As is known, the Civil Code, in article 50, provides for the disregard of legal personality in cases of abuse of legal personality, characterized by misuse of purpose or confusion of assets, in order to hold the partners or administrators with their personal assets accountable, when directly or indirectly benefited by the abuse.
Especially in business law (remembering that in consumer relations the requirements are diverse when the creditor is a consumer), it is common for creditors to ask for the disregard of legal personality in enforcement actions when they find it difficult to locate assets of the debtor company to satisfy their claims, and it is not uncommon, on the other hand, first-degree decisions accepting these requests.
Fortunately, given that the independence and incommunicability of the assets of the partners and the company represent a cornerstone in the development of business activity, to allow the flow of the economy in the country, the Superior Court of Justice, which is the highest court in federal infraconstitutional legislation in Brazil, has a solid and peaceful understanding that " one cannot disregard the legal personality of a debtor business company to achieve the equity members on the basis only of their irregular closure and the absence of attachable assets." (AgInt no AgInt no AREsp n. 1.778.746/SP, rapporteur Minister Marco Aurélio Bellizze, Third Class, judged on 5/2/2022, DJe of 5/11/2022.)
This understanding, which represents, above all, legal certainty in the constitution of companies and in the development of business activity, is replicated in the Brazilian Courts, especially in the Court of Justice of São Paulo, with several precedents in this sense. Thus, it is necessary to be attentive to the strict requirements established in the legislation and referred to by the Courts, in order to curb the trivialization of the institute from the disregard of legal personality.
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