THE NEW PARADIGMS OF THE PARTIAL DISSOLUTION OF A COMPANY ACTION AND THE NEED FOR UNIFORMIZATION OF JUDICIAL DECISIONS
Armando Luiz Rovai[*] & Paulo Sérgio Nogueira Salles Júnior**
ABSTRACT: It should be noted that the Institute for the Partial Dissolution of the Company, although it was only clarified in the drafting of the Civil Procedure Code of 2016, has for decades been an instrument of vital importance in business activity and its legal repercussions. It is worth mentioning, in this tuning fork, that such an institute had already been applied by doctrine and jurisprudence, in order to follow, even if in tow, the changes and entrepreneurial phenomena of business and corporate relations. It is worth noting, in this sense, that sometimes legislation as a device inserted in legislation takes years to incorporate the aspects considered peaceful and important by doctrine and jurisprudence, as is the case of the topic addressed. In the wake of this understanding it is necessary to state that the institute of partial dissolution of society was already part of the daily and legal life of the country, especially in matters involving corporate litigation. In this context, it should be noted that the Civil Code of 2002, in its Book II, which deals with Company Law, specifically in articles 1028 to 1030 of the legal text, provided instruments for solving the company in relation to a partner, which It is a synonymous form of the procedural modality of the partial dissolution of society, in the field of material law. These provisions refer to the institute of resolution of the company with respect to a partner, as a solution so that the departure of the partner would not entail the total extinction of the company, thereby causing serious damage to the other partners and, consequently, For the business activity, as it would cause damages to the employees who would lose their jobs and even losses to the Treasury, that without the continuity of the business activity would not collect taxes from the development of the activity.
KEYWORDS: Partial dissolution of company - New Civil Procedure Code; Instrument; Action; Corporate Procedure; Legal instrument; Administrative Economic Accounting; Business; Development.
I. THE INNOVATIONS OF THE NEW CIVIL PROCESS CODE
In order to consider the entry into force of the New Code of Civil Procedure, since its validity took place in March 2016 and brought various changes in the legal system, that it deals, with particular clarity, in articles 599 to 609, the subject of partial dissolution of society and all its consequences for its viability, both procedurally analyzing and from the business point of view.
It is a procedural modality that can be defined as not included in the wording of the revoked Code of Civil Procedure of 1973, where it was observed the total dissolution forecast of the company, a file that generated relevant practical problems, such as the fact of reaping the business activity and hamper the development of the company's social function.
It must be considered, then, that the institute of partial dissolution of society already existed as a doctrinal and jurisprudential creation and, since the Civil Code of 2002, duly provided in the legal order concerning material law, in other words, without a rule own process. There is no doubt as to the benefits brought in from the moment that the specific articles proper to the partial dissolution of society were inserted in the procedural document, both in the corporate sphere, as well as with regard to aspects related to predictability and legal certainty of corporate relations.
In this respect, it is observed that the institute has in its creation the objective of guaranteeing the principles of the preservation of the company and its social function, since, based on the traditional contractualist theory and that had backing in the previous legal texts, the preponderance of the will of the partners left aside the institutional importance of the company, with all its consequent reflexes inherent to the development and balance in the social structure.
Based on this point it should be noted that the objective of the company to comply with the purpose that it has in its social contract and according to its social function and, thus, be able to achieve the goal of the whole society, whether entrepreneur or simple, with a focus on profit-making, as a return of work and effort implemented by partners, fundamental elements and intrinsic to the principles of free initiative and the inherent risk of business.
For this, it is evident that the New Code of Civil Procedure expresses the continuity of the business activity, even if one of its partners has left.
Such a case prevents the partial dissolution of the company entails the liquidation and extinction of the company, when, for example, there is some disagreement between the partners, the breakdown of "affectio societatis", death of a partner or, simply, the desire of one of the partners to unlink withdraw from the corporate structure. Technically, in the legal scope of the Civil Code, in its part of Company Law, the reason for the departure is resolution of the company in relation to one or some partners due to voluntary or motivated exit; expulsion or death of a partner, and it is certain that in any hypothesis proposed here, the respective ties inherent to corporate participation will be eliminated.
From a historical and chronological point of view, it is also necessary to clarify that, long ago, a partial dissolution of society was applied only in personal societies, due to the breakdown of "affectio societatis", something that has now been overcome, in view of the hybridity of society limited and its business facet that combines the elements that form factors of production, responsible for its organicist. In fact, it should be said that in the face of the natural dynamism of business relations, the subject has evolved in such a way that it is currently admitted until the partial dissolution of the closed corporation, “Intuitu personae”, as provided for in the New Code of Civil Procedure.
