CeCapSandes

Singelas considerações acerca da Desconsideração da Personalidade Jurídica

Desconsideração da personalidade jurídica

É sabido que o patrimônio da empresa não se confunde com o dos seus sócios, de modo que se a execução é promovida em face da empresa (empregadora), mas se esta não tem bens capazes de saldar a execução, permite-se que o juiz afaste o véu corporativo (teoria da penetração), desconsiderando a personalidade jurídica da empresa (disregard doctrine) para alcançar os bens dos sócios.

Na verdade, ao aplicarmos a relativização da separação patrimonial da pessoa jurídica e de seus sócios, o que antes era visto de forma absoluta, permitindo ao magistrado adentrar o manto da personalidade jurídica (lifting the corporate veil), o que se objetiva é combater abusos e fraudes, ou seja, a teoria da desconsideração da personalidade jurídica mostra-se como um importante meio para reprimir o descrédito trivial gerado pelo desvio do instituto da personalização, o que resta por gerar danos de monta considerável aqueles que prestaram serviços, despenderam sua energia produtiva e, ao final, em razão de má-fé, abuso ou frade, ficam á margem de receber seus créditos.

Com efeito, o artigo 790, inciso II do CPC prevê que os bens do sócio, nos termos da lei, ficam sujeitos à execução, sendo certo que o artigo 795 do mesmo diploma suso citado, afirma que os bens particulares dos sócios não respondem pelas dívidas da sociedade, senão nos casos previsto em lei. Por assim dizer, só podemos admitir que se adentre no patrimônio dos sócios nos casos previstos em lei, sendo certo que o sócio pode invocar o benefício de ordem, isto é, indicar bens da pessoa jurídica para que sejam excutidos, como se extrai dos §§ 1º e 2º do art. 795 do CPC.

Note que o regime legal da responsabilidade substitutiva é complementada com veemência pelo artigo 4º, § 3º da Lei nº 6.830/80, que possibilita a desconsideração da personalidade jurídica com a penhora dos bens particulares dos sócios, o que, nos termos do artigo 899 da CLT, é plenamente aplicável ao processo do trabalho, sem prejuízo do art. 28 do Código de Defesa do Consumidor (teoria menor)  ou do art. 50 do Código Civil (teoria maior).

Não obstante, dispõe o §3º do art. 4º da Lei n. 6.830/80 que os responsáveis poderão nomear bens livres e desembaraçados do devedor, tantos quantos bastem para pagar a dívida. No entanto, os bens dos responsáveis também ficarão sujeitos à execução, se os do devedor forem insuficientes à satisfação da dívida.

A teoria da desconsideração da personalidade jurídica fora solenemente proclamada pelo atual Código Civil de 2002 em seu artigo 50, o qual também é aplicável no Direito Processual do Trabalho além do já citado art. 28 do CDC, vez que o direito comum é fonte subsidiária, conforme previsão do artigo 8º, §1º, da CLT.

CC/02, art. 50. Em caso de abuso da personalidade jurídica, caracterizado pelo desvio de finalidade, ou pela confusão patrimonial, pode o juiz decidir, a requerimento da parte, ou do Ministério Público quando lhe couber intervir no processo, que os efeitos de certas e determinadas relações de obrigações sejam estendidos aos bens particulares dos administradores ou sócios da pessoa jurídica.

            Atualmente a CLT prevê expressamente a necessidade de IDPJ (Incidente de Desconsideração da Personalidade Jurídica) para que os sócios possam ser integrados à execução, como prevê o art. 855-A, §§ 1º e 2º da CLT, sendo certo que a regra procedimental é aquela estabelecida no CPC do art. 133 a 137, exceto no que toca a possibilidade de recurso, pois se a decisão interlocutória que acolher ou rejeitar o incidente for proferida na fase de conhecimento, não cabe recurso de imediato. Caso seja na fase de execução, caberá agravo de petição, independentemente de garantia do juízo. E, ademais, se for instaurado originariamente no Tribunal, da decisão do relator caberá agravo.

O incidente de desconsideração da personalidade jurídica, regulado pelo CPC (artigos 133 a 137 ), aplica-se ao processo do trabalho, com as inovações trazidas pela Lei nº 13.467/2017, consoante art. 17 da IN 41/18 do TST.

Por fim, deve ser observado o Provimento CGJT nº. 1 de 8/02/2019 do TST, o qual dispõe sobre o recbimento e o processamento do IDPJ, tratando de diversos assuntos sobre o tema, mas veda a instauração do IDPJ como processo autônomo, ou seja, deve ser processado nos mesmos autos.

Espero ter esclarecido alguns pontos essenciais.

Cordial abraço,

 

Fagner Sandes – Diretor CeCapSandes, Advogado e Professor

março 1, 2019

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