SUMMARY: Piercing the corporate veil is one of the four major fraud dismantling institutes, along with execution fraud, fraud against creditors and simulation. Among these institutions, the disregard of legal personality is the one that has had the greatest practical power in resolving unpaid civil foreclosures, due to three major advantages: (i) it makes it possible to hold another person fully responsible for the debtor's debt; (ii) there is no (at least for now) condemnation of succumbence funds; and (iii) the injunction in cases of piercing the corporate veil (IDPJ) is one of the most powerful provisional remedies in civil enforcement. Taking this into consideration, there is a need to master the classification of IDPJs in terms of the requirements necessary for their characterization. Professionals with such knowledge have great potential to resolve civil executions and bring effectiveness to justice in the specific case.

Keywords: incident of disregard of legal personality; major theory; minor theory; orthodox disregard; reverse disregard; expansive disregard; indirect disregard; Civil Law. Civil Procedure.

SUMMARY: 1. Introduction: the main legal instruments for dismantling asset shielding fraud and the IDPJ as the most important of them – 2. Advantages of disregarding the legal personality: 2.1. Holding another person fully responsible for the debtor's debt: this is the first advantage of disregarding the legal personality in relation to other fraud dismantling institutes; 2.2. The absence of a judgment on succumbence funds; 2.3. The most effective provisional protection in the execution process: injunction in IDPJ – 3. Classification of IDPJs in terms of the requirements necessary for their characterization: 3.1. Major theory of disregard for legal personality; 3.2. Minor theory of piercing the corporate veil – 4. Conclusion – References.

1. INTRODUCTION: THE MAIN LEGAL INSTRUMENTS FOR DISMANTLING ASSET SHIELDING FRAUD AND THE IDPJ AS THE MOST IMPORTANT OF THEM

There are some legal institutes that are essential for dismantling fraud and the success of civil enforcement frustrated by asset shielding. They are: simulation (CC/2002, art. 167), fraud against creditors (CC/2002, art. 158), execution fraud (CPC/2015, art. 792) and disregard of legal personality (CC /2002, art. 50, or CDC/1990, art. 28 c/c CPC/2015, arts.

These institutes, their rules, doctrinal and jurisprudential understandings, and the practical situations they resolve, must always be available to the professional who wishes to be successful in civil enforcement.

However, in the practice of credit recovery and civil enforcement, there is no doubt that the most important institute and proportionally responsible for resolving the most complex cases is the piercing of the legal personality.

This is because this institute presents marked advantages in relation to other instruments for dismantling fraud, such as the fact that it generates the extension of responsibility as a whole from the original debtor to the person that is intended to be affected by disregarding the legal personality; the fact that the injunction without the prior hearing of the parties raised in IDPJ is one of the most effective available in the entire execution process; or even the fact that the STJ has already decided that there are no succumbing fees in this incident, which makes the measure procedurally much safer for creditors injured by acts of illicit asset shielding of certain persistent debtors.

2. ADVANTAGES OF DISREGARDING LEGAL PERSONALITY

   • Holding another person fully responsible for the debtor's debt: this is the first advantage of disregarding the legal personality in relation to other fraud dismantling institutes

The first and biggest advantage of disregarding the legal personality when compared to other fraud dismantling institutes is the fact that it fully extends the patrimonial responsibility to the defendant in the incident, who becomes jointly and severally responsible for the entire debt alongside the original debtor, while the other institutes always attack a specific legal transaction, either annulling it, in the case of fraud against creditors; either nullifying, in the case of simulation; ineffective, in the case of execution fraud.

Note that in all these other institutes it is a specific legal transaction that will be challenged.

At the end of the declaration of execution fraud, the third party purchaser will not be considered co-responsible for the debt. He will only and solely lose the asset that is the object of the transaction he concluded, as this asset will be seen as if it still belonged to the original debtor, in the eyes of the creditor who achieved the execution fraud.

At the end of the Paulian action aimed at recognizing fraud against creditors, the legal transaction will be annulled, with the parties returning to the status quo ante. Also in this case there is no need to talk about co-responsibility of the defendant in this action.

Na simulação essa lógica não é alterada. Constatada a simulação, declarar-se-á inválido o negócio jurídico. E, declarado inválido o negócio simulado, remanescerá o negócio dissimulado, isto é, aquele que estava escondido pelas partes, se ele for válido na essência ou na forma – esse é o caso da simulação relativa –, ou haverá a total e completa nulidade do ato praticado, se o negócio dissimulado for também inválido – é o caso da simulação absoluta. Veja-se que, igualmente, o que se ataca aqui é um negócio jurídico específico. Não haverá, ao final da simulação, extensão da responsabilidade para o simulador partícipe do ato.

It turns out that practical life offers a series of situations that cannot be resolved with such institutes that attack specific transactions. These are situations in which the offense is not restricted to one act or another, but consists of an infinite number of repeated acts of property confusion.