II. DEFINITION AND PROCEDURES FOR THE PARTIAL DISSOLUTION OF COMPANY
The partial dissolution of the company nothing more and than the termination of the partnership agreement in relation to one or more partners, through the existence of reasons capable of causing the termination of the corporate agreement, but not of the company. In other words, the company is not extinguished. If this were to be the case, that is, its extinction, it would be necessary, first, to go through three stages: dissolution, liquidation and extinction.
This is due to the fact that the dissolution is a declaratory act that initiates the liquidation process, leading to a declaratory act of foreclosure of the company, which represents the confirmation of its act of dissolution and approval of the liquidation.
The Civil Code of 2002, which, as already stated, does not use the term partial dissolution - due to its customary lack of precision, but resolution of the company with respect to a partner, the causes of partial dissolution, namely: i) death of the partner; (ii) voluntary or motivated withdrawal (due to just cause); and (iii) the out-of-court and out-of-court exclusion of the partner due to serious misconduct or due to a subsequent incapacity.
It should be noted, however, that article 1.035 states that the social contract may stipulate other causes of dissolution, to be verified judicially when challenged. In this way, it is opportune to assert that the causes of dissolution are not exhaustive.
With regard to the issue involving corporations, the dissolution regulated in article 206 of Law 6,404 / 76, and may be by right, by judicial decision and by administrative decision, as well as, now, by the New Code of Civil Procedure when within the legal requirements.
Specifically, in the inexorable death of one of the partners, the dissolution of the partnership will only occur when the successors and the other partners have no interest in maintaining the corporate bond. The withdrawal of the partner may be motivated under the terms of article 1.077 of the Civil Code, or unmotivated under the terms of article 1.029 of the Civil Code. On the other hand, the exclusion of the partner may be extrajudicial in the cases of article 1,085 of the Civil Code, and judicial on the initiative of the majority of the other partners, for serious failure to fulfill their obligations, or, furthermore, for supervening incapacity.
With regard to the evaluation and payment of the partner that the company was resolved in relation to it, the partial dissolution of a company requires the liquidation of the share of the retiring member, excluded or successors, who become creditors of the company. In these cases, the value of its quota, considered by the amount actually paid, will be deducted by means of the determination of assets, being settled, unless otherwise stipulated otherwise, based on the equity position of the company, the date of settlement, especially raised.
The capital stock will have been correspondingly reduced, unless the other shareholders supply the value inherent to the withdrawal of this member and the quota settled will be paid in cash, within ninety days, from the liquidation, unless otherwise agreed or stipulated in the contract.
III. THE FORECAST OF DISSOLUTION IN THE NEW CIVIL PROCESS CODE
We will cover, in this topic, the prediction of this institute in the New Code of Civil Procedure proper. The legal text deals with the Partial Dissolution Action of the Company in its title III, Chapter V, as it has already been said between articles 599 and 609 of said legal text.
The aforementioned articles have the function of regulating the rights inherent to the Partial Dissolution Action of the Company, as well as listing the characteristics and criteria of said action.
It is noted that article 599 aims to address which are the companies that can be partially dissolved, as well as the object of the action of partial dissolution of society. Soon in the following article, it is already mentioned which are the subjects that can judge said action.
In Article 601, the question of the term in which the company and the partners will be cited so that they can consent to the action or even contest if it is in the interest of any of them.
It establishes, in the sequence, that the company can be indemnified with the values compensable in the determination of assets, as well as that if all agree with the dissolution the magistrate can declare the same of plan and thus initiate the liquidation phase.
From its article 604, it establishes that the judge will instruct the stage of the determination of assets, an important moment, since it is necessary to observe the exact moment of the partial resolution of the company, because only with this one has the exact value of the company at the moment of the resolution, as well as the appointment of an expert to have the correct assessment of the assets of society.
In order to solve the problem of the moment of the partial resolution of society, it establishes in article 605 that it lasts:
I - in the case of death of the member, the date of death;
II - in the unmotivated withdrawal, the sixtieth day following the receipt by the company of the notification of the retiring member;
III - in the recess, the day the company receives the notification of the dissident partner;
IV - in the withdrawal due to a just cause of company for a determined period and in the judicial exclusion of a partner, that of the final decision of the dissolution of the company; and
V - in extrajudicial exclusion, the date of the meeting or of the meeting of shareholders that has deliberated it.
