The final and unappealable nature (res judicata) of the decision that pierces the corporate veil of a company (in order to enable enforcement against its partners) does not prevent the partners subsequently included in the action from challenging the absence of requirements for ordering the measure, since res judicata does not reach those who were not part of the original lawsuit.
Thus, the partners could challenge the disregard of the legal entity by means of motions to stay enforcement (embargos à execução), as occurred in a case analyzed by the Third Panel of the Superior Court of Justice (STJ).
Read also:
Vesting agreement – an alternative for startups and family businesses
In the action, the creditor pursued the enforcement of an extrajudicial instrument against a medical assistance company and, during the proceedings, the piercing of the corporate veil was incidentally declared so that the partners would be liable for the debt, based on article 50 of the 2002 Civil Code and on the initiation of extrajudicial liquidation proceedings against the debtor by the National Supplementary Health Agency (ANS).
The partners filed motions to stay enforcement alleging the absence of requirements for piercing the corporate veil and the curtailment of their defense, since, according to them, they were not called upon to comment on the act within the legal deadline.
The court of origin did not accept the allegations, understanding that the discussion on the piercing of the corporate veil would already be precluded by virtue of the res judicata of the decision that ordered the measure, and because the motions to stay enforcement were not appropriate for such a challenge.
Different parties – legal entity
At the STJ, the reporting justice, Villas Bôas Cueva, emphasized that there can be no question of preclusion of the decision for the partners, since the records made clear that the disregard occurred at a procedural stage prior to their entry into the proceedings.
“It is verified that the res judicata of the decision that determined the piercing of the corporate veil rendered the matter precluded only with respect to the legal entity originally subject to enforcement, it not being possible to extend the same effects to the partners, who were not parties to the proceedings nor had the opportunity to exercise the adversarial principle and full defense,” the reporting justice stated.
Autonomous action
In addition, the magistrate stressed that the decision that pierced the corporate veil was rendered on an incidental basis, having the nature of an interlocutory decision. In such cases, res judicata does not occur, but rather preclusion, which is the procedural effect that prevents the parties from re-discussing the matter only in that same proceeding in which the decision was rendered.
Thus, there would be no prohibition against re-discussing the lawfulness of the act in another proceeding, especially because the motions to stay enforcement filed by the partners of the company whose veil was pierced have the nature of an autonomous action, with distinct parties.
“It would be incoherent for such individuals to be unable to challenge the lawfulness of the very ordering of the disregard of the legal entity, especially considering that the motions to stay enforcement have the nature of an autonomous action, through which the party subject to enforcement may allege any matter that it would be lawful to raise as a defense in declaratory proceedings (article 745, item V, of the CPC/1973),” Villas Bôas Cueva stated.
Greater theory
With regard to the allegation of the absence of requirements for piercing the corporate veil, the justice understood that there was a curtailment of defense for the partners, since they did not have the opportunity to prove that there was no fraud or abuse in the management of the company, requirements demanded under article 50 of the Civil Code.
“As is well known, the greater theory of piercing the corporate veil requires proof of abuse, characterized by deviation of purpose (an intentional act of the partners with the intent to defraud third parties) or commingling of assets, requirements that are not presumed even in cases of irregular dissolution or insolvency of the business company,” he stated.
The panel followed the vote of the reporting justice and determined the annulment of the decision-making acts and the return of the records to the first instance, so that the personal liability of the partners may be analyzed in light of the requirements set forth in article 50 of the 2002 Civil Code, ensuring them the possibility of producing evidence as duly requested.
← Back to blog