A dissolução societária total e o Código de Processo Civil de 2015: a origem de um novo problema

• Ano de defesa: 2019
• Autor(a) principal: Collucci, Ricardo
• Orientador(a): Bueno, Cassio Scarpinella
• Tipo de documento: Tese
• Tipo de acesso: Acesso embargado
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Código de Processo Civil; Processo civil - Leis e legislação - Brasil; Dissolução societária; Lacuna legal
• Palavras-chave em Inglês: Code of Civil Procedure; Civil procedure - Laws and legislation - Brazil; Corporate dissolution; Legal lacuna
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://tede2.pucsp.br/handle/handle/22675

The influence of substantive law over adjective law has always been present in the Brazilian legal system, particularly in the branch of corporate law. Indeed, the lawmakers have always concerned themselves in order to offer corporate conflicts of interest - especially dissolution issues - legal ways that could handle them appropriately before the court of law from the respective nuances of substantive law with aim to provide, therefore, an adequate and effective legal jurisdictional solution that, in practice, would not come from the standard procedure. They are the special procedures, in this context, the materializers of such personalized and tailored ways following the peculiarities of substantive law and, regarding conflicts of corporate dissolution, it was never denied that the unique aspects of these in the objective spectrum demand, in fact, a special procedure of its own. Historically, though, Brazilian adjective law have always dedicated preponderantly to this subject - if not exclusively - in the perspective of full corporate dissolution, with little to no concern towards conflicts that bring forward partial dissolution (The states’ Code of Civil Procedure, as well as the federal ones of 1939 and 1973, were established with this perspective and contained special procedures for full dissolution. This was justified because substantive law, in which adjective law feeds more strongly in this subject, did not verse about the hypothesis, but with the passing of time and the evolution of society, the social role of companies started receiving more careful attention, and thus it was born the concept of preservation of the company activity, which, later on, was presented as one of the pillars for the advent of partial dissolution as statutory law. The first Code to mention the issue was the Civil Code of 2002, and the Code of Civil Procedure of 2015, then, mirrored such material innovation - or update -, establishing in its articles 599 to 609, in a special procedure, the so called “partial corporate dissolution procedure”, which was necessary for so long. The problem is that the lawmakers behind the adjective law of 2015, in the same opportunity, relegated the full dissolution, which have always had special procedure, to the ordinary procedure, known to be incapable of ruling the subject before the court (punctually, the stage of corporate liquidation), and created, in that, a fully avoidable issue that, in essence, constitutes a true loophole that hinders the everyday life of those who look over the subject. This project, in view of that, is dedicated to finding a solution for such problem, considering its procedural perspective starting from the comprehension of special procedures, its relevant and required application to the subject of full dissolution, and finally of the possible and most advised ways to avert the mentioned loophole, inspired, all, in the corporate law