Bruna Cristine de Souza Bevilacqua
Lawyer at Marcos Martins Advogados
Enforcement in labor proceedings was the target of a change in the labor reform (Law 13,467/2017), since it expressly brought in Article 855 – A¹ to support the Incident of Disregard of Legal Personality, making reference to Articles 133 to 137 of Law 13,105 of March 16, 2015 – the Code of Civil Procedure.
Thus, the so-called IDPJ (Incident of Disregard of Legal Personality), now structured by the CLT, strengthened the understanding of doctrine and jurisprudence, which already applied the incident analogously to the caput and § 5 of art. 28 of the Brazilian Consumer Protection Code, combined with article 50 of the CC/02 and 135 of the National Tax Code, subsidiarily applied to the labor process by virtue of articles 8 and 769 of the CLT.
It is true that in its old legal text the CLT was silent on the disregard of legal personality, however, with the advent of the CPC/2015, Normative Instruction No. 39/2016 of the Superior Labor Court provided for the IDPJ, expressly stating its application in the Labor Court in its article 6².
And in this context, it is essential to highlight and clarify that a company has its own legal personality, holding rights and obligations that are peculiar to it, mainly having its own assets, which are not to be confused with the assets of its partners. Therefore, the general rule in force in the country’s legal system is that the partner is NOT personally liable for the debts of the legal entity.
However, it is worth considering that the disregard of legal personality “developed with the primary purpose of preventing the deviation of purpose of a business entity, whether through fraud against the law, creditors or the articles of association, that is, aiming, solely and exclusively, to hold the managing partners responsible for bad faith”³.
And so, in order to apprehend many entrepreneurs, it is sometimes necessary for the personal assets of the partner to be affected, which is the phenomenon of the disregard of the company’s legal personality. This should occur, exceptionally, when there is an abuse of legal personality, which materializes with the deviation of purpose, corroborated by the concreteness of fraud or abuse of law.
In fact, in the cases mentioned, the judge may, at the request of the party or the Public Prosecutor’s Office, decide on the obligations and their extension to the private assets of the administrators or partners, in order to make the executions effective.
In this regard, the fundamental innovation granted to labor proceedings is regulated in article 135 of CPC/15⁴, which provides that after the incident is initiated, the partner or legal entity must be summoned to present a defense and request the production of evidence.
In this regard, we believe that the asylum for the disregard of legal personality encompassed by the labor reform, as well as the way in which the matter has been disciplined, provides business partners with greater legal certainty, because in order for their personal liability to be declared in a claim, it is necessary to have a prior judgment through a procedural incident, in which they will be given the right to a full defense and an adversarial proceeding, and there will no longer be any surprise when they are summoned to pay a previously unknown debt.
And it is in this logistics that the Marcos Martins law firm seeks to improve its work, outlining strategies and defensive theses for each specific case that serves the businessman affected by the incident of disregard of legal personality, always being aware of the understandings of the Courts, thus being able to provide guidance and act in the labor sphere.
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¹Art. 855 – A, CLT. The legal personality disregard incident provided for in articles 133 to 137 of Law No. 13.105, of March 16, 2015 – Code of Civil Procedure – shall apply to labor proceedings.
²Article 6, IN 39/2016, TST. The incident of disregarding the legal personality regulated in the Code of Civil Procedure (arts. 133 to 137) applies to Labor Procedure, ensuring that the labor judge can also take the initiative in the execution phase (CLT, art. 878).
³MARTINS, Gilberto Baptista. The foundations of the theory of disregard of legal personality and the new Civil Code. In Adcoas Bulletin. 4/84.
⁴Art. 135, CPC. Once the incident has been initiated, the partner or legal entity shall be summoned to manifest itself and request the appropriate evidence within 15 (fifteen) days.
