The STJ understands that it is not possible to hold a member of the audit board (conselheiro fiscal) liable for the obligations of a cooperative society, except where there is proof of fraud, abuse of rights or use of the position in an unlawful manner to obtain a personal benefit.
In the case adjudicated, the former member of the audit board of a housing cooperative filed an appeal against a ruling of the Court of Justice of São Paulo (TJSP) which, after the disregard of the legal personality decreed in the enforcement of judgment, imputed to him the liability for debts incurred by the entity with a consumer and authorized the attachment of various assets of his property.
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The TJSP stated that, since the co-defendant held a position on the audit board, he should also bear the losses caused by the society. According to the São Paulo court, for the disregard of the legal personality, it suffices to prove that it is an obstacle to the reimbursement of the losses caused to the consumer – under the terms of Article 28 of the Consumer Defense Code (CDC) – and to ascertain the state of insolvency.
The former member of the cooperative argued that it was not possible to redirect the enforcement against him, considering that he only held the position of member of the audit board, for a short period.
Major theory of disregard
In his vote, the rapporteur of the appeal highlighted that Article 50 of the Civil Code, both in its previous wording and in the current one (introduced by Law 13,874/2019), adopts the so-called major theory of the disregard of the legal personality, according to which, for the granting of the measure, it is necessary to demonstrate that there was abuse of that personality, materialized in a deviation of purpose or commingling of assets.
On the other hand, the minor theory, supported by Article 28, paragraph 5, of the CDC, determines that the assets of the partners or administrators may be reached whenever the legal entity represents an obstacle to the reimbursement of the losses, not requiring, therefore, proof of a deviation of purpose or commingling of assets.
The reporting justice emphasized that, in the case analyzed, in which the cooperative under enforcement operates in the housing sector, the minor theory must be applied, as the court of origin did, in accordance with Precedent 602 of the STJ, which provides that “the CDC is applicable to housing developments promoted by cooperative societies”.
Board member without management function
However, even with the minor theory being applied to the case, the rapporteur considered that “Article 28, paragraph 5, of the CDC cannot be interpreted so broadly as to permit holding liable someone who never formed part of the board of directors or the administrative council of the cooperative”.
He recalled that, according to the case records, the co-defendant only held, for a brief period, the position of member of the audit board, which has no management function in the society, in accordance with Articles 47 and 56 of Law 5,764/1971 (Cooperatives Law).
“It is also worth highlighting that, although Article 53 of the Cooperatives Law equates the members of the administration and of the audit board, as well as the liquidators, to the administrators of corporations for the purpose of criminal liability, such provision does not apply to the case, since it concerns a demand of a civil nature”, added the rapporteur.
Source: STJ
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