Thyago Rodrigo da Cruz
Lawyer at Marcos Martins Advogados
As is well known, the bookkeeping of the business debtor seeking the legal benefit of judicial reorganization is of fundamental importance in various stages of the process of economic and financial recovery, making it possible to carry out a preliminary analysis of the viability of the company under reorganization and to verify the credits subject to the effects of judicial reorganization, for example.
However, it is clear that, given the publicity of procedural acts (CF, art. 5, inc. LX), the instruction of the initial petition for judicial reorganization with the accounting statements for the last three fiscal years and also with the indication of the bookkeeping of each pending commercial transaction (LRF, art. 51, subsections II and III), would imply unnecessary exposure for the reorganized company which, in order to obtain the aforementioned legal benefit, would be forced to sacrifice its corporate privacy, making public and accessible to anyone all information relating to financial and business operations carried out up to that point.
This is because, once its constitutive acts have been registered with the Public Registry of Commercial Companies (Junta Comercial), the legal entity, just like the natural persons that constitute it, becomes the holder of the so-called legal personality, conceptualized by Rubens Limongi França as “the legal faculties whose object is the most diverse aspects of the subject’s own person, as well as its extensions and projections”[1], and from then on, in its own name, it acquires rights and obligations in civil life.[2] The legal personality is the legal personality of the company.
It can be seen that the legal reason for this attribute varies depending on whether it is held by the natural person or the legal entity, so that in the first case it is firmly associated with the dignity of the human person, while in the second it is exclusively due to the potential or actual economic damage caused to the company in the market.
In this way, given the irrefutable and well-established attribution of personality rights to the legal person, it is important to emphasize that their exercise, for obvious and practical reasons, will essentially focus on the corporate sphere, and is clearly supported by solid legal constructions of a constitutional and infra-constitutional nature, as well as doctrine and case law.
In this sense, it should be noted that the Federal Constitution, in its article 5, item X, is very clear and inclusive in pointing out that “the privacy, private life, honor and image of persons are inviolable, ensuring the right to compensation for material or moral damage resulting from their violation”, from which follows the evident interpretation that all “persons”, both natural and legal, are holders of the right of personality to private life, very well defined in the magisterium of Marcelo Novelino, quoted below:
The Constitution protects privacy (genus) by recognizing as inviolable the private life, intimacy, honor and image of people (species), ensuring the right to compensation for material or moral damage arising from their violation.[3]
With regard to the differentiation between the concepts of privacy and intimacy, Marcos Soares da Mota Silva states that:
The concept of private life is broader than that of a person’s intimacy. It can be said that private life is made up of information, which only the holder can choose whether or not to divulge. Intimacy, on the other hand, is related to a person’s way of being, their identity, which can often be confused with private life. It can therefore be said that within private life there is still a person’s intimacy[4].
In turn, article 52 of the Civil Code clearly states that “the protection of personality rights applies to legal persons, where applicable”. So much so that Precedent No. 227 of the Superior Court of Justice puts a spanner in the works by pointing out that “a legal person can suffer moral damage”, in other words, once the personality rights aimed at protecting the physical and emotional attributes and aspects of the natural person have been safeguarded, all the others will apply equally to the legal person.
In this sense, the definition provided by Antônio Carlos Morato deserves special mention, as he understands personality rights “as rights that deal with the person himself and his reflexes and that are recognized to the human person and attributed to the legal person”[5].
It is precisely for this reason that article 51, paragraph 1, of Law 11.101/2005 states that “the bookkeeping documents and other auxiliary reports, in the form and support provided for by law, shall remain at the disposal of the court, the judicial administrator and, with judicial authorization, any interested party”.
The legislator was right to restrict access to accounting information only to the reorganization court, the judicial administrator and, only after judicial authorization, to any interested party, given that the fact that the petitioning legal entity is in the midst of a judicial reorganization process does not in any way mitigate its right to privacy, here understood as private life, It is certain that, if before the legal benefit was introduced, its information and accounting documents were covered by the secrecy that was proper to them, one must come to the obvious conclusion that the same, or even greater, protection must be given to them now, given their situation of evident fragility, motivated by the economic and financial crisis they are going through.
This being the case, it can be said that, at present, business debtors wishing to take advantage of judicial reorganization to overcome their economic and financial crisis can do so with peace of mind, knowing that their accounting data and business information will not be invaded by the curiosity of others and, above all, by their competitors.
Marcos Martins Advogados has worked with great success both to prevent damage and to re-establish its clients’ indispensable right to corporate privacy, using the legal, doctrinal and jurisprudential principles necessary to satisfy this attribute of the legal personality of the company undergoing judicial reorganization, highlighting our ever-present commitment to the updating and quality of the services provided.
[1] FRANÇA, Rubens Limongi. Personality rights: fundamental coordinates. Revista do Advogado, São Paulo, n. 38, Dec. 1992, p. 5.
[2] REQUIÃO, Rubens. Commercial law course. São Paulo: Saraiva, 2003, p. 382.
[3] NOVELINO, Marcelo. Direito Constitucional. 3. ed. Rio de Janeiro: Método, 2009, p. 396.
[4] SILVA, Marcos Soares da Mota. Direito constitucional para concursos (Série aprova concursos). 2. ed. Curitiba: IESDE, 2011, p.45.
[5] MORATO, Antônio Carlos. General framework of personality rights. Revista da Faculdade de Direito da Universidade de São Paulo, v. 106/107, Jan./Dec. 2011/2012, p. 124.