Seen in isolation, these acts would not be important enough to motivate the elaboration of an autonomous Paulian action from scratch, or they would not justify the “headache” of worrying about third-party embargoes in an allegation of execution fraud, or even the struggle to see an allegation of simulation was declared in the case records themselves.

However, when seen as a whole, these repeated acts of property confusion demonstrate that one person is literally living with the “CPF” or “CNPJ” of another. Your accounts are always at zero, but your standard of living is far from zero. Certain persistent debtors live very comfortable, perhaps luxurious lives, but what they show off in the outside world is simply not reflected in the assets and rights that they formally hold. On the contrary! Poor! This is how they appear to be in the processes in which they are sued.

The truth is that the assets and rights of these persistent debtors were hidden so that they were only formally held by other people, instead of being “in their name”. However, they continue to be in fact owners and possessors of these things, and to behave unequivocally as such. The accomplices of such debtors – whether intentionally, through connivance or carelessness – literally lend their name to enable this type of civil fraud. That is why this figure – which we technically call “interposed person” – is known in practice as “presta-nome”, also receiving the popular nickname “forehead”, “orange”, and I have even heard “citrus agent”.

In these cases, it is not one transaction or another that could be considered problematic. The point is precisely the lack of patrimonial autonomy between those involved. The assets of both are mixed in an inseparable way or very costly and difficult to undo in a timely manner, transaction by transaction, by the victim. In these cases, the only solution is actually the extension of responsibility from one person to another, in order to make it possible for the entire assets of the intervening person to be responsible for the debt of the persistent debtor.

And the institute that allows this extension of responsibility in a joint manner, in order to enable the co-participant of the offense to be held fully responsible, is the disregard of legal personality.

So, this is the first major advantage of disregarding legal personality in relation to other instruments for dismantling asset protection fraud: it extends responsibility from one person to another and makes the affected party appear on the passive side of the execution, responding, with all their present and future assets, in the same way as the original debtor, for the entire debt, instead of just canceling, nullifying or making a specific legal transaction ineffective.

• The absence of a sentence on succumbence funds

Among the most controversial features of the IDPJ today is the lack of condemnation of succumbence funds.

Evidently, this characteristic makes the measure much more advantageous for the creditor when compared to other institutes for dismantling fraud and asset shielding – fraud against creditors, execution fraud and simulation – which, as a rule, do generate judgment in succumbence amounts against the creditor. creditor if the other party wins the case.

The Paulian action, which aims to recognize fraud against creditors, if lost, will result in a judgment in succumbence amounts against the author.

Fraud in execution may result in third-party embargoes, which, depending on the principle of causality, will result in an award of legal fees, as stated in Precedent no. 303 of the STJ: “In third-party embargoes, whoever caused the undue constriction must bear the legal fees”[1].

The simulation, if alleged in a specific action, will result in the defendant being sentenced to succumbence amounts; whether alleged incidentally or as a cause of action for another measure, will depend on the nature of the incident or the measure in which it is being requested.

The incident of disregard of legal personality (IDPJ), at least for now, does not generate this conviction in succumbence funds. This is because the current position of the STJ on this matter – a position that has actually been followed strongly by courts across the country – is the following:

SPECIAL FEATURE. INSTRUMENTAL APPEAL AT ORIGIN. INCIDENT OF DISREGARD OF LEGAL PERSONALITY. AWARD OF ATTORNEY FEES. DISCOVERY. ART. 85, § 1, OF CPC/2015. SPECIAL RESOURCE PROVIDED.

1. It is not appropriate to award legal fees in a procedural incident, except in exceptional cases.

Precedents.

2. In the case of an incident of disregard of the legal personality, the inappropriateness of the conviction in the succumbing burdens arises from the absence of exceptional legal provision, and it is irrelevant to determine who gave rise to or was succumbed in the final judgment of the incident.
3. Special appeal granted (STJ, REsp 1.845.536/SC, rapporteur Minister Nancy Andrighi, rapporteur for the ruling Minister Marco Aurélio Bellizze, 3rd Panel, judged on 05/26/2020, DJe de 9 jun. 2020, included in Information no. 673).

This conclusion is based on two main lines of argument.

The first guideline is that according to which art. 85 of CPC/2015 specifically stipulates that “sentence” will order the loser to pay fees to the winner’s lawyer[2]. Considering that, technically, the decision that the IDPJ judges is an interlocutory decision – and not a “sentence” –, so there would be a lack of legal provision for this conviction.

