A desconsideração da personalidade jurídica nos grupos de sociedades: uma análise da jurisprudência das Câmaras de Direito privado do Tribunal de Justiça do Estado do Ceará

Abstract

The present study aims to analyze the application of piercing the corporate veil in groups of companies, with a focus on the jurisprudence of the Private Law Chambers of the Court of Justice of the State of Ceará. The research is divided into three main sections. The first addresses the definition of piercing the corporate veil, examining its concept, process, and essential elements, as well as the practical effects of separating the personalities of shareholders and administrators from the company. The situations in which this separation can be disregarded, allowing for the reach of the assets of shareholders or affiliated companies, are also explored. The second section deals with the concepts and essential elements for the configuration of groups of companies, including the classification of types of groups and the analysis of different forms of accountability for the companies that make up these groups. The third section focuses on tabulating judicial decisions related to piercing the corporate veil in business entities belonging to economic groups. Twenty-two decisions were identified and analyzed under aspects such as the concept of a group, grounds for group configuration, accountability of affiliated companies through piercing the corporate veil, grounds for such accountability, and procedural aspects. The results indicated that all the social structures of economic groups analyzed were configured as "in fact" and did not meet the requirements established by Law 6.404/76. The concept of a group was expressly defined in only 1 of the cases, in the others, configuration occurred despite conceptualization. The grounds for configuration included the identity of shareholders, the same administrator, joint management, the existence of asset sharing between companies, having shareholders from the same family (family group), engaging in the same economic activity, providing services together, having the same address, promoting improvements from one company to another, recognition in another judicial action, and even the presumed configuration of the group. Piercing the corporate veil occurred in 22.73% of the affiliated companies, while in 36.36% of the cases, there was accountability of a company within the group, even without piercing, based on the mere existence of the group as justification for joint liability. The analysis suggests that only 59.09% of the decisions aligned with the purpose of the corporate veil piercing in the economic group, emphasizing the importance of combating abuses such as commingling of assets and diversion of purpose, rather than basing responsibility solely on the existence of the group. It was observed that the procedure for piercing the corporate veil generally takes place within Ordinary Action or Execution, following the pattern of disregarding the personalities of affiliated companies in an "in fact" manner, without their prior manifestation and without the filing of an autonomous or incidental action. The methodology employed in the study is descriptive and explanatory, using text analysis, data, statistics, and research of judicial decisions to observe patterns in jurisprudence.