A responsabilidade civil da companhia aberta pela divulgação de informações falsas ou imprecisas aos investidores à luz do funcionamento eficiente do mercado

Abstract

This thesis aims to study the civil liability of publicly-traded corporation for the disclosure of false or misleading information to investors. In the Brazilian legal framework, Law No. 6,385/1976 imposed the disclosure of information as a requirement for the registry of public offering (article 19, paragraph 5, II, and paragraph 6) and public-traded corporations (article 21, paragraph 6, II, and article 22, paragraph 1, I), but it did not address specifically the civil liability of publicly-traded corporations for failure to disclose information to the market. The thesis investigates the theoretical and legal grounds of the civil liability of publicly-traded corporations for the disclosure of false or misleading information to the securities market, a conduct that constitutes violation of its duty to inform. The issue is examined in light of the efficient functioning of the market, since this was an objective attributed to the Brazilian Securities and Exchange Commission and the National Monetary Council under article 4, II and III, of Law No. 6,385/1976. The research is justified by the importance of the securities market as a mechanism to enable complex financial intermediation, necessary to the economic development, the functioning of which depends on the public trust on the reliability of the institutions and mechanisms of exchange. The main hypothesis is that the efficient functioning of the market was set forth as one of the objectives of the securities market rules and presupposes the disclosure of information by the publicly-traded corporations, as issuers of securities. If this duty to inform is violated, the publicly-traded corporation must be made liable, in order to ensure the effectiveness of the rules of mandatory disclosure, filling the gaps of Laws No. 6,404/1976 and No. 6,385/1976 with the general rules of civil liability established by the Civil Code. The thesis uses the deductive method to analyze the results, based on a documental research of legal doctrine and jurisprudence, reaching conclusions on the subject through the theories of market efficiency and rules of civil liability. The conclusion of the thesis is that the publicly-traded corporation may be held liable for the violation of its duty to inform, as long as the information disclosed in the misleading or false manner is material, the act of disclosure is attributable to it, in accordance with the organicist theory, and it is demonstrated the existence of guilt or willful wrongdoing, causality and effective damage.