The second is pragmatic. It would violate common sense for the creditor, who is already suffering the loss of not being paid and is desperately trying to receive what is owed to him, to still be ordered to pay fees just because he tried to report what, to all evidence, appeared to him to be a fraud. If there are fees in the incident, many creditors could stop using it, even though they thought it was appropriate to manage it, especially in high cases, as they do not want to run the risk of succumbing in a case in which, in theory, they have already won. , but they just can't receive it. As an example, failure in IDPJ in a case of R$ 1,000,000.00 in default could result in R$ 100,000.00 in fees. In other words, he not only suffers the loss of one million but is also ordered to pay one hundred thousand or, perhaps, two hundred thousand reais. If the majority of Brazilians already have in their minds the thought expressed in the popular saying “don't put good money on top of bad money”, then losing this incident with a judgment in fees would mean something even worse: “putting good money on top of bad money , lose both and still be forced to pay a sentence.” For the creditor who was already suffering losses, this would be a real nightmare.

Therefore, this is the STJ's current understanding on the subject: there is no condemnation of succumbing funds in the IDPJ, whether for the applicant or the succumbed, regardless of the principle of causality or succumbence.

So this is a huge practical advantage of IDPJ and immediately makes it, from the lender's perspective, the most recommendable and safest of all fraud busting institutes. When in doubt, if more than one thesis is applicable in the case, normally going the IDPJ route is what can bring more security and more returns for the creditor.

Well then.

Having said all this, it is important to warn: the issue is not as simple nor as peaceful as it seems. Although, by the time this article was completed (24.08.2023), the predominant understanding in the STJ was this, even so, there is little care, and it is recommended that the IDPJs be distributed with maximum discretion, including reasoning with the real possibility of there being a jurisprudential turn that creates the risk of “ the rule changes in the middle of the game”, so that even IDPJs established under the auspices of previous jurisprudence run the risk of being sentenced for succumbing amounts.

Explain.

Those who are more attentive will have noticed the care taken so far to, at all times, mention the “current understanding” of the STJ, “for now”, “up to this moment”, and phrases of this type.

This care is necessary because with each passing day voices grow in the opposite direction, that is, in the sense that they are owed succumbence fees at IDPJ.

These voices support this position based on the following premises:

First – despite being an incident, the disregard of the legal personality has its own merit, consisting of a truly new intention to hold third parties responsible who were not part of the original relationship. Its effects are as serious as or even more serious than the original demand itself. The questions of fact and law are completely different from those in the main proceedings. The incident may even be much more complex, with a longer evidentiary delay, and have a more sophisticated plea, defense and judicial decision than those of the original action. Therefore, the decision that judges the incident, although formally it is interlocutory by legislative choice, is, without a doubt, an interlocutory decision on the merits, that is, it essentially contains content that could be perfectly decided in a sentence, as in fact it is , in cases of disregard of the legal personality requested in the initial petition.

Second – it is undeniable that those involved in the incident have to hire a lawyer for their defense, a lawyer who, in turn, will have a job as intense as the one he would have when defending his client in a common process. The deadline is fifteen days, as in any other action. The possibility of producing evidence is as broad as it would be in a common rite main process, and the resources are also as laborious as in other actions, apart from the anguish that these defendants live in the shadow of awaiting the outcome of whether they will be held personally responsible for that debt or not, and not to mention the cases in which they were also affected by an injunction granted in the decision received by the IDPJ.

Third – The STJ's own jurisprudence is contradictory regarding the possibility of paying fees in incidents or issues resolved by interlocutory decision. In this regard, it is notable to note that Repetitive Theme n. 961 of the STJ, judged in the rite of repetitive appeals and, therefore, with a binding understanding to all jurisdictional bodies in the country, had the following thesis established: “observing the principle of causality, it is appropriate to set legal fees, with the exception of pre -executiveness, when the partner is excluded from the passive side of the tax execution, which is not extinguished”. [Therefore, the claim is judged through an interlocutory decision, just like in the IDPJ, then the reason why the conclusion is different for the two hypotheses is discussed.]

And, to further heat up this issue, in a very recent trial session, held on August 22, 2023 within the scope of the Third Panel of the STJ, this topic was once again addressed within the scope of the REsp 1.925.959/SP, and, to everyone's surprise, ministers are considering change the consolidated understanding in order to allow the award of succumbing fees in IDPJ. The trial was not concluded because Minister Moura Ribeiro asked to see the case, but it is possible to follow the discussion between them, which was recorded and is available on the STJ's official YouTube channel. For those who wish to watch, just go directly to 2:19 am of the video called “Third Panel – STJ – 08/22/2023 | Morning”, available at: https://www.youtube.com/watch?v= EUYoA1lPEjU (accessed on: 24 Aug. 2023)[3].

