By: Vitor Ferrari and Ivan Kubala

There is a common problem in the Judiciary regarding the compatibility, or not, of the incident of disregard of legal personality with the extension of bankruptcy.. In the original wording of Law 11.101/05, the extension of bankruptcy was always used as an instrument to reach third parties. However, with the reform, there was an incident of disregard of the legal personality. The big question is whether the two institutes still coexist. Does IDPJ executed outside the bankruptcy court coexist with the bankruptcy extension currently?

According to the law, an individual entrepreneur is bankrupt when he carries out business individually, without separation of assets, as there is no legal separation.

In a business corporation, there are limited liability partners, who do not suffer the patrimonial effects of bankruptcy; and unlimited liability partners, who may go bankrupt together with the business corporation. As provided for in article 81 of law 11.101/05, the unlimited liability partner may experience the effects of bankruptcy. This occurs due to social responsibility.

Today, bankrupt is the individual entrepreneur, the business corporation and the unlimited liability partner, who have their bankruptcy declared or judicial recovery converted into bankruptcy by the Judiciary.. The determination of liability will take place within this Court, and only this Court is competent to deal with the extension of the effects of bankruptcy to the Partners and Administrators.

The law established elements to hold controlling partners and administrators of limited liability companies accountable: Art. 82 and 82-A of the aforementioned law.

The first is a type of liability based on corporate law, its rule is procedural jurisdiction; civil liability based on the actions of the controller that may have caused damage to the company.. The bankrupt estate itself can file a liability action, previously it was only the partners.

This responsibility is provided for in the respective laws: civil code and corporation law. There is a transfer from the civil court to the bankruptcy court. However, It is not a question of extending the effects of bankruptcy, but rather of the damage caused, which will be assessed according to the loss of the bankrupt company: art. 940, CC. Action may be filed due to abuse by the controller (art. 117 LSA), liability for acts of the administrator (Art. 158, LSA) and receipt of undue profits (art. 1,059, CC).

The second form is the disregard of legal liability promoted in the Bankruptcy Court.

The matter was transferred to the civil code. In short, IDPJ occurs when someone improperly moves the legal entity in order to obtain an illicit advantage. This may be the partner or the administrator. The law allows the legal personality to be disregarded so that the agent, or whoever benefited from the maneuver, can be held liable for their actions.. However, it is not responsible for all the liabilities of the bankrupt company.

There is an error of judgment, since higher courts understand that the IDPJ entails an extension of the effects of bankruptcy, which is not true. In this sense, Minister Nancy Andrighi, STJ, clarified in RESP 1,325,663 that “the effects of disregarding the legal personality only reach the partners who participated in the illicit conduct or who benefited from it, even if they are the majority or controlling partner”.

Still, in parallel, There is a technical interpretation that would allow the extension of the effects of bankruptcies to other legal entities, which are not mentioned in article 82-A.

They understand that there is a possibility that other companies in the same group may be affected if the assets and/or liabilities are mixed up. One way to avoid this problem is to consolidate assets and liabilities., so that the creditors of one company do not benefit more than the creditors of the other. Corrective measures, therefore, must also be taken collectively, thus avoiding a forced and unexpected attraction due to decisions of the bankruptcy court.

The amendment to the Law attempted to regulate the concept and application of the declaration of bankruptcy for unlimited partners for types of companies with limited liability partners. In paragraph 1, it establishes that IDPJ is possible in the case of a corporate group, provided that article 50 of the law is evidenced.

The extension of bankruptcy is, and should be, exceptional, only for unlimited companies, as Adriana highlighted.

Joint ventures formed by legal entities may go bankrupt if the company goes bankrupt, as provided for in article 81. In this case, it is very similar to a corporate group, in which the companies have different assets, meaning that only the one that caused the loss is held liable.

However, when companies act as a common society, they will all go bankrupt. and must bear the costs of this. In these cases, as the companies operate as a group, it is difficult to know the specific assets of each one, which can harm creditors.

The rule attempted to curb abuses, but it still needs repairs and improvements.

The IDPJ, as provided, is a mistake, as it deals with secondary liability, complementary, when in fact, if a harmful act committed by the Partner or Administrator is found, their inclusion should be immediate, with primary liability, and not only in the absence of assets to satisfy credits.

Therefore, the liability of administrators or controllers for unlawful acts committed through the legal entity will be investigated by the IDPJ, and should not affect those who did not practice.

Finally, Corporate Groups are not necessarily illegal when there is asset confusion, as long as the consolidation results in the protection of creditors' interests.

With the collaboration of Luís Felipe Meira Marques Simão