Desconsideração da personalidade jurídica na falência: análise jurídica da sua aplicabilidade

Abstract

The Business Law has a role of fundamental social and economic importance, providing legal instruments for the development and protection of the empresary activities. Among these instruments, there is the institute of disregard of legal personality, which is applied when the misuse of the legal entity by members and / or administrators is verified. The research is directed to the accomplishment of a bibliographical survey and a documentary research, focused on the thematic approach. With the general objective of analyzing the application of the institute of disregard of legal personality in the bankruptcy process in the absence of a specific standardization. Considering the following problematic: in the face of the lack of specific normatization, can it be affirmed that the abusive use of the institute of the disregard of the legal personality in the face of bankruptcy proceedings takes place? On the assumption that the absence of specific rules and uniformity of case-law for the application of that institute in a bankruptcy procedure leads to its application on a case-by-case basis. This leads to many controversies about its application, which in turn leads to many uncertainties on the subject and undesirable legal uncertainty. It urges that inappropriate, incorrect and exorbitant use of such an institute may lead to a crisis of legal uncertainty, leading to a probable shrinkage of investments in various areas of the economy. Moreover, although its relevance in the Brazilian legal system has been recognized, it is unquestionable that the lack of consideration has given rise to numerous debates regarding the requirements, appropriateness and consistency of its application. For this reason, it is necessary to solve or, at least, to minimize the difficulties faced due to their own importance, since, even though they are subject to constant debates by the Judiciary, there are no uniform understandings. Therefore, constant adaptation and modification of legislation is essential, in order to make clear and correct the application of the Theory of Disregard, especially in what refers to Bankruptcy Law and the effects of its application to shareholders and administrators. Therefore, it is essential to create a specific standard for the application of the institute in the bankruptcy process, resulting in a unification of treatment in order to guarantee legal certainty regarding the matter.