Thus, one of the greatest advantages of using the IDPJ by the creditor, notably the fact that there is no judgment on succumbing fees, is in question due to an ongoing trial in the STJ, namely, the REsp 1.925.959/SP. All legal operators who have ongoing IDPJs do well to follow the outcome of this appeal, as there is a chance, if the understanding is changed, that this new understanding will become valid even for incidents established during the previous jurisprudence, which will represent a true 180-degree turnaround on the issue: those who distributed the IDPJ believing that there could be no conviction could now be condemned if they end up losing the IDPJ. If this happens, and in the absence of any modulation of effects, there is the potential for the case to become another “Banana Boat” precedent, an expression coined by STJ minister Humberto Gomes de Barros[4], referring to those precedents that overturn the jurisdiction that believed to be acting in accordance with what the courts of Justice would decide.

Therefore, although, for now, the dominant orientation is still that succumbence fees are not applicable in IDPJs, which still makes this measure very advantageous for the creditor, it is important to be aware of this possible jurisprudential turn in progress, and introduce them with all care, caution and responsibility, always considering the possibility of changing the current understanding.

• The most effective provisional protection in the civil enforcement process: injunction in IDPJ

One of the most powerful provisional remedies in the civil enforcement process is the injunction granted in IDPJ. This measure available to the creditor in the process therefore represents another great advantage in using this means of dismantling fraud.

Unfortunately, in the practice of Brazilian civil enforcement, it is not common to find assets available in the debtor's bank accounts. Far from it. With the exception of those debtors who voluntarily pay the debt, or large companies with sufficient solvency to pay court sentences, in forced execution it is difficult for an order to block bank accounts to find available money.

Why?

Because normally the debtor who does not wish to pay is following the process digitally and is aware of all the restrictive acts required against him. Considering that the process is digital and accessible by anyone, there are those who go so far as to unregister their lawyers from the process to make it difficult for the creditor to issue the usual subpoenas regarding enforceable acts, since, without a trained lawyer, instead of using the practicality of summons via the official press in the person of the patron, it becomes necessary every time to summon the debtor in person, making the process much more time-consuming and costly for the creditor.

But don't think that because you don't have a registered lawyer, the defendant is unaware of what happens there. On the contrary. Continue following the required measures within of the process – for example, blocking the debtor's accounts – and frustrates these measures with acts outside of the process – for example, emptying your accounts.

In this sense, achieving credit satisfaction is quite difficult for the creditor who is faced with a “professional debtor”, that is, a person skilled in frustrating enforceable acts. There is always the impression that the persistent debtor is “one step ahead” of the measures required by the creditor.

But there is a powerful mechanism that balances this situation. The blocking injunction is granted before citing the defendants in IDPJ.

The injunction in the IDPJ is highly effective in execution because it has the merit of blocking financial assets and, sometimes, even other types of assets, which are being held by the defendants in the IDPJ, that is, by people who until then did not appear as defendants in the process and, therefore, until that moment, they had no reason to hide, shield or conceal their assets. That is why arrest measures against such people usually have a high chance of success.

Some of the cases of larger amounts blocked in accounts by court order in civil foreclosures come precisely from injunctions in IDPJ.

This inadvertent blocking of assets can be so powerful in the process that in many cases it generates a compromise between the parties, resolving the dispute.

The converse is true: having this injunction rejected also influences the balance of forces in the process, making the party favored by the decision much stronger in negotiations and undermining the compositional power of the other party.

Therefore, it is important that the legal operator is well aware of the rules of provisional protection provided for in the 2015 Code of Civil Procedure, namely arts. 294 et seq.

It is also important to correctly request the provisional protections necessary to make the process effective, in a proportionate manner to the case, without exaggeration but without shyness, normally the main one being the arrest, whose primary objective is to guarantee the payment of the debt collected in court.

It is common in practice that this request is not labeled as “seizure”, but rather in a generic way, such as “injunctive blocking”, “blocking injunction”, “blocking of assets unprecedented changes part”, among other nomenclatures that are observed in everyday forensic practice. CPC/2015 no longer has a book with specific precautionary procedures like the previous code had. The current code created a general system of provisional guardianships in arts. 294 et seq. Then, the label given to specific measures started to matter less, and it became more important to know the system of provisional guardianships and the requirements to obtain each of them. In this sense, knowing the various classifications of provisional guardianships is, therefore, the duty of the professional who works in this area.

And, to be successful in the injunction request, it is also extremely important that the legal operator knows how to clearly explain the two vectors that are requirements for urgent provisional protections: the probability of the right (fumus boni iuris) and the danger of damage or risk to the useful result of the process (periculum in mora).

In cases of IDPJ, the probability of entitlement (fumus boni iuris) is normally linked to the merit of the request itself and the evidence that the applicant was able to gather to demonstrate the requirements necessary for disregard. In this sense, it is important that the applicant is as diligent as possible so as not to introduce incidents that lack evidentiary support. It is of the utmost importance that there be, right from the start, as many convincing elements as possible, normally evidence of abuse of legal personality (in the case of the major theory), or evidence of the corporate relationship and default (in the case of the minor theory). .

