Sociedade de economia mista: uma análise das responsabilidades e dos deveres do estado empresário na condição de acionista controlador sob o prisma da Lei 6.404/76

Abstract

The Federal Constitution of 1988 allowed the State to directly explore economic activity through the creation of public companies and mixed capital companies (SEM). It should be noted that these state-owned companies have an immeasurable value for the economic and social development of the country, as they provide tactical objectives and countless responsibilities for national development, in addition to their social function and their role in implementing public policies. As a result, it is necessary to analyze the State's performance in the position of controlling shareholder of SEM, verifying what are the limitations of the exercise of its power of control. The methodology used for the development of the theme was the bibliographic research. It is demonstrated that the controlling shareholder, when exploring the corporate purpose of the company, must reach, in addition to the interests of shareholders, the public interest that justified the creation of SEM. It was found that the exercise of the power of control of the entrepreneur State in the condition of controlling shareholder is not absolute, with limits stipulated in Law 6.404/76 (Lei das S.A. or LSA), which seek to prevent and repress possible abusive practices. He pointed out that the public entity is responsible for the abusive conduct provided for in the first paragraph of article 117 of the Corporate Law, which is only of a malicious commission nature. The sanction, generically set out in that paragraph, is only damages. It should be noted that in order to incur liability, it is necessary to prove the damage. Finally, it is essential that the State, as the SEM's controlling shareholder, observes the constitutional principles, above all that of transparency, the grounds for administrative decisions and publicity, with the aim of providing the community and other shareholders with access to information on the decisions of the Government in general meetings, in addition to making the disclosure of its annual letters, minutes of meetings, financial statements and public policies that guide the company's business accessible.