Recently, the Third Chamber of the STJ unanimously decided that the approval of the Judicial Rehabilitation request for a business society, whose legal personality was disregarded, does not prevent the progression of execution redirected to its partners. On this occasion, the legal personality was disregarded through the application of the Minor Theory of Disregard of Legal Personality, based on §5 of Article 28 of the Consumer Protection Code (CDC).
The rapporteur, in his vote, made it clear that despite doctrinal controversies on the subject, Article 6-C of Law 11.101/05 does not exclude the application of the Minor Theory. Among the reasons presented, the rapporteur argues that the theory does not arise solely from default, but rather from the impossibility of compensating the damages caused to the consumer. Additionally, he asserts that consumer rights are part of the list of fundamental rights and guarantees.
In the same decision, the irrelevance of the corporate form (Corporation or Limited Society) adopted by the business society for the application of the theory was emphasized. In the case under consideration, shareholders argued that as being a corporation, disregarding the corporate veil would not be possible, as they did not fit the definition of partners but rather shareholders. The rapporteur, however, argued that “the corporate form does not define the applicability of the so-called Minor Theory”, clarifying that there is indeed the possibility of reaching the assets of shareholders who have “effective control over the management of a public corporation.”
Regarding the impossibility of proceeding with the execution of partners due to the approval of the Judicial Rehabilitation of the Society, the rapporteur mentioned that the stay period does not prevent the progress of the action against third-party joint debtors or co-obligors in general, according to a thesis established by the Superior Court of Justice (STJ) itself. In his opinion, he explains that the suspension of actions occurs to avoid affecting the assets of the entity in Judicial Rehabilitation, which does not apply in this case since the assets of the partner of the legal entity will be affected. Furthermore, he argues that the legislator did not foresee the suspension of actions against co-obligors and joint debtors due to this same fact.
Despite being a still controversial and highly debated topic, this decision is crucial for a better understanding of the stance taken by higher courts in similar cases, mainly due to the recent increase in rehabilitation requests.
Photo: Canvas