Although the gathering of such evidence is not in theory mandatory for the initiation of the incident – ​​which, after all, does not require this for its admissibility and still allows for extensive production of evidence afterwards –, it is important that these investigative steps have been carried out and that the evidence obtained through them be gathered at the beginning of the incident, as this will greatly increase the chance of obtaining the precious injunction that will set the tone for the entire procedure later. This set of evidence and its adequacy to the legal thesis by the greater or lesser theory is the main factor that will make the presence of the fumus boni iuris.

The second requirement, o periculum in mora, normally relates, in IDPJ cases, to the circumstance that the defendants' prior knowledge of the intended measure will enable them to hide their assets again - especially the most liquid ones, such as money in an account - and render their own assets harmless. incident.

So, to demonstrate this requirement of fumus boni iuris In practice, it is important that the person interested in the declaration of disregard takes the trouble to study the other processes that may exist in the face of the person primarily responsible and also those who are intended to be held responsible. Are there other IDPJs filed against them? Were they welcomed? What was the attitude of the defendants after this? Did they pay the debt or create other legal entities and new asset protection schemes? Does the defendant have several companies or legal entities managed or controlled by him? Are they created in succession, with the previous one emptied and the activity continued in the later one? Do they respond to many other processes in the face of them? Have they circumvented the Judiciary and not honored their obligations to creditors in these other cases?

The answers to these questions and others like them can help to demonstrate that the defendant in the case is a “contumacious debtor”, a “professional debtor”, in short, someone with the means and the desire to frustrate the execution. This demonstration of the defendant's profile makes it necessary for the injunction to be granted in order to guarantee the useful result of the process.

Finally, a warning. Despite being a powerful weapon in the IDPJ, the injunction should never be requested recklessly. There is no point in just “winning” the injunction. It must be maintained later, either by the first instance judge, or by the Court, and by higher instances. The lawyer and the party must always remember that the 2015 Code of Civil Procedure expressly provides for objective procedural responsibility in the case of reversal of provisional relief in art. 302[5]. Therefore, although it is imperative for effectiveness to place the injunction request with the IDPJ, at the same time this insertion cannot be automatic or poorly thought out. In each case it is necessary to justify it in a profound way, so that it not only prevails in that initial moment of summary cognition, but also resists when the defenses that those raised up will bring to overthrow it come.

The injunction in IDPJ is, therefore, a powerful weapon present in civil proceedings, and represents another great advantage in the use of the incident of piercing the corporate veil.

3. Classification of IDPJs regarding the requirements necessary for their characterization

It is possible to classify the disregard of legal personality in terms of the requirements necessary for its characterization. In other words, it is possible to distinguish different types of disregard by observing what the law requires to happen for the piercing of the legal personality to be granted.

In this sense, there are two types of disregard: (i) that based on major theory the disregard of legal personality; and (ii) that founded in minor theory disregard of legal personality.

Although the names are “major theory” and “minor theory” of disregarding legal personality, it is important to make it clear that they no longer have the status of simple “theory”, because both have already been incorporated by law, are duly established in the system and have wide practical application. Even so, the use of the expressions “major theory” and “minor theory” has become enshrined in Brazilian Law, and, in this sense, mention continues to be made of such expressions without such use being considered a faux pas or a technicality.

• Major theory of disregard of legal personality

The major theory of piercing the corporate veil is so named because it has a number bigger of requirements to be met to be granted. Therefore, it is the most judicious theory. It is more difficult to disregard the legal personality when the request is based on this theory.

Considering that the autonomy of the legal entity in relation to its partners and administrators is the rule, with an exception being the liability of partners for the company's debts and vice versa, the greatest theory is that considered as the general rule for disregard, applied as a sanction for situations in which legal personality is abused. The legal provision is in art. 50 of the Civil Code, which determines:

Art. 50. In case of abuse of legal personality, characterized by misuse of purpose or confusion of assets, the judge may, at the request of the party, or of the Public Prosecutor's Office when it is appropriate to intervene in the process, disregard it so that the effects of certain and determined relationships of obligations are extended to the private assets of administrators or members of the legal entity benefiting directly or indirectly from the abuse. (Wording given by Law No. 13,874, of 2019)[6]

As can be seen from a reading of the provision, this type of disregard is based on an abuse of legal personality. Instead of using personality for the lawful purposes provided for by law, there is a distortion in this use to obtain undue advantages by harming other people, either due to misuse of purpose or due to property confusion.