Expressed in article 606 very important point, stating that, in cases where the social contract does not express how the determination of assets will be made, this incumbency will fall on the magistrate, which will end the balance of determination that in addition to taking into account assets tangible as intangible, also considers the exit price of the assets that make up the assets of the company. The new Code of Civil Procedure is a happy initiative, in which the parties involved are clearly legally certain, and if there is a need for expertise, this should be done by a specialist in company valuation.
Finally, in its last two articles referring to the action, that the profits earned will be of right to the former partner, spouse or successors, as well as that after the resolution of the company will only be due to these added value, the monetary adjustment to be paid according to the provisions of the company's articles of association, or under the terms set forth in article 1031, paragraph 2, of the Civil Code of 2002.
IV. THE RECORDS AND THE INSTRUMENTS PLANNED TO PROMOTE AND DEFEND IN THE COMPANY'S PARTIAL DISSOLUTION ACTION
Regarding the action of partial dissolution of society, specifically with regard to its procedural initiation in the limited society, the following must be considered and recorded: The institute was already supported by the doctrine and accepted by the Brazilian courts as a peaceful understanding, produced the possibility of withdrawing from society a partner who did not bring more benefits to society, or no longer contributes to the satisfaction of the development of its economic objective, especially delineated by business profit and with moral support in the function and social responsibility of the company.
Of course, such a situation is only feasible and permissible provided that it is evident from the determination of the balance of determination and through the due payment of the assets of this partner, thus avoiding the extinction of the company for the continuation and development of its activities.
It should be noted that such a position could already be seen before the New Code of Civil Procedure, as Mauro Rodrigues Penteado teaches.[2]
According to the aforementioned author's position, the understanding is reinforced that the partial dissolution of society, prior to the promulgation of the New Code of Civil Procedure, already provided for the company to continue its activities normally with the departure of one of the partners. Also, it is noted that such an institute generates a benefit to the minority partner, otherwise, it would not have the right to request total dissolution, but with the partial, it may leave the company and have its share received in the value of the assets the time of society's resolution.
In this sense, it is worth bringing to the notice of Fabio Ulhoa Coelho, about the causes that lead to the partial return of society, so let's see: [3]
In view of the understanding of the aforementioned guardian, it is observed that all the forms provided for the occurrence of partial dissolution are present both in the provisions of the Brazilian Civil Code of 2002 and in the New Code of Civil Procedure, since they are expressly present all these possibilities.
This fact, due to the complexity of the subject, makes it possible to bring to the present work the innovation contemplated by the statistical study in the Law, a discipline denominated by “Jurimetria”,[4] created, developed and narrated by Marcelo Guedes Nunes, including, on occasion of being one of the inspiring, intellectually and legally speaking, of the project about the insertion of the theme Partial Dissolution of Society in the New Code of Civil Procedure.
Such a study is relevant because historically, every legal operator is formed on a totally theoretical and abstract basis, and is, in short, inadequately prepared to deal with concrete aspects only from the theoretical juridical point of view, often forgetting of the social and mainly economic question, inherent to all juridical and negotiating relations, and which trigger, in case, the corporate conflicts.
This is the first way to stop thinking and act as a trader of traditional law and to see the reality of the world in its surroundings, that is, to observe the social, political, economic and social context and the way in which it is decided by the Courts, in each federal unit of Brazil, since only in this way can a more realistic study of the legal situation be obtained, with a greater degree of predictability and legal certainty.
Another issue that permeates ‘jurimetria” as an excellent innovation in the study of law is the fact that based on it we can have a better performance of the professional and consequent improvement in the current judicial system, bringing a stabilization of justice, considering the high litigation of Brazilian law and the lottery way of our judicial system - an example of legal uncertainty and inefficiency of the provision of Jurisdictional Protection.
So for a good understanding and interpretation of law is not enough pure and so problematic about only interpreting the law, but rather one must understand what the problematic about conflicts of interests that procedural litigation of economic changes and jurisprudence.
In light of this analysis of law, the law is nothing more than a legal interpretation that the legislator brings about a particular subject, but it is noted that for the proper functioning of the legal system we have to analyze the dynamics of relations, according to the historical, political and economic moment that we live, in order to achieve a good systemic application, so as to materialize and instrumentalize such expedient in the judgments, judgments and the Summits.
In the case of the Summits, it should be noted that they have a very relevant role in the current legal system, because their use creates a jurisprudential orientation that can give rise to its irradiation by all jurisdictional spheres and degrees, and, until they are used by the Supreme Federal Court.
In this sense, it is also appropriate to assert on the interpretations that the judicial system brings to the laws, observing that it is not necessary to speak in a judicial system that works without a good technique of hermeneutic application that allows the better interpretation of the law in the concrete cases of corporate litigation, therefore, the need for a holistic view of the norm, its studies and consequences in the decision making.
