF THE LEGAL PERSONALITY OF THE COMPANY – FULFILLMENT OF THE REQUIREMENTS – VERIFICATION – RETURN OF THE FACTUAL-PROBATIVE MATTER – IMPOSSIBILITY – APPEAL IMPROVISED. I-[…]; II – The liability of directors and partners for the obligations attributable to the legal entity, as a rule, does not find support only in the mere demonstration of insolvency for the fulfillment of their obligations (Minor theory of the disregard of legal personality). It is necessary to do so, also, or the demonstration of the deviation of purpose (this understood as the intentional act of the partners in defrauding third parties with the abusive use of legal personality), or the demonstration of the confusion of assets (this implied as the absence, in the field of facts, of separation of assets of the assets of the legal entity or its partners, or, also, of the assets of several legal entities; III – […; V – Improvised Special Resource (BRASIL, 2010).
Years earlier, the Superior Court of Justice, in a decision in the tax enforcement file, pointed out that the assets of the partners do not jointly and severally account for the debts incurred by the legal entity. In fact, some requirements are necessary to disregard legal personality. He added that liability in the tax scope of the managing partner, director, director or equivalent is justified only if characterized the irregular dissolution of the company or proven violation of the law. Therefore, it is not enough to be the managing partner of the limited company to respond with your assets. Moraes (2002) explains that the infringing administrator begins to be liable for the tax credit derived from acts committed with excessive powers or with legal, contractual or statutory infringement, excluding from the consequence of these acts the primary taxable person.
Therefore, the redirect that art deals with. 135, III, of the CTN, is a mechanism used by the Tax Authorities, intended to impute to the administrator of the legal entity the responsibility for the payment of a tax obligation that is no longer fulfilled by the originating debtor as a result of the practice of intentional acts, directed to the injury of the treasury. In this respect, they differ fundamentally from Art. 134 of the CTN, which is satisfied with the participation (by action or omission) of the third party to hold it subsidiary (AMARO, 2007). By the way, for the redirection provided for in Art. 135, III, of the CTN, the simple tax default is not enough. There is a need for the administrator to perform, effectively and demonstrably, acts with excessive powers or with violation of law, social contract or statutes.
Otherwise, there is no need to talk about personal responsibility. The standard inserted in Art. 135, III, of the CTN, concerns the exclusive liability of the infringing administrator by substitution, for the settlement of the tax obligation born as a result of acts committed with excessive powers, violation of law, social contract or statutes, and the mere tax default, by itself, does not characterize illegality. To the detriment of the tax liability of third parties and their effects on the partners of commercial companies, the Egrégio Superior Tribunal de Justiça edited summaries 430 and 435 in order to definitively solve the two major interpretative problems regarding it: the default and the irregular dissolution of the company that lead to the accountability of members.
According to Becho (2013), summary 430 is in line with commercial legislation, more precisely with Decree 3.708/1919 and also with Law No. 6,404/1976, understanding that if the commercial company only fails to pay the tax, it is not possible for the collection to be made in the assets of its managing partner. The summary pacified the jurisprudential understanding against various interpretations that tried to include the non-payment of taxes as acts committed in violation of the contract or the law or as an irregular act of management or, also, as a cause for the impossibility of compliance with the obligation by the legal entity. Therefore, the mere default of the tax obligation does not lead to the responsibility of the managing partners. In view of the small number of decisions, decisions were sought through a random survey in the last 5 years within the Regional Labor Courts.
The first decision commented here was handed down by the Regional Labor Court of the 5th Region, which, expressly, points out that the non-managing partner is liable for the company’s debts, not only for having eventually enjoyed its profits, but also in view of its negligence and omission regarding the acts of administration or mismanagement of the managing partner (BAHIA, 2014). In the same period there is also a decision within the Court of Justice of Rio Grande do Norte, in which it remains based on the fact that the legal entity cannot be confused with the person of its partners, only by answering with its assets those who hold a management position, manage or act as a representative of the legal entity when breaking the law , social contract or bylaws. This time, if there is no evidence that the non-management partner performed any management act, he cannot be held responsible (RIO GRANDE DO NORTE, 2017).