Bearing in mind that in the past, what was understood as property confusion or misuse of purpose varied greatly from court to court, and even from one judge to another within the same State, sometimes in the same district, perhaps even between decisions handed down by the same judge, and observing that this generated great legal uncertainty, there was a legislative change brought about by the Economic Freedom Law to guide this interpretation, which was done as follows:

• 1 For the purposes of this article, misuse of purpose is the use of a legal entity for the purpose of harming creditors and for the practice of illicit acts of any nature. (Included by Law No. 13,874, of 2019)
• 2. Property confusion is understood as the lack of de facto separation between assets, characterized by: (Included by Law No. 13,874, of 2019)

I – repetitive fulfillment by the company of the partner’s or administrator’s obligations or vice versa; (Included by Law No. 13,874, of 2019)

II – transfer of assets or liabilities without effective consideration, except those of proportionally insignificant value; and (Included by Law No. 13,874, of 2019)

III – other acts of non-compliance with patrimonial autonomy. (Included by Law No. 13,874, of 2019)

Therefore, in short, the main theory arises from acts such as the assets of the legal entity being concealed in the name of its partner; or her assets are confused and used interchangeably with his assets; or he performs acts in the administration of that legal entity with the purpose of harming creditors, and so on.

• Minor theory of disregard of legal personality

The theory minor of disregarding legal personality has this name because there is a number minor of requirements to be met in the specific case for it to be granted. She is, therefore, less judicious, in the sense that it requires less evidence and elements to be obtained and, therefore, it is easier for the creditor to obtain it compared to disregarding the larger theory.

Despite it being stated that the minor theory is exceptional because it is the most aggressive towards businesspeople, in practice it often ends up being used more than the major theory. This is because the major theory – which is the general rule – is used in parity contracts, civil contracts, business contracts and others.

The minor theory is used in situations of vulnerability, with the aim of facilitating the exercise of rights by the most fragile party in the legal relationship. For this reason, this is the theory adopted in Consumer Law, Labor Law and Environmental Law[7].

The main provision that provides for it is art. 28 of the CDC/1990, which reads:

Art. 28. The judge may disregard the legal personality of the company when, to the detriment of the consumer, there is an abuse of rights, excess of power, violation of the law, unlawful fact or act or violation of the statutes or articles of association. The disregard will also be effective when there is bankruptcy, state of insolvency, closure or inactivity of the legal entity caused by poor administration.

• 1st (Vetoed).
• 2° The companies that are part of the corporate groups and the controlled companies are subsidiarily responsible for the obligations arising from this code.
• 3° The consortium companies are jointly responsible for the obligations arising from this code.
• 4° Related companies will only be liable for fault.
• 5° A legal entity may also be disregarded whenever its personality is, in some way, an obstacle to compensation for losses caused to consumers.

It should be noted that § 5 ends up making all other paragraphs and even the caput. This is because it makes disregard so much easier for the vulnerable that it makes no sense to seek to use other devices, which provide for more requirements and are more difficult to obtain.

So, basically, based on the interpretation given to art. 28, § 5, of the CDC/1990, mere non-compliance is sufficient cause for disregard in order to hold partners responsible for the company's obligations.

In this sense, there are numerous precedents, serving as examples, within the scope of Courts of Justice:

RESOURCE. MUTUAL CONTRACT. CONTRACT TERMINATION ACTION CUMULATED WITH REFUND OF AMOUNT PAID. DISREGARD OF LEGAL PERSONALITY. PREVALENCE. CONSUMPTION RATIO. INCIDENCE OF ARTICLE 28, § 5 OF THE CDC. RESPONSIBILITY OF THE DEFENDANTS, EVEN IF THEY CLAIM THAT THERE WAS A HIDDEN PARTNER WHO PRACTITED FRAUD AND THAT THEY HAD NO KNOWLEDGE OF THE HIRING, WITH ONLY THE CORFENDANT CHRYSTIANO LENDING HIS NAME TO THE CONSTITUTION OF THE COMPANY FASTTUR. INADMISSIBILITY. MATERIALS UNAPPLICABLE TO THE CONSUMER. PARTIAL PROCEDURE MAINTAINED. REQUEST TO SET AN AMOUNT OF FEES IN YOUR FAVOR, GIVEN THE PARTIAL PROCEDENCE OF THE REQUEST. GENERIC IRRESIGNATION. APPEAL DISMISSED, WITH NOTE. 1. The finding that there are no seizable assets of the debtor, in such a way as to make it impossible to repair the damages caused to the consumer, makes it possible to disregard the legal personality of the company, as the requirements of article 28, § 5, of the Defense Code of Consumer. […] (TJSP, Civil Appeal 1020983-96.2020.8.26.0100, rapporteur Antonio Rigolin, 31st Chamber of Private Law, Regional Forum XV – Butantã – 2nd Civil Court, judged on 15.05.2023; registration date: 15.05.2023) .

Within the scope of the Superior Court of Justice, there is also edition no. 162 of Jurisprudence in Theses dealing with this, and the first thesis established is the following: “it is sufficient for the application of the minor theory of disregarding legal personality (art. 28, § 5, of the CDC) the existence of an obstacle to compensation for losses caused to consumers”[8].

