It is known that within a corporate society the patrimony of the partners is not confused with the patrimony of the legal person, by virtue of the provisions of article 1024, of the Brazilian Civil Code, which establishes the principle of the patrimonial autonomy of legal entities, that is an important mechanism for the promotion of entrepreneurship, since it delimits the responsibility.
However, such an institute may give rise to the abuses and fraud on the part of entrepreneurs, in order to divert the legal personality of the purpose for which it was created. Such acts may give rise to the application of Article 50 of the Civil Code, which provides for the disregard of the legal entity, which authorizes the private property of the administrators or members to respond to the offenses committed in the name of the legal entity. Therefore, the Brazilian courts have established an understanding that, in order to have the application referred to in the law, it is necessary to prove the misuse of purpose of the legal entity or to confuse assets between the assets of the partners and the company.
With the intention of providing greater legal certainty to the institute, two bills are in process, namely, Law 3.401/2008, presented by Congressman Bruno Araújo, and Law. 5.646/2016 (discontinued), of authored by congresswoman Cristiane Brasil, the first is waiting for the opinion of the Committee for economic development, industry, trade and service of the House of Representatives, having already been approved by the Senate, with substitute amendment proposal.
The project of law nº 3.401/2008, which awaits approval by the House of Representatives, provides for the inclusion of two paragraphs to article 50 of the Civil Code, which would bring provisions not to reach the assets of the partner who did not practice acts of abuse of personality legal, as well as the assets of the partner who does not practice acts of management (partner merely investor), regardless of the abuse referred to in the caput of article 50 of the Civil Code.
It also provides for the inclusion of article 137-A, in the code of civil procedure, which broadly speaking will provide that assets incorporated into the equity of the partner or administrator of the company before joining the legal entity will not be constricted except in the case of assets used in the activity of the legal entity or if there was fraud by the partner.
So, if approved by the House of Representatives, will become law the above mentioned project, which will change the way the institute of disregard of the legal entity is understood and applied in our legal system.