It remains clear, therefore, that there is no consensus in the jurisprudential sphere as to the accountability of the non-managing partner, and decisions are found that determine their responsibility while others remove it. Regarding the responsibility in the scope of Tax Law, it seems unison to understand that the administrator responds personally and subjectively, in a substitute for abusive or intentional acts, and the simple inadimplement skilled to remove the legal personality.
FINAL CONSIDERATIONS
We sought to understand, throughout the present study, the possibility of executing the assets of the non-management partner in the scope of the limited company by virtue of the application of the theory of disregard of legal personality. It was found that the legal system according to the provisions included in the scope of the Consumer Protection Code and the Civil Code, adopts this theoretical line, since this theory bases its creation on the will of man, which results in the acquisition of rights and obligations arising from the declaration of will or imposition of the law. It should be noteed that the lack of complexity of limited companies, associated with the limited liability of the partners in the face of possible injury, has become an essential factor in the development of the economy by encouraging business activity and contributing to increased competition and, thus, it enables the reduction of the cost of goods and services.
Members are guaranteed certain rights and duties before the limited company. In other words, the partner, after the constitution of the legal personality, cooperates for the development of the company, as well as to pay the share capital and answer to third parties. Likewise, you will have the right to participate in profits as well as to monitor, vote and exercise the right of preference and recess. This is because, with the effects of the personification of society, it has its transformation into a subject of law with the ability to manage and intervene in its business activity and have its own assets, a fact that forces it to answer to third parties for its debts and obligations. Such rights and obligations enshrine the principle of the company’s equity autonomy in relation to its partners. In other words, the company is given unlimited equity and unlimited responsibility over it, the ability to act in judgment and an ability to exercise its own rights and duties.
However, this patrimonial autonomy is only relative, since it covers only inter-business relations, not covering all the acts in which the partners can be held liable in court. After all, as in any other area, the business activity is subject to fraudulent acts of its partners, when then the legal personality can be removed and assets of the members in execution can be obtained. However, the disregard of legal personality, as it is conceived today, is based on the abuse of the personality of the legal entity. This time, it is not possible to assign liability to the partners in the face of the mere insolvency of the company or dissatisfaction of the creditor. However, leaving clear the hypothesis of fraudulent acts, it will be necessary to lift the veil of patrimonial autonomy, thus allowing, even in an episodic way, the application of the disregard of the legal personality of society, with the responsibility of the partner perpetuating fraud, whether administrator or not.
It should also be noted that the disregard of legal personality will only have its application justified in circumstances in which the lawful act of the legal entity may be considered unlawful when the partner’s bad faith is characterized, in order to allow the disregard of legal personality, in order to assign responsibility to the partner. It should be noteed that the limitation of the responsibility of the partners may be exceptional when there is the execution of labor, social security or tax credits, as well as due to the constitution, by married spouses, under the regime of separation or total communion of assets, of limited company, in the acts that the law assigns direct responsibility of the partner, in the equity confusion between partner and company and in the deviation of the social purpose of the company.
In view of the reflections listed here, it is worth mentioning, in this way, that the last two acts, in fact, configure, together with the abuse of rights, the necessary assumptions for the application, and also the implementation of the theory of the Disregard of Legal Personality, which aims to overcome both the principle of equity autonomy of society and the limitation of liability of the partners, whether these directors or not , in the cases where legal personality turns out to be an obstacle to the punishment of its offenders. It is also important to point out that the partner causing the disregard cannot use the benefit of order, as well as the right of return against society, otherwise it will take advantage of its own torpeza.
Thus, for all the above, the need for analysis of the concrete case has been evidenced, mainly because the jurisprudence fluctuates as to the responsibility or not of the quotist partner who does not hold a management, management or similar position, although there is a concern to show the abuse of rights, a presupposition established in Brazilian legislation for the application of the disregard of legal personality.
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[1] Master’s degree in Mediation and Conflict Resolution from universidad Europea Del Atlântico, Post-graduate from the School of Magistracy of the State of Espírito Santo, Bachelor of Laws from the Faculty of Law of Cachoeiro de Itapemrim-ES (FDCI).
[2] PhD in Public Law. Master’s degree in Environmental Derecho (90 credits) access to doctorate. Master’s degree in Urbanism, History and Architecture of the City. Law degree.
Sent: May, 2020.
Approved: June, 2020.