It is clear that society is progressing farther forward than legislation can follow, that is, society is striding forward while legislation is delayed. The causes of delinquency and lack of judicial uniformity, as well as the causes that lead to judicial litigation, must be examined in this tuning fork.
Specifically, regarding the partial dissolution of society, the innovation of application of the jurimetrics techniques allows us to analyze better the causes that lead to the rupture of the corporate bond, since, with more specific and concrete data, we have a better analysis of the reasons that effectively lead to the dissolution of society.
This legal relevance is evident in the national legal system, since, as can be analyzed in the statistical study of law, a better and more accurate understanding and understanding of the norm in the concrete case is possible.
It is noted that according to the Judiciary, there is a very lengthy process of proceedings whose legal nature is of corporate litigation, hampering social and economic evolution and not fulfilling the purpose of procedural speed, as a means of actually doing justice.
In order to increase the chances of foreign investment in our country, better enforcement of laws and consequent quick litigation business, in a correct and efficient manner, in each case, and in cases of partial dissolution of society, the principles of social function and company maintenance must be preserved and respected.
V. CONCLUSION
The changes introduced by the New Code of Civil Procedure, in particular as regards the action of partial dissolution of society, lead to a multifaceted understanding of the legal order, in the instrumental and material scope, adding concepts related to administration, accounting and economics.
Essentially, the present work has dealt with the legal nature of the procedural instrument, especially as regards its ordering for better application, at a time when the agility of information and the precision of administrative / legal procedures are increasingly part of necessary mechanisms for the country's development. Thus, its analysis contributes to the preservation of the business activity, given the legal reality, guiding the economic guidelines that guide essential factors, from production to consumption. It is important to note that with the emergence of new demands and greater pressure on business, a new position is required by the Judiciary, in a more balanced and adequate way to the social and economic aspirations of societies, in order to reach a higher degree predictability and legal security in the business world.
REFERENCES
Carvalhosa, Modesto. Comentários ao Código Civil: parte especial: do direito de empresa (artigos 1052 a 1.195). Vol 13 (São Paulo: Saraiva).
Coelho, Fabio Ulhoa. Manual de Direito Comercial. 27 (São Paulo: Saraiva, 2015).
_____. Tratado de Direito Comercial. Vol. 1 (São Paulo: Saraiva, 2015).
Fiuza, Ricardo. Código de Direito Civil Comentado (São Paulo: Saraiva, 2005).
Penteado, Mauro Rodrigues. Dissolução e Liquidação de Sociedades. 2. ed. (São Paulo: Saraiva, 2000).
Requião, Rubens. Curso de Direito Comercial. Vol. 1 e 2 (São Paulo: Saraiva, 2015).
Fonseca, Priscila M. E Conta da. Dissolução Parcial, Retirada e Exclusão de Sócio no Novo Código Civil. 3. ed. (São Paulo: Atlas, 2005).
[*] Doctor of law by Pontifical Catholic University of São Paulo, Brazil, teacher of business law on Pontifical Catholic University of São Paulo, Brazil and University Presbiteriana Mackenzie – SP - Brazil, University invited professor of GVLAW – Brazil, of INSPER – Brazil, of Universidade de Valladolid – Espanha, University of Porto – Portugal, University of London, University of Santiago de Compostela. He was chairman of the São Paulo State Trade Board, four times president of the Weights and Measures Institute of the State of São Paulo. He writes periodically for newspapers with large circulation, such as Valor Econômico. Member of the Capital Markets Committee of the Federal Council of the OAB. He is a member of the Superior Council for Legal and Legislative Affairs - CONJUR, of FIESP / IRS. Lawyer, Arbitrator at arbitration at AMCHAM - American Chamber of Commerce at CCBC - Brazil Canada Chamber of Commerce and FIESP
** Lawyer, with a law degree from University Presbiteriana Mackenzie - SP - Brazil, Master's degree in law from the Pontifical Catholic University of São Paulo - Brazil, assistant professor of business law of Dr. Armando Luiz Rovai at the Pontifical Catholic University of São Paulo, Brazil. Permanent member of the study group of tax law and federal pact at University Presbiteriana Mackenzie, author of several legal articles and collective works, lecturer of business law in Brazil and abroad.
[2] The so-called partial dissolution, formulated by the doctrine and widely admitted by the courts, finds in the limited intensive use that allows the quota holders to obtain, in court, a result similar to that achieved by the right of withdrawal or withdrawal - (in the case of Decree 3.708 / 19, the divergence in the amendment of the articles of association - article 15), do not have to claim any of the hypotheses contained in the law, in a closed list, as a prerequisite for the exercise of this right.
