A desconsideração reversa da personalidade jurídica: uma variante empírica na representação taxonômica

Abstract

This thesis presents as its central object the empirical study of the jurisprudence of the Superior Court of Justice (SCJ) in relation to use of disregard doctrine in the context of de facto economic groups. Brazilian doctrine and jurisprudence, however, are divided on the nomenclature of the disregard variant applicable for intra-group liability purposes. The alternating incidence of the expressions expansive disregard and indirect disregard to identify the aforementioned modality is one of the examples that portray that dissonance. Although the current state of the doctrine embraces the differentiation between the highlighted terminologies, the effectiveness of that proposal is liable to be questioned in the light of the signs of flexibility of the conceptual scheme admitted especially in the theoretical plane. The general objective of the research is to investigate the possible existence of a specific key presupposition of disregard applied against members of a de facto business conglomerate and gaps that justify the review of the alleged difference between the expansive and indirect modalities. The investigation starts from the basic hypothesis that the interchangeable treatment between these variants manifests itself in the linking of both to a specific key presupposition and in the production of the same generic effect. Regarding the methodological trajectory, the model used in the approach is the hypothetical-deductive. The scientific rigor of the study is also guaranteed by the adoption of the content analysis technique, with the division of the research into three main phases, namely: i) pre-analysis, for initial data collection and constitution of the empirical corpus; ii) exploration of the material, from the categorical analysis of the content; and iii) treatment of results, encompassing the systematization and interpretation of data. The discussion of the research results brings to light the tendency to equate the business group to a de facto economic unit, in the cases of the sample in which disregard is authorized. Empirical data, however, do not indicate the conscious demarcation of expansive and indirect modalities. In fact, this thesis identifies the existence of an alternative variant superimposed on the first two – named reverse disregard. Also according to the interpretation of the data obtained, the specific key assumption of that species is the simulated business splitting. The conclusion of the study also highlights the production of a generic effect associated with the reverse variant, that is, the expansion of the passive pole of the execution – with the possibility of regressive reach of legal and natural persons, including simultaneously.