This understanding, despite being provided for in the Consumer Protection Code (CDC), is also applied in the Labor Court through the use of the source dialogue theory. In this sense, for example:

INTERLOCUTORY APPEAL. APPEAL FOR REVIEW UNDER LAW 13.467/2017. ENFORCEMENT. NULLITY DUE TO DENIAL OF JURISDICTIONAL PROVISION. DISREGARD OF LEGAL ENTITY. REDIRECTION. PARTNERS. LEGAL TRANSCENDENCE RECOGNIZED. Legal transcendence must be recognized, given the relevance of the discussion on the application of the "major theory" or the "minor theory" in disregarding the legal entity in labor proceedings. Legal transcendence recognized. ENFORCEMENT. NULLITY DUE TO DENIAL OF JURISDICTIONAL PROVISION. DISREGARD OF LEGAL ENTITY. REDIRECTION. PARTNERS. It should be noted that in labor credits—similar to consumer credits which are part of asymmetrical legal relations—the "major theory" provided for in Article 50 of the Civil Code does not apply. Instead, Article 28, § 5 of Law No. 8078/1990—the Consumer Protection Code (CDC)—supports the "minor theory," allowing the execution of the partner's assets when there is insolvency of the legal entity or irregular dissolution of its capital stock. The regional decision, attentive to the employee's vulnerability, does not violate the principles of due legal process and the right to a fair hearing. The appeal for review does not qualify for processing, as correctly pointed out in the appealed decision, since no direct and literal violation of Articles 5, LIV, and LV of the Federal Constitution was identified. The issue under examination is regulated by provisions of an infraconstitutional nature (Articles 50 of the Civil Code, 28 of the Consumer Protection Code, and 795 of the Code of Civil Procedure), whose potential violation would not warrant the processing of an appeal for review in an enforcement proceeding, as provided for by Article 896, § 2, of the Consolidation of Labor Laws (CLT), and Summarization 266 of the Superior Labor Court (TST). Interlocutory appeal denied. (TST, AIRR 7372005320085120036, rapporteur Augusto Cesar Leite de Carvalho, judged on 02.09.2022, 6th Panel, publication date: 02.11.2022).

Thus, the minor theory of disregarding legal personality must be taken into consideration in situations of asymmetric relationships, mainly consumer and labor relations.

4. Conclusion

Disregarding the legal personality is one of the four major institutes for dismantling fraud, a group also made up of execution fraud, fraud against creditors and simulation. Among these institutions, the disregard of legal personality is the one that has had the greatest practical power in resolving unpaid civil foreclosures, as it has three major advantages: (i) it makes it possible to hold another person fully responsible for the debtor's debt; (ii) there is no (at least for now) condemnation of succumbence funds; and (iii) the injunction in cases of piercing the corporate veil (IDPJ) is one of the most powerful provisional remedies in civil enforcement.

Taking this into consideration, there is a need to master the classification of IDPJs in terms of the requirements necessary for their characterization. Professionals with such knowledge have great potential to resolve civil executions and bring effectiveness to justice in the specific case.

 

References

BARROS, Humberto Gomes de. AgRg in Special Appeal no. 382.736/SC (2001-0155744-8). Full content of the ruling of the Superior Court of Justice (STJ). Legal Consultant Portal (CONJUR). São Paulo, 25 Feb. 2004. Available at: https://www.conjur.com.br/dl/voto-banana-boat-humberto-gomes-barros.pdf(accessed on: 24 Aug. 2023)

 

BRAZIL. Superior Court of Justice (STJ). Jurisprudence in Theses. Edition no. 162. Consumer Law – VI. Edition available on 01/29/2021. Available at: https://scon.stj.jus.br/SCON/jt/toc.jsp?tipo=JT&livre=%22TEORIA+MENOR%22&b=TEMA&thesaurus=JURIDICO&p=true&tp=T(accessed on: 24 Aug. 2023)

 

BRAZIL. Superior Court of Justice (STJ). Summary no. 303: In third party embargoes, whoever caused the undue restriction must bear the legal fees. Brasília, DF: STF Jurisprudence Portal, Oct. 2011. Available at: https://www.stj.jus.br/docs_internet/revista/eletronica/stj-revista-sumulas-2011_24_capSumula303.pdf(accessed on: 24 Aug. 2023)

 

BRAZIL. Unity. Law no. 9,605, of February 12, 1998. Provides for criminal and administrative sanctions arising from conduct and activities harmful to the environment, and provides other measures. Brasília, DF: Federal Government Legislation Portal, 1998. Available at: https://www.planalto.gov.br/ccivil_03/leis/l9605.htm(accessed on: 24 Aug. 2023)

 

BRAZIL. Unity. Law no. 10,406, of January 10, 2002. Establishes the Civil Code. [CC/2002.]. Brasília, DF: Federal Government Legislation Portal, 2002. Available at: http://www.planalto.gov.br/ccivil_03/leis/2002/L10406.htm. Accessed on: 26 Aug. 2023.