It suffices that society is for an indefinite period, as it may occur, or that the duration is long and has its final term still very far, to which the partner alleges disintegration or breaking of “affectio societatis” - a foundation loaded with subjectivity and great fluidity so that the Judiciary automatically moves to this so-called empty form of partial resilience of the many people contract of the company by limited liability shares.
The doctrine supports this understanding, with emphasis on the protection of the minority partner, which is not subtracted from the faculty of requiring the total dissolution of society, if harmed by the majority. In this sense Edson Nelson Ubaldo signs it: there is no doubt that this criterion is correct. It must nevertheless be used with caution, never in a generalized way. Mister is made that the majority proves their intention to safeguard and respect the rights of the minority partner, being prepared to pay their paid quotas and their assets for the real price. If not, it can, as we have seen, immediately promote dissolution, without the majority being able to oppose it.
PENTEADO, Mauro Rodrigues. Dissolução e Liquidação de Sociedades. 2. Edição revista, ampliada e atualizada de acordo com a Lei nº 9457/97. São Paulo: Saraiva, 2000, p. 154 e 155.
[3] “The partial dissolution of society (that is, the resolution of the society in a partner) can be provoked in most cases by: a) the will of the partners, b) the death of the partners, c) exclusion of member e) bankruptcy of member, settlement of the quota at the request of partner's creditor.
By resolution of the partners, the partial dissolution of the company can be promoted, with the exit of one of them, determining the respective assets. There is usually no conflict between stakeholders in this case. All being in agreement with the partial dissolution, the member who leaves the society is satisfied with the value received by his former participation and those who remain in it consider this adequate value.
When a member of a contractual partnership dies, his successors - heirs or legatees - are not under any circumstances obliged to join the company and may promote partial dissolution. Of course, if the successors of the deceased partner wish to join society (and if this is a person, none of the surviving partners oppose), there is no reason for the even partial dissolution of the legal person. Neither dissolving contractual clause can overlap the will of the interested parties (successors and surviving partners.) And the principle of the company's permanence.
The partial dissolution is the legal solution that seeks to reconcile the conflicting interests of the successors of a deceased partner who do not wish to join the society or of a surviving partner, in a society of people, who vetoes their entry. But without the conflict of interests, society must remain, with the quota of the deceased transferred to whoever happens to it. The death of a partner shall only result in judicial dissolution, if there is no agreement between the parties as to the occurrence of the dissolution cause (for example, the surviving partners refuse to carry out the liquidation of assets), or extrajudicial, when there is such agreement between the parts.
The withdrawal of a partner also causes partial dissolution of the company. Recalling, this is right that the partner can trigger at any time, if the company of which he participates contracted with indeterminate term. The withdrawal, in this case, is conditioned only notification to the other partners, with a period of 60 days, to arrange the contractual amendment. When the company is contracted for a fixed term, the partner only has right of withdrawal proving just cause in court or, if it is of the limited type, dissenting of contractual alteration, incorporation or fusion deliberated by the majority. It may operate judicially or extrajudicially, except in the event of withdrawal for just cause of company for a specified period, in which it will necessarily be judicial to dissolve.
The exclusion of a partner, as already seen, is a cause of partial dissolution. When it is due to the exclusion of a member, the dissolution may be judicial or extrajudicial, depending on different variables. If the exclusion and remission partner, it can be done extrajudicially in any type of contractual partnership (CC, article 1004). If it is motivated by a serious lack of compliance with a corporate obligation or a supervening incapacity, the dissolution will necessarily be judicial, in any type of contractual partnership (article 1030). Finally, if the motivation is minority practice of serious acts, which jeopardize the continuity of the company, and since the company is limited, the partial dissolution may be extrajudicial (deliberated in a meeting and formalized in a contractual amendment) if the expressly allow it; if not, shall be judicial (Article 1085).”
COELHO, Fábio Ulhoa. Manual de Direito Comercial. Direito de Empresa. 23ª ed. 2º tiragem. São Paulo: Saraiva, 2011. P. 205, 206 e 207.
[4] Jurimetria is very important in terms of the application of the law, with the view that the other areas of research already use statistical studies.
As for its application in the legal field, there is great relevance so that we can achieve greater security in judicial action.
This innovation eventually makes a study of the case, thus observing the same cases, formerly subjected to state justice, in this way to arrive at a statistic of victories and defeats, generating a greater certainty and security in the actions of the lawyer.