With the advent of Law No. 13,467, of July 13, 2017, article “855-A” was introduced into the Consolidation of Labor Laws – CLT, which came to regulate the use of the Incident of Disregard of Legal Personality – IDPJ in labor executions.

Despite the aforementioned article “855-A” of the CLT determining the application of the CPC for the processing of the IDPJ differently from what occurs in the civil process, the Incident of Disregard of Legal Personality will be processed in the same records of the process in which it was raised, as defined by the Superior Labor Court in Provision CGJT No. 1, of 02/08/2019.

The aforementioned provision also regulated that:

• After the incident has been initiated, the parties must be notified to present their defense within 15 days;
• The incident will be decided by interlocutory decision and there will be no immediate appeal if filed in the information phase, however, if filed in the execution phase, an Appeal of Petition will be filed;
• If the incident is brought before the Court, it will be up to the rapporteur of the case to judge it monocratically or take it to the collegiate. If the rapporteur opts for the judgment monocratically, the decision will be subject to the filing of an internal appeal;
• Once the incident has been decided or the appeal has been judged, the process will return to its regular course.

The corporate legal personality is an institution of extreme relevance for legal security, which is why the Civil Code in its article 50 established a restricted list to be declared in the event of abuse of legal personality, characterized by the deviation of purpose or by patrimonial confusion.

§1 of the aforementioned article provided that the Misuse of purpose is the use of a legal entity for the purpose of harming creditors and for the practice of unlawful acts of any nature.

For patrimonial confusion there was the definition that it is realized with the lack of de facto separation between assets.

It is worth noting that the incident of disregard can be carried out not only against the partners, but also against the administrators under the terms of §3 of the aforementioned article.

There are decisions in the labor sphere that apply, in a subsidiary manner, § 5 of article 28 of the Consumer Code, which adopts the so-called Minor Theory of disregard of legal personality. According to this line, in a simplified way, the characterization of the company's non-compliance with the labor obligation is enough to justify the targeting of the assets of partners and administrators.

Our experience shows that it is common in the execution phase for the judge, under the argument of effectiveness, to grant a precautionary measure to block assets even before the summons to present a defense at the IDPJ, which is even provided for in the aforementioned CGJT Provision No. 1, of 02/08/2019. However, we defend our clients in cases where this precautionary restriction of assets is unreasonable or unfounded.

We are always available to guide our clients, especially on sensitive topics such as the one discussed in this brief text.