 

BRAZIL. Unity. Law no. 13,105, of March 16, 2015. Code of Civil Procedure. [CPC/2015.] Brasília, DF: Federal Government Legislation Portal, 2015. Available at: http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm(accessed on: 24 Aug. 2023)

 

THIRD Panel – STJ – 08/22/2023 | Morning. [Brasília: s. n.], 2023. 1 video (2:37:15). Live broadcast of the 22nd Ordinary Session. Published by the Superior Court of Justice (STJ) channel. Available at: https://www.youtube.com/watch?v=EUYoA1lPEjU. Accessed on: 27 Aug. 2023.

[1] BRAZIL. Superior Court of Justice (STJ). Summary no. 303:: In third-party embargoes, whoever caused the undue restriction must bear the legal fees. Brasília, DF: STF Jurisprudence Portal, Oct. 2011. Available at: https://www.stj.jus.br/docs_internet/revista/eletronica/stj-revista-sumulas-2011_24_cap Sumula303.pdf(accessed on: 24 Aug. 2023)

[2] “Art. 85. The sentence will order the loser to pay fees to the winner's lawyer. § 1 Legal fees are due in counterclaims, in compliance with a sentence, provisional or definitive, in execution, whether resisted or not, and in appeals filed, cumulatively”, see. BRAZIL. Unity. Law no. 13,105, of March 16, 2015. Code of Civil Procedure. [CPC/2015.] Brasília/DF: Federal Government Legislation Portal, 2015. Available at: http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm(accessed on: 24 Aug. 2023)

[3] THIRD Panel – STJ – 08/22/2023 | Morning. [Brasília: s. n.], 2023. 1 video (2:37:15). Live broadcast of the 22nd Ordinary Session. Published by the Superior Court of Justice (STJ) channel. Available at: https://www.youtube.com/watch?v=EUYoA1lPEjU. Accessed on: 27 Aug. 2023. https://www.youtube.com/watch?v=EUYoA1lPEjU(accessed on: 24 Aug. 2023)

[4] BARROS, Humberto Gomes de. AgRg in Special Appeal no. 382.736/SC (2001-0155744-8). Full content of the ruling of the Superior Court of Justice (STJ). Legal Consultant Portal (CONJUR). São Paulo, 25 Feb. 2004. Available at: https://www.conjur.com.br/dl/voto-banana-boat-humberto-gomes-barros.pdf. Accessed on: 27 Aug. 2023.

[5] “Art. 302. Regardless of the compensation for procedural damage, the party is liable for the loss that the implementation of urgent protection causes to the adverse party, if:

I – the sentence is unfavorable to you;

II – preliminary protection obtained in advance, failing to provide the necessary means to summon the defendant within 5 (five) days;

III – the effectiveness of the measure ceases in any legal hypothesis;

IV – the judge accepts the allegation of revocation or prescription of the author's claim.

Single paragraph. The compensation will be paid in the files in which the measure was granted, whenever possible”, cf. BRAZIL. Unity. Law no. 13,105, of March 16, 2015. Code of Civil Procedure. [CPC/2015.] Brasília, DF: Federal Government Legislation Portal, 2015. Available at: http://www.planalto.gov.br/ ccivil_03/_ato2015-2018/2015/lei/l13105.htm(accessed on: 24 Aug. 2023)

[6] BRAZIL. Unity. Law no. 10,406, of January 10, 2002 Establishes the Civil Code. Code of Civil Procedure. [CPC/2015.] Brasília, DF: Federal Government Legislation Portal, 2015. Available at: http://www.planalto.gov.br/ccivil_03/leis/2002/ L10406.htm(accessed on: 24 Aug. 2023)

[7] In the case of Environmental Law, there is an express provision in Law no. 9,605/1998. See in: BRAZIL. Unity. Law no. 9,605, of February 12, 1998. Provides for criminal and administrative sanctions arising from conduct and activities harmful to the environment, and provides other measures. Brasília, DF: Federal Government Legislation Portal, 1998. Available at: https://www.planalto.gov.br/ccivil_03/leis/l9605.htm(accessed on: 24 Aug. 2023)

[8] BRAZIL. Superior Court of Justice (STJ). Jurisprudence in Theses. Edition no. 162. Consumer Law – VI. Edition available on 01/29/2021. Available at: https://scon.stj.jus.br/SCON/jt/toc.jsp? tipo=JT& livre=%22TEORIA+MENOR%22&b=TEMA&thesaurus=JURIDICO&p=true&tp=T(accessed on: 24 Aug. 2023)